text:
    TRUSTMARK NATIONAL BANK, Appellant v. Loyd Dean BARNARD, Appellee.
    No. 2004-CA-01342-COA.
    Court of Appeals of Mississippi.
    June 6, 2006.

      J. Mark Franklin, III, R. Keith Foreman, Ridgeland, Lara E. Gill, for appellant.
    Grady L. “Mac” McCool, III, C. Victor Welsh, III, Jackson, for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Loyd Dean Barnard brought a declaratory judgment action against Trust-mark National Bank. Barnard alleged that he was damaged as a result of Trustmark’s negligence in the administration of two loans. Trustmark filed a counterclaim for payment on the loans and attorney’s fees.

¶ 2. The chancellor found both parties negligent. The chancellor ordered Barnard to pay $4,500 on the May note and to pay the full principal amount on the September note, plus statutory interest. The chancellor ordered Trustmark to clear the notes off Barnard’s credit report, within ninety days of his satisfaction of the judgment. Finally, the chancellor ordered both parties to be responsible for their own attorney fees and court costs.

¶ 3. Trustmark appeals and argues the following issues:

I. The chancellor erred as a matter of law in granting equitable relief contrary to binding statutory authority.
II. The chancellor erred as a matter of law in granting equitable relief on the claim of collateral impairment without proof of impairment by the lender and without proof of damages.

Finding error, we reverse, render and remand.

FACTS

¶ 4. Barnard had a close friendship and a business arrangement with Clarence T. (Bo) Morgan, Jr., who owned a used car dealership named Easy Way Automotive in D’Lo. Barnard bought a lot of trucks from Morgan and Easy Way. Their usual arrangement, which had been done ten or twelve times, was for Barnard to buy a truck from Easy Way, finance it for six months through Trustmark, use it for six months, and trade it back to Easy Way for another truck before the loan came due or at the end of the term. Barnard used the trucks, and he repaid the loan, principal and interest, to Trustmark through the proceeds received when the truck was sold by Easy Way.

¶ 5. Here, we consider Barnard’s purchase of three trucks through two promissory notes with Trustmark. This litigation commenced after Easy Way’s check to Trustmark was returned for insufficient funds.

¶ 6. The chancellor’s judgment made the following findings:

The Court further finds that Dean Barnard executed two notes to Trustmark National Bank, one dated May 18, 2000 in the sum of $59,500 plus interest, said note maturing on November 14, 2000 and further note dated September 12, 2000 in the sum of $21,555, said note maturing on March 13, 2001. At the time of the execution of said notes[,] security agreements in favor of Trust-mark together with title applications [werejprepared by Easy Way on the first two vehicles and by Trustmark on the last vehicle.
The Court further finds that Trustmark National Bank likewise had a relationship with Easy Way and Clarence T. Morgan, Jr. That Loyd Dean Barnard was a lifetime friend of Clarence T. Morgan, Jr. and Loyd Dean Barnard’s wife, Angie, worked for Easy Way and Morgan.
The Court further finds that during the course of business between Trustmark, Easy Way and Barnard that there had been approximately eight vehicles that Barnard purchased from Easy Way and financed through Trustmark. That Trustmark carried the floor plan for Morgan. Morgan, with the exception of one vehicle, purchased these vehicles for Barnard using his floor plan with Trust-mark and later paying off the floor plan with proceeds from the loans that Barnard obtained through Trustmark.
The Court further finds that exception reports were issued to Trustmark National Bank in Magee from the central office in Jackson identifying problems with the titles on Barnard’s vehicle and that as early as May of 2000 said exceptions were received in the Magee office concerning the vehicles purchased by Barnard from Easy Way.
The Court further finds that all parties were negligent in the handling of both of these notes.
The Court further finds that had Trust-mark National Bank used due diligence regarding the note of May 2000 that the scheme of its other customer, Easy Way and Morgan, would have been caught much earlier and the resulting loss, if any, would have been stopped.
The Court further finds that had Barnard been more diligent in the September 2000 transaction and not relied on his friendship with Morgan that the loss concerning that vehicle by the non-receipt of the check from Ward would not have resulted.
The Court further finds that because of the failure of Trustmark to secure titles on the vehicles that were a part of the May 2000 note that was their statutory requirement, as well as their duty to their customer, that any damages that occurred, occurred due to them negligence. However, this Court further recognizes that as shown by the testimony, Barnard had the use of one of the vehicles for approximately six months and that to discharge this debt without some responsibility on the part of Barnard would be against all principles of equity. And therefore, as to this note, the Court finds that the same should be discharged with the exception of $4,500.
The Court further finds that’ the September 2000 note shall be the responsibility of Barnard in the amount of $21,555, less the amounts interpled into this Court and being held by this Court for payment to the rightful owners. And said judgment shall carry interest at the rate of 6 percent until fully satisfied.

The chancellor ordered Trustmark to remove the adverse credit reports if Barnard satisfied the judgment within ninety days. The chancellor also required the parties to pay their own attorney’s fees and court costs.

¶ 7. We must examine the evidence surrounding the two notes.

A. May note

¶ 8. On May 18, 2000, Barnard purchased two trucks from Easy Way. Barnard planned to use the red truck for his personal use and to sell the green truck. Easy Way acted as title agent.

¶ 9. Barnard went to the Magee branch of Trustmark to take out a loan to fund the purchase of the trucks. Trustmark loaned Barnard the purchase price of $59,500, for a six month term. Barnard executed a security agreement, with both trucks serving as collateral for the loan. Barnard told his loan officer Pax Mogenson that he planned to use one truck and sell the other truck. Until Barnard decided which truck he would sell, Barnard wanted to pledge both trucks as collateral. Trustmark deposited the loan proceeds into Easy Way’s account, which was at Trustmark.

¶ 10. Barnard asked Easy Way to sell the green truck on consignment. When the green truck disappeared off Easy Way’s lot in May, Barnard began to ask his friend Morgan what happened to the truck. Morgan indicated that he sold it for exactly what Barnard owed on it and promised Barnard that he would forward the sale proceeds to Trustmark to pay off a portion of the May note. Morgan also indicated that he would “redo” the May note to reflect that it was now only secured by the red truck. In November, Barnard received a notice that the full amount of the note was still due. Barnard then learned that Morgan did not do what he had promised.

¶ 11. Barnard traded the red truck in to Easy Way on consignment, and Easy Way sold it. On December 8, 2000, pursuant to Easy Way’s agreement with Barnard, Easy Way prepared a check payable to Trustmark in the amount of $62,659.21 to satisfy the May note. Barnard picked up the check and took it to Trustmark. Trustmark was aware that Barnard was presenting an Easy Way check in satisfaction of his May note. Trustmark’s officer, Mogenson, also knew that the Easy Way account had recent problems with overdrafts. On December 11, the Easy Way check was returned for insufficient funds. Neither Mogenson nor Barnard learned of this until after Morgan committed suicide on December 18, 2000.

B. September note

¶ 12. On September 12, 2000, Barnard purchased a third truck from Barry and Angela Atkins for $21,555. Trustmark again loaned Barnard the funds for the purchase price of this truck. The security agreement listed the Atkins’ truck as collateral for the loan. Barnard presented the original title to Trustmark. Trust-mark was the title agent; however, it was not until January of 2001 that Trustmark filed the title. By this time, the truck had already been sold to another person.

¶ 13. Morgan knew Barnard wished to sell the Atkins’ truck. In November of 2000, Bernard put Morgan in contact with Charlie Ward, a used car dealer in Petal, who had an interested customer. Barnard told Mogenson about the potential sale. Barnard left the truck with Ward over the weekend.

¶ 14. On the following Monday, Ward told Barnard to consider the truck sold, and Ward would forward Barnard a check. Morgan, however, intercepted the check for the sales proceeds and never told Barnard, even though Barnard would ask him where the money was. It was not until after Morgan’s suicide that Barnard found out that Ward paid the check to the order of Morgan, with the understanding that Morgan would give the money to Barnard.

¶ 15. Barnard filed a replevin action, which is still pending, against Ward to try to recover the Atkins’ truck. He also participated in an interpleader action against Morgan’s surety in order to recover the funds Morgan was supposed to send to Trustmark. As a result of the interpleader action, $12,495.14 was held by the court.

¶ 16. Because the May and September notes were delinquent or in default, Barnard received an adverse credit history. Barnard claimed that this prevented him from securing a mortgage.

STANDARD OF REVIEW

¶ 17. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

ANALYSIS

I. The chancellor erred as a matter of law in granting equitable relief contrary to binding statutory authority.

¶ 18. Trustmark first argues that equity must follow the law. Trustmark asserts that the Uniform Commercial Code (“UCC”) dictates that a maker cannot be discharged from a note. Barnard argues that the UCC is not controlling in this case. Rather, Barnard argues that Trust-mark had a duty under the Mississippi Motor Vehicle and Manufactured Housing Title Law, Mississippi Code Annotated Sections 63-21-1, et seq., and under its own procedures to secure the vehicle titles. Barnard claims that failure to do so was negligent and contributed to the loss of the vehicles and entitled him to damages. The chancellor’s final judgment does not state the statute, case or other authority upon which he relied to decide this case.

¶ 19. Trustmark claims that the chancellor erred in finding that “because of the failure of Trustmark to secure titles on the vehicles that were part of the May 2000 note ... any damages that occurred, occurred due to [Trustmark’s] negligence.” As a result, Trustmark argues that the chancellor granted Barnard a partial discharge of his obligations under the May note. Trustmark also claims that the chancellor found Barnard responsible for his loss under the September note but discharged him of his obligation to pay interest and attorney’s fees. Trustmark asserts that the chancellor ignored binding authority to discharge Barnard from his payment obligations under the note.

¶ 20. Mississippi Code Annotated Section 75-3-605(e) (Rev.2002) provides:

If the obligation of a party to pay an instrument is secured by an interest in collateral and a person entitled to enforce the instrument impairs the value of the interest in collateral, the obligation of an indorser or accommodation party having a right of. recourse against the obligor is discharged to the extent of the impairment. The value of an interest in collateral is impaired to the extent (i) the value of the interest is reduced to an amount less than the amount of the right of recourse of the party asserting discharge, or (ii) the reduction in value of the interest causes an increase in the amount by which the amount of the right of recourse exceeds the value of the interest. The burden of proving impairment is on the party asserting discharge.

Trustmark argues that Mississippi law provides that the maker of a note is not entitled to discharge of his obligations because of impairment of collateral by the lender. Instead, under Section 75-3-605(e), only indorsers and accommodation parties, which Barnard was neither, can obtain a discharge of liability on a note upon a showing of impairment of collateral.

¶ 21. Barnard’s liability on the Trust-mark note was that of a maker. The maker has primary liability, and the obligation to pay is unconditional. Miss.Code Ann. § 75-3-412 (Rev.2002); see West Point Corp. v. New N. Miss. Fed. Sav. & Loan Ass’n, 506 So.2d 241, 244 (Miss.1987). Trustmark could recover against Barnard and was not required to look to the collateral. Id. at 242-43.

¶ 22. According to Trustmark, Barnard’s action is simply his effort to claim impairment of collateral as defense to payment of the May and September notes. Trustmark contends that such defense is not available to Barnard and is available “only to parties who are in a position of surety with respect to the instrument, and the defense is unavailable to the maker of a note.” United States v. Vahlco Corp., 720 F.2d 885, 890 (5th Cir.1983) (quoting United States v. Unum, Inc., 658 F.2d 300, 304-05 (5th Cir.1980) (construing Texas version of UCC)).

¶ 23. Barnard counters by saying that the Uniform Commercial Code is not applicable. Instead, Barnard claims that the Mississippi Motor Vehicle and Manufactured Housing Title Law, Miss.Code Ann. § 63-21-3 governs the resolution of this action. Barnard argues that “Miss.Code Ann. [§ ] 75-9-104(c) excludes liens given by statute, which is exactly the purpose of Miss.Code Ann. § 63-21-1, et seq., from the provisions of the secured transactions chapter of the Uniform Commercial Code.” The problem with this argument is that section 75-9-104(c) provides that the Uniform Commercial Code does not apply to a lien, other than an agricultural lien, given by statute or other rule of law “for services or materials.” Motor vehicles would not be included in that exclusion. Barnard’s principal argument is that the Motor Vehicle Title Law, not the Uniform Commercial Code, is the exclusive means for protecting security interests in automobiles. Memphis Bank & Trust v. Pate, 362 So.2d 1245, 1247-48 (Miss.1978); Miss. Code Ann. § 63-21-55 (Rev.2004).

¶ 24. We disagree with Barnard and agree with Trustmark. Accordingly, we reverse and render, finding that the chancellor applied an erroneous legal standard. Because this is an action on the note, the Uniform Commercial Code controls. If this were an action to determine who had priority as to the collateral, Barnard’s argument may have merit.

¶ 25. In this case, the testimony indicated that Easy Way prepared the title applications as the designated agent on the trucks covered by the May note. Barnard took delivery of the trucks and immediately instructed Morgan to resell one of them. Morgan sold the truck but did not account for the sale proceeds to Barnard. Barnard retained the second truck and used it for several months before trading it in with Morgan and Easy Way. Shortly after purchasing the third truck, through the September note, Barnard turned the truck over to a third party for resale. Barnard did nothing to protect himself or his interest in the proceeds from that sale. Barnard, rather than Trustmark, delivered the truck for resale.

¶ 26. The security agreement required Barnard to use reasonable care to protect and preserve the collateral in his possession. Through his agents, Barnard sold the trucks without remitting the proceeds to Trustmark as required. Barnard was an active participant in the impairment of the collateral. The chancellor found Barnard negligent. His participation bars any equitable relief, and Barnard remains primarily liable for payment on the note. Miss.Code Ann. § 75-3-412; Miss.Code Ann. § 75-3-605(i); see West Point Corp., 506 So.2d at 244-45. Accordingly, we reverse and render the chancellor’s finding that the May note should be discharged. We remand for the chancellor to calculate the proper amount owed and enter a judgment for interest and attorney’s fees due under the notes.

II. The chancellor erred as a matter of law in granting equitable relief on the claim of collateral impairment without proof of impairment by the lender and rnthout proof of damages.

¶ 27. Trustmark argues that (1) there was no evidence that it was negligent, and (2) there was no proof of impaired value. Barnard maintains there was substantial credible evidence to support the judge’s findings.

A. Was there evidence that Trustmark was negligent?

¶ 28. Trustmark challenges one specific fact finding, which it states was the “primary” basis of the chancellor’s ruling that it was negligent on the May note for failing to catch on to Easy Way’s scheme and prevent loss to Barnard. The trial court found, “[t]hat Trustmark carried the floor plan for Morgan. Morgan, with the exception of one vehicle, purchased these vehicles for Barnard using his floor plan with Trustmark and later paying off the floor plan with proceeds from the loans that Barnard obtained through Trustmark.” Three paragraphs later, the chancellor found “[t]hat had Trust-mark National Bank used due diligence regarding the note of May 2000 that the scheme of its other customer, Easy Way and Morgan, would have been caught much earlier and the resulting loss, if any, would have been stopped.”

¶ 29. Trustmark argues that there was no evidence that the two trucks, purchased by the May note, were on its floor plan. Therefore, Trustmark argues it had no duty to use due diligence to detect the scheme of Easy Way. We agree.

¶ 30. Angie Barnard testified that Trustmark was the only bank with whom Easy Way had a floor plan. She explained that a “floor plan” means that Trustmark financed Easy Way’s inventory. Trust-mark’s usual practice with a floor-planned dealership was to check on its inventory every four weeks to make sure the dealership was accurately reporting its sales and paying its inventory loan. With Easy Way, Trustmark only did this every four or six months. However, neither Angie nor any other witness stated that these particular trucks were purchased with Easy Way’s floor plan. Because there is no evidence to support the finding that the trucks were on the floor plan, Trustmark did not have a duty to inspect Easy Way’s inventory for these particular trucks.

B. Was there evidence of damages?

¶ 31. Trustmark also claimed that Barnard offered no evidence as to the value of the collateral that he alleges that Trustmark impaired or any of the other elements of Barnard’s damages. Barnard’s brief does not even address this issue.

¶ 32. Discharge is available only to the extent of the collateral’s impairment. Huey v. Port Gibson Bank, 390 So.2d 1005, 1010 (Miss.1980). The supreme court explained:

If a holder ... impairs the collateral so that it is no longer available to satisfy all or part of the obligation of the principal debtor, its value must be determined as of that time and subtracted from the ... obligation. He remains liable for that part of the debt due which is not adversely affected. If the value equaled or exceeded the debt, the discharge is total.

Id. The value that must be determined is the collateral’s fair market value. Id. at 1009.

¶ 33. In Huey v. Port Gibson Bank, the court held that the bank impaired the value of the collateral when it failed to perfect its security interest in the collateral. Id. at 1008. As a result, the bank lost its priority in the debtor’s bankruptcy and therefore was not able to recover as much of the bankruptcy proceeds. Id. at 1007. On the question of value, the jury was presented with evidence of invoice price, bankruptcy price and fair market value. Id. at 1010. The case was remanded on the issue of damages so that the jury could only consider fair market value in determining the extent of discharge. Id.

¶ 34. Here, no evidence was presented as to the fair market values of the trucks, when they were respectively sold without Trustmark having perfected its liens or secured the titles. The party seeking discharge of the obligation has the burden of proving the extent of impairment. Miss. Code Ann. § 75-3-605(e)-(f) (Rev.2002). Therefore, we find that there was no substantial credible evidence to support the chancellor’s award of partial discharge.

¶ 35. Nevertheless, Barnard asserts that damages are presumed in cases where a bank negligently or intentionally causes damage to a depositor’s credit history. Bernard points to Grenada Bank v. Lester, 126 Miss. 442, 89 So. 2 (1921) for this proposition. However, in Grenada Bank, the court held that such damages may be inferred when a bank wrongfully dishonors a check. Id., 126 Miss, at 442, 89 So. at 3. This is not a case of wrongful dishonor. This is a case where Trustmark is alleged to have negligently impaired the collateral securing a promissory note. Because Barnard did not prove Trustmark impaired the collateral, the full amount of the note remained due. The credit report which reflected this information was therefore accurate.

¶ 36. We reverse and render the partial discharge granted to Barnard.

CONCLUSION

¶ 37. For these reasons, we reverse and render judgment in favor of Trustmark. We remand for the chancellor to determine the amount due under the notes, including all principal, interest, attorney’s fees and costs.

¶ 38. THE JUDGMENT OF THE CHANCERY COURT OF SIMPSON COUNTY IS REVERSED, RENDERED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . In the 2002 revisions to the Mississippi Uniform Commercial Code, the exclusion of section 75-9-104(c) was moved to Miss.Code Ann. § 75-9-109(d)(2).


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte The CHILDREN’S HOSPITAL OF ALABAMA and Martha Pszyk. (In re Harrison Taylor Terry, as personal representative of the estate of Austin Taylor Terry, deceased v. The Children’s Hospital of Alabama et al.).
    1040122.
    Supreme Court of Alabama.
    Aug. 19, 2005.
    Rehearing Denied Dec. 9, 2005.

      Jasper P. Juliano and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for petitioners.
    Ted Taylor, Leah 0. Taylor, and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham; J. Gusty Yearout and M. Stan Herring of Yearout & Traylor, P.C., Birmingham; and William A. Short, Bessemer, for respondent.
   SEE, Justice.

The Children’s Hospital of Alabama and Martha Pszyk petition this Court for a writ of mandamus directing the trial court to transfer a case from the Bessemer Division of the Jefferson Circuit Court to the Birmingham Division. The respondent, Harrison Taylor Terry, as personal representative of the estate of Austin Taylor Terry, deceased, moved to dismiss the petition for the writ of mandamus. We deny the motion to dismiss, grant the petition, and issue the writ.

Facts and Procedural History

On September 6, 2002, Austin Taylor Terry, a 14-month-old child, was admitted to the emergency room of the Children’s Hospital of Alabama (“the Hospital”) in Birmingham. Austin lived with his mother and custodial parent, Amber Michelle Phillips, in Bessemer. The admitting doctor noted that Austin was suffering from “Non-Accidental Trauma.” The doctor assigned Martha Pszyk, a social worker employed by the Hospital, to the case. Pszyk contacted both the Department of Human Resources (“DHR”) and the Bessemer Police Department on the day Austin was admitted to the Hospital. The Hospital states that, upon determining that Austin was medically stable, the treating physician discharged Austin to Phillips, based on instructions received by the Hospital from DHR.

On November 2, 2002, Phillips discovered Austin nonresponsive in his crib. She rushed him to the Hospital and, according to the Hospital, Austin arrived “in grave condition”; he died the next day. Phillips’s boyfriend, Christopher Wesson, was charged with capital murder for Austin’s death. The criminal case against Wesson is pending in the Bessemer Division of the Jefferson Circuit.

On December 5, 2002, Harrison Taylor Terry, Austin’s father, sued the Hospital, DHR, and DHR employee Susan Tulle in the Bessemer Division of the Jefferson Circuit Court (case no. CV-02-1703). The complaint alleged that the defendants: (1) had failed to adequately and timely report that Austin had been abused; (2) had failed to investigate and otherwise to act upon allegations of abuse; (3) had failed to remove Austin from a life-threatening situation; and (4) had allowed Austin to be released to the care and custody-of individuals who were suspected of abuse. On January 16, 2003, the Hospital moved to dismiss Terry’s complaint or, in the alternative, for a change of venue to the Birmingham Division of the Jefferson Circuit Court. The trial court denied that motion, and the Hospital moved the trial court to reconsider it.

On April 29, 2003, Phillips filed in the Bessemer Division of the Jefferson Circuit Court a separate wrongful-death action against the Hospital, Pszyk, Wesson, and DHR employees Susan Tulle, JoAnn Hood, and Evonne Sumerlin (case no. CV-03-565). Her complaint alleged that the Hospital, Pszyk, and the DHR employees failed properly to report and investigate suspicions and allegations of abuse and to remove Austin from a life-threatening situation. On June 3, 2003, the Hospital and Pszyk moved to dismiss Phillips’s complaint or, in the alternative, for a change of venue to the Birmingham Division.

On that same day, June 3, 2003, the Hospital for a second time moved the trial court in case no. CV-02-1703, the case brought by Austin’s father, Terry, to dismiss that case, arguing that, because Phillips was Austin’s custodial parent at the time of his death, the exclusive right to bring a wrongful-death action belongs to Phillips. See § 6-5-390, Ala.Code 1975. Terry responded and also sought a preliminary injunction to prevent Phillips from pursuing her wrongful-death action.

On November 20, 2003, the trial court heard arguments regarding who is the proper plaintiff to bring a wrongful-death action arising out of Austin’s death. The trial court stated, '“I will rule on the standing issue. And I will do it before I do anything about the transfer concerning the medical malpractice and let y’all file whatever y’all want to.”

On May 13, 2004, Phillips filed a motion to amend the complaint in her wrongful-death action to dismiss “without prejudice any claims by the Plaintiff, Amber Michelle Phillips, in her capacity as mother and custodial parent of Austin Taylor Terry,” and to substitute as the plaintiff “Harrison Taylor Terry, as personal representative of the Estate of Austin Taylor Terry, deceased.” On May 24, 2004, the trial court dismissed the case that had been filed by Terry on December 5, 2002 (case no. CV-02-1703), and on May 28, 2004, the Hospital moved for the dismissal of the amended complaint in case no. CV-03-565, in which Terry had been substituted as the plaintiff. The Hospital argued that, under § 6-5-390, Terry, as a noncustodial parent, is not a proper plaintiff. Thus, there were before the trial court two motions to dismiss in case no. CV-03-565: first, there was the June 3, 2003, motion to dismiss or to change venue, and, second, there was the May 28, 2004, motion to dismiss on the ground of standing because, the motion argues, Terry, as a noncustodial parent, is not a proper plaintiff.

On June 21, 2004, the trial court entered a notation on the case-action summary sheet in case no. CV-03-565 stating: “Motion to Dismiss is Denied. Motion to Amend Complaint is Granted.” On July 28, 2004, the Hospital and Pszyk filed a “Motion for Clarification, Alternatively to Reconsider and Supplement Motion to Dismiss, Alternatively Motion to Transfer.” They sought clarification from the trial court as to which motion to dismiss it had ruled on — the one that alternatively sought a change of venue or the one that sought only a dismissal.

On September 13, 2004, the trial court entered an order on the case-action sum-inary sheet, stating, in pertinent part:

“[T]he motion to transfer is denied as the matter the subject of this suit arose in Jefferson County Bessemer Division. The matter is properly pleaded to bring the case in this Court. The individuals involved at [the] Hospital who are named in the complaint are not medical care providers and as such do not come under [the] Alabama Medical Liability Act. This was the ruling on 6/21/04 and the same ruling made in open court before this date.”

On October 12, 2004, the Hospital and Pszyk moved the court to reconsider the motion to change venue. The motion to reconsider was denied on October 20, 2004. On October 22, 2004, the Hospital and Pszyk petitioned this Court for the writ of mandamus.

The Hospital and Pszyk argue in the petition that the petition is timely in that they petitioned this Court within 42 days of the date on which the trial court “clearly stated that the Motion to Transfer Venue was denied, September 13, 2004.” They further argue in their petition that, even if this Court concludes that the trial court had ruled on the motion on an earlier date, they petitioned this Court within a reasonable period under Rule 21, Ala. R.App. P., “due to the great deal of confusion associated with the two cases in question.” They further argue:

“Among the confusing aspects were (1) the fact that there were two pending cases and an issue of which of those two would go forward, (2) the fact that the trial court and the parties agreed that the threshold standing issue should be decided prior to any other issues, (3) the fact that the trial court was not specific or clear in its rulings, (4) the fact that all orders were only written as notations on the Case Action Summary Sheet, and (5) the fact that those entries were not placed in chronological order. The [Hospital and Pszyk] took every reasonable step to alleviate this confusion and clarify the trial court’s rulings. Each of those steps was timely and appropriately made to ensure what matters were ruled upon, and therefore, ripe for appellate review. Finally, after numerous steps, the court made its decision clear on September 13, 2004. Upon such ruling, the [Hospital and Pszyk] filed this Petition.”

On November 4, 2004, Terry moved to dismiss the Hospital and Pszyk’s petition for the writ of mandamus, arguing that it was untimely. Terry argues that a motion to reconsider an interlocutory order does not toll the-time for filing a petition for the writ of mandamus and that if a mandamus petition is filed outside the presumptively reasonable time, the petitioner must include in the petition an explanation of the circumstances constituting good cause for the delay in filing. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala.2003). Terry further argues that the Hospital and Pszyk’s statement in their petition of good cause is inadequate. In support of that argument Terry cites Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 737 (Ala.2004)(stating that the petitioner had failed to include a statement of good cause in its mandamus petition and that the statement included in the response to the motion to dismiss the petition was also inadequate because the petitioner did not address “the impact on the timely administration of justice in the trial court”). On November 12, 2004, the Hospital and Pszyk responded to Terry’s motion to dismiss, reiterating their arguments that because the trial court’s June 21, 2004, order was unclear as to which motion to dismiss it was ruling on, the mandamus petition was timely and, even if this Court determines that it was not filed within a presumptively reasonable time, there is good cause to allow the petition.

Standard of Review

A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows “ ‘ “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ ” Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).

Analysis

We must first decide the threshold issue whether the Hospital and Pszyk’s mandamus petition is timely. A motion for reconsideration of an interlocutory order does not toll the period for filing a petition for a writ of mandamus. Ex parte Troutman Sanders, LLP, supra. Under Rule 21(a), Ala. R.App. P., “[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal.” Moreover, “[i]f a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.” Rule 21(a), Ala. R.App. P.

The Hospital and Pszyk argue that the trial court’s June 21, 2004, order denying the motion to dismiss was unclear because, at the time the order was entered, two separate motions to dismiss were pending before the trial court and only one of those motions to dismiss sought, in the alternative, a change of venue. The Hospital and Pszyk further say that it was not until September 13, 2004, that the trial court entered its order expressly denying the motion to change venue and stating that it had intended to do so in its earlier order. Therefore, the Hospital and Pszyk argue, its petition for the writ of mandamus filed in this Court on October 22, 2004, was timely.

Terry argues that the Hospital and Pszyk should have petitioned this Court for the writ of mandamus after the trial court entered its June 21, 2004, order instead of filing a motion for clarification and waiting for the trial court to rule on that motion. In addition, Terry argues, under Pelham Tank Lines the Hospital and Pszyk’s statement of good cause is insufficient.

Unlike the petitioners in Troutman Sanders and Pelham Tank Lines, the Hospital and Pszyk did include a statement of good cause in their petition for the writ of mandamus. The Hospital and Pszyk stated that they were confused as to the scope of the trial court’s June 21, 2004, order denying the motion to dismiss, and they stated the reasons for their confusion. Indeed, the trial court did not expressly deny the motion to change venue until September 13, 2004. The Hospital and Pszyk petitioned for the writ of mandamus within 42 days of the September 13, 2004, order; we do not see how the filing of the petition for the writ of mandamus within 42 days of the September 13, 2004, order as opposed to the June 21, 2004, order in order to allow the trial court to clarify what was intended by the June 21, 2004, order had any negative “impact on the timely administration of justice in the trial court” in this case. See Pelham Tank Lines, 898 So.2d at 737 (quoting the Committee Comments to Rule 21, Ala. R.App. P.). We conclude that the Hospital and Pszyk’s mandamus petition is timely, and we therefore deny Terry’s motion to dismiss the petition.

As grounds for the issuance of the writ of mandamus, the Hospital and Pszyk argue (1) that § 6-5-546, Ala.Code 1975, a provision of the Alabama Medical Liability Act, § 6-5-540 et seq., Ala.Code 1975 (“the AMLA”), requires the trial court to transfer the case because the underlying acts or omissions occurred at the Hospital, which is located in Birmingham, and (2) that, even if the AMLA is not applicable to this case, venue in the Bessemer Division is limited to acts or omissions that occurred within the limits of the area of Jefferson County known as the Bessemer Cutoff, and the acts or omissions at issue in this case did not. See Ex parte Walter Indus., Inc., 879 So.2d 547 (Ala.2008). Terry further argues that Pszyk and the DHR workers named as defendants are not health-care providers under the AMLA and that the actions complained of were not related to medical services provided by the Hospital, Pszyk, or the DHR workers. He also argues that, under general venue law, venue is proper in the Bessemer Division because, he says, the injuries that resulted in Austin’s death occurred in the Bessemer Division and because two of the DHR workers, Sumerlin and Hood, are social workers employed by DHR in Bessemer.

The Hospital and Pszyk state that the claims alleged in this case stem from the allegedly negligent acts or omissions of a health-care provider; therefore, the Hospital and Pszyk argue, the injuries alleged in this case are violations of the AMLA and subject to § 6-5-546, Ala.Code 1975, which states, in pertinent part:

“In any action for injury or damages or wrongful death whether in contract or in tort against a health care provider based on a breach of the standard of care, the action must be brought in the county wherein the act or omission constituting the alleged breach of the standard of care by the defendant actually occurred.”

This Court has noted that the language of § 6-5-546 is mandatory; the trial court has no discretion as to venue. See Ex parte Fontaine Trailer Co., 854 So.2d 71 (Ala.2003); Ex parte Boshell, 805 So.2d 675 (Ala.2001).

The Hospital and Pszyk argue that, because the acts or omissions constituting their alleged breach of the standard of care occurred in the Birmingham Division of the Jefferson Circuit Court, § 6-5-546 requires that the claims be brought in the Birmingham Division. In so arguing, the Hospital and Pszyk presume that the Bessemer Division and the Birmingham Division of the Jefferson Circuit Court are to be treated as separate counties for purposes of determining the propriety of venue under § 6-5-546. However, § 6-5-546 requires only that “the action must be brought in the county wherein the act or omission ... actually occurred.” (Emphasis added.)

It is not disputed that venue in this case is proper in Jefferson County. The issue before this Court is whether the claims are properly brought in the Bessemer Division or in the Birmingham Division of the Jefferson Circuit Court. The Hospital and Pszyk do not demonstrate, they only presume, that the requirement of § 6-5-546 that an action under the AMLA be brought “in the county wherein the act or omission ... actually occurred” likewise requires that the action be brought in the judicial division in which the act or omission actually occurred. Because the Hospital and Pszyk have not argued that § 6-5-546 requires that the Bessemer Division be treated as a separate county, they have not demonstrated a clear legal right to relief insofar as they argue that § 6-5-546 requires a transfer of the case to the Birmingham Division. Thus, we consider the Hospital and Pszyk’s alternative argument that the general venue laws applicable to the Bessemer Division require a transfer of the case to the Birmingham Division.

We agree with the Hospital and Pszyk that venue is proper in the Bessemer Division only as to those claims that arise within the territorial boundaries of the Bessemer Division. See Ex parte Walter Indus., 879 So.2d 547; Ex parte Central of Georgia Ry., 243 Ala. 508, 10 So.2d 746 (1942). The burden on the Hospital and Pszyk is to demonstrate that the claims against them did not arise in the Bessemer Division.

In Ex parte Fields, 432 So.2d 1290 (Ala. 1983), this Court discussed in the context of the act creating the Bessemer Division of the Jefferson Circuit Court the question of where a cause of action “arises.” The Jefferson County Planning and Zoning Commission had rezoned a parcel of property that lay within the Bessemer Division. Certain residents of the Bessemer Division challenged the rezoning ordinance in the Bessemer Division of the Jefferson Circuit Court. The defendant moved for a transfer of the case to the Birmingham Division, arguing that the cause of action did not “arise” in the Bessemer Division. In determining where the cause of action arose, this Court stated:

“In Seaboard Surety Co. [v. William R. Phillips & Co., 279 Ala. 510, 187 So.2d 264 (1966) ], this court applied the general principles regarding the place where a cause of action arises as expressed in 92 C.J.S. Venue § 80, in determining the jurisdiction of the Bessemer Division. This court said:
“ ‘At 92 C.J.S. Venue § 80, p. 776, speaking of statutes fixing venue as the county “where the cause of action arises” it is noted:
“ ‘ “A cause of action, within the meaning of statutes fixing the venue as the county where the cause of action arises has been said to consist of a duty on the part of one toward another and the violation or breach of that duty, or of plaintiffs primary right and the act or omission of defendant.... It arises when that is not done which should have been done, or that is done which should not have been done.... [T]he cause of action accrues in the county in which defendant’s wrongful act was done.”
“ ‘Relating these general principles to the case at hand, it seems reasonable to us ... that ... the cause of action “arose” within the meaning of the Bessemer Division Act within the Bessemer Division.’
279 Ala. at 513, 187 So.2d at 267. These general principles control in the ease before us. Applying these principles, we opine that the alleged wrong for which the petitioners seek redress occurred in the Birmingham Division, and, thus, the cause of action arose there.”

432 So.2d at 1292-93. See also Winn-Dixie Montgomery, Inc. v. Bryant, 421 So.2d 1254, 1256 (Ala.1982)(noting, in a case involving the act creating the Bessemer Division, that “a case arises wherever the alleged wrong occurs”). But cf. Ex parte Central of Georgia Ry., 243 Ala. at 511, 10 So.2d at 748 (holding, without citing authority, that a wrongful-death action arose at the time and place of the fatal injury causing the death).

Terry complains of events that occurred while Austin was a patient at the Hospital. Specifically, Terry claims that the Hospital and Pszyk failed to exercise reasonable care in investigating allegations of abuse and in protecting Austin from abuse, that the Hospital and Pszyk should have identified the signs of abuse and reported the abuse when Austin was admitted to and treated at the hospital, that the Hospital and Pszyk should not have allowed Austin to be discharged from the hospital, and that their discharging him from the hospital placed Austin in a life-threatening situation.

Terry contends that, because the injures alleged to have been caused by Wesson in Bessemer resulted in Austin’s eventual death at the Hospital in Birmingham, venue is proper in the Bessemer Division. However, under the principle of Ex parte Fields, we must consider where the alleged wrongful acts or omissions by the Hospital and by Pszyk occurred. Terry complains of events that occurred while Austin was a patient at the Hospital, which is located in the City of Birmingham. Thus, the cause of action did not “arise” within the Bessemer Division and venue therefore is proper in the Birmingham Division, and not in the Bessemer Division.

Conclusion

We conclude that the Hospital and Pszyk have established a clear legal right to have Terry’s claims against them transferred to the Birmingham Division of the Jefferson Circuit Court. We therefore grant the petition and issue the writ of mandamus, directing the trial court to vacate its September 13, 2004, order denying the Hospital’s motion to change venue, and we direct the trial court to transfer the claims against the Hospital and Pszyk to the' Birmingham Division of the Jfefferson Circuit Court.

MOTION TO DISMISS DENIED; PETITION GRANTED; WRIT ISSUED.'

HARWOOD, STUART, SMITH, and BOLIN,-JJ., concur.

NABERS, C.J., recuses himself.

      . The record does not reflect that the trial court ruled on the Hospital’s motion to reconsider.

      . The amended complaint in case no. CV-03-565 that now names Terry, as Austin's personal representative, as the plaintiff alleges, among other claims: (1) that DHR employees negligently and/or wantonly failed to adequately and timely report, investigate, and otherwise act upon the allegations of abuse by failing to remove Austin from a life-threatening situation; (2) that the Hospital, Pszyk, and other fictitiously named defendants negligently and/or wantonly failed to adequately and timely report, investigate, and otherwise act upon the allegations of abuse by failing to remove Austin from a life-threatening situation; and (3) that Wesson had negligently assaulted Austin.

      . To the extent that it can be inferred that the trial court is stating that it had ruled on the motion to change venue at the hearing on November 20, 2003, a reading of the transcript from the hearing does not support such a conclusion. In fact, the trial court expressly stated, “I will rule on the standing issue. And I will do it before I do anything about the transfer concerning the medical malpractice and let y'all file whatever y'all want to.”

      . The remaining defendants, the DHR employees, Tulle, Hood, and Sumerlin, and Phillips's boyfriend, Wesson, did not petition this Court for the writ of mandamus; therefore, we are not asked to address the propriety as to them of venue of this case in the Bessemer Division of the Jefferson Circuit Court.

      . In Pelham Tank Lines, the petitioner included a statement of good cause in its brief in opposition to the motion to dismiss the mandamus petition as untimely.

      . We recently decided Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687 (Ala.2005). In that case we held that the principle of ancillary venue does not apply to separate divisions of a county because Rule 82(c), Ala. R. Civ. P., refers only to the proper “county”; it does not refer to judicial districts within a county. (" 'Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined ... as ancillary thereto....’” 924 So.2d at 692 (quoting Rule 82(c)) (emphasis added).)

        Section 6-3-7(d), Ala.Code 1975, provides that "in any counly having two courthouses, the divisions shall be treated as two separate judicial districts for purposes of venue and for purposes of any change or transfer of venue. ..." We have rejected the argument that § 6-3-7(d) requires general venue laws to apply to the Bessemer Division as though it were a separate county. Ex parte Haynes Downard, 924 So.2d at 696; Ex parte Hanna Steel, 905 So.2d 805, 809 (Ala.2004) ("to reach such a result, we would have to overrule our recent decision in Walter Industries, decided after the enactment of § 6-3-7(d) and citing with approval the construction of the Bessemer Act in Central of Georgia Railway "). Instead, we adhere to the rule stated in Ex parte Walter Indus., Inc., 879 So.2d at 549-51, and Ex parte Central of Georgia Ry., 243 Ala. 508, 10 So.2d 746 (1942). Thus, in determining whether venue is proper in the Bessemer Division, the court first asks whether venue is proper in Jefferson County under the applicable venue laws. Ex parte Alabama Mobile Homes, 468 So.2d 156 (Ala.1985). If it is, the court then determines in which division venue is proper: "the Bessemer Division can hear only cases that have 'arisen' within the territorial boundaries of that division." Walter Indus., 879 So.2d at 551. If the cause of action did not arise within the territorial boundaries of the Bessemer Cutoff, then venue is in the Birmingham Division.

      . We note that Section 2 of Act No. 99-249, Ala. Acts 1999, which enacted § 6-3-7(d), provides:
      "All laws and parts of laws in this chapter that are in conflict with any of the provisions of this act shall be and are, to the extent of the conflict, repealed, and Section 6-3-5, Code of Alabama 1975, is specifically repealed; provided however, that nothing herein shall change, amend or otherwise affect more specific provisions in other chapters which provide for where actions may be filed, and without limitation, this act shall not repeal, alter or otherwise affect the provisions of Section 6-5-546 or Section 6-3-11, Code of Alabama 1975.”
      (Emphasis added.)


text:
    Ex parte Kenneth Harold WILLIFORD. (In re Kenneth Harold Williford v. State of Alabama).
    1031319.
    Supreme Court of Alabama.
    Sept. 16, 2005.
    Rehearing Denied Dec. 9, 2005.

      W. David Dawson, Opelika, for petitioner.
    Troy King, atty. gen., and Stephanie N. Morman and Marc A. Starrett, asst, attys. gen., for respondent.
   SEE, Justice.

Kenneth Williford was convicted of first-degree rape and first-degree sodomy. The trial court sentenced him to 25 years’ imprisonment for the rape conviction and 15 years’ imprisonment for the sodomy conviction; the sentences were to run concurrently. The Court of Criminal Appeals, in an unpublished memorandum, affirmed Williford’s convictions and sentences. Williford v. State (No. CR-02-1523, April 23, 2004), 919 So.2d 1235 (Ala.Crim.App.2004) (table). We granted Williford’s petition for certiorari review to consider whether the decision of the Court of Criminal Appeals conflicts with Ex parte J.A.P., 853 So.2d 280 (Ala.2002); Rider v. State, 544 So.2d 994 (Ala.Crim.App.1989); and Parrish v. State, 494 So.2d 705 (Ala.Crim.App.1985). We affirm the judgment of the Court of Criminal Appeals.

Facts and Procedural History

Kenneth Williford owned and operated a trailer park in Lee County. S.M., a 14-year-old girl, lived with her family in Willi-ford’s trailer park; her parents rented a mobile home from Williford. The evidence at trial indicated that when S.M. returned home from school on November 22, 1999, Williford, who was then in his early forties, approached S.M. and asked if her parents were home. S.M. told Williford that her parents were not home. Williford then told S.M. that her family was going to be evicted from the trailer park because earlier that day S.M. had had a fight with another girl who lived at the park.

S.M. protested, claiming that other residents of the trailer park had participated in fights and similar bad behavior and had not been evicted. Williford told S.M. that she “would have to do something about that” and then told her to wait for him at an abandoned mobile home down the street and to make sure that no one followed her to the mobile home. S.M. testified that she went to the abandoned mobile home and waited there because she “didn’t know the outcome or what would happen if [she] didn’t” meet Williford at the abandoned mobile home. S.M. waited for Willi-ford for 15 or 20 minutes before he arrived.

After Williford arrived at the mobile home, he ensured that S.M. was alone and then instructed S.M. to go into a bedroom. Once inside the bedroom, Williford called S.M. a “black bitch” and told her to get on her knees and perform oral sex on him. S.M. got on her knees. Williford put his hand on the back of S.M.’s head, and, S.M. testified on redirect examination, after she resisted, he told her “not to act like she hadn’t done this before.” Williford then attempted to have anal sex with S.M.; S.M. began to cry. Williford then told S.M. to lie on her back, and he had sexual intercourse with her. Afterwards, he told S.M. that he would kill her if she ever told anyone about the incident. Williford then left the abandoned mobile home.

As soon as she heard Williford’s truck leave, S.M. went to her aunt’s mobile home, which was also located in Williford’s trailer park. S.M. was crying when she arrived at her aunt’s. S.M. was taken to a hospital, where she was examined by Dr. Charles Hagen, the emergency-room physician. Dr. Hagen found no bruising on S.M.’s body, though she did have a fresh nonbleeding hymenal tear, and there was blood in her panties in an area that was consistent with the tear. The emergency-room staff took DNA samples from S.M. The evidence showed that Williford was not excluded as the source of all the DNA samples, although he was excluded as the source of several of them. S.M. testified at Williford’s trial that she had had sexual relations with other people before her encounter with Williford. Although S.M. was unable to recall the exact date of those prior sexual relations, she testified that she had not had sex with anyone for about two months before the incident with Willi-ford.

Williford was arrested and charged with first-degree rape, a violation of § 13A-6-61, Ala.Code 1975, and first-degree sodomy, a violation of § 13A-6-63, Ala.Code 1975. At trial, after the State rested Willi-ford moved for a judgment of acquittal. The trial court denied Williford’s motion. Williford did not renew his motion at the close of all of the evidence.

A jury convicted Williford of first-degree rape and first-degree sodomy, and the trial court sentenced him to 25 years and 15 years, respectively, in prison. Williford appealed to the Court of Criminal Appeals, arguing, among other things, that the State failed to prove the element of forcible compulsion necessary to sustain either conviction. The Court of Criminal Appeals affirmed Williford’s convictions and sentences in an unpublished memorandum. Williford petitioned this Court for a writ of certiorari. We granted certiorari review to consider whether the Court of Criminal Appeals’ decision, which affirmed the trial court’s judgment convicting Williford of first-degree rape and first-degree sodomy, conflicts with prior decisions regarding the sufficiency of the evidence to support a jury’s finding of the element of forcible compulsion.

Standard of Review

‘“Appellate courts are limited in reviewing a trial court’s denial of a motion for judgment of acquittal grounded on insufficiency.’ McFarland v. State, 581 So.2d 1249, 1253 (Ala.Crim.App.1991). ‘The standard of review in determining sufficiency of evidence is whether evidence existed at the time [the defendant’s] motion for acquittal was made, from which the jury could by fair inference find the [defendant] guilty.’ Linzy v. State, 455 So.2d 260, 26[2] (Ala.Crim.App.1984) (citing Stewart v. State, 350 So.2d 764 (Ala.Crim.App.1977), and Hayes v. State, 395 So.2d 127 (Ala.Crim.App.), writ denied, 395 So.2d 150 (Ala.1981)). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Linzy, supra.

Ex parte Burton, 783 So.2d 887, 890-91 (Ala.2000).

“The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Analysis

Williford argues that his convictions are not supported by sufficient evidence because, he says, the State presented no evidence of “forcible compulsion,” a necessary element of both first-degree rape and first-degree sodomy. Forcible compulsion is defined by statute as “[plhysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” § 13A-6-60(8), Ala. Code 1975. Thus, to prove forcible compulsion on Williford’s part the State had to show either (1) that Williford used physical force that overcame S.M.’s earnest resistance or (2) that he threatened S.M., either expressly or impliedly, and that that threat placed S.M. in fear of immediate death or serious physical injury to herself or another person. See Ex parte J.AP., supra; Rider, supra.

The force necessary to sustain a conviction for first-degree rape or first-degree sodomy is relative. Pittman v. State, 460 So.2d 232, 235 (Ala.Crim.App.1984) (“The force required to consummate the crime [of rape] against a mature female is not the standard for application in a case in which the alleged victim is a child thirteen years of age.”), writ quashed, 466 So.2d 951 (Ala.1985). “[T]he ‘totality of the circumstances’ should be considered in deciding whether there was sufficient evidence of forcible compulsion.... ” Parrish v. State, 494 So.2d at 713.

In concluding that the evidence was sufficient to support a finding of forcible compulsion, the Court of Criminal Appeals relied on Parrish v. State, supra. In Parrish the evidence showed that Parrish touched a 12-year-old girl’s “private parts” while the child pretended to be asleep on a bed in Parrish’s house. 494 So.2d at 706-09. Parrish was the boyfriend of the child’s mother. The child testified that Parrish held her down by placing his foot over her leg and that Parrish left the bedroom when she pretended to wake up. 494 So.2d at 707. There was blood in the child’s panties, and the Court of Criminal Appeals concluded there was no evidence of any reason for the blood “other than the attack itself.” 494 So.2d at 711.

In affirming Parrish’s conviction, the Court of Criminal Appeals held that the fact that a 12-year-old girl makes no effort to resist a sexual confrontation beyond pretending to be asleep does not negate the inference that sufficient legal force was used- to satisfy the element of forcible compulsion. 494 So.2d at 709. The Court of Criminal Appeals also held that when the issue of sufficiency of the evidence is raised in a sexual-abuse case, questions involving resistance and consent must be viewed “ ‘in the frame of the age of the assaulted girl.’ ” 494 So.2d at 710 (quoting Smith v. State, 36 Ala.App. 209, 213, 55 So.2d 202, 206 (1951)). There was no evidence suggesting “that the victim requested, encouraged, consented to or otherwise gave permission or sanction to, [Parrish’s] actions.” 494 So.2d at 713. The record did not contain any indication that Parrish could have entertained, at any time, “ ‘any idea or expectation of permissive’ sexual contact.” 494 So.2d at 713. The Court of Criminal Appeals also concluded that there was no reason for there to be blood in the child’s panties, other than Parrish’s attack. Considering the totality of the circumstances, the Court of Criminal Appeals concluded that the ree-ord showed sufficient evidence of forcible compulsion to support a conviction of first-degree sexual abuse. 494 So.2d at 713. Therefore, forcible compulsion does not exist in a vacuum; rather, it is viewed in light of the surrounding circumstances, such as the respective ages of the victim and the perpetrator, the relationship between them, the circumstances under which the act took place, and any injuries the victim suffered.

Williford argues that the decision of the Court of Criminal Appeals in his case conflicts with its decision in Parrish. Willi-ford argues that the decision in Parrish relied solely on the Court of Criminal Appeals’ determination that there was no explanation offered for the blood in the child’s panties other than the attack by Parrish. Williford argues that in his case there was an alternative explanation for the blood found in S.M.’s panties, namely that S.M. had been sexually active before the incident with Williford and that the DNA analysis revealed that Williford’s DNA was not the only DNA found on the samples taken from S.M. after the incident.

Although the Court of Criminal Appeals in Parrish did note that there was no evidence indicating a reason for the presence of blood in the child victim’s panties other than Parrish’s attack, the presence of the blood was only one of seven “significant facts” recited by the Court of Criminal Appeals as the basis for the jury’s verdict. The Court of Criminal Appeals in Parrish based its decision on the totality of the circumstances, not, as Williford contends, on a single factor. The Court of Criminal Appeals considered in Williford’s case, as it did in Parrish, the totality of the circumstances and concluded that there was sufficient evidence of forcible compulsion.

In this case, as in Parrish, the victim was a young girl with a vaginal injury that caused bleeding. In Parrish there was no evidence indicating a reason for the presence of blood in the victim’s panties other than the assault. In this case, the evidence is less clear: the record indicates that Dr. Hagen, the physician who examined S.M., testified that S.M. had a non-bleeding hymenal tear that could have resulted from having sex, using tampons, or “what not.” He also testified that the tear was “fresh.” The record indicates that there may have been other individuals with whom S.M. was sexually involved around the time Williford assaulted her. The issue of who or what caused S.M.’s injury was properly presented to the jury.

S.M., like the victim in Parrish, did not call out for help or offer vigorous physical resistance to the sexual advances. What constitutes “earnest resistance” depends upon the circumstances. See Pittman v. State, 460 So.2d at 235. Williford was in his early forties and imposed himself on a young girl of 14. Like Parrish, who also imposed himself on a young girl, Williford had no basis for believing that the sexual contact was permissive.

S.M. testified on direct examination that Williford acted with force and that S.M. resisted his sexual advances:

“Q. [S.M.], tell me what Mr. Williford said.
“A. He told me to suck his dick and he called me a black bitch.
“Q. What happened next?
“A. And he pulled down his pants and put his hand behind my head.
“Q. What position were you in?
“A. On my knees.
“Q. What happened then? You say [Williford] put his hand on your head? Why was that?
“A. To make me have oral sex with him.
“Q. Did you want to do that?
“A. No, ma’am.
“Q. Did [Williford] say anything when you resisted him?
“A. ‘Don’t act like you never done it before.’ ”

The subsequent testimony revealed that, after S.M. performed oral sex on Williford, Williford attempted unsuccessfully to have anal sex with her. Williford then had sexual intercourse with S.M. On redirect examination; when S.M. was questioned about what she had told a counselor at the Child Advocacy Center, S.M. testified that Williford had forced her head to his penis.

The incident between Williford and S.M. occurred in the bedroom of an abandoned mobile home in a trailer park owned and operated by Williford with no one else present. Williford put his hand on the back of S.M.’s head to force her to perform oral sex on him; S.M. resisted. He told her “not to act like she hadn’t done this before,” a statement that confirms that he recognized that she was resisting. Willi-ford then attempted to have anal sex with S.M., and S.M. began to cry. He then had sexual intercourse with her. The Court of Criminal Appeals concluded that the jury could have found forcible compulsion— “[pjhysical force that overcomes earnest resistance” — from the totality of the circumstances. We agree. Accordingly, we cannot conclude that the Court of Criminal Appeals erred in holding, based on the totality of the circumstances, that there was sufficient evidence of forcible compulsion to support Williford’s convictions for first-degree rape and first-degree sodomy.

Williford also argues that the Court of Criminal Appeals’ decision in his case is inconsistent with its decision in Rider, supra. A jury convicted Rider of first-degree sexual abuse and first-degree sodomy based on sexual acts between him and his stepdaughter. The evidence showed that Rider forced the child’s hand onto his penis and that Rider touched her breasts and her vagina. The child testified that Rider performed oral sex on her and that he asked her to perform oral sex on him. She testified that the touching began sometime after her ninth birthday and continued until around her twelfth birthday. When the prosecutor asked the child if she had “voluntarily” performed oral sex on Rider, she did not answer. She testified that she tried to “mind” Rider because she “liked the way he treated [her], like [she] was his only child.” 544 So.2d at 995. She further stated that Rider had never done anything to make her afraid of him and that she was not afraid of him. 544 So.2d at 995. The Court of Criminal Appeals reversed Rider’s conviction on the basis that the evidence of forcible compulsion was insufficient. Considering the totality of the circumstances, the Court of Criminal Appeals held that the evidence was insufficient to support a finding of either physical force that overcame an earnest resistance or a threat, express or implied. 544 So.2d at 996. The Court of Criminal Appeals stated that there was no evidence indicating that the child had made any protest or complaint to Rider sufficient to indicate earnest resistance. 544 So.2d at 995. Moreover, the State had failed to offer any evidence indicating that the child did not act voluntarily. See Rowe v. State, 597 So.2d 721, 726 (Ala.1991) (“[In Rider, ] there was nothing in the record to show that the sex acts were anything other than voluntary.”). The Court of Criminal Appeals stated that “it is clear that there is absolutely no evidence to support [forcible compulsion by threat].” Rider, 544 So.2d at 996.

Rider, however, is unlike this case because Rider involved “neither a threat of any kind nor the use of any physical force.” Powe, 597 So.2d at 726. Here, in an effort to force her to perform oral sex on him, Williford put his hand on the back of 14-year-old S.M.’s head, and S.M. resisted. He told her “not to act like she hadn’t done this before,” confirming that he recognized that she was resisting, and he “forced” her head to his penis. Willi-ford then attempted to have anal intercourse with S.M., and S.M. began to cry. Williford then had sexual intercourse with her, apparently tearing her hymenal ring. We find no inconsistency between the Court of Criminal Appeals’ decision in this case and its decision in Rider.

Williford also claims that the Court of Criminal Appeals’ decision in Ex parte J.A.P., 858 So.2d 280 (Ala.2002), supports his argument that the evidence was insufficient to support the jury’s finding of the element of forcible compulsion. Unlike Parrish and Rider, which address physical force and earnest resistance, Ex parte J.A.P. addresses implied threat, the second type of forcible compulsion.

In Ex parte J.A.P., J.A.P., a 14-year-old boy, was convicted of attempted first-degree rape of his 9-year-old half sister, L.P. 853 So.2d at 281. The Court of Criminal Appeals affirmed J.A.P.’s conviction, concluding that there was sufficient evidence of forcible compulsion. In affirming J.A.P.’s conviction, the Court of Criminal Appeals relied only on B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000), in which the Court of Criminal Appeals held that a jury could reasonably infer that a juvenile held a position of authority and domination over another younger juvenile.

On certiorari review, this Court held that the Court of Criminal Appeals’ decision in B.E. improperly extended the forcible-compulsion analysis of Powe to a 14-year-old boy who was accused of sexually abusing a 9-year-old girl. 853 So.2d at 284. The Court in Powe had held that the jury could reasonably infer that Powe, as N.S.’s father, held a position of authority and domination with regard to N.S. sufficient to allow the inference of an implied threat to her if she refused to comply with his demands. 597 So.2d at 728. The Court in Powe limited its holding to adult-child relationships in which the adult has dominion and control over the child. 853 So.2d at 284. However, J.A.P. was not an adult; therefore, the jury was not permitted to infer that J.A.P. impliedly threatened L.P. Because the Court of Criminal Appeals relied solely upon B.E. in affirming J.A.P.’s conviction, this Court reversed the judgment of the Court of Criminal Appeals.

Williford states that “[i]n Ex parte J.A.P., 853 So.2d 280, 284 (Ala.2002), the Alabama Supreme Court held: the holding of Powe v. State, 597 So.2d 721 concerning parental control ‘was extremely narrow.’ ” Ex parte J.A.P., however, is inapplicable to this case. Ex parte J.A.P. involved the implied-threat-of-death-or-serious-bodily-injury prong of forcible compulsion. In this case, there was sufficient evidence indicating that Williford used actual physical force to overcome earnest resistance — the other prong of forcible compulsion.

Conclusion

In this case, the evidence, when viewed in the light most favorable to the State, was sufficient to support the jury’s finding that Williford used forcible compulsion so as to support his convictions for first-degree rape and first-degree sodomy. Thus, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

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

      . The evidence indicates that Williford "was not successful'' in his attempt to have anal sex with S.M.

      . The record does not indicate whether S.M. continued to cry after Williford initiated sexual intercourse.

      . Dr. Hagen testified that S.M.’s nonbleeding hymenal tear could have resulted from having sex, using tampons, or "what not.” He also testified that the tear was "fresh.”

      . S.M. was unable to recall the exact number and names of the people with whom she had had sexual relations before her encounter with Williford.

      . Section 13A-6-61, Ala.Code 1975, defines the offense of first-degree rape; it reads, in relevant part:
      “(a) A person commits the crime of rape in the first degree if:
      “(1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion....”

      . Section 13A-6-63, Ala.Code 1975, defines the offense of first-degree sodomy; it reads, in relevant part:
      "(a) A person commits the crime of sodomy in the first degree if:
      "(1) He engages in deviate sexual intercourse with another person by forcible compulsion....”

      . The definition of the term "forcible compulsion” as an element is the same regardless of whether the offense charged is for first-degree rape, first-degree sodomy, or first-degree sexual abuse. See § 13A-6-60, Ala.Code 1975.

      . "In brief, appellant argues that the State failed to prove a necessary element of the crime, since, according to the appellant, there was insufficient proof that the sexual contact was had by 'forcible compulsion.' Appellant argues that the failure of the 12-year-old victim to scream for her mother, 'repel the appellant,’ or 'in any other manner object to appellant's activities’ requires that the jury verdict be overturned by this court. However, considering all of the circumstances surrounding the assault, the mere fact that an ill, 12-year-old girl makes ‘no effort to resist’ a sexual confrontation does not negate the inference that sufficient 'legal force’ exists. Weatherford v. State, 369 So.2d 863, 872 (Ala.Cr.App.), cert. denied, 369 So.2d 873 (Ala.), cert. denied, 444 U.S. 867, 100 S.Ct. 141, 62 L.Ed.2d 91 (1979).” .
      494 So.2d at 709 (emphasis added).

      . The Court of Criminal Appeals, in its unpublished memorandum, misstates the Rider holding: "In Rider, we concluded that this evidence established forcible compulsion.” In fact, the Court of Criminal Appeals had held in Rider that "the totality of the circumstances simply does not support a finding of ... forcible compulsion which overcame the victim’s earnest resistance." Rider, 544 So.2d at 996.
      Based on its mischaracterization of Rider, the Court of Criminal Appeals stated that Wil-liford "concedes” his case is similar to Rider, and, thus, concedes that the State proved forcible compulsion with respect to the first-degree-sodomy charge. Williford, however, does not make such a concession. Nonetheless, as we demonstrate, a proper examination of Rider does not lead to the conclusion that the evidence in this case was insufficient to support a finding of forcible compulsion.

      . “There are two kinds of forcible compulsion. First, forcible compulsion may be that physical force which overcomes earnest resistance. Second, forcible compulsion may be a threat, either express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

        Rider, 544 So.2d at 996.