text:
    Deevell Dupree WATTS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-02145-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. On December 28, 2005, Deevell Du-pree Watts was on his way to Atlanta, Georgia, when the vehicle he was riding in was pulled over by Lowndes County Sheriffs Department personnel. A subsequent search of the vehicle revealed the presence of several marijuana seeds and over one kilogram of marijuana. During the stop, and again at the sheriffs department, Watts confessed that he picked up the narcotics in Texas and was transporting them to Georgia. He was later indicted for possession of a controlled substance. The indictment was later amended to charge Watts as a subsequent drug offender under Mississippi Code Annotated Section 41-29-147 (Rev.2005) based upon the State’s allegation that Watts had previously been convicted in the United States District Court for the Eastern District of Pennsylvania in 2002 for the importation of more than 500 grams of cocaine.

¶ 2. At the conclusion of his trial in the Circuit Court of Lowndes County, Watts’s attorney requested the trial court to instruct the jury on the theory of constructive possession. This request was denied, and Watts was found guilty by a jury. Following the trial court’s denial of his motions for JNOV and a new trial, Watts filed his current appeal, arguing the trial court erred in refusing to give a constructive possession jury instruction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Deputy Darrell Nabors, of the Lowndes County Sheriffs Department, was traveling east on Highway 82 on December 28, 2005, when he saw a maroon Ford van with Texas plates weaving on and off the highway, Deputy Nabors initiated a traffic stop. As he approached the passenger side of the van, Deputy Nabors discovered that Sharon Robinson was driving the vehicle and Watts was in the passenger seat. Deputy Nabors would later discover the tag was registered to Robinson, but the registration listed an Oldsmobile as the registered vehicle. While Deputy Nabors attempted to retrieve Robinson’s identification, Watts nervously explained why Robinson was driving so erratically and where they were going. Deputy Nabors testified that Watts was talking so much he called another officer, Deputy Chad Bell, to assist him with the stop.

¶4. Deputy Bell took Robinson to the back of the van while Deputy Nabors tried to determine Watts’s identity. Watts identified himself as “Durell Watts,” which was later identified to be brother’s name. Meanwhile, Robinson gave Deputy Bell consent to search the vehicle. Deputy Na-bors escorted Watts to Deputy Bell’s position and began his search of the van. During the course of his search, Deputy Nabors saw a black duffel bag between the driver and front passenger seats. Protruding from the duffle bag was a Ziploc bag with five to six marijuana seeds. While Deputy Nabors was searching Watts’s person for the presence of additional controlled substances, Deputy Bell indicated that he discovered a “brick” of marijuana in a paper bag behind the front passenger seat. The brick of marijuana would later be determined to weigh 1,377 grams. Robinson and Watts were subsequently placed in handcuffs, and narcotics agents were called to the scene.

¶ 5. Agent Ivan Bryan, a narcotics investigator with the Lowndes County Sheriffs Department, arrived at the scene at the request of Deputy Nabors and collected the narcotics that were found. Then, after Watts was read his Miranda rights, Agent Bryan began questioning Watts at the scene. When he asked about the brick of marijuana in the paper bag Bryan testified that Watts told Agent Bryan that “he had got it in Houston and was taking it to Atlanta....”

¶ 6. Deputy Nabors transported Watts to the sheriffs department and conducted a more thorough search of Watts’s clothing. During this search, he discovered a very small amount of loose marijuana in one of the pockets of Watts’s pants. Once back at the sheriffs department, Agent Bryan and another agent interviewed Watts for a second time. Agent Bryan testified that Watts was asked about the drugs again, and he gave the same response as he gave at the scene. However, Watts refused to reduce his statement to writing.

¶ 7. Watts was indicted for possession of marijuana in an amount greater than a kilogram and subsequently convicted by a Lowndes County jury for the same.

ANALYSIS

¶8. On appeal, Watts contends that the trial court erred in refusing his request for a jury instruction on constructive possession. Our review of a trial court’s denial of a defendant’s requested jury instruction begins with the proposition that no one instruction should be taken out of context, but all jury instructions should be read together and considered as a whole. Chinn v. State, 958 So.2d 1223, 1225(¶ 12) (Miss.2007) (quoting Austin v. State, 784 So.2d 186, 192(¶ 18) (Miss.2001)). Furthermore, a defendant has a right to present his theory of the case, but this right is conditioned upon the proposed instruction containing a correct statement of the law and having an evidentiary foundation. Chinn, 958 So.2d at (¶ 12). If it meets these requirements, it should be granted no matter how meager or unlikely the evidence may be. Id. at (¶ 13).

¶ 9. Watts’s trial counsel offered two jury instructions on the theory of constructive possession. Both instructions were rejected by the trial court. ■ Instruction D-5 stated as follows:

To constitute possession, the State must prove beyond a reasonable doubt that Deevell Dupree Watts was aware of the presence and character of the marijuana and that he exercised dominion and control over the marijuana.
If you find that the State did not prove beyond a reasonable doubt that Deevell Dupree Watts exercised dominion and control over the marijuana or that he was aware of the presence and character of the marijuana, then you must find the Defendant, Deevell Du-pree Watts, not guilty.

¶ 10. Similarly, instruction D-6 stated as follows:

Possession is defined in terms of the exercising of dominion and control. To constitute possession, the State must prove beyond a reasonable doubt , that Deevell Dupree Watts was aware of the presence and character of the marijuana and was intentionally and consciously in possession of that marijuana.

¶ 11. Watts argues that the trial court denied him his right to present his theory of the case when it refused to give jury instructions D-5 and D-6. We disagree. While Watts’s proposed jury instructions are an accurate expression of the law of constructive possession, the record clearly reveals that there was a lack of evidence supporting such an instruction. See, Dixon v. State, 953 So.2d 1108, 1112(¶9) (Miss.2007).

¶ 12. We find our recent decision in Millsap v. State to be controlling. In Millsap, the defendant was pulled. over while driving a vehicle that was rented in another person’s name. Millsap v. State, 767 So.2d 286, 288(¶4) (Miss.Ct.App.2000). During conversation between Millsap and the detaining officer, a police dog alerted the officer to the presence of drugs in the trunk; the officer asked Millsap if there were any narcotics in the trunk. Id. at (¶ 4). According to the testimony of the officer, Millsap responded, “yes.” Id. When further questioned as to the amount of narcotics, Millsap stated “a lot ... between 104 and 106 pounds.” Id. At this point, the officer handcuffed Millsap and searched the trunk. Id. at (¶ 5). He found approximately 101 pounds of marijuana. Id.

¶ 13. At his trial, Millsap requested a constructive possession instruction, arguing that it was necessary given the fact that the marijuana was found in the trunk of a vehicle rented in another person’s name. Id. at 293(¶ 24). Additionally, Mill-sap testified that he was never questioned about drugs in the car and never told the officer he had drugs in the car. Id. at 289(¶ 6). The trial court denied Millsap’s requested jury instruction, and this Court affirmed that decision on appeal. Id. at 293(¶¶ 26-27). We reasoned Millsap’s desired instruction did not conform to the facts surrounding his arrest, stating, “Constructive possession instructions are properly given as a vehicle whereby the State can prove guilt when either the drugs are not found on the defendant’s person or the defendant did not confess. Millsap confessed. There was no need to instruct the jury on constructive possession.” Id. at (¶ 27).

¶ 14. In this case, Watts was traveling in a vehicle other than his own when he was stopped by law enforcement, and he confessed to possession of marijuana that was found in the vehicle. There was no testimony or other evidence introduced during Watts’s trial that contradicted Agent Bryan’s testimony of Watts’s confession. Additionally, as was his right, Watts chose not to testify. Therefore, given Watts’s confession, there are no facts in the record which would have supported a constructive possession instruction. We find that the trial court did not err in refusing to allow such a constructive possession jury instruction. Further, the trial court properly instructed the jury with jury instruction S-2, which informed the jury that in order to return a verdict of guilty the State must prove beyond a reasonable doubt that Watts willfully, knowingly, and intentionally possessed over one kilogram of marijuana. This issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA IN AN AMOUNT GREATER THAN ONE KILOGRAM AS A SUBSEQUENT OFFENDER AND SENTENCE OF TWENTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Charles RICHARD, Formerly d/b/a Triple “C” Trucking, Inc., Appellant v. SUPERVALU, INC. and Barry Dickerson, Appellees.
    No. 2006-CA-00749-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2008.

      Robert E. Buck, Greenville, attorney for appellant.
    Mitchell Orvis Driskell, Robert F. Stacy, Oxford, attorneys for appellees.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CHANDLER, J., for the Court.

¶ 1. The Circuit Court of the Second Judicial District of Bolivar County granted summary judgment in favor of the appel-lees, Supervalu, Inc. and Barry Dickerson. The court found that there were no material facts in dispute and dismissed Charles Richard’s claims for false arrest, malicious prosecution, tortious interference with business relations, and defamation of character. Aggrieved, Richard appeals and argues that the trial court erred in granting summary judgment in favor of the appel-lees.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Charles Richard operated a trucking company out of Bolivar County, Mississippi, that was incorporated under the name Triple “C” Trucking, Inc. He hauled freight for a number of companies, with one of his major clients being Supervalu, Inc.

¶4. On the morning of April 23,- 1997, Richard had a trailer docked at the Super-valu warehouse in Indianola, Mississippi. It was his responsibility to unload the trailer, and on that particular morning, he hired two “lumpers,” who were hired hands that would help unload. The two men who assisted him that day were Elie Winston, who had worked with Richard previously, and Ernest Morgan, both employees of Supervalu. Richard.called Winston the night before, and Winston arranged for Morgan to also help unload.

¶ 5. Winston and Morgan went out to the Supervalu shipping docks the next morning at approximately 4:00 a.m. and proceeded to unload the truck. After they finished unloading, they pulled down the trailer door. When Richard arrived later that morning to unload another truck, a supervisor for Supervalu, Rickey Lindsey, was inspecting the trader that the two men had finished unloading. Lindsey pointed out to Richard that, even though Winston and Morgan had finished and closed the trailer door, there was some product remaining in the trailer that should have been empty. Richard attempted to dismiss the product that remained by stating that it was probably product destined for another location. Upon further inspection, however, Lindsey discovered that the product, which included an exclusive brand of sugar, belonged to Supervalu.

¶ 6. Upon discovering his company’s merchandise on Richard’s truck that should have been empty, Lindsey called the Supervalu receiving superintendent, Barry Dickerson, to come to the warehouse. Dickerson inspected the trailer and confirmed that it was Supervalu merchandise that had been loaded onto the trailer. Lindsey then called the police to report the incident. According to Dickerson, there had been significant shortages during recent Supervalu inventories. Officers questioned the parties at the scene, including Richard and Morgan but not Winston, who had already left the area. According to Indianola Police Chief Richard Smith, Morgan informed officers that Richard had asked Winston and him to load some product onto the trailer. Thereafter, Chief Smith asked Richard to accompany him to the station to “get everything hashed out,” to which Richard agreed. Richard was handcuffed and taken to the Indianola Police Department. Morgan was also brought to the station, and Winston, who had disappeared earlier, turned himself in to the police later that afternoon.

¶ 7. At the police station, Winston made a signed statement that implicated Richard in the theft of the goods from Supervalu. According to Winston, Richard asked him to put something on his truck for him and told him that it did not matter what it was. Winston said he and Morgan would split the money given to them by Richard. He was nervous, however, and when he saw Lindsey conferring with one of the shipping workers, Johnny White, he ran. This corroborated the earlier statement by Morgan, that Richard had asked them to load the product onto the trader.

¶ 8. Along with Morgan and Winston, Richard was arrested for grand larceny. Chief Smith stated in his deposition that it was his decision to arrest Richard, and it was not a decision made by Supervalu, Dickerson, or Lindsey. The next day, Chief Smith received a tip from an unidentified informant that Richard was selling merchandise out of his warehouse. Based on the tip, police obtained a search warrant for Richard’s warehouse in Merigold, Mississippi. During the search of Richard’s warehouse, officers discovered more merchandise that belonged to Supervalu. Richard told officers that he had been late delivering the merchandise, and he was storing it there until he could get the situation resolved. At some point during the search, Richard disappeared without telling anyone. A few days later, Richard’s attorney contacted the police, and then Richard turned himself in at the police station.

¶ 9. Morgan and Winston entered guilty pleas, but Richard went to trial. At the trial, Morgan and Winston contradicted their prior statements, and the trial ended with a hung jury. After the State dropped the charges against Richard, he filed the present complaint. The circuit court granted summary judgment in favor of Dickerson and Supervalu, and Richard appealed.

ISSUES AND ANALYSIS

¶ 10. Richard’s sole assignment of error is that the trial court should not have granted the motion for summary judgment filed by Dickerson and Supervalu.

¶ 11. We apply a de novo standard when reviewing a trial court’s grant of summary judgment. Miller v. Meeks, 762 So.2d 302, 304 (¶ 3) (Miss.2000). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The party seeking summary judgment bears the burden of proving there is no genuine issue of material fact. Miller, 762 So.2d at 304 (¶ 3). The court must review all evidence in a light most favorable to the party against whom the motion for summary judgment is made. Id.

¶ 12. In making his argument, Richard claims that the trial court denied him the right to a trial by jury when it granted the motion for summary judgment. The supreme court has addressed summary judgment and its relation to a party’s right to a jury trial:

Trial judges must be sensitive to the notion that summary judgment may never be granted in derogation of a party’s constitutional right to trial by jury. Miss. Const, art. 3, § 31 (1890). On the other hand, there is no violation of the right of trial by jury when judgment is entered summarily in cases where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. There is no right of trial by jury in such cases.

Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983).

¶ 13. In his complaint, Richard alleged four claims: malicious prosecution, illegal arrest, defamation, and tortious interference with business relations. We will examine each of these claims and address why summary judgment was properly granted.

A. Malicious prosecution

¶ 14. The following are the elements of malicious criminal prosecution:

(1) the institution or continuation of original judicial proceedings, either criminal or civil;
(2) by, or at the insistence of the defendants;
(3) the termination of such proceeding in plaintiffs favor;
(4) malice in instituting the proceeding;
(5) want of probable cause for the proceedings; and
(6) the suffering of injury or damages as a result of the action or prosecution.

Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 721 (¶ 32) (Miss.2001).

¶ 15. A claim of malicious prosecution will not lie if there was probable cause to make the arrest. Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014, 1019-20 (¶ 14) (Miss.2000). “Probable cause is determined from the facts apparent to the observer when prosecution is initiated.” Van, 767 So.2d at 1020 (¶ 14) (quoting Moon v. Condere Corp., 690 So.2d 1191, 1195 (Miss.1997)). “So long as the instigator of the action ‘reasonably believed he [had] a good chance of establishing [his case] to the satisfaction of the court or the jury[,]’ he is said to have had probable cause.” Id.

¶ 16. In this case, the evidence established that Lindsey and Dickerson found Supervalu merchandise in Richard’s trailer that should have been empty. It appeared to be merchandise that had been loaded onto the trailer after Winston and Morgan finished unloading that morning’s shipment. When asked about it, Richard said that it was probably merchandise for another store; however, some of the merchandise was exclusive to Supervalu and could not have been destined for another store. Furthermore, Lindsey and Dickerson checked the merchandise and found a Supervalu pallet tag that had been partially removed. They concluded that the merchandise had been taken from the warehouse and loaded onto the truck. Prior to the arrest of Richard and the others, Morgan claimed that he and Winston had loaded the product onto the trailer for Richard. While he later recanted that statement at Richard’s trial, at the time he implicated Richard.

¶ 17. From the uncontradicted evidence, and not considering Winston’s statement implicating Richard that was taken after the arrest, there was probable cause to arrest Richard. Accordingly, we do not find that the trial court erred in finding probable cause and, therefore, granting summary judgment on Richard’s claim for malicious prosecution.

B. False arrest or imprisonment

¶ 18. There are only two elements to a claim of false imprisonment: (1) detention of the plaintiff and (2) unlawfulness of that detention. Morgan v. Greenwaldt, 786 So.2d 1037, 1042 (¶ 11) (Miss.2001) (quoting Lee v. Alexander, 607 So.2d 30, 35 (Miss.1992)).

¶ 19. As with a claim for malicious prosecution, a claim of false arrest must fail where there was probable cause to make the arrest. Van, 767 So.2d at 1019-20 (¶ 14); Keen v. Simpson County, 904 So.2d 1157, 1161 (¶ 21) (Miss.Ct.App.2004). Because we have already found that there was probable cause to arrest Richard for stealing Supervalu’s merchandise, Richard’s claim for false arrest must fail just like his claim for malicious prosecution. We, therefore, find that summary judgment was properly granted on this claim.

C. Defamation

¶ 20. There are four elements to a defamation claim: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability irrespective of special harm or existence of special harm caused by the publication. Armistead v. Minor, 815 So.2d 1189, 1193 (¶ 7) (Miss.2002).

¶ 21. A statement that would normally be actionable may be privileged if it was “made in good faith on any subject matter on which the person communicating has an interest or in reference to which he has a duty to protect to a person having a corresponding interest or duty....” Downtown Grill, Inc. v. Connell, 721 So.2d 1113, 1119 (¶ 23) (Miss.1998) (quoting J.C. Penney Co. v. Cox, 246 Miss. 1, 7-8, 148 So.2d 679, 682 (1963)). A communication may be privileged if it is “made in good faith in the prosecution of any inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing [to punishment the criminal].” Id. at 1119 (¶ 21) (quoting Ill. Cent. R.R. v. Wales, 177 Miss. 875, 885, 171 So. 536, 538, (1937)). Furthermore, “[t]ruth is an absolute defense to a defamation lawsuit in Mississippi.” Journal Publ’g Co. v. McCullough, 743 So.2d 352, 360 (¶ 20) (Miss.1999).

¶ 22. Regardless of the outcome of Richard’s criminal trial, we do not agree that informing the police about potentially stolen product was an untruthful statement. It was uncontradicted that Dickerson and Lindsey discovered Supervalu merchandise that should not have been in the back of Richard’s truck. Richard’s truck should have been empty, and warehouse records indicated that the items had been loaded onto the truck from the Su-pervalu warehouse.

¶ 23. Furthermore, the communication of such information to the police was privileged and, therefore, not defamatory. Dickerson and Supervalu clearly had an interest in pursuing an investigation of possible theft of company merchandise, especially considering they had found large shortages during recent inventories. The responding officers also had an interest in investigating a crime. Richard presented no evidence that either Supervalu or Dickerson reported the information to the police in bad faith.

¶ 24. There was no evidence that Dickerson and Supervalu did anything other than pursue an investigation of Richard, who they had reason to believe had been stealing company merchandise. Accordingly, we find that the trial court properly granted summary judgment on Richard’s claim for defamation.

D. Tortious interference with business relations

¶ 25. Richard’s claim in his complaint was for “reckless injury to business activity,” but the parties and the trial court treated it as a claim for tortious interference with business relations. The elements of a claim of tortious interference with business relations are as follows: (1) the acts were intentional and willful, (2) the acts were calculated to cause damage to the plaintiffs in their lawful business, (3) the acts were done with the unlawful purpose of causing damage and loss without right or justifiable cause on the part of the defendant, and (4) actual loss and damage resulted. PDN, Inc. v. Loring, 843 So.2d 685, 688 (¶ 9) (Miss.2003).

¶ 26. Simply put, there is no evidence in the record that Dickerson or Supervalu intended to cause damage to Richard’s business. As such, there was no genuine issue of material fact surrounding this claim, and the trial court properly granted summary judgment with regard to it.

E. Intentional infliction of emotional distress

¶ 27. Richard did not include intentional infliction of emotional distress as one of his claims in his complaint, instead he listed “infliction of emotional and mental distress” as a type of damage suffered. Accordingly, the trial court did not address it as a claim. As a type of damages, it was properly dismissed when the court dismissed all of Richard’s underlying claims through summary judgment.

¶ 28. Nevertheless, “meeting the requisites of a claim for intentional infliction of emotional distress is a tall order in Mississippi.” Speed v. Scott, 787 So.2d 626, 680 (¶ 19) (Miss.2001) (quoting Jenkins v. City of Grenada, 818 F.Supp. 443, 446 (N.D.Miss.1993)). To justify a finding of intentional infliction of emotional distress, a plaintiff must prove wanton and willful conduct that evokes outrage or revulsion. Id. at 630 (¶ 17). There was probable cause for the initial arrest and for the subsequent search of Richard’s warehouse. Nothing in the record indicates otherwise, nor were the actions of Dickerson and Supervalu such that would evoke outrage or revulsion.

¶ 29. We find that summary judgment was properly granted against Richard on each of his claims. The trial court was not in error in finding that there were no genuine issues of material fact and that Dickerson and Supervalu were entitled to judgment as a matter of law.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF BOLIVAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., NOT PARTICIPATING.


author: STUART, Justice. MURDOCK, Justice

text:
    BARNETT MILL WORKS, INC. v. Dennis GUTHRIE.
    1060041.
    Supreme Court of Alabama.
    April 27, 2007.
    Rehearing Denied June 22, 2007.
    William B. Jackson II of Stokes & Clinton, P.C., Mobile, for appellant.
    Finis E. St. John of St. John & St. John, LLC, Cullman, for appellee.
   STUART, Justice.

Barnett Millworks, Inc. (“Barnett Mill-works”), sued Guthrie & Burke Enterprises, Inc., the owner of The Window and Door Store, and Dennis Guthrie and James Burke, as personal guarantors for debts incurred by The Window & Door Store, seeking to collect amounts owed on purchases made by The Window & Door Store. After a bench trial, the trial court dismissed Guthrie & Burke Enterprises as a defendant and entered the following judgment:

“1. Judgment is entered in favor of [Barnett Millworks] and against Defendant Guthrie for $7,519.41, comprised of principal sum of $4,604.66, interest in the sum of $1,933.96, attorney fee in the sum of $980.79 and costs.
“2. Judgment is entered in favor of [Barnett Millworks] and against Defendant Burke for $78,652.05, comprised of principal sum of $50,138.85, interest in the sum of $20,992.38, attorney fee in the sum of $7,520.82 and costs.”

Subsequently, Barnett Millworks filed a motion to alter, amend, or vacate the judgment, arguing that Guthrie & Burke Enterprises and Guthrie, with Burke, should be held jointly liable for the full $78,652.05. After a hearing on the motion, the trial court entered the following on the case action summary:

“ORDERED, after hearing Judgment is hereby entered against Guthrie and Burke Enterprises, Inc., d/b/a The Window and Door Store, in the amount of $78,652.05, comprised of principal sum of $50,138.85, interest sum of $20,992.38 and attorney fees in the sum of $7,520.82. All other requests for relief are denied.”

Barnett Millworks appeals, seeking to hold Guthrie personally liable for the full $78,652.05.

Facts

Guthrie was a shareholder and the vice president of Guthrie & Burke Enterprises, Inc., which owned The Window & Door Store. Burke was the president of Guthrie & Burke Enterprises and was in charge of the day-to-day operations of The Window & Door Store. Guthrie had no involvement in the day-to-day business of The Window & Door Store, and he testified that he had no access to the books and records of the store.

Guthrie and Burke signed an agreement with Barnett Millworks on May 16, 1997, personally guarantying payment of future purchases by The Window & Door Store from Barnett Millworks. All invoices for these purchases were sent to The Window & Door Store.

On October 22, 2003, Guthrie spoke in person with a representative from Barnett Millworks, Norman Cox, who was responsible for handling The Window & Door Store account. Guthrie expressed his desire to revoke his personal guaranty of The Window & Door Store’s purchases from Barnett Millworks. Cox testified that the policy of Barnett Millworks was to release someone from a personal guaranty only if there are no outstanding charges on the account to which the guaranty is applicable, i.e., only if all current charges are paid, including amounts in the current-order file. Cox testified that at no time did he have authority from Barnett Mill-works to actually release Guthrie from the personal guaranty.

Guthrie testified that Cox made a telephone call in his presence to determine the outstanding balance on The Window & Door Store account. Guthrie further testified that Cox stated that the outstanding balance on the account was $11,801.46. Guthrie wrote a check for that amount made out to The Window & Door Store from the account of his personal company, Dennis Guthrie Construction Company. Guthrie gave the check to a secretary at The Window & Door Store and told her to obtain a cashier’s check in that amount, which was then given to Cox. Guthrie testified that he made that payment to Barnett Millworks for the sole purpose of being released from the personal guaranty. Barnett Millworks accepted the payment but did nothing to indicate that Guthrie was being released from the personal guaranty. Cox testified that at no time was The Window & Door Store account ever paid in full. Evidence was presented showing that the account balance as of October 31, 2003, was $14,604.66.

Guthrie attempted to revoke his personal guaranty in writing on November 17, 2003, by a letter sent via certified mail to Barnett Millworks. Barnett Millworks received this revocation letter on November 21, 2003. On December 11, 2003, The Window & Door Store made a payment on the account in the amount of $10,000. The policy at Barnett Millworks was to apply all payments to the oldest charges first. On March 2, 2004, over three months after receiving Guthrie’s letter attempting to revoke his personal guaranty, Barnett Mill-works wrote Guthrie, acknowledging his request to be released from the personal guaranty for The Window & Door Store and agreeing to release him once The Window & Door Store account was current. Barnett Millworks then sought to collect from Guthrie charges made by The Window & Door Store after Guthrie had mailed the written revocation of his personal guaranty to Barnett Millworks. Guthrie made no further payments to Barnett Millworks, and on April 23, 2004, he transferred all of his shares of stock in Guthrie & Burke Enterprises to Burke. It is undisputed that the principal amount that remained due on The Window & Door Store account, as of December 31, 2003, was $50,138.86.

In its order, the trial court does not state its reasons for holding Guthrie personally liable on the account for the principal sum of $4,604.66. It appears that the trial court determined that Guthrie’s November 17, 2003, revocation was valid, and that the actual balance of The Window & Door Store account on that date was $14,604.66, which the evidence showed was the amount due on October 31, 2003. The trial court credited the $10,000 payment made by The Window & Door Store in December to the oldest charges first, in accordance with Barnett Millworks’ policy, and, thus, reached the figure of $4,604.66 owing at the time Guthrie revoked his personal guaranty.

Standard of Review

“Rules governing the interpretation and construction of contracts are applicable in resolving a question as to the interpretation or construction of a guaranty contract.” Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So.2d 68, 75 (Ala.1989). “If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court....” McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991). Questions of law are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310, 312 (Ala.2004).

Issue and Analysis

The only issue before this Court is whether Guthrie is personally liable under the personal-guaranty-of-payment agreement for the full amount ■ owed Barnett Millworks by The Window & Door Store. Barnett Millworks contends that Guthrie’s attempted revocation of his personal guaranty of payment was ineffective because, it argues, the revocation was not in accordance with the plain language of the guaranty agreement, which Guthrie and Burke signed on May 16, 1997. On the other hand, Guthrie argues that the guaranty agreement constituted only an offer, which could be revoked at any time.

The guaranty agreement reads as follows:

“In order to assure payment to Barnett Millworks, Inc. for purchases made by The Window & Door Store of Cull-man. I, James Burke, Dennis Guthrie[] personally guarantee that I or my estate, in the event of my demise, will pay in full all such debts as owed to Barnett Millworks, Inc., by The Window & Door Store, or any other company(s) which I may control. I agree this Guarantee of Payment can only be cancelled with the expressed written consent of Barnett Millworks, Inc.”

(Emphasis added.)

The terms of the agreement are plain and unambiguous. The agreement explicitly provides that the guaranty of payment can be canceled only with the express written consent of Barnett Millworks. Therefore, this Court’s only task is to decide the legal effect to give this provision. Specifically, this Court must decide whether the provision constitutes a contract that should be enforced according to its terms, or whether the provision is merely part of a continuing offer that the guarantor can revoke at any time.

This Court has not before interpreted a provision in a continuing guaranty agreement that gives the creditor absolute authority to decide when the agreement can be terminated. Conceptually, a continuing guaranty agreement that contemplates a future course of dealings is itself viewed only as an offer to guarantee payment for future specified acts, such as future extensions of credit, and this offer is not accepted until such extensions of credit are made. The parameters of a continuing guaranty are summarized in 38 Am.Jur.2d Guaranty § 60 (1999), as follows:

“An offer for a continuing guaranty is ordinarily effective until revoked by the guarantor or extinguished by some rule of law. As the legal relation between the guarantor and the creditor in a continuing guaranty involves both a contract (as to transactions between the creditor and principal debtor which have been completed) and an offer (as to future transactions between the creditor and principal debtor), the offer to guarantee future obligations may be revoked by the guarantor, at least in the absence of a contrary provision in the guaranty instrument. The result is that the guarantor will not be liable to the creditor on the latter’s extension of credit to the debtor subsequent to the receipt of notice of revocation. However, revocation of the continuing guaranty does not affect liability for past transactions which have created a contractual relationship between guarantor and creditor.”

(Footnotes omitted.)

Pursuant to this conceptual view of a continuing guaranty agreement, this Court has recognized a guarantor’s right to unilaterally revoke an agreement to guarantee the payment of another regarding future acts. For example, in Green v. Southtrust Bank of Sand Mountain, 519 So.2d 1289, 1291 (Ala.1987), this Court stated:. “Surely, it goes without saying that the mortgagor’s execution of the document as guaranty of future advances does not create an irrevocable encumbrance on the mortgaged property any more than it obligates the mortgagee to advance future loans.” See Saint v. Wheeler & Wilson Mfg. Co., 95 Ala. 362, 373, 10 So. 539, 541 (1891) (recognizing that “in cases of continuing guaranty, the effect of such revocation is to confine the guarantor’s liability to past transactions”). However, in Green, this Court also explicitly noted that “the method of revocation is not here in issue.” Green, 519 So.2d at 1291.

Likewise, the Court of Civil Appeals has recognized as “settled law” the principle that a guaranty agreement “is revocable like other offers.” Lightsey v. Orgill Bros. & Co., 454 So.2d 1002, 1005 (Ala.Civ.App.1984). However, in Lightsey, it appears that the court viewed the part of the agreement concerning the method of revocation as a completed contract because the court examined modification of the method of revocation in terms of offer, acceptance, and mutual assent, as follows:

“It is settled law in Alabama that ‘[cjontracting parties are free to modify their contract by mutual assent.’ Kinmon v. J.P. King Auction Co., 290 Ala. 328, 276 So.2d 569 (1973). And, since mutual assent is a factual issue, it must be determined by the jury. Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965).
“The guaranty made by the Lightseys provided that ‘we hereby personally guarantee the payment of all their [Cen-treville Building Supply Company, Inc.] obligations to you until withdrawn by us by certified mail.’
“The evidence in the case at bar shows that when Alice and Joe Lightsey sold their interest in Centreville Building Supply they contacted all creditors to notify them of the fact that they were no longer owners and to determine any personal guaranty outstanding. Mrs. Lightsey was told by Stratton-Warren that it would be necessary to advise it of the sale in writing. She wrote a letter to Stratton-Warren informing it of the sale. Shortly thereafter Stratton-War-ren required the new owner, Charles D. Lee, to execute a personal guaranty of the debts of Centreville Building Supply.
“Although the written notice to Strat-ton-Warren did not specifically revoke the Lightseys’ guaranty, the fact that Alice and Joe Lightsey informed Strat-ton-Warren of the sale of their interest in Centreville Building Supply and asked about any outstanding personal guaranty of the debts of the company could be considered by the jury as an offer by the Lightseys to revoke their guaranty. And, when Stratton-Warren told the Lightseys to write a letter advising of the sale of their interest in Centreville Building Supply, the jury could also conclude that Stratton-War-ren had agreed to modify the guaranty by accepting written notice of the sale of the Lightseys’ interest in that company as a revocation of the Lightseys’ guaranty.”

454 So.2d at 1005-06 (emphasis added).

It is a firmly established principle that “[i]f a contract is unambiguous on its face, there is no room for construction and it must be enforced as written.” Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000). This Court, like the Court of Civil Appeals, has used this principle to enforce provisions in guaranty agreements that specified a particular method by which the guarantor could revoke his or her agreement to guarantee the payment of another. In Sharer v. Bend Millwork Systems, Inc., 600 So.2d 223, 227 (Ala.1992), this Court held that a shareholder’s guaranty of corporate debts required written notice of revocation and, therefore, that the shareholder’s selling of his interest in the corporation was insufficient to terminate the guaranty. Also, in Whitfield v. Birmingham Trust & Savings Co., 244 Ala. 526, 530-31, 14 So.2d 137, 140 (1943), this Court examined a guaranty agreement and held as follows:

“[U]nder the terms of the guaranty, no liability of the guarantors arose until loans were made by the bank in its discretion, and no liability existed during the interims between payment of existing loans, and obtaining new ones.
“This in no way prevented the guaranty operating as a standing engagement, a continuing basis of credit, according to the express terms of the guaranty. These express terms included all loans made at any time until the guaranty was terminated by notice in writing, and provided that notes given for indebtedness should be written into and become a part of the guaranty contract. These terms are unequivocal, certain, speak for themselves, leaving no room for construction to a contrary intent. If circumstances attending the giving of the guaranty be considered, they disclose a going business, long existing, and to continue indefinitely, in probable need of seasonal operating capital, for which arrangements were being made, not for the present, not for any specified number of years, but until the guarantors should terminate the credit arrangement evidenced by the guaranty in the manner therein specified.”

Therefore, it appears that a provision in a continuing guaranty agreement that requires a particular method of revocation must be given effect as written, even though a continuing personal guaranty of payment itself is considered only an offer and, absent a contrary provision, may be unilaterally revoked by the guarantor so long as notice of the revocation is communicated to the creditor.

In the present case, the guaranty agreement provided only one way to cancel the agreement—with the expressed written consent of Barnett Millworks. It is undisputed that Barnett Millworks never gave such written consent. Therefore, Guthrie’s attempted revocation was ineffective, and the terms of the agreement must be enforced as written. Guthrie is personally liable under the guaranty agreement for the principal amount of $50,138.85, plus interest and attorney fees and costs, and the judgment of the trial court insofar as it holds him liable for the principal sum of only $4,604.66, plus interest and attorney fees, must be reversed.

It should be noted that in all previous cases dealing with revocation of a guaranty agreement, the guarantor had complete authority to revoke the agreement, even though he might be obligated to use a particular method of revocation. Here, Guthrie agreed to waive his authority to revoke completely so that revocation could be accomplished only with the express written consent of Barnett Mill-works. Such a waiver is enforceable so long as the agreement is in accordance with ordinary principles of contract formation and no contract defenses apply. “ ““ “The requisite elements of [a valid contract] include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.” ”” ” Shewmake v. Estate of Shewmake, 940 So.2d 260, 265 (Ala.2006) (quoting Hunter v. Wilshire Credit Corp., 927 So.2d 810, 813 (Ala.2005) (quoting in turn other authorities)). Here, Guthrie does not argue that the provision concerning cancellation of the guaranty agreement lacked any of these requisite elements of a valid contract, nor does he argue on appeal the applicability of any contract defenses. Therefore, the parties contracted for a particular method of revocation, and the guaranty agreement remains in effect until it is terminated by that method. Guthrie must be held to his personal guaranty of payment because Barnett Millworks never canceled the guaranty agreement by expressly consenting in writing to the termination of the agreement.

Conclusion

Based on the foregoing, the trial court’s judgment is reversed, and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

SEE, LYONS, WOODALL, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and MURDOCK, J., dissent.

MURDOCK, Justice

(dissenting).

I believe the following analysis from the main opinion is dispositive of the present case:

“Conceptually, a continuing guaranty agreement that contemplates a future course of dealings is itself viewed only as an offer to guarantee payment for future specified acts, such as future extensions of credit, and this offer is not accepted until such extensions of credit are made. The parameters of a continuing guaranty are summarized in 38 Am. Jur.2d Guaranty § 60 (1999), as follows:
“ ‘An offer for a continuing guaranty is ordinarily effective until revoked by the guarantor or extinguished by some rule of law. As the legal relation between the guarantor and the creditor in a continuing guaranty involves both a contract (as to transactions between the creditor and principal debtor which have been completed) and an offer (as to future transactions between the creditor and principal debtor), the offer to guarantee future obligations may be revoked by the guarantor, at least in the absence of a contrary provision in the guaranty instrument. The result is that the guarantor will not be liable to the creditor on the latter’s extension of credit to the debtor subsequent to the receipt of notice of revocation. However, revocation of the continuing guaranty does not affect liability for past transactions which have created a contractual relationship between guarantor and creditor.’

“(Footnotes omitted.)

“Pursuant to this conceptual view of a continuing guaranty agreement, this Court has recognized a guarantor’s right to unilaterally revoke an agreement to guarantee the payment of another regarding future acts. For example, in Green v. Southtrust Bank of Sand Mountain, 519 So.2d 1289, 1291 (Ala.1987), this Court stated: ‘Surely, it goes without saying that the mortgagor’s execution of the document as guaranty of future advances does not create an irrevocable encumbrance on the mortgaged property any more than it obligates the mortgagee to advance future loans.’ See Saint v. Wheeler & Wilson Mfg. Co., 95 Ala. 362, 373, 10 So. 539, 541 (1891) (recognizing that ‘in cases of continuing guaranty, the effect of such revocation is to confine the guarantor’s liability to past transactions’).”

974 So.2d at 955-56 (emphasis other than on the word “irrevocable” added).

The rule as described in the foregoing analysis appears to be well-founded in logic and reason, in that once a guarantor gives notice to a creditor that he or she no longer will be obligated for future transactions of the business, the creditor is on notice and cannot take the position that it may make future extensions of credit in reliance on the guaranty. As Guthrie argues, “If the guaranty is revoked, the creditor has the option whether to extend or withhold additional credit without the added security of the personal- guaranty.” If the rule were otherwise, an individual who guaranteed extensions of credit to his or her business, but who then sold that business to a third party, would be inextricably obligated in perpetuity (as would his estate under contract language , such as that found in the present case) to guarantee newly incurred obligations of the business in the hands of the third party, subject only to a discretionary choice by the creditor to terminate that obligation.

Viewed in the context of the above-stated principles, the provision in the guaranty agreement that Guthrie’s guaranty of .payment “can only be cancelled with the express written consent of Barnett Mill-works, Inc.” reasonably can be, and should be, construed as merely explaining the method of terminating Guthrie’s guaranty obligations as to “transactions between the creditor and principal debtor which have been completed.” 38 Am.Jur.2d Guaranty § 60 (1999). This understanding would be consistent with the holding of the Alabama Court of Civil Appeals in Lightsey v. Orgill Brothers & Co., 454 So.2d 1002, 1005 (Ala.Civ.App.1984), quoting 1 A. Corbin, Corbin on Contracts § 38 (1963): “ ‘A promise of guaranty ... is revocable like other offers .... The method of exercising this power [of revocation] varies; usually it is by giving notice to the offeree.’ ” (Emphasis added.)

COBB, C.J., concurs.

      . This guaranty agreement was apparently a form agreement, containing blanks for the names of the parties, other than Barnett Mill-works. One agreement was completed to include both Burke and Guthrie, whose names were inserted in the appropriate blank.

      . The same analysis is reflected in 38A C.J.S. Guaranty § 40 (1996):
      “In the absence of a provision in the contract to the contrary, a guarantor may revoke a continuing guaranty for which the consideration is not executed; but he cannot thereby escape liability for advances which have been made or responsibilities which have been incurred on the strength of the guaranty before notice of revocation is given, nor may he revoke the guaranty where the consideration given therefor is entire and has been executed.
      "A promise of guaranty is generally revocable like other offers. Where a guaranty is continuing in form, and the consideration therefor is not executed, unless there is a provision in the guaranty to the contrary, the guarantor may withdraw therefrom at any time and cannot be held for any ad-vanees made or liabilities incurred after giving notice of his intention no longer to stand as guarantor, especially where provision has been made therein for withdrawal.... The intention to make a continuing guaranty irrevocable must be clearly and unequivocally expressed.”
      (Footnotes omitted.)


author: WOODALL, Justice. LYONS, Justice

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Jennifer BENNETT et al.
    1051721.
    Supreme Court of Alabama.
    April 27, 2007.
    Rehearing Denied June 22, 2007.

      Mark D. Hess, Khristi D. Driver, and Laura S. Dunning of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellant.
    Gary L. Weaver of Hayes & Swinford, Birmingham, for appellees.
   WOODALL, Justice.

This Court granted State Farm Mutual Automobile Insurance Company (“State Farm”) permission to appeal from the denial of its motion to dismiss in an action for uninsured-motorist benefits filed against State Farm by several of its insureds, including Jennifer Bennett. See Rule 5, Ala. R.App. P. We affirm.

In March 2003, Bennett and the other insureds (hereinafter referred to collectively as “Bennett”) were involved in a motor-vehicle accident allegedly caused by the negligence of Roy Williams, an uninsured motorist. In September 2004, Bennett sued Williams and State Farm, seeking, in pertinent part, uninsured-motorist benefits under an automobile insurance policy issued by State Farm.

Bennett attempted to serve the summons and complaint upon Williams by certified mail, but it was returned to the circuit clerk’s office as “unclaimed.” In November 2004, the clerk notified Bennett’s counsel that failure to perfect service upon Williams could result in his dismissal as a defendant. Bennett made no further effort to serve Williams. Consequently, in April 2005, the trial court dismissed Williams as a defendant “without prejudice ... for lack of service.” State Farm and Bennett agree that the practical effect of the order was to dismiss Williams with prejudice, because, before the dismissal, the statute of limitations on Bennett’s tort claim had expired. See Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987).

After Williams was dismissed, State Farm filed a motion to dismiss, claiming that the dismissal of Williams, the uninsured motorist, entitled it to a dismissal of Bennett’s uninsured-motorist claim. In support of its motion, State Farm made two arguments, which the trial court summarized as follows in its Rule 5(a) certification for an immediate permissive appeal:

“First, State Farm argues that by virtue of the expiration of the statute of limitations as to [Bennett’s] claims against Williams, [whom Bennett] elected to sue, [Bennett] will never be ‘legally entitled to recover damages’ from Williams, which is a condition precedent to the recovery of [uninsured-motorist] benefits under Alabama law. In other words, State Farm argues Williams’fs] statute of limitations defense is among the tortfeasor’s substantive defenses an insurer may assert to preclude [Bennett’s uninsured-motorist] claim, under the rationale of Ex parte Carlton, 867 So.2d 332 (Ala.2003), and its progeny, most recently Continental National Indemnity Company v. Fields, 926 So.2d 1033 (Ala.2005).
“Second, State Farm argues that under the holding of Healy v. Medlock, 861 So.2d 396 (Ala.Civ.App.2002), [Bennett’s] ‘procedural default’ in failing to perfect service upon Williams, the alleged uninsured motorist, which resulted in the dismissal of Williams also compels the dismissal of [Bennett’s uninsured-motorist] claim against State Farm.”

The trial court rejected State Farm’s arguments and denied its motion to dismiss. In its certification for immediate appeal, the trial court identified two controlling questions of law:

“1. Whether an uninsured-motorist insurer may assert the purported uninsured motorist’s statute of limitations defense to preclude a plaintiffs/insured’s claim for [uninsured-motorist] benefits, especially where the plaintiff/insured has elected to sue the uninsured motorist.
“2. Whether a ‘procedural default’ by the plaintiff/insured that results in the dismissal of the tort claims against a purported uninsured motorist also compels the dismissal of the claim for [uninsured-motorist] benefits against the uninsured-motorist insurer.”

To answer these questions of law, we must interpret Alabama’s uninsured-motorist statute, § 32-7-23, Ala.Code 1975. Thus, our review is de novo. “This Court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.” Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). We answer both questions in the negative.

Certain principles . concerning uninsured-motorist claims are well established.

“Under Alabama law, a plaintiff may join as a defendant his uninsured-/un-derinsured-motorist carrier in an action against another motorist. Ex parte Boles, 720 So.2d 911, 914-15 (Ala.1998). The plaintiff is not required to first obtain a judgment against the uninsured/underinsured motorist. State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 649, 285 So.2d 917, 919 (1973). Alabama’s uninsured-motorist statute, Ala.Code 1975, § 32-7-23, provides protection for ‘persons ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.’ Ala.Code 1975, § 32-7-23(a); see also Walker v. GuideOne Specialty Mut. Ins. Co., 834 So.2d 769, 772 (Ala.2002). For the [plaintiffs] to demonstrate that they are ‘legally entitled to recover’ damages under their policy, they ‘ “must be able to establish fault on the part of the uninsured motorist which gives rise to damages and must be able to prove the extent of those damages.”’ LeFevre v. Westberry, 590 So.2d 154, 157 (Ala.1991)(quoting Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala.1983)).”

Ex parte State Farm Mut. Auto. Ins. Co., 893 So.2d 1111, 1115 (Ala.2004). Also, as State Farm points out, “early Alabama cases recognized that in a direct action against an insurer for [uninsured-motorist] benefits ‘ “the insurer would have available, in addition to policy defenses, the substantive defenses that would have been available to the uninsured motorist.” ’ State Farm Auto. Ins. Co. v. Baldwin, 470 So.2d 1230, 1233 (Ala.1985)(quoting State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So.2d 302, 306 (1973)).” State Farm’s brief, at 19 (emphasis added).

As the trial court stated in its certification order, “State Farm argues Williams’[s] statute of limitations defense is among the tortfeasor’s substantive defenses an insurer may assert to preclude [Bennett’s uninsured-motorist] claim.” On appeal, although State Farm continues to insist that the statute-of-limitations defense is available to it, State Farm cites no authority indicating that the statute of limitations is a substantive defense. Consequently, this Court may disregard State Farm’s argument.

“[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10)[, Ala. R.App. P.,] requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005). We may do so because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003)(quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).

We note further, however, that State Farm’s argument that the statute-of-limitations defense is a substantive defense appears to be without merit. This Court has stated that a true statute of limitations is considered a procedural, rather than a substantive, defense. See Etheredge v. Genie Indus., Inc., 632 So.2d 1324, 1326 (Ala.1994); Cofer v. Ensor, 473 So.2d 984, 987 (Ala.1985).

We have not overlooked the cases upon which State Farm primarily relies, namely, Ex parte Carlton, 867 So.2d 332 (Ala.2003), and Continental National Indemnity Co. v. Fields, 926 So.2d 1033 (Ala.2005). However, neither case supports State Farm’s argument in this case. Carlton merely confirmed that an uninsured-motorist insurer has available to it a substantive immunity defense that would be available to the uninsured motorist and overruled cases that had “held that there were certain substantive [immunity] defenses available to the uninsured motorists that were not available to the insurers.” State Farm’s brief, at 19-20 (emphasis added).

As State Farm states, in Fields “this Court held that since under the survival statute (Ala. Code § 6-5-462) a deceased insured’s tort claim against an uninsured motorist did not survive her death, the deceased’s estate could not establish in a direct action against the [uninsured-motorist’s] insurers that it is ‘ “legally entitled to recover damages” against the uninsured motorist, a condition precedent to the recovery of [uninsured-motorist] benefits under Alabama’s uninsured-motorist statute.’ ” State Farm’s brief, at 21 (quoting Fields, 926 So.2d at 1035 (footnote omitted)). However, the application of a survival statute affects substantive rights, not mere procedural requirements. “ ‘[W]hile a statute of limitations is a period of repose designed, if asserted, to prevent recovery on stale claims, a survival statute gives life to a substantive right that but for the statute would have been destroyed.’ ” Keefe v. Glasford’s Enters., Inc., 248 Neb. 64, 68, 532 N.W.2d 626, 629 (1995)(quoting Van Pelt v. Greathouse, 219 Neb. 478, 484, 364 N.W.2d 14, 19 (1985)). See also Swindle v. Big River Broad. Corp., 905 S.W.2d 565, 568 (Tenn.Ct.App.1995). Cf. Ether-edge, supra (a statute creating a right is deemed substantive).

State Farm’s second argument, namely, that Bennett’s “ ‘procedural default’ in failing to perfect service upon Williams, the alleged uninsured motorist, which resulted in the dismissal of Williams also compels the dismissal of [Bennett’s uninsured-motorist] claim against State Farm,” is also without merit. In support of this argument, State Farm claims “that any defense available to the tortfeasor that precludes his ... liability to the plaintiff-insured also bars the insured’s claim for [uninsured-motorist] benefits.” State Farm’s reply brief, at 9-10. However, as previously explained, it is not “any defense” that is available to State Farm, only substantive defenses. Obviously, the alleged “procedural default” does not amount to a substantive defense. Further, it would be inconsistent to penalize the insured for actions taken in pursuing a claim against an uninsured motorist, when Alabama law does not require, as a prerequisite to the recovery of uninsured-motorist benefits, that the insured sue and obtain a judgment against the uninsured motorist. Ex parte State Farm, 893 So.2d at 1115 (citing State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 649, 285 So.2d 917, 919 (1973)).

For the foregoing reasons, we affirm the trial court’s order denying State Farm’s motion to dismiss Bennett’s uninsured-motorist claim.

AFFIRMED.

COBB, C.J., and SEE, SMITH, BOLIN, and PARKER, JJ., concur.

LYONS, J., concurs specially.

STUART and MURDOCK, JJ., concur in the result.

LYONS, Justice

(concurring specially).

I concur fully in the main opinion. I accept the distinction between substantive and procedural defenses as a basis for distinguishing Continental National Indemnity Co. v. Fields, 926 So.2d 1033 (Ala.2005), a case in which I did not participate; in so doing, however, I do not wish to be understood as agreeing with this Court’s decision in Fields.


author: SEE, Justice.

text:
    ETOWAH COUNTY CIVIC CENTER AUTHORITY v. HOTEL SERVICES, INC., d/b/a Econo Lodge, et al.
    1060065.
    Supreme Court of Alabama.
    June 1, 2007.
    Bart G. Harmon and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery, for appellant.
    H. Dean Mooty, Jr., of Mooty & Associates, P.C., Montgomery, for appellees.
   SEE, Justice.

Facts and Procedural History

House Bill 810, enacted as Act No. 2005-199, Ala. Acts 2005, a local law applicable to Etowah County, authorized Eto-wah County to collect from every person, firm, and corporation engaging in the business of renting rooms, lodging, or accommodations to transient guests in Etowah County a $1.50 surcharge per night per room. The Alabama Constitution requires that notice of a local bill “be published at least once a week for four consecutive weeks in some newspaper published” in the county where the “thing to be affected” is situated. § 106, Ala. Const.1901. In order to comply with this notice requirement, the sponsor of the House Bill 810, Representative Craig Ford, advertised the bill in four editions of the Messenger, a local weekly newspaper published in Eto-wah County, of which Ford is a co-owner, during the month of April 2005.

The last day that House Bill 810 could have been introduced and still be enacted into law during the 2005 regular legislative session was Tuesday, April 26, 2005, one day before the scheduled publication date for that week’s edition of the Messenger, which was to contain the last of the four published notices of the proposed bill. Realizing this, Ford states, he arranged for the April 27, 2005, edition of the Messenger to be distributed on Monday, April 25, 2005, to ensure that the proposed bill was properly advertised before it was introduced in the legislature.

House Bill 810 was introduced in the legislature on April 26, 2005, and was enacted into law at the end of the 2005 regular legislative session and became effective on May 25, 2005, upon the Governor’s approval.

Several hotels in Etowah County (“the hotels”) sued the Etowah County Commission (“the Commission”) and the Etowah County Civic Center Authority (“the Authority”), the recipients of the proceeds, seeking a judgment declaring the bill void on the basis that it was not properly advertised. The hotels also sought injunctive relief in the form of a stay of the imposition of the surcharge. The hotels argued that the fourth notice of the proposed bill was published not on April 25, 2005, but on April 27, 2005; thus, they contend, the supporters of House Bill 810 gave inadequate notice by publication of the bill in violation of § 106. The Commission and the Authority, on the one hand, and the hotels, on the other, moved the trial court for a summary judgment.

Greg Pappas, the clerk of the House of Representatives of the Alabama Legislature, stated in his affidavit submitted in support of the Commission and the Authority’s summary-judgment motion:

“With respect to House Bill 810, Act No. 2005-199, I reviewed the bill and found that the bill was properly noticed, and a copy of the proof of notice (i.e. legal advertising) was attached to the original bill. Consequently, I made the following certification:
“ T hereby certify that the notice and proof is attached to the bill, H.B. 810, as required in the General Acts of Alabama, 1975, Act No. 919.’
“... I understand that there was some question as to whether proper notice and proof were attached to the original bill; however, I have checked and have determined that, in fact, proper notice and proof attached to the original bill.”

Included in the official legislative records relating to House Bill 810 is the affidavit of Joe Williamson, the publisher of the Messenger. The affidavit, attached to House Bill 810 as introduced, stated “[t]hat there is glued to said affidavit advertising of legal notice which is printed in The Messenger Newspaper in its regularly circulated editions on April 8, 11, 18, & 25, 2005 and that the clipping glued to this affidavit constitutes an exact and true copy of said advertisement as it appeared in The Messenger Newspaper on the dates shown above.”

The trial court denied the Commission and the Authority’s motion and granted the hotels’ motion, finding that “the notice of publication required by Article IV, Section 106, of the Alabama Constitution, as amended by Amendment 341, was not satisfied before House Bill 810 was introduced.” The Authority appeals.

Issue

The issue in this case is whether this Court may look beyond the legislature’s own certification that proper notice under Art. IV, § 106, Ala. Const.1901, had been given.

Standard of Review

This Court reviews a summary judgment de novo. Blackmon v. Nexity Fin. Corp., 953 So.2d 1180, 1188 (Ala.2006). “Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant.” Brigman v. Dejute, 593 So.2d 51, 53 (Ala.1991).

Analysis

Article IV, § 106, Ala. Const.1901, as amended by Amend. No. 341, states:

“No ... local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the state, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties ... prior to the introduction of the bill.”

(Emphasis added.) The notice requirements of § 106 “are principally designed to assure that notice of legal or official proceedings is given to those persons who have or who may have an interest therein.” Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So.2d 1211, 1213 (Ala.1985). For this reason, in order to satisfy the notice requirements of § 106, all four of the weekly notices must have been published before the bill was introduced in the legislature. The trial court found that the “legal notice for House Bill 810 appeared for the fourth time in The Messenger's edition dated April 27, 2005,” and that “House Bill 810 was introduced in the Legislature on April 26, 2005, one day before.” Concluding that the publication date of the newspaper was April 27, 2005, and that that date was one day after House Bill 810 was introduced in the legislature, the trial court declared Act No. 2005-199 invalid.

In Byrd v. State ex rel. Colquett, 212 Ala. 266, 271, 102 So. 223, 228 (1924) (opinion on rehearing), this Court noted:

“Courts cannot go behind the Journals of the Legislature to determine whether publication was in fact made on the dates shown by the proof entered on the Journals.
“It is for the Legislature to ascertain whether the proof made as required by the Constitution is true or false. The Journals import absolute verity on matters duly shown therein.”

Although this Court subsequently overruled Byrd in St. Elmo Irvington Water Authority v. Mobile County Commission, 728 So.2d 125, 127 (Ala.1998), we specified in St. Elmo that the holding of Byrd remained effective “in regard to an act as to which the legislature has evidenced compliance with the mandate of § 106 by including, in the appropriate journal, the date and manner of the publication of the notice of the proposed bill.” In the present case, the legislature has evidenced that House Bill 810 complied with § 106 by-indicating in the official legislative journal that the affidavit of Joe Williamson, specifying the dates of legal notice for House Bill 810 as “April 8, 11, 18, & 25” and the manner of the publication as “legal notice ... printed in The Messenger Newspaper” was attached to House Bill 810. As this Court stated in Byrd, “It is for the legislature to ascertain whether the proof made as required by the Constitution is true or false.” 212 Ala. at 271, 102 So. at 227 (opinion on rehearing). Each legislator swears the same oath that the Justices on this Court swear — to uphold the laws and constitution of the State of Alabama; therefore, with respect to matters that are internal to the functioning of the legislative branch, we defer to the judgment of the legislature. Birmingham-Jefferson Civic Center Authority, 912 So.2d at 221 (“[T]he judiciary should not question the determination by the legislative branch of whether a bill was passed by the requisite majority vote of the house. To do so would be to demonstrate a lack of the respect due a coordinate branch of government. As Justice Scalia states in his concurrence in [United States v.] Munoz-Flores [, 495 U.S. 385, 410 (1990) ]: ‘Mutual regard between the coordinate branches, and the interest of certainty, both demand that official representations regarding such matters of internal process be accepted at face value.’ ” (Scalia, J., concurring in the judgment)). Because the legislative journal in this case “evidence[s] compliance with the mandate of § 106 by including, in the appropriate journal, the date and the manner of the publication of the notice of the proposed bill,” as is required by our decision in St. Elmo, 728 So.2d at 127, we accept as true the legislature’s certification that proper notice was given for the bill. We therefore reverse the summary judgment in favor of the hotels.

Conclusion

The legislative journal evidences the legislature’s determination that proper notice was given for House Bill 810; therefore, we reverse the summary judgment in favor of the hotels and remand this case to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

COBB, C.J.,. and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . The notice of appeal lists only the Authority as the appellant, and the only appellant’s brief filed in this Court was filed on behalf of the Authority.

      . In Birmingham-Jefferson Civic Center Authority v. City of Birmingham, 912 So.2d 204, 217 (Ala.2005), we noted:
      "Section 53, Ala. Const.1901, expressly provides that '[e]ach house shall have the power to determine the rules of its proceedings.' The power of the legislature to determine the rules of its own proceedings is 'unlimited except as controlled by other provisions of our Constitution,' and ‘unless controlled by other constitutional provisions the courts cannot look to the wisdom or folly, the advantages or disadvantages of the rules which a legislative body adopts to govern its own proceedings.’ ”
      (Citing Opinion of the Justices No. 185, 278 Ala. 522, 525, 179 So.2d 155, 158 (1965).)

      . "All members of the legislature, and all officers, executive and judicial, before they enter upon the execution of the duties of their respective offices, shall take the following oath or affirmation:
      " 'I _ solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue to be a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.’ ”
      Ala. Const. 1901, Art. XVI, § 279.


author: LYONS, Justice.

text:
    Ex parte METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY and Charlie E. Hardy. (In re Fred D. Gray v. Metropolitan Property and Casualty Insurance Company and Charlie E. Hardy).
    1060767.
    Supreme Court of Alabama.
    June 1, 2007.

      Ralph D. Gaines, Daniel S. Wolter, and Davis A. Barlow of Gaines, Wolter & Kinney, Birmingham, for petitioners.
    Stanley F. Gray of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, for respondent.
   LYONS, Justice.

Metropolitan Property and Casualty Insurance Company and its agent, Charlie E. Hardy, petition this Court for a writ of mandamus directing the state court to vacate its order denying their motion to dismiss the complaint of Fred D. Gray or, alternatively, to stay the state-court proceedings pending resolution of a declaratory-judgment action filed by Metropolitan against Gray in the United States District Court for the Middle District of Alabama. We deny the petition.

I. Facts and Procedural Background

Hardy sold Gray a Metropolitan homeowner’s insurance policy that covered Gray’s residence in Tuskegee and specified personal property for the period beginning on December 7, 2003, and ending on December 7, 2004. On February 10, 2004, a fire occurred at Gray’s law office in Tuskegee, and he filed a claim with Metropolitan under his homeowner’s policy, seeking the policy limits of $282,520. Gray contended that the personal-property provision of his homeowner’s policy covered the personal property he lost in the fire at his office. Metropolitan disputed coverage and on March 16, 2006, filed an action in federal court seeking a judgment declaring that the loss was not covered by Gray’s homeowner’s policy. On March 23, 2006, Gray sued Metropolitan and Hardy (hereinafter “the insurer and its agent”) in the Macon Circuit Court (“the state court”), alleging breach of contract, bad-faith failure to pay, negligence and/or wantonness, and fraud. The insurer and its agent filed with the Macon Circuit Court a motion to dismiss the complaint or, in the alternative, to stay the state-court proceedings pending the resolution of the federal-court action. The insurer and its agent contended that the obligations imposed by Rule 13(a), Fed. R.Civ.P. (“Compulsory Counterclaims”), mandated dismissal or stay of the subsequently filed state-court action.

Although the insurer and its agent did not cite § 6-5-440, Ala. Code 1975, in the motion to dismiss filed in the state court, they cited Ex parte Canal Insurance Co., 534 So.2d 582, 583 (Ala.1988), in which this Court applied § 6-5-440 in tandem with Rule 13(a), Fed.R.Civ.P., to order the dismissal of a state-court action filed after a federal-court action. We treat the motion filed in the state court by the insurer and its agent as sufficient to invoke the statutory defense of a prior pending action, despite the absence of any reference to § 6-5-440 in the motion. The state court denied the motion; the insurer and its agent then filed this petition, relying, among other things, on § 6-5^140, in seeking a writ of mandamus directing the trial court to vacate its order denying the motion to dismiss or, alternatively, to stay the proceedings pending resolution of the federal-court action.

II. Standard of Revieio

When the facts underlying a motion filed pursuant to § 6-5-440 are undisputed, as is the case here, our review of the application of the law to the facts is de novo. Greene v. Town of Cedar Bluff, 965 So.2d 773, 779 (Ala.2007).

III. Analysis

1. Applicability of Writ of Mandamus

The insurer and its agent have invoked the writ of mandamus as the procedural vehicle by which to seek review of the state court’s order denying their motion based upon the doctrine of prior pending action. See, e.g., Ex parte Canal Ins. Co., 534 So.2d at 583, and Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999). With respect to the writ of mandamus, we stated in Ex parte Cincinnati Insurance Cos., 806 So.2d 376, 379 (Ala.2001):

“The writ of mandamus is an extraordinary writ; one petitioning for it must show (1) a clear legal right in the petitioner to the order sought, (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) the properly invoked jurisdiction of the court. Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999).”

2. The Effect of the FederaV-Court Action

The insurer and its agent contend that under Rule 13(a), Fed.R.Civ.P., the matters made the basis of the state-court action are compulsory counterclaims in the federal-court action. Rule 13(a) provides:

“(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of (a) serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.”

The insurer and its agent rely on Cincinnati Insurance, which deals with the substantially similar Rule 13(a), Ala. R. Civ. P., and in which we stated: “The purpose of Rule 13[, Ala. R. Civ. P.,] ‘is to avoid circuity of actions and to enable the court to settle all related claims in one action and thereby avoid a wasteful multiplicity of litigation on claims that arose from a single transaction or occurrence.’ ” 806 So.2d at 379 (quoting Grow Group, Inc. v. Industrial Corrosion Control, Inc., 601 So.2d 934, 936 (Ala.1992), and citing 6 Charles Alan Wright et al., Federal Practice and Procedure: Civil § 1409 (2d ed.1990)).

In Cincinnati Insurance, the plaintiff in the state-court action asserted claims that arose out of the same nucleus of operative facts as was involved in a previously filed declaratory-judgment action in the federal court. After a judgment had been entered in the federal-court action without the state-court plaintiffs having asserted a counterclaim in the federal court, the defendant in the state court unsuccessfully sought dismissal of the state-court action. We granted the defendant’s petition of a writ of mandamus and issued the writ, holding, independently of § 6-5-440, that the state-court action was barred by the implicit prohibition derived from the mandatory terms of Rule 13, Fed.R.Civ.P., against the subsequent assertion of claims that should have been set forth as compulsory counterclaims in a concluded prior proceeding in the federal court. Because the federal-court action here has not been reduced to a judgment, we lay aside Cincinnati Insurance as not on point.

The insurer and its agent also rely upon Ex parte Canal Insurance Co., supra, in which this Court held:

“Since the matter raised in the state court complaint constitutes a compulsory counterclaim in the federal court action that was pending at the time the state court action was commenced, the statute [§ 6-5-440] compels dismissal of the state court action.”

534 So.2d at 585. In Ex parte Breman Lake View Resort, L.P., this Court described the interplay between a procedural rule requiring service of compulsory counterclaims and § 6-5-440, as follows:

“This Court has held that the obligation imposed on a defendant under Rule 13(a), Ala. R. Civ. P., to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala.Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a ‘plaintiff in that action (for purposes of § 6-5-440) as of the time of its commencement.”

729 So.2d at 851.

Gray does not contend that the matters made the basis of the state-court action are so factually disparate as not to arise out of the transaction or occurrence that is the subject matter of Metropolitan’s federal-court action. Instead, Gray contends, among other things, that a jurisdictional defect prevents the assertion of the claim he now asserts in the state-court action as a compulsory counterclaim in the federal-court action. We deal with this potentially dispositive issue first.

Gray argues that the prospect for join-der of Hardy as an additional defendant on any counterclaim he might file in the federal-court action would destroy diversity of citizenship necessary for federal-court jurisdiction and that, therefore, his claim is not a compulsory counterclaim. Gray cites no authority for this proposition. In fact, the settled law is to the contrary. See 6 Charles Alan Wright et al., Federal Practice and Procedure § 1436 (2d ed. 1990) (“It generally has been held that persons brought into an action under Rule 13(h) as parties to either a compulsory counterclaim under Rule 13(a) or a cross-claim under Rule 13(g) will come under the ancillary subject matter jurisdiction of the court.”).

Gray also contends that the federal court had not assumed jurisdiction over this action as of the time he filed the state-court action, thus rendering Canal Insurance inapplicable. Gray points out critical facts omitted from the insurer and its agent’s petition. Metropolitan’s complaint in the federal court not only failed to allege Metropolitan’s principal place of business, but it also failed to allege the citizenship of Gray, alleging only his residence. Moreover, attached to Gray’s response to the petition is an order entered sua sponte in the federal-court action on April 6, 2006, stating:

“The allegations of the plaintiffs complaint are insufficient to invoke this court’s jurisdiction under 28 U.S.C. 1332.”

The federal court gave Metropolitan the opportunity to amend its complaint, and the materials before us reflect that Metropolitan filed a timely amendment correcting the defects but that that amended complaint was filed several days after commencement of the state-court action.

We agree with Gray that a determination that the federal-court action was pending at the time of the commencement of the state-court action is essential to the reliance by the insurer and its agent on Canal Insurance. The federal court’s finding that the allegations of Metropolitan’s original complaint were “insufficient to invoke this court’s jurisdiction under 28 U.S.C. 1332” calls into question the existence of the essential prerequisite of priority of the federal-court action. However, the insurer and its agent have not given us any argument or authority (a) as to whether Metropolitan’s amended complaint relates back to the date of filing of the initial complaint and, if so, (b) whether the “legal fiction” of relation back should apply in the context of proceedings in which a party invokes § 6-5-440.

The burden of establishing a clear legal right to the relief sought rests with the petitioner. Cincinnati Insurance, 806 So.2d at 379. It is not this Court’s function to do independent research to determine whether a petitioner for a writ of mandamus has established a clear legal right. In Ex parte Showers, 812 So.2d 277, 281 (Ala.2001), this Court stated:

“Rule 21(a), Ala. R.App. P., requires that a petition to an appellate court for the writ of mandamus ‘shall contain ... a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on.’ (Emphasis added.) Similarly, Rule 28(a)(5), Ala. R.App. P., requires that arguments in briefs contain ‘citations to the authorities, statutes and parts of the record relied on.’ (Emphasis added.) It is settled that a failure to comply with the requirements of Rule 28(a)(5) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research. Rule 28(a)(5); Spradlin v. Birmingham Airport Authority, 613 So.2d 347 (Ala.1993).’ ”

IV. Conclusion

The insurer and its agent have ignored the essential element of the priority of the federal-court action over the state-court action, in light of Metropolitan’s defective original complaint. The insurer and its agent have failed to show a clear legal right to an order dismissing the state-court action. The petition, therefore, is denied.

PETITION DENIED.

COBB, C.J., and SEE, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . Section 6-5-440, Ala.Code 1975, provides:
      “No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.”

      . Smelser v. Trent, 698 So.2d 1094, 1095 n. 3 (Ala.1997)(“An American Law Reports annotation states: 'The doctrine of relation [back] ... is a legal fiction invented to bridge the interval that must necessarily elapse between the death of the owner of property and the orderly appointment of a person to care for and distribute it to whosoever may be entitled to it.' "); Farmer v. Wilson, 33 Ala. 446, 447 (1859) ("This court said, in Pearson v. Darrington, 21 Ala. 169 [(1852)], that ‘the doctrine of relation back to a former period, is a fiction, which is often indulged in advancement of justice to sustain legal proceedings; but it is never resorted to, when the result would be to deprive a party of a clear legal right, or when it would work manifest injustice.' ”).