author: LYONS, Justice.

text:
    Ex parte Roy Edward PERKINS. (In re State of Alabama v. Roy Edward Perkins).
    1041735.
    Supreme Court of Alabama.
    April 21, 2006.

      William R. Montross, Jr., and Vanessa M. Buch, Atlanta, Georgia, for petitioner.
    Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for respondent the State.
    William S. Donaldson, respondent circuit judge.

      Chris Hargett, chief asst, district atty., Tuscaloosa, for Tuscaloosa County District Attorney’s Office.
   LYONS, Justice.

Roy Edward Perkins petitions this Court for a writ of mandamus. We deny the petition.

I. Facts and Procedural History In 1994, Perkins was convicted of capital murder and was sentenced to death. His conviction and sentence were upheld on direct appeal. Perkins v. State, 808 So.2d 1041 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala.2001), vacated and remanded, Perkins v. Alabama, 586 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), aff'd on remand, 851 So.2d 453 (Ala.2002). In January 2004, Perkins filed in the Tuscaloosa Circuit Court a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. According to his mandamus petition and the attached exhibits, Perkins claimed in his Rule 32 petition, among other things, that his trial counsel had been ineffective for failing to investigate the existence of mitigating evidence and to present such mitigating evidence during the sentencing phase of Perkins’s murder trial. Perkins also alleged in his Rule 32 petition that his appellate counsel on direct appeal had been ineffective for failing to allege ineffective assistance of trial counsel based on trial counsel’s failure to investigate and to present mitigating evidence during sentencing. Upon consideration of Perkins’s Rule 32 petition, the circuit court granted him an evidentiary hearing.

Perkins filed a discovery motion with the circuit court in which he requested access to, among other things, certain records relating to his incarceration for offenses other than the current offense that are in the possession of the Alabama Board of Pardons and Paroles (“the Board”), as well as records relating to certain members of his family that are in the possession of various Alabama law-enforcement agencies. He contended in his motion that those records would reveal the mitigating evidence that should have been presented to the trial court during the sentencing phase of his trial. The circuit court denied Perkins’s discovery motion without explanation, and Perkins filed a petition for a writ of mandamus with the Alabama Court of Criminal Appeals, asking that court to order the circuit court to grant his discovery motion. The Court of Criminal Appeals ruled that Perkins was not entitled to inspect the Board’s records because, based on the Court of Criminal Appeals’ reading of Ex parte Alabama Board of Pardons & Paroles, 814 So.2d 870 (Ala.2001), the Board’s records were confidential and were thus not subject to inspection. Therefore, the Court of Criminal Appeals held, Perkins was not entitled to a writ of mandamus on that issue. The Court of Criminal Appeals also determined that the law-enforcement records requested by Perkins were public records, available to Perkins without a court order. Therefore, the Court of Criminal Appeals held, he was not entitled to a writ of mandamus on that issue. The Court of Criminal Appeals did, however, hold that Perkins was entitled to discovery of other documents not relevant to the instant mandamus petition. Ex parte Perkins, 920 So.2d 599 (Ala.Crim.App.2005) (“Perkins /”). Perkins then filed a petition for a writ of mandamus in this Court, asking us to direct the circuit court to provide him with access to the requested records.

II. Standard of Review

“ ‘The writ of mandamus is a drastic and extraordinary writ, to be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).’ Ex parte Carter, [807 So.2d 534] at 536 [ (Ala.2001) ].”

Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001). “A petition for a writ of mandamus is the appropriate vehicle for challenging a trial court’s ruling on a discovery motion.” Ex parte Steiner, 730 So.2d 599, 600 (Ala.1998). Circuit courts are vested with discretion in deciding whether to grant postconviction discovery requests. Ex parte Land, 775 So.2d 847, 850 (Ala.2000); and Jackson v. State, 910 So.2d 797, 802 (Ala.Crim.App.2005).

“ ‘[G]ood cause’ is the appropriate standard by which to judge postconviction discovery motions....

“... [I]n order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief. Cf. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986) (‘a hearing [on a habeas corpus petition] is not required unless the petitioner alleges facts which, if proved, would entitle him to federal ha-beas relief), cert. denied, 482 U.S. 918, 919, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Furthermore, a petitioner seeking postconviction discovery also must meet the requirements of Rule 32.6(b), Ala.R.Crim. P., which states:

“ ‘The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’ ”

Ex parte Land, 775 So.2d at 852-53. As noted, the circuit court granted Perkins an evidentiary hearing on the ineffective-assistance-of-counsel issue raised in his Rule 32 petition but nevertheless denied, without explanation, Perkins’s discovery request.

III. Analysis

A. Records of the Board

Perkins contends that records in the possession of the Board, which on two occasions had voted to parole Perkins on earlier convictions, contain evidence indicating that Perkins is able to adapt positively to structured living while incarcerated. Perkins contends that, for each time he was paroled, the files maintained by the Board would contain documents demonstrating that the Board determined that Perkins qualified for parole based on his good conduct while in prison. Perkins contends that those records would have rebutted the State’s argument at trial that Perkins could not be a compliant and nonviolent inmate and therefore that he was not a good candidate for a sentence of life imprisonment without parole. Perkins states that he seeks only “the records prepared by each member [of the Board] who favored [Perkins’s] parole” on those earlier convictions. (Perkins’s mandamus petition at 13.)

The Court of Criminal Appeals, in denying in part Perkins’s mandamus petition in Perkins I, held that the Board’s records are confidential and, therefore, are not subject to discovery. The Court of Criminal Appeals in Perkins I relied on this Court’s holding in Ex parte Alabama Board of Pardons & Paroles, supra. In that case, the Board had been subpoenaed by a grand jury and ordered to produce certain records in its possession. We held that the Board was entitled to a writ of mandamus directing the circuit court to vacate its order directing the Board to produce the records. Our ruling was based on the plain language of § 15-22-36(b), Ala.Code 1975:

“ ‘(b) Each member of the Board of Pardons and Paroles favoring a pardon, parole, remission of a fine or forfeiture or restoration of civil and political rights shall enter in the file his reasons in detail, which entry and the order shall be public records, but all other portions of the file shall be privileged.’ ”

814 So.2d at 872 (emphasis added in Board of Pardons & Paroles). We noted that “[t]he Montgomery County district attorney contended] that the Legislature did not intend to create a privilege that would thwart a grand jury’s performance of its responsibility to investigate possible indictable offenses by members of the Board.” 814 So.2d at 872 (emphasis added). It is clear from a reading of the opinion that the Court in Board of Pardons & Paroles was not dealing with a request to view only records indicating the Board members’ reasons for favoring the parole of an inmate. In contrast, in the instant case, Perkins states that he seeks only the records prepared by each member who favored parole, and the State concedes that, based on a plain reading of § 15-22-36(b), records reflecting the reasons on which members of the Board base their granting of parole are public records. We agree, and we hold that Perkins has a legal right to inspect the Board’s records indicating those reasons.

The State argues that Perkins is not entitled to a writ of mandamus because, it says, he has not shown that he has no other adequate remedy at law. The State argues that, because the records he requests are public records, Perkins can simply request their production from the Board without a court order. The State further alleges that Perkins has not taken any independent action to obtain those records. Perkins, on the other hand, contends that his postconviction counsel has attempted to obtain the records, but the Board refused his counsel access to the records. He points out that, in his motion for discovery, he pleaded that his postcon-viction counsel spoke with a representative of the Board who stated that the Board would not release any of Perkins’s records without a court order. However, Perkins does not cite any direct evidence showing the Board’s refusal to produce Perkins’s records. While we note that Perkins is entitled by law to inspect the records of the Board showing its members’ reasons for “favoring a pardon, parole, remission of a fine or forfeiture or restoration of civil and political rights,” § 15-22-36(b), this Court is not equipped to resolve the factual dispute of whether Perkins has actually requested those records. Therefore, Perkins has not shown that he has no other adequate remedy at law with respect to this issue; he is not entitled to a writ of mandamus directing the circuit court to grant his discovery motion as to the Board’s records.

B. Records of Law-Enforcement Agencies

1.

Perkins argues that he is entitled to review certain records of the Tuscaloosa Police Department, the Tuscaloosa County Sheriffs Department, the Fayette Police Department, the Fayette County Sheriffs Department, and the Berry Police Department. He contends that records in the possession of those law-enforcement agencies relating to certain members of his family will show the environment in which Perkins was raised, mitigating evidence he contends should have been presented during the sentencing phase of his trial. Perkins states that he requires not only records indicating his family members’ criminal convictions, but also “the entire police and sheriffs department files regarding each family member, including, for example, all the police and incident reports, statements, notes from interviews with family members and witnesses, and photographs.” (Perkins’s reply brief at 16.)

The State concedes that convictions are matters of public record. Therefore, the State contends, Perkins can obtain the records of the convictions of his family members without a court order. Perkins, however, contends that the law-enforcement agencies have denied his counsel’s requests for the records of those law-enforcement agencies. However, he again fails to cite any direct evidence of such a denial. Although we conclude that Perkins has a legal right to inspect the records of convictions of his family members, he has not shown that he has been denied that right and that he has no other adequate remedy at law. Therefore, he is not entitled to the writ of mandamus on this issue.

2.

As noted,, Perkins contends that he seeks more than just the notices of conviction from the police records relating to his family members. Rather, he seeks “the entire police and sheriffs department files regarding each family member, including, for example, all the police and incident reports, statements, notes from interviews with family members and witnesses, and photographs.” The State argues that Perkins has not shown good cause for this discovery and is therefore not entitled to the writ of mandamus ordering that those records be produced. As noted, in order to show good cause for obtaining discovery, Perkins must allege facts that, if proved, would entitle him to relief.

According to Perkins’s discovery motion, his Rule 32 claim that his trial counsel were ineffective is based on his contention that counsel simply failed to “investigate, obtain or present mitigating evidence at the penalty phase” and that counsel did not do so based on a “strategic or tactical reason.” Perkins contends that the evidence his counsel failed to discover and to present during sentencing would have shown that Perkins grew up in a neglectful and abusive environment. Perkins contends in his mandamus petition that, rather than investigate and rely on institutional documentary evidence during the sentencing phase, trial counsel simply relied on the recollections of Perkins and his family members, which, Perkins argues, was unreasonable because some of Perkins’s family members whom counsel contacted are mentally handicapped and because Perkins himself has an IQ in the 70s, is mentally ill, and suffers from brain damage.

Perkins contends that law-enforcement officers were dispatched to his childhood home on several occasions to investigate complaints of domestic violence, abuse, and public drunkenness. Perkins contends that his trial counsel, during the sentencing phase, presented a three-page “Social History and Assessment” indicating that Perkins grew up in a large farmhouse, that his mother suffered no complications while she was pregnant with him, that he had a close relationship with his sister, that he was a good and polite child with no significant problems, that there was no history of mental illness in his immediate family, and that he suffered no significant childhood traumas. Perkins contends that, contrary to that statement, the law-enforcement records he seeks will show “the incredible violence into which Mr. Perkins was born and raised.” (Perkins’s discovery motion at 44.) He contends that the law-enforcement records, along with other documentary evidence, will show that

“the house he grew up in was a dilapidated shack with trash thrown about; that Mr. Perkins’[s] mother was almost constantly drunk during her pregnancies and throughout Mr. Perkins’[s] childhood; that Mr. Perkins’[s] stepfather ... repeatedly beat him and his sister; that [his stepfather] frequently raped Mr. Perkins’[s] sister; that the Perkins family had little to no money; that Mr. Perkins was neglected and abused by his family, given no food to eat and no clothes to wear; that Mr. Perkins ran away from home at the age of nine to get away from the abuse; that he was forced to steal food to feed himself and clothes to wear; that he would sneak into the school building to find shelter at night; that his extended family was as violent as his immediate family; and that many members of his family suffer from severe mental illness and physical disabilities.”

(Perkins’s diseoveiy motion at 4-5.) Perkins also contends that the requested records will demonstrate the following:

“Both his mother and stepfather were repeatedly arrested for drunkenness and violence toward each other and toward their children. The Fayette and Berry police were repeatedly called to the Per-kinses]’ home on reports of neglect, drunkenness and domestic abuse. Evidence suggests that many of these incidents also involved weapons. Even at Mr. Perkins’[s] maternal grandmother’s house, the family violence was rampant. Family reports indicate that the families from the two houses would fire shotguns at each other from across the property, the violence escalating daily. Police and Sheriffs department reports are necessary to verify this information.
“... [Information contained in the records ... demonstrates Mr. Per-kinses] complete lack of positive role models and guidance as a child. Both of his parents were almost constantly drunk and incarcerated during his early years. And extended family members were no different. Almost all of Mr. Perkins’[s] close family were being arrested and incarcerated for the majority of his childhood.”

While the police records Perkins seeks may in fact show the dysfunctional environment in which he grew up, according to Ex parte Perkins, 808 So.2d 1143, 1145 (Ala.2001), judgment vacated on other grounds by Perkins v. Alabama, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), there obviously was evidence presented during sentencing showing the environment in which Perkins grew up. In deciding Perkins’s sentence, the trial court found the existence of the following mitigating factors:

“‘5. [Perkins] lacked socialization and had a horrible childhood, involving the death of [his] father, the drowning of his brother in his presence, the sexual abuse of his sister by his stepfather in his presence, physical abuse of [Perkins] by his stepfather, being run away from home at a very early age and being sexually abused.
“ ‘7. [Perkins] and his family were very poor, and [Perkins] had to “raise himself.” His mother and stepfather and other family members were alcoholics.’ ”

808 So.2d at 1145. Apparently, Perkins’s trial counsel did perform an investigation and did present evidence sufficient tó convince the trial court of the existence of mitigating factors substantially similar to that Perkins now seeks to prove in his postconviction petition. Therefore, we conclude that the documentary evidence in the form of law-enforcement records Perkins now seeks would simply be cumulative of the evidence his counsel presented during the sentencing phase of Perkins’s trial.

The Court of Criminal Appeals’ opinion addressing Perkins’s direct appeal from his conviction and sentence reveals that, during the sentencing phase of Perkins’s trial, Perkins’s counsel elicited testimony from two expert defense witnesses indicating that Perkins grew up in an abusive and traumatic environment. Those experts based their opinions on interviews of Perkins and his family, as well as on Perkins’s medical and prison records. Perkins v. State, 808 So.2d 1041, 1127 (Ala.Crim.App.1999). Perkins alleges, however, that his trial counsel should have presented evidence of his dysfunctional background through documents and records and should not have relied on the recollections of Perkins and his family. In effect, Perkins argues that his counsel’s failure to present documentary evidence amounted to ineffective assistance. However, the cases Perkins cites in support of his argument are distinguishable. He cites Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); and Ex parte Land, 775 So.2d 847, 853 (Ala.2000), all cases dealing with trial counsel’s failure to properly investigate and present evidence indicating a defendant’s dysfunctional family background. Those cases, however, involved trial counsel’s complete failure to discover and present such mitigating evidence; they did not involve the question of whether counsel is ineffective if counsel chooses to present the mitigating evidence through expert testimony based oh interviews with the defendant and his family members, instead of through objective documents.

Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), all cited by Perkins, hold only that, during the sentencing phase of a capital trial, a defendant has the right to present mitigating evidence indicating a dysfunctional family background. Those cases did not involve the attempt to present posttrial evidence that was merely cumulative of mitigating evidence presented during the sentencing phase, and they did not draw a distinction between expert mitigating testimony based on interviews with the defendant and his family members, on the one hand, and objective documentary evidence, on the other.

Perkins also cites Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), for the proposition that effective trial counsel would have presented objective documentary evidence. However, Skipper did not involve an ineffective-assistance claim. Rather, it involved the question of whether a trial court erred in excluding during the sentencing phase of trial the mitigating testimony of two disinterested witnesses, i.e., witnesses unrelated to and not involved with the defendant. The testimony would have shown that the defendant had the ability to adjust positively to incarceration. The United States Supreme Court reiterated that a sentencer, in considering the death penalty, cannot be precluded from considering, and cannot refuse to consider, any aspect of a defendant’s character as a mitigating factor. To be sure, in Skipper, the State did argue that the trial court’s exclusion of the mitigating evidence was harmless error in that the excluded testimony was merely cumulative of other testimony elicited from the defendant and his family members, an argument the Supreme Court rejected:

“[Cjharacterizing the excluded evidence as cumulative and its exclusion as harmless is implausible on the facts before us. The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses — and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges — would quite naturally be given much greater weight by the jury. Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect upon the jury’s deliberations. The prosecutor himself, in closing argument, made much of the dangers petitioner would pose if sentenced to prison, and went so far as to assert that petitioner could be expected to rape other inmates. Under these circumstances, it appears reasonably likely that the exclusion of evidence bearing upon petitioner’s behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury’s decision to impose the death sentence. Thus, under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.”

476 U.S. at 8, 106 S.Ct. 1669. Whether the harmless-error standard applied by the Supreme Court in Skipper is analogous to the second prong of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for judging ineffective assistance of counsel, i.e., whether counsel’s alleged ineffectiveness prejudiced the defendant, the Skipper case offers no guidance as to the first prong of the Strickland standard — whether counsel’s decision to rely on expert testimony based on interviews with Perkins and his family members rather than on objective documentary evidence “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Accordingly, Skipper is not helpful.

We decline to extend the cases Perkins cites to hold that Perkins’s trial counsel were ineffective for failing to present the documentary evidence in question. Accordingly, Perkins has failed to show good cause for the discovery he seeks, and he has not met his burden for the issuance of a writ of mandamus.

PETITION DENIED.

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

STUART, J., concurs in the result.

      . Perkins also asserted a juror-misconduct claim in his Rule 32 petition. The circuit court granted Perkins a hearing on that claim also. Perkins’s juror-misconduct claim, however, is not an issue in this appeal.

      . Perkins concedes that he is not entitled to inspect records of the Board other than those that indicate the Board members’ reasons for granting him parole on his earlier convictions.

      . We note that Perkins fails to attach his Rule 32 petition to his petition for a writ of mandamus. The standard for determining whether discovery should be allowed in a Rule 32 proceeding is whether a Rule 32 petitioner has made allegations that, if proven, would entitle him to relief. Ex parte Land, 775 So.2d at 852. Of course, in considering a petition for the writ of mandamus, we have before us only so much of the record as is made a part of the petition and the answer. While better practice would call for attaching a copy of the Rule 32 petition to the mandamus petition, the State does not here argue that the descriptions of the matters alleged in the Rule 32 petition as set forth in Perkins's discovery motion are either inaccurate or misleadingly incomplete.

      . Perkins also cites Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Woodson simply held unconstitutional a statute providing for a mandatory death sentence for first-degree murder and held that death-penalty statutes must allow for a "particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.”

      . Under §§ 13A-5-45 and 13A-5-46, Ala. Code 1975, the trial court has the ultimate authority to determine whether a convicted defendant will receive the death penalty. The jury’s recommendation is just that — a recommendation. It is not binding on the trial court. One might argue that, because the trial court in the instant case found the existence of the mitigating factors Perkins now seeks to show postconviction, it is irrelevant that those factors were presented through expert testimony based on interviews of Perkins and his family. In other words, the trial court obviously was not swayed by the lack of objective documentary evidence. However, in Ex parte Smith, [Ms. 1010267, March 14, 2003], - So.2d -, - (Ala.2003), we said:
      "We will not undermine the responsibilities and duties of the jury during the penalty phase. § 13A-5-46, Ala. Code 1975. Although the trial court is not bound by the jury's sentencing recommendation, it is a factor in the trial court's determination....
      "Additionally, we note that while the trial court found [the defendant's] evidence significant in its determination of mitigating circumstances and considered those mitigating circumstances in the weighing process, this fact alone does not render the error harmless; in fact, it indicates that the jury’s advisory verdict, if the evidence had been developed and the jury allowed to consider it, may have been different.”
      Ultimately, Smith is not helpful to Perkins in that, like Skipper, it involved whether the harmless-error rule excused a trial court's exclusion during the sentencing phase of the trial of evidence that would have shown the defendant's dysfunctional family background; it did not involve a claim of ineffective assistance. Further, Smith is also distinguishable to the extent that the opinion holds that the mitigating evidence the trial court excluded was not cumulative of evidence that was presented during the sentencing phase.

      . Our holding in the instant case that the documents Perkins seeks contain evidence that is merely cumulative of that presented during the sentencing phase calls into question whether the Court of Criminal Appeals in Perkins I should have granted Perkins access to some of the other documents he requested in the trial court and to which his mandamus petition in that court was also directed, which documents would also contain additional evidence of his dysfunctional childhood. However, the validity of Perkins I is not before us.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Ex parte Howard DANIELS and Ronald Sellers. (In re Donna Walker, individually and as personal representative of the estate of Julius Finley, Jr., deceased v. Howard Daniels and Ronald Sellers, individually and in their capacities as warden and assistant warden of the Camden Community Based Facility).
    1040771.
    Supreme Court of Alabama.
    April 21, 2006.

      Kim T. Thomas, gen. counsel and deputy atty. gen., and Greg Biggs, asst. gen. counsel and asst. atty. gen., Alabama Department of Corrections, for petitioners.
    T. Blake Liveoak of Collins, Liveoak & Boyles, P.C., Birmingham, for respondent.
   SMITH, Justice.

Howard Daniels and Ronald Sellers, the warden and assistant warden, respectively, of the Camden Community Based Facility, petition for a writ of mandamus directing the trial court to transfer the underlying action pending in the Wilcox Circuit Court to the Montgomery Circuit Court. We grant the petition.

Facts and Procedural History

Julius Finley, Jr., was an inmate at the Camden Community Based Facility, a work-release facility in Wilcox County operated by the Alabama Department of Corrections. While Finley was an inmate, Daniels was the warden of the facility, and Sellers was the assistant warden.

On May 2, 2002, Finley lost consciousness. He was allegedly placed in his bed at the facility, and, when he did not later regain consciousness, he was transported to Atmore Community Hospital on May 3, 2002. Finley died the next day.

In August 2003, Donna Walker, Finley’s daughter and the personal representative of his estate, sued the Camden Community Based Facility; Wilcox County; and Daniels and Sellers, individually and in their official capacities, in the circuit court in Talladega County, where she resided. The action sought damages for negligence, negligent supervision and training, and the denial of medical attention in violation of Finley’s civil rights.

In a motion dated September 9, 2003, Wilcox County moved the Talladega Circuit Court to dismiss it from the case or to transfer the action-to Wilcox County, the county in which the Camden Community Based Facility is located. Three days later, the Talladega Circuit Court transferred the case to the Wilcox Circuit Court.

On November 25, 2003, the Camden Community Based Facility, Daniels, and Sellers' filed a motion to dismiss. This motion raised various defenses, including immunity and Walker’s failure to state a claim upon which relief could be granted.

According to Walker, in January 2004 she “agreed” to dismiss Wilcox County from the action. However, all of the defendants were apparently dismissed from the case at that time. Walker filed a motion to alter, amend, or vacate the trial court’s order insofar as it dismissed Daniels and Sellers from the action. The trial court granted this motion on January 30, 2004, by a stamp and the following notation on a copy of the motion: “Case reinstated; motion to dismiss is denied: order of dismissal is set aside and voided.” The trial judge initialed the notation.

On February 6, 2004, Walker amended the complaint to allege violations of 42 U.S.C. §§ 1983 and 1985 and to assert a claim under the Alabama Wrongful Death Act. This amended complaint specifies Daniels and Sellers as the defendants; it also includes fictitiously named defendants “A-D,” who were guards or employees of the Camden Community Based Facility.

On March 17, 2004, the Alabama Department of Corrections, which is not a named party in this case, filed a motion in the trial court arguing that Ala.Code 1975, § 6-3-9, required that the action be transferred to the Montgomery Circuit Court. Walker filed an objection, and the trial court did not immediately rule on the motion.

On January 31, 2005, Daniels and Sellers filed a motion titled “Renewed Motion for Change of Venue and Stay of All Proceedings.” This motion renewed the March 17 motion for a change of venue. Walker filed a response to the motion, arguing that both the March 17, 2004, motion filed by the Department of Corrections and the January 31, 2005, motion filed by Daniels and Sellers were due to be denied because: (1) Daniels and Sellers did not raise the issue of improper venue in their November 25, 2003, motion to dismiss, and (2) the March 17, 2004, motion was untimely.

According to the case action summary, on February 23, 2005, the trial court denied both motions to transfer. Daniels and Sellers subsequently filed a petition for a writ of mandamus requesting that the trial court be directed to transfer the action to the Montgomery Circuit Court. We grant the petition and issue the writ.

Standard of Review

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ ” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002) (quoting Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000)).

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.”

Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). “This Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue.” Ex parte Perfection Siding, Inc., 882 So.2d 307, 310 (Ala.2003).

Discussion

Daniels and Sellers argue that Ala. Code 1975, § 6-3-9, requires that this case be transferred to Montgomery County. Section 6-3-9 provides:

“All actions where the prison system or the state on account of the prison system is interested must be commenced in Montgomery County in any court having jurisdiction of the amount involved, except actions to condemn property under Section 18-1A-271, which must be commenced in the county where the property sought to be condemned is located. And if, on the trial of any case in any county, it is suggested by the Board of Corrections or is otherwise shown that the state is interested on account of the prison system, such case must be transferred to the proper court of Montgomery County. All actions commenced under this section must be commenced in the name of the state.”

This Code section has been generally interpreted as controlling the venue of actions involving the prison system. See, e.g., Ex parte Madison County, 406 So.2d 398 (Ala.1981); Hartley v. State, 882 So.2d 869 (Ala.Civ.App.2003); and Pinkard v. State, 859 So.2d 449 (Ala.Crim.App.2003).

In Ex parte Madison County, the plaintiffs filed in the Madison Circuit Court a declaratory-judgment action against the Governor of the State of Alabama, in his capacity as temporary receiver of the prison system of Alabama; the commissioner of the Department of Corrections; and others. 406 So.2d at 399. The action sought declaratory relief regarding, among other things, the confinement of state prisoners in the Madison County jail. The Governor and the commissioner moved the trial court to transfer the case to the Montgomery Circuit Court, arguing that § 6-3-9 mandated such a transfer. The trial court granted the motion, and the plaintiffs petitioned this Court for a writ of mandamus directing the trial court to vacate its order transferring the case.

In denying the petition, we stated:

“The plain language of this statute mandates the venue as Montgomery County when the State Prison System ‘is interested.’ That phrase, in fact, is repeated within the body of the statute. The phrase ‘[a]ll actions’ is clear and unambiguous, and means what the phrase describes, ‘[a]ll actions,’ whether those initiated by the state or those in which the state’s ‘system’ is a party. The concluding sentence of the statute refers to only one category of ‘[a]ll actions,’ i.e., those commenced by the state — those must be commenced in the state’s name (rather than in the names of those holding positions of authority). Cf. Moore v. Stephens, 264 Ala. 86, 84 So.2d 752 (1956) (Syl. 4).
“The petitioners’ scholarly argument in brief dealing with the historical development of and changes in this statute to the effect that its present language signifies a legislative intent to govern only those actions filed by the state, is unpersuasive. Our cases uniformly hold that plain language in a statute should be considered to mean what it says. Fletcher v. Tuscaloosa Fed. Sav. and Loan Assn., 294 Ala. 173, 314 So.2d 51 (1975); State v. Robinson Land & Lumber Co. of Ala, 262 Ala. 146, 77 So.2d 641 (1955); Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720 (1936). Accordingly, we hold that § 6-3-9 controls the venue of this action. The Governor of Alabama, as ‘Temporary Receiver’ of the prison system, and the Prison System Commissioner are made parties defendant. The state ‘on account of the prison system’ is interested in the action because those officials in their official capacities are sought to be made liable for past and future expenditures made by the plaintiffs on behalf of state prisoners housed in the Madison County jail.”

Ex parte Madison County, 406 So.2d at 400-01.

The Department of Corrections is vested with all the responsibilities, powers, and authority previously vested in the Board of Corrections. Ala.Code 1975, § 14-1-1.1. Additionally, the Department of Corrections “is a department of the State.” Latham v. Department of Carr., 927 So.2d 815, 820 (Ala.2005). Daniels and Sellers are each being sued in their official capacities as warden and assistant warden, respectively, for acts performed in operating a corrections facility and caring for an inmate. Consequently, Walker essentially asserts claims against the Department of Corrections and the State of Alabama. See Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (“[Cjlaims against state officers in their official capacity are ‘functionally equivalent’ to claims against the entity they represent.”). Thus, it is clear that “the state is interested” in this action “on account of the prison system.” See Hartley v. State, 882 So.2d 869, 871 (Ala.Civ.App.2003) (holding that, for purposes of § 6-3-9, an action against a warden of a correctional facility based on conditions at the facility is a suit against “the state prison system”).

The plain language of § 6-3-9 does not require that the Department of Corrections or the State be named as a party; instead, it must merely be “suggested by the [Department] of Corrections or ... otherwise shown that the state is interested on account of the prison system.... ” At that point, the case “must” be transferred to Montgomery County. It would thus appear that, under the plain language of 6-3-9, the instant case “must” be transferred to the Montgomery Circuit Court pursuant to § 6-3-9. See Ex parte Madison County, supra; Hartley, supra. Walker, however, argues that the requests to transfer in this case are untimely because Daniels and Sellers did not request a change of venue in their November 25, 2003, motion to dismiss.

Under Rule 12, Ala. R. Civ. P., a claim of improper venue generally must be raised in the first responsive pleading by a party or in a motion filed before the first responsive pleading. See Rule 12(b), (g), and (h), Ala. R. Civ. P. If it is not raised, the issue may be deemed waived. See Ex parte Till, 595 So.2d 871, 872 (Ala.1992) (“Rule 12(b), therefore, requires that a claim of ‘improper venue’ be made in the responsive pleading or in a motion filed before the responsive pleading.... If a party fails to raise a Rule 12(b)(3) objection in the first responsive pleading or in a motion filed before that first responsive pleading, the objection is waived.”).

Howell, the plaintiff in Ex parte Children’s Hospital of Alabama, 721 So.2d 184 (Ala.1998), was struck by an automobile while he was riding a bicycle in Walker County. He was initially treated at a hospital in Walker County, but he was later transported to Children’s Hospital in Jefferson County. Subsequently, Howell filed an action in Walker County against several defendants, including the driver of the automobile that struck him. Howell later amended the complaint to add a medical-malpractice action against fictitiously named defendants who had treated him at the hospital in Walker County, as well as certain health-care providers in Jefferson County, including Children’s Hospital.

Children’s Hospital moved to transfer the action to Jefferson County, but the trial court denied the motion. Subsequently, during four years of discovery, Howell amended the complaint several times. After the final amendment, Children’s Hospital and the other health-care providers again moved the trial court to transfer the action to Jefferson County pursuant to Ala.Code 1975, § 6-5-546. A hearing was held on the motion to transfer, and Howell’s counsel stated that no Walker County health-care providers would be named as defendants. The trial court subsequently denied as untimely the Jefferson County health-care providers’ motions to transfer. Children’s Hospital then petitioned this Court for a writ of mandamus.

This Court granted the petition and issued the writ. We held that the plain language of Ala.Code 1975, § 6-5-546, required a change of venue. Section 6-5-546 provides, in pertinent part:

“In any action for injury or damages or wrongful death whether in contract or in tort against a health care provider based on a breach of the standard of care, the action must be brought in the county wherein the act or omission constituting the alleged breach of the standard of care by the defendant actually occurred. If plaintiff alleges that plaintiffs injuries or plaintiffs decedent’s death resulted from acts or omissions which took place in more than one county within the State of Alabama, the action must be brought in the county wherein the plaintiff resided at the time of the act or omission, if the action is one for personal injuries, or wherein the plaintiffs decedent resided at the time of the act or omission if the action is one for wrongful death. If at any time pri- or to the commencement of the trial of the action it is shown that the plaintiffs injuries or plaintiffs decedent’s death did not result from acts or omissions which took place in more than one county, on motion of any defendant the court shall transfer the action to such county wherein the alleged acts or omissions actually occurred. ...”

(Emphasis added.) We noted in Ex parte Children’s Hospital:

“Under § 6-5-546, if the acts or omissions giving rise to medical liability occurred in one county, an action based on those acts or omissions ‘must’ be brought in that county. If the acts or omissions giving rise to medical liability occurred in more than one county, however, then an action based on those acts or omissions ‘must’ be brought in the county where the plaintiff resided at the time of the acts or omissions.”

721 So.2d at 188.

Howell argued that the motions for a change of venue filed by the Jefferson County health-care providers were untimely under Rule 12(h)(1), Ala. R. Civ. P., and Rule 82(d)(2)(C), Ala. R. Civ. P. These provisions, we noted, generally control the timing of challenges to venue:

“Rule 12(h)(1) provides the general timing rule applicable to a defendant’s challenge of venue by a motion or responsive pleading. Rule 82(d)(2)(C)(i) provides the general timing rule for multiple-party actions, requiring a defendant to challenge venue within 30 days of the dismissal of the party that had made venue proper in the forum. If the defendant did not strictly adhere to the timing requirements, his challenge to venue was waived. Rules 12(h)(1), 82(d)(2)(C)(iii), Ala. R. Civ. P.
“... [I]n drafting a new statute with respect to a particular cause of action, the Legislature can either default to the general venue statutes, by not mentioning venue, or it can make special statutory provisions for venue for that particular cause of action. Similarly, with respect to challenges to venue, the Legislature can leave the timing of such challenges to the general provisions of the rules, by not mentioning a timing requirement for challenging venue; this is what it did in §§ 6-3-2, 6-3-6, and 6-3-7. Alternatively, it could make special provisions for the timing of challenges to venue, by specifically addressing such timing in the statute.... ”

721 So.2d at 187-88 (footnotes omitted). The main opinion in Ex parte Children’s Hospital went on to hold that, in light of the plain language of 6-5-546, the waiver and timing provisions of Rule 12(h)(1) and Rule 82(d)(2)(C) did not apply:

“All of the Health Care Defendants moved to transfer the claims to Jefferson County. Howell contends that their motions were untimely under the general timing provisions of Rule 12(h)(1) and Rule 82(d)(2)(C)(i). Based on the plain language of the timing sentence of § 6-5-546, we disagree.
“The 1987 Act also addressed the timing of venue challenges. Evidently unsatisfied with the application of the general timing provisions of the rules to medical liability actions, the Legislature chose not to default to Rule 12(h)(1)' or Rule 82(d)(2)(C)(i) by remaining silent. Instead, it expressly provided a special timing sentence in § 6-5-546. See [City of Birmingham v.] Hendrix, 257 Ala. [300] at 307, 58 So.2d [626] at 633 [ (1952) ]. The special timing sentence in § 6-5-546 reads:
“ Tf at any time prior to the commencement of the trial of the action it is shown that the plaintiffs injuries or plaintiffs decedent’s death did not result from acts or omissions which took place in more than one county, on motion of any defendant the court shall transfer the action to such county wherein the alleged acts or omissions actually occurred.’
“(Emphasis added.) The plain meaning of these words is that if ‘at any time prior to the commencement of the trial,’ any party ‘show[s]’ that venue is improper under § 6-5-546, a single defendant may then make a ‘motion’ to transfer the [medical] malpractice claims, and the trial court ‘shall’ grant that motion.... By providing that both the showing of improper venue and the motion to transfer could be made ‘at any time prior to the commencement of the trial,’ the Legislature showed a clear intent to assure that the new venue benefit conferred on health care defendants would not be vitiated by the strict timing provisions of Rule 12(h)(1) and Rule 82(d)(2)(C)(i).”

721 So.2d at 189. See also Ex parte Kennedy, 656 So.2d 865, 367-68 (Ala.1995) (holding that § 6-5-546 supersedes any contradictory provisions of Rule 82(c), Ala. R. Civ. P., governing venue when claims or parties have been joined).

The language of § 6-3-9 is similar to the language of § 6-5-546, and we find the rationale of Ex parte Children’s Hospital persuasive. Section 6-3-9 states that a case “must” be transferred to Montgomery County “if, on the trial of any case,” it is suggested by the Department of Corrections or is otherwise shown that the State is interested in the case “on account of the prison system.” The plain language of the phrase “if, on the trial of any case” indicates that the suggestion (or demonstration) that the State is interested may be made, as in this case, before trial. Thus, § 6-3-9, like § 6-5-546, contains an express timing provision that is not “vitiated by the strict timing provisions of Rule 12(h)(1).” Ex parte Children’s Hospital, 721 So.2d at 189. See also Ex parte Kennedy, supra. The suggestion that the State and the Department of Corrections were interested in the instant case and in the transfer of the case was first made on March 17, 2004, and this case has yet to go to trial. Therefore, under the plain language of § 6-3-9, the suggestion that the case must be transferred to Montgomery County was not waived by failing to raise the transfer issue in the November 25, 2003, motion to dismiss.

Walker also alleges that the issue of improper venue has been waived because, she argues, Daniels and Sellers should have petitioned for a writ of mandamus, but did not, when their November 25, 2003, motion to dismiss was denied in January 2004. Additionally, Walker argues that Daniels and Sellers failed to raise the issue of improper venue at an October 18, 2004, pretrial conference and did not object when the action was transferred from the Talladega Circuit Court to the Wilcox Circuit Court.

As Walker notes, Daniels and Seller’s November 25, 2003, motion to dismiss did not assert that venue in Wilcox County was improper; thus, they could not have sought a writ of mandamus directing the trial court to vacate its order denying that motion and to transfer the case because the trial court’s order did not address a request to transfer. As to the issue of the October 18, 2004, pretrial conference, which was scheduled pursuant to a general pretrial scheduling order, the materials before us simply do not indicate what issues were discussed at the conference, and it appears from the case action summary that another “pretrial conference” was scheduled for February 23, 2005, the day the motions for a change of venue were denied. Finally, the Talladega Circuit Court immediately transferred the action to the Wilcox Circuit Court on Wilcox County’s motion, and it is unclear whether Daniels and Seller even had an opportunity to object to that transfer; in any event, as noted above, the requests to transfer were timely filed under § 6-3-9. We are therefore unable to conclude that the issue of improper venue under § 6-3-9 was waived.

Conclusion

The plain language of § 6-3-9 requires that this action be transferred from Wilcox County to Montgomery County, and the request to transfer the case was not untimely; therefore, the trial court is directed to transfer this action to the appropriate court in Montgomery County.

PETITION GRANTED; WRIT ISSUED.

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

      . The caption of the complaint also lists the City of Camden as a defendant; however, the body of the complaint does not allege any wrongdoing by the City of Camden.

      . The trial court's notation appears to set aside its entire order of dismissal. However, Walker's motion only requested that the ruling dismissing Daniels and Sellers be set aside. From the pleadings filed in this Court, it appears that only Daniels and Sellers remain as parties in the underlying action and that the Camden Community Based Facility and Wilcox County are no longer parties.

      .It does not appear that Daniels and Sellers have filed answers in this case.

      . Our decision in this case should not be construed as interpreting § 6-3-9 to disallow the waiver of a claim of improper venue under that Code section. See Ex parte Tanksley, 418 So.2d 94 (Ala.1982) (holding that under the facts of that case the plaintiff's particular conduct and belated request to transfer the case waived the issue of improper venue). Instead, the facts of this case simply do not demonstrate that the issue of improper venue was waived.


author: SEE, Justice.

text:
    Ex parte Robert Earl WOODS. (In re Robert Earl Woods v. State of Alabama).
    1041615.
    Supreme Court of Alabama.
    April 21, 2006.

      Robert Earl Woods, pro se.
    Kim T. Thomas, deputy gen. counsel and asst. atty. gen., and Albert S. Butler, asst, gen. counsel and asst. atty. gen., Alabama Department of Corrections.
   SEE, Justice.

Robert Earl Woods petitions this Court for a writ of mandamus; he asks us to direct the Montgomery Circuit Court to vacate its order, which converts Woods’s petition for the writ of certiorari into a petition for a writ of habeas corpus and transfers the petition to the St. Clair Circuit Court. We grant Woods’s mandamus petition.

While Robert Earl Woods was detained at the St. Clair Correctional Facility, he was accused of possessing contraband and of lying to a corrections officer. After hearings, a disciplinary board of the Alabama Department of Corrections (“the DOC”) found Woods guilty of violating certain prison regulations, and it imposed sanctions, including removing Woods from working in the leather shop, removing him from the “Incentive Package Program,” removing him as president of St. Clair Volunteers In Correction Program, and making him ineligible for transfer to a correctional institution closer to his home. In addition, Woods became ineligible for placement in the “Faith Based Honor Dorm.”

By way of a petition for a writ of certio-rari, Woods petitioned the Montgomery Circuit Court for review of the disciplinary board’s ruling. The DOC moved the Montgomery Circuit Court to convert Woods’s certiorari petition into a petition for a writ of habeas corpus and to transfer the habeas corpus petition to the Circuit Court in St. Clair County, the county in which Woods is incarcerated. The Montgomery Circuit Court granted the DOC’s motion.

Woods petitioned the Court of Criminal Appeals for a writ of mandamus directing the Montgomery Circuit Court to vacate its order. The Court of Criminal Appeals dismissed Woods’s mandamus petition, without an opinion. Ex parte Woods (No. CR-04-2046, July 14, 2005), — So.2d -(Ala.Crim.App.2005) (table).

Woods now petitions this Court for a writ of mandamus; he asks us to direct the Montgomery Circuit Court to vacate its order converting Woods’s petition for a writ of certiorari into a petition for a writ of habeas corpus and transferring his petition to the St. Clair Circuit Court.

“ ‘A writ of mandamus is an extraordinary form of relief.’ Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810 (Ala.2002). ‘[A] writ [of mandamus] will issue only upon a showing of “(a) a clear legal right in the petitioner to the order sought, (b) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court.” ’ Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)).”

Ex parte City of Tuskegee, 932 So.2d 895, 900 (Ala.2005).

Woods argues that the proper vehicle to challenge the disciplinary board’s ruling is a petition for the writ of certiorari, not a petition for the writ of habeas corpus, because, he says, the sanctions imposed do not implicate any liberty interest. Therefore, Woods argues, the Montgomery Circuit Court’s conversion of his petition into a petition for the writ of habeas corpus was improper.

Generally, review by way of a petition for the writ of habeas corpus is not appropriate unless the inmate alleges a deprivation of a liberty interest or unless a liberty interest is at stake. See § 15-21-1, Ala.Code 1975 (“Any person who is imprisoned or restrained of his liberty in the State of Alabama on any criminal charge ... may prosecute a writ of habeas corpus .... ”). See also Ex parte Boykins, 862 So.2d 587, 591 (Ala.2002) (“The courts of this State have long recognized that the only purpose of the writ of habeas corpus is to afford relief against actual restraints upon liberty.”); State v. Speake, 187 Ala. 426, 427, 65 So. 840, 841 (1914) (“The writ of habeas corpus has been defined, or rather described, as ‘that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained.’”); and Williams v. State, 42 Ala.App. 140, 140, 155 So.2d 322, 323 (1963) (“ ‘It should always be borne in mind that the applicant for the writ of habeas corpus is not entitled to the writ unless he is actually restrained of his liberty.... Mere moral restraint (such as a military arrest, confinement to quarters, or parole, for example), as distinguished from actual confinement, is generally insufficient to warrant issuance of the writ.’” (quoting Walter B. Jones, Habeas Corpus, State and Federal, Ala. Law. 384 (Oct. 1952))). Thus, the protections of due process are implicated only when a loss of a protected liberty interest is at stake. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Slawson v. Alabama Forestry Comm’n, 631 So.2d 953, 957 (Ala.1994).

Woods alleged in his petition for certiorari review that he was denied due process (1) “upon a finding that he was guilty of possession of contraband,” (2) “for sanctions placed upon him that [were] not imposed by the Hearing Officer,” (3) “when the Wardens refused to give him copies of the approved Disciplinaries Report which lists the finding of facts to the Circuit Court for review,” (4) “when he was punished beyond the subscribed punishment designed by the Hearing Officer,” and (5) “when the Hearing Officer refused to consider the evidence presented] by [Woods].” (Woods’s certiorari petition, pp. 3-4, 8.) Although Woods does frame his substantive arguments in terms of due-process violations and although an inmate is entitled to due process only when a liberty interest is at stake, Woods states separately that he has not been deprived of any liberty interest. The sanctions the DOC imposed against him did not involve any liberty interest.

Therefore, Woods’s certiorari petition cannot be reviewed as a petition for the writ of habeas corpus; it does not seek relief from a restraint on any liberty Woods presently enjoys. Thus, Woods has a clear legal right to have the trial court’s order, which converts his certiorari petition into a petition for the writ of habeas corpus and on that basis transfers the petition to the St. Clair Circuit Court, vacated.

Woods also has a clear legal right to have his certiorari petition heard by the Montgomery Circuit Court. A petition for the writ of certiorari against the DOC should be filed in the Montgomery Circuit Court, the location of the DOC’s headquarters. See Boykins v. State, 862 So.2d 594, 595 (Ala.Crim.App.2003) (“a petition for writ of certiorari against an administrative agency, in this instance, DOC, should be filed in ‘the Circuit Court of Montgomery County or in the circuit court of the county in which the agency maintains its headquarters’” (quoting § 41-22-20(b), Ala. Code 1975)). See also § 6-3-9, Ala.Code 1975 (“All actions where the prison system or the state on account of the prison system is interested must be commenced in Montgomery County in any court having jurisdiction of the amount involved.... ”). Thus, because Woods’s petition for the writ of certiorari is in substance a certiora-ri petition seeking review of the actions of the DOC, Woods is clearly entitled to have that petition heard in the Montgomery Circuit Court.

“This Court has recognized that ‘[a] petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue.’ ” Ex parte Harper, 934 So.2d 1045, 1047 (Ala.2006) (quoting Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5 (Ala.2005)). As we discuss above, pursuant to § 41-22-20(b), Ala.Code 1975, venue for Woods’s certiorari petition is proper only in the Montgomery Circuit Court. Therefore, the trial court erred in transferring Woods’s petition to the St. Clair Circuit Court.

We conclude that Woods has established a clear legal right to have his certiorari petition heard in the Montgomery Circuit Court. We therefore grant Woods’s petition for the writ of mandamus, and we direct the Montgomery Circuit Court to vacate its order converting Woods’s petition for the writ of certiorari into a petition for the writ of habeas corpus and transferring that petition to the St. Clair Circuit Court.

PETITION GRANTED; WRIT ISSUED.

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

      . Nothing in this opinion should be construed as an expression on the merits of Woods’s certiorari petition.


author: WOODALL, Justice.

text:
    J.A. WEEKS, Sr., and Bonnie W. Weeks v. WOLF CREEK INDUSTRIES, INC., et al. Wolf Creek Industries, Inc., et al. v. J.A. Weeks, Sr., and Bonnie W. Weeks.
    1041189 and 1041264.
    Supreme Court of Alabama.
    April 21, 2006.

      Jessica M. McDill of Chason & Chason, P.C., Bay Minette, for appellants/cross-ap-pellees J.A. Weeks, Sr., and Bonnie W. Weeks.
    Blane H. Crutchfield and Katie L. Hammett of Hand Arendall, L.L.C., Mobile, for appellees/cross-appellants Wolf Creek Industries, Inc., et al.
   WOODALL, Justice.

These appeals arise out of a declaratory-judgment action commenced by J.A. Weeks, Sr., and Bonnie W. Weeks, husband and wife, against The Commons, LLC, Wolf Creek Industries, Inc., Summit Construction Company, Inc., and Remington, Inc. (hereinafter collectively referred to as ‘Wolf Creek”), challenging Wolf Creek’s right to use an easement running through the Weekses’ property from County Road 49 in Baldwin County to the west bank of Spring Branch, known locally as part of Van Wezel Lane (“the Lane”). From a judgment declaring that Wolf Creek has a right to use the Lane, but broadly restricting that right, the Weekses appealed (case no. 1041189) and Wolf Creek cross-appealed (case no. 1041264). We affirm that aspect of the judgment challenged in the appeal, but reverse that aspect of the judgment challenged in the cross-appeal and render a judgment for Wolf Creek.

I. Factual Background

All the land involved in these proceedings originally belonged to Rae Breed Walker and her husband, Ralph A. Walker. The land lies in Baldwin County along the north side of the Magnolia River and on either side of a small tributary known as Spring Branch. Running along the western border of the Walker property is County Road 49.

In 1984, the Walkers began subdividing their property. In September of that year, the Walkers sold a tract east of Spring Branch to James Graham. In 1935, the Walkers conveyed a similarly situated tract to Josiah Test.

On March 29, 1939, the Walkers conveyed all their land on the west bank of Spring Branch to George N. Trich and Minnie B. Trich. Thus, following that conveyance, the Trich tract consisted of land bounded on the west by County Road 49, on the east by Spring Branch, and on the south by the Magnolia River. The Walker-to-Trich deed expressly “except[ed] therefrom a private lane across said lot and along the North bank of Magnolia River,” namely, the Lane.

Through a succession of conveyances, the Trich tract passed to the Weekses on May 31, 1991. Each of those conveyances expressly reserved an easement in the Lane by “excepting] a private road running along Magnolia River.” The Weeks-es’ deed contained an additional description of the Lane as being “an easement for a road right of way over and across the Southern portion thereof, roughly parallel to the Magnolia River, that affords ingress and egress to ownership lying East of Spring Branch, to and from County Highway No. 49.”

Meanwhile, the Walkers continued to subdivide their property 'east of Spring Branch. In 1939, the Walkers conveyed to Dr. Arthur Owens a tract of land south of the tract conveyed to Test. By a separate conveyance dated December 2, 1939, the Walkers conveyed to Dr. Owens a perpetual easement of right-of-way, described, in pertinent part, as running along the north border of the Graham tract to the east border of the Graham tract. As defined by that conveyance, the Lane, once it crossed Spring Branch took a slight northward turn and the eastern end of the Lane terminated at the western border of land still owned by the Walkers, which now forms the eastern border of the land owned by Wolf Creek. The land granted to Dr. Owens forms a small portion of the land now owned by Wolf Creek. However, the Weekses do not challenge the right of persons living specifically within the metes and bounds of property formerly owned by Dr. Owens to use the Lane. In January 1941, the Walkers conveyed to George A. Brown a tract of land bordered on the west by Spring Branch and lying between the tracts conveyed to Graham and Test.

On December 8, 1945, the Walkers conveyed to M.J. Moore and T.G. Moore 130 acres abutting the properties of Graham, Brown, Test, and Owens on the east, the Magnolia River on the south, and United States Highway 98 on the north. The deed did not mention the Lane.

In March 1947, the Walkers conveyed to Earnest H. Kline and Josephine Kline a tract of land to the north of, and abutting, the Graham tract. The Kline conveyance expressly excepted the easement conveyed to Dr. Owens, which thus ran along the southern border of the Klines’ tract.

In 1954, the Moores conveyed to Norman Van Wezel and Hannah Van Wezel 19.3 acres in the southwest portion of the tract the Moores had purchased from the Walkers. In June 1973, Hannah Van Wez-el, then a widow, subdivided that 19.3 acres into 10 lots and recorded the subdivision in a plat map creating Magnolia Springs Estates. From 1985 through 1988, all 10 lots were sold, and some of the lots were occupied by residents.

Ultimately, Wolf Creek purchased all the land the Moores had conveyed to the Van Wezels. Additionally, Wolf Creek purchased land in the northwest portion of the tract the Walkers had conveyed to the Moores, lying north of the 19.3-acre Magnolia Springs Estates, as well as the tract conveyed by the Walkers to Dr. Owens. Consequently, the land owned by Wolf Creek abuts highway 98 on the north, Magnolia River on the south, and the east end of the Lane, which runs westward to County Road 49. Wolf Creek subsequently filed a “Declaration of Condominium of The Commons, a Condominium,” dedicating its property to residential and commercial development. The Commons consists of 46 planned single-family residential units, two duplex units, for a total of 50 residential units, and four commercial units. At the time of the trial of this case, Wolf Creek had sold only a few of the residential units to individual residents of The Commons.

The Weekses objected to the use of that portion of the Lane crossing their property, particularly during the “construction phase” of The Commons, by parties associated with Wolf Creek, and they commenced this action. They sought a judgment declaring that Wolf Creek owns “no right, title, or interest in” the Lane and permanently enjoining Wolf Creek from using the Lane. After a bench trial, the court entered a final judgment, concluding, in pertinent part, that “the owners of The Commons, as the same now exists, are entitled to use [the Lane] ... by virtue of the express grant of the easement ... appurtenant.” The court made this holding subject, however, to the following exceptions:

“1. The right of use shall exist only in favor of the owners of the record title to the 50 single family residential dwelling units in The Commons, together with those dependents of such owners who are related by blood or marriage to the owner and whose principal residence is in the unit.
“2. No right of use shall exist in favor of any owner of any part of the Commercial site in The Commons, including that designated on the plat as Unit C-l.
“3. No independent right of use shall exist in favor of guests or invitees of owners of residential dwelling units in The Commons, including those providing repairs or maintenance, utility or government employees, contractors, or family members other than those specifically included above.
“4. The purpose of any use shall be only for ingress to or egress from residential dwellings in The Commons and county road 49.
“5. No use may be made for the installation of utilities or other incidental uses.
“6. No use may be made for commercial or developmental purposes, including moving garbage from The Commons to a collection point at county road 49.
“7. Any use must be by passenger vehicle with a normal seating capacity of not more than 8 passengers, and no use may be made by any trailers, panel trucks, or buses.
“8. No pavement, hard surface or other improvement may be constructed on the easement which is more than 8 feet in width.
“9. The [Weekses], their heirs or assigns, shall be entitled to construct on the easement reasonable speed bumps or other similar traffic controls, with appropriate warnings.
“10. The property owners association in The Commons shall be required to keep and maintain in place a gate or access control similar to that which is presently in place at the east end of Van Wezel Lane and to take all steps within its power to ensure compliance by its members with the restrictions contained herein, including making keys available only to those owners in The Commons who are entitled to the use of Van Wezel Lane.
“11. The [Weekses], their heirs or assigns, shall be authorized at their discretion to construct and maintain a gate or other access control at the west end of Van Wezel Lane and to make keys available only to those entitled to the use of Van Wezel Lane.”

In case no. 1041189, the Weekses appeal from that portion of the judgment holding that “the owners of The Commons, as the same now exists,” have an express easement appurtenant over the Lane. In case no. 1041264, Wolf Creek cross-appeals from that portion of the judgment limiting its use of the Lane. We first address issues raised in the Weekses’ appeal.

II. Case No. 1011189

In their appeal, the Weekses present two issues that we must address. First, they contend that the trial court erred in holding that their property is burdened by an express easement appurtenant to all the property acquired by Wolf Creek in the chain of title of the Van Wezels. Second, they argue that the trial court erred in failing to further limit the use of the Lane to the owners of units located on property acquired by Wolf Creek in the chain of title of Dr. Owens, which comprises only units 38 and 34 of The Commons as it currently exists. The second issue will be addressed in connection with Wolf Creek’s cross-appeal.

A. Standard of Review

“ Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” Pollard v. Unus Props., LLC, 902 So.2d 18, 23 (AIa.2004) (quoting American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997)). “However, as to issues of law, or ‘where there are no disputed facts and where the judgment is based entirely upon documentary evidence, no such presumption of correctness applies; our review is de novo.’” Padgett v. Conecuh County Comm’n, 901 So.2d 678, 685 (Ala.2004) (quoting Alfa Mut. Ins. Co. v. Small, 829 So.2d 743, 745 (Ala.2002)). Moreover, no presumption of correctness attaches to the trial court’s conclusions of law or to its improper application of law to the facts. American Petroleum Equip., 708 Sp.2d at 132.

All parties concede that the proper standard of review of the issue on appeal in case no. 1041189 is de novo. This is so, because its resolution involves merely the application of legal principles to the documentary evidence presented.

B. Analysis

An easement may be acquired “(1) by express conveyance, (2) by reservar tion or exception, (3) by implication, (4) by necessity, (5) by prescription, (6) by contract, and (7) by reference to boundaries or maps.” Helms v. Tullis, 398 So.2d 253, 255 (Ala.1981) (emphasis added). The Weekses concede that their land is burdened by an express easement appurtenant to the tract conveyed by the Walkers to Dr. Owens. In other words, they acknowledge the existence of a “dominant tenement” in the hands of the successors in title to Dr. Owens.

“The meaning of the term ‘dominant tenement’ and the distinction between an appurtenant easement and one in gross has been described as follows:
“‘A parcel of land benefited by an easement is described as the dominant estate or the dominant tenement. By definition, an easement appurtenant is created for the advantage of the owner of the dominant estate. When an easement is in gross, no dominant estate exists.’
“Bruce & Ely, The Law of Easements and Licenses in Land, Para. 2.02 (1988). The purpose of appurtenant easements is to benefit the owner of the dominant tenement. 3 Powell on Real Property, 34-21 (1992).”

Gowen v. Cote, 875 S.W.2d 637, 641 n. 4 (Mo.Ct.App.1994) (emphasis added).

The Weekses contend, however, that “a private easement appurtenant to a parcel of land cannot be extended to other properties by incorporation in a larger land development.” Weekses’ brief, at 19. Specifically, they argue that “[t]he express grant of the easement appurtenant to [Dr. Owens’s tract] cannot be extended to all of the property within The Commons.” Weekses’ brief, at 22 (emphasis added). The Weekses misapprehend the generally accepted legal principle invoked by the facts in this case.

To be sure, “[i]f the grant is for the benefit of some particular land it can not be used to accommodate some other tract of land adjoining or lying beyond. “One having a right of way appurtenant to certain land can not use it for the benefit of other land.” ’ ” Loveman v. Lay, 271 Ala. 385, 392, 124 So.2d 93, 99 (1960) (quoting West v. Louisville & Nashville R.R., 137 Ala. 568, 571, 34 So. 852, 853 (1903) (emphasis added)). Loveman—on which the Weekses rely—involved property other than a subdivision of the dominant tenement.

However, “the law favorfs] changes and improvements for the benefit of the dominant estate so long as the manifest intent of the parties does not disallow the changes and the burden to the servient tenement is not increased.” Hubble v. Cache County Drainage Dist. No. 3, 123 Utah 405, 410, 259 P.2d 893, 896 (1953). Thus,

“[w]here a dominant estate is divided into separate parcels, unless specifically reserved, the rights to an appurtenant easement pass to the subsequent owners of each subdivided parcel, even if the resulting dominant and servient estates are not contiguous ‘so long as no additional burden is imposed upon the ser-vient tenement by such use.’ ”

Higgins v. Douglas, 304 A.D.2d 1051, 1053, 758 N.Y.S.2d 702, 705 (2003) (quoting Cronk v. Tait, 279 A.D.2d 857, 858, 719 N.Y.S.2d 386, 387 (2001) (emphasis added)). See Von Meding v. Strahl, 319 Mich. 598, 611, 30 N.W.2d 363, 370 (1948) (“An appurtenant easement exists for the benefit of the dominant tenement as a whole, and not alone for any particular part thereof. Thus, if the dominant estate is divided, the right is not destroyed. The owner or assignee of any portion of that estate may claim the easement so far as it is applicable to his part of the property, so long as an unreasonable burden is not imposed upon the servien[t] estate.”); 25 Am.Jur.2d Easements and Licenses § 92 (2004) (“As a general rule, if the dominant tenement is transferred in separate parcels to different persons, each grantee acquires a right to use easements appurtenant to the dominant estate, provided the easements can be enjoyed as to the separate parcels without any additional burden on the servient tenement.”); Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land ¶ 8.03[3] (1995) (“Unless restricted by the terms or manner of its creation, the right to use an easement appurtenant extends to each subdivided portion of the dominant estate.”). This is true even if the deeds creating the subdivisions do not expressly mention the easement. Carbon v. Moon, 68 Idaho 385, 392, 195 P.2d 351, 355 (1948) (“And the general rule is that, where an easement is annexed to land, either by grant or prescription, it passes as an appurtenance with the conveyance ‘of the dominant estate, although not specifically mentioned’ in the deed, or even without the use of the term ‘appurtenances,’ ‘unless expressly reserved from the operation of the grant.’ ”); see also Baker v. Pike, 41 P.3d 537, 542 (Wyo.2002) (“ ‘An easement appurtenant is transferred with possession of the dominant property even if it is not mentioned in the document of transfer.’ ”); 25 Am.Jur.2d Easements and Licenses § 91 (2004) (“Unless expressly excepted, a transfer of real property passes all easements appurtenant thereto, even though not referred to in the instrument of transfer.”).

A right-of-way created by conveyance in “general terms and without any restrictions on its use” is to be “construed as broad enough to permit any use which is reasonably connected with the reasonable use of the land to which it is appurtenant.” Birdsey v. Kosienski, 140 Conn. 403, 412-13, 101 A.2d 274, 278 (1953); see also Restatement (Third) of Property § 4.10 (2000). “If the language of the [conveyance] is clear and free from doubt, such language is not the subject of interpretation. If subject to interpretation, the extent of the easement depends on the intention of the parties as gathered from the terms of the deed and the situation of the land.” Cobb v. Allen, 460 So.2d 1261, 1264 (Ala.1984). Application of these rules compels the conclusion that the right of ingress and egress over the Lane is appurtenant to the property in the Van Wezels’ chain of title, and, therefore, exists for the benefit of Wolf Creek and its successors in title.

Reference to the easement initially appeared in the deed from the Walkers to the Triches, the Weekses’ predecessors in title. By that conveyance, the Walkers disposed of all their land west of Spring Branch, leaving their considerable acreage east of Spring Branch without access to County Road 49. That loss was overcome by the reservation in the deed to a “private lane across [the Weekses’ land] and along the North bank of the Magnolia River.” The dominant tenement created by that conveyance was composed of all the land the Walkers still owned east of Spring Branch. Each subsequent subdivision of the dominant tenement was benefited, as a matter of law, by the easement.

This result could hardly have been unintended by the creators of the servitude. The reservation does not purport to limit the Walkers’ right of subdivision. Indeed, the Walkers had begun subdividing then-property east of Spring Branch before they conveyed the property west of Spring Branch to the Triehes.

Moreover, the Weekses can hardly contend that subdivision of the Walkers’ property was unforeseeable to them. By the time they purchased their property in 1991, most of the area now constituting The Commons had already been platted, subdivided, and sold as Magnolia Springs Estates, and its residents were using the Lane. Moreover, the Weekses’ own deed describes the Lane as “an easement for a road right of way ... that affords ingress and egress to ownership lying East of Spring Branch, to and from County Highway No. 49.” (Emphasis added.)

Because the Lane was intended to benefit the Walkers’ land lying east of Spring Branch, as subdivided after the creation of the easement, the absence of a specific reference to the easement in the chain of title to most of the land constituting The Commons is immaterial. Thus, the trial court did not err in concluding that “the owners of The Commons, as the same now exists,” have an express easement appurtenant over the Lane. The judgment insofar as it so holds — as it is challenged in case no. 1041189 — is affirmed. We turn, therefore, to the issues presented in the cross-appeal.

III. Case No. 1011261

The dispositive issue presented by the cross-appeal is whether the trial court erred in enjoining use of the Lane to the extent of the restrictions imposed in its order.

A. Standard of Review

“The applicable standard of review [of injunctive relief] depends on whether the trial court entered a preliminary injunction or a permanent injunction. A preliminary injunction is reviewed under an abuse-of-discretion standard, whereas a permanent injunction is reviewed de novo." TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241-42 (Ala.1999); see also Smith v. Madison County Comm’n, 658 So.2d 422, 423 n. 1 (Ala.1995). The restrictions placed upon Wolf Creek’s use of the Lane constitute a permanent injunction. Therefore, our standard of review is de novo.

B. Analysis

All parties challenge the trial court’s injunctive relief. The Weekses argue that the relief was inadequate. More specifically, they argue that the trial court erred in failing to further limit the use of the Lane to the owners of units located on property acquired by Wolf Creek in the chain of title of Dr. Owens, which comprises only units 33 and 34 of The Commons as it currently exists. They insist that, restrictions notwithstanding, the use allowed by the trial court “results in overburdening of the easement.” Weekses’ brief, at 25. Wolf Creek, on the other hand, argues that no restrictions were warranted, and we agree. The injunctive relief granted by the trial court is contrary to a number of well-established legal principles.

First, “the owner of the servient estate [ordinarily] has the burden of proving overburdening because the servient owner has asserted overburdening as a cause of action or as a reply to a special defense of an easement when the purpose of the easement is not in dispute.” Zhang v. Omnipoint Communications Enters., Inc., 272 Conn. 627, 640 n. 8, 866 A.2d 588, 596 n. 8 (2005). See also Shooting Point, L.L.C. v. Wescoat, 265 Va. 256, 266, 576 S.E.2d 497, 502 (2003); and Logan v. Brodrick, 29 Wash.App. 796, 800, 631 P.2d 429, 432 (1981).

Second, as a general rule, an increase in traffic over an easement in the process of normal development of the dominant estate, in and of itself, does not overburden a servient estate. Gutcheon v. Becton, 585 A.2d 818, 822 (Me.1991); Downing House Realty v. Hampe, 127 N.H. 92, 497 A.2d 862 (1985); Shooting Point, L.L.C., 265 Va. at 267, 576 S.E.2d at 503; Bruce & Ely, ¶ 8.03[1]; and Restatement (Third) of Property § 4.10, comment f (2000). Ordinarily, to support a finding of overburdening, it must be shown that the use has changed in kind, rather than extent. Shooting Point, L.L.C., 265 Va. at 267, 576 S.E.2d at 503 (an increase in traffic over the servient estate “demonstrates only an increase in degree of burden, not an imposition of an additional burden, on the servient estate”). See also Blalock v. Conzelman, 751 So.2d 2 (Ala.1999).

Relevant factors include evidence of an abrupt or “abnormal” change in the development of the dominant estate and resulting use of the easement. Glenn v. Poole, 12 Mass.App. 292, 295, 423 N.E.2d 1030, 1033 (1981) (“In the law of easements, a mutation is not within the scope of normal development.”). A relevant showing might also be made of burdens such as “(1) decreased property value; (2) increased noise and traffic or interference with the servient owner’s peace and enjoyment of the land; and (3) physical damage to the servient estate.” Burkhart v. Jacob, 976 P.2d 1046 (Okla.1999). See also Smith v. Fulkroad, 305 Pa.Super. 459, 463, 451 A.2d 738, 740 (1982) (a significant increase in “dust, dirt and noise” was a material factor in determining that there had been “a marked transformation in the former peaceful enjoyment” of the property). Moreover, the use of the easement by owners of property other than a subdivision of the dominant tenement — even property acquired by the dominant-tenement owner after creation of the servitude — overburdens the servient estate as a matter of law. II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 516, 757 A.2d 1103, 1113 (2000); Bruce & Ely, ¶ 8.03[2]; see also Watson v. Lazy Six Corp., 608 So.2d 389 (Ala.1992); Loveman v. Lay, 271 Ala. 385, 124 So.2d 93 (1960); and McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 664 N.E.2d 786 (1996).

Third, unless expressly restricted, the use of an easement appurtenant is not limited to the owners of the dominant estate, but also inures to the benefit of their tenants, “servants, agents, or employees in conducting [their] business,” 28A C.J.S. Easements § 164 (1996), as well as social and business invitees, Gowen v. Cote, 875 S.W.2d 637, 641 (Mo.Ct.App.1994); and Picardi v. Zimmiond, 693 N.W.2d 656, 664 (S.D.2005), which includes use by utility workers and “utility company service vehicles.”

These principles afford no basis for an order limiting the use of the Lane strictly to the owners of property in The Commons and the relatives of the owners. The use must also extend to their employees and agents, as well as social guests and business invitees, such as “those providing repairs or maintenance, utility or government employees.” Although there was testimony that Wolf Creek had permitted Hap Archer, a nonresident of The Commons, to use the Lane, there was no evidence indicating that Archer did not own some property in the chain of title of the anginal dominant estate.

Similarly, there is no legal basis for restricting the use of the Lane to “passenger vehiele[s],” or for prohibiting travel over the Lane to deposit sacked garbage at “a collection point” at the edge of County Road 49. There was no evidence indicating that garbage was being placed upon the Lane itself, and it was undisputed that garbage trucks were not traveling over the Lane to pick up garbage inside The Commons. On the contrary, the testimony was that residents of both the dominant and servient estates had traditionally hauled their residential trash over the Lane for deposit and pickup at the edge of County Road 49. Thus, the only evidence was that such use constituted normal, gradual, and foreseeable development of the dominant estate.

In that connection, although Mr. Weeks testified that traffic had “increased dramatically” during the “construction phase of The Commons,” he stated that, following the completion of construction, “the travel [had] reduced down,” and that he did not know the number of vehicles currently using the Lane. Indeed, the undisputed testimony was that the Lane does not afford The Commons its primary means of ingress and egress, but that The Commons is primarily accessed from Highway 98, north of The Commons. There was no evidence indicating that dirt or debris was being thrown onto the ser-vient estate or indicating loss of property value or interference with any business or personal enterprise on the Weekses’ property.

In short, the only evidence presented as to current use of the Lane was of an unspecified increase in the volume of traffic. There was, therefore, no legal basis for the order authorizing the Weekses to construct and maintain gates across the Lane or to otherwise restrict the normal use of the Lane by Wolf Creek. Gutcheon v. Becton, 585 A.2d at 822; Downing House Realty v. Hampe, 127 N.H. 92, 497 A.2d 862 (1985); Shooting Point, L.L.C., 265 Va. at 267, 576 S.E.2d at 503; Bruce & Ely, ¶ 8.03[1]; and Restatement (Third) of Property § 4.10, comment f (2000). Insofar as it grants the injunctive relief, the judgment is reversed, and a judgment is rendered in favor of Wolf Creek.

IV. Summary

In summary, the judgment — as it is challenged in case no. 1041189 — is affirmed. However, because the trial court erred in granting injunctive relief, we reverse the judgment — as it is challenged in case no. 1041264 — and render a judgment in favor of Wolf Creek.

1041189 — AFFIRMED.

1041264 — REVERSED AND JUDGMENT RENDERED.

NABERS, C.J., and SEE, SMITH, and PARKER, JJ., concur.

LYONS, J., recuses himself.

      . This case involves no issue regarding the right of Wolf Creek to use the portion of the Lane lying east of Spring Branch.