author: KING, C.J.,

text:
    Larry HUGGINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01052-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      Larry Huggins, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   KING, C.J.,

for the Court.

¶ 1. Larry Huggins was indicted on March 26, 1996 for the sale of cocaine. Huggins entered a guilty plea to this charge on April 2, 1998. On April 6, 1998, Huggins was sentenced to four years incarceration, and ordered to pay a fine in the amount of $5,000, with $4,000 suspended, plus court costs, for his crime. This sentence runs consecutive to a previous twenty year sentence imposed in an agreed revocation of probation.

¶ 2. On August 31, 1998, Huggins filed a motion for post-conviction relief on his cocaine charge. His motion was denied by the Lauderdale County Circuit Court on September 23, 1998. Huggins also filed a motion for post-conviction relief attacking his conviction and revocation of probation on February 11, 1999. The trial court denied Huggins’ motion on May 5, 1999. Huggins then filed a “Motion for Post-Conviction Relief for Sentence Reduction, Early Release, or to Amend Sentence for Concurrent Time” on August 11, 2004. The trial court found that this motion was time-barred and barred as a successive writ. Finding that Huggins’ motion asserted no grounds which would except the procedural bars, the trial court dismissed Huggins’ motion as frivolous, and ordered that sixty days of accrued earned time by Huggins be forfeited, pursuant to Mississippi Code Annotated § 47-5-138 (Rev. 2004). It is from the forfeiture of sixty days earned time that Huggins entered an in forma pauperis appeal. Finding no error in the trial court’s decision, we must affirm.

DISCUSSION

¶ 3. An inmate may forfeit all or part of his earned time allowance for a serious violation of the Mississippi Department of Correction Rules. Miss.Code Ann. § 47-5-138(2) (Rev.2004). Once forfeited, earned time may not be restored. Id. On receipt of one final order of a state or federal court dismissing an inmate’s frivolous, malicious, or therefore invalid lawsuit, the department shall forfeit sixty days of an inmate’s accrued earned time. Miss.Code Ann. § 47 — 5—138(3)(b)(i) (Supp. 2005).

¶ 4. A trial court’s conclusion that an inmate’s motion is frivolous is reviewed for abuse of discretion. Dock v. State, 802 So.2d 1051, 1056 (¶ 11) (Miss.2001). An appeal on a matter of law in an in forma pauperis ease is generally deemed frivolous where none of the legal points are arguable on their merits. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citing Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). We employ a three-part test in further determining whether an in forma pauperis case should proceed or be dismissed as frivolous: (1) does the complaint have a realistic chance of success; (2) does it present an arguably sound basis in fact and law; and (3) can complainant prove any set of facts that would warrant relief. Evans v. State, 725 So.2d 613, 679 (¶275) (Miss.1997).

¶ 5. We find no abuse of the trial court’s discretion in finding that Huggins’ motion lacks any sound legal argument. Instead, his motion is a plea to the court to release him because he is needed at home to care for an ill mother and to be a husband and father to his wife and children. Although Huggins’ motion does include affidavits from family members to support his claim, his argument is without legal merit, and does not have a realistic chance of success. Therefore, the court was justified in finding that Huggins’ motion was frivolous. This does not mean that Huggins’ argument itself is frivolous. However, because it lacks a legal foundation, it is legally frivolous.

¶ 6. Aside from his motion lacking legal standing, Huggins’ motion is also time-barred, and successive-writ barred. In cases of a guilty plea, all claims for post-conviction relief must be brought within three years of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2004). The only exceptions to this time bar are: (1) where there has been an intervening decision by the United States Supreme Court or the Mississippi Supreme Court, which the prisoner can show adversely affected the outcome of his conviction or sentence; (2) where the prisoner has newly discovered evidence which had it been introduced at trial would have caused a different result; and (3) where the prisoner claims that his sentence has expired or his probation, parole, or conditional release has been unlawfully revoked. Id. These same exceptions apply to successive motions. See Miss.Code Ann. § 99-39-23(6) (Supp.2004). Huggins’ motion failed to raise any of the applicable exceptions to overcome the time bar or the successive-writ bar. Therefore, the decision of the trial court dismissing Huggins’ motion is affirmed.

¶ 7. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DISMISSING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDER-DALE COUNTY.

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

      . For purposes of this subsection, "final order” means an order of a state or federal court that dismisses a lawsuit brought by an inmate while the inmate was in the custody of the Department of Corrections as frivolous, malicious or for failure to state a claim upon which relief could be granted. Miss.Code Ann. § 47-5-138(3)(a) (Rev.2004).


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Gary G. SIMS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02106-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      Daniel Kyle Robertson, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. During the fall of 2003, Shannon Nash told her husband, Billy Nash, that she and Gary Sims had been having an affair. While reconciling with her husband, Shannon attempted to end the affair. Although Billy Nash had never met Sims, he was familiar with Sims’s white Dodge Dakota pickup truck because after the affair ended, Shannon would occasionally spot the vehicle in traffic and point it out to Nash.

¶ 2. On the night of December 23, Sims waited in his truck outside the Lone Star Steakhouse in Hattiesburg where Nash worked as a manager. As Nash drove home, Sims followed him in his Dodge truck. Sims pulled his truck beside Nash’s vehicle and shot Nash in the face with a Winchester 12 gauge shotgun and drove away.

¶ 3. Dazed, Nash testified that he stopped his vehicle, looked in the mirror and began to pray. Realizing that he was only a few miles from his house, Nash drove himself home, where Sims sat parked on the driveway, fumbling inside his truck. As Nash stumbled from his vehicle, Sims shot at him again, striking the driver’s side door near Nash’s head. Screaming for his wife, Nash ran inside, while Sims fled in his truck. Sims soon abandoned the truck and fled on foot until he surrendered to deputies of the Jones County Sheriffs Department. Inside his truck investigators discovered the shotgun, another gun, and a shotgun shell. Sims made a videotaped confession at the sheriffs department.

¶ 4. As a result of the shooting, Nash sustained serious, permanent, disfiguring injuries to his face and has, to date, endured eight of a series of twelve operations.

¶ 5. Sims was convicted of a drive-by shooting and aggravated assault. For the drive-by shooting he was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections with five years suspended. Sims also received a sentence of twenty years with ten years suspended for the aggravated assault charge, with the sentence running consecutively to the sentence he received for the drive-by shooting.

¶ 6. It is from this conviction that Sims appeals, arguing five assignments of error which we have framed as follows: (1) whether the trial court erred in denying his motion for a continuance; (2) whether the sentence imposed is unconstitutional and excessive; (3) whether the trial court erred in admitting two gruesome photographs into evidence; (4) whether the trial court erred in failing to conduct a Rule 403 balancing test; and (5) whether it was error to allow the State to comment on Sims’s failure to testify and Sims’s lack of remorse during closing arguments.

¶ 7. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. “In reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery violations, the standard of review is abuse of discretion.” Montgomery v. State, 891 So.2d 179, 182(¶ 6) (Miss.2004).

I. DID THE TRIAL COURT ERR IN DENYING SIMS’S MOTION FOR A CONTINUANCE?

¶ 9. During trial, Deputy Jason Stricklin of the Jones County Sheriffs Department was called to testify. The State asked Stricklin if Sims made any spontaneous statements to him, and Kyle Robertson, one of Sims’s attorneys, objected, arguing that the defense had not been provided with “anything” from Deputy Stricklin. The State then moved on to another question without a response from Stricklin.

¶ 10. , When Robertson began to cross-examine Stricklin, he observed that Strick-lin was holding a report and commented on the record that the defense had not been provided with the report. Robertson requested some time to review the document, and the court dismissed the jury for lunch. The State noted that it, too, had not received any report from Stricklin.

¶ 11. After lunch, Sims requested a continuance due to the untimely disclosure of the report. The court inquired as to what information in the report necessitated a continuance, and Robertson replied as follows:

I’m telling you, Your Honor. They’re talking about the second shot, evidence of the second shot from where the bullet made a mark inside of the front door of the driver’s side window of the victim’s vehicle. This is the first time that’s been given to us as testimony that’s going to be provided. Up until this day I didn’t have anything in the discovery that informed the defense that there was any evidence of where the second shot landed. And at this time, you know, we move for a continuance on that fact.

¶ 12. The State argued that it had already provided the defense with pictures of the bullet hole, indicating where the second shot struck the vehicle, but reiterated that it was unaware of the content of the report Stricklin held. The court ruled that the defense had not presented anything contained in the report which would prejudice Sims and denied the continuance.

¶ 13. In support of Ms argument that the court improperly denied the continuance, Sims points to an exchange which occurred later in the trial during Investigator Matt Ishee’s testimony. Ishee testified that he went to the Nash home after receiving a dispatch from the sheriffs office. Robertson objected as follows:

Your Honor, I hate to keep jumping up and down, but I’m going to object to any of this testimony. There is no report from Matt Ishee. The only report — the only thing that I have from Matt Ishee is his involvement in a videotape. There is no report as to any investigation he might have performed up until the time the videotape was made. That’s the only involvement I know, as the defendant’s counselor, of Matt Ishee’s involvement in this case.

¶ 14. The State then ascertained that Ishee created the report and requested an opportumty to review the report, stating that it had furnished the defense with copies of all the reports in the State’s possession. The court then dismissed the jury. After reviewing the report, the State again noted that it had not received the report from the sheriffs office, but in the interest of time it would only question Ishee about his involvement in Sims’s confession.

¶ 15. Robertson again objected, reiterating that the State had failed to disclose the report. The court ruled that Ishee’s testimony would be limited to his involvement in Sims’s confession.

¶ 16. The procedure for addressing an alleged discovery violation was enunciated in Box v. State, 437 So.2d 19 (Miss.1983) (Robertson, J., specially concurring), and codified in URCCC 9.04 I., which provides as follows:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs, or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or a mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

¶ 17. For a discovery violation to constitute grounds for reversal, the following must be shown:

(a) that the State possessed evidence favorable to the defendant which the defendant did not have “nor could he obtain it himself with any reasonable diligence,” (b) that the State somehow suppressed the information, and (c) that, had it been disclosed, a different outcome to the case was at least a reasonable possibility.

McNair v. State, 814 So.2d 153, 157(¶ 13) (Miss.Ct.App.2001) (quoting King v. State, 656 So.2d 1168, 1174 (Miss.1995)).

¶ 18. We first note that we are unpersuaded by the State’s argument at trial that it had not received the report. It is well-settled law that for purposes of discovery violations “the State” is not limited to the district attorney’s office in the jurisdiction in which the crime is prosecuted. Indeed, “the State” extends to all law enforcement officials, including the district attorney’s office and “all other cooperating law enforcement officials—municipal, county, state or federal, the prosecution witnesses, and any other persons cooperating in the investigation and prosecution of the case.” King, 656 So.2d at 1174.

¶ 19. We address Investigator Ish-ee’s testimony first, finding that defense counsel failed to request a continuance. The failure to request a continuance constitutes a waiver of the discovery violation. Comby v. State, 901 So.2d 1282, 1287(¶ 12) (Miss.Ct.App.2004). Furthermore, the State agreed to limit the scope of its questions and only ask Ishee about his involvement in Sims’s confession. As the State declined to introduce either the report or evidence that Ishee was involved in the investigation, under URCCC 9.04 1(3), the trial court was under no obligation to grant a continuance had the defense properly requested one.

¶ 20. Regarding Stricklin’s testimony, the defense did request a continuance; however, the State did not attempt to admit the reports or the information contained therein. Sims has not shown reversible error in the State’s failure to tender the report; furthermore, because the State withdrew its efforts to introduce the information it failed to produce during discovery, we find no error in denying the motion for a continuance.

II. IS SIMS’S SENTENCE UNCONSTITUTIONAL AND EXCESSIVE?

¶ 21. Sims argues that the sentence imposed by the trial court is unconstitutionally disproportionate and excessive because Sims has no prior criminal history. We note that Sims failed to attack the constitutionality of his sentence at his sentencing hearing and in his motion for a new trial. As Sims did not present this issue to the trial court, it is procedurally barred from our consideration. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988).

¶ 22. Notwithstanding the procedural bar, we review this issue as a clarification of the burden the defendant bears in asserting that his sentence is unconstitutional. Sims concedes that “[sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Hoops v. State, 681 So.2d 521, 537 (Miss.1996). Sims argues that if a threshold comparison between the crime committed and the sentence imposed leads to an inference of “gross disproportionality,” this Court may review the sentence pursuant to the analysis of Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Our supreme court acknowledged that Solem’s three-step analysis applies “only when a threshold comparison of the crime committéd to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Hoops, 681 So.2d at 538 (citing Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.1996)). If the defendant makes such a showing, this court will consider the following factors in determining whether the sentence is disproportionate to the crime committed: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Fleming v. State, 604 So.2d 280, 302-03 (Miss.1992) (citing Solem, 463 U.S. at 292, 103 S.Ct. 3001).

¶ 23. Sims points to sentences received by defendants who have also been convicted of a drive-by shooting and compares Mississippi law to the laws of Alabama, Georgia and Louisiana; however, Sims has failed to make an initial showing that his sentence is grossly disproportionate to the crime he committed. In the absence of such a showing, we do not review the sentence under the Solem analysis. Williams v. State, 784 So.2d 230, 236(¶ 15) (Miss.Ct.App.2000).

¶ 24. Additionally, we disagree that sentences of thirty years and twenty years are disproportionate to Sims’s crimes. Sims fired a 12 gauge shotgun at Nash while both men were driving, jeopardizing himself, Nash, and any other persons on the road that night. Sims then ambushed Nash at home, where he attempted to shoot Nash again. Regarding the aggravated assault, it will suffice to say that Nash suffered a grievous injury to his face. As the trial court commented during sentencing, “I don’t think in all my years as a lawyer and as a judge that I’ve seen anything more dastardly and more threatening of somebody’s life than what was committed in this case.” Aside from being procedurally barred, this issue is wholly without merit.

III. DID THE TRIAL COURT ERR IN ADMITTING TWO PHOTOGRAPHS OF NASH’S INJURIES?

¶ 25. Sims argues that the court erred in admitting a photograph taken of Nash’s wound while he was being treated at the hospital; Sims also argues that the court erred in admitting a picture of the interior of Nash’s truck which depicted blood, shattered glass and Nash’s severed mouth and moustache. Sims argues that Nash’s injury was visible to the jury during his testimony and the pictures were unnecessarily gruesome. The State counters that the court acted within its discretion in admitting both of the photographs.

¶ 26. “[T]he admission or exclusion of evidence,, photographs in particular, is within the sound discretion of the .trial court and that decision, will be upheld unless there is an abuse of discretion.” Shabazz v. State, 729 So.2d 813, 823(¶ 28) (Miss.Ct.App.1998). Given such a deferential standard of review, we agree with- the State’s contention that the court properly admitted the evidence. The pictures presented an accurate representation of Sims’s injury, as well as the location of the assault and injury, and supplemented the testimonies of Nash, Deputy Stricklin and Dr. Robert Coleman, who treated Nash at the emergency room. The admission of photographs for these purposes is permissible. See Brown v. State, 690 So.2d 276, 289 (Miss.1996).

¶ 27. Sims further argues that such supplementation was unnecessary, as the jury was able to see the effect of Nash’s injury while he testified. Because the record does not contain a relevant depiction of Nash after the assault other than the pictures contested on appeal, we are unable to review this argument. We find no abuse of discretion in admitting the photographs.

IV. DID THE TRIAL COURT ERR . IN ADMITTING EVIDENCE OF ANOTHER GUN?

¶ 28. Deputy Stricklin testified that after he surrendered Sims to Deputies Ishee and Johnson he “found out that or learned that there was another firearm that seemed to have on [sic] his possession.” Defense counsel objected and requested a mistrial. The court instructed Stricklin not to talk about any other weapon and denied the motion.

¶ 29. Sims argues that the State improperly used this evidence to show that Sims had a propensity for violence. Sims argues that the court failed to conduct a balancing test pursuant to Mississippi Rules of Evidence Rule 403 and failed to issue a limiting instruction, and such errors merit reversal.

¶ 30. Mississippi Rule of Evidence 404(b) addresses evidence of other crimes, wrongs or acts as follows:

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

¶ 31. Rule 404(b) does not operate in isolation. Regarding its application our supreme court has held that, “[w]here proof of other crime or acts ... is offered into evidence pursuant to Rule 404(b), it is still subjected to the requirement that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Flowers v. State, 773 So.2d 309, 318(¶-25) (Miss.2000). Furthermore, Rule 403 is an “ultimate filter through which all otherwise admissible evidence must pass.” Jenkins v. State, 507 So.2d 89, 93 (Miss.1987).

¶ 32. Sims does not direct this Court to any precedent indicating that the contemporaneous possession of an extra gun during a shooting constitutes a prior bad act within the ambit of M.R.E. 404(b). Furthermore, our supreme court has previously held that such evidence is generally admissible.

[A]rticles ... found near the place or scene of crime or near the place where the defendant was arrested, have been admitted in evidence, (citation omitted). This is true even where it is not claimed nor proved that they were used in the commission of the alleged crime in cases where the evidence has probative weight, or where they constitute a part of the surrounding scene or picture....

Wilkins v. State, 264 So.2d 411, 413 (Miss.1972). As the presence of the gun is probative of Sims’s plan and preparation, and as the court instructed Stricklin not to testify about other weapons at the crime scene, we find no error.

¶ 33. Assuming for the sake of argument that testimony regarding the presence of the additional gun could be construed as prohibited by Rule 404(b), the failure to conduct a Rule 403 balancing test and issue a limiting instruction has previously been held as harmless error. See McKee v. State, 791 So.2d 804, 810(¶ 23) (Miss.2001); Sheppard v. State, 910 So.2d 1182, 1187(¶ 14) (Miss.Ct.App.2005); Brink v. State, 888 So.2d 437, 451(¶ 42) (Miss.Ct.App.2004). “An error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” McKee, 791 So.2d at 810(¶ 24) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 120 (Miss.1999)). “Where the prejudice from an erroneous admission of evidence dims in comparison to other overwhelming evidence, this Court has refused to reverse.” Carter v. State, 722 So.2d 1258, 1262(¶ 14) (Miss.1998).

¶ 34. Any error suffered was harmless, as the evidence of Sims’s guilt was overwhelming. Nash’s eyewitness testimony, the physical evidence from Sims’s truck and Nash’s vehicle, and Sims’s videotaped confession constitute overwhelming evidence of his guilt. This issue is without merit.

V. DID THE COURT ERR IN ITS RULING REGARDING COMMENTS BY THE STATE DURING CLOSING ARGUMENTS?

¶ 35. Sims argues that the court erred in overruling his objection to the following comment made by James R. Parrish on behalf of the State during closing arguments:

You know, I saw that guy sit there on that tape and go on about, you know, I was — what was the words he used? I was — oh, what was it? He said — I believe he said he was embarrassed or ashamed or he felt guilty. That’s what it was. He felt guilty about going to NA, Narcotics Anonymous, after he had been smoking cocaine all day. He felt guilty about something about the guy’s wife. But, you know, the only thing I never heard him say on the tape? He never one time said he felt guilty about shooting that guy in the face after he got off work Christmas Eve to go home to be with his wife and little three year old child. I never heard him to this time say he felt guilty about that. And you haven’t either because I don’t know whether he does or not. But he still hadn’t taken responsibility for — that.
Mr. Robertson: Objection, Your Honor.
Mr. Parrish: — that. I don’t know what he feels.
The Court: Just a minute, Mr. Parrish.
What’s your objection?
(Mr. Robertson approached the bench)
The Court: Overruled.

¶ 36. The record does not indicate on what grounds Robertson objected. We have previously held that it is the appellant’s duty to present an adequate record on appeal, that we may adequately and properly review the objection and the court’s ruling. See McKnight v. State, 738 So.2d 312, 316-17 (¶¶ 12-15) (Miss.Ct.App.1999). Notwithstanding the inadequacies of the record before us, we address this claim due to the obvious constitutional implications. See Scarbough v. State, 893 So.2d 265, 271(¶ 16) (Miss.Ct.App.2004).

¶ 37. Our supreme court has summarized the standard of review for closing arguments:

Attorneys have wide latitude in closing arguments. Notwithstanding the wide latitude afforded in closing arguments “[t]he standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice ... so as to result in a decision influenced by the prejudice so created.”

Foley v. State, 914 So.2d 677, 687(¶18) (Miss.2005) (quoting Eckman v. Moore, 876 So.2d 975, 994(¶73) (Miss.2004)). Furthermore, we note that “any alleged improper comment must be viewed in context, taking the circumstances of the case into consideration.” Id. The trial court is best situated to determine if such a remark results in prejudice. Id.

¶ 38. We find that the State’s comments were, at worst, commentary on Sims’s failure to advance a defense in the case. Our supreme court found no error in similar comments made by the State in Davis v. State, 660 So.2d 1228, 1254-55 (Miss.1995). During the closing arguments of the penalty phase of Davis’ trial, the State argued, “[the defendant] is the one that showed no compassion, but would send a lawyer up here and ask you for compassion. He is the one that we have never heard one single witness say he ever felt sorry for what he did.... ” The supreme court held that the statement was a permissible comment on the defendant’s failure to produce sufficient evidence of mitigating circumstances during penalty phase of his trial. Id.

¶ 39. Similarly, in the case sub judice the State was merely arguing that Sims failed to present a defense, which is distinguishable from commenting on Sims’s decision not to testify. See Scarbough, 893 So.2d at 271-72 (¶¶ 16-18). This issue is without merit.

¶ 40. THE JUDGMENT OP THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, DRIVE-BY SHOOTING, AND SENTENCE OF THIRTY YEARS WITH FIVE YEARS SUSPENDED AND TWENTY-FIVE YEARS TO SERVE DAY FOR DAY, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS WITH TEN YEARS SUSPENDED AND TEN YEARS TO SERVE TO RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I, AND REIMBURSE JONES COUNTY THE AMOUNT OF $750, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

      . The Court takes judicial notice that due to a scrivener’s error the record attributes the objection to the trial court and not defense counsel. Presuming the State did not request the mistrial, we credit the defense with having made the objection and the motion.


author: SOUTHWICK, J.,

text:
    James ALEXANDER and L.J. Newsome, Appellants v. John W. TAYLOR, Jr., Individually and in His Official Capacity as Chancery Clerk of Marshall County, Mississippi and USP & G Insurance Company, Appellees.
    No. 2005-CA-00680-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.

      David Fitzgerald Linzey, attorney for appellants.
    Sidney Ray Hill, Mark D. Herbert, Jackson, Adam Stone, Bradford Coleman Ray, attorneys for appellees.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. The plaintiffs brought suit seeking execution of tax deeds and for damages. The Marshall County Circuit Court granted the defendants’ motions to dismiss based on a one-year statute of limitations. We disagree that the one-year statute applies to all the claims, but applying the proper limitations periods to the various claims, we affirm.

ACTS

¶ 2. On August 30, 1994, Marshall County officials conducted a sale of parcels for which 1993 ad valorem taxes were delinquent. James Alexander and L.J. New-some purchased various tracts at that sale. It is undisputed that within the two years given for redemption from a tax sale, the back 1993 taxes, interest and penalties were paid on behalf of the prior owner on the tracts that Alexander and Newsome purchased. What has kept Alexander and Newsome in dispute with Marshall County for ten years is that prior to the redemption in 1996, these two tax sale purchasers on August 9, 1995, paid the 1994 ad valo-rem taxes on the parcels they had purchased the previous year. Alexander and Newsome base their insistence that tax deeds be executed to them on the fact that the chancery clerk, while collecting the money sufficient to redeem from the sale for unpaid 1993 taxes, did not also collect the amount of money, including substantial interest, needed to reimburse them for having paid the 1994 taxes. As will be discussed, a statutory change effective in March 1995 addressed a tax sale purchaser’s payment, prior to redemption, of the post-sale year’s taxes.

¶ 3. Soon after the two-year period of redemption from the August 1994 tax sale ended in August 1996, both purchasers met with Marshall County Chancery Clerk John Taylor, Jr., in order to demand tax deeds to these properties. Taylor informed them that the properties had been timely redeemed. The two tax sale purchasers made a written demand on the clerk for tax deeds to the property on December 4, 1996. Alexander, through counsel, made another written demand on October 14, 1998. The chancery clerk’s deposition asserts that the clerk always indicated that he disagreed that they were entitled to a tax deed. The plaintiffs do not allege that they were ever led to believe that a deed would be executed to them.

¶ 4. On July 14, 2000, Chancery Clerk Taylor notified the purchasers in writing that these properties had been redeemed. He attached a hand-written document listing the date of redemption but did not include any official record of the redemp-tions.

¶ 5. On June 15, 2001, the purchasers filed a suit with claims similar to those in the current one and also made claims under federal law, such as violations of their civil rights, equal protection, and due process. That first suit was filed in Hinds County Circuit Court, removed to the United States District Court for the Southern District of Mississippi, and transferred to the United States District Court for the Northern District of Mississippi. That court dismissed the federal claims on the merits and dismissed the state law claims for lack of jurisdiction.

¶ 6. On August 6, 2003, Alexander and Newsome filed the present action in Hinds County Circuit Court. Venue was transferred to Marshall County Circuit Court. Defendants Chancery Clerk Taylor and the United States Fidelity & Guaranty Company, which bonded Taylor, filed motions to dismiss for failure to state a claim upon which relief can be granted. Suit was dismissed on the basis that all claims were barred by a one-year statute of limitations.

¶ 7. In the trial court, notice was given under Civil Procedure Rule 25 that Chancery Clerk Taylor died on April 16, 2004. We do not discover any further reference by pleadings or order to his death. Under the civil rules, the successor to a public official sued in his official capacity is automatically substituted as a party. M.R.C.P. 25(d). The subsequent proceedings should be in the name of the successor, but a court may disregard a failure to use the substituted name absent an effect on substantial rights. Id., M.R.A.P. 43(c)(1). Taylor was sued both in his individual and official capacities. In light of our resolution of the case, the failure to follow the rule for substitution of a representative for Taylor in his individual capacity is at this stage of little consequence. The procedural rules should not be ignored, however.

DISCUSSION

1. Causes of Action

¶ 8. The trial court dismissed this suit on the basis that the statute of limitations applicable to suits under the Mississippi Torts Claims Act barred the action. What limitations statute or statutes apply is determined from an examination of the claims that are made.

¶ 9. The plaintiffs, Alexander and New-some, argue that the primary focus of this suit is to recover land. It is clear from the language in the complaint that a claim to gain title to land is made. In the alternative, the plaintiffs seek reimbursement for taxes and other expenditures on redeemed parcels. Further, there is a tort claim against Taylor for his alleged negligent acts, a claim that includes a demand for punitive damages. The plaintiffs argue that these claims stem from Taylor’s failure to follow proper procedures for redemption, specifically his failure to collect the money to reimburse the purchasers for the 1994 taxes and not just those for 1993.

¶ 10. The defense argues that all tort suits against the county and its officials are covered by the one-year statute of limitations. We are pointed to this part of the Tort Claims Act:

The [one-year] limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

Miss.Code Ann. § 11-46-11(3) (Rev.2002). It is self-evident that only those suits “subject to” the Tort Claims Act are controlled by that Act’s statute of limitations. Efforts to re-label tort suits as something else in order to avoid some part of the Act are ineffective, as this quoted language indicates. Yet that is not the same thing as a statutory assertion that there are no suits other than in tort that can be brought against governmental offices and officials.

¶ 11. The Mississippi Tort Claims Act followed a convoluted path that began with the Supreme Court’s abolishment of judicially-created sovereign immunity and a simultaneous invitation to the Legislature to adopt statutory rules. See Richard Smith-Monahan, Sovereign Immunity in Mississippi 1982 to 1995: A Practical Tool For Lawyers And Judges, 16 Miss. C.L.Rev. 215 (1995). Before this enactment, there were statutes that permitted suits on various kinds of claims against the state government and its subdivisions. E.g., Miss.Code Ann. § 11-45-1 (Rev.2002) (suits for money claims that are subject to audit by the State Auditor). Any suits formerly brought under those statutes in tort must now be filed under the Mississippi Torts Claims Act. However, these other statutes remain for actions that are not in tort.

¶ 12. Multiple claims governed by different statutes of limitations may be joined in one suit. In some situations, the proper trial court for some of the claims is different than the proper court for others. Jurisdiction concerning title to real property obtained through a tax sale is with the chancery court. Miss.Code Ann. § 11-17-1 (Rev.2004). Claims for damages arising in tort are for the circuit court. Miss.Code Ann. § 9-7-81 (Rev.2002). Since circuit courts have general jurisdiction, presenting equity claims in a circuit court is a better judicial fit than presenting legal claims in a chancery court. Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1182 (Miss.2004).

¶ 13. In the present litigation, claims at law for damages and in equity for recovery of land are raised. This suit properly merged those claims in circuit court.

¶ 14. The only defendants were the chancery clerk and his bonding company. For tort claims against the chancery clerk, these are proper parties. Seeking a mandamus to require a public official to perform a non-discretionary act must join that official who would receive the mandate. A suit trying to clear title to lands purchased at a tax sale must join all persons known to have an interest in the land. Miss.Code Ann. § 11-17-1 (Rev.2004). The plaintiffs here state that a suit to confirm their tax title could be brought only after a mandamus issues to have tax deeds delivered.

¶ 15. Regardless of what might be discerned as the primary purpose of the suit, each claim is separately examined in light of the statute of limitations applicable to it.

2. Relevant Statutes of Limitations:

A. Mississippi Tort Claims Act

¶ 16. The Mississippi Torts Claim Act has partially waived sovereign immunity for suits against the State, its political subdivisions and governmental officials, in which money damages are sought for torts committed by such defendants. Miss.Code Ann. § 11-46-5 (Rev.2002). Chancery Clerk Taylor was an official of a political subdivision of the State who was acting in the course and scope of his employment. Id. at § 11—46—1(f) (Supp.2005) (“employee” under Act). The alleged tort by the chancery clerk occurred, at the very latest, when the first demand for the tax deeds was made. A suit for damages in tort arising from the chancery clerk’s alleged acts or omissions was not filed until well after the one-year limitations period ran. Miss.Code Ann. § 11-46-11 (Rev.2002).

¶ 17. Alexander and Newsome argue that equitable estoppel protects their claim from being barred by the one-year statute of limitations. In order for the doctrine of equitable estoppel to apply here, there must have been inequitable or fraudulent conduct. Trosclair v. Miss. Dep’t. of Transp., 757 So.2d 178, 181 (Miss.2000). The plaintiffs argue that the chancery clerk did not timely respond to their demands for either a tax deed or reimbursement; no answer at all was given for an extended period of time; and the delay misled them. However, it is not alleged that at any stage the chancery clerk indicated he was going to have deeds executed or otherwise satisfy the plaintiffs’ demands. There is no factual basis on which even to begin an argument of fraudulent conduct. The plaintiffs did not exercise appropriate diligence in pursuing that part of their claim.

¶ 18. Tort claims against the chancery clerk and his bonding company are time-barred.

B. Obligation after redemption to reimburse purchaser at tax sale

¶ 19. The plaintiffs are correct that when these parcels were redeemed within the two-year period after the sale, the chancery clerk was to collect the amount of all taxes for which the land was sold, plus five percent of those taxes as damages, and interest. Miss.Code Ann. § 27-45-3 (Rev.2002). There is no dispute that these sums were collected. As already noted, there is a ten-year-running controversy because the chancery clerk did not also collect an amount to cover the ad valorem taxes that were due the year after the sale. That next year’s taxes were also paid by Alexander and Newsome prior to redemption. They demand reimbursement and interest. Since they did not receive the money, they demand tax deeds on the property.

¶20. There was statutory support for purchasers at tax sales to pay the next year’s taxes. Whether that support was knocked from beneath these plaintiffs pri- or to redemption is one of the issues in the case. At the time of the August 1994 tax sale, the relevant statutory language for the rights of the tax sale purchaser was this, the italicized part being repealed seven months later:

(1) The amount paid by the purchaser of land at any tax sale thereof for taxes, either state and county, levee or municipal, and five percentum on said amount, and interest on the amount paid by the purchaser at the rate of one percent per month, or any fractional part thereof, and all expenses of the sale and registration, and all sums paid for taxes on the land after its sale and purchase, and interest thereon at the rate of one percentum per month, or any fractional part thereof shall be a lien on the land in favor of the purchaser and the holder of the legal title under him, by descent or purchase, if the taxes for which the land was sold were due, although the sale was illegal on some other ground. The purchaser and the holder of the legal title under him by descent or purchase, may enforce the li'en by bill in chancery, and may obtain a decree for the sale of the land in default of payment of the amount within some short time to be fixed by the decree ....

Miss.Code Ann. § 27-45-27, as adopted 1932 Miss. Laws, ch. 286 (emphasis added).

¶21. When the 1995 amendment became effective, purchasers at tax sales lost the lien that they formerly would gain if they paid the taxes for the year subsequent to their purchase at a tax sale. Miss.Code Ann. § 27-45-27 (Rev.2002), as amended 1995 Miss. Laws ch. 468, § 16. The change was effective on March 27, 1995. 1995 Miss. Laws ch. 468, § 17. Also changed with the 1995 amendment was to increase the interest owed to 1.5 percent per month, and the five percent assessment was eliminated. Miss.Code Ann. § 27-45-27 (Rev.2002).

¶ 22. The statute just quoted viewed the tax sale issue from the perspective of the purchaser. Another statute addressed the amount of the payment that had to be made by the owner who had lost his land at a tax sale if he desired to redeem his property. Previously, the prior owner needed to pay the amount of taxes for which the land was sold, plus five percent of those taxes as damages, pay all costs of the sale, pay “all taxes and costs that have accrued on the land since the sale,” and also pay one percent per month on all the taxes and sale costs. Miss.Code Ann. § 27-45-3, as adopted 1932 Miss. Laws, ch. 286. With a 1995 amendment, the former owner no longer had to pay to the chancery clerk the subsequent year’s taxes, and the monthly interest on the taxes due at the time of the sale was increased to 1.5 percent. Miss.Code Ann. § 27-45-3 (Rev.2002), as amended 1995 Miss. Laws ch. 468, § 15. This section also was effective with passage on March 27,1995. 1995 Miss. Laws ch. 468, § 17. Alexander and Newsome paid the 1994 taxes on August 9, 1995.

¶ 23. This statutory change seems odd, but the chancery clerk may have suggested the reason for it in his deposition. Since taxes for the year after the sale are not paid to the chancery clerk but instead are given to the county tax collector, the chancery clerk is not the primary official with knowledge that subsequent taxes need to be collected at the time of redemption. That may not have been the reason for the change, but it is evident that the amendment abolished the chancery clerk’s obligation to collect later-paid taxes and the tax-sale purchaser’s lien.

¶ 24. The plaintiffs, Alexander and Newsome, do not deny that they were reimbursed what they paid at the time of the initial sale and for the interest. Those initial taxes for 1993 are not factually in issue. As to the 1994 taxes, the lower court did not concern itself with whether the chancery clerk should have collected any additional funds for them. The court also did not find relevant the legal issue of whether the payments on the 1994 taxes remained a lien on the property until the money was paid. Instead, the court ruled that the one-year statute of limitations for tort suits against governmental actors barred this claim too.

¶25. What should have been collected at the time of the redemption and the effect of the failure to pay Alexander and Newsome for the 1994 taxes are not tort issues. This is a claim that a public official failed to comply with one of his statutory duties, namely, to pay a debt owed by operation of the tax sale statutes and specifically those regarding redemption. The clerk was to deposit the funds obtained from the redemption and out of that deposit, pay Alexander and Newsome. Miss.Code Ann. § 27-45-5 (Rev.2002). On the evidence presently, no reimbursement occurred for the payments Alexander and Newsome made for 1994 taxes on the property they bought due to unpaid 1993 taxes. Failure to make required payments constitutes “misfeasance in office” and permits a suit against the clerk on his official bond. Id. A broader statute makes the chancery clerk’s bond responsible to “cover all [the clerk’s] official acts, and all moneys which may come into his hands according to law or by order of the court or chancellor.” Miss.Code Ann. § 9-5-131 (Rev.2002).

¶ 26. The suit against the clerk for failing to reimburse the tax sale purchaser after redemption is a suit on the clerk’s bond for failure to comply with a statutory duty. There is no specific statute of limitations for a suit to enforce one of a public official’s duties. We find relevant such precedents as one involving a claim by a purchaser, much like Alexander and New-some, who had bought a substantial number of tracts at a tax sale. Fiddle, Inc. v. Shannon, 834 So.2d 39 (Miss.2003). He later argued that due to his unilateral mistake, he had paid about $10,000 too much for the 113 parcels that he purchased that day. The Supreme Court said that the relevant statute of limitations on the claim against the county for reimbursement was the general three-year statute. Id. at 46-47. Another relevant precedent dealt with a claim by a sheriff after his elected term expired for unpaid salary and other entitlements. The Supreme Court declared that the general statute of limitations applied to the claim. Smith v. Copiah County, 232 Miss. 838, 844, 100 So.2d 614, 616 (1958). The 1958 case was decided long prior to the passage of the Mississippi Tort Claims Act, but Smith did not consider relevant the doctrine of sovereign immunity to which the Act creates exceptions. The Tort Claims Act would have been inapplicable in Smith and is here too.

¶ 27. Consistent with these precedents, we hold that the general limitations statute applies that requires suit to be brought within three-years of the claim. Miss.Code Ann. § 15-1-49 (Rev.2003). If the chancery clerk had an obligation to reimburse for the 1994 taxes, and we reach no conclusion as to that issue, the cause of action for failure to do so arose no later than the date that the payments to Alexander and Newsome were made and the absence of the remaining reimbursement became known. Redemption occurred no later than August 30, 1996, and the clerk paid Alexander and Newsome soon thereafter. Suit for the chancery clerk’s alleged failure to reimburse the plaintiffs for their payments at the tax sale had to be brought by the fall of 1999. That did not occur. This claim is also time-barred.

C. Mandamus for tax deeds

¶28. Finally, the plaintiffs seek deeds to the property that was purchased at the tax sale on the theory that the failure to collect for the 1994 taxes at the time of the redemption from the sale for 1993 taxes occurred was in effect no redemption at all. Perhaps within that issue as well is whether a lien for the 1994 taxes remains on the property, even if no tax deed must be executed.

¶29. Since in their characterization, this part of the litigation is a suit to recover land, plaintiffs allege that they had ten years in which to bring the action. Miss. Code Ann. § 15-1-7 (Rev.2003). We agree that if this were a suit to recover land or confirm their title, ten years is the appropriate time period. Had they received a tax title, the cause of action that Alexander and Newsome needed to pursue is a suit, unsurprisingly, under the statute for confirming tax title. Miss.Code Ann. § 11-17-1 (Rev.2004). To be joined in that suit is not the chancery clerk and his bonding company, but instead “all persons interested in the land” affected by the tax title. Id. The plaintiffs have not joined the present record fee simple title holders, the mortgagees, lessees, and others. Therefore, the issues of confirmation have not been joined in this litigation.

¶ 30. However, as Alexander and New-some themselves note, they have no formal evidence of tax title since the tax deeds were never executed to them. If in fact it is true that they could not without the tax deeds have brought a suit to confirm their tax title, then it is also true that the suit they have brought is not governed by a statute of limitations for suits in which title is the issue. For example, one statute controls the timing of suits when the tax sale purchaser has “actual occupation” of the land. Miss.Code Ann. § 15-1-15 (Rev. 2003). That is apparently not factually relevant here, but had it been, the statute requires suit to oust the tax sale purchaser within three years of the end of the period of redemption. If the tax sale purchaser gained good title at the time of the initial sale, and no valid redemption thereafter occurred, but the former owner and any grantees remained in possession, the limitation period for the purchaser to claim the land would be ten years. That is because the possession adverse to the tax title would need to continue for ten years. Miss.Code Ann. § 15-1-7 (Rev.2003). Alleged defects in the redemption, either in its actual occurrence or in the evidence of it, create other limitations issues.

¶ 31. Instead of being a suit to prove title, this part of Alexander and New-some’s action alleges that the chancery clerk failed to perform the ministerial act of executing the deeds to which they were entitled. Taking the plaintiffs’ legal assertions as true, executing the deed would not have been discretionary. Instead, the clerk would have been obligated to provide them tax deeds because he did not collect the extra year’s tax payments when redemption occurred. We have doubts that the former owners when redeeming, if they paid all that the chancery clerk required and received in return a release, would be at risk of losing title to their property because of this issue. We need not reach that point or remand for its consideration, because we resolve the issue on other grounds.

¶ 32. The remedy of mandamus which the plaintiffs here seek is a correct one when a tax deed is improperly withheld. Darby v. Hunt, 209 Miss. 738, 743, 48 So.2d 359, 361 (1950). In Darby, there was no effort to redeem. The reason tax deeds were not issued was because the list identifying the unredeemed land had not been given to the chancery clerk or recorded in the office of the chancery clerk, in part because of the expiration of the terms of the sheriff and tax collector who had been in office at the time of the sale. Id. The new clerk refused to issue a tax deed because no list of lands including the parcel in issue had been presented to him. The Supreme Court found that the absence of the list to be an irrelevancy and upheld the mandamus. Id.

¶ 33. Similar to our conclusion as to the issue of seeking reimbursement, the applicable statute of limitations to enforce through mandamus an official duty of executing a tax deed is three years. See ¶¶ 26-27. Alexander and Newsome waited too long after the 1996 redemption to bring their claim that the failure to collect all the money due them required the chancery clerk to deed the property.

Conclusion

¶ 34. The trial court determined that the entire suit was governed by the Mississippi Tort Claims Act and its one-year statute of limitations. We have disagreed, but we also hold that as to each claim, the different relevant statutes of limitation bar the suit.

¶ 35. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: GRIFFIS, J.,

text:
    James Harlon LONG, Appellant v. Diane B. LONG, Appellee.
    No. 2004-CA-01355-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Lee Davis Thames, Jr., Jackson, attorney for appellant.
    Thomas T. Buchanan, Laurel, attorney for appellee.
    Before MYERS, P.J., CHANDLER and • GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. In this domestic relations case, James Harlon Long appeals the chancellors’ property distribution and award of alimony to Diane B. Long. James argues that the chancellor: (1) failed to enforce James’ and Diane’s antenuptial agreement, (2) erred in her equitable distribution of the marital and non-marital property, and (3) erred by awarding Diane periodic alimony. We find that chancellor should be affirmed in part, reversed in part, and remanded.

FACTS

¶ 2. On December 22, 1993, James and Diane executed an antenuptial agreement. It was prepared by James’ attorney and provided that each parties’ separate property would remain their separate property in the event of death or divorce.

¶ 3. On January 1, 1994, James and Diane were married. This was James’ second marriage and Diane’s third marriage. No children were born of the marriage. Both James and Diane had children from prior marriages.

¶4. On May 28, 2002, Diane filed for divorce on the grounds of habitual cruel and inhuman treatment and uncondoned adultery. After an evidentiary hearing, Diane withdrew her claim for a divorce on the grounds of habitual cruel and inhumane treatment and the chancellor denied Diane a divorce on the ground of uncon-doned adultery. Thereafter, James and Diane executed and filed a consent to divorce on the grounds of irreconcilable differences, and they agreed for the chancellor to decide the proper distribution of property, alimony and attorney’s fees.

¶ 5. The chancellor entered an order in which she declined to enforce the antenup-tial agreement, divided the marital and non-marital property, granted Diane periodic alimony payments in the amount of five hundred dollars per month, and denied Diane’s request for attorney’s fees. It is from this order that James appeals.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).

ANALYSIS

I. Did the chancellor err by failing to enforce the antenuptial agreement?

¶ 7. James claims that the chancellor was in error when she failed to enforce the antenuptial agreement. As a result, the chancellor awarded Diane a portion of the increase in value of James’ business and his home. Yet, the chancellor failed to award James a portion of Diane’s home.

¶ 8. On December 22, 1993, James and Diane signed a simple two page antenup-tial agreement. The relevant portion of the agreement provides:

Whereas, each of the parties owns individual real and personal property, the nature and extent of the holdings of each party having been disclosed to the other, and
Whereas, the parties desire that all property now owned by each of them shall be free from any claim of the other that may arise by reason of their contemplated marriage,
IT IS THEREFORE AGREED:
1. After the solemnization of the marriage between the parties, all property now separately owned by each of them, whether real or personal, shall remain the separate property of each of them free from any claim that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them.
Each of the parties expressly waives any and all rights or interest which he/she may hereafter be entitled, as wife or husband, in and to any property, real or personal, which the parties now own separately.

¶ 9. Diane admitted that she read and signed the agreement. Diane testified that she understood the agreement to mean that James was entitled to keep the assets he had before the marriage, and she was entitled to keep the assets she had before the marriage. Nevertheless, Diane asked the chancellor to award her certain assets from James’ business and home.

¶ 10. At the time of the marriage and execution of the agreement, James and Diane each owned their own separate homes. James owned a business, Long’s Auto Supply Co., Inc., and the real property on which the business is located. Diane owned a retirement account, established by her employer, and a separate individual retirement account.

¶ 11. They were married for eight years. During the marriage, Diane sold her home and invested the proceeds in a certifícate of deposit. James’ home was taken in eminent domain proceedings. The proceeds that he received from the eminent domain action were used to pay the mortgage on the house that was destroyed. The balance was applied to the purchase of additional land for the construction of a new home. James borrowed an additional sixty-five thousand dollars ($65,000) for the construction of the new home. The bank offered a lower interest rate if Diane’s certificate of deposit was pledged as additional collateral. The certificate of deposit was pledged as security for the note. Diane’s certificate of deposit was never used to pay the loan.

¶ 12. The chancellor found that substantial commingling of their separate assets occurred and that the antenuptial agreement did not address how the parties should divide property acquired or accumulated during the marriage. The agreement did not provide for the division of assets that were commingled nor for the increase in value of assets. Considering the totality of the circumstances, the chancellor found that the antenuptial agreement could not govern the equitable division of the Long’s assets.

¶ 13. An antenuptial agreement is enforceable just as any other contract. Mabus v. Mabus, 890 So.2d 806, 818(¶ 53) (Miss.2003). The Mississippi Supreme Court has held that antenuptial agreements must be fair in the execution, and a duty of disclosure shall be imposed. Smith v. Smith, 656 So.2d 1143, 1147 (Miss.1995) (citing Estate of Fred Hensley v. Estate of Hazel O. Hensley, 524 So.2d 325, 327 (Miss.1988)). The agreement entered between James and Diane was fairly executed. There was full disclosure of each others’ assets.

¶ 14. The first rule of interpretation of contracts is to follow the intent of the parties. Id. It is clear that the parties intended for Diane’s home and retirement account to remain her separate property. Also, they intended that James’ home and business would remain his separate property. During the marriage, Diane sold her home and invested the proceeds in a certificate of deposit. Under the antenuptial agreement, the certificate of deposit should remain Diane’s separate property.

¶ 15. James’ premarital home was taken in an eminent domain proceeding. The proceeds of this taking were used to purchase property and build a new home. Accordingly, due to the language of the agreement, James’ new home does not become marital property by virtue of being constructed during the marriage. Instead, it remains James’ separate property. The chancellor failed to credit James with the proceeds of the condemnation. She also incorrectly concluded that there was no outstanding indebtedness on the home. Based on their agreement, James is entitled to exclusive use, ownership and possession of the home free from any claim by Diane. Furthermore, James is responsible for the outstanding indebtedness.

¶ 16. We conclude that it was clearly erroneous for the chancellor to fail to enforce the antenuptial agreement. Therefore, we reverse and render the chancellor’s judgment that determined that the $30,000 increase in value of James’ business and $30,000 for her share of the increase in value of James’ home should be considered part-of the marital estate. Accordingly, we reverse the chancellor’s judgment and find that no part of the increase in the value of James’ business or home should be awarded to Diane.

II. Did the chancellor err in her distribution of marital assets?

¶ 17. The chancellor analyzed each of the Ferguson factors and reached an equitable distribution that left each party with roughly the same amount in assets. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Indeed, the chancellor found that most of the household goods were non-marital as they were brought to the marriage by Diane. Other property accumulated during the marriage was divided equitably. Accordingly, with the assets from Section 1 of this opinion removed from the equitable distribution of assets, we find no error in the chancellor’s award of the remaining marital assets and affirm on this issue.

III. Did the chancellor err by awarding Diane periodic alimony?

¶ 18. After the chancellor considered the equitable distribution of the parties’ marital assets, the chancellor analyzed the factors set forth in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) and determined that Diane was entitled to an award of five hundred dollars ($500) per month, permanent periodic alimony. James challenges both the award and amount of alimony.

¶ 19. In Lauro v. Lauro, 847 So.2d 843, 848-49(¶ 13) (Miss.2003), the supreme court held:

Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit. .
Division of marital assets is now governed under the law as stated in Hensley and Ferguson. First, the character of the parties’ assets, i.e., marital or non-marital, must be determined pursuant to Hensley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ non-marital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.
Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994) (emphasis added). Like alimony, child support must be considered collectively with all property division. All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together. “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” LaRue [v. LaRue], 172 W.Va. 158, 304 S.E.2d [312] at 334 [1983] (Neely, J., concurring).

(emphasis in original). Because we reverse the chancellor’s equitable division of assets that included the award of a portion of the increase in the value of James’ home and business, we also remand the award of alimony for further proceedings by the chancellor consistent with this opinion. On remand, the chancellor is instructed to revisit the award of alimony after she considers the properly classified and division of marital assets. Lauro, 847 So.2d at 850(¶ 17).

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF CLARKE COUNTY IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COST OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND THE AP-PELLEE.

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


author: PER CURIAM.

text:
    HARTFORD CASUALTY INSURANCE COMPANY v. MERCHANTS & FARMERS BANK.
    1031883.
    Supreme Court of Alabama.
    Sept. 2, 2005.
    Rehearing Denied Nov. 18, 2005.

      Micheál S. Jackson of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery, for appellant.
    Wilbor J. Hust, Jr., and James K. Lambert of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellee.
   PER CURIAM.

This action arises out of a dispute between Hartford Casualty Insurance Company (“Hartford”) and its insured, Merchants & Farmers Bank (“Merchants”). Merchants filed an action against Hartford seeking a judgment declaring that Hartford was obligated to defend and indemnify Merchants in an action between Merchants and one of its customers, Bridges Warehouse Furniture, Inc. (“Bridges”), a retail seller of furniture. The trial court determined that Hartford was obligated to defend and to indemnify Merchants in that underlying action. Hartford appealed. We reverse and remand.

Facts

As a result of a series of financial transactions between Merchants and Bridges beginning in May 2001 evidenced by a loan agreement, Bridges became indebted to Merchants, and Merchants, in exchange, obtained a perfected security interest in Bridges’s inventory and equipment, and in all proceeds derived from the sales of its inventory. In September 2002 Bridges defaulted on its debt to Merchants. Shortly after the default, Merchants learned that Bridges had entered into an agreement with a third party, Barnett & Brown, Inc. (“Barnett”), another furniture retailer, pursuant to which Barnett had placed its inventory in Bridges’s store as part of a liquidation sale. Merchants also learned that Barnett was in the process of removing all of its inventory from Bridges’s store.

Merchants undertook to ascertain the nature and extent of the relationship between Bridges and Barnett and discovered that Barnett had not filed a financing statement relating to the inventory it had placed in Bridges’s store, as required by the Uniform Commercial Code, and therefore had not secured its interest in the inventory. Counsel for Merchants concluded that any furniture belonging to Barnett and placed in Bridges’s store for sale was under consignment. This conclusion led Merchants’ attorney to instruct Merchants that Merchants had a security interest superior to Barnett’s in merchandise placed in Bridges’s store by Barnett and in any proceeds from the sale of that merchandise. Acting on this advice, Merchants' notified Barnett of its position by letter. Before Merchants had an opportunity to act, Barnett sued Merchants and Bridges.

Barnett’s complaint asserted three causes of action: (1) conversion; (2) deti-nue; and (3) negligence, willfulness, and wantonness. In substance, Barnett alleged that Merchants had improperly seized inventory and money belonging to Barnett and that in so doing Merchants had breached a duty it owed Barnett.

Merchants turned to Hartford to provide a defense to Barnett’s action and for indemnification if required. Hartford concluded that the allegations of the complaint did not meet the policy definition of an “occurrence,” “property damage,” or “bodily injury,” and it declined to provide a defense or to agree to indemnify Merchants. Merchants then filed this declaratory-judgment action against Hartford and also named Barnett as a defendant.

In the policy Hartford issued to Merchants, Hartford agreed to

“pay those sums that the insured [Merchants] becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages. However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ to which this insurance does not apply.”

The policy included the following definitions:

“ ‘Bodily Injury’ means bodily injury, sickness or disease sustained by a person, including mental anguish or death resulting from any of these at any time.
“‘Occurrence’ means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
‘Property damage’ means:
“a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
“b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the ‘occurrence’ that caused it.”

(Hartford’s brief, Appendix, Tab 1; emphasis added.)

The exclusions page of the policy includes the following language:

“2. Exclusions
“This insurance does not apply to:
“a. Expected or Intended Injury
“ ‘Bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.... ”

(Hartford’s brief, Appendix, Tab 1.)

The trial court held a hearing at which evidence was presented ore tenus. After the hearing, the court issued a judgment, in which it concluded that the actions of Merchants complained of by Barnett constituted an “occurrence” within the meaning of the policy. The trial court found no specific intent on the part of Merchants to cause damage to Barnett and no high degree of certainty on the part of Merchants that its actions would cause damage to Barnett. Thus, the trial court found that none of the exclusions in the policy applied and that to deny coverage to Merchants would deny the reasonable expectations of the parties. It declared that Hartford was obligated to defend Merchants against the allegations of Barnett’s complaint and that Hartford was obligated to “provide liability insurance coverage to the bank for the claims of Barnett.”

Hartford argues on appeal that there are no factual allegations in the complaint or facts presented by Merchants that may be proved by admissible evidence that demonstrate an “occurrence” within the meaning of the policy, so as to establish a duty on Hartford’s part to defend or to indemnify Merchants in the action brought by Barnett against Merchants.

Standard of Review

When a trial court interprets an insurance policy as a matter of law, that interpretation is subject to a de novo review. Upton v. Mississippi Valley Title Ins. Co., 469 So.2d 548, 555 (Ala.1985); Aetna Life Ins. Co. v. Hare, 47 Ala.App. 478, 256 So.2d 904, 911 (1972). However, when evidence is presented ore tenus in a nonjury case, a judgment based on that ore tenus evidence will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong or against the great weight of the evidence. Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes County, 909 So.2d 783, 788 (Ala.2004). Nevertheless, this rule is not applicable where the evidence is undisputed or where the material facts are established by undisputed evidence. Salter v. Hamiter, 887 So.2d 230, 233-34 (Ala.2004). Additionally, when the trial court “improperly applies the law to the facts, the presumption of correctness otherwise applicable to the trial court’s judgment has no effect.” Ex parte Bd. of Zoning Adjustment of Mobile, 636 So.2d 415, 418 (Ala.1994).

Analysis

We first examine whether Hartford has a duty to defend. Our cases have held that .the duty to defend is “more extensive” than the duty, to indemnify. This Court has stated:

“It is well settled ‘that [an] insurer’s duty to defend is more extensive than its duty to [indemnify].’ United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164, 1168 (Ala.1985) (citations omitted). Whether an insurance company owes its insured a duty to provide a defense in proceedings instituted against the insured is determined primarily by the allegations contained in the complaint. Id. at 1168. If the allegations of the injured party’s complaint show an accident or an occurrence within the coverage of the policy, then the insurer is obligated to defend, regardless of the ultimate liability of the insured. Ladner & Co. v. Southern Guar. Ins. Co., 347 So.2d 100, 102 (Ala.1977)(citing Goldberg v. Lumber Mut. Cas. Ins. Co., 297 N.Y. 148, 77 N.E.2d 131 (1948)). However, ‘[t]his Court ... has rejected the argument that the insurer’s obligation to defend must be determined solely from the facts alleged in the complaint in the action against the insured.’ Ladner, 347 So.2d at 103. In Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 161 So.2d 789 (1964), this Court explained:
“ “We are of [the] opinion that in deciding whether a complaint alleges such injury, the court is not limited to the bare allegations of the complaint in the action against [the] insured but may look to facts which may be proved by admissible evidence.... ’
276 Ala. at 318, 161 So.2d at 795; see Ladner, 347 So.2d at 103 (quoting this language). ‘[I]f there is any uncertainty as to whether the complaint alleges facts that would invoke the duty to defend, the insurer must investigate the facts surrounding the incident that gave rise to the complaint in order to determine whether it has a duty to defend the insured.’ Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So.2d 661, 668 (Ala.1995)(citing United States Fid. & Guar. Co. v. Armstrong, 479 So.2d 1164 (Ala.1985)) (other citations omitted). When a complaint alleges both acts covered under the policy and acts not covered, the insurer is under a duty to at least defend the allegations covered by the policy. Blackburn, 667 So.2d at 670 (citing Tapscott v. Allstate Ins. Co., 526 So.2d 570, 574 (Ala.1988)).”

Acceptance Insurance Co. v. Brown, 832 So.2d 1, 14 (Ala.2001). In Tanner v. State Farm Fire & Casualty Co., 874 So.2d 1058, 1064-65 (Ala.2003), this Court stated:

“In three cases, Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 161 So.2d 789 (1964); Ladner & Co. v. Southern Guaranty Ins. Co., 347 So.2d 100 (Ala.1977); and Tapscott v. Allstate Ins. Co., 526 So.2d 570 (Ala.1988), this Court held that, if the complaint against the insured does not, on its face, allege a covered accident or occurrence, ‘other facts which did exist but were not alleged could be taken into consideration’ to establish coverage because the policy ‘should be liberally construed in favor of the insured.’ Ladner, 347 So.2d at 103. However, this Court has never held that, even though the allegations of the complaint do allege a covered accident or occurrence, the courts may consider evidence outside the allegations to disestablish the duty to defend....
“... If the allegedly injured person’s complaint against the insured alleges a covered accident or occurrence, then the insurer owes the duty to defend even though the evidence may eventually prove that the gravamen of the complaint was not a covered accident or occurrence. If the complaint against the insured does not, on its face, allege a covered accident or occurrence, but the evidence proves one, then the insurer likewise owes the duty to defend. The insurer owes no duty to defend only if neither does the complaint against the insured allege a covered accident or occurrence nor does the evidence in the litigation between [the injured person] and the insured prove a covered accident or occurrence. Acceptance Ins. Co. [v. Brown, 832 So.2d 1 (Ala.2001)]; Run-A-Ford, supra; Ladner, supra. If the allegedly injured person’s complaint against the insured alleges or the evidence proves not only claims based on a covered accident or occurrence but also claims not based on a covered accident or occurrence, the insurer owes a duty to defend at least the claims based on a covered accident or occurrence. E.g., Acceptance Ins. Co., supra; Porterfield [v. Audubon Indem. Co., 856 So.2d 789 (Ala.2002)]; Townsend Ford, Inc. v.q Auto-Owners Ins. Co., 656 So.2d 360 (Ala.1995).”

This broad duty on the part of an insurer to defend an insured arises out of the principle that an ambiguous insurance policy is to be construed liberally in favor of the insured and strictly against the insurer. American States Ins. Co. v. Martin, 662 So.2d 245 (Ala.1995); Tyler v. Insurance Co. of North America, 331 So.2d 641 (Ala.1976).

Our analysis of whether Hartford has a duty to supply a defense for Merchants in Barnett’s action against it is two-pronged. First we must determine whether the facts alleged in Barnett’s complaint state an “occurrence” within the meaning of the policy. Secondly, and presupposing a negative answer to the first inquiry, we must determine whether the “facts which may be proved by admissible evidence” state an “occurrence.” Pacific Indem. Co. v. Run-A-Ford Co., 276 Ala. 311, 319, 161 So.2d 789, 795 (1964).

I.

Merchants’ policy with Hartford defines an “occurrence” as “an accident.” The term “accident” is not defined in the policy, but it is a commonly used word in the legal profession. In St. Paul Fire & Marine Insurance. Co. v. Christiansen Marine, Inc., 893 So.2d 1124, 1136 (Ala.2004), this Court applied the following definition of “accident” found in Black’s Law Dictionary 15 (7th ed. 1999): “An unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could be reasonably anticipated.” In United States Fidelity & Guaranty Co. v. Bonitz Insulation Co. of Alabama, 424 So.2d 569, 572 (Ala.1982), this Court, citing Employers Insurance Co. of Alabama v. Rives, 264 Ala. 310, 87 So.2d 653 (1955), stated: “The term [‘accident’] has ... been variously defined as something unforeseen, unexpected, or unusual.”

The relevant facts asserted against Merchants are found in paragraph 9 of Barnett’s complaint, which states as follows:

“9. Moreover, after commencement of the liquidation sale, [Barnett] learned for the first time of the existence of the Defendant, Merchants & Farmers Bank as a creditor of Bridges Warehouse Furniture and of the extent of the debt owed by Bridges Furniture to Merchants & Farmers Bank. [Barnett] communicated with Merchants & Farmers concerning [Barnett’s] role in the liquidation sale and the substantial inventory and monies which belonged to [Barnett] arising from the sale. Nonetheless, even after being provided full knowledge of [Barnett’s] involvement in the liquidation sale, [Barnett’s] substantial interest in the furniture being sold in the sale and [Barnett’s] rights in monies on deposit in the joint liquidation sale account, Merchants & Farmers Bank took control of all property located at Defendant Bridges Furniture’s place of business and the joint account. Despite demand for the return of all property and the identifiable proceeds from the sale, no return has been made.”

The relevant factual averments contained in the complaint are simple: Merchants took action to secure its claims under its loan agreement with Bridges— specifically “[e]ven after being provided full knowledge of [Barnett’s] involvement in the liquidation sale, [Barnett’s] substantial interest in the furniture being sold in the sale and [Barnett’s] rights in monies on deposit in the joint liquidation sale account, Merchants & Farmers Bank took control of all property located at Defendant Bridges Furniture’s place of business and the joint account.” The complaint does not advise when, or how, Merchants took control of the property in question or what exact acts Merchants undertook in that regard. Nothing in these averments shows that Merchants’ actions, or the consequences of its actions, were “unintended or unforeseen” so as to constitute an occurrence under the policy.

Paragraph 42 of count IX of Barnett’s complaint, which is the only count that alleges negligence against Merchants, states:

“42. Defendant Merchants & Farmers Bank negligently, willfully and/or wantonly breached its duty owed to [Barnett] in that it was aware that its wrongful possession of said property would result in injury to [Barnett].”

Count IX adopts all of the preceding aver-ments of the complaint, including the factual averments of paragraph 9 set out above. The negligence averment of count IX is therefore framed by the factual allegations of paragraph 9, and “negligence” merely dangles as a cause of action that is unrelated to any asserted facts.

Where facts are alleged in the complaint to support a cause of action, it is the facts, not the legal phraseology, that determine whether an insurer has a duty to defend its insured in the action. As we have said: “[I]f there is any uncertainty as to whether the complaint alleges facts that would invoke the duty to defend, the insurer must investigate the facts surrounding the incident ... to determine whether it has a duty to defend.... ” Acceptance Ins. Co. v. Brown, 832 So.2d at 14 (quoting Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So.2d 661, 668 (Ala.1995)) (emphasis added); see also McCauley v. Estes, 726 So.2d 719 (Ala.Civ.App.1998).

In Tanner, supra, the complaint alleged innocent misrepresentation, reckless misrepresentation, and suppression of a material fact. Despite deposition testimony indicating that the plaintiff was contending that Tanner had injured him intentionally, the Court held that the allegations in the complaint obliged State Farm to defend Tanner against the three claims stated above. However, there was no finding by the Court in Tanner that the descriptive facts asserted in the complaint contradicted the legal theories asserted in it. Unlike Tanner, the facts stated in the complaint in this case flatly contradict the allegation of negligence, which was simply dropped into the complaint.

We therefore conclude that when the complaint supplies descriptive facts and those facts are irreconcilable with a legal theory, such as “negligence,” asserted in the complaint, the facts, not the mere assertion of the legal theory, determine an insurer’s duty to defend.

II.

Because the averments of the complaint do not establish a duty to defend, we turn to the second prong of the analysis, i.e., whether other facts that “may be proved by admissible evidence” but that were not alleged in the complaint would show or create a reasonable inference that there had been an “occurrence” within the meaning of the policy so as to require Hartford to defend Merchants in Barnett’s action against it.

From testimony adduced at trial in the declaratory-judgment action and from representations made by the parties in their submissions to this Court, we have compiled the following facts that would be before the trial court on a trial of Barnett’s action against Merchants and Bridges and that “may be proved by admissible evidence,” Pacific Indemnity Co., 276 Ala. at 319, 161 So.2d at 795: Merchants had no contractual relationship with Barnett; indeed, it did not know of Barnett’s involvement with Bridges until the liquidation sale was almost completed. Merchants determined that Barnett had not complied with the requirements of the Uniform Commercial Code to secure Barnett’s security interest in the property it had placed in Bridges’s store by filing a financing statement, and Merchants’ counsel advised Merchants that Merchants’ security interest in the property in Bridges’s store was superior to any other claim, including Barnett’s. Merchants wrote the parties informing them of its intent to protect Merchants’ security interest. Merchants never seized any property or money from Barnett.

These facts, admitted by all parties, establish that Merchants decided upon a deliberate course of conduct and, throughout the time frame in question, intentionally pursued that course of conduct. Merchants understood that in pursuing that course of conduct it would be asserting a contested claim to certain property and moneys. By any reasonable standard, these facts show a series of purposeful and deliberate acts that do not and cannot be described as an accident. Merchants does not, and cannot, on these facts, show an unexpected, unintended, or unforeseen result from its course of action. Merchants “may have made a mistake of fact and/or an error in judgment, but it at all times acted in a deliberate and purposeful manner.” Mindis Metals, Inc. v. Transportation Ins. Co., 209 F.3d 1296, 1301 (11th Cir.2000). In view of these undisputed facts, we find no accident and hence no occurrence that would trigger Hartford’s duty to defend.

Hartford argues that the trial court’s holding that Hartford has a duty to indemnify Merchants was premature and therefore in error. We agree. Whether there is a duty to indemnify under the policy will depend on the facts adduced at the trial of the action between Barnett and Merchants; thus, we do not reach on this appeal the issue whether Hartford has a duty to indemnify Merchants.

We reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . It appears that Barnett did not take an active role in the defense of the declaratory-judgment action. Barnett did not file an appeal from the declaratory judgment independent of Hartford's appeal.

        2. This joint account was not opened or maintained at Merchants and was unknown to Merchants until mid-October 2002. The evidence indicates that Bridges impermissibly withdrew funds from this account without Barnett’s knowledge or permission.


author: STUART, Justice.

text:
    Bob RILEY, as Governor of Alabama v. Yvonne KENNEDY et al.
    1050087.
    Supreme Court of Alabama.
    Nov. 9, 2005.
    Rehearing Denied Nov. 15, 2005.

      Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and John J. Park, Jr., and Charles B. Campbell, asst, attys. gen., for appellant.
    J. Cecil Gardner of Gardner, Middle-brooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Mobile; and James H. Anderson of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery, for appellees.
   STUART, Justice.

Bob Riley, in his official capacity as Governor of Alabama, appeals a judgment of the Montgomery Circuit Court holding that a vacancy on the Mobile County Commission should be filled by a special election. We reverse and remand.

Facts

In an election held on September 13, 2005, Sam Jones, the county commissioner for district 1, Mobile County Commission, was elected to the office of mayor of the City of Mobile. On September 19, 2005, Yvonne Kennedy, James Buskey, and William Clark, registered voters in Mobile County and residents of district 1 (hereinafter referred to collectively as “Kennedy”), filed a pleading in the Montgomery Circuit Court containing the following: a complaint seeking a declaration as to whether Alabama law requires the vacancy in the district 1 seat on the County Commission to be filled by a special election; a petition for a writ of mandamus directing Don Davis, probate judge of Mobile County to conduct such a special election to fill the district 1 seat; and a request for an injunction prohibiting Governor Riley and the other defendants from acting to the contrary.

According to the complaint, Governor Riley, through his legal advisers, had made public statements indicating that he would fill by appointment the vacancy created when Jones resigned his seat on the County Commission to assume the office of mayor. Kennedy averred that Governor Riley could not make such an appointment, because, she argued, Act No. 85-237, Ala. Acts 1985, requires that “a special election be held to fill the vacancy, and, if a special election is not held, [Kennedy] and other similarly situated registered voters of the County of Mobile will be disenfranchised and denied the opportunity to vote for a candidate of their choice to fill the vacancy mentioned.”

Governor Riley answered the complaint, asserting that he is authorized by general law to fill the vacancy and that Act No. 85-237, Ala. Acts 1985, relied on by Kennedy, was declared unconstitutional by this Court in Stokes v. Noonan, 534 So.2d 237 (Ala.1988). Act No. 85-237, he argues, is therefore void, and it was not revived, as Kennedy argues, by the legislature’s subsequent enactment of Act No. 2004-455, Ala. Acts 2004, amending § 11-3-6, Ala. Code 1975.

On September 29, 2005, after hearing argument by counsel, the Montgomery Circuit Court, apparently giving a field of operation to Act No. 85-237, Ala. Acts 1985, held that the vacancy on the Mobile County Commission must be filled by a special election rather than by appointment by the Governor. On October 3, 2005, Sam Jones, the commissioner for district 1, resigned to assume the office of mayor of the City of Mobile. On October 11, 2005, Governor Riley appealed.

Standard of Review

“ ‘This court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005).

Discussion

Governor Riley contends that Act No. 2004-455, Ala. Acts 2004, amending § 11-3-6, Ala.Code 1975, did not revive Act No. 85-237, Ala. Acts 1985, which this Court had held unconstitutional, see Stokes v. Noonan, and that, therefore, the trial court erred in declaring that the vacancy on the Mobile County Commission created by Jones’s resignation should be filled by a special election.

In Stokes, this Court addressed the constitutionality of Act No. 85-237, which provided that vacancies on the Mobile County Commission would be filled by a special election when at least 12 months remained on the unexpired term of any commissioner. The registered voter challenging Act No. 85-237 in Stokes argued that Act No. 85-237, a local act, was subsumed by a general law, § 11-3-6, Ala.Code 1975, and, consequently, was unconstitutional under Art. IV, § 105, Alabama Constitution 1901.

Act No. 85-237 provided:

“ ‘Whenever a vacancy occurs in any seat on the Mobile County Commission with twelve months or more remaining on the term of the vacant seat, the judge of probate shall immediately make provisions for a special election to fill such vacancy with such election to be held no sooner than sixty days and no later than ninety days after such seat has become vacant. Such election shall be held in the manner prescribed by law and the person elected to fill such vacancy shall serve for the remainder of the unexpired term.’ ”

534 So.2d at 238. We held that Act No. 85-237, applicable only to Mobile County, constituted a local law on the same subject as the previously enacted general law. We then considered § 11-3-6, Ala.Code 1975, which appears in Chapter 3, Title 11, of the Alabama Code pertaining to county commissions. It provided at the time we decided Stokes: “ ‘In case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he is appointed.’ ” 534 So.2d at 238. We recognized that § 11-3-6 is clearly a general law, a statewide statute addressing the filling of vacancies on county commissions throughout the State, and that the legislature did not in the language of § 11-3-6, Ala.Code 1975, manifest an intent to except the local law from the general law. Therefore, we held that Act No. 85-237 was contrary to § 11-3-6, Ala.Code 1975, and, consequently, that it violated Art. IV, § 105, Alabama Constitution 1901, which provides, in pertinent part: “No special, private, or local law ... shall be enacted in any case which is provided for by a general law.” We reasoned that because the legislature did not in § 11-3-6, Ala.Code 1975, manifest an intent to except the local law from the general law, the contrary local law, in that case Act No. 85-237, must defer to the general law, § 11-3-6, Ala.Code 1975, and, consequently, we held, Act No. 85-237 violated Art. IV, § 105, Alabama Constitution 1901.

On May 14, 2004, Governor Riley approved Act No. 2004-455 and it became effective. Act No. 2004-455 amends § 11— 3-6, Ala.Code 1975, to read as follows: “Unless a local law authorizes a special election, in case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he or she is appointed.”

Kennedy argues that Act No. 2004-455, which amended § 11-3-6, Ala.Code 1975, manifests an intent by the legislature to cure the impediment to the enforceability this Court found as to Act No. 85-237 and to now give effect to that Act and that, consequently, a special election is the proper procedure by which to fill the vacancy created on the Mobile County Commission by Jones’s resignation. We cannot agree with that conclusion because the language of Act No. 2004-455 does not clearly so indicate.

This Court has consistently held that

“ ‘statutes are to be prospective only, unless clearly indicated by the legislature. Retrospective legislation is not favored by the courts, and statutes will not be construed as retrospective unless the language used in the enactment of the statute is so clear that there is no other possible construction. Sutherland Stat. Const., § 41.04 (4th ed 1984).’
“Dennis v. Pendley, 518 So.2d 688, 690 (Ala.1987).”

Gotcher v. Teague, 583 So.2d 267, 268 (Ala.1991). Moreover, although curative statutes are “of necessity” retroactive, Horton v. Carter, 253 Ala. 325, 328, 45 So.2d 10, 12 (1950), even they are subject to the same rule of statutory construction, i.e., they will not be construed as retroactive unless the intent of the legislature that the statute have such retroactive effect is clearly expressed. The act under consideration in Horton expressly provided: “This Act shall be deemed retroactive in its effect upon its passage and approval by the Governor or upon its otherwise becoming a law.” 253 Ala. at 328, 45 So.2d at 12. On numerous other occasions the legislature has demonstrated its ability to provide expressly for retroactive effect when enacting curative legislation. See, e.g., § 34-8-28(h), Ala.Code 1975 (“The provisions of this amendatory section are remedial and curative and shall be retroactive to January 1, 1998.”); § ll-50-16(c), Ala.Code 1975 (“The provisions of this section shall be curative and retroactive .... ”); § 11-43-80(d), Ala.Code 1975 (“The provisions of this section shall be curative and retroactive ....”); and Act No. 2001-891, § 5, Ala. Acts 2001 (“It is the intent of the Legislature that this act be construed as retroactive and curative.”).

Here, the plain language in Act No. 2004-455, amending § 11-3-6, Ala.Code 1975, provides for prospective application only, and that language must be given effect according to its terms. Nothing in the language in Act No. 2004-455 demonstrates an intent by the legislature that the amendment of § 11-3-6 apply retroactively. The argument that Act No. 2004-455 applies prospectively only is further supported by the preamble of the Act, which provides that the purpose of the Act is “[t]o amend Section 11-3-6 of the Code of Alabama 1975, relating to county commissions, to authorize the Legislature by local laiu to provide for the manner of filling vacancies in the office of the county commission.” (Emphasis added.) The language “to authorize the Legislature ... to provide” the means by which vacancies on the county commission are to be filled further indicates an intention by the legislature that the Act is to be prospectively applied. Therefore, we hold that Act No. 2004-455 applies prospectively only; consequently, Governor Riley is authorized to fill the vacancy on the Mobile County Commission by appointment.

Conclusion

Based on the foregoing, we conclude that the trial court erred in holding that the vacancy on the Mobile County Commission should be filled by a special election. Its judgment so holding is, therefore, reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

WOODALL, J., concurs in the result.

      . In addition to naming Governor Riley as a defendant, the complaint also named Don Davis, in his official capacity as probate judge of Mobile County; the Mobile County Commission; and Stephen Nodine and Mike Dean, in their official capacities as members of the Mobile County Commission. Governor Riley is the only defendant who appealed.

      . We review this issue only as presented by these facts and by the parties' arguments regarding these facts; we do not address any other possible impediments that may exist to the constitutionality or enforceability of Act No. 85-237.