text:
    Terry FAIR a/k/a Terry A. Fair, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01705-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Johnnie E. Walls, Jr., Greenville, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Terry Fair brings this appeal from his May 13, 2005 conviction of possession of a controlled substance in violation of Mississippi Code section 41-29-115(A)(a)(4) (Rev.2004) and sentence of sixteen years as a habitual offender under Mississippi Code section 41-29-147 (Rev.2002) in the Circuit Court of Bolivar County. Prior to trial, Fair’s attorney moved to suppress cocaine found in Fair’s possession, claiming that the arresting officers performed an illegal search and seizure. After a brief hearing, the circuit court denied Fair’s motion and the matter proceeded to trial. The jury returned a verdict of guilty, and Fair now appeals, raising the following two issues:

I. WHETHER FAIR RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL?
II. WHETHER THE CUMULATIVE EFFECT OF ERRORS MADE BY THE CIRCUIT COURT WARRANT A REVERSAL OF FAIR’S CONVICTION AND SENTENCE?

¶ 2. Finding no reversible error, we affirm the judgment and sentence of the trial court.

STATEMENT OF THE FACTS

¶ 3. On June 2, 2004, narcotics officers from the Cleveland Police Department received a tip from an anonymous informant of ongoing drug activity at 605 Clark Street, Cleveland, Bolivar County, Mississippi. Investigators Charles Bingham and Joe Smith established surveillance of the residence and shortly after 10:00 p.m. decided to perform a “knock and talk.” A “knock and talk” is a commonly used police tactic whereby police, lacking probable cause to obtain a search warrant, knock on a door where illegal activity is suspected and talk to the occupants in hopes that the occupants may incriminate themselves.. Both in a suppression hearing and at trial, Bingham testified that he knocked on the door of the Clark Street residence and the door was immediately opened by a person sitting in a chair near the door. Bingham testified that as soon as the door was opened, he observed Fair holding a plastic bag filled with a white powdery substance. Fair appeared to be attempting to inhale some of the substance. Bingham, who was familiar with Fair from prior dealings, asked Fair what the bag contained. Fair said “[fit’s nothing but powder,” referring to the cocaine being in the powdered form rather than the rock form of crack cocaine. The officers then entered the residence and arrested Fair for possession of a controlled substance.

¶ 4. Prior to trial, Fair’s appointed counsel filed a motion to suppress the cocaine, alleging that the evidence was the product of an illegal search in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Section 23 of the Constitution of the State of Mississippi. At the suppression hearing Fair alleged that the officers did not have a warrant and did not knock, but opened the door on their own. He further testified that he did not live at the residence and was not holding the bag of cocaine. Fair admitted to snorting the cocaine, along with the other occupants, but claimed that the bag was lying on the table at which they were all sitting. The prosecution called Bingham to rebut Fair’s testimony, and Bingham testified that he knocked on the door and when the door was opened, he immediately saw Fair holding the bag of cocaine. The circuit judge accepted the officer’s testimony and denied Fair’s motion to suppress.

¶ 5. The matter proceeded to trial, and the prosecutors called Investigators Bing-ham and Smith to testify to the circumstances surrounding the arrest, as well as Scott Gary Fernandez of the Mississippi Crime Lab, who testified to the substance found in Fair’s possession being cocaine. After the prosecution rested, Fair requested to dismiss his appointed counsel and retain his own attorney. The circuit judge denied Fair’s request, determining that double jeopardy had already attached. The circuit judge then proceeded to advise Fair of his right to testify. While the judge was advising Fair of his right to testify, Fair repeatedly attempted to interrupt the judge, claiming that he had not been given an opportunity to prepare his defense and that he had witnesses he wanted to call. The circuit judge stated that he would allow Fair to call any witnesses Fair had available. Fair’s attorney then informed the court that no witnesses, other than Fair, had been identified, and the prosecutor stated that no subpoenas had been issued. The judge then stated that it was too late to subpoena witnesses, that the jury was there and ready, and ordered the defense to proceed. Fair then testified on his own behalf and was ultimately convicted. As a repeat offender, Fair was sentenced to sixteen years in the custody of the Mississippi Department of Corrections. Fair’s sentence was to be served consecutively to any other sentences previously imposed and the sentence was not to be reduced or suspended, nor would he be eligible for parole or probation during the term of the sentence.

¶ 6. Through this appeal, Fair asserts that his counsel was constitutionally ineffective because his attorney had not interviewed witnesses nor subpoenaed anyone to testify on his behalf. Fair claims that his witnesses would have testified that the police did not knock, that the cocaine was not his, and that the bag was sitting on the table, not in his hand, when the door was opened. Further, Fair states that his counsel erred in not submitting a jury instruction defining the term “possession.” Finally, Fair asserts that the alleged errors of counsel, combined with the brevity of the four hour trial as well as the fact that the judge knew one of the jurors, had the cumulative effect of denying Fair his fundamental right .to a fair trial and warrants reversal of his conviction and sentence.

LEGAL ANALYSIS

I. WHETHER FAIR RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 7. Fair asserts that his trial counsel was ineffective because his counsel failed to interview witnesses, failed to have witnesses available to testify on his behalf, failed to properly present Fair’s theory of the case, and failed to provide a jury instruction on the element of possession. We review claims of ineffective assistance of counsel under the familiar two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Fair must establish by prima facie evidence (1) that his counsel’s performance was deficient, and (2) but for the deficiencies, the outcome of the trial would have been different. Ward v. State, 914 So.2d 332, 336(¶ 12) (Miss.Ct.App.2005). The burden of proof under both prongs of the Strickland test rests with Fair. Taylor v. State, 682 So.2d 359, 363 (Miss.1996). Further, “the adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured under the ‘totality of the circumstances.’ ” Id. In addition, “there is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

¶ 8. First, we note that decisions of counsel to call or not to call certain witnesses fall within the ambit of trial strategy and are presumed reasonable. Michael v. State, 918 So.2d 798, 805(¶13) (Miss.Ct.App.2005). Furthermore, Fair failed to identify any witness who could testify on his behalf, and the failure of Fair’s counsel to call witnesses of whom he had no knowledge of their existence, cannot be characterized as error. Second, trial strategy falls within the discretion of counsel, and though we may sometimes disagree with the trial strategy of counsel, the decisions will not ascend to the level of ineffective assistance of counsel unless we find the error to be so serious that Fair’s attorney was no longer acting as “counsel” under the Sixth Amendment. Colenburg v. State, 735 So.2d 1099,1103(¶ 9) (Miss.Ct. App.1999). We do not find such an egregious error to have occurred here. Fair testified on his own behalf and had ample opportunity to present his theory of the case. The jury had the opportunity to weigh Fair’s testimony against that of Investigators Bingham and Smith and decide whom to believe. We find that the jury performed this duty with all diligence, and that Fair’s defense was not prejudiced by his counsel’s trial strategy in any significant way.

¶ 9. Finally, Fair asserts error in his counsel’s failure to provide the jury with an instruction on the legal definition of the term “possession.” Counsel’s decision not to request a specific jury instruction falls under the category of trial strategy, and is given much deference by this Court. Smiley v. State, 815 So.2d 1140, 1148 (¶¶ 31-32) (Miss.2002). Fair has failed to show that the failure by his counsel to provide the jury with an instruction defining the term “possession” deprived him of a fair trial, or that the outcome would have been different had such an instruction been provided. What is more, “a defendant has clearly failed to satisfy the prejudice test of Strickland” when it is clear from the record that the defendant is “hopelessly guilty.” Jones v. State, 911 So.2d 556, 560(¶ 18) (Miss.Ct.App.2005) (citing Ward v. State, 461 So.2d 724, 727 (Miss.1984)). In the case at bar, the jury weighed the testimony of the investigators against that of Fair, including Fair’s admission to being present at the location in question and engaged in the snorting of cocaine, and determined that there was overwhelming evidence to convict him of possession of a controlled substance. On the evidence presented at trial, this Court fails to see how the jury could have returned any other verdict than that of guilty. Accordingly, we find none of the claims of ineffective assistance of counsel asserted by Fair to survive our Strickland analysis, and the issue is without merit.

II. WHETHER THE CUMULATIVE EFFECT OF ERRORS MADE BY THE CIRCUIT COURT WARRANT A REVERSAL OF FAIR’S CONVICTION AND SENTENCE?

¶ 10. Fair’s second assignment of error is that the errors of counsel asserted above, combined with the brevity of the four hour trial and the fact that the judge knew one of the jurors, have the cumulative effect of denying Fair his fundamental right to a fair trial and warrant reversal of his conviction and sentence. Fair’s argument under this assignment of error is summary and devoid of any specific evidence in the record to support the claim. The only authority to which he cites is Genry v. State, 735 So.2d 186 (Miss.1999), for the proposition that this Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal. Fair fails to provide any analytical application of the Genry holding to the facts of the instant case, and asks this Court to summarily reverse his conviction and sentence based solely on his bald assertions. Our supreme court has held that there is no obligation on the part of an appellate court to review assignments of error unsupported by argument or citation to authority. See Jones v. State, 841 So.2d 115, 138 (¶¶ 70-71) (Miss.2003). We therefore decline to do so now.

CONCLUSION

¶ 11. Our review of the record in this case demonstrates that Fair received constitutionally effective counsel, and that the errors upon which Fair seeks to show cumulative error are unsupported by the record and his legal argument is undeveloped. The record clearly indicates that substantial evidence existed to support Fair’s conviction and we find no error with his conviction or the sentence imposed by the circuit judge. Accordingly, the judgment of the circuit court and sentence imposed are affirmed.

¶ 12. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF SIXTEEN YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL OTHER SENTENCES PREVIOUSLY IMPOSED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Cathy P. APPERSON and Michael D. Pierce, Appellants v. John L. WHITE and Suzanne B. White, Appellees.
    No. 2005-CA-01516-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Steven D. Settlemires, Philadelphia, attorney for appellants.
    Marvin E. Wiggins, Jr., attorney for ap-pellees.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Cathy P. Apperson and Michael D. Pierce appeal the judgment of the Chancery Court of Kemper County which awarded John and Suzanne White title to a disputed 8.2 acre tract of land by virtue of adverse possession. Apperson’s and Pierce’s appeal raises the following two issues:

I. WHETHER THE CHANCELLOR ERRED IN DETERMINING THAT THE WHITES HAD ACQUIRED TITLE TO THE DISPUTED PROPERTY BY ADVERSE POSSESSION?
II. WHETHER THE CHANCELLOR ERRED BY FAILING TO CONSIDER TESTIMONY AND OTHER EVIDENCE PRESENTED AT TRIAL ON BEHALF OF APPERSON AND PIERCE?

¶2. Finding no error, we affirm the judgment of the Chancery Court of Kem-per County.

STATEMENT OF THE FACTS

¶ 3. The parties in this case are adjoining landowners in Kemper County, Mississippi. Pierce’s property is located immediately adjacent to Apperson’s property, and Apperson’s property is located immediately adjacent to the Whites’ property. No overlapping of the legal descriptions of the parcels of property owned by the respective parties exists, and it is clear from the descriptions that, prior to the Whites’ adverse possession, Apperson and Pierce shared legal title to the disputed parcel. In fact, no dispute over the boundary line arose between the parties until Apperson and Pierce discovered that the Whites had clear-cut timber up to an old barbed-wire fence running at a southwest to northeast diagonal across the southeast corner of the parcel of property owned by Apperson, and extending marginally into the southeast corner of the parcel of property owned by Pierce. The Whites clear-cut the timber from the disputed parcel from 1995 until 1996, but their actions went undiscovered until September 2001, when Apperson consulted a timber cruiser about clearing her property. After the timber cruiser informed Apperson that the trees had already been removed from the parcel now in dispute, she obtained a land survey from Tom Turner, in January 2002, showing an encroachment of approximately 8.2 acres. Apperson, joined by her brother and adjoining landowner Pierce, then commenced this action on September 17, 2002, by filing a complaint to quiet title against John and Suzanne White. The Whites defended the action by asserting adverse possession, over the disputed property. After reviewing the land descriptions and chains of title, studying the survey commissioned by Apperson and ariel photographs of the property, visiting the property in question, and hearing three days of testimony on behalf of the parties, the chancellor issued a written opinion dated June 7, 2005, wherein he found the Whites to have brought forth sufficient evidence to support their claim of adverse possession, and accordingly awarded the Whites title to the 8.2 acre parcel of land.

LEGAL ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN DETERMINING THAT THE WHITES HAD ACQUIRED TITLE TO THE DISPUTED PROPERTY BY ADVERSE POSSESSION?

¶ 4. Apperson and Pierce argue that the Whites failed to meet their burden of proof on the elements of adverse possession and that the chancellor erred in awarding the Whites title to the disputed property. This assignment of error is essentially a challenge to the chancellor’s findings of fact and conclusions of law, and urges this Court to find the chancellor’s judgment in error. However, our appellate review of the chancellor’s decision is limited. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26, (¶ 18) (Miss.2002).

¶ 5. One may acquire property legally titled in another through an action to quiet title and after having established by clear and convincing evidence the elements of adverse possession, found in Mississippi Code Annotated section 15-1-13 (Rev.2003) and articulated by our supreme court in Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992), before a chancery court of proper jurisdiction. The Rice court adopted a six-part test for determining whether adverse possession has occurred, and that test has been applied by this Court as follows: “for possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Walker v. Murphree, 722 So.2d 1277, 1281(¶16) (Miss.Ct.App.1998) (citing Rice, 611 So.2d at 871).

1. Under Claim of Ownership

¶ 6. Apperson and Pierce first challenge the evidence in support of the Whites’ claim of ownership over the disputed parcel. The primary evidence Ap-person and Pierce point to in support of this challenge is that Apperson paid the property taxes on the disputed parcel, Ap-person’s son occasionally hunted on the disputed parcel, and that Apperson’s and Pierce’s father had periodically raised cattle and thinned timber on the disputed parcel. First, the payment of property taxes is but one factor for the chancellor to consider, and is not conclusive of ownership. Buford v. Logue, 832 So.2d 594, 602(¶ 22) (Miss.Ct.App.2002). Second, in Apperson’s and Pierce’s own brief, they recognize that sporadic or occasional pasturing of cows and cutting of timber is insufficient to support a claim of adverse possession. Davis v. Clement, 468 So.2d 58, 63 (Miss.1985). Finally, while the testimony presented on behalf of Apperson and Pierce may show an occasional use of the property by Apperson and Pierce, or their predecessors in interest, it does not address the Whites’ use of the property.

¶ 7. The deficiency in Apperson’s and Pierce’s argument is that it focuses on Apperson’s and Pierce’s actions of dominion and control over the property, rather than evaluating whether the actions of the Whites, as adverse possessors, were sufficient to provide notice of the Whites’ claim of ownership over the property. The essential question the chancellor was to answer was not whether the possessory acts of Apperson and Pierce were sufficient to provide notice of a claim of ownership, but rather, whether the Whites’ possessory acts were sufficient to “fly their flag over the property” and put Apperson and Pierce on notice that the land was being held under an adverse claim of ownership. Walker, 722 So.2d at 1281(¶ 16). The pos-sessory acts of Apperson and Pierce, as title owners of the property, are immaterial to this analysis. Thus, our review focuses on the possessory acts of John and Suzanne White, if any, in an attempt to determine whether Apperson and Pierce were sufficiently placed on notice of the Whites’ claim of ownership over the disputed parcel.

¶ 8. When determining whether the Whites undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Id. “Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land,” and “adverse possession of “wild’ or unimproved, lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.” Id. (citing Kayser v. Dixon, 309 So.2d 526, 529 (Miss.1975)). At trial, Apperson testified that she considered the disputed parcel “wild land” and that she had not visited the parcel in six or seven years. Therefore, the quantum of proof necessary for the Whites to establish adverse possession over the disputed parcel is measurably lower than had the property been improved or developed.

¶ 9. The most substantial evidence of a possessory act performed by the Whites sufficient to “fly their flag over the property” was the ample testimony presented that the Whites’ predecessor in interest had constructed a barbed-wire fence over sixty years ago, and that the fence had been maintained as the property line ever since. The fence, running at a southwest by northeast diagonal, is clearly marked on the survey commissioned by Apperson. At the hearing, Apperson testified to having no knowledge of the fence, and Pierce claimed that the fence was a part of a series of cross-fences constructed by his father for the raising of cattle. However, on the chancellor’s visit to the property he observed no evidence of a system of cross-fences on the disputed parcel. In contrast, proof of the longevity of the fence’s existence could be found in the barbed-wire having grown deeply into the trees at various points, a fact consistent with the testimony of the elder Whites. Mathews v. Hale, 767 So.2d 231, 234(¶ 9) (Miss.Ct.App.2000) (upheld chancellor’s determination of a boundary line proved by a tree having grown into an “old fence”). Our review of the record on the issue of the fence reveals that the chancellor weighed the testimony of the elder Whites against that of Pierce, and found the Whites to be more credible on this issue. Since we find no manifest error with the chancellor’s weighing of this testimony, we must accept the chancellor’s finding as true, and proceed with an understanding that the fence was constructed by the Whites. This Court “has long recognized that the existence of an old fence, including disputed land in with the land of the claimant, was strong evidence of the elements required to prove adverse possession.” Roebuck v. Massey, 741 So.2d 375, 389(¶ 42) (Miss.Ct.App.1999). Accordingly, we find the evidence that the Whites constructed the barbed-wire fence encompassing the disputed property some sixty years ago compelling evidence of adverse possession.

¶ 10. Additional evidence of possessory-acts over the disputed parcel brought forth on behalf of the Whites included the testimony of elder members of the White family, now in their seventies, that as youths they had terraced the parcel for the planting of corn. Their testimony provided that corn was planted up to the barbed-wire fence that now separates the disputed parcel from the remainder of Apperson’s and Pierce’s lands. This testimony was substantiated by the chancellor’s written judgment in which he wrote that he observed, during his walk about the property, that the parcel had in fact been terraced and showed other evidence of ancient cultivation. It is well-settled that “actual or constructive occupation, cultivation, or residence is sufficient to constitute adverse possession.” Kayser, 309 So.2d at 528-29 (emphasis added).

¶ 11. Finally, Apperson and Pierce argue that the only act of the Whites sufficient to raise a flag of ownership over the property was the clear-cutting of the property in 1995-96, and the fact that this action was filed in 2002 establishes that the statutory period of ten years for adverse possession has not been met. However, in addition to the substantial possessory acts listed above, the Whites presented various timber deeds proving that they had continuously harvested timber on the disputed parcel for over forty years. After a thorough review of the record, we find the evidence more than sufficient to support the chancellor’s finding that the Whites and their predecessors had flown their flag and asserted a claim of ownership over the property. Apperson, Pierce, and their predecessors in interest were sufficiently placed on notice of the Whites’ claim of ownership over the disputed parcel, and their claim of ownership had persisted for a period well beyond the statutory minimum.

2. Actual or hostile

¶ 12. The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner. Magee v. Magee, 37 Miss. 138, 153 (1859). The adverse possessor must hold the property without the permission of the true title owner since “permission defeats adverse possession.” Gillespie v. Kelly, 809 So.2d 702, 706-07(¶ 14) (Miss.Ct.App.2001) (citing Myers v. Blair, 611 So.2d 969, 971 (Miss.1992)). Here, there was no testimony presented on behalf of Apperson and Pierce that the Whites were ever given permission to use the disputed parcel. In fact, Apperson testified that her father never granted such permission. Furthermore, we hold the Whites’ possessory acts of building a fence, planting crops, and continually harvesting timber to be hostile to the ownership interests of Apperson, Pierce, and their predecessors in interest, and sufficient to meet the burden of proof as to this element of adverse possession.

S. Open, Notorious, and Visible

¶ 13. Neither the Whites, nor their predecessors in interest, tried to hide their use of the disputed parcel. The fence constructed by the Whites was a clear and visible indicator of their occupation of the property as were the crops that were planted thereon. These possessory acts were easily discoverable by Apperson, Pierce, and their predecessors in interest by merely walking their property and observing its state.

A Continuous and Uninterrupted for a Period of Ten Years

¶ 14. Apperson’s and Pierce’s argument that the Whites’ clear-cutting of the property in 1995-96 fails to meet the statutory requirement of ten years because the action to quiet title was filed in 2002 completely disregards the evidence of the Whites’ forty to sixty years of occupation. For the reasons stated under the “claim of ownership” element of this opinion, we hold that the chancellor did not err in finding that the Whites had established by clear and convincing evidence that their adverse occupation of the disputed parcel had persisted for well in excess of the statutory period of ten years.

5. Exclusive

¶ 15. “Exclusive use” does not mean that no one else may use the property. Moran v. Sims, 873 So.2d 1067, 1069(¶ 10) (Miss.Ct.App.2004). Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property. Id. Exclusive use is at the most basic level the intent of actual and hostile possession. We hold this element to have been satisfied by the evidence presented on behalf of the Whites and found within the record.

6. Peaceful

¶ 16. The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use. Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them. Dieck v. Landry, 796 So.2d 1004, 1009(¶ 15) (Miss.2001). No evidence is presented establish ing a non-peaceful existence between Ap-person and Pierce and the Whites or their predecessors in interest. Therefore, this element of adverse possession is satisfied.

¶ 17. The evidence presented before the chancery court clearly established each element of adverse possession by the Whites and their predecessors in interest. With respect to our standard of review, we may only reverse the chancellor’s decision where we find evidence that the decision was arbitrary and capricious, clearly erroneous, manifestly in error, or an incorrect legal standard was applied. Here, we find no such evidence. The chancellor’s findings of fact are supported by the record and his conclusions of law are sound.

II. WHETHER THE CHANCELLOR ERRED BY FAILING TO CONSIDER TESTIMONY AND OTHER EVIDENCE PRESENTED AT TRIAL ON BEHALF OF APPERSON AND PIERCE?

¶ 18. Apperson and Pierce claim that the chancellor failed to consider the testimony and evidence presented on their behalf when he found the Whites to have acquired the disputed property by adverse possession. However, our review of the record does not support this contention. In paragraph one of his written judgment, the chancellor specifically stated that in arriving at his decision he considered (1) all of the evidence, documents, and exhibits offered at trial, (2) his personal review of the property, and (3) testimony of Cathy P. Apperson, Michael Pierce, J.L. Pierce, Tommy Apperson, Jamie Stovall, Lester White, J.L. White, Jr., and John White (all of the persons who testified at the trial). The chancellor further addressed testimony offered by Apperson and Pierce that the fence purported by the Whites to be a boundary fence was a part of a series of cross-fences running through Apperson’s property and placed there by their father. However, the chancellor determined, as the finder of fact, that the testimony offered by the Whites on the issue of the fence was more credible. The chancellor went on to list each of the acts of dominion over the property exercised by the Whites and made a factual determination as to whether or not those acts had been exercised continuously for a period in excess of the statutorily required ten years. After review of the record, we find no evidence that the chancellor failed to consider the testimony offered on behalf of Apperson and Pierce and this issue is without merit.

CONCLUSION

¶ 19. After an exhaustive review of the record, we find the evidence presented in favor of the Whites’ claim of adverse possession sufficient to sustain their burden of proof. We further find that the chancellor properly evaluated all the testimony and evidence presented. The chancellor’s findings of fact are supported by the record, his conclusions of law are sound, and no evidence exits that he failed to consider the testimony offered on behalf of Apper-son and Pierce. Accordingly, the decision of the Chancery Court of Kemper County is affirmed.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF KEMPER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . "Ten years’ actual possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have been commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title.... ”


author: SEE, Justice.

text:
    BAPTIST MEDICAL CENTER MONTCLAIR v. Barbara T. WHITFIELD, as administratrix of the estate of Thelbert D. Whitfield, deceased.
    1041472.
    Supreme Court of Alabama.
    April 21, 2006.
    Rehearing Denied Aug. 11, 2006.

      Mark W. Lee, Dorothy A. Powell, and James A. Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellant.
    Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham, for appellee.
   SEE, Justice.

Baptist Medical Center Montclair appeals from the trial court’s grant of a new trial following the return of a jury verdict in its favor. We affirm.

Facts

Dr. Scott Pennington admitted Thelbert Whitfield to Baptist Medical Center Mont-clair (“BMC”); Thelbert was suffering from gallstones and jaundice. Dr. Pennington is BMC’s chairman of general surgery.

On January 15, 2001, Dr. Pennington removed Thelbert’s gallbladder. Thelbert was discharged following the procedure, but he experienced problems and was re-hospitalized on January 21, 2001. On January 26, 2001, Dr. Pennington discovered that Thelbert had a leak in his gastrointestinal tract. Upon investigation, Dr. Pennington discovered that Thelbert’s bile duct was leaking; Dr. Pennington drained and repaired the leak. On January 29, 2001, Thelbert appeared to have developed an “upper gastrointestinal bleed.” Dr. Pennington gave Thelbert an infusion of blood and placed him in BMC’s surgical-intensive-care unit. Dr. Leonard Ou-Tim, a gastroenterologist at BMC, performed an endoscopy on Thelbert but was unable to locate the source of the bleed.

Julie Davis, a registered nurse, was Thelbert’s primary nurse on January 29, 2001, having begun her shift at 7:00 p.m. At approximately 7:30 p.m., Thelbert experienced a bloody bowel movement while he was lying on his bed. Davis reported the bloody bowel movement to the surgeon on call who, in response, instructed her to infuse Thelbert with two units of blood. At approximately 10:50 p.m., around the time the first unit of blood was fully transfused, Davis evaluated Thelbert and found his condition to be stable. Davis left the room to chart her assessment and order a second unit of blood for Thelbert. Soon after Davis left Thelbert’s room, the monitor alarm in Thelbert’s room was activated: Davis returned immediately to find that Thelbert had gotten out of his bed unassisted, had pulled out his intravenous tubes, and was sitting on a trash can while experiencing a bloody bowel movement. Davis and another nurse assisted Thelbert back into his bed. As they got him to his bed, Thelbert became unresponsive. Davis called for assistance, and the responding team attempted to resuscitate Thelbert. The resuscitation efforts were unsuccessful; Thelbert died shortly thereafter.

Dr. Kim Parker performed the autopsy on Thelbert. During the autopsy, the source of his gastrointestinal bleed was identified for the first time. Dr. Parker determined that Thelbert suffered from a Dieulafoy’s malformation, also known as a Dieulafoy’s lesion — a condition in which a lesion in an artery of the gastrointestinal tract causes gastrointestinal bleeding. Dr. Parker concluded from the autopsy that Thelbert had died from a massive gastrointestinal bleed. Dr. Pennington conferred with Dr. Parker shortly after the autopsy was completed and agreed with Dr. Parker’s findings. On February 5, 2001, Dr. Pennington signed Thelbert’s death certificate, noting “GI hemorrhage due to (or as a consequence of) Dieulafoy’s lesion duodenum” as his cause of death.

On August 30, 2002, Barbara Whitfield, Thelbert’s wife, as the administratrix and personal representative of Thelbert’s estate,- sued BMC, Montclair Surgical Associates, P.C. (Dr. Pennington’s practice group), and Birmingham Gastroenterology Associates, P.C., asserting claims of negligence relating to Thelbert’s death. On March 7, 2005, the day before trial, Whitfield voluntarily dismissed Montclair Surgical Associates, P.C., and Birmingham Gastroenterology Associates, P.C., from the action, leaving BMC as the only defendant.

In his opening statement, counsel for BMC implied that Whitfield had agreed to dismiss the charges against Montclair Surgical Associates on the condition that Dr. Pennington change his testimony so that it would be damaging to BMC. BMC’s counsel also suggested that Whitfield made the deal because it was easier for the jury to return a large verdict against a corporation like BMC rather than a group of doctors. BMC’s counsel stated:

“March 7th, 2005 — yesterday—the deal was consummated. [Whitfield] dismissed it. Why would [Whitfield] do that? Why would [Whitfield] do that? Because if [Whitfield] could have some testimony against the nurse, because we’re suing a hospital — bricks and mortar. It’s easier for you twelve people— thirteen people, I’m sorry — to bring a verdict back against bricks and mortar.”

Whitfield’s attorney objected to the statement and the trial judge sustained his objection. No curative instruction was requested or given.

The trial court heard from a number of witnesses; however, only Dr. Pennington’s testimony is relevant to this appeal. Dr. Pennington testified at trial as a witness for Whitfield. During direct examination, Whitfield’s counsel instructed Dr. Pennington to read portions of the transcript of his deposition taken on April 28, 2004. In his deposition, Dr. Pennington opined that Thelbert’s death was caused by his getting out of bed unassisted, resulting in a drop in blood pressure and heart rate, which in turn caused a cardiac arrest or arrhythmia from which he could not be resuscitated. At trial, Dr. Pennington testified to the same cause of death. Dr. Pennington also stated at trial that he stood by the theory he had advanced in his deposition as to Thelbert’s cause of death. In response to BMC’s suggestion during the trial that his opinion as to Thelbert’s cause of death changed after he executed Thelbert’s death certificate, Dr. Pennington explained that his opinion of Thelbert’s cause of death had not changed from the time he executed Whitfield’s death certificate to the time of his deposition and then his trial testimony. When Whitfield’s counsel asked him to explain why he wrote “GI hemorrhage due to (or as a consequence of) Dieulafoy’s lesion duodenum” as the cause of death on Thelbert’s death certificate rather than cardiac arrest, Pennington stated:

“I think it’s a problem of semantics. In other words, it’s a problem of language. What I meant in the death certificate is that indeed the underlying cause of Mr. Whitfield’s death was the GI bleed, in the sense that we’ve talked about. The GI bleed set him up for this scenario, a scenario that unfortunately led to his death. The GI bleed created the low blood pressure, relative hypovolemia, despite his being transfused and despite the fact he was stable in a recumbent position. When he — the best that we can put the picture together, when he got up and sat on the trash can, his blood pressure may have become low, he may have underperfused his coronary arteries and may have had a heart attack. We don’t know exactly what happened, but that’s the best explanation I have. Now, on the coroner’s report that I have to fill out, what I put is the underlying cause of his death. The most proximate cause of his death — and we can quibble about what ‘proximate’ or ‘immediate’ means — would be the GI hemorrhage, because that’s what led to everything else. It’s like a cascade of events. And the cause of GI hemorrhage, which we only discovered at pathology after autopsy, was the Dieula-foy’s lesion, the bleeding lesion in the duodenum.”

During direct examination of Dr. Pennington, Whitfield’s counsel also addressed the remarks by BMC’s counsel in his opening statement concerning a deal between Dr. Pennington and Whitfield:

“[Whitfield’s counsel]: There has been a direct statement made to these ladies and gentlemen of the jury that we made a deal, we made a deal to either get you to give this testimony or to come to court today. So, sir, let me just ask you straight up: Have we made a deal?
“[Dr. Pennington]: No, sir.
“[Whitfield’s counsel]: Has anybody promised you anything to give the deposition, sworn testimony you gave in April 2004?
“[Dr. Pennington]: No, sir.
“[Whitfield’s counsel]: Has anybody promised you anything to come to court and give the testimony you gave today?
“[Dr. Pennington]: No, sir.”

In closing arguments, BMC’s counsel again stated that Whitfield had made a deal with Dr. Pennington pursuant to which the charges against his practice group would be dismissed in exchange for his testimony against BMC because, counsel stated, the jury was more likely to return a large verdict against a corporation like BMC rather than a group of doctors. BMC’s counsel made the following statement during his closing argument:

“The deal was made, the deal was done. And the deal was consummated March 7, 2005. You come here, and you just follow that testimony so we can hang this nurse out to dry. And then you’ll be dismissed from this case. Do you know why? Let me tell you why. Because it’s easier for you folks to bring a verdict back — $7.5 million — -against a hospital, a corporation, than it is a doctor. That is why it was done. That, to me, is insulting to you. It’s insulting to you, that you would be swayed by that. But that was the deal that was cut in this case. It may be the seedy side of what goes on, but that’s what happened.”

Whitfield’s counsel did not object.

The jury returned a verdict in favor of BMC, and the trial court entered a judgment on the verdict. Whitfield moved for a new trial. After a hearing, the trial court granted Whitfield’s motion for a new trial. The trial court stated in its order granting a new trial:

“This Court finds that those arguments presented in [BMC’s] closing argument were improper, prejudicial, inflammatory, and could not reasonably be cured by instruction of this Court and that as a result of their cumulative effect, the verdict returned by the jury was a product of passion, prejudice, bias and sympathy in favor of [BMC] and against [Whitfield].”

The trial court explained:

“By arguing that some sort of ‘deal’ had been ‘cut’ between counsel for [Whitfield] and one of the previously named Defendants herein, together with the argument that ‘It may be the seedy side of what goes on,’ taken in toto with all the facts and circumstances presented at trial, [Whitfield] was prejudiced beyond any curative instruction by this Court.”

BMC appeals the trial court’s grant of a new trial.

Standard of Review

The trial court granted Whitfield’s motion for a new trial on the basis that the closing argument by BMC’s counsel contained improper, prejudicial, and inflammatory arguments. When the court grants a motion for a new trial on grounds other than a finding that the verdict is against the great weight or preponderance of the evidence, this Court’s review is limited.

“ ‘It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.’ ”

Curtis v. Faulkner Univ., 575 So.2d 1064, 1065-66 (Ala.1991) (quoting Kane v. Edward J. Woerner & Sons, Inc., 543 So.2d 693, 694 (Ala.1989), quoting in turn Hill v. Sherwood, 488 So.2d 1357, 1359 (1986)).

Analysis

This Court will reverse the trial court’s grant of a new trial on the basis of improper closing argument by counsel only if it is shown that, in so doing, the trial court abused BMC’s legal rights and its decision was plainly and palpably wrong. Curtis, 575 So.2d at 1065-66. BMC does not allege in its brief to this Court that the trial court encroached on any of its legal rights in granting Whitfield’s motion for a new trial. BMC argues that the trial court’s decision was plainly and palpably wrong. However, under our standard of review, we cannot agree. Therefore, we must affirm the trial court’s order granting Whitfield a new trial.

BMC’s counsel in this case made statements regarding an alleged deal between Whitfield and Dr. Pennington during both his opening statement and his closing argument. The trial court based its award of a new trial on statements by BMC’s counsel in closing argument, noting that the closing argument, “taken in toto with all the facts and circumstances presented at trial” resulted in prejudice to the plaintiff that was beyond any curative instruction. Thus, we will first address the improper argument in the opening statement.

BMC’s counsel stated in his opening statement that Whitfield had made a deal with Dr. Pennington pursuant to which Dr. Pennington’s practice group would be dismissed from the case in return for his testimony against BMC. Whitfield’s attorney objected to that statement, and the trial court sustained his objection. When a party objects to improper argument and the trial court sustains the objection, in order to obtain a new trial on the basis of the improper argument, it is necessary that the party request a curative instruction from the trial court. See Southern Life & Health Ins. Co. v. Smith, 518 So.2d 77, 81 (Ala.1987), Walker v. Asbestos Abatement Servs., Inc., 639 So.2d 513, 514 (Ala.1994) (citing Calvert & Marsh Coal Co. v. Pass, 393 So.2d 955 (Ala.1981)). In this case, Whitfield’s attor ney did not request a curative instruction after the trial court sustained his objection. Generally, the objecting party’s failure to seek a curative instruction “indicates satisfaction with the ruling; that party cannot later complain of the trial court’s failure to do what it was not asked to do.” Walker, 639 So.2d at 515. Nevertheless, this Court has also noted that “[b]ecause there was no admonition from the trial court, the influence of this improper argument was not eradicated from the minds of the jury.” Otis Elevator Co. v. Stallworth, 474 So.2d 82, 84 (Ala.1985). Therefore, even though the trial court sustained Whitfield’s objection and no corrective action was requested or taken, the trial court could have considered the opening statement by BMC’s counsel in evaluating the cumulative effect of counsel’s remarks and whether, in the context of the trial, those remarks were grossly improper and highly prejudicial.

The trial court granted Whitfield’s motion for a new trial on the basis of the reference by BMC’s counsel in his closing argument to an' alleged deal between Dr. Pennington and BMC. Generally, unless there is an objection and it is overruled, “improper argument of counsel is not ground for new trial.” Southern Life & Health, 518 So.2d at 81 (citing Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1976), and Hill v. Sherwood, 488 So.2d, 1357, 1359 (Ala.1986)). However, there is an exception to the requirement that an objection must have been overruled in order for improper argument of counsel to serve as the basis for a new trial. A new trial may be granted based on improper argument of counsel, even where no objection to the statement was made, “where it can be shown that counsel’s remarks were so grossly improper and highly prejudicial as to be beyond corrective action by the trial court.” Southern Life & Health, 518 So.2d at 81. Thus, where the party seeking a new trial does not object to allegedly improper argument by opposing counsel, opposing counsel’s statements can still serve as the basis for a new trial if, in the trial court’s opinion, those statements are “grossly improper and highly prejudicial.” Southern Life & Health, 518 So.2d at 81. In this case, Whitfield did not object to any part of the closing argument by BMC’s counsel. Thus, counsel’s remarks during closing argument can form the basis for a new trial only if the trial court properly concluded that the remarks were grossly improper and highly prejudicial. We proceed to consider whether the trial court plainly and palpably erred in reaching that conclusion.

Whether argument of counsel is grossly improper or highly prejudicial is a fact-specific inquiry. This Court has explained:

“There is no hard and fast rule as to when a remark made by counsel in closing argument is deemed to be so grossly improper and highly prejudicial as to be ineradicable from the minds of the jurors, notwithstanding a timely admonition from the trial judge. Each case must be decided in light of the peculiar facts and circumstances involved, and the atmosphere created, in the trial of each particular case.”

Hill, 488 So.2d at 1359. Moreover, although it is not without bounds, “the trial court has great latitude in ruling on the propriety of an attorney’s ... closing argument.” Hayden v. Elam, 739 So.2d 1088, 1093 (Ala.1999) (citing Prescott v. Martin, 331 So.2d 240 (Ala.1976)). The facts and circumstances in this case indicate that, under the applicable standard of review, the trial court’s grant of Whitfield’s motion for a new trial does not warrant a reversal because BMC has failed to show that the trial court’s decision constituted plain and palpable error. Curtis, 575 So.2d at 1065-66.

The remarks by BMC’s counsel during closing argument indicated that Dr. Pennington and Whitfield had made a “deal”— Whitfield would drop her claims against Dr. Pennington’s practice group if Dr. Pennington would provide negative testimony against BMC. BMC’s counsel further stated that Whitfield dismissed Dr. Pennington’s practice group as a defendant because Whitfield wanted to concentrate her efforts on her claims against BMC, because “it’s easier for [the jury] to bring a verdict back — $7.5 million — against a hospital, a corporation, than it is a doctor.” BMC’s counsel argued that Whitfield wanted to focus on recovering from BMC, a corporation, which had more money than Dr. Pennington’s practice group.

This Court has found similar arguments pertaining to the corporate nature of an entity and its resources to be grossly improper and highly prejudicial. In Otis Elevator, this Court found the following argument by counsel for the plaintiff to be an improper comment on the wealth of the defendant: “ ‘The same company that can afford to hire [an expert witness from New York] to come in and testify for Otis and against a hundred people who have been hurt on Otis elevators in the last four years, that’s the company that’s going to have to pay this judgment.’ ” 474 So.2d at 83. This Court held the following remark in Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 446, 268 So.2d 725, 727 (1972), to be highly prejudicial: “ ‘It’s a great thing, folks, to be a very wealthy man and to be able to go out here and hire two law firms with four lawyers.’ ” Plaintiffs counsel in Southern Life & Health stated the following with regard to the defendant corporation: “ ‘A corporation ... is a legal entity ..., but it’s not a human being. It has no conscience. The only way you can punish a corporation is through monetary damages.’” 518 So.2d at 80. This Court noted that plaintiffs counsel’s argument “was improper, highly prejudicial, and irrelevant to the issues.” Southern Life & Health, 518 So.2d at 81.

This Court also affirmed the trial court’s grant of a motion for a new trial grounded on improper argument in a negligence action against multiple defendants, some of whom were individuals and one of which was a car dealership. Taylor v. Brownell-O’Hear Pontiac Co., 265 Ala. 468, 91 So.2d 828 (1957). Commenting on the dismissal of Ritchie, one of the individual defendants, plaintiffs counsel stated in his closing argument that ‘“[w]e have also dismissed as to Mr. Ritchie. We don’t want to penalize Mr. Ritchie. We are after somebody that can pay,’ ” referring to the car dealership. Taylor, 265 Ala. at 469, 91 So.2d at 828. The Court concluded that such remarks “were ... well calculated to influence the amount of the jury’s verdict.” Taylor, 265 Ala. at 469, 91 So.2d at 829. Similarly, in American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507 (1927), this Court found the following to constitute improper argument by counsel:

“‘“We are asking simply for justice which this boy is entitled to. And we are going to insist that he is entitled to some good round sum. It doesn’t make any difference to the American Express Company, this defendant. What difference does it make to them what your verdict in this case is?” ’ ”

216 Ala. at 484,113 So. at 510.

In the case before us, by alluding to the relative financial resources of BMC and the fact that BMC is a corporation, BMC’s counsel essentially attributed to Whitfield improper arguments and made statements similarly calculated to prejudice the jury against Whitfield. Thus, we cannot conclude that the trial court’s finding that the arguments of BMC’s counsel were grossly improper and highly prejudicial is plainly and palpably wrong.

In addition, the arguments by BMC’s counsel were not based on a reasonable inference from the evidence presented at trial. This Court has noted that “counsel may comment on all proper inferences to be drawn from the evidence and may draw conclusions by way of argument based on the evidence.” Salser v. K.I.W.I., S.A., 591 So.2d 454, 457 (Ala.1991). BMC argues that its remarks concerning the change in Dr. Pennington’s opinion as to Thelbert’s cause of death were similar to the statements made by defense counsel in Seaboard Coast Line R.R. v. Moore, 479 So.2d 1131 (Ala.1985). In Seaboard, this Court found that defense counsel’s implication in closing argument that the plaintiff had persuaded a witness to change his testimony did not constitute error because there was testimony that the witness’s trial testimony was inconsistent with the version of the events he had presented to the defendant before trial. Seaboard, 479 So.2d at 1136. The facts in this case are distinguishable from those in Seaboard, however, because Dr. Pennington’s deposition testimony and subsequent trial testimony were consistent; thus, the rationale of Seaboard does not apply.

The argument by BMC’s counsel that Dr. Pennington had entered into some sort of a “deal” with Whitfield pursuant to which he would provide testimony against BMC in exchange for his practice group’s being dismissed from the action is not a proper inference that can be drawn from the evidence. BMC’s counsel stated in closing arguments that Whitfield’s “deal” with Dr. Pennington to change his testimony so that it would be damaging to BMC was “consummated” on March 7, 2005, the day before trial was set to begin. However, evidence presented by Whitfield at trial showed that Dr. Pennington’s trial testimony as to the cause of Whitfield’s death did not change and that his trial testimony was consistent with the statements he had made in his deposition in April 2004, when his group was still a defendant in the litigation. BMC does not provide evidence to the contrary. Dr. Pennington testified at trial that Thelbert’s “getting up out of bed, pulling out of his lines, having his blood pressure drop, the heart rate drop, getting in the trash can, and having this bowel movement — those probably led to the arrest, the cardiac arrest at that time.” After providing that testimony, Dr. Pennington read the following exchange directly from the transcript of his deposition:

“[Whitfield’s counsel]: Dr. Pennington, looking at the totality of the circumstances, isn’t it probable that getting up out of bed, pulling the NG tube out, pulling the I.V. line out, that those were probably related to the [cardiac] arrest?
“[Dr. Pennington]: Yes.
“[Whitfield’s counsel]: Okay. Why would that be true?
“[Dr. Pennington]: Well, because of the relative — I presume, the relative hy-povolemia, the underlying coronary artery disease, assuming the upright position, having a bowel movement, all of those could have combined to lower the perfusion, limit the perfusion of his heart, and caused a fatal arrhythmia or heart attack.”

Dr. Pennington’s testimony at trial as to the cause of Thelbert’s death was consistent with his deposition testimony. The evidence does not support the inference that Whitfield’s dismissal of Dr. Pennington’s group from the action on the eve of trial was motivated by a desire to secure damaging testimony against BMC from Dr. Pennington — Whitfield did not need Dr. Pennington’s trial testimony because she had already obtained damaging statements against BMC from Dr. Pennington during his deposition, and she could have introduced his deposition testimony into evidence if Dr. Pennington had testified differently at trial.

In reviewing whether BMC’s counsel’s statements constitute improper arguments, we accord a presumption of correctness to the trial court’s findings. Salser, 591 So.2d at 457. We cannot conclude that the trial court was plainly and palpably wrong in granting Whitfield’s motion for a new trial because the statements by BMC’s counsel regarding the corporate nature of BMC constitutes improper argument and his reference to Whitfield’s alleged “deal” to obtain Dr. Pennington’s testimony against BMC was not a reasonable inference based on the evidence presented at trial.

The standard of review applicable to the trial court’s grant of a motion for a new trial on the basis of improper argument by counsel requires us to affirm the trial court’s ruling “ ‘unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.’ ” Curtis, 575 So.2d at 1066 (quoting Kane, 543 So.2d at 694). BMC does not demonstrate that any of its legal rights were abused, and the record does not support a finding that the trial court was plainly and palpably wrong in finding defense counsel’s remarks in closing arguments improper and in granting Whitfield’s motion for a new trial on that ground. As we have stated before, “since the trial court is present at the time when the argument is made, the trial court has great latitude in ruling on the propriety of counsel’s arguments.... In particular, in passing on the question of ineradicable bias much should be left to the enlightened judgment of the trial court, with the usual presumptions in favor of the ruling made to that end.” Calvert & Marsh Coal Co., 393 So.2d at 959 (citing Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So.2d 402 (1949), and Pacific Mut. Life Ins. Co. v. Green, 232 Ala. 50, 166 So. 696 (1936)). In light of the presumption of correctness accorded to the trial court’s ruling on a motion for a new trial and based on the facts and circumstances in this case,- we cannot find that the trial court committed plain and palpable error.

Conclusion

BMC does not demonstrate that the trial court’s grant of Whitfield’s motion for a new trial encroached upon any of BMC’s legal rights and that its ruling is plainly and palpably in error. Therefore, the trial court’s judgment is affirmed.

AFFIRMED.

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

      . We note that during direct examination of Dr. Pennington, Whitfield’s attorney voluntarily raised the issue of the purported "deal,” asking Dr. Pennington whether BMC’s allegations were true and whether he had received anything in return for his testimony at trial, to which Dr. Pennington responded that the allegations were not true. Whitfield’s attorney made that' statement in response to the opening statement by BMC’s counsel and in anticipation of cross-examination. The fact that Whitfield’s attorney raised the issue of the deal during direct examination does not prohibit the trial court from evaluating whether the remarks by BMC’s counsel were grossly improper and highly prejudicial “in light of the peculiar facts and circumstances involved, and the atmosphere created, in the trial of each particular case.” Hill, 488 So.2d at 1359.

      . The closing argument by BMC’s counsel misstates the nature of Whitfield's claims against Dr. Pennington by implying that Whitfield had made a deal to dismiss Dr. Pennington as an individual defendant from the case. Dr. Pennington was never named an individual defendant in this case; Whitfield sued Dr. Pennington's practice group, not Dr. Pennington individually.

      . We note that Dr. Pennington’s practice group, Montclair Surgical Associates, P.C., is also a corporation. BMC’s counsel misstated that Whitfield’s claims against Dr. Pennington were brought against him in his individual capacity, when, in fact, her claims were brought against Montclair Surgical Associates, P.C.

      .The defendant's objection to the argument was sustained, but its motion for a new trial, grounded in part on improper argument, was denied. This Court found that the trial court's denial of the motion for a new trial was not unjust and plainly erroneous because the trial court had sustained the defendant's objection to plaintiff's counsel's improper argument and offered to give the jury curative instructions. 518 So.2d at 81-82. However, it noted that an adverse ruling on the defendant's objection "would have required us to reverse and remand.” 518 So.2d at 81.

      . BMC’s arguments of inconsistency focus on the alleged change in Dr. Pennington's opinion as to Thelbert’s cause of death from the time he signed Thelbert’s death certificate to the time he was deposed. BMC does not argue that Dr. Pennington’s deposition testimony is inconsistent with his trial testimony.


author: NABERS, Chief Justice.

text:
    Jana Howard CAREY et al. John R. HOWARD, Sr., et al. John R. Howard, Sr., et al. Jana Howard Carey et al.
    1040518 and 1040532.
    Supreme Court of Alabama.
    April 28, 2006.
    Rehearing Denied Aug. 11, 2006.

      Julian D. Butler, J. Sanford Mullins III, and Peter M. Wright of Sirote & Permutt, P.C., Huntsville, and Sirote & Permutt, P.C., Birmingham, for appellants/cross-ap-pellees Jana Howard Carey et al.
    Stephen Ralph Windom, Montgomery; and Richard J.R. Raleigh, Jr., S. Dagnal Rowe, and Clint L. Maze of Wilmer & Lee, P.A., Huntsville, for appellees/cross-appel-lants John R. Howard, Sr., et al.
   NABERS, Chief Justice.

Jana Howard Carey sued her brother, John R. Howard, Sr., other relatives, and a family-owned limited-liability company in the Madison Circuit Court, seeking a declaratory judgment regarding the validity of an option contract for the sale of land and seeking a sale of certain lands owned by John, Jana, and other members of their family for a division of the proceeds. Jana, Beth Howard Bailey, John Newell Bailey II, and Bo Randall Bailey (hereinafter referred to collectively as “the Carey litigants”) appeal from a partial summary judgment in favor of John, John R. Howard, Jr., and Benjamin Jamison Howard (hereinafter referred to collectively as “the Howard litigants”) on the declaratory-judgment count. John, John R. Howard, Jr., and Benjamin Jamison Howard have filed a cross-appeal, contending that the trial court erred in denying their motion for a partial summary judgment predicated upon their contention that the Carey litigants lacked standing to file the declaratory-judgment action.

I. Factual Background and Proceedings Below

Jana Howard Carey, John R. Howard, Sr., Beth Howard Bailey, and Susan Howard. Miller are the surviving children of Ernest R. “Bo” Howard and Mary Regna B. Howard (“Mrs. Howard”). Bo Howard died intestate in 1986. Probate of his estate ultimately resulted in a division among his widow and surviving children of substantial properties located in Alabama and Tennessee. After final settlement of Bo Howard’s estate on May 11, 1994, Mrs. Howard retained undivided ownership of approximately 58.4% of what shall be referred to hereinafter as the “Alabama property.” Her four children received, in equal 10.4% shares, an undivided interest in the remaining 41.6% of the Alabama property.

On October 3, 1994, Mrs. Howard entered into an option agreement with her son, John; that agreement provided that after Mrs. Howard’s death John could purchase Mrs. Howard’s undivided interest in the Alabama property for $1,200 per acre for a period of 12 months from the date her will was duly admitted to probate. The payment terms provided that John tender to the record owner of the property an unsecured promissory note, payable without interest for a period of 10 years, in 10 equal installments, with the first installment due one year from the date the option was exercised. There was to be no prepayment penalty. The day after Mrs. Howard and John entered into the option agreement, Mrs. Howard, John, and Susan formed Howard Farms, LLC (an Alabama limited-liability company, hereinafter referred to as “the LLC”). Ownership of the LLC was held in 100 “units,” with Mrs. Howard owning 98 of those units, and John and Susan each owning 1 unit.

On October 24, 1994, Mrs. Howard executed a deed conveying her interest in the Alabama property to the LLC. This conveyance was expressly subject to the option agreement between Mrs. Howard and John. Mrs. Howard thereafter made periodic transfers of her units in the LLC to her children and grandchildren so that by January 1, 1999, she no longer held any units in the LLC. Upon completion of Mrs. Howard’s transfers, Jana, Beth, and Susan each owned 18.35 units of the LLC; John owned 18.85 units. Mrs. Howard’s grandchildren, directly or through trusts established for their benefit, owned the remaining 26.1 units.

On February 23, 2002, pursuant to Rule 27(a), Ala. R. Civ. P., the Howard litigants filed a petition for discovery in the Madison Circuit Court. They sought to preserve testimony regarding Mrs. Howard’s capacity to execute the option agreement and her will. On May 26, 2004, the Carey litigants filed in the Madison Circuit Court a petition for a declaratory judgment as to the validity of the option agreement and seeking a sale of the Alabama property for a division of the proceeds.

The trial court consolidated the Howard litigants’ Rule 27(a) discovery petition and the Carey litigants’ petition on June 10, 2004. Both the Howard litigants and the Carey litigants moved for a partial summary judgment on the question of the validity of the option agreement; the Howard litigants also alleged that the Carey litigants did not have standing to maintain their declaratory-judgment action. On October 15, 2004, the trial court heard arguments on their motions. By order entered December 3, 2004, the trial court granted in part the Howard litigants’ motion for a partial summary judgment (holding that the option contract was valid and enforceable) and denied in part their motion for a partial summary judgment (holding that the Carey litigants had standing to maintain their claim for declaratory relief). The Carey litigants filed a timely notice of appeal from the order granting the Howard litigants’ motion for a partial summary judgment; the Howard litigants filed a timely cross-appeal from the order denying their motion for a partial summary judgment as to the Carey litigants’ standing to seek declaratory relief.

The record shows that the Howard litigants raised the standing issue as an affirmative defense in the trial court. The standing issue is properly before this Court on the Howard litigants’ cross-appeal.

II. Standard of Review

Before we can consider the Carey litigants’ declaratory-judgment action, we must first decide the standing issue raised by the Howard litigants. The parties agree that this Court’s standard of review is de novo. This Court uses the same standard of review as that used by the trial court, and the record will be reviewed in a light most favorable to the Carey litigants as the nonmoving party on the Howard litigants’ motion for a summary judgment predicated on the Carey litigants’ alleged lack of standing, and all reasonable doubts will be resolved in favor of the nonmoving party. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986); and Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988).

III. Analysis

“[D]eclaratory-judgment actions are designed to set controversies to rest before they lead to repudiation of obligations, invasion of rights, and the commission of wrongs.” Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala.2003). Although declaratory-judgment actions are designed to be preemptive, “ ‘[t]here must be a bona fide justiciable controversy in order to grant declaratory relief.’” Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1182 (Ala.2006) (quoting Durham v. Community Bank of Marshall County, 584 So.2d 834, 835 (Ala.1991)). An essential component of justiciability is whether the plaintiff has standing to sue, Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164, 166 (Ala.2002), and standing turns on whether the party has suffered an actual injury and whether that injury is to a legally protected right. Town, of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004). Consequently, before we can consider the merits of the Carey litigants’ declaratory-judgment action, we must first decide if they have standing to seek declaratory relief. Because we conclude that they do not, we do not address the other issues presented.

Section 6-6-223, Ala.Code.1975, a part of the Declaratory Judgment Act, provides:

“Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.”

Under the plain language of. the statute, therefore, the Carey litigants have standing to seek declaratory relief relating to the option agreement only if they are “interested under” or if their “rights, status, or other legal relations are affected by” the option agreement.

The Carey litigants assert that they satisfy these requirements in two respects. First, they contend that their interests as members of the LLC are adversely affected by the option agreement because, they allege, it allows John to purchase the Alabama property, which is currently held by the LLC, at a price well below its fair market value. Second, the Carey litigants contend that their undivided individual interests in the property, which are not subject to the option agreement, are also adversely affected by the fact that John has the option to purchase a large portion of the remaining undivided property at a discount price. Neither of these grounds, however, is sufficient to confer standing.

Under the provisions of the Alabama Limited Liability Company Act, § 10-12-1 et seq., Ala.Code 1975, “[a]ny estate in real property may be acquired in the name of the limited liability company and title to any estate so acquired shall vest in the limited liability company itself rather than in the members individually.” § 10-12-23(a), Ala.Code 1975. As members of the LLC, therefore, the Carey litigants have “no interest in specific limited liability company property.” § 10-12-23(b), Ala.Code 1975 (emphasis added). As a result, the Carey litigants cannot rely on any potential diminution in the value of the property owned by the LLC to confer standing to them because they seek declaratory relief in their own names and in their individual capacities.

To the extent the injury the Carey litigants allege they will suffer if John is permitted to exercise his option is an actual injury, therefore, it is not to the rights the Carey litigants have as members of the LLC. Instead, it is an injury to the LLC— the owner of the property subject to the option — and any right to bring a declaratory-judgment action with respect to that injury rests with the LLC. As members, the Carey litigants are not proper parties to any proceedings brought by that entity. § 10-12-18, Ala.Code 1975. We note that if for some reason the management of the LLC is reluctant to seek a remedy for this alleged injury and the Carey litigants believe the LLC’s rights are adversely affected, they have the right as members to explore the possibility of seeking relief through a derivative action. See § 10-12-25, Ala.Code 1975.

Although we recognize that the provisions of the Declaratory Judgment Act are to be “liberally construed and administered,” § 6-6-221, Ala.Code 1975, we cannot construe them so broadly as to find that the Carey litigants have standing to sue for declaratory relief as individuals for an alleged injury to property owned by the LLC, of which they are members. To do so would effectively eviscerate § 10-12-23(a) and (b) and § 10-12-18 of the Alabama Limited Liability Company Act. The directory language of § 6-6-221, Ala.Code 1975, does not require such an untenable result.

Because the Carey litigants seek declaratory relief in their individual capacities, their standing to sue hinges on their allegation of individual injury. Although their individual interests in the undivided property are not subject to the option agreement, they contend, nevertheless, that the option agreement adversely affects their interests by allowing John the right to purchase a substantial portion of the undivided property at, what they contend, is “a bargain basement price.” The Carey litigants, however, have not explained this claim with particularity. Instead, they simply contend that their rights in their interests in the Alabama property “will be diminished” if the option agreement is allowed to stand. We cannot see how this is the case.

As tenants in common, the Carey litigants’ right to possess and use the property is coextensive with that of their cotenants. See Ruffin v. Crowell, 253 Ala. 653, 657, 46 So.2d 218, 221 (1950) (“Tenants in common hold by several and distinct title, but by unity of possession.”). Nothing in the option agreement diminishes this right, nor could it. The Carey litigants’ individual interests in the Alabama property are simply unaffected by the option agreement; thus, they cannot rely on an alleged injury to their interests to challenge the validity of the option agreement through this declaratory-judgment action.

The Carey litigants’ reliance on Roberts v. Pearce Construction Co., 624 So.2d 1009 (Ala.1993), to support their claim that they are adversely affected by the option agreement is misplaced. In Roberts, Pearce Construction Company, a mortgagee that had taken title to a condominium building by a deed in lieu of foreclosure, sought a declaration of how its rights under the deed were affected by a contract between the mortgagor, Madison Square Town-homes (“MST”), and an unrelated creditor, R & L Excavating, Inc. During the construction of the building, R & L had performed excavation work for MST. Because of its financial difficulties, however, MST became unable to pay the full contract price for the work after it was performed. Because MST could not meet its obligation to R & L with cash, MST agreed to sell a unit in the condominium to R & L’s president, William Roberts, on the condition that he pay $500 down and agree to pay the full purchase price of the unit after MST paid its debt to R & L. MST was never able to pay its debt.

Thereafter, MST executed a deed in lieu of foreclosure to the entire condominium complex to Pearce Construction. Pearce Construction did not assume the MST-R & L contract and demanded that Roberts vacate the condominium or pay the purchase price. Roberts refused, and Pearce Construction brought an action seeking a declaration of its rights to the disputed condominium.

Relevant to this case, on appeal Roberts asserted that Pearce Construction lacked standing to bring the declaratory-judgment action with respect to his sales contract with MST because MST had not assigned the sales contract between it and Roberts to Pearce Construction. We concluded that this fact was not dispositive of the standing issue. Because Pearce Construction had given “valuable consideration in exchange for a fee simple title to the premises” and had “declined to assume the debt owed by MST to R & L,” we held that “[Pearce Construction’s] rights to the condominium [were] clearly affected by the Roberts-MST contract.” 624 So.2d at 1011. The Roberts-MST contract directly conflicted with the rights asserted by Pearce Construction under its deed to the condominium complex. As a result, “Pearce [Construction had] standing to bring an action to determine its rights to the condominium.” Id.

Unlike Pearce Construction in Roberts, the Carey litigants have.failed to demonstrate how their membership rights in the LLC or their individual property rights are affected at all by the option agreement. Roberts, therefore, is distinguishable and does not support the Carey litigants’ claim that they have standing to seek declaratory relief in this case.

IV. Conclusion

“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction,” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025,1028 (Ala.1999), and “[t]he absence of subject-matter jurisdiction renders void any judgment entered in the action.” Moore v. John Hancock Life Ins. Co., 876 So.2d 443, 448 (Ala.2003). Because the Carey litigants lacked standing to seek declaratory relief in their individual capacities, the trial court’s partial summary judgments entered in this action — holding that the Carey litigants had standing and that the option agreement was valid — are void. Those judgments, therefore, must be vacated and these appeals dismissed because a void judgment will not support an appeal. See Moore, 876 So.2d at 448.

JUDGMENTS VACATED; APPEALS DISMISSED.

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

      . The proceedings below involved all of the children and grandchildren of Mary Regna B. Howard, one of the original owners of the real estate at issue in this appeal. As the proceedings progressed, some of those parties requested to be realigned. Additionally, many of the grandchildren were minors at the inception of the litigation, and their interests were held in one or more trusts. Some of those minors reached majority before or during the pendency of these proceedings and were then substituted for their trusts as parties in interest.

      .The trial court certified the order denying in part the Howard litigants' motion for a summary judgment for interlocutory appeal pursuant to Rule 5, Ala. R.App. P. Thereafter, the Howard litigants did not file a petition for permissive appeal with this Court as required by Rule 5, but rather asserted their claim as a cross-appeal. The certification of the standing question for permissive appeal by the trial court was unnecessary, and the failure to present the issue so certified in a petition,for permission to appeal pursuant to Rule 5, Ala. R.App. P., is not fatal to our consideration of the standing issue. The trial court also certified the partial summary judgment for the Carey litigants as final pursuant to Rule 54(b), Ala. R. Civ. P.

      . The Tennessee property is not involved in this litigation. The Alabama property is farmland and is maintained as a single, undivided unit consisting of more than 1,200 acres.

      . The Carey litigants contend they did not learn of these transfers until some time after the last of the transfers. Resolution of this disputed issue of fact is not essential to a determination of the issue before us.

      . The count of the Carey litigants' complaint seeking a sale of the property for a division of the proceeds was not decided by the trial court and is not an issue in this appeal. Similarly, the trial court did not decide any issues presented by the Howard litigants' action seeking prelitigation discovery and preservation of testimony relating to Mrs. Howard’s competency, so those matters are not before us in this appeal.

      . See note 2.

      . The Howard litigants contend that the Carey litigants did not raise this issue before the trial court; thus, they argue, the Carey litigants cannot rely on it to confer standing in this appeal. Our review of the record indicates that this aspect of the Carey litigants' standing argument, premised on their membership interests in the LLC, was presented to the trial court, at least by inference. Whether the explicit argument was presented, however, is of no consequence. "Standing represents a jurisdictional requirement which ré-mains open to review at all stages of the litigation.” National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). It is well settled that "jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

      . We assume for the purposes of this decision that the Carey litigants' claims are ripe for adjudication. The parties have not argued to the contrary. This Court has repeatedly held that a declaratory-judgment action is not available to adjudicate anticipatory rights. See, e.g., Exporte Bridges, 925 So.2d 189, 192 (Ala.2005); and White v. Frink, 274 Ala. 49, 51, 145 So.2d 435, 436 (1962).

      . The Carey litigants also rely on Jett v. Zink, 362 F.2d 723 (5th Cir.1966), a case that involved convoluted litigation regarding financing and operating certain oil and gas properties in Alabama. A detailed discussion of Jett is unnecessary because it does not support the Carey litigants’ standing argument. Relying on Jett, the Carey litigants contend that they have standing to challenge the option agreement because, • they. say, their rights to the Alabama property are "subject to” John’s rights under the option agreement. The Carey litigants’ individual ownership interests, however, are clearly not subject to John’s rights under the option agreement, and, as noted above, the Carey litigants cannot rely on their membership interests in the LLC to confer standing to seek declaratory relief in their individual capacities.


text:
    PROGRESSIVE SPECIALTY INSURANCE COMPANY v. Stephen NARAMORE, as the natural father and next friend of Hannah Naramore, a minor.
    1041892.
    Supreme Court of Alabama.
    July 21, 2006.
    Kenneth A. Hitson, Jr., and Michael Anthony Shaw of Nix, Holtsford, Gilliland, Higgins & Hitson, P.C., Daphne, for appellant.
    Frederick P. Gilmore of Gilmore Law Office, Grove Hill, for appellee.
   SEE, Justice.

Progressive Specialty Insurance Company appeals by permission, pursuant to Rule 5, Ala. RApp. P., from the trial court’s denial of its motion for a summary judgment. We answer the controlling questions of law presented by this appeal, reverse the trial court’s judgment, and render a judgment in favor .of Progressive.

Facts and Procedural History

On October 28, 2003, Tammy Weaver struck Hannah Naramore with her car while Hannah, a pedestrian, was attempting to cross a street. It is undisputed that Weaver was an underinsured motorist. Stephanie Naramore, Hannah’s mother, was the sole named insured on a Progressive automobile insurance policy. On July 8, 1999, when she was applying for the Progressive policy, Stephanie signed a form entitled “Rejection of Uninsured/Un-derinsured Motorist Coverage.” The form states in its entirety:

“I have been offered Uninsured/Un-derinsured Motorist Coverage up to an amount equal to the limits of the liability coverage and I reject the option to purchase any Uninsured/Underinsured Motorist Coverage. I understand that Uninsured/Underinsured motorist coverage would have protected me, my resident relatives, and occupants of a covered vehicle if any of us sustain bodily injury, including any resulting death, in an accident in which the owner or operator of a motor vehicle who is legally liable does not have insurance (an uninsured motorist) or does not have enough insurance (an underinsured motorist).
“I understand and agree that this rejection of Uninsured/Underinsured Motorist Coverage shall be binding on all persons insured under the policy, and that this rejection shall also apply to any renewal, reinstatement, substitute, amended, altered, modified, or replacement policy with this company or any affiliated company, unless a named in- ' sured submits a request to add the coverage and pays the additional premium.”

Stephanie’s signature is found below this text next to the words, “Signature of Insured-Applicant.”

Hannah was a minor at the time of the accident. Hannah’s father, Stephen Nara-more, as her natural father and next friend, sued Progressive, alleging that Hannah was entitled to recover uninsured/underinsured-motorist benefits under Stephanie’s policy with Progressive.

Progressive moved the trial court for a summary judgment; the trial court denied its motion. Progressive, under Rule 5, Ala. R.App. P., petitioned this Court for permission to appeal from the interlocutory order denying its summary-judgment motion. See Rule 5(a), Ala. R.App. P. We granted Progressive’s petition for permission to appeal.

Analysis

The trial court certified the following controlling questions of law as appropriate for review on this permissive appeal:

“(1) Whether or not a spouse can be considered a named insured when ‘named insured’ .is not defined by the policy but the spouse is not identified as a named insured on any documentation and, if not, then
“whether or not a husband can make a claim for uninsured/underinsured benefits on behalf of a child under an insurance policy, issued to his wife, in which the only named insured has explicitly rejected uninsured/underinsured motorist coverage.”

We answer both questions in the negative.

We answered a controlling question of law arising from a similar set of facts in Progressive Specialty Insurance Co. v. Green, 934 So.2d 364 (Ala.2006), and held in that case that “[a] spouse of a deceased person, who was not specifically named as an insured on the deceased person’s insurance policy, cannot receive uninsured-motorist benefits if the deceased, who was the sole named insured, expressly rejected uninsured-motorist benefits.”

The trial court certified the controlling questions of law in this case, and this Court granted Progressive permission to appeal the trial court’s interlocutory order before Green was decided. However, the parties submitted briefs to this Court after this Court released its opinion in Green. Our decision in Green effectively answers the first question, which was based on Stephen’s contention in the trial court that he should be considered a “named insured” even though he was not identified as a named insured in Stephanie’s Progressive policy. In Green, Judy Green, a widow, sued Progressive seeking uninsured/under-insured-motorist benefits under a Progressive policy listing her deceased husband, Dana Green, as the sole named insured. Dana Green was killed in a car accident. Before his death, he had explicitly rejected uninsured/underinsured-motorist coverage on a Progressive policy listing him as the sole named insured. Despite Dana’s rejection of uninsured/underinsured-motorist coverage, Judy sued Progressive, alleging that she was entitled to uninsured/underin-sured-motorist benefits. She argued that, although she was not explicitly listed as a named insured on the policy, because Dana’s insurance policy defined the phrase “you” and “your” to include the “named insured on the Declaration Page, and that person’s spouse” and employed the terms “you” and “your” throughout, Dana’s Progressive policy gave his spouse the same rights under the policy as the named insured. 934 So.2d at 366-67. One such right, she argued, was the right to reject uninsured-motorist coverage in writing, pursuant to Alabama’s uninsured-motorist statute. See § 32-7-23(a), Ala.Code 1975. She contended that, because she was a named insured under Dana’s policy and did not reject uninsured/underinsured-mo-torist coverage in writing, Dana’s rejection did not affect her rights to those benefits. We rejected Judy’s argument and held that “Dana’s Progressive policy unambiguously distinguishes the ‘named insured’ from the ‘named insured’s spouse,’ ” and concluded that, because Judy was not a “named insured” under his policy with Progressive, Dana’s rejection of uninsured/underinsured-motorist coverage was binding upon her as well. 934 So.2d at 367.

Stephen argues that he should be considered a named insured under Stephanie’s Progressive policy based on a slightly different rationale from the one advanced in Green. To support his argument, Stephen relies on the definition in Stephanie’s Progressive policy of “you and your” as “a person or persons shown as a named insured on the Declarations Page” and as “the spouse of a named insured if residing in the same household.” He contends that because Stephanie’s Progressive policy contains multiple references to “your application,” the policy’s definition of “your” means that he and Stephanie are both applicants and therefore “equal through the eyes of the policy.” Stephen’s brief, p. 7. Stephen argues (1) that if Stephanie is a named insured and he and Stephanie are equal in the eyes of the policy, both he and Stephanie should be considered named insureds, and (2) that because the signature line of the “Rejection of Uninsured/Underinsured Motorist Coverage” asks for the “Signature of Insured-Applicant,” and he is, he argues, an “insured-applicant,” both he and Stephanie had to sign the form to render it- effective. We disagree with both arguments.

The fact that the Progressive policy distinguishes the named insured from the named insured’s spouse in its definition of “you and your” shows that the two are different. See Green, 934 So.2d at 366-67. This distinction is underscored by the specific identification of Stephanie on the declarations page as the named insured and Stephen as a “listed driver.” “Insurance contracts are to be enforced as they are written, as long as there is no ambiguity in the provisions involved.” Watkins v. United States Fid. & Guar. Co., 656 So.2d 337, 339 (Ala.1994) (citing St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Ctr., 595 So.2d 1375, 1377 (Ala.1992)). We answer the first question in the negative; we hold that Stephen cannot be considered a named insured under the insurance policy by virtue of being the spouse of the named insured living in the same household.

The language of the “Rejection of Uninsured/Underinsured Motorist Coverage” undercuts Stephen’s second argument that both his and Stephanie’s signatures were required to render the rejection of uninsured/underinsured-motorist coverage effective and that, therefore, Stephen can claim such benefits on Hannah’s behalf. The “Rejection of Uninsured/Underin-sured Motorist Coverage” Stephanie signed provides: “I understand and agree that this rejection of Uninsured/Underin-sured Motorist Coverage shall be binding on all persons insured under the policy.” This Court has held:

“ ‘If the language contained in the contract is unambiguous, the policy must be enforced as written.
“ ‘In determining whether the language of a contract is ambiguous, courts construe the words according to “the interpretation ordinary men would place on the language used therein.” Quick v. State Farm Mutual [Automobile] Ins. Co., 429 So.2d 1030, 1033 (Ala.1983). The words are given the meaning that “persons with a usual and ordinary understanding” would place on the words. Cashatt v. State Farm Mutual [Automobile] Ins. Co., 510 So.2d 831, 833 (Ala. Civ.App.1987).’ ”

Liggans R.V. Ctr. v. John Deere Ins. Co., 575 So.2d 567, 569 (Ala.1991) (quoting the trial court’s order). The unambiguous and “ordinary understanding” of the language in the “Rejection of Uninsured/Underinsured Motorist Coverage” indicates that the policy does not require the signatures of all the insureds for a rejection of uninsured/underinsured-motorist coverage to be valid. It expressly states that “I [the signatory] understand and agree that this rejection ... shall be binding on all persons insured under the policy.” Thus, the signature of the sole named insured, Stephanie, who was applying for the insurance, was sufficient to decline uninsured/underinsured-motorist coverage under the Progressive policy.

In addition, Alabama’s uninsured-motorist statute, § 32-7-23(a), Ala. Code 1975, provides that “the named insured shall have the right to reject [uninsured/under-insured-motorist] coverage” in writing. Stephen was not a named insured; therefore, he did not have the right to reject the coverage. Thus, once Stephanie, as the sole named insured, rejected the uninsured/underinsured-motorist coverage, those benefits were no longer available to Stephen or to Hannah. See Green, 934 So.2d at 368; see also Nationwide Ins. Co. v. Nicholas, 868 So.2d 457, 460 (Ala.Civ. App.2003) (“The Uninsured Motorist Statute ‘lays down a rule of construction requiring courts to interpret all motor vehicle liability insurance policies as providing the statutory coverage unless an agreement to reject on the part of the named insured is in evidence.’ ” (quoting Insurance Co. of North America v. Thomas, 337 So.2d 365, 369 (Ala.Civ.App.1976))).

Therefore, we answer the second question in the negative; we hold that Stephen cannot, by relying on the fact that he did not sign the “Rejection of Uninsured/Un-derinsured Motorist Coverage,” make a claim for such benefits on Stephanie’s insurance policy on behalf of Hannah.

Conclusion

We answer in the negative both questions certified by the trial court as eontrol-ling questions of law. Because our answers effectively terminate this litigation, we reverse the trial court’s judgment and render a judgment in favor of Progressive.

REVERSED AND JUDGMENT RENDERED.

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

      . Stephanie’s Progressive policy defines "insured person” to include "any relative when struck by a motor vehicle of any type.”

      . Section 32-7-23(a), Ala.Code 1975, provides:
      "No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 32-7-6, under provisions approved by the Commissioner of Insurance for the protection of persons insured thereunder 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; provided, that the named insured shall have the right to reject such coverage...."

      . The definition of "you and your” in Stephanie's Progressive policy differs from the definition found in Dana's policy in Green.

      . We also note that neither Stephen nor Stephanie ever paid premiums for uninsured/un-derinsured-motorist coverage.

      . Stephen’s brief to this Court makes no reference to the Alabama uninsured-motorist statute, § 32-7-23(a), Ala.Code 1975, upon which his claim depends.