author: BARNES, J.,

text:
    Andrea Marshall ELAM f/k/a Andrea Carol Marshall Hinson, Appellant, v. Melvin HINSON, Appellee. Andrea Carol Marshall Hinson, Appellant, v. Melvin Hinson, Appellee.
    Nos. 2005-CA-00844-COA, 2003-CA-00239-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.
    B. Blake Teller, Vicksburg, attorney for appellant.

      Edwin Woods, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Andrea Hinson appeals a final judgment of divorce granted by the Chancery Court of Warren County. On appeal, Andrea contests the chancery court’s division of the marital assets and argues that she should have been awarded lump sum alimony. We find that the chancery court’s division of the assets and decision to award only periodic alimony is supported by the record and therefore affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 26, 2001, Andrea filed for divorce from her husband Melvin on the grounds of habitual cruel and inhuman treatment and adultery, or, in the alternative, irreconcilable differences. Melvin counterclaimed alleging similar grounds. Both parties then withdrew their fault-based grounds for divorce and agreed to a divorce on the grounds of irreconcilable differences. The parties were unable to agree, however, on the issues of property settlement, alimony, and child support and custody. These issues were tried before a chancellor on October 1, 2002. The chancellor issued a bench ruling on November 4, 2002, which granted Andrea physical custody of the parties’ two minor children, divided the marital property, and awarded periodic alimony to Andrea. Aggrieved by the ruling, Andrea filed a motion for a new trial or to alter or amend the judgment, which was denied by the chancery court. Andrea then appealed the denial of her motion. On appeal, this Court found that we did not have jurisdiction to review Andrea’s appeal because no final judgment of divorce had been entered by the chancery court. Hinson v. Hinson, 877 So.2d 547 (Miss.Ct.App.2004). In that decision, we also noted that we would be unable to adjudicate Andrea’s appeal until the chancellor had made findings of fact in support of her judgment. Id. at 548(¶ 6).

¶ 3, Andrea accordingly filed a second motion for a new trial or to alter or amend the judgment and for entry of final judgment with the chancery court. The chancellor denied that motion, and entered findings of fact and conclusions of law on March 8, 2005. On April 21, 2005, the chancellor entered a final judgment of divorce, from which Andrea timely appealed to this Court.

¶ 4. The chancellor found that the parties were married on June 16, 1984. The parties had two children, aged ten and seven at the time of trial. Melvin Hinson was a plumber who originally worked for his father in Hinson Plumbing Company. Because his father suffered from declining health, Melvin eventually took over the business and changed the focus from residential to commercial plumbing. From the point that his father retired, the business was a sole proprietorship in Melvin’s name.

¶ 5. When the parties married, Andrea had spent one year in a community college. Andrea then went back to college and finished her studies at Mississippi College, obtaining an undergraduate degree in education. Andrea’s father paid her tuition. After Andrea’s graduation in 1992, she and Melvin started their family. In 1998, Andrea began teaching full-time in Vicksburg. She obtained a master’s degree in elementary education in 2002, which was paid for by Hinson Plumbing. Throughout the marriage, both parties’ living expenses were paid for by Hinson Plumbing; Andrea was allowed to retain all of her income for personal use. Melvin also provided a maid for the home so that Andrea could spend time with the children and pursue her teaching career.

¶ 6. Melvin and Andrea separated in January 2001. At that time, they owned three parcels of real estate: the marital residence, which was located on 3.3 acres of land; a 13 acre section of land; and a 19 acre section of land. The chancellor determined at trial that the collective value of the real estate was $163,000. The parties owned several vehicles, including four work trucks used by Melvin’s business, and a 1999 Chevrolet Tahoe driven by Andrea and financed by Melvin. The collective value of the vehicles was $120,000. Also included in the marital estate was equipment related to the plumbing business, including traekhoes, trenchers, and trailers, the undisputed value of which was $140,000.

¶ 7. The cash assets of the parties were disputed at trial. Andrea claimed that Melvin had $82,179 in cash. Melvin stated that Andrea came up with this figure because he, through Hinson Plumbing, had received a check for that exact amount during the month that Andrea was compiling her estimate of the marital assets. Melvin testified that the only cash he possessed at the time of trial was approximately $4,000, which he claimed was the amount remaining after he had paid the payroll for Hinson Plumbing. Andrea stated that Melvin had approximately $100,000 in certificates of deposit. Melvin, however, claimed that this figure was closer to $64,000, and that the certificates were encumbered by debt. As to liabilities, Andrea claimed that Melvin owed $158,960, while Melvin stated that he owed $180,000. Additionally, Melvin claimed that a judgment had been entered against him in the Circuit Court of Hinds County in the amount of $53,000.

¶ 8. At the time of the trial, Andrea was employed as a full-time teacher, making approximately $30,000 annually. The chancellor found that Melvin earned approximately $80,000 per year through his business. Andrea’s job provided health insurance with her salary, while Melvin, being self-employed, received no health benefits in addition to his salary.

¶ 9. At the close of trial, the chancellor awarded joint legal custody of the children, and awarded physical custody of both children to Andrea. All of the property owned by the parties was designated as marital property. Melvin was ordered to pay $1,300 per month in child support and $350 per month in periodic alimony. He was ordered to maintain health insurance and a $500,000 life insurance policy for the benefit of the children. As to the real property owned by the parties, the chancellor awarded the 13 acre tract to Andrea, and the 19 acre tract to Melvin. Both parties received an equal interest in the marital home and the 3.3 acres upon which it was located, and the mortgage on the home was divided equally between the parties. Andrea was awarded the Chevrolet Tahoe, and Melvin was required to continue making the payments on it. Melvin was allowed to keep the equipment, tools, and vehicles necessary to operate his business. He was also awarded his hunting dogs, a bass boat, and his motorcycle.

¶ 10. On appeal, Andrea contends that the chancellor failed to distribute the marital property equitably. In support of this contention, she essentially re-argues the evidence introduced at trial. She also argues that she is entitled to an award of lump sum alimony because she assisted in the plumbing business, and because she claims that the chancellor’s award does not afford her the same standard of living to which she was accustomed prior to the parties’ divorce. Under our limited standard of review, we find that the chancellor did not abuse her discretion in dividing the marital assets or in her award of alimony. Accordingly, we affirm.

STANDARD OF REVIEW

¶ 11. Our standard of review in divorce proceedings is limited. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997). “This court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994); Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). “Where there is substantial evidence to support the chancellor’s findings, this court is without the authority to disturb the chancellor’s conclusions, although we might have found otherwise as an original matter.” City of Picayune v. Southern Regional Corp., 916 So.2d 510, 518-19(¶22) (Miss.2005) (citing In re Guardianship of Savell, 876 So.2d 308, 312(¶4) (Miss.2004)).

ISSUES AND ANALYSIS

I. Whether the chancellor failed to divide the marital assets equitably.

¶ 12. Andrea argues that she should “be awarded $165,000 in cash and other assets to more equitably divide the marital property.” This amount she claims should come from two sources. First, she should receive a lump sum property settlement of $115,000 from the plumbing business, because she contributed to the operation of the plumbing business during its time of growth. She arrives at this figure by adding the value of the equipment of the plumbing business, $140,000, and the value of the vehicles owned by the parties, $90,000, and then halving the resulting total of $230,000. Second, she posits that she should receive $50,000 in cash as her portion of the cash assets which she claims Melvin possessed following the parties’ separation.

¶ 13. The parties agree that the proper legal standard to be applied in equitably dividing the estate is found in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). The Ferguson factors are as follows:

(1) Substantial contribution to the accumulation of the property.
Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties, and duration of the marriage; and
c. Contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets.
(2) The degree to which each spouse has extended, withdrawn, or otherwise disposed of marital assets in any prior distribution of such assets by agreement, decree, or otherwise.
(3) The market value and the emotional value of the assets subject to distribution.
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity; and
(8) Any other factor which in equity should be considered.

Id. at 928. The chancellor correctly cited these factors in her findings of fact and conclusions of law.

¶ 14. Andrea argues that the plumbing business was “in the hole” at the time the parties married, and that after their marriage the business changed from a residential to a commercial focus and greatly increased in value. She argues that her “presence enabled Mr. Hinson to significantly grow his plumbing business,” that “[s]he worked for the business or she stayed home when the parties so desired,” and that, under the chancellor’s ruling, she will not “enjoy the benefits of the business which supported her standard of living for eighteen years.”

¶ 15. The chancellor, in dividing the marital property, found that the plumbing company “generated the revenue that provided for the family and led to the accumulated property.” The chancellor also found that Melvin operated the plumbing business “with very little help from Andrea.” We find that substantial evidence supports this conclusion. While Andrea claimed that she answered phones for the business, assisted with payroll, and performed bookkeeping tasks, Melvin testified that Andrea’s participation in the business was only minimal. Furthermore, as the chancellor noted, Andrea appears to have devoted her time during the marriage toward obtaining both an undergraduate and a graduate degree, and then teaching full-time. Between receiving the undergraduate and graduate degrees, Andrea spent time with the couple’s children. It is undisputed that Melvin provided a maid to care for the household during the marriage. Also, it is undisputed that the income from Melvin’s business paid for all of the expenses of the parties; Andrea was allowed to devote all of the income that she earned in her teaching positions to her own personal use. These factors support the chancellor’s finding that Andrea did not contribute significantly to the operation of the plumbing business.

¶ 16. Furthermore, and perhaps most importantly, the chancellor based her decision to allow Melvin to retain the assets of the business in order that “he may continue to pay those financial obligations ordered by this Court.” Melvin testified that the income which the business received fluctuated, and the business was not always in a state of financial stability. Andrea recognizes this fact, stating in her brief that the chancellor made the proper decision in awarding Melvin the assets of the plumbing business and thereby allowing him to continue to operate the business. Thus, the chancellor awarded the business assets to Melvin because she wanted to ensure that Andrea would continue to receive a steady stream of income in the form of the child support and periodic alimony awards.

¶ 17. As to Andrea’s claim that she should receive $50,000 of Melvin’s cash assets, we note that the value of these assets was not established at trial. Andrea claimed that Melvin had approximately $100,000 in CD’s. Melvin acknowledged that he had CD’s in the amount of $64,000. However, he stated that much of that amount was in favor of the parties’ children, and that the CD’s were encumbered by debt. Andrea also claimed that Melvin had cash assets in the amount of $82,179. Melvin stated that Andrea likely derived this figure from a check his plumbing company received in exactly that amount at the time the parties separated. Andrea claimed that Melvin kept cash in a safe deposit box. Melvin agreed that he had $12,000 in a safe deposit box at one time. However, he claimed that this money was now gone and had likely been used to pay the weekly payroll for Hinson Plumbing, which, according to Melvin’s testimony, averaged between $5,000 and $12,000 per week. Andrea alleges in her appellate brief that Melvin dissipated these assets, but she offers no evidence to support her allegations.

¶ 18. Because the only evidence on the amount of cash assets was the conflicting testimony of the parties, the chancellor was entitled to weigh Melvin’s testimony as more persuasive. Furthermore, the chancellor awarded child support and alimony payments to Andrea. These payments could just as well come from Melvin’s cash assets as from his plumbing business. We find the chancellor’s decision in this regard was not clearly erroneous.

II. Whether the chancellor erred in failing to award lump sum alimony.

¶ 19. The parties agree that an award of lump sum alimony is determined by the factors enunciated in Tilley v. Tilley, 610 So.2d 348 (Miss.1992). The factors are:

(1) Substantial contribution to the accumulation of total wealth of payor either by quitting a job to become a housewife or by assisting in the spouse’s business;
(2) A long marriage;
(3) Whether the recipient spouse has no separate income or the separate income is meager by comparison; and
(4) Without the lump sum award the receiving spouse would lack any financial security.

Id. at 352. These are the factors which the chancellor considered in her findings of fact and conclusions of law.

¶ 20. As the chancellor correctly pointed out, Andrea appears to meet only one of these factors: that the marriage between the parties was long. The facts presented at trial showed that she never quit a job to become a housewife. In fact, Melvin provided a maid so that Andrea could pursue her teaching career. It is undisputed that Andrea had a separate income at the time of the trial. Andrea claims that her separate income was meager in comparison to Melvin’s. Testimony at trial indicated that Melvin was left with approximately $80,000 of income per year, without benefits, while Andrea made approximately $30,000 per year with benefits. The chancellor found, and we agree, that Andrea’s income was not “meager” in comparison to Melvin’s, especially in light of the fact that she would be receiving periodic alimony and child support from Melvin on a monthly basis. Also, the fact that Andrea’s salary includes health benefits and Melvin’s does not closes the gap between the parties’ respective incomes. The chancellor correctly determined that with the salary and benefits awarded by the Court, Andrea would receive nearly $50,000 annually, plus the cash value of her free health insurance supplied by her employer. Andrea argues that the chancellor’s award will cause her to lack financial security. However, while her standard of living may change, we see no proof that Andrea will lack financial security because she did not receive a lump sum alimony award.

¶21. Andrea argues strenuously that she should be awarded lump sum alimony because she “contributed to the growth of Mr. Hinson’s plumbing business.” She claims that she provided “office support for the business as well as support at home to enable Mr. Hinson to be free to grow the business and accumulate additional marital assets.” She presented similar testimony at trial; however, her testimony was contradicted by Melvin’s testimony as well as her own admissions. Faced with conflicting testimony on this issue, the chancellor chose to adopt Melvin’s testimony regarding Andrea’s participation in the business. Melvin’s testimony was corroborated by Andrea’s own admissions. For instance, Andrea agreed that Melvin provided a maid to care for the home while she pursued her teaching career and spent time with the children. Andrea agreed that she was allowed to keep all of the money she made in her jobs, while Melvin’s business paid for all of her expenses. Andrea also agreed that cash flow of Melvin’s business fluctuated significantly.

¶ 22. This being the case, we find that there is substantial evidence to support the chancellor’s findings. The chancellor’s findings of fact and conclusions of law are not clearly erroneous, and, accordingly, we affirm.

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

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR.

      . This issue was undisputed.

      . Andrea was given the right to possess the home until it was sold to a third party by agreement of the parties, or purchased outright by one of the parties.

      . She claims, however, "It is ok for Mr. Hin-son to keep the assets [of the plumbing business] because he may utilize these assets to continue the operation of the plumbing business.” Thus, she does not argue that assets from the plumbing business should be allocated to her. Rather, she argues that Melvin should make a cash payment of this amount based on the assets of his business.

      . She arrives at the figure of $90,000 by taking the undisputed total value of the vehicles of the plumbing business, $120,000, and subtracting the approximate $30,000 value of the Chevrolet Tahoe she was allowed to keep.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Ed POLLARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01700-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.

      James A. Williams, Brookhaven, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. Robert Ed Pollard was convicted in the Circuit Court of Lauderdale County of larceny of timber of a value of $250 or more, and was sentenced to five years in the custody of the Mississippi Department of Corrections, fined $500, and ordered to pay restitution of $1,226.50. Aggrieved, Pollard timely appealed to this Court. Finding error, we reverse and remand.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In early 2003, Walter Duncan sought to have some trees removed from a piece of property located in Meridian, Mississippi. He contacted Cuba Timber and was told by a representative that someone from the company would be in touch with him in a few days. On January 6, Pollard and his brother Charles — both employees of Cuba Timber — arrived at Duncan’s property and indicated that they were ready to begin cutting the trees. Duncan took the Pollards twice around the property, pointing out the property lines and emphasizing to the Pollards that they were to obey the property lines. Duncan stated that he did not see Robert Pollard again until the morning of January 8, when he arrived at the property to find Pollard and a crew cutting trees on an adjacent parcel of land owned by Melwyn Shirley. Duncan testified that he informed Pollard that he was cutting on the wrong property and ordered him to stop cutting immediately. According to Duncan, Pollard indicated that he had spoken to Shirley and had agreed to pay her for the mistakenly cut timber.

¶ 3. Shirley testified that on the morning of January 8, she witnessed Pollard cutting trees in her backyard. Shirley stated that she went outside and confronted Pollard, who apologized for cutting too far over the property line and offered to pay for the timber and to clean up her property. Shirley sought the assistance of the Mississippi Forestry Commission, which determined that twenty-five trees had been cut by Pollard, with a total value of $1,226.50. Shirley testified that when she received this estimate, she showed it to Pollard, who refused to pay the sum and instead offered a payment of $500. Shirley testified that she did not accept Pollard’s offer.

¶ 4. Pollard was indicted on a charge of larceny of timber of a value of $250 or more, pursuant to section 97-17-59(2) of the Mississippi Code (Rev.2000). On July 9, 2004, Pollard was convicted of the crime in the Circuit Court of Lauderdale County and was sentenced to the maximum term of five years in prison, fined $500, and ordered to pay restitution of $1,226.50. Pollard filed a motion for judgment notwithstanding the verdict, or, in the alternative, a new trial, which was denied by the trial court. On appeal, Pollard raises several issues, some of which we need not reach, as we find reversible error.

ISSUES AND ANALYSIS

I. WHETHER POLLARD’S INDICTMENT WAS FATALLY DEFECTIVE.

¶ 5. Section 97-17-59(2) of the Mississippi Code, under which Pollard was convicted, reads in pertinent part:

Any person who shall knowingly, willfully and feloniously take, steal and carry away from the lands of another any merchantable timber on the property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, whether such timber is growing, standing, or lying on the lands, shall be guilty of a felony; and upon conviction thereof, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the Penitentiary for a term of not less than one (1) year nor more than five (5) years, or both, in the discretion of the court.

¶ 6. The indictment charging Pollard stated that “Robert Ed Pollard ... did then and there wilfully, unlawfully, and feloniously cut and harvest [$1,226.50] worth of timber from the property of Mel-wyn Shirley -” (emphasis added). Pollard contends that his indictment was defective because it did not specify an essential element of the crime, namely, that he “carried away” the timber in question.

¶ 7. It is well-settled that in order for an indictment to be sufficient, it must contain the essential elements of the crime charged. Peterson v. State, 671 So.2d 647, 652-53 (Miss.1996). The Mississippi Supreme Court has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent a showing of cause and actual prejudice; however, the State’s failure to include the essential elements of the crime in the indictment is a jurisdictional defect that is not waivable by the defendant. See Banana v. State, 635 So.2d 851, 853 (Miss.1994). Furthermore, the State’s failure to include an essential element of the crime cannot be cured by notice outside of the indictment. White v. State, 851 So.2d 400, 403(¶ 5) (Miss.Ct.App.2003). The key-question in this case is whether the word “harvest” served as an adequate substitute for “carry away”; if so, the indictment states each element of the crime and is thus adequate.

¶ 8. Our case law establishes that in order to constitute a “carrying away,” movement of the good in question need not be substantial. In Mapp v. State, 248 Miss. 898, 904, 162 So.2d 642, 645 (1964), the Mississippi Supreme Court held that “it is not necessary to constitute a sufficient asportation, that the goods be removed from the owner’s premises.” Furthermore, in the case of Harbin v. State, 402 So.2d 360, 361 (Miss.1981), the supreme court sustained a conviction of grand larceny where the defendants had towed an automobile a mere three feet. In that case, the supreme court held that, “There is a caption when the defendant takes possession; he takes possession when he exercises dominion and control over the property. There is an asportation when he carries away the property; any carrying away movement, however slight, even though it takes but a moment, is sufficient.” Harbin, 402 So.2d at 361-62.

¶ 9. According to Black’s Law Dictionary, “harvesting” refers to “[t]he act or process of gathering of crops of any kind.” Black’s Law Dictionary, 718 (6th ed.1990). It is obvious from this definition, as well as from common sense, that harvesting necessarily involves some degree of movement of the good in question. Furthermore, as stated above, even a slight movement of a good can constitute a “carrying away” so as to sustain a conviction of larceny. We have no difficulty finding that, where the indictment charging Pollard with larceny alleged that he feloniously “harvestfed]” timber from the property of Melwyn Shirley, this served as an adequate replacement for the term “carried away.” Thus, we find that Pollard’s indictment was not defective, as it set forth each element of the crime with which he was charged. This issue is without merit.

II. WHETHER THE JURY WAS PROPERLY INSTRUCTED AS TO THE ESSENTIAL ELEMENTS OF THE CRIME.

¶ 10. As set forth supra, section 97-17-59(2) of the Mississippi Code sets forth the elements for larceny of timber of the value of $250 or more:

Any person who shall knowingly, willfully and feloniously take, steal and carry away from the lands of another any merchantable timber on the property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, whether such timber is growing, standing, or lying on the lands, shall be guilty of a felony; and upon conviction thereof, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the Penitentiary for a term of not less than one (1) year nor more than five (5) years, or both, in the discretion of the court.

(Emphasis added). However, jury instruction C-8 erroneously stated the elements of the crime. It read:

The Court instructs the Jury that, should you find from the evidence in this case, beyond a reasonable doubt that:
1. On or about the 8th day of January, 2003 in Lauderdale County, Mississippi;
2. The Defendant, Robert Ed Pollard, did wilfully and unlawfully take, steal or cut or did authorize his employees to unlawfully take, steal or cut the timber of Melwyn Shirley and the value of that timber was over $250.00;
then it is your sworn duty to find the Defendant guilty of Timber Theft over $250.00.

(Emphasis added). Pollard contends that the trial court committed plain error in allowing instruction C-8, as it improperly set forth the elements of the crime of timber larceny and thus deprived him of the right to a fair trial.

¶ 11. As an initial matter, we find that while defense counsel did not object to instruction C-8 at trial, the issue is nonetheless properly before this Court via the doctrine of plain error. Ordinarily, counsel’s failure to object to a given instruction at trial serves as a procedural bar on appeal, unless its granting constitutes plain error. Berry v. State, 728 So.2d 568, 571(¶ 6) (Miss.1999). The Mississippi Supreme Court has held that the failure to submit to the jury the essential elements of a crime amounts to plain error. Id. (citing Hunter v. State, 684 So.2d 625, 636 (Miss.1996)). Furthermore, the prosecution, not the defendant, bears the burden of instructing the jury on the essential elements of the crime. Hunter, 684 So.2d at 635. In this case, the trial court committed plain error by adopting an instruction that did not fully instruct the jury on the elements of the crime; thus, the procedural bar does not apply. See Berry, 728 So.2d at 568(¶ 6).

¶ 12. The careless use of the word “or” (emphasized above) instead of “and” in instruction C-8 resulted in an erroneous statement of the law that deprived Pollard of his fundamental rights. As written, the instruction allowed Pollard to be convicted upon proof beyond a reasonable doubt that he — assuming that the timber in question was valued at $250 or above — merely cut the timber of Melwyn Shirley or authorized his employees to cut Shirley’s timber. Such a showing, alone, would obviously be insufficient to sustain a conviction of timber larceny, as the instruction does not account for the other elements of the crime, namely, that that the timber be taken “knowingly, willfully and felo-niously,” and that the timber be “carried away.”

¶ 13. In instances where the jury is given incorrect or incomplete instructions regarding the elements of a crime, “our review task is nigh unto impossible and reversal is generally required.” Henderson v. State, 660 So.2d 220, 222 (Miss.1995). As the trial court committed plain error in giving instruction C-8, we are compelled to reverse and remand for a new trial.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO PERFORM AN ON-THE-RECORD M.R.E. 403 BALANCING UPON DEFENSE COUNSEL’S OBJECTION TO THE INTRODUCTION OF EVIDENCE OF ANOTHER BAD ACT COMMITTED BY POLLARD.

¶ 14. Under direct examination by the State during its case-in-chief, Duncan testified, over objection by defense counsel, that Pollard had not paid him for several loads of timber cut from his land. Defense counsel’s objection to this testimony was that it was irrelevant and unduly prejudicial. The prosecution countered, arguing that evidence of this additional wrongful act was offered pursuant to M.R.E. 404(b) to prove Pollard’s intent to steal. The trial court overruled defense counsel’s objection, stating:

To me this is a[403] and 404(B), evidence of other crimes, or evidence that’s not admissible to show, prove the character of a person in order to show he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, absence of mistake. So even though under 403 it’s relevant, the whole issue of this case is intent. So, therefore, I think it’s admissible.

¶ 15. It is well-settled that, once proof of other bad acts of a defendant is deemed admissible pursuant to M.R.E. 404(b), this evidence must still survive the required balancing test pursuant to M.R.E. 403. See, e.g., Jones v. State, 920 So.2d 465, 475(¶ 32) (Miss.2006); Watts v. State, 635 So.2d 1364, 1368 (Miss.1994). In such an instance, the trial court is charged with determining whether the probative value of the evidence is substantially outweighed by the danger of its resultant unfair prejudice. Id. In making this determination, the trial court is given a degree of discretion. Id. at 475(¶33). In the present case, though the trial court did not use “magic words,” it is implicit in the trial court’s statements that it found the evidence more probative than prejudicial. We cannot find that the trial court abused its discretion, and therefore, we find this issue to be without merit.

IV. WHETHER THERE WAS SUBSTANTIAL DOUBT AS TO WHICH STATUTE APPLIED IN POLLARD’S CASE.

¶ 16. Pollard argues that, rather than being sentenced as a felon pursuant to section 97-17-59(2), he should have been sentenced pursuant to section 97-17-81 of the Mississippi Code (Rev.2000), which makes it a misdemeanor to “cut or raft” certain timber from the lands of another. He contends that the misdemeanor statute and the felony statute encompass the same conduct, and that, accordingly, he should have been sentenced to the lesser penalty. We find his argument unpersuasive.

¶ 17. Section 97-17-81 reads:

If any person shall cut or raft any cypress, pine, oak, gum, hickory, pecan, walnut, mulberry, poplar, cottonwood, sassafras, or ash trees or timber upon any lands belonging to any other person or corporation, without permission from the owner thereof, or his agent duly authorized, such person shall, on conviction, be imprisoned in the county jail not more than five months, or fined not less than ten dollars nor more than one thousand dollars, or both.

¶ 18. In contrast, section 97-17-59(2) reads:

Any person who shall knowingly, willfully and feloniously take, steal and carry away from the lands of another any merchantable timber on the property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, whether such timber is growing, standing, or lying on the lands, shall be guilty of a felony; and upon conviction thereof, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the Penitentiary for a term of not less than one (1) year nor more than five (5) years, or both, in the discretion of the court.

¶ 19. The Mississippi Supreme Court has held that “when facts constituting a criminal offense may fall within either of two or more statutes or there is substantial doubt as to which applies, the statute imposing the lesser punishment shall be applied.” Bourdeaux v. State, 412 So.2d 241, 243 (Miss.1982); see also Grillis v. State, 196 Miss. 576, 586, 17 So.2d 525, 527 (1944). Pollard argues that, because there is a substantial doubt as to which statute applies to his conduct, he should be subjected to the lesser punishment set forth in section 97-17-81.

¶ 20. We find it clear from the indictment that Pollard was charged with the felony of larceny of timber — prohibited by section 97-17-59 of the Mississippi Code— and that he was not charged pursuant to the misdemeanor statute. The inclusion in Pollard’s indictment of the phrase “wilfully, unlawfully, and feloniously,” and the inclusion of the value of the stolen timber, make it apparent that Pollard was charged pursuant to the felony statute. Had the State intended to charge Pollard with a misdemeanor, it would have been required to assert only that Pollard cut or rafted timber from another without permission. Furthermore, the inclusion of language in the indictment alleging a “felonious” intent on the part of Pollard makes our decision much easier. Finding that there was not substantial doubt as to which statute applied to Pollard’s conduct, we find this issue to be without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS AND ISHEE, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.

      . While Pollard also contends that the indictment was defective for its failure to assert that he "stole” the timber in question, we find that the term was unnecessary. The indictment alleged that the harvesting was willful, unlawful, and felonious; the inclusion of these words obviated the need for the word "steal” to appear in the indictment.


author: KING, C. J.,

text:
    Juan Pedro PENA, Appellant v. STATE of Mississippi Appellee.
    No. 2004-KA-02366-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.

      Pearson Liddell, Mississippi State, attorney for appellant.
    Office of the Attorney General by John R. Henry Forrest Allgood, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C. J.,

for the Court.

¶ 1. Juan Pedro Pena was indicted on July 24, 2001, for two counts of selling a controlled substance — cocaine to confidential informant, Dennis Castillo. The two incidents took place March 6, 2000, and April 2, 2000. On October 19, 2004, Pena was tried and convicted for the April 2, 2000 sale. Pena was then sentenced to twelve years in the custody of the Department of Corrections. Aggrieved by his conviction, Pena has appealed the judgment of the Oktibbeha County Circuit Court.

FACTS

¶ 2. On the evening of April 2, 2000, Castillo was equipped with a wireless recording device, given $580, and sent to Pena’s home to purchase cocaine. The activities of Castillo were captured on audio and video, and played during the trial. All of the audio is in Spanish. The recording showed a substance in Pena’s hand that Castillo testified was a bag of cocaine. Pena testified that the substance in his hand was tissue paper. The recording also captured an exchange of money from Castillo to Pena. Castillo testified that the exchange was for the bag of cocaine, while Pena testified that Castillo was repaying part of a debt owed to Pena. After the defense rested its case-in-chief, the State recalled Gerald Davis, an officer with the Starkville Police Department, to rebut Pena’s assertion that the exchange was merely repayment of a debt. Within the confines of Mississippi Rules of Evidence 404(b) the trial court allowed Davis to testify as to the events on March 6, 2000. Without discussing the March 6, 2000 video, Davis described equipping Castillo with the audio/video equipment, giving Castillo $580 for the bag of cocaine, following Castillo to Pena’s home, and Castillo’s subsequent surrender of the bag of cocaine sold to him by Pena.

DISCUSSION

¶ 3. Pena’s sole issue on appeal is that the trial court erred in allowing Davis’ testimony as to the March 6, 2000 transaction without allowing the jury to view the video of the incident. Therefore, we will only discuss that which pertains to the trial court’s decision to allow Davis’ testimony and to exclude the video.

¶ 4. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. During his trial, Pena requested the court to allow the jury the opportunity to view the video of the March 6, 2000 incident rather than to allow Davis testify to it. Pena claims that Davis’ testimony about the March 6, 2000 incident is highly prejudicial without allowing the jury to see the video as well. A trial court enjoys a substantial degree of discretion in its decision to admit or exclude evidence. Woods v. State, 883 So.2d 583, 587(¶ 13) (Miss.Ct.App.2004). In his testimony about the March 6, 2000 incident, Davis testified to equipping Castillo with the video equipment and events that Davis personally witnessed. Davis did not testify to anything that happened on the video. In his on the record findings, the trial judge found Davis’ testimony to be more probative than prejudicial. Finding that the trial court did not abuse its discretion, this issue is without merit.

¶ 5. Pena also claims that the limiting instruction, given when allowing the testimony about the March 6, 2000 incident, insinuated the truth of the events, which would have been mitigated had the jury been allowed to view the video. Any evidence of prior acts offered to show intent to distribute is not barred by M.R.E. 404 and is properly admissible if it passes muster under M.R.E. 403 and is accompanied by a proper limiting instruction. Swington v. State, 742 So.2d 1106, 1112(¶ 15) (Miss.1999) (citing Smith v. State, 656 So.2d 95, 99 (Miss.1995)). The court gave the following instruction as to Davis’ testimony about March 6, 2000:

The Court instructs the Jury that you may not consider the evidence of the March, 2000 investigation of this Defendant, introduced through testimony in rebuttal as evidence of guilt for the offense for which he is being tried. Evidence of this other event is only introduced to show the Defendant’s intent or motive to commit the offense on April 2, 2000, for which he is being tried.

¶ 6. Because the trial court did not abuse its discretion in allowing Davis’ testimony under Mississippi Rules of Evidence 403, and because the instruction was properly given, this claim has no merit. Therefore, the judgment of the trial court is affirmed.

¶ 7. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. M.R.E. 404(b)


author: WOODALL, Justice. STUART, Justice

text:
    Ex parte Richard Jay BENEFIELD. (In re Richard Jay Benefield v. State of Alabama).
    1041354.
    Supreme Court of Alabama.
    Sept. 30, 2005.
    Richard Jay Benefield, pro se.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for respondent.
   WOODALL, Justice.

The Houston Circuit Court summarily dismissed Richard Jay Benefield’s petition for postjudgment relief filed pursuant to Rule 32, Ala. R.Crim. P. The Court of Criminal Appeals affirmed the dismissal by an unpublished memorandum, Benefield v. State (No. CR-04-1017, May 20, 2005), 926 So.2d 1090 (Ala.Crim.App.2005) (table), and Benefield petitioned this Court for a writ of certiorari. We granted that petition to review a single issue concerning double jeopardy. We reverse the judgment of the Court of Criminal Appeals and remand the case.

In 2000, Benefield pleaded guilty to first-degree sexual abuse, first-degree rape, and first-degree sodomy. He was sentenced for each offense, and he did not appeal. In January 2005, Benefield filed a Rule 32 petition challenging his guilty-plea convictions.

In his Rule 32 petition, Benefield claimed, in pertinent part, that his convictions for first-degree rape and first-degree sexual abuse arose “from a single transaction involving the same victim,” and that, therefore, the convictions violated his double-jeopardy rights. Thus, he argued, “the [trial] court lacked jurisdiction to adjudicate and sentence [him] as guilty of both charges.” (Emphasis added.) Finally, Benefield alleged that his claim raised “a true jurisdictional issue, [which] is not subject to the preclusions [of Rule 32.2(a) ] or the limitations period [of Rule 32.2(c) ].” (Emphasis added.)

On February 3, 2005, in response to Benefield’s Rule 32 petition, the State filed a motion for summary disposition. In that motion, the State admitted “that a defendant cannot be convicted of both [first-degree rape and first-degree sexual abuse] arising out of ‘the same act.’ ” Without addressing the allegedly jurisdictional nature of Benefield’s claim, the State simply argued that his claim was without merit, because, it argued, “evidence exists of different acts for each charge”; thus, the State argued, both convictions did not arise out of the same act. On February 4, 2005, the trial court granted the State’s motion and summarily dismissed Bene-field’s Rule 32 petition. Benefield then appealed to the Court of Criminal Appeals.

In its unpublished memorandum, the Court of Criminal Appeals acknowledged Benefield’s argument “that he is entitled to postconviction relief because ... the trial court did not have jurisdiction to render judgments and impose sentences in his cases because his convictions for first-degree sexual abuse and first-degree rape violate double-jeopardy principles.” However, the Court of Criminal Appeals, citing no authority, held that Benefield’s claim is a nonjurisdictional claim that is precluded because he could have raised it at trial and on appeal, but did not, Rule 32.2(a)(3) and (4), and because it is time-barred, Rule 32.2(c). Therefore, the Court of Criminal Appeals affirmed the trial court’s summary dismissal of Benefield’s Rule 32 petition.

We granted certiorari review to consider Benefield’s claim that the Court of Criminal Appeals’ holding that his double-jeopardy claim is nonjurisdictional conflicts with its decision in Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995), and with this Court’s decision in Ex parte Robey, 920 So.2d 1069 (Ala.2004). In Rolling, the defendant appealed “from the circuit court’s denial of his Rule 32, Ala. R.Crim. P., petition in which he contested] his ... convictions for felony murder and reckless manslaughter.” 673 So.2d at 813. In his petition, Rolling asserted, in pertinent part, “that because his two convictions [were] based on the same act — the killing of Jim Godfrey — they violate his right against double jeopardy.” 673 So.2d at 813. The Court of Criminal Appeals held that “this double jeopardy claim goes to the jurisdiction of the trial court to render judgment,” and that, therefore, “Rolling’s double jeopardy/jurisdictional issue [was] not precluded by operation of the limitations period.” 673 So.2d at 816.

The facts in Rolling are indistinguishable from those in Benefield’s case. In Rolling, the defendant alleged that his two convictions were based on the same act. In his verified petition, Benefield alleged that his convictions for first-degree rape and first-degree sexual abuse arose “from a single transaction involving the same victim.” In Rolling, “[r]eckless manslaughter [was] a lesser included offense of felony murder.” 673 So.2d at 814. Here, the State admitted “that a defendant cannot be convicted of both [first-degree rape and first-degree sexual abuse] arising out of ‘the same act,’ ” because first-degree sexual abuse is a lesser-included offense of first-degree rape. See King v. State, 574 So.2d 921, 929 (Ala.Crim.App.1990). Thus, the Court of Criminal Appeals’ decision in Benefield’s ease conflicts with its prior decision in Rolling.

In Robey, the defendant was convicted of two counts of assault in the first degree based on injuries suffered by Jessie McNabb as the result of a motor-vehicle accident involving Robey’s vehicle. This Court held that “punishing Robey twice for the same offense — first-degree assault — violated his double-jeopardy rights.” 920 So.2d at 1073. Further, this Court stated:

“The violation of Robey’s double-jeopardy rights raises questions of the trial court’s jurisdiction to enter a judgment on both assault counts. See Ex parte McKelvey, 630 So.2d 56, 57 (Ala.1992)(Tf the trial court imposed the sentence on [the defendant] without jurisdiction to impose the consecutive sentences for burglary and theft, then [the defendant’s] ground for appeal was not procedurally barred by his failure to object at his sentencing hearing.’). Therefore, Robey is not barred from asserting in this successive Rule 32 petition the violation of his double-jeopardy rights.”

920 So.2d at 1071-72. The Court of Criminal Appeals’ conclusion that Benefield’s double-jeopardy claim was nonjurisdictional conflicts with this Court’s decision in Robey.

In its brief, the State does not address the apparent conflicts between the Court of Criminal Appeals’ decision and the decisions in Rolling and Robey. Instead, the State argues that “[b]ecause Benefield’s double-jeopardy claim is without merit, it is a nonjurisdictional claim.” State’s brief, at 19. However, at this time, this Court is considering the jurisdictional nature of Benefield’s claim, not its merits. Also, while the State argues that the Court of Criminal Appeals “rul[ed] that Benefield had not carried his burden of proof that the sexual abuse conviction was a lesser-included offense of the rape charge,” State’s brief, at 19, the Court of Criminal Appeals did not do so, and no factual issue is before this Court on certiorari review.

For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and LYONS, HARWOOD, SMITH, and PARKER, JJ., concur.

SEE, STUART, and BOLIN, JJ., concur specially.

STUART, Justice

(concurring specially).

Based on the record before us, I agree with the majority that Benefield presented a jurisdictional claim that warrants further review. Here, Benefield pleaded a claim that appears to involve simultaneous convictions for both the charged offense and a lesser-included offense. Therefore, the jurisdiction of the trial court is at issue; the claim is not subject to the limitations period of Rule 32.2(c), Ala. R.Crim. P.; and the merits of the claim must be addressed.

Here, it appears that the State in its response to Benefield’s petition implicitly recognized the jurisdictional nature of Benefield’s claim and argued that the claim was without merit because “evidence exists of different acts for each charge.” Unfortunately, the circuit court did not make findings of fact with regard to the factual basis for each conviction. Consequently, appellate review of this claim is limited, and I cannot determine whether Benefield’s jurisdictional claim warrants the relief requested. Thus, remand for further review — development of the factual basis for the convictions — is required to address the merits of the claim.

Additionally, I note that today’s holding should not be interpreted as establishing that all double-jeopardy claims are jurisdictional. For example, if a double-jeopardy claim is viable before trial, then the defendant must object by pretrial motion, or the double-jeopardy claim is foreclosed. Rolling v. State, 673 So.2d 812, 815 (Ala.Crim.App.1995). Judge Shaw recognized the consistent application of this distinction between jurisdictional and nonjurisdic-tional double-jeopardy claims in Straughn v. State, 876 So.2d 492, 508-09 (Ala.Crim.App.2003), stating:

“Since the decision in Rolling[ v. State, 673 So.2d 812 (Ala.Crim.App.1995) ], this Court has continued to hold that certain double-jeopardy claims implicate the jurisdiction of the trial court and, therefore, are not subject to waiver. See, e.g., Powell v. State, 854 So.2d 1206 (Ala.Crim.App.2002); Deas v. State, 844 So.2d 1286 (Ala.Crim.App.2002); Hale v. State, 831 So.2d 639 (Ala.Crim.App.2001); Peterson v. State, 842 So.2d 734, 735 (Ala.Crim.App.2001) (opinion on return to remand); Grayson v. State, 824 So.2d 804 (Ala.Crim.App.1999), aff'd, 824 So.2d 844 (Ala.2001); Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999); Loggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000); Lorance v. State, 770 So.2d 644 (Ala.Crim.App.1999); Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998); and Dozier v. State, 706 So.2d 1287 (Ala.Crim.App.1997). Like Rolling, most of those decisions involved simultaneous convictions for both a greater and a lesser-included offense.
“However, caselaw from both this Court and the Alabama Supreme Court recognize that generally other double-jeopardy claims are singularly constitutional in nature and are, therefore, subject to waiver. See, e.g., Ex parte Ziglar, 669 So.2d 133 (Ala.1995); Baker v. State, 819 So.2d 87 (Ala.Crim.App.2001); McNish v. State, [878 So.2d 1189 (Ala.Crim.App.2000), rev’d on other grounds, 878 So.2d 1199 (Ala.2003) ]; Stanley v. State, 723 So.2d 821 (Ala.Crim.App.1998); Boyd v. State, 746 So.2d 364 (Ala.Crim.App.1999); Burton v. State, 728 So.2d 1142 (Ala.Crim.App.1997); State v. Richardson, 703 So.2d 421 (Ala.Crim.App.1997); J.N.J. v. State, 690 So.2d 519 (Ala.Crim.App.1996); McGaster v. State, 689 So.2d 1001 (Ala.Crim.App.1996); Owens v. State, 666 So.2d 32 (Ala.Crim.App.1994); Sturdivant v. State, 643 So.2d 1013 (Ala.Crim.App.1993); Powell v. State, 616 So.2d 370 (Ala.Crim.App.1992); Kuk v. State, 602 So.2d 1213 (Ala.Crim.App.1992); Kolmetz v. State, 600 So.2d 389 (Ala.Crim.App.1991); Connolly v. State, 602 So.2d 443 (Ala.Crim.App.1990), rev’d on other grounds, 602 So.2d 452 (Ala.1992); Bolden v. State, 568 So.2d 841 (Ala.Crim.App.1989).”

(Emphasis added.)

SEE and BOLIN, JJ., concur.

       Note from the reporter of decisions: On November 18, 2005, on remand from the Alabama Supreme Court, the Court of Criminal Appeals affirmed, without opinion (CR-04-1017). On December 9, 2005, that court denied rehearing, without opinion. On January 13, 2006, the Supreme Court denied a second certiorari petition, without opinion (1050375).


author: LYONS, Justice. HARWOOD, Justice

text:
    PHARMACIA CORPORATION f/k/a Monsanto Company, et al. v. John SUGGS and Linda Suggs.
    1040623.
    Supreme Court of Alabama.
    Dec. 16, 2005.

      Matthew J. Lembke and Scott Burnett Smith of Bradley Arant Rose & White, LLP, Birmingham; William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham; William S. Cox III and Kevin E. Clark of Lightfoot, Franklin & White, LLC, Birmingham; and J. Mark White of White Arnold Andrews & Dowd, PC, Birmingham, for appellants.
    D. Frank Davis, John E. Norris, and G. Renée Dali of Davis & Norris, LLP, Birmingham; Josh Wright of Hollis & Wright, P.C., Birmingham; Annesley H. DeGaris of Cory, Watson, Crowder & De-Garis, Birmingham; Robert B. Roden and Jodi K. McKelvin of Shelby & Roden, Birmingham; and Earl P. Underwood, Fair-hope, for appellees.

       Note from the reporter of decisions: When the opinion in this case was originally released on December 16, 2005, Justice Bolin's vote was inadvertently omitted.

   LYONS, Justice.

Pharmacia Corporation f/k/a Monsanto Company, and Craig Branchfield, Michael Forseman, and David Cain, employees of Solutia, Inc. (hereinafter referred to as “the manufacturers”), the defendants below, were granted permission to appeal from the trial court’s interlocutory order granting a motion filed by John Suggs and Linda Suggs to amend their complaint to add additional plaintiffs. See Rule 5, Ala. RApp. P. The trial court certified the following controlling question of law:

“Can plaintiffs who settle their claims and accept payment in full satisfaction of those claims subsequently amend their complaint to substitute new plaintiffs?”

We conclude that the Suggses cannot so amend their complaint, and we therefore reverse and remand.

I. Factual Background and Procedural History

This case is one of the toxic-tort cases arising out of the manufacturers’ operations in Anniston. See, e.g., Ex parte Monsanto Co., 862 So.2d 595 (Ala.2003). The Suggses filed the instant action in the Calhoun Circuit Court in 2001 against two manufacturers of polychlorinated biphe-nyls, Pharmacia Corporation fik/a Monsanto Company, and Solutia, Inc., and three employees of Solutia. Solutia later filed a suggestion of bankruptcy and is not an appellant in this case. Although the case was filed as a putative class action, the Calhoun Circuit Court refused to certify the class. The Calhoun Circuit Court later transferred the case to Jefferson County because of extensive pretrial publicity in Calhoun County. The action was then stayed pending resolution of a related federal action.

On September 9, 2003, the parties to the federal action entered into a settlement agreement, which operated as a “full discharge and satisfaction of all claims that Plaintiffs have or could have had against the parties released under the Settlement Agreement.” The Suggses were included within the scope of that agreement. In a letter dated the same day, the manufacturers asked the Suggses to join in a stipulation of dismissal of this state-court case. The Suggses refused to do so, stating that they had yet to receive payment due under the settlement.

In early 2004, however, the Suggses received advanced payments under the settlement, which they unequivocally accepted. In July 2004, the manufacturers again asked the Suggses to join in a stipulation of dismissal, and the Suggses again refused to do so. Instead, the Suggses filed their own motion in the state action, styled as a “Substitution of Class Representatives,” moving for joinder of six additional plaintiffs (“the new plaintiffs”). The manufacturers moved to strike the motion.

In December 2004, the Jefferson Circuit Court entered an order (1) granting the Suggses’ motions to amend the complaint and for substitution of class representatives, thus joining the new plaintiffs; (2) granting leave to add additional plaintiffs until April 1, 2005, without any further leave of the court; (3) reserving judgment on whether class certification was appropriate in light of the allegations asserted in the Suggses’ second amended complaint; and (4) dismissing the Suggses, noting that they were subject to the terms of the settlement agreement. The court also certified the previously quoted controlling question of law for permissive appeal under Rule 5.

II. Analysis

Although the Alabama Constitution of 1901 does not have a requirement that a proceeding involve a “case or controversy” as found in Art. Ill, § 2, of the United States Constitution, we have recognized that settlement renders a judicial proceeding moot and thereby destroys jurisdiction in many cases. See, e.g., Saia Food Distribs. & Club, Inc. v. SecurityLink from Ameritech, Inc., 902 So.2d 46, 55 (Ala. 2004) (“Had [the appellants] accepted the offer of judgment unconditionally, this case would have been settled, and their right to appeal would have been moot.”); Twin City Fire Ins. Co. v. Colonial Life & Acc. Ins. Co., 839 So.2d 614 (Ala.2002) (settlement of underlying wrongful-termination action renders moot declaratory-judgment action to decide duty-to-indemnify question); and Southern Ry. v. Louisville & N.R. Co., 241 Ala. 691, 4 So.2d 400 (1941) (settlement of claim is conclusive of all elements of claim except those specifically reserved by parties).

Mootness is a time dimension of standing. See In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226, 1231 (2005) (“One commentator has described mootness as ‘the doctrine of standing set in a time frame: [t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ H. Monaghan, ‘Constitutional Adjudication: The Who and When,’ 82 Yale L.J. 1363, 1384 (1973).”). See also Presiding Judge Yates’s special writing in Auburn Medical Center, Inc. v. Alabama State Health Planning & Development Agency, 848 So.2d 269 (Ala.Civ.App.2002), in which she stated:

“ ‘Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have “standing to invoke the power of the court in his behalf.” ’ Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998), quoting Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990). ‘Standing requires injury in fact.’ Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164, 166 (Ala.2002). ‘ “Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.” State v. Prop erty at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999), quoting National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994).
“ ‘Mootness doctrine encompasses the circumstances that destroy the justiciability of a suit previously suitable for determination. It is not enough that the initial requirements of standing and ripeness have been satisfied; the suit must remain alive throughout the course of litigation, to the moment of final appellate disposition.’
“13A Charles A. Wright et al., Federal Practice & Procedure § 3533, at 211 (2d ed.1984) (footnote omitted).”

848 So.2d at 272-73 (Yates, P.J., concurring in the result) (emphasis added).

Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), addressed the question of mootness in the settlement context. In Roper, the defendant tendered the amount of the individual claims of each class representative. The class representatives, however, declined the defendant’s tender. The United States Supreme Court rejected the defendant’s contention that the tender, albeit declined, nonetheless rendered the action moot. Justice Rehnquist noted in his special concurrence that “[t]he distinguishing feature here is that the defendant has made an unaccepted offer of tender in settlement of the individual putative representative’s claim.” 445 U.S. at 341, 100 S.Ct. 1166 (Rehnquist, J., concurring). The converse of Justice Rehnquist’s observation supports the view that mere acceptance of the tender by the class representatives would have rendered the action moot.

In Walding v. Blue Cross & Blue Shield of Alabama, Inc., 577 So.2d 853 (Ala.1991), this Court held that plaintiffs who accepted a settlement and executed a stipulation of dismissal without reservation of any issues for appeal waived their right to appeal the denial of their motion to certify a class. The Court in Blue Cross relied on Shores v. Sklar, 885 F.2d 760 (11th Cir.1989), in which the United States Court of Appeals for the Eleventh Circuit applied the consent-to-judgment waiver doctrine in dismissing Shores’s appeal:

“We now hold that appellant’s consent to an entry of judgment, given without reservation of a right to appeal, bars a subsequent appeal of the order denying class certification.
“... We find, however, that because he consented to the entry of judgment without reserving his right to appeal any portion thereof, Shores has waived his right to appeal the denial of class certification.”

885 F.2d at 762 (footnote omitted). The Walding Court stated:

“We find the facts in Shores to be directly on point and find the rationale expressed in that opinion to be sound.... [T]he Waldings accepted a settlement offer and then entered into a stipulation of dismissal without attempting to reserve any issues for appeal. Their consent to the judgment waived any right they had to appeal the .court’s denial of their motion to certify a class.”

577 So.2d at 855-56. The subsequent entry into a stipulation of dismissal, after the unequivocal acceptance of a settlement, is not an essential precondition of a determination of mootness. Consequently, the Suggses’ refusal to execute a stipulation of dismissal after unequivocally accepting the settlement is not a factor that distinguishes this case from Walding.

In Jones v. Southern United Life Insurance Co., 392 So.2d 822 (Ala.1981), this Court allowed a class representative to continue to represent the class after her apparent acceptance of an offer of settlement and after the defendant’s tender of payment to her. The defendant argued that its tender of payment to Jones mooted not only her claim, but also the entire action. This Court stated: “Notwithstanding the mootness of the suit as to Mary Jones, it is not moot as to other members of the class, and she can continue to litigate the issues as a representative of the class.” 392 So.2d at 823. Chief Justice Torbert dissented, stating that “[Deposit Guaranty National Bank v.] Roper [, 445 U.S. 326 (1980),] is clearly not on point with the case before us in this respect [i.e., the defendant’s offer of tender in settlement of the class representative’s claim was not accepted in Roper], since here Mary Jones accepted the offer of settlement, yet still sought to represent the putative class.” 392 So.2d at 825 (Torbert, C.J., dissenting) (emphasis added). Although we are sympathetic to Chief Justice Torbert’s dissent in Jones, in which he points out that the distinguishing feature between Jones and Roper is the acceptance of the tender in Jones and the rejection of the tender in Roper, it is not necessary to overrule Jones because this case is easily distinguishable. In Jones, the class representative sought to remain in the action and to proceed on behalf of the other class members. Here, the named plaintiffs are completely abandoning the action after unequivocally accepting a settlement and then trying to name new class representatives to take their place.

Because the Suggses accepted the settlement that resulted in the entirely appropriate dismissal of their claims in this case, the matters made the basis of the complaint became moot, and the trial court no longer had subject-matter jurisdiction to entertain a motion to amend the moot complaint. Additional plaintiffs who were former members of the putative class have the option of bringing an action against the defendants. Whether such an action is barred by the statute of limitations will depend on the application of the tolling principles announced in First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So.2d 727, 729 (Ala.1981), to the facts of this case.

III. Conclusion

The Suggses’ unqualified acceptance of the manufacturers’ settlement offer rendered the matters made the basis of the amended complaint moot at that moment and deprived the Jefferson Circuit Court of subject-matter jurisdiction. We therefore reverse the order granting the Suggs-es’ motion to amend the complaint and remand the cause for the trial court to dismiss the case.

REVERSED AND REMANDED.

SEE, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

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

HARWOOD, J., dissents.

HARWOOD, Justice

(dissenting).

I respectfully dissent.

In analyzing the holdings and implications of Walding v. Blue Cross & Blue Shield of Alabama, Inc., 577 So.2d 853 (Ala.1991), and the case on which it principally relied, Shores v. Sklar, 885 F.2d 760 (11th Cir.1989), the majority opinion notes that those cases involved the application of “the consent-to-judgment waiver doctrine,” but concludes that consent “is not an essential precondition of a determination of mootness.” 932 So.2d at 99. For that reason, the main opinion further concludes that “the Suggses’ refusal to execute a stipulation of dismissal after unequivocally accepting the settlement is not a factor that distinguishes this case from Walding.” 932 So.2d at 99. These propositions are stated without any citation to supporting authority or any explanatory analysis; they are preceded by a discussion of the concept of mootness, but none of the cases cited in that discussion involve putative class actions. In fact, whether those cases provide support for the asserted proposition that “settlement renders a judicial proceeding moot and thereby destroys jurisdiction in many cases,” 932 So.2d at 97, is questionable.

In Saia Food Distributors & Club, Inc. v. SecurityLink from Ameritech, Inc., 902 So.2d 46 (Ala.2004), the trial court first entered a partial summary judgment, holding a limitation-of-liability clause valid and enforceable, so as to “cap” potential damages at $5,800. The thus limited plaintiffs, Saia Food Distributors & Club, Inc., and Norman Saia, Jr., sought to appeal that ruling, but this Court dismissed the appeal as being from an interlocutory, nonfinal order. Thereafter, the defendants made an offer of judgment, pursuant to Rule 68, Ala. R. Civ. P., in the amount of $5,800 plus court costs. After the plaintiffs failed to respond within the 10-day period prescribed by Rule 68, the defendants moved the court to dismiss the action for lack of subject-matter jurisdiction. Concluding that the claims had been rendered moot by the plaintiffs’ failure to respond to the offer of judgment, the trial court dismissed the action. This Court reasoned, and ruled, as follows:

“[T]he trial court granted the motion to dismiss for lack of subject-matter jurisdiction before this Court had an opportunity to address the issue whether the limitation-of-liability provision was enforceable. Under the procedural posture of this case, we cannot affirm the trial court’s dismissal of Saia Food and Saia’s complaint for lack of subject-matter jurisdiction. Saia Food and Saia were entitled to an appeal of the trial court’s ruling on the enforceability of the limitation-of-liability provision. At the time the offer of judgment was made, Saia Food and Saia still had questions as to the validity of the trial court’s ruling. Had they accepted the offer of judgment unconditionally, this case would have been settled, and their right to appeal would have been moot....
“The better approach would have been for Saia Food and Saia to have accepted the offer of judgment conditioned upon this Court’s affirming the trial court’s ruling as to the enforceability of the limitation-of-liability provision. That acceptance would have preserved Saia Food and Saia’s right to appeal the earlier ruling while protecting Saia Food and Saia’s right to reject the offer of judgment had this Court reversed the trial court’s ruling on the enforceability of the limitation-of-liability provision.
“However, we will not penalize Saia Food and Saia for failing to accept unconditionally a debatable offer of judgment when Saia Food and Saia had not yet confirmed that the amount of the offer of judgment was the most they could recover from ADT and Security-Link, particularly when, at the time the offer of judgment was made, no precedent for the resulting dismissal of the complaint existed in this State. We reverse the trial court’s March 10, 2004, order, in which it dismissed Saia Food and Saia’s complaint for lack of subject-matter jurisdiction based on their failure to respond to ADT and SecurityLink’s offer of judgment.

902 So.2d at 55-56.

The Court did state in Twin City Fire Insurance Co. v. Colonial Life & Accident Insurance Co., 839 So.2d 614, 615 (Ala.2002), cited in the main opinion, that “[t]he settlement rendered the declaratory-judgment action moot,” but that statement was totally incidental to the issues involved in the case and represented, at best, dictum. Finally, Southern Ry. v. Louisville & N.R. Co., 241 Ala. 691, 4 So.2d 400 (1941), simply does not stand for the proposition attributed to it by the main opinion, to-wit: “settlement of claim is conclusive of all elements of claim1 except those specifically reversed by parties.” 932 So.2d at 98. The “settlement” involved in Southern Ry. was not a part of any underlying lawsuit, but was simply an agreement reached between two parties concerning the application of certain terms of the contract between them to particular fact situations. This Court, in addressing an appeal from a judgment in a lawsuit subsequently entered into between the parties, held only that the parties’ prior settlement of the contract disputes that had arisen was binding between the parties with respect to the particular items then involved, but did not preclude disputing liability as to another item. 241 Ala. at 698, 4 So.2d at 405.

In Jones v. Southern United Life Insurance Co., 392 So.2d 822 (Ala.1981), also discussed by the main opinion, Jones filed an action seeking monetary relief for herself and certification of her action as a class action. Before any class-certification determination, the defendant tendered payment to Jones of the monetary amounts she was claiming, and she “accepted the offer of settlement,” 392 So.2d at 825 (Chief Justice Torbert, dissenting). Thereafter “the trial court granted [the defendant’s] motion for summary judgment on Jones’s individual claim and dismissed the remaining portions of the action.” 392 So.2d at 823. On appeal, this Court stated: “The issue before this Court is whether Mary Jones, whose claim is rendered moot through satisfaction, prior to certifying the class, may be permitted to have the class certified, and proceed to represent that class, even though she no longer has a real interest in the right to be protected.” 392 So.2d at 823. Quoting a case decided by the United States Court of Appeals for the Fifth Circuit, the Court noted that by filing a class action, Jones, as class representative, had assumed responsibilities to the members of the class, which responsibilities she could not terminate by satisfying her individual claim. Thus, Jones’s satisfaction of her individual claim did not prevent certification of the class. Further, “[n]otwithstanding the mootness of the suit as to Mary Jones, it is not moot as to other members of the class, and she can continue to litigate the issues as a representative of the class.... [S]he was not ousted as a representative of the class when her individual claim was mooted by payment of her claim.... ” 392 So.2d at 823.

Thus, the settlement by a class representative of his or her individual claim does not moot the claims of the class. The main opinion distinguishes Jones on the basis that in that case “the class representative sought to remain in the action and to proceed on behalf of the other class members,” noting further that “[h]ere, the named plaintiffs are completely abandoning the action after unequivocally accepting a settlement and then trying to name new class representatives to take their place.” 932 So.2d at 99. In point of fact, the Suggses have no more abandoned the action than Mary Jones abandoned hers. Although, like her, the Suggses have accepted a settlement, they did not voluntarily dismiss their right to proceed as class representatives, and, before the entry of any orders of dismissal relating to their claims, they filed a motion to “substitute [certain named individuals] as plaintiff class representatives.” When and if new class representatives were in place, any subsequent removal of the Suggses would cause no “break” in the continuity of the proceeding.

The Suggses did not thereafter consent to their dismissal from the action; rather, Pharmacia Corporation and employees of another manufacturer (“the manufacturers”) moved the court to strike the purported substitution of class representatives and dismiss the action with prejudice. As noted in the main opinion, what the trial court ultimately did was to allow the complaint to be amended and then, as a last ruling in sequence, to grant the manufacturers’ motion to dismiss the Suggses as plaintiffs, so that “they are herein dismissed as parties to this lawsuit.” In the process, and in advance of that final ruling, the court noted that, although “class certification in the present matter would be difficult to establish” and was subject to a prior ruling by the judge previously handling the matter in Calhoun County, “[t]he court notes that the Second Amended Complaint reasserts class allegations after [the prior trial judge’s] preliminary indication that class certification would be improper. Nonetheless, the Court at this time will reserve judgment as to whether this case should proceed as a class action based upon the class allegations contained in the Second Amended Complaint.” The Calhoun Circuit Court entered that prior order only 11 days after the action had been filed, including “class action allegations” and requesting class-action certification, and before any of the defendants had filed an appearance in the case. The order, apparently entered by the judge as a practical expedient on his own motion, read:

“This Court has previously heard arguments on and has rejected class certification of claims such as those made in Plaintiffs’ complaint. Simply put, this case is not amenable to class action due to the diversity of damages claimed by various Plaintiffs without more showing on the part of the Plaintiffs, the request for a class certification or a scheduling conference pertaining to such issues is denied.”

Pursuant to Rule 23(c)(1), Ala. R. Civ. P., that order was subject to being “altered or amended before the decision on the merits.” It would be fully appealable either on an interlocutory basis or upon entry of a final order. Ala.Code 1975, § 6-5-642. Despite the fact that the Suggses filed with their complaint their “motion for scheduling conference regarding class certification issues,” such a conference being mandated by § 6-5-641(b), and despite the fact that § 6 — 5—641(d) requires the court to hold a full evidentiary hearing on class certification on motion of any party, no such conference or hearing preceded the order. Moreover, after that order was entered the Suggses filed in the Calhoun Circuit Court their “First Amended Complaint,” adding a claim for “medical monitoring” and adding additional aver-ments to their previously asserted “Class Action Allegations.” The manufacturers did not move to strike the amended class-action allegations but did assert in their answer to the first amended complaint that class-action treatment was not appropriate in the case and that “the trial court denied the class certification in this case on May 7, 2001.” Thus, the first amended complaint was “on the books” and procedurally viable. Likewise, when the Suggses subsequently filed in the Calhoun Circuit Court their “Second Amended Complaint,” reiterating their class-action allegations, no motion to strike was filed. Accordingly, “the class action allegations contained in the Second Amended Complaint” were available for the Jefferson Circuit Court judge to consider when he concluded that based upon the complaint as amended it would be appropriate for him to “reserve judgment as to whether this case should proceed as a class action.”

I disagree with the conclusion reached in the main opinion that the circumstance present in both Walding, supra, and Shores, supra, that the settling plaintiff executed a stipulation of dismissal without attempting to reserve any issues for appeal, is a distinction without a difference for the present case. The clearly stated raison d’etre of Shores was that, after class certification had been denied, the plaintiff accepted the defendant’s settlement offer and consented to the entry of a judgment awarding the plaintiff a monetary award against the settling defendant and dismissing with prejudice the claims against the three remaining defendants. The Court in Shores explained that the plaintiffs “consent to an entry of judgment, given without reservation of a right to appeal, bars a subsequent appeal of the order denying certification” and that “because he consented to the entry of judgment without reserving his right to appeal any portion thereof, [the plaintiff] has waived his right to appeal the denial of class certification.” 885 F.2d at 762. The Court agreed that the plaintiff was “correct that his individual claims and the claims on behalf of putative class are distinct. However, both sets of claims were brought by a single party, i.e. [the plaintiff], and both were part of a single action. [The plaintiff] consented to entry of judgment ‘in this action’ without making any provision for appeal of any of the claims at issue.... The record indicates that [the plaintiff] consented to entry of judgment encompassing the entire action.” 885 F.2d at 762-63 (footnote omitted).

Likewise, in Wedding, after the plaintiffs’ motion for certification of a class action was denied, they settled their claims with the defendant and “the parties filed a stipulation of dismissal with the trial court. [The plaintiffs] did not attempt to reserve any issues for appeal when that stipulation was filed.” 577 So.2d at 854. After the trial judge entered a final judgment dismissing the complaint with prejudice, the plaintiffs appealed the denial of the motion to certify a class. Relying on Jones, among other cases, the plaintiffs argued that class representatives should be allowed to appeal the denial of class certification even if their own claims have been extinguished. Distinguishing that case from the situation involved in Jones and other cited cases, this Court stated “[h]ow-ever, unlike the [plaintiffs], the plaintiffs in those cases did not consent to the court’s entry of judgment.” 577 So.2d at 855. Relying on Shores, supra, this Court concluded that the plaintiffs’ “consent to the judgment waived any right they had to appeal the court’s denial of their motion to certify a class.” 577 So.2d at 856.

In this case the Suggses have not attempted, and need not attempt, an interlocutory appeal of the order of the Calhoun Circuit Court judge denying class certification, because the order of the Jefferson Circuit Court judge effectively altered or amended that earlier order by placing the issue of class certification “back on the table,” reserving judgment as to whether the case should proceed as a class action based upon the allegations contained in the complaint as last amended.

I conclude that what the Jefferson Circuit Court judge has done, to the extent that he allowed the complaint to be amended to name new putative class representatives while the class claims asserted by the Suggses were viably available for consideration by virtue of the unstricken amended complaint, does not warrant reversal.

      . The court stated that "this case is not amenable to class action due to the diversity of damage[s] claimed by various Plaintiffs without more showing on the part of the Plaintiffs....” Although the Suggses and the plaintiffs they seek to add to this action by amendment continue to refer to the existence of a class, a class has never been certified in this action.

      . Tolbert v. Monsanto Co., No. CV-2001-C-1407-S (N.D.Ala.2003).

      . The Suggses later moved to add a seventh additional plaintiff by a motion for leave to amend the complaint dated October 18, 2004. These additional plaintiffs were purportedly members "of the class on whose behalf this action is brought.”
      The new plaintiffs include citizens of Delaware, Missouri, New Jersey, and New York. It is not immediately apparent how they would be able to represent a class of Calhoun County residents, but we need not reach that issue.

      . We have construed Art. VI, § 139, Ala. Const. of 1901 (as amended by amend, no. 328, § 6.01, vesting the judicial power in the Unified Judicial System), to vest this Court "with a limited judicial power that entails the special competence to decide discrete cases and controversies involving particular parties and specific facts.” Alabama Power Co. v. Citizens of Alabama, 740 So.2d 371, 381 (Ala.1999). See also Copeland v. Jefferson County, 284 Ala. 558, 226 So.2d 385 (1969) (courts decide only concrete controversies between adverse parties).

      “ 9The trial court granted the motion to dismiss on the basis that it lacked subject-matter jurisdiction after this Court had remanded the case to the trial court for a determination of liability on Saia Food and Saia’s claims of breach of contract and negligence. In its remand order, the Court did not address whether the trial court had properly capped ADT and SecurityLink’s exposure to damages on those claims at $5,800.”


author: PER CURIAM.

text:
    Lenvil Dale MESSER, as administrator of the estate of Frank R. Messer v. Bobby Ray TURNER.
    2031156.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2005.

      John M. Kennemer, Tuscumbia, for appellant.
    Nickolas J. Steles, Tuscumbia, for appel-lee.
   PER CURIAM.

The plaintiff, Lenvil Dale Messer, as administrator of the estate of Frank R. Messer (“the administrator”), appeals a summary judgment in favor of the defendant, Bobby Ray Turner. We affirm in part, reverse in part, and remand.

On January 25, 2003, a truck driven by Turner struck and injured an 88-year-old pedestrian named Frank R. Messer (“Mes-ser”) on County Road 153 in Lauderdale County. On March 3, 2003, while he was in the hospital being treated for his injuries, Messer sued Turner. Alleging a claim of negligence, Messer sought to recover for the injuries he sustained when he was struck by Turner’s truck. Messer demanded a jury trial. However, on March 8, 2003, Messer died as a proximate result of the injuries he sustained in the accident.

After Messer’s death, the administrator amended Messer’s complaint. The amended complaint substituted the administrator for Messer as the plaintiff in the lawsuit, realleged a personal-injury claim premised upon negligence, alleged a personal-injury claim premised upon wantonness, and alleged wrongful-death claims premised upon negligence and wantonness. The amended complaint also renewed Messer’s demand for a jury trial. Answering the amended complaint, Turner denied that he was guilty of negligence or wantonness. In addition, he asserted the affirmative defenses of contributory negligence and assumption of the risk.

On October 24, 2003, Turner moved for a summary judgment on two grounds. First, he argued that the evidence did not establish that he had breached his duty of care. Second, Turner argued that the evidence established that Messer was guilty of contributory negligence as a matter of law. Turner supported his summary-judgment motion with, among other things, his affidavit.

In pertinent part, Turner’s affidavit stated:

“On January 25, 2003, I was driving my 1992 Chevrolet truck south on County Road 153 in Lauderdale County, Alabama!,] going to purchase goat feed in Grassy, Alabama. I was driving at a speed of approximately 25 mph, although the posted speed limit on County Road 153 was 45 mph. It was a sunny day and there was nothing to obstruct my vision. County Road 153 is a two lane road with no shoulder and no dividing line. I had driven on the road many times before.
“I came upon a man who was standing off the right side of the road at a mailbox. The man, who I have since learned was Frank Messer, did not appear confused or incapacitated, but appeared to be getting his mail.
“The mailbox was located several feet south of a dirt and gravel driveway that led to a trailer. I have since learned that Mr. Messer lived in that ... trailer.... There was an area of grass, gravel, and dirt between the mailbox and the driveway that a person could walk [on] from the mailbox to the driveway without stepping onto the road. As my vehicle approached the area of the mailbox, Mr. Messer turned from the mailbox to his left[,] taking a step in the road but turned to face the driveway and my truck. I immediately began to move my truck to the left to give Mr. Messer plenty of room to walk along the road’s edge, and I made a quick glance in my side mirror to make sure no vehicle was attempting to pass me. Instead of walking along the road’s edge[,] Mr. Messer took several more steps toward the center of the road into the path of my truck. I was so close to Mr. Messer when he walked toward the center of the road that all I could do was apply my brakes and swerve my truck to the left trying to avoid Mr. Messer. Unfortunately, the front right fender of my truck struck Messer, knocking him backwards and towards the edge of the road where he landed. When my truck hit Mr. Messer, he was four to five feet in the road.
“I reacted as quickly as I could when Mr. Messer walked into the path of my truck. He was very close to my truck when he walked toward the center of the road and I did not have time to do anything hut apply my brakes and swerve my truck to the left. I ivas driving as a reasonable person immediately prior to the accident and reacted as a reasonable person when Mr. Mes-ser walked into the path of my truck.”

(Emphasis added.)

Subsequent to Turner’s moving for a summary judgment, the administrator took Turner’s deposition and submitted the deposition transcript in opposition to Turner’s summary-judgment motion. The administrator also submitted an affidavit by the state trooper who investigated the accident.

In pertinent part, Turner testified in his deposition:

“Q. Where was Mr. Messer when you first saw him?
“A. At his mailbox, facing his mailbox.
“Q. And apparently getting his mail out of the mailbox?
“A. Yes.
“Q. And what did he do as he attempted to leave the area of the mailbox? “A. For an unknown reason[,] he turned to the left and started to step on the pavement, and I was—
“Q. ... And he turned to his left and then where did he go, as he turned to his left?
“A. Stepped up on the pavement.
“Q. Did he continue turning to his left?
“A. Yes, he continued turning to his left, but at an angle.
“Q.... At an angle toward your vehicle or away from your vehicle?
“A. Yes, towards the center of the road.
“Q. Towards the center of the road and toward your vehicle?
“A. Yeah.
“Q. When he was moving in that direction, was he going in a straight line? “A. No, he was not.
“Q. Was he continuing to veer to the left?
“A. At an angle.
“Q. Was he continuing to make a left turn, as he was making that angle?
“A. No, he was looking down at his mail.
“Q. ... When you went out there with your attorney, just to look at the scene—
“A. Yes.
“Q. —did you try to make a determination about how far onto the roadway Mr. Messer was at the time of the impact?
“A. No, I didn’t, but I would say he was about two or three foot — two and a half foot up on the pavement — or three.
“Q. And you say he was approximately two to three feet from the edge of the pavement, on the mailbox side?
“A. Yes.
“Q. And at that time was he facing the opposite side of the roadway or your truck or his side of the roadway; the mailbox side of the roadway?
“A. He was really facing — no, he was looking down.
“Q. Looking down?
“A. He had his mail.
“Q. Okay, let’s assume that he looked straight up. Would his eyes be pointing toward the opposite side of the roadway, your truck or back toward his mailbox?
“A. He’d be looking towards my truck, if he’d looked up.”

(Emphasis added.)

In pertinent part, the state trooper who investigated the accident testified:

“Based on my conversation with Mr. Turner, he did not tell me that he honked or alerted Mr. Messer as to his vehicle approaching the scene.
“While at the scene, I examined the area of the mailboxes, and the ground immediately in front of the mailbox was wet and the wet condition extended back to the driveway. This condition made it difficult to walk off the roadway....”

(Emphasis added.)

The administrator argued that the evidence established the following jury questions for a jury’s consideration: (1) whether Turner negligently or wantonly failed to avoid hitting Messer; and (2) whether Turner negligently or wantonly failed to honk his horn or otherwise alert Messer that Turner’s truck was approaching. The administrator further argued that Turner had not established that Messer was guilty of contributory negligence as a matter of law. Finally, the administrator argued that, even if Turner had established that Messer was guilty of contributory negligence as a matter of law, the evidence established a jury question regarding whether Turner was guilty of subsequent negligence in failing to avoid Messer after he saw that Messer was in a perilous position.

Following a hearing, the trial court, without stating its rationale, entered a summary judgment in favor of Turner on July 13, 2004. The administrator timely appealed to the supreme court. Subsequently, the supreme court, acting pursuant to § 12-2-7(6), Ala.Code 1975, transferred the appeal to this court.

On appeal, the administrator does not argue his claims premised upon wantonness. Accordingly, we treat those claims as having been abandoned by the administrator, and we affirm the summary judgment with respect to those claims. See Tucker v. Cullman-Jefferson Counties Gas District, 864 So.2d 317, 319 (Ala.2003) (“ ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ.App.1996). ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985).’ Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988). Accordingly, we treat the fraud claim and the claim alleging ‘other wrongful conduct’ as having been abandoned by [the appellant] and we affirm the summary judgments as to those claims.”) (emphasis original).

With regard to his claims premised upon negligence, the administrator argues that the trial court erred in entering a summary judgment in favor of Turner because, he says, even if the evidence established that Messer was guilty of contributory negligence as a matter of law, the administrator nonetheless submitted substantial evidence establishing a genuine issue of material fact regarding whether Turner was guilty of subsequent negligence in failing to honk his horn after he observed Messer in the road. We agree.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

“ ‘[A] victim’s initial contributory negligence in placing himself in a position of peril is no defense to [a claim of] subsequent negligence on [the] part of the defendant.’ Dees v. Gilley, 339 So.2d 1000, 1002 (Ala.197[6]). The elements of proof of subsequent negligence are: (1) that the plaintiff was in a perilous position; (2) that the defendant had knowledge of that position; (3) that, armed with such knowledge, the defendant failed to use reasonable and ordinary care in avoiding the accident; (4) that the use of reasonable and ordinary care would have avoided the accident; and (5) that plaintiff was injured as a result. Treadway v. Brantley, 437 So.2d 93 (Ala.1983).”

Zaharavich v. Clingerman, 529 So.2d 978, 979 (Ala.1988).

Section 32-5A-213, Ala.Code 1975, provides, in pertinent part:

“[E]very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person.”

(Emphasis added.)

In the case now before us, the undisputed evidence established that Turner saw Messer, an 88-year-old man, looking down at his mail and walking into the road as Turner approached in his truck; that Messer never looked up before Turner’s truck struck him; and that Messer continued walking in the road until Turner’s truck struck him. Turner introduced no evidence establishing that he honked his horn after he saw Messer walking into the road. The investigating state trooper’s affidavit tended to prove that Turner did not honk his horn after he saw Messer. Accordingly, even if Messer were guilty of contributory negligence as a matter of law, the evidence before the trial court nonetheless established a genuine issue of material fact regarding whether Turner was guilty of subsequent negligence in failing to honk his horn after he saw Messer walking into the road. Consequently, we must reverse the summary judgment in favor of Turner with respect to the administrator’s claims premised upon negligence and remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the judges concur.

      . Turner did not assert that § 6-5-462, Ala. Code 1975, barred the personal-injury claim premised upon wantonness because it was not filed before Messer’s death. See Bassie v. Obstetrics & Gynecology Assocs., 828 So.2d 280, 282 (Ala.2002) (“In Alabama, a deceased’s unfiled tort claims do not survive the death of the putative plaintiff.’’).