author: KING, C.J., ROBERTS, J.,

text:
    Andrew NOEL, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-01455-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.

      Robert T. Laster, Grenada, B. León Johnson, attorneys for appellant.
    Office of the Attorney General by Jacob Ray, attorneys for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Andrew Noel appeals the Holmes County Circuit Court’s denial of his petition for post-conviction relief. On appeal, Noel contends that he should have the opportunity to withdraw his guilty plea because his decision to enter into the plea was not knowing, intelligent, and voluntary. Alternatively, Noel argues that the trial court should be required to re-sentence him in accordance with the district attorney’s recommendation. Finding no error, the Court affirms.

FACTS

¶ 2. Andrew Noel was charged with aggravated assault, rape, and kidnapping. On October 9, 2000, Noel entered into a plea agreement with the district attorney, in which he agreed to plead guilty to the charges of rape and kidnapping in exchange for the dismissal of the aggravated assault charge and a sentence recommendation from the district attorney. The district attorney agreed to recommend that Noel receive a sentence of twelve years— nine years in prison and three years of post-release supervision.

¶ 3. At the hearing on the guilty plea, the trial judge, in accordance with Uniform Circuit and County Court Rule 8.04, questioned Noel regarding the voluntariness of his plea and advised him of the consequences of pleading guilty. The transcript reads, in pertinent part, as follows:

Q: Did you understand this petition as you read it and as your attorney explained it to you?
A: Yes.
Q: Were the answers you provided in this petition true and correct?
A: Yes.
Q: Has anyone forced you, coerced you, or intimidated you in any way to get you to enter these pleas?
A: No.
Q: Has anyone promised you anything in the way of a lighter sentence or any hopes or rewards to get you to enter these pleas?
A: No.
Q: Do you understand on the rape charge, this Court can give you up to a term of years less than your life?
A: Yes.
Q: And on the kidnapping charge, this Court can give you anywhere from 1 to 30 years?
A: Yes.
Q: This Court is not bound by any recommendations that may be made by the State or by your attorney; do you understand that?
A: Yes.
Q: After having advised you of the constitutional rights that you give up and the facts and circumstances surrounding this charge, do you still wish to enter this plea?
A: Yes.

¶ 4. After hearing the sentencing recommendation from the district attorney and a statement from the victim, the trial court sentenced Noel to twenty-five years on the rape charge and twenty-five years on the kidnapping charge, with the sentences to ran concurrently. Noel subsequently filed a petition for post-conviction relief to have his guilty plea withdrawn or in the alternative, to have the trial court re-sentence Noel according to the district attorney’s sentencing recommendation. Following a hearing, the trial court denied the motion. This appeal followed.

STANDARD OF REVIEW

¶ 5. The standard of review for a trial court’s decision to deny a motion for post-conviction relief is clear. This court will not reverse a trial court’s denial of a motion for post-conviction relief absent a finding that the trial court’s decision was clearly erroneous. See Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002). Additionally, Uniform Circuit and County Court Rule 8.04 states that “it is within the discretion of the court to permit or deny a motion for the withdrawal of a guilty plea.” UCCCR 8.04(A)(5). Accordingly, the Court reviews those decisions under an abuse of discretion standard. See id.

ANALYSIS

¶ 6. Constitutional considerations of due process under the Fourteenth Amendment to the United States Constitution and under Mississippi law require that all guilty pleas must be knowing, intelligent, and voluntary. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Alexander v. State, 226 So.2d 905 (Miss.1969). To ensure that a criminal defendant understands that by entering a guilty plea he waives certain rights, the law requires the trial court to explain in detail each of the rights waived and the possible consequences of entering a guilty plea. Boykin, 395 U.S. at 243-44, 89 S.Ct. 1709. Uniform Circuit and County Court Rule 8.04 sets forth the specific topics that the trial court must address when advising a defendant of the consequences of a guilty plea. UCCCR 8.04(A)(4).

¶ 7. In this case, the trial court did address each of the topics set forth in Rule 8.04 during the plea colloquy. The trial court advised Noel of the minimum and maximum sentences for each of the charges to which he was pleading guilty. The trial court then specifically asked Noel if he understood that the trial court was not bound by the district attorney’s sentencing recommendation. Noel answered all of the trial judge’s questions affirmatively.

¶ 8. The trial court also held an eviden-tiary hearing on Noel’s post-conviction motion to withdraw his guilty plea or, in the alternative, for the trial court to sentence him in accordance with the district attorney’s sentencing recommendation. During the hearing, the trial court accepted, at Noel’s request, the transcript of the plea colloquy as part of the record of the evi-dentiary hearing. Noel testified regarding his competency and the voluntariness of his plea but offered no other witnesses or testimony in support of his motion. On cross-examination, Noel testified that he understood that the trial court was not bound by a sentencing recommendation and that the decision to follow or not follow a sentencing recommendation rested with the trial court. The trial judge determined that she had advised Noel of her discretion in sentencing and that she had opted, within the boundaries of the law, not to accept the sentencing recommendation. Accordingly, the trial court denied the post-conviction motion.

¶ 9. This Court finds that the trial court complied with the requirements of Uniform Circuit and County Court Rule 8.04(A)(4) in accepting Noel’s guilty plea. Specifically, the trial court advised Noel that he waived certain constitutional rights by entering a guilty plea and stated the maximum and minimum penalties for the charges against him. Additionally, the trial court advised Noel that she was not bound by the district attorney’s sentencing recommendation and determined that he understood that his sentence was left to her discretion. Accordingly, the trial judge did not abuse her discretion in the manner in which she conducted the hearing on Noel’s guilty plea.

¶ 10. This Court also finds that the trial court did not abuse her discretion in denying Noel’s motion to withdraw his guilty plea. The trial court conducted a hearing and evaluated Noel’s testimony regarding his understanding of the guilty plea and its consequences before denying the motion. The Court can find no evidence that the trial court abused her discretion in refusing to permit Noel to withdraw his guilty plea; therefore, the trial court did not err in denying Noel’s motion for post-conviction relief.

¶11. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ROBERTS, J., CONCURS IN RESULT ONLY, WITH SEPARATE WRITTEN OPINION JOINED BY, LEE, P.J., SOUTHWICK, GRIFFIS AND BARNES, JJ.

ROBERTS, J.,

Concurring.

¶ 12. As a result of Noel’s testimony detailing his complete understanding of his plea agreement, to include the fact that the trial court was not bound by the State’s recommendation, that the circuit judge was free to sentence him to any sentence within the minimum and maximum allowed by law, and his failure to present any evidence to the contrary, I concur with the majority’s judgment to affirm. I write separately to express concern over what I consider to be a flaw in our justice system and to encourage those of the bench to adhere to a higher standard than that codified in URCCC 8.04 for the sake of the defendants they sentence and the integrity of the courts as a whole.

¶ 13. It is important to distinguish between an open or blind plea and a formal plea bargain. The former is simply an admission of guilt by the defendant without the promise of any binding formal sentencing recommendation by the State. Swindle v. State, 881 So.2d 174(¶ 4) (Miss.2004). Presumably the defendant’s own conscience, his need to repent, and his belief that the judge will be intrinsically fair are the factors that convince him to throw himself at the mercy of the court and hope for a sentence deserving of his particular indiscretion. While in the same jungle, a plea bargain is a different animal and driven by different motivations.

¶ 14. Oft stated and widely known, a guilty plea must be voluntarily and intelligently made regardless of its type. URCCC 8.04 A(3). Aso, the defendant must be competent to understand the nature of the charge, the consequences flowing from the plea, and those constitutional protections abandoned by pleading guilty. URCCC 8.04 A(4). As opposed to a blind plea, at least part of the allure of a plea bargain is the promised recommendation of the State and expectation of the defendant that the sentencing court will honor that recommendation. This was poignantly shown in the record of the case sub judice. Ater formal acceptance of the plea, but prior to the trial court announcing her sentence, Noel’s attorney implied that it took significant effort to convince Noel to accept the plea bargain as he thought the offered sentence was too harsh. Additionally, Noel testified during his post-conviction relief hearing that while he understood the trial judge was not bound by the State’s recommendation, the sole reason he accepted the plea bargain and voluntarily pled guilty was the expectation that the trial court would sentence him in accordance with the recommendation. Obviously a court has full discretion to accept or reject such a recommendation and is in no way bound by it, but the expectation of the defendant is still present and is still an inducement to his plea. To accept his plea of guilty then choose not to follow through with the State’s recommendation, which is within the prerogative of the court, seems clandestine in nature and out of place in a court of law. In essence, while all the constitutional “I”s are dotted and “T”s crossed, it amounts to a guilty plea by ambush.

¶ 15. By way of illustration, in order for the plea to be accepted by the trial court the defendant must correctly answer those magic questions located in URCCC 8.04, a fact of which the defendant is undoubtedly advised. So, with the expectation of the State’s recommendation ever present, a defendant gladly answers those questions asked by the court concerning the constitutional rights waived by his voluntary plea in what is more times than not just a formality in the eyes of the defendant. Following a finding that his plea was voluntarily and intelligently made, there are times when a trial court decides not to follow the State’s recommendation, but to impose a harsher sentence as a result of a voluminous pre-sentencing report, an emotional plea from the victim of the crime, or virtually any other legitimate reason. The state of our current law allows this so long as the defendant was not explicitly induced into pleading guilty in such a way that would conflict with URCCC 8.04, and a sentencing court is normally well within its discretion in doing so. However, the result of such actions not only calls into question the voluntary nature of the plea but also has a cumulative effect of raising a cloud of distrust over the courts that ultimately will hinder future plea bargaining attempts.

¶ 16. One could imply that the above illustration is exactly what occurred at Noel’s sentencing hearing. Following the State’s recommendation, the victim of Noel’s crime implored the court to sentence him to the maximum. In an emotional plea the victim made the following remarks;

VICTIM: Yes, I want to just say that he came into my home unannounced and everything and drug me, beat me, and raped me over and over again, and he said when he got out he was going to kill me. He said he was going to get out. I have a son now, and I do not want to go the rest of my life being scared of this man. (CRYING) I’m trying to go on with my life, and he said he was going to get out and he was going to kill me, and I do not want to go through this.
COURT: Okay. Anything else?
VICTIM: And I have these scars on me for the rest of my life. I still have every cut, every bite mark, everything all on me right now.
COURT: How did you get these cuts?
VICTIM: Where he cut me with a razor or something, here in my chest, and I have bite marks and scrapes and everything, and I have the pictures here now if you will.
(COURT EXAMINES PHOTOGRAPHS)
COURT: Anything further?
VICTIM: I just honestly believe he should serve the max.

Noel’s attorney attempted to explain that Noel’s problems stemmed from a failure by Noel to take a particular medication and that the recommendation of the State was proper given Noel’s age and the fact that some of problems Noel exhibits, and that led to the kidnaping and rape, are sufficiently controlled by the medication. However, with no other obvious indications of the trial court’s motivations to ignore the State’s recommendation, the victim’s heartfelt plea would seem to have won the day. While the trial judge can hardly be said to have abused her discretion in factoring in the victim’s description of such a heinous crime and the effects of it upon here overall well-being, I contend that the court’s better course of action should have included informing Noel of her intentions and allowing him to then withdraw his plea if he so chose.

¶ 17. I do not mean to imply that judges must comply with the State’s recommendation, or simply act as a “rubber stamp” in the sentencing process. My purpose in writing separately is to urge sentencing judges to be forthright and unambiguous concerning their intentions. If a trial court does not intend to follow the sentencing recommendation of a plea bargain, be it at the time of the guilty plea, at the conclusion of a sentencing hearing, or some time in between, justice requires the court to inform the defendant that the court intends to sentence him either more or less harshly than recommended by the State and to afford the defendant the opportunity to withdraw the guilty plea that was in part, if not wholly, induced by the expectation of a specific sentence. To that end I would urge judges to entertain only two specific types of guilty pleas. The first are pleas motivated by plea bargains and the second are true open or blind pleas. Concerning the former, if a trial judge does not intend to sentence the defendant in accordance with the recommendation accompanying the plea bargain, the judge should advise the defendant of such intentions prior to accepting a guilty plea, or if already accepted, afford the defendant an opportunity to withdraw the guilty plea if they so chose. When confronted with the latter of the two pleas the court need only ensure that the defendant clearly and unequivocally understands that the prosecution is making no recommendation and that the defendant is at the mercy of the court. Never should the two be mixed, as would seem to have occurred in the present case.

¶ 18. These procedural protections I propose are not unique. Many of our sister states and our federal counterpart have realized the fundamentally unfair position in which a defendant is placed when his “voluntary plea” is more in the form of a knowledgeable gamble and have rethought their positions on this issue. See Fed. R.Crim. Proc. 11(c); Cook v. State, 36 P.3d 710, 715 (Alaska Ct.App.2001); Cal.Penal Code § 1192.5 (2006); State v. Littlejohn, 199 Conn. 631, 508 A.2d 1376, 1383 (1986); Orleman v. State, 527 So.2d 303, 304 (Fla. Dist.Ct.App.1988); Fuller v. State, 159 Ga. App. 512, 284 S.E.2d 29, 30 (1981); State v. Barker, 476 N.W.2d 624, 626 (Iowa Ct.App.1991); Kennedy v. Commonwealth, 962 S.W.2d 880, 882 (Ky.Ct.App.1997); State v. Manchester, 545 So.2d 528, 529-530 (La.1989); People v. Killebrew, 416 Mich. 189, 330 N.W.2d 834, 842-843 (1982); Hattemar v. State, 654 S.W.2d 652, 653 (Mo.Ct.App.1983); State v. Marzolf, 79 N.J. 167, 398 A.2d 849, 860 (1979); Eller v. State, 92 N.M. 52, 582 P.2d 824, 826 (1978); Tex.Code Crim. Proc. art. 26.13 (2006). For example, the federal rule, which many state rules are patterned after, states, in part:

(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera):
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
Withdrawing a Guilty or Nolo Contende-re Plea, (d) A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under Rule 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting the withdrawal.

Fed. R.Crim. Proc. 11(c)(5). Therefore, while I concur in the result reached today, I once again encourage circuit judges to follow the lead of those jurisdictions cited above.

LEE, P.J., SOUTHWICK, GRIFFIS AND BARNES, JJ., JOIN THIS OPINION.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Jose Luis Rivera GUERRERO a/k/a Jose Louis Reivera Gurrero, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01971-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.

      Raymond M. Baum, Winona, attorney for appellant.
    Office of the Attorney General by Desh-un T. Martin, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Before this Court is an appeal filed on behalf of Jose Luis Rivera Guerrero, in forma pauperis, from his conviction in the Circuit Court of Attala County of aggravated assault under Mississippi Code Annotated section 97-3-7(2). On September 13, 2005, the jury returned a guilty verdict against Guerrero, finding that on or about June 25, 2004, Guerrero feloniously and purposefully caused serious bodily harm to Raul Olmeda by shooting Olmeda in the chest during a barroom brawl at the Pop-A-Top Cantina, located on Highway 43 North in Attala County. The trial judge sentenced Guerrero to a term of fifteen years under the supervision of the Mississippi Department of Corrections. Guerrero’s appeal presents the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT GUERRERO’S MOTION TO SUPPRESS IN-COURT IDENTIFICATION TESTIMONY BASED UPON “UNDULY SUGGESTIVE” PRE-TRIAL SHOW-UP AND PHOTOGRAPHIC LINEUPS?

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT GUERRERO’S MOTION FOR A NEW TRIAL WHERE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 2. Finding no error, we affirm Guerrero’s conviction.

STATEMENT OF THE FACTS

¶ 3. On Friday, June 25, 2005, Raul Olmeda, his girlfriend Vicky Edwards, and several Mends drove from their home in Carthage, Mississippi to the Pop-a-Top Cantina. The Pop-a-Top Cantina, located one mile north of Kosciusko in Attala County, is an establishment frequented by Hispanic Americans and Mexican nationals. Olmeda and his companions arrived at the Pop-a-Top around 7:30 p.m. and spent the next several hours dancing, shooting pool, socializing, and drinking beer. Around 11:30 p.m., Olmeda and another member of his party became involved in an altercation with two other patrons. A fight broke out among the four men and an all-out barroom brawl ensued, eventually involving more than thirty men. At some point in the melee, two shots were fired and Olmeda fell to the ground with a bullet wound to the chest. The shooter left the scene and Olmeda was rushed to a local hospital. Olmeda was then airlifted to the University of Mississippi Medical Center in Jackson, where he remained in a coma for nearly three weeks before regaining consciousness and beginning the recovery process.

¶4. On the night of the shooting, Edwards provided Attala County Sheriff William Lee with a description of the shooter. Edwards stated that she observed the incident from a distance of less than five feet, and that the shooter was a tall, long-haired Hispanic with bad acne, wearing a blue hat and a blue or gray shirt. The next morning, Sheriff Lee relayed Edwards’ description to Deputy Robert Riley. Based on Edwards’ description, and after ascertaining the identities of several persons who were involved in the altercation from the bartender who had been working at the Pop-a-Top when the shooting occurred, Deputy Reilly picked up Guerrero and his brother, Eric. The two men were brought to the Attala County Jail and placed in the day room. The day room is an area immediately outside the cell block, where inmates, arrestees, and detainees are allowed to congregate during certain hours of the day. Deputy Riley then contacted Edwards, who had accompanied Olmeda to the, hospital in Jackson, and informed her that three suspects were in custody. Deputy Riley requested that Edwards come to the Attala County Jail as soon as possible to see if she could identify any of the suspects as the shooter.

¶ 5. The record indicates that, after having spoken with Deputy Riley, Edwards left the hospital and proceeded to the Atta-la County Jail. Upon arriving at the jail, Edwards entered the door to the jailer’s office and immediately recognized Guerrero, whom she could see through a window separating the office and the day room. Edwards exclaimed that Guerrero was the shooter, and the identification was overheard by Deputy Riley as he entered the door behind her. Edwards testified both in a suppression hearing and at trial that she had not met Deputy Riley and did not know he was entering the building behind her until after she had identified Guerrero as the shooter. Deputy Riley testified that, prior to Edward’s identification of Guerreo, there had been no indication made to Edwards that Guerrero was a suspect in the shooting, and that Guerreo had not been intentionally singled out or separated from other suspects in any way. Edwards testified that she recognized Guerrero primarily because he was wearing the same clothes he had been wearing the night before and because his severe facial acne was a distinguishing feature.

¶ 6. On June 29, 2005, Edwards again identified Guerrero as the shooter by picking him out of a photographic lineup. The photographic lineup contained black and white pictures of six Hispanic suspects bearing the numbers one through six next to each photograph. Raul Olmeda, the victim, identified Guerrero as the person who shot him after review of a similar photographic lineup. Olmeda’s identification was made approximately six weeks after the shooting, once he had regained consciousness and use of his faculties.

¶ 7. Guerrero filed a pretrial motion in which he sought to prohibit any in-court identification of him made by Edwards on the basis that the identification made at the jail was an impermissible show-up lineup. He also asserted that the photographic lineup was tainted because a photograph, later admitted into evidence at trial as Exhibit “S-l” bore the inscription “shooter.” However, the trial judge determined that the testimony was admissible and the State was allowed to introduce the evidence at trial.

¶ 8. During the State’s case-in-chief, Edwards was asked to make an in-court identification of Guerrero as the shooter; she could not. Edwards testified that she could not identify the defendant, Guerrero, as the shooter because over the two years between the shooting and the trial Guer-reo’s complexion had cleared up, his hair had been cut, and he had aged. However, Edwards testified that she was “one-hundred percent” certain that the person in the photograph admitted into evidence as Exhibit “S-l” was the person who shot Olmeda. Deputy Riley testified that the person pictured in Exhibit “S-l” was Guerrero and identified him as the defendant. Deputy Riley further testified that Exhibit “S-l,” the photograph bearing the inscription “shooter,” was not a part of the photographic lineup from which Edwards and Olmeda identified Guerreo, and that neither Edwards nor Olmeda were shown the photograph until the State was preparing for trial. Furthermore, Olmeda made an in-court identification of Guerrero as the man who shot him and this identification is unchallenged on appeal.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT GUERRERO’S MOTION TO SUPPRESS IN-COURT IDENTIFICATION TESTIMONY BASED UPON “UNDULY SUGGESTIVE” PRE-TRIAL SHOW-UP AND PHOTOGRAPHIC LINEUPS?

STANDARD OF REVIEW

¶ 9. The standard of review for suppression hearings on matters of pretrial identification is “whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted.” Johnson v. State, 884 So.2d 787, 789(¶ 4) (Miss.Ct.App.2004) (citing Gray v. State, 728 So.2d 36, 68 (¶ 159) (Miss.1998)). In determining whether the pre-trial identification was so impermissibly tainted as to deprive the accused of due process, the court must apply the five factors enumerated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and applied by this Court in Garner v. State, 856 So.2d 729, 733(¶ 12) (Miss.Ct.App.2003). The five factors are:

(1) the opportunity of the witness to view the accused at the time of the crime;
(2) the degree of attention exhibited by the witness;
(3) the accuracy of the witness’s prior description of the criminal;
(4) the level of certainty exhibited by the witness at the confrontation; and
(5) the length of the time between the crime and the confrontation.

Id. On review, an appellate court should reverse a lower court’s decision to admit or refuse to admit a pre-trial identification only where there is no credible evidence to support the ruling. Johnson, 884 So.2d at 789(¶ 4); Ray v. State, 503 So.2d 222, 224 (Miss.1986); see also Jackson v. State, 807 So.2d 467, 469(¶ 6) (Miss.Ct.App.2001).

DISCUSSION

¶ 10. Guerrero sought to suppress any identification of him by Edwards based on the assertion that he was initially identified as the shooter through an imper-missibly suggestive show-up that rendered Edwards’ initial identification and subsequent in-court identification untrustworthy. The trial court refused to suppress Edwards’ testimony. As a result, Edwards testified that immediately upon entering the jail, she recognized Guerrero as the shooter as he stood on the other side of a window separating the jailer’s office from the day room where Guerreo and his brother were being held. Deputy Riley testified that Guerrero had not previously been identified to Edwards as a suspect, and Edwards testified that she recognized Guerrero because he was wearing the same clothes as the night before and had distinctive acne.

¶ 11. Guerrero contends that Edwards’ identification at the jail constituted a single-person show-up under suggestive circumstances, and is thus tainted. This Court has previously addressed a similar circumstance in Garner, 856 So.2d at 732-33 (¶¶ 11-12), where we decided:

Formal, arranged single-person show-ups in which the police purposely cause a victim to be confronted with a single individual bearing some general resemblance to the description offered by the victim are not favored in the law. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), rev’d on other grounds, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). However, the case makes clear that the fact of an identification based on a single person show-up is not, of itself, a basis to exclude evidence of the identification. Rather, the issue is whether, based on a totality of the circumstances, the show-up “was so unnecessarily suggestive and conducive to irreparable mistaken identification” that it amounted to a deprivation of due process. Id.

¶ 12. After our review of the record, we can find no indication that the Attala County Sheriffs Department purposefully arranged for Edwards to encounter Guerrero in the manner in which she did. In fact, the record indicates that Deputy Riley was made aware of Edwards’ arrival at the jail only seconds before the identification was made, and that he had not had a chance to prepare a lineup. From our perspective, it appears that the encounter between Edwards and Guerrero was mere happenstance. However, assuming for the sake of argument that the circumstance gives rise to a legitimate due process claim on Guerrero’s behalf, we are satisfied that, based upon the review of the applicable Biggers factors, Edward’s identification of Guerrero was not made under such unnecessarily suggestive circumstances as to destroy the probative value of her identification.

¶ 13. Edwards testified at the suppression hearing that she had observed the shooter from a distance of less than five feet, that she saw the gun and the second of the two shots fired, that her full attention was on the shooter, and that she was “one-hundred percent” certain that Guerrero was the shooter when she identified him at the jail. Furthermore, Guerrero accurately matched the description of the shooter Edwards gave to Sheriff Lee on the night of the shooting, and less than twenty-four hours had elapsed between the shooting and the identification. Based on the foregoing facts, and the relevant considerations under Biggers, we cannot conclude that the trial court erred in permitting evidence of this out-of-court identification or by permitting Edwards to make an in-court identification of Guerrero on the basis of the out-of-court identifications.

¶ 14. Additionally, Guerrero sought to suppress any evidence of Edwards’ identification of him as the shooter from the photographic lineup due to the presence of the inscription “shooter” on a photograph taken of him by the Attala County Sheriffs Department. The Mississippi Supreme Court set out the parameters by which photographic line-ups are to be evaluated for admissibility in York v. State, 413 So.2d 1372, 1378 (Miss.1982) (quoting Simmons v. U.S., 390 U.S. 377, 383-84, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)), as follows:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

¶ 15. In the case at bar, Deputy Riley testified that the photograph in question was not taken until after Edwards had identified Guerrero as the shooter both by the inadvertent “show-up” and separate photographic line up. Both Edwards and Deputy Riley testified that the photograph was not a part of the photographic lineup through which Edwards identified Guerrero, and Deputy Riley further testified that Edwards was not shown the photograph until she was being prepared for trial. Therefore, we cannot find that the photographic identification procedure upon which Edwards’ testimony was partially based, was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. In fact, Edwards made clear that she was “one-hundred percent” positive that Guerrero was the shooter when she made her out-of-court identification of him. Furthermore, Olme-da conclusively identified Guerrero, both in a photographic lineup and again at trial, as the man who shot him. Therefore, we do not conclude that the trial court erred in permitting evidence of the out-of-court photographic identification or by permitting Edwards to make an in-eourt identification of Guerrero on this basis.

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT GUERRERO’S MOTION FOR A NEW TRIAL WHERE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

STANDARD OF REVIEW

¶ 16. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). “Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Id. (citing Benson v. State, 551 So.2d 188, 193 (Miss.1989)). Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict. Id. (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)).

DISCUSSION

¶ 17. Guerrero contends that the jury verdict was contrary to the overwhelming weight of the evidence and that the trial court should have granted his motion for a new trial. However, a review of the record makes clear that there was ample evidence proving that Guerrero shot Olmeda at the Pop-a-Top Cantina on June 25, 2005. Both Edwards and Olmeda identified Guerrero as the shooter, and all three witnesses called by the defense to rebut that assertion admit to being unable to see the shooter from their vantage points. The facts, when viewed in the light most favorable to the verdict, indicate that a jury could find beyond a reasonable doubt and to the exclusion of every reasonable hypothesis that Guerrero shot Raul Olmeda on the night of June 25, 2005, during an altercation at the Pop-a-Top Cantina. The lower court correctly denied Guerrero’s motion for a new trial and this Court will not disturb the jury verdict where, as here, no unconscionable injustice will result and there is ample evidence to support the jury’s findings. The jury verdict was not against the overwhelming weight of the evidence and is, therefore, affirmed.

CONCLUSION

¶ 18. Under the relevant considerations of Biggers, we conclude that the trial court did not err in permitting evidence of either of Edwards’ two out-of-court identifications of Guerrero or by permitting Edwards to make an in-court identification of Guerrero. Further, we do not find the jury’s verdict to be against the overwhelming weight of the evidence. Guerrero’s conviction for aggravated assault is, therefore affirmed.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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


author: HARWOOD, Justice.

text:
    BOSARGE OFFSHORE, LLC, and Kenny G. Bosarge v. COMPASS BANK.
    1041871.
    Supreme Court of Alabama.
    May 12, 2006.

      Richard M. Fuquay, Mobile; and Kenneth J. Riemer, Mobile, for appellants.
    George M. Walker and Norman M. Stockman of Hand Árendall, L.L.C., Mobile, for appellee.
   HARWOOD, Justice.

Bosarge Offshore, LLC (“Offshore”), and Kenny G. Bosarge (“Bosarge”) (hereinafter referred to jointly as “the plaintiffs”) appeal from a judgment as a matter of law entered in favor of Compass Bank. We affirm.

Facts and Procedural History

Kenny Bosarge has been a shipbuilder for nearly SO years. One of the vessels he commonly builds is an “offshore oil field service vessel,” which is used to deliver supplies and personnel to offshore oil-drilling facilities in the Gulf of Mexico. Once such a vessel is completed, it is sold to an “operator,” a company that will use it to deliver supplies and personnel. Bosarge’s brother, Rusty, owns a shipyard known as Boconeo Shipbuilding, Inc. (“Boconeo”), and at various times Boconeo has employed Bosarge.

In late 2002, Bosarge decided to capitalize upon numerous providential events and become an “operator” himself. The rise of oil and gas prices had generated an increase in exploration and production in the Gulf of Mexico; thus, the demand for field-service vessels had correspondingly increased. In addition, the United States Coast Guard had changed certain of its vessel-design requirements, rendering obsolete many of the vessels then in service and opening a market for operators owning ships built in compliance with the new design requirements. These conditions were present when the most fortuitous event of all occurred: Boconeo had on hand approximately $281,000 worth of und-edicated shipbuilding inventory. When Bosarge approached Rusty about Bocon-co’s using that inventory to build a vessel, Rusty agreed to direct that inventory toward the construction of a vessel for Bo-sarge without requiring Bosarge to first purchase the inventory.

Bosarge reasoned, based upon years of experience in the shipbuilding industry, that if he could secure financing for the initial phase of constructing a vessel, he could then secure a contract with an oil-drilling company to include his vessel in its fleet. Securing such a contract would position him to obtain the permanent financing necessary to complete the construction of the vessel. Given the value of Boconco’s inventory, Bosarge believed that he would need only an additional $200,000 for the initial construction phase, although he ultimately would need approximately $2 million in permanent financing for the remainder of construction.

Bosarge sought to obtain the necessary $200,000 from Compass. In early January 2003, he visited the Compass branch bank - located on Bel Air Boulevard in Mobile. Bosarge was referred to a personal banking officer named Chris Garmon. Bosarge explained that he was interested in an unsecured loan in the amount of $200,000. Garmon began completing the necessary paperwork, using information provided by Bosarge. Bosarge later returned to Compass, at an unspecified date, to meet with Garmon. At this second meeting, Bosarge provided further information not earlier conveyed to Garmon. After each meeting, Garmon sent the information given by Bo-sarge to Compass’s business-loan center located in Birmingham.

Between his first and second visits to Compass, Bosarge incorporated Offshore. Specifically, Bosarge testified that he organized Offshore on the very day that he, on behalf of Offshore, entered into a ‘‘Vessel Construction Contract” with Boconeo memorializing Boconco’s willingness to build a vessel for Offshore. The articles of incorporation of Offshore state that its purpose was “to engage in the operation of oil supply vessels.” The date of that contract, and thus the date that Offshore was incorporated, was January 21, 2003.

On February 21, after the second meeting with Bosarge, Garmon received an email from Lisa Vandillon, an underwriter in Compass’s business-loan center, informing him that Bosarge’s loan had been approved. That day, Garmon telephoned Bo-sarge and told him that his loan had been approved. Although the plaintiffs maintained at trial that Bosarge had relied upon Garmon’s telephone call in later signing the vessel-construction contract, and even reasserted this argument on appeal (Plaintiffs’ brief, at 11, and 30-31), in their reply brief, they concede that Offshore— which Bosarge testified was formed on the same date the vessel-construction contract was signed — “was created prior to ” Gar-mon’s telephone call. (Plaintiffs’ reply brief, at 5; emphasis added.) Thus, there is no support in the record to indicate that Bosarge relied upon Garmon’s telephone call in signing the vessel-construction contract.

On February 21, the same day he received Garmon’s telephone call, Bosarge returned to Compass and requested that Garmon provide him with some form of written assurance that the Offshore loan had been approved. In Bosarge’s presence, Garmon typed and presented to Bo-sarge a document, on Compass’s letterhead, stating:

“Kenny Bosarge D/B/A Bosarge Offshore LLC
Reference #:-
“To Whom It May Concern:
“This letter of credit in the amount of $200,000.00 (Two Hundred Thousand Dollars and no/100) is available to the above stated customer. Funds are available at customer’s request in any increment needed. If any other information is needed, please feel free to contact our office.
“Thanks,
“/s/ Chris Garmon
“Chris Garmon, Personal Business Banking Officer”

After receiving the letter from Garmon, Bosarge spoke with four “operators” to determine whether he could place his vessel with those operators’ fleets “under a contract under which [the operators] could make money and so could [Bosarge].” Bo-sarge also began seeking lenders for permanent financing. Citicorp was solicited for permanent financing, but in February 2003 it indicated that “based upon everything that [it] knew, [it was not] interested in getting involved.” Bosarge also had spoken “off and on about this plan of [his] for several years” with a representative of Caterpillar Financial Services Corp., but he conceded that he never applied for permanent financing with that corporation.

Bosarge also contacted Jeffrey Whit-comb, who has been described by various parties as either an employee of Captive Capital Corporation or as an employee of Stewart & Stevenson Equipment Finance. Although it appears that Bosarge might have e-mailed an application for permanent financing to Whitcomb, the record does not indicate when Bosarge sent that application, nor does the record support the notion that Bosarge ever sent to either Captive Capital or Stewart & Stevenson any documentation regarding his business proposal or that he engaged in any action beyond speaking with Whitcomb. On March 11, Bosarge received an e-mail from Whitcomb stating that based on Bosarge’s statements to him, “we have a strong case for approval,” but reminding Bosarge that Whitcomb’s employer had yet to receive anything from Offshore regarding its proposal for permanent financing.

On March 7, 2003, Compass’s small-business loan center, through an underwriter, rescinded its approval of the Offshore loan. Compass did not inform Bosarge of this change until Bosarge visited Compass on March 12 and requested an initial advance of $23,000 on the loan. Because Compass had rescinded its approval, Garmon declined to provide the requested advance, informing Bosarge only that “I can’t do it.”

Subsequent to this encounter, Bosarge telephoned Whitcomb and informed him that Compass had withdrawn approval for the loan and that Bosarge would no longer be pursuing permanent financing. On March 13, Offshore’s attorney mailed Compass a demand letter requesting the initial advance. On March 20, counsel for Compass responded by explaining that, although Compass had withdrawn approval tor the loan, Compass remained willing to approve the Offshore loan under certain specified conditions. Offshore did not seek to comply with those conditions.

Approximately two weeks after Compass, through Garmon, refused to advance $23,000 to Offshore, Boconeo succumbed to economic pressure and began selling the inventory it had held for construction of a vessel for Offshore. It sold 85% of that inventory within six months. There is no evidence in the record indicating that during the two weeks that intervened between Garmon’s refusal to advance funds and the sale of the first item of inventory, Offshore sought from any other company either replacement financing for the initial phase of construction or permanent financing.

On April 2, 2003, the plaintiffs filed the instant action in the Mobile Circuit Court. Their complaint alleged wrongful dishonor of a letter of credit, breach of contract, fraud, and wanton, reckless, and malicious failure to honor a letter of credit. The case was tried over three days, from June 13, 2005, to June 15, 2005, and after the plaintiffs rested their case-in-chief, the trial court heard, and subsequently granted, Compass’s motion for a judgment as a matter of law (“JML”) on all four counts. On July 14, 2005, the plaintiffs filed a motion seeking to alter, amend, or vacate the judgment or, alternatively, for a new trial. That motion was denied on July 22, 2005. The plaintiffs appeal only as to their fraud claim.

Standard of Review

In reviewing a JML, this Court applies the same standard as the trial court applied. Zanaty Realty, Inc. v. Williams, 935 So.2d 1163, 1166 (Ala.2005). Specifically, viewing the facts in the light most favorable to the nonmovant, we seek to determine whether there was “sufficient evidence to produce a conflict warranting jury consideration.” Nationwide Mut. Fire Ins. Co. v. Pabon, 903 So.2d 759, 766 (Ala.2004).

Analysis

Ala.Code 1975, § 6-5-101, provides: “Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, ... constitute legal fraud.” In addition, the plaintiff must rely to his detriment upon those misrepresentations. See Pugh v. Kaiser Aluminum & Chem. Sales, Inc., 369 So.2d 796, 797 (Ala.1979) (“The plaintiff must rely on that false representation and must be damaged as a proximate result.”); see also Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 876-77 (Ala.1994) (stating that a fraud action is viable only if the plaintiffs damage is a proximate result of his reasonable reliance upon the defendant’s misrepresentation).

In the instant appeal, the plaintiffs have argued that they detrimentally relied upon Compass’s misrepresentation in three ways. None of those three alleged acts of detrimental reliance, however, brings the plaintiffs’ action within the definition of an actionable fraud.

Before analyzing these claims, we note that in their brief the plaintiffs argue that Compass committed fraud both by Gar-mon’s oral representation that Compass had approved the Offshore loan as well as by Garmon’s issuance of the “letter of credit.” Before the trial court, in responding to Compass’s motion for a JML, however, the plaintiffs’ repeatedly argued that the fraudulent conduct involved only the letter. With the exception of the plaintiffs’ first claim on appeal, hereinafter described, they have not contended that Gar-mon’s oral representation constituted fraud. Because we find the first ground to have been abandoned, see discussion infra, we consider the plaintiffs to have abandoned any contention that Compass should be held liable for Garmon’s alleged oral misrepresentation to Bosarge.

I. Whether Garmon’s Alleged Misrepresentation Induced the Plaintiffs to Contract with Boconeo

The plaintiffs’ first argument on appeal is that both Garmon’s oral representation and the “letter of credit” written by Gar-mon induced Bosarge to enter into the vessel-construction contract with Boconeo. (Plaintiffs’ brief, at 11, 30-31.) However, as noted above, the plaintiffs later abandoned this argument in their reply brief when they conceded that the vessel-construction contract was signed before Gar-mon made the alleged oral misrepresentation and provided Bosarge with the letter. Therefore, there is no evidence indicating that the plaintiffs detrimentally relied on Garmon’s alleged misrepresentation in Offshore’s entering into the vessel-construction contract.

II. Whether the Garmon Letter Induced Bosarge to Transition from Shipbuilder to Operator

The plaintiffs next argue that they detrimentally relied upon the Garmon letter because, they argue, in reliance on that letter Bosarge made the transition from a shipbuilder to an operator. In the hearing on the motion for a JML, the plaintiffs argued that Bosarge “showed [the letter] to other people,” such as past customers, thus “burning bridges” and irretrievably damaging business relationships that had been lucrative during Bosarge’s career as a shipbuilder. As the plaintiffs characterize the situation on appeal, “for the first time, [Bosarge] announced to the marketplace that he was stepping into competition with the companies which formerly comprised his customer base.” The only specific evidence indicating that Bosarge “announced to the marketplace” his intent to compete with others through Offshore, however, is Bosarge’s testimony that he contacted four named operators in an effort to find an operator willing to put Offshore’s vessel in its fleet.

In making their argument during the hearing on the motion for a JML, the plaintiffs advanced a novel legal theory. As counsel for the plaintiffs explained to the trial court:

“I don’t think [reliance] has to be necessarily linked with the damage. Whether [Bosarge] was damaged by the fraud is a different question than whether he relied on it to his detriment. If we prove detrimental reliance, ... we’ve proven fraud. The damage question is what damage has flowed?”

Granted, the element of “reliance” per se is disconnected from damage, a separate element. The lumping of the concept of “reliance” with “damage” or “detriment”— whence comes “detrimental reliance” — is simply another way of referring to the combined elements of reliance and damage. The notion that detrimental reliance is untethered to damage, however, is completely unfounded. As we have recently noted, “a fraud claim fully accrues once any legally cognizable damage has proximately resulted, i.e., once the plaintiff has ‘detrimentally’ relied on the fraud.” Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 694 (Ala.2005). Or as Justice Houston recently explained: “Fraud, as a cause of action, requires some damage stemming from reliance on a misrepresentation or suppression intended to induce that reliance....” Hunt Petroleum Corp. v. State, 901 So.2d 1, 12 (AIa.2004) (Houston, J., concurring specially)(emphasis added). Thus it is critical that a plaintiff prove that his reliance on the fraud proximately caused the damage that forms the basis of his action.

The plaintiffs’ argument as to how they relied to their detriment lacks merit for three reasons. First, Bosarge’s testimony, put in context, describes his decision to incorporate Offshore in January 2003 and further describes his decision, which was made “about that time[,] to put into play this plan to be an operator” (emphasis added); his plan entailed informing his former customers of his intent to compete with them as an operator. Such evidence indicates that he did not wait for the February 21 notification by Garmon that temporary financing had been approved but rather began informing his former customers before that event.

Second, Bosarge offered no evidence indicating that his intended “transition” actually harmed him. His only “evidence” indicating harm was his personal conjecture that his former customers would not use his business should he return to the shipbuilding trade. This speculation does not rise to the level of substantial evidence indicating detrimental reliance. See Nelson v. University of Alabama Sys., 594 So.2d 632, 635 (Ala.1992).

Finally, and perhaps most importantly, Bosarge was asked whether Compass’s alleged misrepresentation had “damaged [his] reputation or [his] ability to ply [his] trade in the boat building business.” Counsel for Compass objected, and after a short colloquy, the trial court stated:

“Well, I’m going to not allow the testimony from [Bosarge] about any impact that’s been had on him personally.... If I allow you to, I’ll allow you to call him back up and pursue it.”

The plaintiffs never subsequently sought permission to, or attempted to, pursue this line of questioning and no evidence was presented with respect to whether or how Bosarge individually was hindered by a diminished reputation or lost business. The plaintiffs have not attacked the court’s order excluding such evidence; thus, they have acquiesced in that decision by the court. With no concrete evidence indicating that Bosarge’s transition from shipbuilder to vessel operator harmed him, this basis for attacking the trial court’s order is meritless.

III. Whether the Garmon Letter Induced the Plaintiffs Not to Seek Replacement Financing

The plaintiffs’ final argument is that they presented evidence indicating that Garmon’s written misrepresentation induced Bosarge not to seek initial-phase lending from another lender. In the hearing before the trial court on Compass’s motion for a JML, however, the only mention of Bosarge’s contact or lack of contact with other lenders was in the form of this argument:

“[The plaintiffs] made steps to line up [permanent financing] which put them in the position of being an operator and made it difficult, and that difficulty has lasted to this day, to operate in the shipbuilding business.”

During that hearing, the trial court repeatedly sought clarification as to the elements of the plaintiffs’ fraud claims, asking the plaintiffs eight separate times to identify exactly how they had detrimentally relied upon Compass’s alleged misrepresentation. The plaintiffs never identified Bosarge’s decision to refrain from seeking other financing as an aspect or manifestation of that detrimental reliance. The plaintiffs have thus failed to preserve that argument for appellate review. “ ‘ “ ‘This Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.’ ” ’ ” Shewnake v. Estate of Shewmake, 940 So.2d 260, 267 (Ala.2006) (quoting Halford v. Alamo Rent-A-Car, LLC, 921 So.2d 409, 416 (Ala.2005), quoting in turn other cases).

Even had the plaintiffs raised such an argument, it would lack sufficient merit to warrant the denial of Compass’s motion for a JML. At trial, Bosarge testified that had he learned earlier that Compass intended not to loan him $200,000, he would have had the opportunity to look elsewhere for the $200,000 while the opportunity existed to build the vessel with that amount in initial inventory. Yet by the time Bo-sarge learned of the alleged misrepresentation, the plaintiffs allege, “the opportunity to build the vessel under the financing structure proposed was lost.” (Plaintiffs’ brief, at 33-34.) This argument is based upon pure conjecture. The record indicates that some two weeks elapsed during which Bosarge knew that Compass had rescinded its approval of the Offshore loan and during which Boconeo continued to hold the inventory for Offshore. During that time, neither Bosarge nor Offshore sought any alternative sources of financing. Therefore, there is again no specific evidence indicating that the plaintiffs were actually harmed by Compass’s alleged misrepresentation. Rather, the evidence clearly indicates that Bosarge never sought $200,000 in initial-phase financing from another lender during the period in which the “opportunity” to construct the vessel existed. Thus, again there is no substantial evidence indicating any detrimental reliance.

Finally, we note that obtaining the $200,000 in initial financing was beneficial to Offshore only if that entity could also “nail down” an additional $2 million in permanent financing. The facts indicate that as of the date Bosarge learned that Compass had rescinded its approval of the $200,000 loan, no entity had offered to provide the permanent financing critical to the success of Bosarge’s venture. Thus any suggestion that the plaintiffs were harmed by Compass’s rescinding its approval is necessarily based upon further speculation that some entity would have actually provided the necessary permanent financing.

In short, the plaintiffs have failed to present substantial evidence indicating that they detrimentally relied upon any allegedly fraudulent misrepresentation by Compass. Because we find no detrimental reliance, we pretermit any consideration of whether Compass’s statements actually constituted a misrepresentation or whether other elements of a fraud claim were satisfied.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

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

      . It is undisputed that Garmon contacted Bo-sarge and typed the letter of credit on February 21. He committed at least one error in that letter of credit, misidentifying Offshore as Boconeo Offshore. Although he handed Bo-sarge the version containing the error, he corrected this error in Bosarge's presence, gave him a copy of the corrected version as well, and later faxed that corrected version to Bosarge on February 27.

      . Stewart & Stevenson is actually a guarantor, as opposed to a lender.

      . Offshore, of course, could not possibly be hindered by Bosarge’s damaged ability to make a living as a shipbuilder; it was created for the purpose of operating, not building, ships. Thus the plaintiffs' "transition” argument goes only to Compass's potential liability to Bosarge individually.


author: SMITH, Justice.

text:
    Jim G. BOCKMAN v. WCH, L.L.C. WCH, L.L.C. v. Jim G. Bockman.
    1040305 and 1040419.
    Supreme Court of Alabama.
    May 19, 2006.

      Patrick G. Nelson of Johnston, Moore, Maples & Thompson, Huntsville, for appellant/eross-appellee Jim G. Boekman.
    William S. Pritchard III of Pritchard, McCall & Jones, L.L.C., Birmingham; and Patrick D. Pinkston of Enslen, Pinkston & Courtney, LLP, Wetumpka, for appel-lee/cross-appellant WCH, L.L.C.
   SMITH, Justice.

This appeal and cross-appeal arise from a dispute over the amount a junior mortgagee must pay to exercise his statutory right to redeem property. Jim G. Bock-man, the plaintiff below and the junior mortgagee, appeals from a summary judgment in favor of the senior mortgagee, WCH, L.L.C. (“WCH”), holding that the debt owed under a promissory note and secured by a mortgage on real property included interest upon unpaid interest (case no. 1040305). WCH, the defendant below, cross-appeals from a summary judgment in favor of Boekman holding that the debt secured by a mortgage owned by WCH, but having a lower priority than the mortgage owned by Boekman, is not a lawful charge to be included in the redemption costs (case no. 1040419). We affirm.

Facts and Procedural History

The material facts of this case are undisputed. Hartley Silica, Inc. (“Hartley”), owned real property in Autauga County (“the property”). Hartley borrowed money five times from various lenders, and the debt from those loans was secured by five different mortgages on the property.

On September 7, 1989, Hartley borrowed $561,230 from William I. Dozier, D.C. Mercer, and Austin Y. White, Jr. (“the mortgagees”). The debt was evidenced by a promissory note (“the note”) and was secured by a mortgage on the property (“the first mortgage”). The note stated:

“[Hartley] promises to pay to the order of [the mortgagees] the principal sum of Five hundred sixty-one thousand two hundred thirty and no/100 Dollars ($561,230.00), with interest thereon from date at the rate of ten percent (10%) per annum, the said indebtedness being payable in the following manner: 40 semiannual payments of $32,707.62 each with the first payment due 6 months from [September 7, 1989]. Said payments represent the principal at 10% interest amortized over a 20 year period with payments made every six months. The 40th and last payment shall be in the amount of $33,663.30.
“Each payment shall be applied first to the payment of acrued [sic] interest and the balance as credit on the principal. Said principal and interest ... shall bear interest from maturity at the said rate until paid.”

On September 12, 1989, the first mortgage was recorded in the probate judge’s office in Autauga County. Hartley paid a total of $166,415.24 on the note.

On May 11, 1992, Hartley borrowed $468,311 from Bockman, and the debt was secured by a mortgage on the property (“the second mortgage”). The second mortgage was recorded in the probate judge’s office in Autauga County on June 12, 1992. In 1994, Bockman made two more loans to Hartley that were also secured by mortgages on the property (“the third and fourth mortgages”).

On September 25, 1997, Hartley and the mortgagees executed an amendment to the terms of the note and the first mortgage (“the 1997 agreement”). Hartley was in default under the terms of the note and the first mortgage, and the 1997 agreement allowed Hartley to avoid foreclosure on the property. Under the terms of the 1997 agreement, Hartley and the mortgagees agreed that, as of August 15, 1997, the balance due on the note was $750,000. They further agreed that the balance due would be $800,000 if full payment of the mortgage was made on or before November 15, 1997. Hartley never made any further payments on the note, but the mortgagees elected not to exercise them right to foreclose on the property.

On March 22, 2000, Hartley borrowed money from WCH. The debt was evidenced by a promissory note and was secured by a mortgage on the property (“the fifth mortgage”). The fifth mortgage was recorded in the probate judge’s office in Autauga County on April 10, 2000. Hart-ley never made any payments on the debt secured by the fifth mortgage.

Through a series of assignments, the mortgagees sold the note and first mortgage to WCH on May 5, 2003. Therefore, WCH became the holder of the note and the first mortgage, as well as the fifth mortgage. Because Hartley was in default on the debt secured by the first mortgage, WCH exercised its right to foreclose on the property. On May 6, 2003, a foreclosure sale was conducted under the provisions of the first mortgage. WCH was the highest bidder; it purchased the property for $1,357,291.

On April 14, 2004, Bockman, who held the second, third, and fourth mortgages, “made a demand for lawful charges for redemption from foreclosure” pursuant to the statutory right of redemption set out in § 6-5-248, Ala.Code 1975. Section 6-5-248, Ala.Code 1975, permits “[a]ny junior mortgagee” to redeem property that has been sold. This statutory right of redemption must be exercised within one year from the date of the sale. To exercise the right of redemption, a junior mortgagee must

“pay or tender to the purchaser or his or her transferee the purchase price paid at the sale, with interest at the rate allowed to be charged on money judgments ... and all other lawful charges, also with interest aforesaid; lawful charges are the following:
“(1) Permanent improvements as prescribed herein.
“(2) Taxes paid or assessed.
“(3) All insurance premiums paid or owed by the purchaser
“(4) Any other valid lien or encumbrance paid or owned by such purchaser or his or her transferee or if the redeeming party is a judgment creditor or junior mortgagee or any transferee thereof, then all recorded judgments, recorded mortgages and recorded liens having a higher priority in existence at the time of sale which are revived under Section 6-5-248(c).”

§ 6-5-253(a), Ala.Code 1975.

WCH responded to Bockman’s “demand for lawful charges for redemption from foreclosure,” but Bockman disputed the redemption cost calculated by WCH. On May 4, 2004, Bockman filed a declaratory-judgment action against WCH seeking a determination of the amount of money he must pay to redeem the property. Bock-man also tendered $1,184,664 with the complaint alleging that, under § 6-5-253, Ala.Code 1975, this was the amount necessary for him to redeem the property. WCH answered Bockman’s complaint and denied Bockman’s allegation that the tendered amount was the correct redemption cost.

On August 26, 2004, WCH filed a motion for a summary judgment with supporting affidavits and exhibits. In support of the motion, WCH submitted a detailed calculation of what it contended was the correct redemption cost. Joseph M. Broday, a certified public accountant, prepared this calculation, and he testified in an affidavit that Bockman was required to pay $2,473,197.16 to redeem the property. WCH alleged that this amount represented the sum of the purchase price it had paid at the foreclosure and all other “lawful charges” as set out in § 6-5-253(a), Ala.Code 1975.

The trial court ordered Boekman to submit a response to WCH’s summary-judgment motion by September 15, 2004, and set the hearing on the motion for September 21, 2004. Boekman did not respond to WCH’s summary-judgment motion until the morning of September 21, 2004, the same day set for the hearing on the motion. Boekman filed his own motion for a summary judgment with his response to WCH’s motion. Boekman argued that WCH’s redemption-cost calculation was erroneous because, he said, it was partly based on the terms of the 1997 agreement. Boekman contended that, because the 1997 agreement was executed after the execution of the second, third, and fourth mortgages, it could not be enforced against him in calculating the redemption cost.

At the hearing, WCH asked the trial court if it could submit supplemental materials to support its motion for a summary judgment, and the trial court granted WCH’s request. On September 24, 2004, WCH submitted a “supplemental brief and affidavit.” The supplemental materials included an alternative redemption-cost calculation. J. Wray Pearce, a certified public accountant, prepared this calculation based on the premise that the 1997 agreement could not be enforced against Bock-man. Pearce testified in an affidavit that Boekman had to pay $1,849,809.03 to redeem the property. WCH argues that this calculation was prepared according to the original terms of the note.

Boekman replied to WCH’s supplemental materials arguing that the calculation set out in WCH’s “supplemental brief and affidavit” was incorrect for two reasons. First, Boekman argued that the calculation was erroneous because it was based on the premise that the debt owed under the note and secured by the first mortgage included interest upon unpaid interest. Second, Boekman argued that the calculation was erroneous because it included the amount necessary to pay the debt secured by the fifth mortgage.

On October 20, 2004, the trial court entered a final order on Bookman’s and WCH’s motions for summary judgment. The trial court found that neither Bock-man’s nor WCH’s calculation of proposed redemption costs complied with § 6-5-253(a), Ala.Code 1975. The trial court ordered that Boekman must pay $1,625,874.80 to redeem the property. In determining the redemption amount, the trial court found that the 1997 agreement could not be enforced against Boekman in calculating the redemption cost and that the amount necessary to pay off the debt secured by the fifth mortgage was not a permissible “legal charge” to be included in the redemption cost. The trial court ordered that Boekman had to deposit with the clerk of the court the additional sum of $441,210.80 (in addition to the $1,184,664 he had already tendered) plus accrued interest at $145.06 per day from May 4, 2004, to validly exercise his right of redemption. In its final order, the trial court did not specifically address the issue whether the debt owed on the note and secured by the first mortgage should include interest upon unpaid interest. However, it appears that the trial court included interest upon unpaid interest as a permissible charge in calculating the redemption cost.

On October 29, 2004, Bockman filed a Rule 59(e), Ala.R.Civ.P., motion to alter, amend, or vacate the judgment and a Rule 62(b), Ala.R.Civ.P., motion to stay the execution of the final order pending a ruling on the Rule 59(e) motion. In his motion, Bockman asked the trial court to address the issue whether interest upon unpaid interest was part of the debt owed under the terms of the note and the first mortgage. The trial court granted Bockman’s motion to stay the execution of the final order pending consideration of the Rule 59(e) motion. The trial court held a hearing on November 10, 2004, and subsequently denied Bockman’s Rule 59(e) motion. Therefore, the trial court essentially found that interest upon unpaid interest was owed under the terms of the note and the first mortgage. Bockman appealed and WCH cross-appealed.

I. Timeliness of WCH’s Supplemental Brief and Affidavit

WCH argued in its “supplemental brief and affidavit” presented to the trial court after the hearing on the summary-judgment motions that the debt owed under the note included interest upon unpaid interest. Bockman argues that under § 6-8-103, Ala.Code 1975, WCH failed to timely raise the issue whether the debt secured by the first mortgage included interest upon unpaid interest. Section 6-8-103, Ala.Code 1975, provides:

“The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe.”

Bockman argues that the trial court’s consideration of WCH’s “supplemental brief and affidavit” violated § 6-8-103, Ala.Code 1975. However, Bockman never presented this argument to the trial court. Bockman did argue to the trial court that WCH “argued for the first time” after the hearings on the summary-judgment motion that the amount owed on the note should include interest upon unpaid interest. However, Bockman never argued to the trial court that it should not consider WCH’s “supplemental brief and affidavit” because it was “untimely,” or because consideration of those materials violated § 6-8-103, Ala.Code 1975. Therefore, Bock-man’s argument was not preserved for review. See Halford v. Alamo Rent-A-Car, LLC, 921 So.2d 409, 416 (Ala.2005) (“ ‘This Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.’ ” (quoting State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005))).

II. Propriety of the Summary Judgment

Standard of Revieiv

“ ‘We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:

“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material facts exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).”

General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala.2002).

A. Bookman’s Appeal, Case No. 1010805

Bockman and WCH agree that under § 6-5-253(a), Ala.Code 1975, the debt owed under the note and secured by the first mortgage on the property was a lawful charge to be applied to the redemption cost. However, Bockman argues that the trial court erred in entering a summary judgment for WCH on the issue whether the amount due under the note included interest upon unpaid interest.

A promissory note is a form of contract; therefore, it must be construed under general contract principles. See 11 Am. Jur. 2d Bills and Notes § 2 (1997) (“Bills and notes ... are contracts; accordingly, the fundamental rules governing contract law are applicable to the determination of the legal questions which arise over such instruments.” (footnotes omitted)); William D. Hawkland and Lary Lawrence, UCC Series § 3-119, Official Comment (1994) (“As between the immediate parties a negotiable instrument is merely a contract....”). “ ‘General contract law requires a court to enforce an unambiguous, lawful contract, as it is written. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So.2d 928, 931 (Ala.1985). See also McDonald v. U.S. Die Casting and Development Co., 541 So.2d 1064 (Ala.1989).’ ” Dawkins v. Walker, 794 So.2d 333, 339 (Ala.2001) (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 35-36 (Ala.1998)).

In support of its motion for a summary judgment, WCH argued that the note in this case expressly provided for charging interest upon unpaid interest. The note stated:

“Each payment shall be applied first to the payment of acrued [sic] interest and the balance as a credit on the principal. Said principal and interest ... shall bear interest from maturity at said rate until paid.”

(Emphasis added.) The express terms of the note provide that accrued interest and matured principal would bear interest at 10 percent until paid. Because the note expressly provided for the payment of interest upon unpaid interest, WCH met its burden of presenting substantial evidence indicating that the amount due under the note included interest upon unpaid interest.

Bockman, however, argues that the trial court’s judgment was not supported by the evidence. Bockman contends that the mortgagees could not have intended that interest upon unpaid interest be applied to the debt owed on the note because, he says, Hartley and the mortgagees agreed in the 1997 agreement that the amount actually due under the note and first mortgage was $750,000. Bockman further argues that, if the mortgagees had been charging interest upon unpaid interest, the amount due on the note at the time the 1997 agreement was executed would have been $1,033,000. Lastly, Bockman argues that the affidavits of the mortgagees “make it clear that the original parties to the 1989 note and mortgage did not charge interest on unpaid interest.”

Contrary to Bookman’s assertions, the affidavits of the mortgagees do not “make it clear” that the note did not provide for interest upon unpaid interest. Rather, the mortgagees testified that in 1997 they entered into an agreement with Hartley to amend the terms of the note and the first mortgage “by establishing and fixing the outstanding balance due under the Note” at $750,000. The 1997 agreement was the result of a compromise between Hartley and the mortgagees in anticipation of full payment. The evidence indicates that the 1997 agreement was an “amendment” and that the $750,000 figure did not reflect the actual amount owed under the original terms of the note. Bockman insisted to the trial court, and both parties conceded, that the 1997 agreement was not to be considered in determining the redemption amount. Further, the express terms of the note stipulated that the debtor, Hart-ley, promised to pay interest upon unpaid interest. Bockman failed to present sufficient evidence to overcome WCH’s motion for a summary judgment on the issue whether the note provided for charging interest upon unpaid interest.

Bockman also argues that there is no “common law or statutory authority” for charging interest upon unpaid interest on the debt owed on the note. Bockman argues that under this Court’s holding in Burgess Mining & Construction Corp. v. Lees, 440 So.2d 321, 338 (Ala.1983), the interest applied should have been “simple interest and nothing more.” However, the facts of Burgess are distinguishable from the facts of this case. In Burgess, there was no written contract between the parties setting out the controlling interest rate. Burgess, 440 So.2d at 338 (“Consequently, the Court holds that where, as in this case, no written contract controls the interest rate, thereby precluding the 8% rate of [§ ] 8-8-1, the legal rate of prejudgment interest is 6% per annum.”). In contrast, in this case, the language of the note expressly states that interest upon unpaid interest would be charged to the debt owed under the note. Further, our common law provides authority for charging interest upon unpaid interest. In Smith v. Penn Mutual Life Insurance Co., 244 Ala. 610, 614, 14 So.2d 690, 694 (1943), this Court addressed whether it was permissible for parties to a loan to expressly agree to compute the amount due by charging interest upon unpaid interest. This Court held:

“While there is considerable diversity of opinion on the subject, the rule of our decisions is that an express agreement to pay interest on interest, especially when such agreement is made after the maturity of the original principal, is not unlawful unless the interest so computed exceeds the legal rate for the time, and impinges the statute against usury.”

244 Ala. at 614, 14 So.2d at 694. Bockman even concedes that “[t]he only way that [WCH’s] calculations could possibly be correct is if there is express language in the agreement between Hartley Silica and the Mortgagees to allow for interest on unpaid interest.” Further, Bockman has not cited any authority stating that a mortgagee cannot charge interest upon unpaid interest. We hold that the trial court did not err in entering a summary judgment for WCH on the issue whether interest upon unpaid interest was to be applied to the debt owed on the note.

B. WCH’s Cross-Appeal, Case No. 10mi9

WCH argues that, under the plain meaning of § 6 — 5—253(a) (4), the trial court erred in excluding the unpaid balance, plus accrued interest, of the fifth mortgage from the costs of redemption. We disagree.

‘In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.’ ” Ex parte Shelby County Health Care Auth., 850 So.2d 332, 337 (Ala.2002) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998)). The plain language of § 6-5-253(a)(4) states:

“(a) Anyone entitled and desiring to redeem real estate under the provisions of this article must also pay or tender to the purchaser or his or her transferee the purchase price paid at the sale, with interest at the rate allowed to be charged on money judgments ... and all other lawful charges, also with interest as aforesaid; lawful charges are the following:
“(4) Any other valid lien or encumbrance paid or owned by such purchaser or his or her transferee or if the redeeming party is a judgment creditor or junior mortgagee or any transferee thereof, then all recorded judgments, recorded mortgages and recorded liens having a higher priority in existence at the time of the sale

Ala.Code 1975, § 6-5-253 (emphasis added).

WCH contends that the § 6-5-253(a)(4) unambiguously states that the redemption costs include “[ajny other valid lien or encumbrance paid or owned by such purchaser”; therefore, WCH argues, the unpaid balance of the fifth mortgage should be included in the redemption costs under § 6-5-253(a)(4). However, because Bock-man is a junior mortgagee, the second portion of subsection (a)(4) applies. The statute clearly provides that the lawful charges of a junior mortgagee include recorded mortgages having a higher priority. Because the fifth mortgage is lower in priority than Bockman’s second mortgage, it should not be included in the costs of redemption under § 6-5-253(a)(4). Therefore, the trial court did not err in entering a summary judgment for Bockman on the issue whether the unpaid debt on the fifth mortgage should be excluded from the redemption amount.

Conclusion

The trial court’s summary judgment in favor of WCH holding that interest upon unpaid interest was to be charged under the terms of the note was supported by the express terms of the note. In addition, the trial court’s summary judgment in favor of Bockman holding that the debt secured by the fifth mortgage was excluded from the redemption cost was also proper under § 6-5-253(a)(4), Ala.Code 1975. Therefore, we affirm the trial court’s judgment.

1040305 — AFFIRMED.

1040419 — AFFIRMED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . Hartley paid the following amounts on the note: $32,707.62 on April 2, 1990; $61,000 on July 14, 1991; $40,000 on February 2, 1992; and $32,707.62 on June 4, 1992. Hart-ley did not make any further payments on the note.

      . The agreement stated:
      “1. It is understood and agreed that as of the 15th day of August 1997, the outstanding balance of the Note is Seven Hundred Fifty Thousand Dollars ($750,000.00) inclusive of any and all accurred [sic] interest and penalties.
      "2. The said Mortgagees shall allow and extend the closing until the 15 th day of November 1997, for an additional Fifty Thousand Dollars ($50,000.00) to be paid upon closing. The total amount due on the 15th day of November, 1997, shall be Eight Hundred Thousand Dollars ($800,000.00) (inclusive of principle, interest, and penalties).
      "3. In the event that closing shell not occur on or before the 15th day of November 1997, it is understood and agreed by and between [Hartley] and the Mortgagees that [Hartley] shall incur an additional Six Hundred ($600.00) per diem for each additional day thereafter until closing.”

      . WCH, L.L.C., is a single-member limited liability company. The sole member of the company is William Cobb Hazelrig.

      . On appeal, both parties agree that the 1997 agreement is not enforceable against Bock-man in calculating the cost of redemption.

      . Even if this argument had been preserved for review, § 6-8-103 does not appear to apply to the facts of this case. Section 6-8-103 sets out a discretionary rule for trials. The statute "was adopted deliberately as a restraint upon the laxity of the common-law practice of permitting trial judges at any stage of a trial, before judgment, to reopen cases for the admission of evidence.” Davis v. State, 20 Ala.App. 463, 466, 103 So. 73, 75 (1925) (emphasis added). In the case at bar, the trial court accepted WCH's supplemental materials after the hearing on the parties' summary-judgment motion, rather than after a trial proceeding.
      Bockman has also failed to demonstrate that the trial court exceeded its discretion in allowing WCH to submit additional materials given that Bockman's response to WCH's motion for a summary judgment was not filed until September 21, 2004, the day of the hearing, and the trial court had previously ordered Bockman to respond to WCH's motion by September 15, 2004.


author: MURDOCK, Judge.

text:
    Betsy Glenn CATES v. Elizabeth C. CATES and Glenn C. Cates.
    2040511.
    Court of Civil Appeals of Alabama.
    May 26, 2006.
    William P. Boggs, Clanton, for appellant.
    Bill Speaks, Clanton, for appellees Elizabeth C. Cates and Glenn C. Cates.
    Derrell 0. Fancher of Fancher & Green, LLP, Clanton, guardian ad litem for Betsy Glenn Cates.
   MURDOCK, Judge.

Betsy Glenn Cates appeals from a Chil-ton Circuit Court order denying her request to close her guardianship. Betsy’s guardians are her children, Elizabeth C. Cates and Glenn C. Cates.

In February 1998, Elizabeth and Glenn initiated a consolidated guardianship and conservatorship proceeding as to Betsy in the Chilton Probate Court. See Ala.Code 1975, § 26-2A-31(d). Elizabeth and Glenn alleged that Betsy was an incapacitated person, and they requested that the probate court appoint them as Betsy’s guardians and conservators. In conjunction with the guardianship and conservatorship proceeding, a neurologist who had recently examined Betsy issued a letter stating:

“I have had the pleasure of caring for ... Betsy ... since November 4, 1997. At that time she presented for evaluation of cognitive decline. She underwent full evaluation for this, with in-depth neuropsychological assessment. This revealed a mild to moderate dementia. She was found to be severely impaired in handling basic monetary skills, financial conceptual knowledge, management of a checkbook, and financial judgment. She was mildly impaired in conducting small cash transactions and had a moderate impairment in managing a bank statement.
“It is currently my opinion that [Betsy] is no longer able to make appropriate judgments regarding monies or properties. Further, as I suspect that she has either Alzheimer’s disease and/or frontal lobe dementia, I suspect that this will be progressive and that she will not improve to the point that she will ever be able to do this. I believe that this is a permanent impairment. It is my medical opinion that someone other than [Betsy] should be handling her financial decisions and property decisions.”

Betsy was 73 years old when the neurologist examined her in November 1997.

In May 1998, after an evidentiary hearing, the probate court entered an order appointing Elizabeth and Glenn as Betsy’s guardians and conservators. The order required Elizabeth and Glenn to file biannual accountings as to Betsy’s conservator-ship estate. Thereafter, upon Elizabeth’s and Glenn’s posting of bond, the probate court issued letters of conservatorship and guardianship to them.

In May 2003, unbeknownst to Elizabeth and Glenn, Betsy married Mack Jones. Thereafter, Jones allegedly attempted to control some of Betsy’s assets and to restrict Betsy’s contact with Elizabeth and Glenn. After Elizabeth and Glenn discovered that Betsy had married Jones, they filed an action in the Chilton Circuit Court seeking an annulment of the marriage. See Ala.Code 1975, §§ 26-2A~78(c)(5) and 26-2A-108.

In February 2004, .while the annulment proceeding was pending in the circuit court, Betsy and Jones, who considered himself a “person interested in the welfare” of Betsy, see Ala.Code 1975, § 26-2A-144(a), filed a “Petition for Review” in the probate court alleging that Elizabeth and Glenn had engaged in self-dealing and that they had breached the standard of care applicable to conservators. Betsy and Jones requested that the probate court order Elizabeth and Glenn to file a full accounting of the conservatorship administration.

In May 2004, Betsy filed a “Motion to Close Conservatorship” in the probate court. Betsy’s guardian ad litem promptly filed an objection to her motion, attaching a letter from the aforementioned neurologist, who had reexamined Betsy in March 2004 in conjunction with the pending annulment proceeding. The neurologist’s 2004 letter stated, in part, that Betsy was “suffering from Alzheimer’s disease.” The neurologist concluded that Betsy “should not be making decisions regarding self, properties or finances” and that “she will never be able to make these types of decisions given that Alzheimer’s disease is progressive.” The guardian ad litem also attached a copy of a report of a neuropsy-chological examination of Betsy that had been ordered by the circuit court. The examination report reflected that Betsy was “not currently able to manage her financial affairs” and that she was “in the severely impaired range” on the “Financial Capacity Instrument.” Also, the examination report reflected that Betsy had “significant deficits in the cognitive domains of memory, abstract reasoning, expressive language, and executive functioning,” that she was “highly vulnerable to undue influence,” and that she “would have lacked capacity” to marry Jones when they married. In addition to the guardian ad litem’s objection to Betsy’s motion seeking to close the conservator-ship, Elizabeth and Glenn filed a motion in opposition to Betsy’s motion, and they filed a motion requesting that they be provided with additional time to submit an accounting as to Betsy’s conservatorship estate.

Also in May 2004, the circuit court entered a final judgment in the annulment proceeding. The judgment stated that Betsy “lacked the capacity to enter into a valid marital contract in May 2003,” and it annulled her marriage to Jones. Thereafter, Elizabeth and Glenn obtained a writ of possession from the Chilton District Court as to certain real property that Jones occupied and that belonged to a trust that had been established for Betsy’s benefit by Betsy’s former husband, Elizabeth’s and Glenn’s father.

In early September 2004, before the probate court held a hearing on Betsy’s motion to close the conservatorship, Elizabeth and Glenn filed a new action in the circuit court alleging that Jones had wrongfully interfered with their custody rights as to Betsy and that Jones had wrongfully detained several items of personal property that belonged in the conser-vatorship estate. Elizabeth and Glenn requested that the circuit court enter an ex parte order restoring Betsy to their physical custody, that it enter a temporary restraining order prohibiting Jones from interfering with their custodial rights, and that it enter a permanent injunction enjoining Jones from interfering with their custodial rights. Also, Elizabeth and Glenn requested that the circuit court award them $50,000 as damages for emotional distress and punitive damages for Jones’s allegedly wrongful interference their custodial rights. They further sought recovery of the wrongfully detained personal property or its equivalent value plus “damages for detention in the sum of $5,000.”

After Elizabeth and Glenn filed their action, the circuit court immediately issued an ex parte pickup order requesting that the local sheriff retrieve Betsy and deliver her into Elizabeth and Glenn’s physical custody. The circuit court also issued a restraining order against Jones “to prohibit [him] from interfering with [Elizabeth and Glenn’s] lawful right to have the physical custody of their mother and ward” “until further order of this Court.”

Also in September 2004, Betsy filed a motion in the probate court requesting that it terminate her guardianship and conservatorship, and she again requested an accounting from Elizabeth and Glenn. See Ala.Code 1975, §§ 26-2A-110(a) and 26-2A-158(a). Thereafter, on motion of Elizabeth and Glenn, Betsy’s guardianship and conservatorship proceeding was removed from the probate court to the Chil-ton Circuit Court. See Ala.Code 1975, § 26-2-2. The circuit court apparently consolidated the guardianship and conser-vatorship proceeding into Elizabeth and Glenn’s pending action against Jones; all of the proceedings utilize the same circuit court case number.

In November 2004, Betsy filed a motion in the circuit court requesting that the “conservatorship be closed and the appointed guardians be removed.” Thereafter, Jones filed a motion to set aside the circuit court’s restraining order.

In December 2004, the circuit court conducted an ore tenus proceeding as to whether to “terminate” Betsy’s guardianship, after which it took the guardianship matter under advisement and retained jurisdiction over the “issue of conservator-ship.”

In February 2005, the circuit entered an order denying the petition to terminate the guardianship, stating that “the Ward cannot perform the tasks of daily living and caring for herself’ and that “the Letters of Guardianship shall remain in place with the present Guardians.” The order did not purport to address whether the conser-vatorship should continue, nor did it purport to address the requested accounting or Elizabeth and Glenn’s claims against Jones.

Betsy appealed to this court. This court transferred Betsy’s appeal to the Alabama Supreme Court on jurisdictional grounds. The Supreme Court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6). We do not address the merits of Betsy’s appeal because it must be dismissed as being from a nonfi-nal judgment.

Although neither party has questioned this court’s jurisdiction, we must consider whether we have jurisdiction over this appeal, because ‘“jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The question whether a judgment is final is a jurisdictional question. The reviewing court, on a determination that the judgment is not final, has a duty to dismiss the appeal; if the appellee has not moved for a dismissal, then the court should dismiss the appeal on its own motion. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).

The Alabama Uniform Guardianship and Protective Proceedings Act, Ala.Code 1975, § 26-2A-1 et seq., states, “[ujnless specifically provided to the contrary in this chapter or inconsistent with its provisions, the rules of civil procedure ... and appellate review govern proceedings under this chapter.” Ala.Code 1975, § 26-2A-33. Also, Ala.Code 1975, § 26-2A-36, states that “[ajppellate review, including the right to appellate review, interlocutory appeal, [and] provisions as to ... power of the appellate court, is governed by Title 12, Chapter 22, and the Alabama Rules of Appellate Procedure, as applicable.”

Section 12-22-2, Ala.Code 1975, provides that a party may appeal “[fjrom any final judgment of the circuit court ... to the appropriate appellate court.” A “final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ ” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App. 1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)). A ruling that relates to fewer than all the parties in a case, or that determines fewer than all the claims, is ordinarily not final as to any of the parties or as to any of the claims. Rule 54(b), Ala. R. Civ. P.; see also McGlothlin v. First Alabama Bank, 599 So.2d 1137 (Ala.1992).

Because the circuit court’s February 2005 order determines fewer than all the claims in the present case, the judgment appealed from is not final. Accordingly, we must dismiss the appeal.

APPEAL DISMISSED.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.

      . It appears that the issues as to the conserva-torship and the requested accounting substantially overlap the issues as to the guardianship. Under the circumstances, a Rule 54(b), Ala. R. Civ. P., certification would likely be inappropriate as to the February 2005 order.