author: CHANDLER, J„ for the Court.

text:
    Alfred G. SHIRLEY a/k/a Alfred Glen Shirley, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00184-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.

      John R. White, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J„ for the Court.

¶ 1. Alfred G. Shirley was convicted on November 12, 2004, on one count of manslaughter by culpable negligence pursuant to Section 97-3-47 of the Mississippi Code Annotated (Rev.2006). The charges stemmed from an early morning brawl after Shirley and the decedent, Ronnie L. Roberts, had been to a local bar. Conflicting reports exist as to who the initial aggressor was, but it is undisputed that during the altercation, Shirley hit Roberts in the face and head several times with his fists, causing severe head trauma. Roberts died as a result of the wounds he suffered in the fight.

¶ 2. Shirley appeals, arguing:

I. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT
II. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING AN EYEWITNESS TO EXPRESS HIS OPINION AS TO WHETHER SHIRLEY WAS ACTING IN SELF-DEFENSE
III. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING SHIRLEY TO ADMIT THE POLICE RADIO LOGBOOK INTO EVIDENCE
IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING JURY INSTRUCTIONS 8, 9, 11 AND 14
V. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING JURY INSTRUCTIONS D-l, D-7, D-9, OR D-10

¶ 3. Finding no error, we affirm.

FACTS OF THE CASE

¶ 4. Approximately six weeks prior to the night of Roberts’ death, Roberts was working as a bouncer at a local club called “The Wagon Wheel” in Alcorn County, Mississippi. Roberts occasionally worked as a bouncer for the bar and Shirley was a regular customer. After Shirley exchanged words with a man on the dance floor, Roberts asked Shirley to leave the bar. Shirley refused to leave and the bartender, Billy Joe Crum, physically threw Shirley out of the establishment. After that night, Shirley began telling other people that he was going to “whip” Roberts the next time he saw him.

¶ 5. On the night of February 26, 2004, Roberts and Shirley again visited the bar, which .by this time had changed its name to “Shooters.” On this occasion, Roberts was at the bar with his girlfriend and not working as a bouncer. At some point during the night, Shirley complained to a waitress that Roberts had followed Shirley into the restroom. According to testimony, Shirley told the waitress that if Roberts persisted in bothering him, Shirley would “bust him upside his head.”

¶ 6. After the bar closed at midnight, several of the patrons, including Roberts and Shirley, gathered at a nearby omelet house. Conflicting testimony accounts for what happened at the omelet house, but it is uncontroverted that at some point, a fight broke out in the parking lot between Roberts and Shirley.

¶ 7. Shirley claims that Roberts was the first aggressor by approaching Shirley’s vehicle and yelling at him. Shirley argues that he hit Roberts in self-defense, striking Roberts in the head four times. Roberts suffered a large cut above his left eye which was swollen shut, a swollen and bloodied face, and numerous lacerations to his nose and forehead. Shirley walked away from the brawl with a broken hand.

¶ 8. Shirley left the scene of the fight and drove to the Alcorn County Sheriffs Office where he reported the incident. Meanwhile, Roberts was picked up by an ambulance and taken to Magnolia Regional Health Center in Corinth, Mississippi. He was declared dead at 1:45 a.m. on February 27, 2004.

¶ 9. While in police custody, Shirley registered .015 on an Intoxilyzer at 2:42 a.m. on the morning of February 27, 2004. Photographic evidence from that night was presented at trial which showed Shirley’s right hand to be bloodied and swollen, and other photographs were admitted showing the crime scene. Evidence was also presented that Roberts had a high percentage of alcohol in his system, ranging from 0.12 to 0.15, depending on which blood test was used. Testimony was given that Shirley had a reputation for picking fights. An eyewitness to the crime, Michael Nelson, testified that he saw Roberts approach Shirley’s vehicle while yelling at Shirley, but did not see Roberts raise his hand against Shirley or attempt to protect himself in any way from Shirley’s blows. Nelson stated that he heard the first punch and when he looked up, Roberts was on the ground with Shirley standing over him, administering several blows.

¶ 10. The coroner testified that Roberts died of subdural hemorrhaging and major bruising to the brain. The base of Roberts’s skull was fractured, along with the bone around his left eye. The coroner stated that death was the result of cranial cerebral trauma, secondary to blunt force trauma. Shirley stated that he only hit Roberts three or four times, but the medical examiner gave conflicting testimony, stating that the evidence showed that Roberts suffered numerous blows, approximately eight to twelve in succession.

LAW AND ANALYSIS

I. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT

A. Weight of the Evidence

¶ 11. Shirley argues that the verdict is against the overwhelming weight of the evidence. In determining whether a jury verdict is against the weight of the evidence, the court “must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.” Ford v. State, 753 So.2d 489, 490(¶ 8) (Miss.Ct.App.1999).

¶ 12. On a motion for new trial, “The court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring v. State, 691 So.2d 948, 957 (Miss.1997).

¶ 13. As a limited “thirteenth juror” in this case, we cannot hold that an unconscionable injustice resulted from this jury’s rendering of a guilty verdict. Shirley testified that he struck Roberts in self-defense. The overwhelming weight of the evidence suggests otherwise. Even if Shirley did initially defend himself against a perceived attack from Roberts, the fear for his own safety would necessarily have ended once Roberts fell to the ground and was obviously incapacitated. Yet, Shirley continued to beat Roberts well after any initial threat had passed. Therefore, Shirley’s argument that the verdict was against the overwhelming weight of the evidence is without merit.

B. Applicability of the Weathersby Rule

¶ 14. Shirley also argues that the State did not provide sufficient evidence to prove beyond a reasonable doubt that he committed manslaughter. Relying solely on Nelson’s and Shirley’s own testimony, Shirley states that the only eyewitness testimony offered showed that he acted in self-defense. Shirley cites the Weathersby rule:

[W]here a defendant or the defendant’s witnesses are the only eyewitnesses to a homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the State, or by the physical facts or by the facts of common knowledge.

Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1938). It is important to note that, “Defendants have often cited and argued application of the Weathersby Rule, but seldom have they prevailed. Usually, a factual issue is presented which requires submission of the case to the jury.” Buchanan v. State, 567 So.2d 194, 196 (Miss.1990).

¶ 15. Shirley’s account of what happened that night sharply contrasted with the evidence presented by the State. Shirley claims he only hit Roberts four times, but the pathologist stated that the injuries Roberts suffered indicated he was severely beaten and endured several blows. Shirley also stated that he only hit Roberts in self-defense, but evidence was presented that Roberts never struck Shirley, and conflicting testimony exists as to who was the first aggressor.

¶ 16. The State offered the testimony of Nelson, an eyewitness to the altercation, along with statements from an officer attending the scene of the crime, the pathologist who conducted Roberts’s autopsy, and numerous acquaintances of Shirley’s who commented that Shirley had a reputation as an instigator of fights. The State’s witnesses sharply contradicted Shirley’s testimony, and even Nelson’s view of the events did not conclusively show that Shirley acted in self-defense. “[Weathersby] has no application where the defendant’s version is patently unreasonable, or contradicted by physical facts.” Taylor v. State, 795 So.2d 512, 517(¶20) (Miss.2001). Therefore, these contradictions were sufficient to take this case out of the purview of the Weathersby rule, and we find this argument to be without merit.

C. Directed Verdict and Sufficiency of the Evidence

¶ 17. Shirley contends that he should have been granted a directed verdict because the State did not prove beyond a reasonable doubt a case for manslaughter. We disagree.

¶ 18. A motion for a directed verdict challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The standard of review is that “all evidence supporting the guilty verdict is accepted as true and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence.” Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005). The verdict should not be overturned so long as there is “credible evidence in the record from which the jury could have found or reasonably inferred each element of the offense.” Id. In addition, the evidence must be examined in the light most favorable to the verdict. Edwards v. State, 615 So.2d 590, 594 (Miss.1993).

¶ 19. In the present case, factual issues arose from the evidence and testimony presented, such as who was the initial aggressor in the argument and whether or not Shirley exceeded any justifiable means for self-defense once Roberts was knocked to the ground.

¶20. Mississippi Code Annotated Section 97-3-47 (Rev.2006) provides, “Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in, this title, shall be manslaughter.” In Smith v. State, 197 Miss. 802, 814-15, 20 So.2d 701, 704-05 (1945), the Court opined that, “[N]egligence, to become criminal, must necessarily be reckless or wanton and of such a character as to show an utter disregard of the safety of others under circumstances likely to cause injuries.”

¶ 21. Based on the record before us, the evidence was sufficient to allow the case to go to the jury. Nelson testified that he saw Roberts exit the omelet house, yell at Shirley across the parking lot, and then Shirley and Roberts began a verbal confrontation. Nelson told Shirley to leave, saying that it was not “worth it” to fight Roberts, but Shirley would not back down. Nelson got into his vehicle, and thereafter heard the sound of a fist hitting something. When he looked up, Nelson saw Shirley standing over Roberts, hitting him. At no time did Nelson see Roberts raise a fist, nor did he see Roberts attempt to defend himself against Shirley’s blows.

¶ 22. Likewise, the pathologist testified that Roberts did not have any markings on his hands to indicate that he tried to defend himself or that he ever hit Shirley. Photographic evidence showed that Shirley had a swollen and bloodied right hand, and Shirley admitted to punching Roberts several times. Other witnesses testified that Shirley was prone to fights, and had been talking about getting into a fight with Roberts for weeks. Considering the evidence in a light most favorable to the State, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

II. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING AN EYEWITNESS TO EXPRESS HIS OPINION AS TO WHETHER SHIRLEY WAS ACTING IN SELF-DEFENSE

¶ 23. Shirley argues that he was unable on direct examination of his friend, Michael Nelson, to ask Nelson’s opinion as to Shirley acting in self-defense. Under Mississippi Rules of Evidence 701, a lay witness’s opinion is admissible only if it is “rationally based on the witness’s perception and is helpful to a clear understanding of his testimony or of a fact in issue.” Newsom v. State, 629 So.2d 611, 614 (Miss.1993). The relevant portion of the trial record is as follows:

MR. WHITE [Defense Counsel]:. From everything you saw that night, in your opinion, who was the aggressor in this incident?
MR. NELSON: Ronnie [Roberts].
MR. WHITE: And from everything that you saw that Glen Shirley did, was that self-defense?

¶ 24. The State objected to the question based on speculation and the court sustained. The court told White he could ask about that issue, but in a different manner of questioning. The questioning proceeded:

MR. WHITE: In your opinion ... from everything you saw that night, did Glen Shirley do anything that you would tell the jury that was aggressive in any form or fashion?
MR. NELSON: No sir, he didn’t.
MR. WHITE: Everything that he did that related to Mr. Roberts, in your opinion, was to defend himself?

¶25. The State objected to this question based on speculation and the court sustained it. White proceeded further:

MR. WHITE: In your opinion, based on what you saw that night, would you have done anything different than Mr. Shirley did?
MR. NELSON: No sir, I wouldn’t have.

¶26. In a further line of questioning, White asked Nelson if he thought Shirley was scared. Again, the State objected but the court overruled the objection, allowing Nelson to answer. Nelson responded by saying that he did think Shirley may have been “a little scared.” Shirley argues that he should have been allowed to ask Nelson his opinion regarding whether Shirley acted in self-defense. Shirley states that this determination would have been helpful to the jury because Nelson was in a good position to see Roberts’s action towards Shirley.

¶ 27. Questions which would merely allow a witness to tell the jury what result to reach are not permitted. Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir.1983). Further, the admissibility of evidence is largely within the discretion of the trial court and reversal may be found only where that discretion has been abused. Weaver v. State, 713 So.2d 860, 865(1131) (Miss.1997). If the Court finds an erroneous exclusion of evidence, we will reverse the ruling only if the error adversely affected a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258(¶ 28) (Miss.Ct.App.2004). Under 704 of the Mississippi Rules of Evidence, opinion testimony is not objectionable merely because it embraces an ultimate issue to be decided by a trier of fact. The comment to Rule 704 provides that such questions which relate to ultimate issues of fact are allowed if they are “helpful to a determination of the case.”

¶ 28. The trial court did allow questions pertaining to the ultimate issue of Shirley’s self-defense theory, but the court required that they be made in a manner more helpful to the jury. Nelson testified that he did not see all of the events that led up to Roberts falling on the ground. Nelson heard a fist hitting something and when he looked up, he saw Shirley bending over and punching Roberts. Therefore, Nelson was not in the best view to assess whether or not Shirley began his attack based on self-defense. However, Nelson was able to testify that he did think that Shirley was somewhat scared before the attack, and that Nelson would have responded in the same manner as Shirley did. Both of those responses could have been helpful to the jury in determining whether or not Shirley was under an imminent fear of Roberts. Thus, we find that the court did not abuse its discretion in disallowing certain questions, and accordingly find this argument to be without merit.

III. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING SHIRLEY TO ADMIT THE POLICE RADIO LOGBOOK INTO EVIDENCE

¶ 29. Shirley next contends that he should have been able to enter into evidence an entry from a police logbook, which would have shown that he was stopped by the police on February 5, 2004. At trial, the State objected because Shirley failed to provide reciprocal discovery and had not informed the State of his intention to introduce a portion of the logbook. The objection was sustained and the logbook was excluded from evidence. Shirley argues this ruling was in error.

¶ 30. During Shirley’s ease-in-chief, Shirley called one of the State’s witnesses, Officer Ralph Dance, to the witness stand. Shirley asked Officer Dance about a police stop which occurred three weeks before the night in question. Officer Dance testified as to what the radio logbook contained. He explained that Shirley’s vehicle was stopped twenty-two days before the event in question in an area close to Bad Habitz, a club that Shirley frequented.

¶ 31. Counsel for Shirley then attempted to enter that page of the logbook into evidence. The State objected because Shirley did not provide it with adequate discovery before trial, or with supplemental discovery once the trial had begun. The court excluded the logbook pursuant to Rule 9.04 E. of the Mississippi Uniform Circuit and County Court Rules, which states that a party shall “promptly notify the other party or the other party’s attorney of the existence of such additional matter.” However, the judge did allow the logbook to come in for identification purposes only.

¶ 32. It is uncontroverted that the defense was able to present testimony to the jury reflecting the contents of the logbook. Without objection from the State, Officer Dance explained that Shirley was stopped prior to the night in question. The only piece of evidence not admitted was the logbook entry itself, which may have been confusing to a jury given that without Officer Dance’s testimony, the jury may not have understood the coding used for traffic stops, or have known that the license plate entered into the log matched that of Shirley’s vehicle. Therefore, any error in handling the issue of a possible discovery violation is deemed to be harmless.

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING JURY INSTRUCTIONS 8, 9,11 AND 14

¶ 33. Shirley argues that by allowing certain jury instructions, the jury had inadequate guidance to reach a fair verdict. When reviewing allegedly erroneous instructions, the court reviews the instructions as a whole to determine whether the jury was properly instructed. Morgan v. State, 741 So.2d 246, 253(¶16) (Miss.1999). Jury instructions should not be reviewed in isolation. Gollott v. State, 672 So.2d 744, 752 (Miss.1996). Thus, error will not be found if one instruction lacks an element but that element is found in another instruction given by the court. Pitts v. State, 832 So.2d 1281, 1285-86(¶ 12) (Miss.2002). Further, the trial court has considerable discretion regarding the form and substance of jury instructions, and we will not deem error absent an abuse of discretion. Higgins v. State, 725 So.2d 220, 223(¶ 15) (Miss.1998).

A. Jury Instruction No. 8: Shifting the Burden of Proof for Self-Defense

¶ 34. Shirley argues that jury instruction No. 8 impermissibly shifted the burden of proof for self-defense onto the defendant. Shirley claims that the instruction provides that, “Mr. Shirley must show that he had reasonable grounds to act as he did.” However, the actual wording of the instruction states:

[T]o make a killing justifiable on the grounds of self-defense, the danger to ... Shirley ... must be either actual, present and urgent, or ... Shirley, must have reasonable grounds to apprehend a design on the part of the victim ... Roberts, to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the Jury to determine the reasonableness of the ground upon which the Defendant, Alfred G. Shirley, acted.

The instruction expounds a theory of self-defense, but the burden of proof required is not included in this particular instruction. Jury instruction No. 2 properly informed the jury that the State had the burden of proof beyond a reasonable doubt of not only Shirley’s guilt, but also that Shirley did not act in self-defense. Therefore, we find this argument to be without merit.

B. Jury Instruction No. 9: Self-Defense and intent to kill

¶ 35. Shirley argues that jury instruction No. 9 was impermissible because it instructed the jury to find whether or not Shirley “believed it was necessary to kill.” Shirley contends that there was never an allegation that he intended to kill Roberts, nor that he believed it was necessary to do so.

¶ 36. Upon reading the entire instruction, the jury was not asked to determine whether Shirley intended to kill Roberts. Jury instruction No. 9 states in relevant part:

[I]n deciding upon the guilt or innocence of the Defendant ... they should determine what an ordinary and reasonable man might have fairly inferred from all the facts and circumstances by which the evidence shows that the Defendant was at the time surrounded.... The Jury must place themselves ... in the Defendant’s place and then judge whether the danger was apparent, or should have been considered apparent by an ordinary man of judgment and prudenee in like condition.... The question is, whether or not the danger was apparently so imminent and present at the time of the killing that a reasonable and prudent man situated as was the Defendant ... would believe it was necessary to kill in order to avoid the loss of life or to prevent great bodily harm.

¶ 37. The language in the jury instruction properly tracks what is set forth under the statute. Further, jury instruction No. 5 clearly instructed that the charge is culpable negligence, that Roberts was killed “without malice.” The jury was not instructed to determine Shirley’s intent to kill. Accordingly, this argument is without merit.

C. Jury Instructions No. 11 and No. II: Using abstract principles of law without applying to facts of case

¶ 38. Shirley further contends that jury instructions No. 11 and No. 14 improperly used abstract principles of law without applying any facts of the case at hand. Shirley cites the case of Harkins v. Paschall, 348 So.2d 1019, 1023 (Miss.1977), alleging that if abstract principles of law are not applied to the specific facts of the case, the instruction should not be given.

¶ 39. However, the language in Har-kins states, “the use of an abstract principle of law from one case, without applying it to the specific facts of the case under consideration, may invite reversible error.” Id. (emphasis added). In Harkins, the court found no reversible error because, viewing the jury instructions as a whole, the jury was adequately instructed as to the law and applicable facts. Id.

¶ 40. Further, no statement of issue based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection. Watson v. State, 483 So.2d 1326, 1329 (Miss.1986). The basis for Shirley’s objection to No. 11 at trial was that he preferred his own instruction D-4 to the proposed P-11 (entered as No. 11 in the record). Shirley did not object to No. 11 based on abstraction. Thus, the issue regarding No. 11 is procedurally barred.

¶ 41. Shirley also objects to jury instruction No. 14 by stating that it improperly omits reference to the specific facts of the present case. Jury instruction No. 14 states, “[a] Defendant who claims self-defense to his actions may not use excessive force to repel an attack, but may use only such force as is reasonably necessary under the circumstances.” We find this argument to be without merit because jury instruction Nos. 5, 8, 9, 10, 12, and 13 all provide adequate facts for the jury to decide whether or not Shirley acted in self-defense or whether the force used was excessive.

V. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING JURY INSTRUCTIONS D-l, D-7, D-9, OR D-10

¶ 42. Shirley argues that the court erred in not allowing some of his proposed jury instructions. Our supreme court has held that, “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Heidel v. State, 587 So.2d 835, 842 (Miss.1991) (citations omitted).

A.Jury Instruction D-l: Meaning of Reasonable Doubt

¶ 43. Shirley argues that the rejected jury instruction D-l provides a more thorough explanation of “reasonable doubt.” D-l states in relevant part, “There is always a reasonable doubt of the defendant’s guilt when the evidence simply makes it probable that the defendant is guilty. Mere probability of guilt will never warrant you to convict the defendant.” This Court has stated that “reasonable doubt defines itself; it therefore needs no definition by the court.” Wells v. State, 913 So.2d 1053, 1061(¶27) (Miss.Ct.App.2005). Therefore, we can find no abuse of discretion in the court’s denying Shirley’s proposed jury instruction D-l.

B. Jury Instruction D-7: Self-Defense Theory

¶ 44. Shirley next contends that his D-7 instruction regarding self-defense is better than the instruction allowed (P-7). Proposed jury instruction D-7 states in relevant part:

[A]nd if you believe that under those circumstances it reasonably appeared to the defendant on that occasion, and if you believe that under those circumstances it reasonably appeared to Alfred Glen Shirley, at the instant that the deceased raised his fist to strike him, that the defendant then and there had reasonable ground to apprehend a design on the part of ... Roberts to kill the defendant.

¶ 45. Jury instruction P-7 (allowed as No. 9) asks the jury to determine self-defense as a reasonable person would if placed in Shirley’s situation. We conclude that the trial court was within its discretion in finding that D-7 was a better statement of the law.

C. Jury Instruction D-9: Weathersby Rule

¶ 46. Jury instruction D-9 concerns the Weathersby rule that if eyewitness testimony is uncontroverted by other evidence or common sense, then the jury must take the eyewitness testimony as true. Weathersby, 165 Miss. at 209, 147 So. 481. Ample evidence in this case was presented to show that Roberts died as a result of Shirley’s fists. Shirley’s theory of self-defense was contradicted by other testimony such as from the forensic pathologist and other witnesses from the night in question. Shirley’s testimony was negated by other evidence; thus, the Weathersby rule is inapplicable.

D. Jury Instruction D-10: Elements of excusable homicide

¶ 47. Jury instruction D-10 quotes Section 97-3-17(c) of the Mississippi Code Annotated (Rev.2006), which instructs on excusable homicide (providing for a theory of self-defense). Shirley claims that the rejected D-10 is more properly worded than the allowed No. 11. We find this argument to be without merit, because precedent holds that when giving a jury instruction on excusable homicide, the full text of the statute should be included. Scott v. State, 446 So.2d 580, 583 (Miss.1984).

¶ 48. D-10 merely lists self-defense as the only excuse the jury can find. However, Section 97-3-17 contains other elements. The full text of Section 97-3-17 is as follows:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
(c)When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.

Our supreme court found in Scott v. State, 446 So.2d at 583, that not including all of the elements of the statute was reversible error. Therefore, we can find no error in denying D-10 and substituting the proper jury instruction of P-11.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $4,000 AND $4,500 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

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


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte MILLER, HAMILTON, SNIDER & ODOM, LLC, et al. (In re Bryan A. Corr, Sr., et al. v. Miller, Hamilton, Snider & Odom, LLC, et al.).
    1050200.
    Supreme Court of Alabama.
    March 10, 2006.
    Rehearing Denied May 12, 2006.
    Robert M. Girardeau and Jeffrey N. Windham of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioners.
    David O. Upshaw and Jonathan L. Brog-don of Ogle, Liles & Upshaw, LLP, Birmingham, for respondents.
   WOODALL, Justice.

Miller, Hamilton, Snider & Odom, LLC (“the law firm”), and three of its attorneys, Ben H. Harris III, John C.H. Miller, Jr., and Giles G. Perkins, the defendants in an action pending in the Blount Circuit Court, petition for a writ of mandamus directing the circuit court to vacate its order denying their motion to transfer the action to the Baldwin Circuit Court and directing the circuit court to transfer the action to Baldwin County. We grant the petition and issue the writ.

In November 2001, Harris and Perkins filed a lawsuit on behalf of Community Bank and its holding company, Community Bancshares, Inc., in the United States District Court for the Northern District of Alabama, Southern Division, which is located in Jefferson County. The defendants in that lawsuit included Bryan A. Corr, Sr.; Doris Corr, individually and as the executrix of the estate of R.C. Corr, Jr., deceased; Tina M. Corr; and Corr, Inc. (collectively “the Corrs”). Ultimately, Community Bank and Community Bane-shares, Inc., voluntarily dismissed the lawsuit.

On March 18, 2005, the Corrs sued the law firm and Harris, Miller, and Perkins in the Blount Circuit Court. The factual allegations of the complaint concerned the defendants’ involvement in filing and prosecuting the earlier federal action against the Corrs. The complaint in the state-court action included claims of malicious prosecution, negligent supervision, and wantonness.

On April 26, 2005, the law firm and Miller, Harris, and Perkins filed a motion to transfer the Corrs’ action to the Baldwin Circuit Court. On September 22, 2005, the trial court, without explanation, denied the motion to transfer, and the defendants then timely filed their petition for a writ of mandamus.

When the trial court denies a motion for a change of venue, the defendants may seek relief by filing a petition for a writ of mandamus.

“ ‘The question of proper venue for an action is determined -at the ■ commencement of the action.’ Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). ‘A petition for a writ of mandamus is the appropriate means for challenging a trial court’s refusal to transfer an action and such a petition is due to be granted if the petitioner makes a clear showing of error on the part of the trial court.’ Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994). ‘In considering a mandamus petition, we must look at only those facts before the trial court.’ Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Walter Indus., Inc., 879 So.2d 547, 548-49 (Ala.2003).

“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.” Rule 82(c), Ala. R. Civ. P. Therefore, initially, we will consider whether Blount County is a proper venue insofar as the Corrs’ claims against the individuals, Harris, Miller, or Perkins, are concerned.

“[PJersonal actions [against individuals, other than for the recovery of land or on contracts,] if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.”

§ 6-3-2(a)(3), Ala.Code 1975. Miller, Harris, and Perkins have their permanent residences in Alabama; none of them, however, is a resident of Blount County. Miller resides in Mobile County; Harris in Baldwin County; and Perkins in Jefferson County. Consequently, insofar as the individual defendants are concerned, venue is proper in Blount County only if it is “the county in which the act or omission complained of may have been done or may have occurred.”

As the parties agree, for purposes of § 6 — 3—2(a)(3), an alleged act of malicious prosecution is deemed to have occurred in the county where the underlying lawsuit was filed and ultimately resolved favorably to the plaintiffs in the malicious-prosecution action. See Ex parte Shuttlesworth, 420 So.2d 256 (Ala.1982). Here, the underlying lawsuit against the Corrs was filed in federal court in Jefferson County. Consequently, Blount County is not a proper venue insofar as Miller, Harris, and Perkins are concerned.

Next, we must determine whether Blount County is a proper venue insofar as the law firm, a limited liability company, is concerned. Regrettably, no Alabama venue statute mentions limited liability companies. Therefore, we must decide which statute governs the venue of an action against such an entity.

The Alabama Limited Liability Company Act is codified at Ala.Code 1975, § 10-12-1 et seq. Section 10-12-8 provides, in pertinent part:

“(a) The terms ‘partnership’ and ‘limited partnership,’ when used in any chapter or title other than this chapter, the Alabama Uniform Partnership Act (Chapter 8A, Title 10), and the Alabama Limited Partnership Act of 1983 (Chapter 9A, Title 10), and any successors of those acts, include a limited liability company organized under this chapter, unless the context requires otherwise.
“(b) Notwithstanding subsection (a), for purposes of taxation, other than Chapter 14A of Title 40, a domestic or foreign limited liability company shall be treated as a partnership unless it is classified otherwise for federal income tax purposes, in which case it shall be classified in the same manner as it is for federal income tax purposes.”

The Commentary to § 10-12-8 states, in pertinent part:

“This section is intended to assure that limited liability companies are generally treated as partnerships. This rule will not apply, however, if the limited liability company has more corporate than noncorporate characteristics and is therefore treated as an association taxable as a corporation for federal income tax purposes.”

In light of § 10-12-8, and of the uncontro-verted fact that the law firm, for many years, has been treated as a partnership for federal income-tax purposes, we will treat the law firm as a partnership for venue purposes.

Section 6-3-7, Ala.Code 1975, governs the venue of actions against foreign and domestic corporations. However, that section “relatefs] to venue for only corporate defendants and not to venue for natural persons or partnerships.” Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 700 (Ala.2005). The venue of actions against unincorporated organizations or associations is governed by § 6-3-6, Ala.Code 1975. However, § 6-3-6 does not govern venue in an action against a partnership. See Ex parte Wilson, 706 So.2d 1151 (Ala.1997). Therefore, by process of elimination, we must conclude that § 6 — 3—2(a)(3), which governs venue insofar as the individual defendants are concerned, also governs venue insofar as the law firm is concerned.

No member of the law firm has a permanent residence in Blount County. Under the teachings of Shuttlesworth, venue in this malicious-prosecution action is not proper in Blount County insofar as the law firm is concerned. Consequently, venue is not proper in Blount County as to any defendant.

Ala. R. Civ. P. 82(d)(3) provides, in pertinent part: “In the event the venue of the action is ... improper and venue is appropriate in more than one other court, ... multiple defendants, by unanimous agreement, shall have the right to select such other court to which the action shall be transferred.” The law firm and Miller, Harris, and Perkins selected Baldwin County, the county of Harris’s permanent residence, as the county to which the action should be transferred and have made a clear showing that the trial court erred in refusing to transfer the action to the Baldwin Circuit Court. Therefore, we grant the petition for the writ of mandamus and direct the trial court to vacate its order denying the defendants’ motion to transfer and to enter an order transferring the action to the Baldwin Circuit Court.

PETITION GRANTED; WRIT ISSUED.

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

      . We have not ignored the Corrs' argument that their causes of action for negligent supervision and wantonness are separate from their causes of action for malicious prosecution. However, "a claim of negligent [or wanton] prosecution of a civil action is not a cognizable tort claim in this state,” Ex parte State Farm Mut. Auto. Ins. Co., 924 So.2d 706, 711 (Ala.2005), and the Corrs’ negligence and wantonness claims, as stated in their complaint, amount to nothing more than malicious-prosecution claims improperly couched in terms of negligence and wantonness.


author: SMITH, Justice.

text:
    BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION, J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton v. Robert Lee CATRETT, Wesley Grant, John Gregg, David Harms, Davida Hastie, George P. Kaiser, Willard Penry, Henry Vick, and Cecil Ward. Ex parte Baldwin County Electric Membership Corporation, J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton (In re Robert Lee Catrett, Wesley Grant, John Gregg, David Harms, Davida Hastie, George P. Kaiser, Willard Penry, Henry Vick, and Cecil Ward v. Baldwin County Electric Membership Corporation, J. Thomas Bradley, Jr., Steven P. Brill, Aubury L. Fuller, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton).
    1040371 and 1040362.
    Supreme Court of Alabama.
    May 5, 2006.

      Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette; and Robert A. Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant/petitioner Baldwin County Electric Membership Corporation.
    Douglas L. McCoy of Hand Arendall, L.L.C., Mobile, for appellants/petitioners J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., and Thomas J. Helton.
    Mary E. Murchison of Murchison & Howard, LLC, Foley, for appellant/petitioner Peggy R. Vanover.
    Taylor D. Wilkins, Jr., of Wilkins, Bank-ester, Biles & Wynne, P.A., Bay Minette, for appellees/respondents.
   SMITH, Justice.

This appeal and petition for a writ of mandamus arise out of a dispute over voting procedures for the election of the board of trustees of the Baldwin County Electric Membership Corporation (“the Cooperative”) and over procedures for approving or amending the minutes from the Cooperative’s annual meetings. The Cooperative and certain individuals serving on the board of trustees of the Cooperative (collectively “BCEMC”) appeal from the trial court’s order issuing a preliminary injunction. BCEMC has also filed a petition for a writ of mandamus asking this Court to set aside the trial court’s order. The appellees/respondents are nine individual members of the Cooperative (“the plaintiffs”). Our affirmance of the trial court’s order in case no. 1040371 renders BCEMC’s petition moot. We therefore deny the petition.

Facts and Procedural History

The Cooperative is organized under Ala. Code 1975, §§ 37-6-1 through -49, for the purpose of supplying electric service to customers in Baldwin County and Monroe County. It is the largest electric cooperative in Alabama. Any person or entity that receives electric service from the Cooperative is eligible to become a member.

The Cooperative is managed by a board of seven trustees. The Cooperative serves a territory that is divided into seven districts, and each district is represented by one trustee, who resides within the district he or she represents. The Cooperative holds an annual meeting for the purposes of electing trustees and conducting its business. All members of the Cooperative are entitled to vote in the at-large trustee elections. According to the bylaws, the president of the board of trustees must appoint a nominating committee before the annual meeting. The nominating committee consists of two members from each district for which trustees are to be elected at that year’s annual meeting plus one at-large member who is not from any of the districts for which elections are to be held. The nominating committee nominates at least one candidate for each district from which a trustee must be elected.

In 2004, the membership of the Cooperative was scheduled to elect trustees for districts 2, 4, and 6. Steven P. Brill, trustee representative from district 2 and the president of the board of trustees, appointed a nominating committee in accordance with the bylaws. The committee met to discuss nominations for the trustee positions. David Harms, a member of the Cooperative and one of the plaintiffs in this case, appeared before the nominating committee and requested to be nominated for the trustee position for district 2. The committee decided not to place Harms on the ballot. The committee nominated Brill for district 2, Tommie Werneth for district 4, and Peggy Vanover and Roy LeBlanc for district 6.

The bylaws of the Cooperative state that members can vote for trustees by mail-in ballot or in person at the annual meeting. The secretary of the board of trustees is responsible for mailing members the official notice of the annual meeting, along with the mail-in ballots. If a member decides to vote by mail, he or she returns the completed ballot to the Cooperative by the deadline set by the board of trustees. However, the members may also attend the annual meeting and vote in person.

The bylaws also state that “[n]othing contained herein shall, however, prevent additional nominations from the floor at the meeting of the members.” Therefore, according to the bylaws, the president must call for additional nominations to be made from the floor at the annual meeting. However, because the deadline for mail-in voting is before the annual meeting, the bylaws do not include a procedure that allows members voting by mail to vote for any candidates who might be nominated from the floor at the annual meeting. The plaintiffs allege that this voting system violates the bylaws of the Cooperative and the parliamentary procedure requirements set out in Robert’s Rules of Order.

The 2004 annual meeting was scheduled to be held on December 9, 2004. In late October or early November 2004, after the nominating committee had met, the secretary of the board of trustees mailed notice of the annual meeting and mail-in voting ballots to members. Members opting to vote for trustees by mail had to return their ballots by December 2, 2004.

The plaintiffs sued BCEMC on November 18, 2004, seeking a declaratory judgment, a preliminary injunction, and a permanent injunction. The plaintiffs requested that the trial court hold a hearing on their request for a preliminary injunction and that BCEMC be enjoined “from proceeding with the election of trustees at the December 9, 2004, annual meeting.” The plaintiffs also requested that upon a final hearing the trial court enter a permanent injunction “enjoining [BCEMC] from proceeding with the election of the trustees at the [Cooperative’s] annual meeting on December 9, 2004” and “ordering [that] the By-Laws of the [Cooperative] be amended to provide for a special or regular meeting of the membership to receive the nominating committee’s report for nominations of the trustees and to allow nominations from the floor prior to the vote of the membership for trustees at the annual meeting of the corporation.”

In addition to the dispute over the voting procedures for the election of trustees, the plaintiffs’ complaint alleged that the method for approving or amending the minutes from past annual meetings was improper. The Cooperative held its 2003 annual meeting on March 28, 2003. During the meeting, the Cooperative conducted trustee elections for districts 5 and 7. The plaintiffs contended that Brill, serving as president of the board of trustees and presiding over the meeting, refused to recognize nominations from the floor. Witness testimony as to whether Brill allowed nominations from the floor at the 2003 meeting is conflicting. The minutes from the meeting indicate that Brill opened the floor to nominations for trustees for districts 5 and 7, but that no members made nominations from the floor.

The notice of the 2004 annual meeting that was mailed to members also contained a ballot for members to vote to approve or disapprove the minutes from the March 2003 meeting. The plaintiffs allege that the voting procedure used by the board of trustees to obtain approval of the minutes of the 2003 annual meeting violates the bylaws of the Cooperative because it does not give members the opportunity to suggest amendments or additions to the minutes. Therefore, the plaintiffs’ complaint also requested a judgment declaring “[t]hat the minutes of the March 28, 2003, annual meeting be submitted to the membership for corrections.” In addition, the complaint requested a preliminary injunction ordering that “the annual Minutes of March 28, 2003, not be submitted for approval or disapproval to the membership without correction.” Lastly, the complaint requested that upon final hearing the trial court enter a permanent injunction ordering “that the annual Minutes of March 28, 2003, not be submitted for approval or disapproval.”

On November 24, 2004, the trial court held a hearing on the plaintiffs’ request for the preliminary injunction. At the hearing, the plaintiffs presented the trial court with an amended complaint asking the trial court “to require that the [Cooperative] follow [its] bylaws in the election process for trustees.” In addition, BCEMC filed a motion to dismiss or, in the alternative, for a summary judgment. The trial court denied the motion.

On December 2, 2004, the trial court granted in part the injunctive relief sought. The trial court found that when the Cooperative amended the bylaws to allow members to vote by mail, “a comprehensive study was not conducted to determine whether any other portions of the bylaws should be amended to accommodate mail voting.” The trial court also found that there was an irreconcilable conflict in the bylaws between the mail-in voting provision and the provision allowing nominations from the floor. Therefore, the trial court held that it had a “duty” to interpret the procedural provisions together “so that no provision of [the bylaws] is arbitrarily disregarded.” The trial court then ordered:

“(a) The president of the [Cooperative] shall, at the annual meeting to be held on December 9, 2004, open the floor for nominations for a trustee for each district that must elect a trustee for a new term in numerical order of the districts. “(b) If there is no floor nomination for a particular district, the balloting and tabulation of mail votes for that district shall continue according to the by-laws and the result certified by the independent auditor together with the tabulation of the on-site votes. The result of the election for that district shall become final, and the person elected shall assume office at the proper time.
“(c) If there is a floor nomination of a person qualified under the by-laws to serve as a trustee for a particular district, the president shall adjourn the annual meeting, as permitted by Robert[]s Rules of Order, 10th edition, with respect to the trustee election for that district or districts only. The president shall as soon as practicable select a date to reconvene the 2004 annual meeting for the purpose of completing the voting for the district trustee in question. The date shall be at the earliest possible time that will allow the secretary to prepare new ballots containing the same type of information for each person nominated for the office of trustee with respect to a particular district, whether nominated by the nominating committee or from the floor. The secretary shall also be responsible for enclosing with each ballot the notice of the re-convening of the adjourned Annual meeting, and the court orders that all other provisions of the by-laws respecting mail ballots be complied with, including instructions for mail voting and the return of ballots by the required deadline.
“(d) The president shall call for any corrections or additions to the minutes of the 2003 meeting. If there are none, the proposed minutes may be approved using the mail ballots and the on-site votes. If there are corrections or additions proposed at the meeting, no vote shall be taken unless there is a quorum not counting mailed ballots. If there is a quorum of the members at the meeting, as defined by the by-laws, then any additions or corrections to the minutes are to be submitted at the meeting, and the same shall be voted upon by the members present, as required by the bylaws and Robert’s Rules of Order.. If there is no quorum present, then the matter must be continued to the next Annual Meeting. The Secretary shall include any proposed amendment to the minutes on the next notice sent to the members and appropriate instructions for voting on the corrections.”

The trial court denied' the plaintiffs’ request to enjoin the 2004 annual meeting until it ruled on other issues raised by the plaintiffs.

On December 3, 2004, BCEMC filed a motion requesting that the trial court amend its order. On December 6, 2004, BCEMC filed a petition for á writ of mandamus with this Court, asking us to set aside the trial court’s order. On December 8, 2004, the trial court granted BCEMC’s motion and amended its order to provide that if nominations were made from the floor at the annual meeting, then while the meeting was still taking place, the Cooperative should prepare ballots containing the names of all nominees. The trial court' ordered that the Cooperative then distribute these ballots to the membership physically present. In addition, the trial court ordered that the Cooperative would not be required to print and mail new ballots to the membership with the names of all nominees until this Court ruled on the merits of their appeal, filed on December 8, 2004, and only if this Court so ordered.

On December 9, 2004, the Cooperative held its annual meeting. In compliance with the trial court’s order, the president of the board of trustees called for any corrections or additions to the minutes prepared for the 2003 meeting. A member moved to correct the minutes, but the Cooperative continued the matter until the next annual meeting because a quorum was not present to vote on the motion. In compliance with the trial court’s order, the president of the board of trustees called for nominations from the floor for trustee positions for districts 2, 4, and 6. The Cooperative accepted one nomination from the floor for each district. After nominations were closed, all nominees were given time to speak to the members present at the meeting. The Cooperative prepared ballots containing the names' of both the candidates who had been selected by the nominating committee and the candidates who were nominated from the floor. ■ Using these new ballots, the members present at the annual meeting voted. Consistent with the trial court’s amended order, the Cooperative has not yet printed or mailed to members not present at the annual meeting ballots containing the names of those candidates nominated from the floor.

The Cooperative appealed the trial court’s issuance of a preliminary injunction in favor of the plaintiffs. We have consolidated this appeal with BCEMC’s petition for a writ of mandamus for the purpose of issuing one opinion.

Standard of Review

“We review a preliminary injunction to determine whether the trial court exceeded its discretion in granting the injunction. ‘[T]he grant of, or refusal to grant, a preliminary injunction rests largely in the discretion of the trial court.’ Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So.2d 17, 19 (Ala.1983). Moreover, if it cannot be shown that the trial court exceeded its discretion in either granting or refusing to grant a preliminary injunction, the court’s ‘action will not be disturbed on appeal’ 428 So.2d at 19. A trial court exceeds its discretion when it ‘exceed[s] the bounds of reason, all the circumstances before the lower court being considered.’ Valley Heating, Cooling, & Elec. Co. v. Alabama Gas Corp., 286 Ala. 79, 82, 237 So.2d 470, 472 (1970).”

Johnson v. Willis, 893 So.2d 1138, 1140-41 (Ala.2004) (footnote omitted).

Analysis

“In order for a trial court to grant a preliminary injunction, the plaintiff must show all of the following: (1) that without the injunction the plaintiff would suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the plaintiff.”

Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994) (citing Martin v. First Fed. Sav. & Loan Ass’n of Andalusia, 559 So.2d 1075 (Ala.1990); Board of Dental Exam’rs of Alabama v. Franks, 507 So.2d 517 (Ala.Civ.App.1986)).

I.

A.

BCEMC argues that the trial court erred in issuing the preliminary injunction because, it contends, the plaintiffs should have filed a derivative action, and, having failed to do so, they cannot succeed on the merits of the case. We disagree.

The plaintiffs’ complaint does not allege that the action was brought derivatively on behalf of the Cooperative; even so, in analyzing whether a claim is derivative or direct, this Court looks to the nature of the alleged wrong rather than the designation used by the plaintiff in the complaint. See Pegram v. Hebding, 667 So.2d 696, 702 (Ala.1995) (addressing whether a plaintiff stockholder’s action against a corporation could be brought individually or whether it could be maintained only as a derivative action); McDonald v. U.S. Die Casting & Dev. Co., 541 So.2d 1064, 1068-70 (Ala.1989) (analyzing whether an individual shareholder could “sue in his own name” or whether the action should have been brought derivatively on behalf of the corporation); Green v. Bradley Constr., Inc., 431 So.2d 1226, 1228-29 (Ala.1983) (addressing whether an action brought by a shareholder against a corporation as an “individual” or “direct” action was actually derivative in nature).

There are no Alabama cases addressing the precise question whether a claim alleging a violation of shareholder or member voting rights is a direct or derivative action. However, Rule 23.1, Ala. R. Civ. P., which sets out the procedural requirements for bringing a derivative action, refers to a derivative action as one

“brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it.... ”

Rule 23.1, Ala. R. Civ. P. (emphasis added). A derivative action has also been defined as an action “brought by one or more stockholders of a corporation to remedy or prevent a wrong against the corporation,” while a direct action has been defined as an action “brought by one or a few shareholders to remedy or prevent a direct wrong to the plaintiffs.” 19 Am. Jur.2d Corporations § 1934 (2004) (emphasis added). See also, 19 Am.Jur.2d Corporations § 1944 (2004) (stating that a derivative action is brought to enforce “a corporate right or to prevent or remedy a wrong to the corporation”); Black’s Law Dictionary 475 (8th ed.2004) (defining a derivative action as an action “asserted by a shareholder on the corporation’s behalf against a third party ... because of the corporation’s failure to take some action against the third party”). The derivative action provides a method by which shareholders or members can sue on behalf of the corporation or association when those in control of the corporation or association refuse to assert a claim belonging to it. Rule 23.1, Ala. R. Civ. P. See also Robbins v. Sanders, 890 So.2d 998, 1014 (Ala.2004) (“In a shareholder-derivative action, the claims are asserted on behalf of a corporation. ...”).

The plaintiffs in this case allege that the board of trustees infringed upon their voting rights because, they say, the board failed to follow the procedures set out in the bylaws for the election of trustees and for approving or amending the minutes from annual meetings. “ ‘It is well established that the constitution, bylaws, rules and regulations of a voluntary association constitute a contract between an association’s members, which is binding upon each member so long as the bylaws, etc., remain in effect.’ ” Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004) (quoting Wells v. Mobile County Bd. of Realtors, Inc., 387 So.2d 140, 142 (Ala.1980)). The right to vote is granted to all members of the Cooperative under the bylaws and by statute. Thus, each member of the Cooperative had a contractual right to vote. If the plaintiffs’ voting rights have been violated, the plaintiffs— not the corporation — have suffered a harm. The plaintiffs can maintain this action directly because they are enforcing an individual right — the right to vote— rather than a right of the corporation. See Green, 431 So.2d at 1229 (holding that an action for “fraudulent conversion of coco-rote assets ” was derivative given that “if the allegations are true, [the assets] would by law have to be returned to the corporation as the assets are not solely [the plaintiffs] but belong to the corporation ” (emphasis added)); General Motors Corp. v. Bell, 714 So.2d 268, 290 (Ala.1996) (holding that a plaintiff shareholder’s action against a third party for fraud and wantonness resulting from a loss of corporate funds was a derivative — rather than direct — action); Pegram, 667 So.2d at 702 (holding that a plaintiffs claims based upon allegations that a corporate officer defrauded the corporation were derivative). In addition, the relief sought by the plaintiffs here — an injunction to protect the plaintiffs’ voting rights — benefits the plaintiffs, not the Cooperative.

Although there is no direct Alabama caselaw on point, there is authority from other jurisdictions to support the proposition that an action to protect shareholder or member voting rights can be maintained as a direct or individual action. In Lipton v. News International, Pic, 514 A.2d 1075, 1079 (Del.1986) (overruled in part on other grounds by Tooley v. Donaldson, Lufkin, & Jenrette, Inc., 845 A.2d 1031, 1037 (Del.2004)), the Delaware Supreme Court addressed the question whether a shareholder’s claim alleging that a corporate stock-exchange agreement violated shareholder voting rights was a direct or derivative action. The court held:

“The right to vote is a contractual right that [the plaintiff] possesses as a shareholder of [the corporation] which is independent of any right of [the corporation]. The alleged interference with that right meets the requirements ... in setting forth an individual action ... See also Reifsnyder v. Pittsburgh Outdoor Advertising Co., 405 Pa. 142, 173 A.2d 319 (1961) (Pennsylvania Supreme Court found a direct, or individual, action, concerned primarily with the protection of the plaintiffs voting rights, where plaintiff alleged that his own votes had been wrongly diluted by the majority shareholder’s improper vote on a resolution in which the majority shareholder had a pecuniary interest).”

514 A.2d at 1079. See also Paskowitz v. Wohlstadter, 151 Md.App. 1, 10, 822 A.2d 1272, 1277 (2003) (stating that “ ‘a wrong involving a contractual right of a shareholder, such as the right to vote, ... exists independently of any right of the corporation’ ” (quoting Moran v. Household Int’l, Inc., 490 A.2d 1059, 1070 (Del.Ch.1985))); G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 234 (Ind.2001) (holding that “[d]irect actions are typically appropriate to enforce the right to vote”); Reifsnyder v. Pittsburgh Outdoor Adver. Co., 405 Pa. 142, 149, 173 A.2d 319, 322 (1961) (“The right to vote is basic and fundamental to most shares of stock and is independent of any right that the corporate entity possesses and the shareholder could enforce and protect such rights by bringing a direct action.” (footnotes omitted)).

B.

BCEMC also argues that under this Court’s holding in Rezner v. Fairhope Single Tax Corp., 292 Ala. 456, 296 So.2d 166 (1974), the plaintiffs failed to state a cause of action. In Rezner, plaintiff shareholders sued a corporation seeking to dissolve the corporation or, in the alternative, to prohibit the corporation from charging what they alleged was excessive rent. The Court stated: “It is a well-established rule of substantive law in this state that before stockholders can sue the corporation to remedy corporate wrongs, they must first apply to the corporation’s directors for redress.” Rezner, 292 Ala. at 460, 296 So.2d at 170. The Court held that the plaintiffs failed to state a cause of action “absent allegations that the internal remedies of the corporation had been invoked or to do so would be futile.” Rezner, 292 Ala. at 459, 296 So.2d at 169.

BCEMC argues that under Rezner the plaintiffs were required to “apply to the corporation’s directors for redress” before suing BCEMC. Rezner, 292 Ala. at 460, 296 So.2d at 170. However, it is unclear whether the action in Rezner was direct or derivative. The Court in Rezner did not address whether the plaintiffs sued derivatively—on behalf of the corporation—or directly—as individuals. In addition, it is clear under Alabama caselaw that there is no director-demand requirement when a member or shareholder sues an association or corporation directly rather than derivatively.

In Boykin v. Arthur Andersen & Co., 639 So.2d 504, 508 (Ala.1994), this Court, on appeal from the trial court’s order granting the defendant’s motion to dismiss, addressed whether the plaintiffs’ claims against a corporation were direct or derivative. First, the Court explained that “[t]he trial court’s rationale for dismissing the claims against the individual defendants was that the plaintiffs had failed to make a demand on the board of directors pursuant to Rule 23.1, Ala. R. Civ. P.” Boykin, 639 So.2d at 507. This Court held that the plaintiffs’ claims were not derivative and, therefore, that the trial court had erred in dismissing the claims. Boykin, 639 So.2d at 508. Thus, this Court reversed the trial court’s judgment dismissing the plaintiffs’ claims because the plaintiffs were not required to make a demand upon the board of directors before suing the corporation, given that the plaintiffs’ claims were direct rather than derivative. Boykin, 639 So.2d at 508. See also, John W. Welch, Shareholder Individual and Derivative Actions: Underlying Rationales and the Closely Held Corporation, 9 J. Corp. L. 147,151 (1984) (“[Ujnlike plaintiffs seeking individual recoveries, plaintiffs bringing derivative actions must first exhaust internal corporate remedies.”). We reject BCEMC’s argument that, under Rezner, the plaintiffs were required to exhaust corporate remedies or to make a director demand in order to state a cause of action.

II.

BCEMC also argues that the trial court exceeded its discretion in issuing the preliminary injunction because the injunction violated the business-judgment rule. We disagree.

Alabama’s business-judgment rule was set out in Roberts v. Alabama Power Co., 404 So.2d 629, 631 (Ala.1981) (quoting H. Henn, Law of Corporations § 242 (2d ed.1970), quoted with approval in Michaud v. Morris, 603 So.2d 886, 888 (Ala.1992)):

“ ‘If in the course of management, directors arrive at a decision, within the corporation’s powers ..., for which there is a reasonable basis, and they act in good faith, as the result of their independent discretion and judgment, and uninfluenced by any consideration other than what they honestly believe to be the best interest of the corporation, a court will not interfere with the internal management and substitute its judgment for that of the directors to enjoin or set aside the transaction or to surcharge the directors for any resulting loss.’ ”

Although the business-judgment rule may apply to the business decisions of BCEMC, it is clear under Alabama case-law that “ ‘[jjudicial review of an organization’s actions is available to a member of the organization who challenges such action[s] on the grounds that [they do] not conform to the organization’s constitution or [bylaws].’ ” Dawkins v. Walker, 794 So.2d 333, 338 (Ala.2001) (quoting Mitchell v. Concerned Citizens of CVEC, Inc., 486 So.2d 1283, 1287 (Ala.1986)). It is clear under Alabama caselaw that the trial court acted properly in reviewing whether BCEMC was acting within the scope of its powers as articulated in its bylaws. See Dawkins, 794 So.2d at 338 (addressing whether the board of directors had authority under its bylaws to remove one of the board members); Mitchell, 486 So.2d at 1287 (addressing whether the board of directors of an electric cooperative had authority to remove a board member under the powers granted to the board in the cooperative’s bylaws). Further, the bylaws of the Cooperative are clearly binding upon BCEMC. Dawkins, 794 So.2d at 339 (“ ‘It is well established that the constitution, bylaws, rule and regulations of a voluntary association constitute a contract binding upon each member so long as the bylaws, etc., remain in effect.’ ” (quoting Wells v. Mobile County Bd. of Realtors, 387 So.2d at 142)). “The business judgment rule ... generally insulates the acts of directors done in good faith and with sound business judgment from interference by the courts.... [A]n act of the directors beyond the limits of their powers as defined by statute or bylaw is also grounds for interference by the courts.” 18B Am.Jur.2d Corporations § 1296 (2004) (emphasis added). Further, BCEMC has not cited any authority to support its argument that the business-judgment rule applies to decisions of an association construing and applying the bylaws of the association. Therefore, we reject BCEMC’s contention that the business-judgment rule applies to the facts of this case.

III.

BCEMC also argues that under this Court’s holding in Fairhope Single Tax Corp. v. Rezner, 527 So.2d 1232, 1234 (Ala.1987), the trial court impermissibly interfered with the internal management of the Cooperative by essentially amending the bylaws of the Cooperative. This Court has held that “ ‘[o]rdinarily a court of equity will not interfere with the internal affairs of a voluntary association, or assume jurisdiction to restrain its acts done or attempted in accordance with its rules and within the scope of its powers.’” Dawkins, 794 So.2d at 387-38 (quoting Medical Soc’y of Mobile County v. Walker, 245 Ala. 135, 140, 16 So.2d 321, 325 (1944)). See also Fairhope Single Tax Corp., 527 So.2d at 1236. However, BCEMC never made this argument before the trial court, and it made this argument to this Court only in its reply brief. Thus, this argument has not been preserved for review. See Marks v. Tenbrunsel, 910 So.2d 1255, 1263 (Ala.2005) (“ ‘This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.’ ” (quoting Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992))), and Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002) (holding that it is a “settled rule that this Court does not address issues raised for the first time in a reply brief’).

Conclusion

We reject BCEMC’s argument that the plaintiffs could not succeed upon the merits of this case because the action should have been filed derivatively, and we hold that this action was properly brought as a direct action. In addition, we reject BCEMC’s argument that the trial court’s judgment violated the business-judgment rule, and BCEMC failed to preserve its argument that the trial court’s order im-permissibly interferes with the internal management of the corporation under this Court’s holding in Fairhope Single Tax Corp., 527 So.2d at 1236. Therefore, the judgment of the trial court is affirmed. Our disposition of this appeal renders moot BCEMC’s petition for the writ of mandamus, and we therefore deny the petition.

1040371 — AFFIRMED.

1040362 — PETITION DENIED.

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

LYONS and STUART, JJ., recuse themselves.

      . The individuals include J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton. Aubuiy L. Fuller, a defendant below, also served on the Cooperative's board of trustees; Fuller, however, is not a party on appeal.

      . The appellees include Robert Lee Catrett, Wesley Grant, John Gregg, David Harms, Da-vida Hastie, George P. Kaiser, Willard Penry, Henry Vick, and Cecil Ward.

      .The Cooperative’s bylaws state:
      "Any person, firm, association, corporation, or body politic or subdivision thereof will become a member of Baldwin County Electric Membership Corporation (hereinafter called the 'Cooperative') upon receipt of electric service from the Cooperative, provided that the person or entity has first:

        "(a) Made a written application for membership therein;
      "(b) Agreed to purchase from the Cooperative electric energy as hereinafter specified;
      "(c) Agreed to comply with and be bound by the articles of incorporation and bylaws of the Cooperative and any rules and regulations adopted by the board; and
      "(d) Paid the membership fee hereinafter specified.”

      . The bylaws of the Cooperative also state that "[t]he officers of the Cooperative shall be a President, Vice-President, Secretary, Treasurer, and such other officers as may be determined by the board from time to time.” Those officers are "elected annually by and from the board [of trustees].” In 2004, Steven P. Brill, the trustee representative from district 2, was selected by the board of trustees to serve as president of the Cooperative.

      . An amendment to the bylaws permitting the membership to vote in the election of trustees by mail was approved on July 22, 1999. Before this amendment, members were required to attend the annual meeting to vote in the election of trustees. The amended bylaws state:
      "Any member of record shall be entitled to only one vote upon each matter submitted to a vote of the members. Any member of record may vote in person or by mail on all matters requiring a vote of the membership, except for matters involving the disposition of Cooperative property pursuant to Article VIII hereof which requires that members vote in person.”

      . The bylaws state that "[parliamentary procedure as established by the last edition of Robert[']s Rules of Order shall govern all issues at the meetings of the members and trustees of the Cooperative.”

      . The trial court has not yet adjudicated the plaintiffs' request for a declaratory judgment or a permanent injunction. The complaint requested that a judgment be entered declaring:
      "1. That the Defendants be required to comply with the By-Laws of the corporation by following Robert[’]s Rules of Order in the election process.
      "2. That the By-Laws of the Baldwin County Electric Membership Corporation be amended to provide for a special or regular meeting of the membership to receive the nominating committee’s report for nominations of the trustees and to allow nominations from the floor prior to the vote of the membership for trustees at the annual meeting of the corporation.
      "3. That the president of the Baldwin County Electric Membership Corporation allow nominations from the floor at said special or regular meeting.
      "4. That the tabulation or votes for trustees be made by an independent accountant not employed by the corporation.”

      . The issuance of the preliminary injunction is an appealable order; Rule 4(a)(1)(A), Ala. R.App. P., provides that a party can appeal from "any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction.”

      . To maintain a derivative action, a plaintiff must first meet the procedural requirements set out in Rule 23.1, Ala. R. Civ. P. Rule 23.1 states that to maintain a derivative action, the plaintiff must "allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority....” See also James v. James, 768 So.2d 356, 360 (Ala.2000) ("Before a shareholder can be awarded damages on a derivative claim, the shareholder must make a presuit demand on the board of directors of the corporation to correct the wrongs alleged, so that the corporation can deal with the problems internally if possible.”). The plaintiff’s effort to obtain action from the board of directors is known as the "director demand.” Elgin v. Alfa Corp., 598 So.2d 807, 814 (Ala.1992).
      There is no evidence in the record indicating that the plaintiffs made a demand upon the board of trustees before filing this action. In addition, the plaintiffs did not allege in their complaint that they had made a demand upon the Cooperative's board of trustees. If the plaintiffs should have brought this action derivatively, as BCEMC contends, then the plaintiffs lack standing to maintain the action because no evidence was presented indicating that they met the director-demand requirement.

      . The bylaws of the Cooperative state that “[o]nly members of record shall be entitled to vote on matters submitted to a vote of the members. Each member of record shall be entitled to only one vote upon each matter submitted to a vote of the members.” See

        also § 37-6-9(b), Ala.Code 1975 ("Each member [of an electric cooperative] shall be entitled to one vote on each matter submitted to a vote at a meeting.").

      . Decisions from other jurisdictions support this holding. See Mueller v. Zimmer, 124 P.3d 340, 352 (Wyo.2005) (" 'As the name implies, a necessary predicate for the application of the business judgment rule is that the directors' decision be that of a business judgment and not a decision ... which construes and applies a statute and a corporate bylaw.' ” (quoting Lake Monticello Owners’ Ass’n v. Lake, 250 Va. 565, 571, 463 S.E.2d 652, 656 (1995))); Micheve, L.L.C. v. Wyndham Place at Freehold Condominium Ass’n, 381 N.J.Super. 148, 154, 885 A.2d 35, 39 (2005) (holding that ''the business judgment rule, which governs judicial review of decisions within the scope of [the association's] discretionary authority, has no applicability to this case” because the actions of the defendant violated the bylaws of the association); Matanuska Elec. Ass’n v. Waterman, 87 P.3d 820, 824 (Alaska 2004)(holding that "reliance on the business judgment rule [was] misplaced” in a case alleging that the board of directors of an electric cooperative violated the bylaws of the cooperative).


author: SEE, Justice.

text:
    Ex parte Tyne Z. COLEY. (In re Orliff C. Potts and Linda C. Potts, as personal representatives of the estate of Lindsay Faye Potts v. Tyne Z. Coley et al.).
    1050054.
    Supreme Court of Alabama.
    May 12, 2006.

      Ralph D. Gaines III and Shelley D. Lewis of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioner.
    M. Clay Ragsdale of Ragsdale LLC, Birmingham, for respondents.
   SEE, Justice.

Tyne Z. Coley petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to transfer this case to the Perry Circuit Court. We deny Coley’s petition.

Facts and Procedural History

In January 2003, a car driven by Tyne Z. Coley collided with a car parked partially in Coley’s lane of travel. The accident occurred in Perry County. A passenger in Coley’s car, Lindsay Faye Potts, died as a result of the injuries she sustained in the accident. At the time of the accident, Coley was a student at Judson College in Perry County. Coley had lived with her parents in Jefferson County before she began attending Judson College.

In January 2005, Lindsay’s parents, Or-liff C. Potts and Linda C. Potts, as personal representatives of Lindsay’s estate, filed a wrongful-death action against Coley and fictitiously named defendants in the Jefferson Circuit Court. Coley moved the trial court to transfer the case to Perry County. Coley argued that venue in Jefferson County is improper and that, even if venue is proper in Jefferson County, the action should be transferred to Perry County based on the doctrine of forum non conveniens. The trial court denied Coley’s motion to transfer the case. Coley petitions this Court for the writ of mandamus directing the trial court to transfer the action to the Perry Circuit Court.

Standard of Review

“This Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue.” Ex parte Perfection Siding, Inc., 882 So.2d 307, 310 (Ala.2003) (citing Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002)).

Analysis

I.

“ ‘When ruling on a motion to transfer venue, the trial court must determine whether venue was proper at the time the action was filed.’ ” Ex parte Ambrose, 813 So.2d 806, 810 (Ala.2001) (quoting Ex parte Canady, 563 So.2d 1024, 1025 (Ala.1990)).

“[P]ersonal actions [against individuals, other than for the recovery of land or on contracts,] if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.”

Ala.Code 1975, § 6 — 3—2(a)(3). There is no dispute that the accident giving rise to this action occurred in Perry County. Therefore, the action was properly brought in Jefferson County only if Jefferson County was the county of Coley’s permanent residence at the time the action was commenced.

Coley argues that the case was not properly brought in Jefferson County because, she says, Perry County was the county of her permanent residence when the action was commenced in January 2005. The Pottses argue that Coley’s county of permanent residence in January 2005 was Jefferson County, where she had resided with her parents before attending Judson College in Perry County.

“Generally, the terms ‘residence’ and ‘domicile’ are not considered synonymous .... However, when determining venue, most jurisdictions, including Alabama, do consider the terms synonymous .... The terms denote the place where the person is deemed in law to live and may not always be the place where the person is actually dwelling.”

Ex parte Sides, 594 So.2d 93, 95 (Ala.1992) (citing Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945)). Thus, our focus is on where Coley was domiciled, not on where she actually resided, at the time of the accident.

“A person’s domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact.”

Weissinger, 247 Ala. at 117, 22 So.2d at 514.

It appears that the parties concede that Coley’s domicile was Jefferson County before she began attending Judson College in September 2002. Thus, the question is whether Coley had, when this action was filed in January 2005, effectively changed her domicile to Perry County. In answering the question, the trial court was to consider whether Coley physically resided in Perry County and whether she had the intention to remain there permanently so that she had abandoned Jefferson County as her domicile. This Court has explained the two requirements as follows:

“A change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return. To the fact of residence in the new locality there must be the added element of the animus manendi before it can be said that the former domicile has been abandoned. The intention to return is usually of controlling importance in the determination of the whole question- Or ... there must be an absence of any present intention of not residing in the new domicile permanently or for an indefinite time.”

Weissinger, 247 Ala. at 117, 22 So.2d at 513.

Coley has the burden of establishing that she had abandoned Jefferson County as her county of residence and reestablished permanent residence in Perry County; the presumption is against a finding that she had. “One who asserts a change of domicile has the burden of establishing it_And ‘where facts are conflicting, the presumption is strongly in favor of an original, or former, domicile, as against an acquired one.’ ” Weissinger, 247 Ala. at 117, 22 So.2d at 514 (quoting 28 C.J.S. Domicile § 16).

We cannot conclude that the trial court exceeded its discretion in determining that Coley has not overcome the presumption that her domicile remained in Jefferson County while she was enrolled as a student at Judson College. Coley offered the following facts to the trial court, and argues them to this Court, in order to show that she had the requisite intention to change her county of permanent residence to Perry County. Coley graduated from Pinson High School in Jefferson County in 2002. In September 2002, she began attending Judson College in Perry County. Judson College requires its students to live in on-campus housing. Thus, from September 2002 through June 2005 (which encompasses the date of the accident) Coley lived on the campus of Judson College in Perry County. Coley also contends that she did not return to Jefferson County to visit her parents on weekends, but stayed with her parents at their second home, a farm in Perry County. Coley also contends that she did not return to Jefferson County during the summer months of her college years; instead, she either attended summer school at Judson College or worked at a camp in St. Clair County. Coley says that during those summers she spent only a night or two with her parents in Jefferson County. Coley also contends that she spent Thanksgiving and Christmas holidays at her parents’ farm in Perry County. Coley stated in her affidavit filed in February 2005 that she does not consider her parents’ home in Jefferson County to be her home; that she no longer has a bedroom there; and that she considers her permanent residence to be her parents’ farm in Perry County.

Coley further contends that she “is registered to vote in Perry County.” Coley includes her voter-registration card, which indicates that she was registered to vote in Perry County as of June 27, 2005, the date of her deposition, and also indicates “last change: 05/05/2005.” Coley does not state that she was registered to vote in Perry County as of January 2005, when this action was filed.

In support of their argument that in January 2005 Coley had not exhibited the intention to reside permanently in Perry County, the Pottses argue: (1) that Coley was registered to vote in Jefferson County when this action was filed; (2) that Coley’s bank accounts list her home address as being in Jefferson County; (3) that Coley represented to lenders that she was a resident of Jefferson County; (4) that Coley represented to the Internal Revenue Service and the Alabama Department of Revenue on her tax returns filed in April 2005 that she was a resident of Jefferson County; (5) that Coley represented to health-care providers that she was a resident of Jefferson County; (6) that Coley represented to the driver’s license division of the State of Alabama that she resided in Jefferson County when she renewed her driver’s license in October 2004; and (7) that Coley is a member of a church in Jefferson County. With respect to many of these records, Coley responds that the documents reflecting her Jefferson County address were accurate before she began attending Judson College in September 2002, but she just “never changed them.”

The evidence regarding Coley’s intention to abandon Jefferson County as her permanent residence and establish permanent residency in Perry County is conflicting. “[W]here facts are conflicting, the presumption is strongly in favor of an original, or former, domicile, as against an acquired one.” Weissinger, 247 Ala. at 117, 22 So.2d at 514. Because of the presumption against a change of domicile, the conflicting evidence as to domicile, and the fact that the burden rests on Coley to prove the change of domicile, we cannot conclude that the trial court erred in concluding that in January 2005 Coley had not abandoned Jefferson County as her county of permanent residence and established permanent residency in Perry County.

Coley argues that there is “no evidence to suggest that Coley ever intended to return to live with her parents in Jefferson County.” Coley cites Weissinger, which states that “[t]he intention to return is usually of controlling importance.” 247 Ala. at 117, 22 So.2d at 513. However, it is not the Pottses burden to come forth with evidence to show that Coley intended to return to live with her parents in Jefferson County. Instead, it is Coley’s burden to show that she had the intention to remain permanently, or indefinitely, in Perry County and that she did not intend to return to Jefferson County to live. We cannot disagree with the trial court that she failed to do so.

The burden is on Coley in this mandamus proceeding to demonstrate a “clear right” to the relief she seeks. We cannot conclude that Coley is clearly entitled to have this case transferred to Perry County-

II.

Coley argues in the alternative that, if this Court determines that venue is proper in Jefferson County, the action should nonetheless be transferred to Perry County based on the doctrine of forum non conveniens. Ala.Code 1975, § 6-3-21.1(a), states:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

It appears that the action “might have been properly filed” in Perry County, because the accident occurred there. See Ala.Code 1975, § 6-3-2. The parties do not argue this point. Thus, the trial court could properly transfer the case to Perry County “for the convenience of parties and witnesses, or in the interest of justice.” See Ala.Code 1975, § 6-3-21.1(a). As the Pottses correctly point out, Coley’s burden was to show the trial court that Perry County is a significantly more convenient forum than is Jefferson County. See Ex parte Perfection Siding, Inc., 882 So.2d at 312 (“The defendant must show that his inconvenience and expense in defending the action in the selected forum outweigh the plaintiffs right to choose the forum; that is, the defendant must suggest transfer to a county that is ‘significantly more convenient’ than the county in which the action was filed.”). Coley’s burden before this Court on mandamus review is to show that she is clearly entitled to a transfer to Perry County.

In support of her contention that a trial in Perry County would be more convenient for the witnesses, Coley contends that

“the Perry County law enforcement personnel who investigated the accident and will be called to testify at trial likely reside in Perry County. At least two key witnesses expected to be called at the trial of this case, Robert Grimes and Ryan Whisenant, are thought to reside in Perry County.”

Coley’s petition, p. 11. With respect to the convenience of the parties, Coley states:

“As of June 28, 2005, Coley was living in Perry County. Lastly it is believed that the [Pottses] still reside in Florida and have no connection to Jefferson County”

Coley’s petition, p. 11.

Coley has not met her burden. Coley merely points out that the accident occurred in Perry County and contends that some of the witnesses “likely” or are “thought to” reside in Perry County. As for the fact that the Pottses reside in Florida, the Pottses contend that it is actually more convenient for them to fly into Birmingham for the trial of the case in Jefferson County than to travel by automobile to Perry County. In addition, the Pottses contend that Coley now lives in the Birmingham area. Coley responds that she testified at her deposition in June 2005 that she considers her home address to be the farm in Uniontown in Perry County but that she is “living out of a suitcase.” The fact that she is “living out of a suitcase” does not support Coley’s argument that it would be significantly inconvenient for her to defend this case in Jefferson County. Nor do her assertions that certain witnesses “might” reside in Perry County or the fact that the Pottses reside in Florida support her argument that Perry County is a significantly more convenient forum than is Jefferson County.

Coley has not met her burden of showing that the inconvenience and expense of trying the ease in Jefferson County outweighs the Pottses’ right to choose the forum. Thus, we cannot conclude that the trial court exceeded its discretion in denying Coley’s motion for a change of venue to Perry County based on the doctrine of forum non conveniens.

Conclusion

Coley has not demonstrated to this Court that she is clearly entitled to the relief she seeks. We cannot conclude that the trial court exceeded its discretion in holding that Coley had not shown that she had abandoned Jefferson County as her county of permanent residence in favor of Perry County or in holding that Coley had not shown that Perry County is a significantly more convenient forum than is Jefferson County for the trial of this case. Accordingly, we must deny her petition for the writ of mandamus.

PETITION DENIED.

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

      . The Pottses sued as fictitiously named defendants “the driver(s) of the motor vehicle(s) whose negligence and/or wantonness caused the injuries to [Lindsay] on the occasion made the basis of this suit and/or are the principals, masters, or others having control over [Coley]'' and "those persons who negligently or wantonly entrusted the vehicle to [Coley].”

      2. "Facto et animo” means “in fact and intent.” Black's Law Dictionary 630 (8th ed.2004).

      3. "Animus manendi” means "[t]he intention to remain; the intention to establish a permanent residence.” Black's Law Dictionary 97 (8th ed.2004).

      . Coley graduated from Judson College in June 2005 and, according to the Pottses, returned to the Birmingham area. The Pottses say that Coley's postgraduation conduct indicates that she did not have the intention to permanently remain in Perry County. However, the pertinent question is whether Coley had effectively changed her domicile to Perry County at the time the Pottses filed this action.

      .Coley did return to her parents’ home in Jefferson County immediately after the accident and stayed there for two weeks.

      . Coley testified in her deposition that she registered to vote in Perry County in Januaiy 2005; however, she did not state the date on which she registered to vote. She stated that, before she registered to vote in Perry County, she was registered to vote in Jefferson County-

      . Coley apparently would have us focus on her intention or lack of intention to return to reside with her parents, instead of on her intention or lack of intention to return to reside in Jefferson County.