author: BARNES, J.,

text:
    Gregory M. JOHNSTON, Appellant Cross-Appellee v. John N. PALMER, Individually and Gulf South Capital, Inc., Appellees Cross-Appellants.
    No. 2006-CA-00428-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      Dennis C. Sweet, Jackson, attorneys for appellant.
    Steven H. Smith, Benny McCalip “Mac” May, Jackson, attorneys for appellees.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. Gregory Johnston filed a complaint in the Circuit Court of Hinds County, Mississippi, alleging John Palmer and Gulf South Capital, Inc. were liable for a gross and intentional breach of contract and fraudulent misrepresentation related to a brokerage agreement. Palmer and Gulf South filed a motion for declaratory judgment, motion to dismiss and/or a motion for summary judgment which was granted by the trial court with prejudice. Johnston appeals from that judgment and argues that the motion for summary judgment should have been denied as there were genuine issues of material fact present and, therefore, there should be no judgment as a matter of law. We find, upon review, that there were no genuine issues of material fact present and affirm the trial court’s grant of summary judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2004, Gregory Johnston was contacted by Mark Walenczyk, who was seeking potential investment opportunities in local businesses on behalf of his father-in-law, James Palmer, and James’s brother, John Palmer. At the time, Johnston was a member of the law firm, Adams & Edens, P.A. in Brandon, Mississippi. The founding members of the firm, Lem Adams and Frank Edens, also owned a separate business, U.S. Legal Forms, Inc. (USLF) which offered legal information, products, and document services over the Internet. Johnston, aware that Adams and Edens had previously considered offers from parties interested in purchasing USLF, informed Walenczyk that USLF would be a good investment opportunity. Walenczyk informed James and John Palmer about USLF and, as a result, they requested a meeting with Johnston to obtain more information.

¶ 3. Later that month, Johnston, Wal-enczyk, James and John Palmer met at James’s office in Jackson, Mississippi to discuss USLF. Johnston shared with them his general knowledge regarding the company, and there was discussion regarding the possibility of the Palmer brothers buying a portion or all of USLF’s business assets. Walenczyk asked Johnston to coordinate a meeting with Adams and Eden to discuss the venture. It was at this time that Johnston informed Walenczyk that, in consideration for his identifying the business opportunity and facilitating the potential transaction, Johnston desired a commission as broker. Walenczyk asked Johnston to draft an agreement, and Wal-enczyk would present it to the Palmers. Johnston drafted a two-page Brokerage Agreement (Agreement) among himself and John Palmer, JYP, LLC, and James Palmer (Clients). According to the terms of the Agreement, Johnston agreed to act on behalf of the Clients as a broker to facilitate a potential transaction with USLF. The Agreement also specified that Johnston would receive a commission of three percent of the total consideration paid by the Clients to any and all shareholders of USLF upon the completion of the transaction. The Agreement, together with a confidentiality agreement, was signed by both James and John Palmer.

¶ 4. On June 21, 2004, Johnston met with Adams and Edens to discuss a potential buyer for USLF, although at this time, Johnston did not disclose the identities of the interested buyers. Adams and Edens informed Johnston that, due to prior negative experiences with potential buyers, they were not entertaining offers. However, Johnston, due to his relationship with Adams and Edens, persuaded them to meet with his Clients. In addition, Johnston had Adams and Edens sign a “conflict of interest notice” letter as well as a confidentiality agreement.

¶ 5. On July 1, 2004, a meeting was held among the parties at the offices of USLF in Brandon, Mississippi. In attendance at the meeting were Johnston, Adams, Edens, John Palmer, James Palmer, Wal-enczyk and Justin McClure, president of Gulf South Capital (Gulf South). As a result of the meeting, the parties agreed there was mutual interest in the business transaction, and Edens agreed to assemble and provide the Clients with more information on USLF. During the month of July 2004, Johnston assisted Edens in the preparation of financial information relating to USLF, and employees of Gulf South became actively involved in the review of the financial material. It was also during this time that Johnston ceased his partnership with Adams and Edens in order to relocate his law practice to Madison, Mississippi.

¶ 6. Johnston made several attempts to set up another meeting for August 2004, but John Palmer indicated that he desired to meet with Adams and Edens alone and did not require Johnston’s presence. It was at this point John Palmer and Gulf South started to manage the negotiations with USLF and deal directly with Adams and Edens. From this point forward, James Palmer and Walenczyk were no longer involved in the negotiation or transaction. On September 1, 2004, Johnston sent an e-mail to John Palmer (hereafter “Palmer”) and several employees of Gulf South requesting an update on the transaction and indicating his willingness to assist them and fulfill his duties as outlined in the Agreement. However, assistance was not requested by Palmer or Gulf South, and after September 20, 2004, they ceased to communicate with Johnston.

¶ 7. On March 18, 2005, a “Stock Purchase and Option Agreement” was signed and entered into by USlegal, Inc. (USL) and Palmer, individually. Palmer agreed to invest $1,000,000 in USL, which was incorporated in February 2005 as a holding company for the assets of USLF. Adams and Edens were the sole stockholders of USL. In consideration of the investment, Palmer received ten percent in the newly issued and outstanding shares of stock in USL. Palmer also received an option to purchase additional shares within a stated period of time. Upon learning of the transaction, Johnston contacted Gulf South and requested payment of a brokerage commission as per the Agreement. After two separate meetings with Gulf South, Johnston was informed that Palmer would not pay the commission as no monies or consideration were paid directly to Adams or Edens.

¶8. Johnston filed a complaint in the Circuit Court of Hinds County, Mississippi, on May 23, 2005, alleging that Palmer and Gulf South were liable for a gross and intentional breach of contract and fraudulent misrepresentation related to the Agreement. Palmer and Gulf South filed a motion for declaratory judgment, motion to dismiss and/or a motion for summary judgment on June 24, 2005. They also produced several documents, including the Stock Purchase Agreement between Palmer and USL. These documents were given to the court for in camera inspection only. On February 23, 2006, the trial court granted summary judgment for Palmer and Gulf South, dismissing all counts with prejudice. Specifically, the trial court found that Gulf South was not a party to the Agreement, and Johnston failed to show that any duty was owed to him by Gulf South. Additionally, based on the information contained in the pleadings and affidavits, there was no genuine issues of material fact that any consideration was owed under the Agreement to Johnston. It is from the judgment that Johnston now appeals.

I. WHETHER THE TRIAL COURT ERRED IN GRANTING PALMER AND GULF SOUTH’S MOTIONS FOR SUMMARY JUDGMENT.

¶ 9. “When reviewing a trial court’s grant of summary judgment, our standard of review is de novo.” Webb v. Braswell, 930 So.2d 387, 395(¶ 12) (Miss.2006). Evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, after a review of the evidence, the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996).

¶ 10. A motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure “tests the notion of well-pled facts and requires a party to present probative evidence demonstrating triable issues of fact.” Children’s Med. Group, P.A. v. Phillips, 940 So.2d 931, 934(¶7) (Miss.2006) (quoting Stuckey v. Provident Bank, 912 So.2d 859, 865-66(¶10) (Miss.2005)).

Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by Rule 56, allowing our trial judges a fair look at whether triable issues of material fact exist. As the rule specifically provides, parties may not simply rely on their pleadings, nor may they escape summary judgment by outlining what they might discover later.

Franklin Collection Serv. v. Kyle, 955 So.2d 284, 291(¶ 24) (Miss.2007). Rule 56 does not provide for evidence which might be introduced or developed at trial. The non-moving party must produce any such evidence in opposition to the motion. Commercial Bank v. Hearn, 923 So.2d 202, 210(¶ 25) (Miss.2006). “It is thus incumbent upon a plaintiff to respond to a motion for summary judgment by demonstrating material factual disputes.” Id. However, Mississippi Rules of Civil Procedure Rule 56(f) states:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

¶ 11. This Court will only reverse a trial court’s decision to grant summary judgment if triable issues of fact exist. Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1041(¶ 8) (Miss.2003). Therefore, we must address Johnston’s individual issues of error to determine if genuine issues of material fact exist in this case.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THERE WAS NO GROSS AND INTENTIONAL BREACH OF CONTRACT BY PALMER

¶ 12. The Agreement between Johnston and Palmer stated,

Clients agree to pay to Broker for his services a commission equal to three percent (3%) of the total consideration paid by Clients to any and all shareholders of U.S. Legal Forms at the completion of this transaction. In the event that Clients do not finalize this transaction, a closing does not occur, and no consideration is paid to any of the shareholders of U.S. Legal Forms, no commission will be owed to Broker by virtue of this Agreement.

Johnston asserts that, in its ruling that no commission was owed to him, the trial court focused on direct monies paid to shareholders, not consideration. Based on our review of the record, we do not agree. The trial judge used the term “consideration” extensively in his opinion and, in fact, assumed the investment by Palmer was consideration. However, the trial court’s focus was more on to whom consideration was given and the literal meaning of the contract. When examining a contract, a court should first examine the four corners of the contract to determine how to interpret it. Rotenberry v. Hooker, 864 So.2d 266, 270(¶ 14) (Miss.2003) (citing McKee v. McKee, 568 So.2d 262, 266 (Miss.1990)). In this instance, Johnston drafted the Agreement so as to make the commission payable only upon the closing of a transaction in which consideration was given to the shareholders of USLF. If a broker, by special agreement, makes his commission payable only upon a contingency or the happening of a condition precedent, there is no right to recovery unless that condition or contingency occurs. Hamilton v. Hopkins, 834 So.2d 695, 702(¶ 22) (Miss.2003).

¶ 13. Johnston also argues that there were genuine factual issues regarding the intent of the parties which goes beyond the “four corner” analysis and that the trial court brought up the issue of intent. Again, we do not agree with this view. The trial court clearly stated “the focus is upon objective fact” and that the concern “is not nearly so much with what the parties may have intended.” The only time the court referenced the parties’ intent is when it stated that Johnston intended to limit his commission solely to consideration given to USLF. Johnston argues that this wording is only due to the fact that no other entity connected with USLF existed at the time of the Agreement. While Johnston is correct, we observe that “[wjhere the language of an otherwise enforceable contract is subject to more than one fair reading, the reading applied will be the one most favorable to the non-drafting party.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111(¶ 11) (Miss.2005). We find, as did the trial court, that Johnston drafted the Agreement to encompass any and all buyers connected to Palmer, yet failed to apply that same possible scenario for the seller. Additionally, we note that the scenario Johnston outlined in the Agreement was essentially one in which Palmer would buy USLF from Adams and Edens, not the purchase of certain stock in the holding company and joining the management as an employee, albeit the chief executive officer. Edens even testified in his affidavit that no shareholders of USLF or USL received any funds or compensation of any type. The testimony is that the one million dollars paid by Palmer was capital funding for the company, not consideration to the shareholders. While there may have been consideration given to USL, it was for the purpose of obtaining stock in the company as an investment, not a payment to Adams and Edens for the purchase of their shares in the company.

¶ 14. Therefore, we agree with the trial court’s manner of review. “A reviewing court should seek the legal purpose and intent of the parties from an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. The reviewing court is not at liberty to infer intent contrary to that emanating from the text at issue.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752(¶ 9) (Miss.2003). We find no error the in trial court’s finding that there was no gross or intentional breach of the contract.

III. WHETHER THE TRIAL COURT ERRED IN FINDING NO BREACH OF GOOD FAITH AND FAIR DEALING BY PALMER AND GULF SOUTH.

¶ 15. Johnston alleges that Palmer used a “loophole” in the Agreement and structured the transaction in such a way that Johnston was circumvented and unable to obtain his commission. Johnston states that this action amounted to bad faith by Palmer and Gulf South. “All contracts carry an inherent covenant of good faith and fair dealing.” Ferrara v. Walters, 919 So.2d 876, 883(¶ 19) (Miss.2005) (citing Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992)). The Mississippi Supreme Court explained that, “The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness.” Cenac, 609 So.2d at 1272. “ ‘[B]ad faith’ is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.” Bailey v. Bailey, 724 So.2d 335, 338(¶ 9) (Miss.1998).

¶ 16. The Agreement stipulated in paragraph 1,

Broker shall have the exclusive right to act as a broker on behalf of the Clients for the purpose of facilitating the transaction contemplated with U.S. Legal Forms. Clients agree that they will not circumvent the Broker in this transaction. Nothing in this Agreement shall prevent Clients from engaging other professional advisors such as attorneys, accountants, consultants, or appraisers to assist them in this transaction.

Palmer admitted in his affidavit that, within a week or two after signing the Agreement with Johnston, he and Mr. Edens decided that it would be more “efficient” for Palmer to negotiate with USLF directly, without Johnston’s assistance. Palmer and Gulf South assert in their brief that Johnston never registered any “objection, opposition, or protest, either verbally or in writing, to Palmer’s negotiating directly with the two shareholders of USLF.” However, Mr. Johnston was not given any definitive notice, prior to the announcement of the transaction between Palmer and USL, that his services were not needed under the terms of the Agreement. Johnston was told by Palmer, through an attempt by Johnston to set up another meeting, that Palmer wished to meet with USLF alone. Johnston sent an e-mail to Palmer and Gulf South two months after the original meeting to get an update on the transaction and to re-iterate his willingness to perform under the Agreement. There was no communication between Palmer and Johnston after September 20, 2004, until Johnston learned of the deal with USL in March 2005.

¶ 17. Under the duty of good faith and fair dealing, a party has a duty “not only to refrain from hindering or preventing the occurrence of conditions of his own duty or the performance of the other party’s duty, but also to take some affirmative steps to cooperate in achieving these goals.” Cenac, 609 So.2d at 1272. Had Palmer refused to pay Johnston’s commission due to his failure to participate in the negotiations, the non-circumvent clause and duty of good faith would prevent Palmer’s reliance on the Agreement, as he kept Johnston “out of the loop” in Palmer’s negotiations with the shareholders of USLF. Palmer’s failure to pay the commission, however, was based solely on the fact that the deal, as structured, did not fall within the narrow parameters of the Agreement drafted by Johnston. Johnston has cited no authority for the proposition that either the duty of good faith or the non-circumvent clause required Palmer to structure the deal with USLF so as to entitle Johnston to a commission under the terms of the Agreement. Nor did Johnston present any affidavits or evidence setting forth any specified facts that the formation of the holding company, USL, was done for the sole reason of negating Palmer’s responsibility to pay Johnston’s commission. The trial court noted that while such allegations might survive a motion to dismiss under Rule 12(b)(6), M.R.C.P, “it is insufficient to withstand Palmer’s Rule 56 motion for summary judgment.”

¶ 18. While it may seem unfair for Palmer to have been introduced to the business opportunity by Johnston and now rely on the literal interpretation of the Agreement so as to deny payment of a commission to him, we are mindful of the fact that Johnston was the sole drafter of the Agreement and, as such, controlled the its terms. We find, as did the trial court, that no genuine issue of material fact exists that Palmer or Gulf South breached the duty of good faith and fair dealing under the terms of the Agreement.

IV. WHETHER THERE WAS FRAUD AND MISREPRESENTATION ON THE PART OF PALMER AND GULF SOUTH.

¶ 19. Johnston claims that Palmer and Gulf South falsely promised to pay him a commission in exchange for his identification of the investment opportunity and used his relationship with Adams and Eden to give them a more advantageous position as buyer. Appellate courts are normally reluctant to sustain summary judgments in matters involving allegations of fraud. McGee v. Swarek, 733 So.2d 308, 312(¶ 13) (Miss.Ct.App.1998). Nonetheless, the Mississippi Supreme Court has affirmed grants of summary judgments in fraud cases where the court was satisfied that a jury applying a clear and convincing evidence standard to the known facts could not reasonably find a fraud to have been committed. Id. The Mississippi Supreme Court has stated that:

a party alleging fraud or misrepresentation must prove the following elements by clear and convincing evidence: (1) A representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the matter reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance upon its truth; (8) his right to rely thereon; (9) his consequent and proximate injury.

Great Southern Nat’l Bank v. McCullough Environmental Services, Inc., 595 So.2d 1282, 1288-89 (Miss.1992); see, e.g., Johnson v. Brewer, 427 So.2d 118, 121 (Miss.1983).

¶20. The trial court noted that Johnston presented no evidence that Palmer or Gulf South intended, at the signing of the Agreement, to defraud Johnston. Johnston defends this by stating that his inability to conduct proper discovery and view the Stock Purchase agreement created an “impossible burden” upon him to prove all the elements by clear and convincing evidence. However, Rule 56 specifically states that “parties may not simply rely on their pleadings, nor may they escape summary judgment by outlining what they might discover later.” Franklin Collection Serv., 955 So.2d at 291 (¶ 24). A trial judge’s decision concerning a motion related to discovery are reviewed for abuse of discretion. Miss. Ins. Guar. Ass’n v. MS Cas. Ins. Co., 947 So.2d 865, 876(1128) (Miss.2006). “[T]he decision to ... order further discovery rests within the sound discretion of the trial judge and will not be reversed unless his decision can be characterized as an abuse of discretion.” Id. (quoting Marx v. Truck Renting & Leasing Assocs., 520 So.2d 1333, 1344 (Miss.1987)). Although Johnston vigorously argues that his inability to view the stock purchase agreement and conduct additional discovery was error, we note that he failed to file any motion for relief on that issue in the trial court. A party who opposes a motion for summary judgment may not rely on vague assertions that discovery will produce needed, but unspecified, facts. McQueen v. Williams, 587 So.2d 918, 923 (Miss.1991). Johnston filed no motion to compel discovery, nor did he file a motion for time under Rule 56(f) for additional discovery. “A party opposing a motion for summary judgment may request a continuance in order to conduct further discovery pursuant to Miss. R. Civ. Proc. 56(f).” Owens v. Thomas, 759 So.2d 1117, 1120(¶ 11) (Miss.1999). The record reflects that Johnston only submitted a response in opposition to the motion for summary judgment. Since Johnston did not utilize Rule 56(f) to request additional time for discovery, the circuit court’s grant of summary judgment was not premature. Johnston failed to raise a genuine issue of material fact as to any fraud and/or misrepresentation by Palmer and Gulf South; therefore, we find no error.

V. WHETHER PALMER AND GULF SOUTH WERE LIABLE UNDER THEORIES OF QUANTUM MERUIT AND UNJUST ENRICHMENT.

¶ 21. Johnston asserts that Palmer and Gulf South are liable to him for his services and have been unjustly enriched by accepting and using his services to further their business relationships without paying due consideration. Johnston supports this theory by the fact that Gulf South employees told him that Palmer did not even know what the Agreement said at the time he signed it. He asserts that, if these facts were true, the Agreement may be subject to recision or rendered void. However, as we have already indicated, “[t]o permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts.” Alliance Trust Co. v. Armstrong, 185 Miss. 148, 163-64, 186 So. 633, 635 (1939). “[Ejvery person must be presumed to know the law, and in absence of some misrepresentation, or illegal concealment of facts, the person must abide the consequences of his contracts and actions.” Farragut v. Massey, 612 So.2d 325, 329 (Miss.1992). Palmer was an astute businessman, and we find, as did the trial court, that the contract was binding and valid as to both parties. Palmer has also agreed to be bound by the terms of the Agreement. Recovery under quantum meruit may be premised either on express or implied contract, and a prerequisite to establishing grounds is the claimant’s reasonable expectation of compensation. Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss.1987). Parties may not simply abandon a contract and resort to quantum meruit. Redd v. L & A Contracting Co., 246 Miss. 548, 556, 151 So.2d 205, 208 (1963).

¶ 22. “To collect under an unjust enrichment or quasi-contract theory, the claimant must show ‘there is no legal contract but ... the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.’ ” Ellis v. Anderson Tully Co., 727 So.2d 716, 719(¶ 25) (Miss.1998) (quoting Hans v. Hans 482 So.2d 1117, 1122 (Miss.1986)). There is no question that a legally binding, written contract existed between Johnston and Palmer. Therefore, damages based on claims of unjust enrichment are not an appropriate remedy. We affirm the trial court’s grant of summary judgment on this issue.

VI. WHETHER THE TRIAL COURT ERRED IN GRANTING GULF SOUTH’S MOTION FOR SUMMARY JUDGMENT FINDING IT WAS NOT A PROPER PARTY TO THIS ACTION.

¶ 23. The trial court, in its final judgment, addressed the issue of Gulf South’s motion for summary judgment as a matter of law, finding that Gulf South had no obligation under any contract to Johnston, and the motion for summary judgment should be granted. Gulf South was not a party to the Agreement entered into by Johnston and Palmer. Johnston argues that since he had not been made privy to information contained in the stock purchase agreement, dismissing Gulf South from the suit was improper until discovery could be conducted to determine their involvement. Additionally, Johnston stated that Gulf South is a party to the Agreement under Paragraph 4 which we restate:

Clients agree to pay the commission to Broker described in paragraph 3 above in the event that the transaction contemplated herein with U.S. Legal Forms is consummated with any natural person, agent, assignee, employee, or entity that is not enumerated in this agreement, but is in any way affiliated with or may be associated with Client.

However, we agree with the trial court that there was no evidence presented which made Gulf South a party to the Agreement. The paragraph in the Agreement only pertains to those entities which are parties to the stock purchase agreement, which still confers no liability on the entity to pay the commission. That duty is still owed by the Clients to the Agreement, and Gulf South is not one of them. We, therefore, affirm the trial court’s grant of summary judgment to Gulf South.

VII. WHETHER THE TRIAL COURT INDEPENDENTLY CREATED FINDINGS OF FACT NOT CONTAINED IN THE RECORD, AND NOT IN A LIGHT MOST FAVORABLE TO THE PLAINTIFF.

¶ 24. When considering a motion for summary judgment, a trial court must view all evidence in a light most favorable to the non-moving party. Bowie, 861 So.2d at 1041. Johnston argues that the trial court made several statements in its judgment that were not contained in the record and were independent assumptions by the court. Specifically, Johnston states that the trial judge’s statements about Johnston’s legal expertise as an “experienced, practicing attorney” subjected him to a higher level of scrutiny by the trial court and was in “direct opposition to the deference required by Rule 56.”

¶ 25. We are bound to respect a lower court’s findings of fact when they are supported by reasonable evidence in the record and are not manifestly wrong. Byrd v. Bowie, 933 So.2d 899, 904(¶ 14) (Miss.2006). We find reasonable evidence from our review of the record that Johnston was an experienced legal practitioner, even though he states that he was not, at the time, employed as such. Therefore, we find the trial court’s finding of fact were supported by the evidence, and there is no merit to Johnston’s claim of error on this issue.

VIII. WHETHER JOHNSTON IS LIABLE FOR ATTORNEYS’ FEES.

¶ 26. Palmer and Gulf South cross-appeal in their reply brief that the claims asserted by Johnston are frivolous and, as such, he should be held liable for their attorney’s fees and costs and/or sanctions pursuant to Mississippi Code Annotated section 11-55-1, under Rule 11 of the Mississippi Rules of Civil Procedure, and/or by the “inherent power of this Court.”

¶ 27. The issue of whether to award attorney’s fees falls within the sound discretion of the trial court. Browder v. Williams, 765 So.2d 1281, 1287(¶ 34) (Miss.2000). Under Rule 56(h), if summary judgment is denied, a trial court “shall award to the prevailing party the reasonable expenses incurred in attending the hearing of the motion and may, if it finds that the motion is without reasonable cause, award attorneys’ fees.” Southwest Miss. Regional Medical Ctr. v. Lawrence, 684 So.2d 1257, 1264-1265 (Miss.1996). However, in the case before us, summary judgment was granted and therefore, this section of the rule is not applicable. As the parties did not expressly address the issue of attorneys’ fees in the Agreement, we find the trial court’s failure to award attorney’s fees in the case was not an abuse of discretion.

¶28. Our review of whether the imposition of sanctions is warranted under Rule 11 is an abuse of discretion standard. Eatman v. City of Moss Point, 809 So.2d 591, 593(¶ 6) (Miss.2000). Under M.R.C.P. 11(b), a court may award reasonable expenses and attorneys’ fees against a party or his attorney, or both, whose pleading or motion (1) is frivolous or (2) is filed for the purpose of harassment or delay. “[A] pleading or motion is frivolous within the meaning of Rule 11 only when, objectively speaking, the pleader or movant has no hope of success.” Id. (quoting Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1336 (Miss.1989)). “Though a case may be weak or ‘lightheaded,’ that is not sufficient to label it frivolous.” Leaf River Forest Prods. v. Deakle, 661 So.2d 188, 195 (Miss.1995). The trial court found no basis for sanctions or monetary damages and neither do we. We decline the invitation to make an award of attorneys’ fees and sanctions under the present circumstances and hold that the trial court did not abuse its discretion in refusing to award attorney’s fees in this case and deny the cross-appeal.

CONCLUSION

¶29. Issues of fact exist where more than one reasonable interpretation may be given to undisputed testimony, “where materially differing but nevertheless reasonable inferences may be drawn from the uncontradicted facts, or where the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial court cannot say with reasonable confidence that the full facts of the matter have been disclosed.” Yowell v. James Harkins Builder, Inc., 645 So.2d 1340, 1345 (Miss.1994). Based on the evidence in the record before us, we find that the trial court properly granted summary judgment, and Johnston’s assignments of error without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPEL-LEE.

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

      . JYP, LLC was a Mississippi limited liability company that James Palmer owned and used as an investment vehicle.

      . Justin McClure is also John Palmer's son-in-law. Gulf South Capital, Inc. is a corporation wholly owned by John Palmer.

      . Gulf South was not a parly to the stock purchase agreement and has no ownership interest in USL.

      . We note here that the stock purchase agreement between Palmer and USL, which was presented to the trial court under seal, has never been viewed by Johnston, nor is it included in the record before this Court. However, the trial court's judgment contained only information contained in the pleadings and affidavits, not the stock purchase agreement.

      . Even more fatal to Johnston's claim for commission under the terms of the Agreement is the fact that the Agreement was for facilitating the "purchase of a portion or all of U.S. Legal Forms' business assets” which did not occur.

      . Paragraph 4 of the Agreement stated:
      Clients agree to pay the commission to Broker described in paragraph 3 above in the event that the transaction contemplated herein with U.S. Legal Forms is consummated with any natural person, agent, as-signee, employee, or entity that is not enumerated in this agreement, but is in any way affiliated with or may be associated with Client.

      . Edens and Adams were both aware of Johnston's role as broker since they both signed a conflict of interest letter stating they were "amenable” to Johnston acting as broker on behalf of Palmer.

      . Edens, in his affidavit, stated that, although he was aware of the Agreement between Johnston and Palmer, he had no knowledge of the terms or conditions.

      . Johnston maintains that he was not "even in practice at the time the agreement was drafted.” We are unsure as to the veracity of this statement as Johnston testified that he opened his own law firm shortly after leaving Adams and Edens.

      . Parties may, by contract, provide that in the event of a dispute the losing party will pay the prevailing party reasonable attorneys' fees. Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278, 289(¶ 31) (Miss.2005).


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte George N. YOCUM et al. (In re Elizabeth W. Brown v. Cahaba Valley Timber Company, Inc., et al.)
    1060309.
    Supreme Court of Alabama.
    Feb. 16, 2007.
    Jason E. Gilmore of Gordon & Associates, LLC, Birmingham, for petitioners.
    Dennis E. Goldasich, Jr., and Justin L. Smith of Cross, Poole, Goldasich & Fischer, LLC, Birmingham, for respondent.
   LYONS, Justice.

George N. Yocum, Cahaba Valley Timber Company, Inc., Cahaba Valley Mulch, Inc., and Cahaba Valley Lumber Company, Inc., four of the defendants in an action pending in the Jefferson Circuit Court, petition this Court for a writ of mandamus directing the Jefferson Circuit Court to transfer this case to the Dallas Circuit Court pursuant to § 6-3-21.1, Ala.Code 1975, the forum non conveniens statute. We deny the petition.

I. Procedural Background

Elizabeth W. Brown, a resident of Dallas County, commenced an action in the Jefferson Circuit Court against Cahaba Valley Timber Company, Inc. (“Cahaba Timber”); Cahaba Valley Lumber Company, Inc. (“Cahaba Lumber”); Cahaba Valley Mulch, Inc. (“Cahaba Mulch”); Cahaba Valley Services, Inc. (“Cahaba Services”); Pallet Source, Inc.; James A. Yocum, Jr.; and George N. Yocum, alleging breach of a contract that Brown, a former employee of Cahaba Timber, argues entitled her to a percentage of the profits of Cahaba Timber. Brown also asserted claims of fraud, suppression, and conversion against the Yocums and Cahaba Timber based on statements made to her while she was working for Cahaba Timber in Dallas County and asserted claims of interference with business relations against the Yo-cums, Cahaba Lumber, Cahaba Mulch, Ca-haba Services, and Pallet Source based on their allegedly charging Cahaba Timber “exorbitant” fees or refusing to pay for Cahaba Timber’s services in order to decrease its profitability and lessen the amount due Brown as a percentage of the profits.

Cahaba Timber, Cahaba Lumber, Caha-ba Mulch, and George Yocum, all of whom reside or have their principal place of business in Dallas County (hereinafter referred to collectively as “the Dallas County defendants”) moved to transfer the action to Dallas County pursuant to § 6-3-21.1, Ala.Code 1975, which permits transfer of a civil action “for the convenience of parties and witnesses, or in the interest of justice.” The Dallas County defendants submitted the sworn testimony of George Yocum in support of their motion. Brown submitted no evidence in opposition to the transfer. The trial court denied the motion to transfer. The Dallas County defendants then petitioned this Court for a writ of mandamus.

II. Factual Background

According to Brown’s complaint, she is a resident of Dallas County; Cahaba Timber’s principal place of business is in Dallas County; Cahaba Services’ principal place of business is in Dallas County; Ca-haba Mulch’s principal place of business is in Dallas County; Cahaba Lumber’s principal place of business is in Dallas County; and George Yocum resides in Dallas County. Pallet Source’s principal place of business is in Jefferson County, and James Yocum resides in Jefferson County.

Brown further alleges that she left her long-time employment with another company in Selma to work as general manager of Cahaba Timber pursuant to an employment contract that she says ultimately entitled her to 10% of the net profits of Cahaba Timber. Brown alleges that George Yocum and James Yocum operated and controlled several corporations that had entered into agreements with Cahaba Timber, including Cahaba Services, which, she alleges, charged Cahaba Timber excessive trucking costs, and Cahaba Mulch, Cahaba Lumber, and Pallet Source, which, she alleges, charged Cahaba Timber inflated prices for products they sold to Cahaba Timber. According to Brown, all the defendants engaged in such conduct in an effort to create the appearance that Caha-ba Timber was in financial trouble, thus driving down the amount due Brown as her share of the profits in Cahaba Timber. Brown says that James Yocum and Pallet Source (hereinafter referred to collectively as “the Jefferson County defendants”) participated in this activity with full knowledge of her right to participate in a percentage of the net profits of Cahaba Timber.

III. Standard of Review

The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for a writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). “When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). “A writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte Nichols, 757 So.2d 374, 376 (Ala.1999). As the petitioners, the Dallas County defendants have the burden of proving that the trial court exceeded its discretion in refusing to transfer the case to Dallas County. 757 So.2d at 377. The trial court should give deference to the plaintiffs choice of a proper forum. Ex parte Bloodsaw, 648 So.2d 553, 555 (Ala.1994). “[T]he burden is on the party moving for the transfer to prove that the transferee forum is significantly more convenient than the plaintiffs chosen forum, see Ex parte Auto-Owners Ins. Co., 630 So.2d 435, 436 (Ala.1993).” Ex parte Nichols, 757 So.2d at 378.

IV. Analysis

The Dallas County defendants do not contend that venue in Jefferson County is improper. Instead, they contend only that venue should be changed to Dallas County for the convenience of the parties and the witnesses or in the interest of justice.

The Dallas County defendants contend that all documents relating to Brown’s complaint are located in Dallas County and that the employees of Cahaba Timber, Cahaba Mulch, Cahaba Lumber, and Cahaba Services live primarily in Dallas County; they do not specifically identify the documents or the employees. Unless we are to assume that Pallet Source maintains no records at its principal place of business in Jefferson County, this statement, on its face, cannot be correct. Further, as this Court stated in Ex parte Nichols, 757 So.2d at 378, “ ‘A party who claims that the location of documents is a consideration in a forum non conveniens dispute must make a showing on the factors such as volume, necessity, and inconvenience that would support such a claim.’ ” (Quoting Ex parte Wiginton, 743 So.2d 1071, 1076 (Ala.1999)). Because the Dallas County defendants make no such showing, we cannot consider the location of the documents in determining whether the trial court exceeded its discretion in denying the motion to transfer. Further, the inconvenience to nonparty witnesses does not weigh heavily where, as here, those witnesses are employees of the Dallas County defendants and their presence at trial can be secured by those defendants. See Ex parte Nichols, 757 So.2d at 379 (“The location of the nonparty witnesses in this case also does not figure heavily into this Court’s determination. The nonparty witnesses are all employees of PBI whose presence at trial can be obtained by PBI.”).

With respect to the interest of justice, the Dallas County defendants rely upon Ex parte First Family Financial Services, Inc., 718 So.2d 658, 659 (Ala.1998), and Ex parte Independent Life & Accident Insurance Co., 725 So.2d 955 (Ala.1998). In First Family, this Court dealt with a situation where the plaintiff never resided in the forum county, no transaction between the plaintiff and the defendant ever occurred there, and the defendant had no office, employees, or documents in the forum county. Under those circumstances, this Court concluded that the interest of justice required that the action be transferred. In Independent Life, all of the transactions at issue took place in Montgomery County; the plaintiffs lived in Montgomery County; the three insurance agents all worked out of the Montgomery office of Independent Life; and it appeared that the one agent who lived in Lowndes County, where the action was commenced, did not sell any of the policies at issue, and, at most, played a minor role in the events giving rise to the action. We concluded that “this case has no nexus with Lowndes County that would justify burdening that county with the trial of this case.” 725 So.2d at 957.

The Jefferson County defendants, two of the alleged principal wrongdoers, operate out of Jefferson County. The facts here are substantially different from those before this Court in First Family and Independent Life, where the forum county had little, if any, contact with the matters made the basis of the action. Because of the nexus between Jefferson County and the alleged participation of the two Jefferson County defendants in the alleged scheme to overcharge Cahaba Timber so as to deflate its profits and hence the amount due Brown, we cannot say that the trial court exceeded its discretion in failing to conclude that, in the interest of justice, Jefferson County should not be burdened with the trial of this case.

V. Conclusion

The Dallas County defendants have not made a sufficient showing that the trial court exceeded its discretion in denying their motion to transfer this action to Dallas County. We therefore deny their petition for a writ of mandamus.

PETITION DENIED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . Cahaba Services did not join in the motion to transfer the case to Dallas County.


author: WOODALL, Justice. COBB, Chief Justice

text:
    Ex parte Joseph RAMSEY. (In re Joseph Ramsey v. Anthony Wilson).
    1060465.
    Supreme Court of Alabama.
    Feb. 23, 2007.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Holt & Morgan, Florence, for petitioner.
    Submitted on petitioner’s brief only.
   WOODALL, Justice.

WRIT DENIED.

SEE, LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., dissents.

MURDOCK, J., recuses himself.

COBB, Chief Justice

(dissenting).

I dissent from the majority’s decision to deny this petition for a writ of certiorari. Joseph Ramsey makes two arguments in his petition: (1) that the judgment against him should be reversed because a principal-agent relationship existed between David Tubbs and Janice Tubbs, on the one hand, and Joseph Ramsey, on the other, and the verdicts rendered involving Janice Tubbs and Ramsey were inconsistent, and (2) that Anthony Wilson did not have standing to bring the underlying action because, Ramsey argues, Anthony Wilson did not possess title to the subject vehicle. The majority apparently has concluded, I believe correctly, that Ramsey did not preserve the issue of inconsistent verdicts for appellate review because he did not raise the issue in his motion for a new trial. However, as to the standing issue, the majority apparently has concluded that the one claim of conflict regarding the ownership issue is insufficient to invoke this Court’s review. I disagree.

The facts presented in Ramsey’s petition indicate that at the time the purported conversion occurred legal title to the vehicle was in the name of Jason Wilson, Anthony’s brother. After the proper legal notices appeared in the local newspaper, the abandoned vehicle was sold to David Tubbs on March 10, 2003. On March 17, 2003, Jason Wilson submitted an application for replacement title with the Alabama Department of Revenue. It was not until April 1, 2003, that Anthony Wilson submitted an application for certifícate of title to the Department of Revenue. There is no indication that Anthony Wilson ever held legal title to the vehicle; the Alabama Department of Revenue issued title to the vehicle to David Tubbs on April 4, 2003. “Legal title with immediate right of possession by the plaintiffs to the converted property at the time of conversion is a necessary element of the conversion action.” Roberson v. Ammons, 477 So.2d 957, 962 (Ala.1985). Because it is not clear at this stage of the proceeding whether Anthony Wilson had legal title with immediate right of possession of the vehicle at the time of the purported conversion, I would grant the writ of certiorari to review this issue. Therefore, I respectfully dissent from the majority’s decision to deny the writ.

      . David Tubbs and Joe Ramsey were initially the only named defendants. Subsequently the complaint was amended to substitute Janice Tubbs as a defendant in place of David Tubbs, who died after the complaint was filed. Title to the vehicle had been issued in David Tubbs’s name pursuant to a power of attorney held by Janice Tubbs.


author: STUART, Justice.

text:
    Ex parte William Worth BROWN III. (In re Ex parte Debra Denise Ratliff Brown (In re Debra Denise Ratliff Brown v. William Worth Brown III)).
    1051762.
    Supreme Court of Alabama.
    Feb. 23, 2007.

      Scott A. Gilliland, Birmingham, for petitioner.
    Carl E. Chanblee, Sr., Birmingham, for respondent.
   STUART, Justice.

William Worth Brown III, the father of Amanda Leigh, a minor child, petitions this Court for a writ of mandamus directing the Court of Civil Appeals to quash its writ of mandamus, issued on August 29, 2006; the Court of Civil Appeals, in an unpublished order, directed the trial court to vacate its order of June 29, 2006, which granted the father custody of the child and to reinstate the custody provisions of the original divorce judgment issued on April 18, 2006, which granted custody of the child to the mother, Debra Denise Ratliff Brown. We grant the petition and issue the writ.

Facts

The following facts are undisputed. On April 18, 2006, the trial court entered a final judgment divorcing the father and the mother. The written order awarded custody of the minor child, incorrectly referred to in the order as “Haley,” to the mother; ordered the father to pay child support; set forth a visitation schedule for the father; and ordered the father to provide health insurance for the child. On May 24, 2006, the father filed a motion to alter, amend, or vacate the judgment of divorce, stating:

“1. [T]he judgment of this court was inconsistent with applicable law of the State of Alabama;
“2. [T]he judgment of this court was contrary to the weight of the evidence presented at the hearing; and
“3. [T]he judgment of this court was inconsistent with the facts presented at trial.”

The mother filed a response in which she argued that the father’s motion to alter, amend, or vacate the judgment was due to be denied by operation of law because it was filed more than 30 days after the entry of the judgment. See Rule 59(e), Ala. R. Civ. P.

On June 29, 2006, the trial court, in light of the father’s motion to alter, amend, or vacate, amended the judgment of divorce it had entered on April 18, 2006. That amended judgment awarded custody of the child to the father, ordered the mother to pay child support to the father, provided a visitation schedule for the mother, and ordered the mother to provide medical insur-ánce for the child.

The mother petitioned the Court of Civil Appeals for a writ of mandamus ordering the trial court to vacate its amended final judgment of divorce, dated June 29, 2006, and to reinstate the original final judgment of divorce, dated April 18, 2006. In her petition, she argued that the trial court’s June 29, 2006, order was void and due to be denied by operation of law because the father’s motion to alter, amend, or vacate the judgment was untimely and the trial court therefore lacked jurisdiction to enter the order. While the petition for the writ. of mandamus was before the Court of Civil Appeals, the trial court issued an “amended order,” stating:

“The court having been presented with a courtesy copy of the [petition for the] Writ of Mandamus and this Court’s review of same, does offer the following as an amendment to the Order entered on June 29, 2006.
“It was this Court’s intention when it published the original Order herein that the custody of the minor child be awarded to the [father]. The first draft of this decree so stated (the first draft having been destroyed and cannot be attached as evidence).
“Upon the printing of the Final Order, there was a reversal of the parties, in that portion of the Order awarding custody. The Court is at a loss to explain what happened; however, it is clear if one reads the Final Judgment entered on April 18, 2006, it does not carry the parties’ minor child by name.
“Again, the Court is uncertain as to exactly what happened, but this Order should be read as a correction of a scrivener’s error.
“This Court can only assume that when the draft was merged as a final copy, part of another Order was picked up somehow, inserted therein, and was not discovered by the Court until the motion was filed by the [father] on the motion to alter or amend.”

On August 29, 2006, the Court of Civil Appeals, by an unpublished order, granted the petition and directed the trial court to vacate its June 29, 2006, order and to enter an order reinstating the final judgment of divorce entered on April 18, 2006.

The father now petitions this Court for a writ of mandamus directing the Court of Civil Appeals to quash its writ.

Standard, of Review

“ A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala.2004). A writ of mandamus is “appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).’
“Ex parte Antonucci, 917 So.2d 825, 830 (Ala.2005).”

Ex parte Rawls, 953 So.2d 374, 377 (Ala.2006).

Legal Analysis

The father contends that the Court of Civil Appeals erred in determining that the trial court had exceeded its discretion and in ordering the trial court to vacate its amended order, dated June 29, 2006, and to reinstate its original judgment of divorce, dated April 18, 2006. According to the father, although more than 30 days had passed since the final judgment was entered, the trial court nonetheless had jurisdiction to enter its June 29, 2006, order because, the father argues, the trial court was correcting a scrivener’s error.

Rule 60(a), Ala. R. Civ. P., provides:

“(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and error therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be corrected by the trial court....”

In Higgins v. Higgins, 952 So.2d 1144, 1147-48 (Ala.Civ.App.2006), the Court of Civil Appeals provided an instructive discussion of the scope of a trial court’s authority to correct a clerical mistake, stating:

“‘The object of a Rule 60(a) [, Ala. R. Civ. P.,] motion or a judgment nunc pro tunc is to make the judgment or the record speak the truth. Under Rule 60(a) a correction may be made by the trial court at any time.
“ ‘The trial court’s authority to enter a Rule 60(a) order or a judgment nunc pro tunc is not unbridled. It cannot be used to enlarge or modify a judgment or to make a judgment say something other 'than what was originally said. If the mistake involves an exercise of judicial discretion, any correction is beyond the scope of Rule 60(a) and should properly be effected under Rule 59(e) or Rule 60(b) [, Ala. R. Civ. P.]’

“McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995) (citations omitted).

“Chief Justice Torbert explained the proper application of Rule 60(a) in his special concurrence in Ex parte Continental Oil Co., 370 So.2d 953, 955-56 (Ala.1979):

“ ‘Although there is no precise delineation in the cases construing Rule 60(a) of the [Alabama Rules of Civil Procedure] or its federal counterpart as to what constitutes a “clerical mistake or error arising from oversight or omission,” generally it can be said that the rule allows the correction of errors of a ministerial nature in order to reflect what was actually intended at the time of entry of the order. The rule contemplates the type of error associated with mistakes in transcription, alteration, or omission of any papers and documents— a mistake mechanical in nature which does not involve a legal decision or judgment. In re Merry Queen Transfer Corp., 266 F.Supp. 605 (E.D.N.Y.1967). In this respect it has been stated that:
“ ‘ “Rule 60(a) is concerned primarily with mistakes which do not really attack the party’s fundamental right to the judgment at the time it was entered. It permits the correction of irregularities which becloud but do not impugn it. To that end 60(a) permits, inter alia, reasonable additions to the record. In contrast, Rule 60(b) is concerned with changing a final judgment, etc. In such a case the moving party understandably shoulders a much heavier burden.”
‘United States v. Stuart, 392 F.2d 60, 62 (3rd Cir.1968). Corrections involving an exercise of judicial discretion or judgment modifying or enlarging a judgment or order are beyond the purview of Rule 60(a) and should properly be effected under Rule 69(e) or 60(b). “Thus a motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.” Wright & Miller & Kane, Federal Practice & Procedure § 2854, at 149 (1973). This court has stated:
“The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been.”
‘Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641 (1900).
“ ‘Since a correction pursuant to Rule 60(a) may be made at any time and on the trial court’s initiative, the rule should be cautiously applied to preserve the integrity of final judgments. Otherwise, the finality of a judgment would only be illusory since the possibility would exist of substitution of a new judgment for the original one at a later date. Therefore, it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned. See Ex parte ACK Radio Supply of Georgia, 283 Ala. 630, 219 So.2d 880 (1969); Busby v. Pierson, 272 Ala. 59, 128 So.2d 516 (1961); Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947). Stated differently, the fact of mistake or error must be supported by the record of the proceedings. See Harris v. Harris, 256 Ala. 192, 54 So.2d 291 (1951).’ ”

In Deramus Hearing Aid Center, Inc. v. American Hearing Aid Associates, 950 So.2d 292 (Ala.2006), this Court addressed the issue whether a trial court had the authority to correct a clerical error in its written order entering a summary judgment for the wrong party. In its corrected order, issued over two months after the original order, the trial court stated that it had inadvertently entered a summary judgment in favor of Deramus Hearing and that the record of the summary-judgment hearing would support its original intent to enter a summary judgment for American Hearing. Deramus Hearing appealed, arguing that the amended order contained corrections that were not clerical in nature and, consequently, that Rule 60(a), Ala. R. Civ. P., did not authorize the trial court to make such a substantive change in the order. This Court held that Rule 60(a), Ala. R. Civ. P., was broad enough to authorize the trial court to correct such an inadvertent error because the correction did not involve a reweighing of the evidence or reflect a change of mind regarding the decision. The Court noted that the trial court stated that the record would establish that the original order had improperly entered a summary judgment for Deramus Hearing because the record clearly established the intent of the trial court to enter a summary judgment for American Hearing. This Court, recognizing that the corrected order made the record speak the truth, held that the trial court did have the authority to set aside its original order entering a summary judgment for Deramus Hearing and issue a new order entering a summary judgment for American Hearing.

Like the materials before us in Deramus Hearing, the materials in this ease clearly establish that the trial court, when it issued the June 29, 2006, order, was correcting a scrivener’s error in its April 18, 2006, order, making the record speak the truth. The fact that the April 18, 2006, order awarded custody of a child designated as “Haley” to the mother evidences that that order contained clerical errors. Additionally, the trial court’s amended order indicates that the corrections did not involve a reweighing of the evidence, a change of mind, or the rendering of a “different” judgment. The trial court’s changes here involved corrections to make the record speak the truth. Because the trial court’s corrections did not involve judicial reasoning or the rendering of a “different” judgment, the trial court, pursuant to Rule 60(a), Ala. R. Civ. P., had the authority to correct and was thereby acting within its discretion in correcting the mechanical errors in its April 18, 2006, order by issuing the June 29, 2006, order. As we stated in Deramus Hearing, [a] contrary conclusion would require this Court to call into question the veracity of the trial court by contradicting the trial court’s express disavowal of any such intention. This we decline to do.” 950 So.2d at 295. Therefore, the Court of Civil Appeals erred when it ordered the trial court to vacate its June 29, 2006, order and to reinstate the April 18, 2006, order.

Conclusion

Because the father properly invoked the jurisdiction of this Court, has established a clear legal right to the relief he has requested, and has established that the Court of Civil Appeals has a duty to rescind its writ and that he lacks another legal remedy, we grant this petition and issue a writ ordering the Court of Civil Appeals to quash the writ of mandamus it issued on August 29, 2006.

PETITION GRANTED; WRIT ISSUED.

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

WOODALL, J., dissents.

MURDOCK, J., recuses himself.

      . In Deramus Hearing, this Court stated that a "different” judgment is a judgment that “purports to change the facts or to reweigh the evidence.” 950 So.2d at 295.


author: WOODALL, Justice.

text:
    Ex parte TUSCALOOSA COUNTY SPECIAL TAX BOARD. (In re The Pittsburg & Midway Coal Mining Company v. Fayette County Commission et al.)
    1060226.
    Supreme Court of Alabama.
    Feb. 23, 2007.
    Robert M. Spence, Shannon Clay Staggs, and J. Griffin Waters of Hubbard, Smith, Mcllwain, Brakefield & Browder, P.C., Tuscaloosa, for petitioner.
    John W. Hargrove, Bruce P. Ely, and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham, for respondent The Pittsburg & Midway Coal Mining Company.
    W. Allen Grocholski, Fayette, for respondents Fayette County and Fayette County Commission.
   WOODALL, Justice.

The Tuscaloosa County Special Tax Board (“the Board”) petitions this Court for a writ of mandamus directing the Fay-ette Circuit Court to vacate an order denying its motion to dismiss all claims asserted against it by The Pittsburg & Midway Coal Mining Company (“the Company”) and to grant its motion. We deny the petition.

This action began on April 26, 2006, when the Company filed a pleading in the Fayette Circuit Court against, among others, the Fayette County Commission (“the Commission”) and the Board. The pleading was styled: “Notice of Appeal and Complaint for Declaratory Judgment and Recovery of Taxes Paid and for Injunction Against Assessment of Tax” (hereinafter referred to as “the complaint”). The complaint sought a refund of use taxes paid by the Company to Fayette County on the Company’s coal-mining operations at the North River Mine, which straddles the border of Fayette County and Tuscaloosa County.

The facts as alleged in the complaint tend to show the following. On July 11, 2005, the Board issued a “preliminary assessment” of use taxes due for the period June 1, 1999, through April 30, 2005 (“the audit period”). The assessment included $493,556.16 in taxes the Board alleged had been erroneously paid to Fayette County during the audit period, plus interest and penalties. On August 10, 2005, the Company filed with the Board a “Petition for Review of the Preliminary Assessment.” On August 18, 2005, the Company sent the Commission a “Petition for Refund,” requesting a refund of “the amount of use tax that the Preliminary Assessment alleged] was erroneously paid to Fayette County and which should have been paid to Tuscaloosa County” (“the refund petition”). As authority for the refund, the refund petition cited Ala.Code 1975, §§ 40-2A-7 and 40-23-2.1. On March 28, 2006, the Board issued a “Final Assessment of Tuscaloosa County Use Tax,” totaling $749,197.11 (“the final assessment”). On April 10, 2006, the Commission sent the Company a letter denying the refund.

The Company’s complaint followed that denial. As alleged in the complaint, “Fay-ette County’s position directly conflicts with that of [the Board], which alleges that use tax was erroneously paid to Defendant Fayette County and should instead have been paid to [the Board].” (Emphasis added.) The Company sought a judgment directing Fayette County to refund to it the $493,556.16 allegedly owing to the Board. It also sought an injunction against the assessment, or attempted collection, of such use taxes by the Board.

On May 31, 2006, the Board moved to dismiss the claims against it on the ground that the trial court lacked subject-matter jurisdiction over it. The trial court denied that motion. The Board then filed this mandamus petition, asserting, again, that the trial court lacks subject-matter jurisdiction over the claims against it.

In its petition, the Board relies solely on Local Act No. 56, Ala. Acts 1953, § 10, as amended by Act No. 94-554, Ala. Acts 1994 (“the Local Act”). That section provides, in pertinent part:

“Section 10. Appeals from Assessments. Whenever any taxpayer who has duly appeared and protested a final assessment made by the tax board is dissatisfied with the assessment finally made, he may appeal from said final assessment to the Circuit Court of the county, sitting in equity, by filing notices of appeals with the secretary of the tax board and with the register of said court within thirty (30) days from the date of said final assessment....”

(Emphasis added.) The Local Act, in § 1, defines “county” as “Tuscaloosa County in the state.”

According to the Board, “[t]he crux of [the Company’s] claim against the Board is its dissatisfaction with the ... Final Assessment ] issued against it .... [and] [t]he Local Act sets forth the exclusive remedy available to [the Company] for its dissatisfaction with the assessments — an appeal to the Circuit Court for ‘Tuscaloosa’ County.” Petition, at 7 (emphasis added).

“The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003). However, “[f]or the writ of mandamus to issue ‘ “[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief.” ’ ” Ex parte Vance, 900 So.2d 394, 398-99 (Ala.2004).

The Company contends that this action is not an appeal from the final assessment but an appeal from Fayette County’s denial of the refund petition. The Company relies on procedures set forth in statutes of statewide application, specifically, § 40-23-2.1, to which the parties refer as the “anti-whipsaw” statute, and § 40-2A-7, which is a portion of the Alabama Taxpayers’ Bill of Rights and Uniform Revenue Procedures Act, Ala.Code 1975, §§ 40-2A-1 to -18 (“the TBOR”).

Section 40-23-2.1(b) provides, in pertinent part: “If a ... use tax ... levied by or on behalf of an Alabama county is paid under a requirement of law, the property which is the subject of such tax, when imported for use, storage, or consumption into another Alabama county, is not subject to the use ... tax ... required by the second county .... ” Subsection (c) provides, in pertinent part:

“This section applies to ... all counties in Alabama levying or administering a ... use tax.... It is the intent of this section that ... only one county ... use ... tax ... be collected or paid on the same sale or rental transaction. To that end, if a ... use tax ... owed to one ... county, hereinafter referred to as the ‘proper locality,’ is erroneously paid to a different ... county in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the tax, but not under a requirement of law, the ... county receiving the erroneous payment shall refund the overpaid tax, without interest, to the taxpayer within 60 days of the taxpayer’s compliance with the applicable refund procedures. In order to avoid the accrual of interest and any otherwise applicable penalties on the tax due the proper locality, the taxpayer making the erroneous payment must comply with the applicable refund procedures within 60 days of receiving notice from a county ... or its agent of the erroneous payment. If the taxpayer complies with the refund procedure in a timely manner, the proper locality shall not assess or attempt to assess the tax, or any related interest or otherwise applicable penalty thereon, and no interest or penalty thereon shall accrue, until the date of receipt of the overpayment by the taxpayer or the taxpayer’s agent.”

(Emphasis added.) Although the “anti-whipsaw” statute clearly ensures against double tax liability, it is not self-executing. In other words, it does not provide a procedure for resolving a dispute occasioned by the “receiving” county’s decision, as in this case, to challenge the right of the purported “proper locality” to the alleged “erroneous” payment.

In that connection, § 40-2A-7(c)(l) provides, in part: “Any taxpayer may file a petition for refund with the department for any overpayment of tax or other amount erroneously paid to the department or concerning any refund which the department is required to administer.” Section 40-2A-7(c)(5)b., on which the Company relies, provides, in pertinent part:

“[T]he taxpayer may appeal from the denial of a petition for refund by filing a notice of appeal with the Circuit Court in Montgomery County, Alabama, or the circuit court of the county in which the taxpayer resides or has a principal place of business in Alabama, as appropriate, by filing the notice of appeal within two years from the date the petition is denied. The circuit court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any.”

(Emphasis added.)

According to the Company, the “Board misconstrues this action as an ... ‘appeal’ on the merits [of the final assessment] by asserting that [the Company] is ‘dissatisfied’ that taxes have been assessed by the [Board] in its final assessment.” The Company’s brief, at 18. On the contrary, the Company argues, it “is not ‘dissatisfied’ in that taxes might possibly be owed to Tuscaloosa County. In fact, the position taken by [the Company] in its complaint (that [it] was due a refund ... because Tuscaloosa County was the correct county to receive the contested ... tax) is entirely consistent with the final assessment.” Id. (emphasis added). The Company’s position, therefore, is simply that the Local Act does not apply to this case as it is procedurally postured. We agree.

Assuming, without deciding, that an appeal to the Tuscaloosa Circuit Court, pursuant to § 10 of the Local Act, is the exclusive vehicle for challenging the merits of a final assessment of the Board, this is not such a case. As clearly expressed in § 10, that section deals with “appeal[s] from ... final assessments].” The dispute in this case, however, does not center on the amount of the tax owed by the taxpayer or, indeed, on whether the tax is owed; instead, it centers on who is the proper recipient of the tax proceeds. As the complaint correctly avers, this is essentially a dispute between two counties over the same tax proceeds. Such disputes are not the subject of the Local Act, but are, more properly, the concern of the statutes of statewide application.

In short, the Board has failed to demonstrate a “clear and certain” right to a writ of mandamus directing the Fayette Circuit Court to dismiss the claims against it. Resolution of this action will necessarily involve a judgment determining and declaring the proper recipient of the tax proceeds. Moreover, the request for in-junctive relief essentially tracks the language of the “anti-whipsaw” statute, which prohibits the alleged “proper locality” from “assessing] or attempting] to assess the tax, or any related interest or ... penalty ... until the date of receipt of the overpayment by the taxpayer or the taxpayer’s agent.” For these reasons, the petition is denied.

PETITION DENIED.

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

      . To be sure, the TBOR defines "the department” as the "Alabama Department of Revenue.” § 40-2A-3(7). However, the Board concedes that the TBOR is applicable — and available — as a vehicle "to dispute Fayette County’s refund denial.” Reply brief, at 15. Thus, for purposes of this mandamus proceed-zng, we will assume that the TBOR affords a mechanism through which to challenge Fay-ette County's refusal to refund use taxes alleged to have been erroneously paid. See also the Local Tax Simplification Act of 1998, Act No. 98-192, § 3(b), Ala. Acts 1998 (counties "electing] to administer and collect, or contract for the collection of, any local sales and use taxes ..., shall have the same rights, remedies, power and authority, including the right to adopt and implement the same procedures, as would be available to the Department of Revenue if the tax or taxes were being administered, enforced, and collected by the Department of Revenue”).

      . There is' no contention that the Company has failed timely to “compl[y] with the refund procedure” set forth in the TBOR or in § 40-23-2.1. Nor is any issue presented regarding whether Fayette County is the proper venue for this action. The sole issue relates to the power of the Fayette Circuit Court to adjudicate this action. See Ex parte City of Huntsville Hosp. Bd., 366 So.2d 684, 686 (Ala. 1978) (distinguishing venue from jurisdiction).