text:
    Patrick Douglas DENHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00725-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.

      Leslie S. Lee, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J., for the Court.

¶ 1. On November 17, 2005, Patrick Douglas Denham was convicted in the Circuit Court of Forrest County of burglary of a dwelling. On appeal, he argues that the trial court erred when it: (1) failed to exclude evidence of fingerprint comparison and results, (2) failed to exclude evidence of other crimes, (3) allowed an eyewitness to make an in-court identification, and (4) refused a jury instruction on inconsistent testimony. We find no error and affirm.

FACTS

¶ 2. On March 3, 2005, Nelson Peden went to lunch in Hattiesburg with his wife and mother-in-law, Shelia Mathis. After lunch, Peden decided to opt out of a planned shopping excursion and went to Mathis’s house to take a nap.

¶ 3. When he arrived at her house, Pe-den started to enter the house but instead decided to smoke a cigarette outside. While smoking, he saw a man fleeing the house to a car parked in the rear of the house. The car began to drive past Peden through the yard to the street at the front of the house. As the car passed him, Peden hurried to his vehicle. Peden pursued the vehicle for about two miles. At one point during the pursuit, the other car turned around and tried to run Peden off the road. After that, Peden lost sight of the vehicle and returned back to Mathis’s house. At some point during the chase, Peden called his wife and told her to call 911 because her mother’s house had been burglarized.

¶ 4. Upon returning, Peden gave an initial statement to Hattiesburg Police Officer Robert Teck. Within two hours, Peden arrived at the police station where he was asked to identify the man in the car from a five person photo lineup. He positively identified Denham as the man in the car. While at the station, he also gave Detective Wilson a written statement.

¶ 5. Meanwhile, Investigator Denise Ru-ple, a crime scene investigator for the Hat-tiesburg Police Department, was called to Mathis’s house to process the crime scene. During the course of her duties, she dusted the house for fingerprints. She found several fingerprints, including prints just inside the utility room window. The prints Ruple found were processed by the Mississippi Crime Laboratory. Paul Wilkerson, an expert fingerprint examiner, testified at trial and identified the print from inside the utility room window as belonging to Denham.

¶ 6. On November 16, 2005, the jury convicted Denham of burglary of a dwelling. He was sentenced as an habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections. Aggrieved by the conviction, Denham appeals and raises the following issues.

ANALYSIS

I. Whether the trial court erred when it failed to exclude evidence of fingerprint comparison and results.-

¶ 7. Denham claims the trial court erred in denying his motion in limine to exclude evidence of fingerprint comparison and their results. On November 15, 2005, the day before the trial, Denham’s counsel filed a motion to prohibit the introduction of any evidence of the fingerprint comparisons done in this case. Denham argued that the State only produced one examiner, Paul Wilkerson, when, according to the guidelines set forth in the Scientific Working Group on Friction Ridge Analysis, Study and Testing (SWGFAST), the testimony of two examiners is necessary for a valid- identification. Hence, Denham claims that the State’s failure to produce the other examiner, Jamie Bush, violated Denham’s Sixth Amendment right to confrontation. Prior to trial on November 16, the trial judge allowed argument on the motion and then denied the motion. The judge ruled that the failure to have both examiners present was a matter for cross-examination.

¶ 8. The standard of review for the admission or suppression of evidence is abuse of discretion. Haggerty v. Foster, 838 So.2d 948(¶ 25) (Miss.2002). The admission of expert testimony is within the sound discretion of the trial judge. Puckett v. State, 737 So.2d 322(¶ 57) (Miss.1999). However, the Sixth Amendment to the United States Constitution and Article Three, sections 14 and 26 of the Mississippi Constitution provide the accused with the right to confront those who testify against him. Denham claims the trial judge committed reversible error for admitting the testimony of Wilkerson and not requiring the State to also offer the testimony of Jamie Bush.

¶ 9. At trial, Ruple testified that she dusted a window for fingerprints which she believed to be the burglar’s point of entry. She transferred the prints onto a fingerprint card which was delivered to the Mississippi Crime Lab. Separately, Detective Jeff Byrd took Denham’s palm prints and fingerprints, which were also sent to the crime lab to be compared to the fingerprints found at the crime scene.

¶ 10. Paul Wilkerson, a latent fingerprint examiner at the Mississippi Crime Lab, was tendered as an expert in fingerprint identification with no objection. Wilkerson was asked to describe the procedure that the crime lab followed when prints were received. After he described the procedure, the following exchange occurred:

Q. The procedure that you just described, is that generally accepted in the realm of the scientific community, being forensic fingerprint lift of identification?
A. Yes, it is. That’s used in just about every scientific endeavor is those steps, whether it be forensics or not.
Q. Well, in this case was there in fact a second examiner? I think you indicated earlier that usually there are two guys that’s going to look at the same thing. Did that happen in this case?
A. Yes, it did. Actually, I was the verifier in this case but Jamie Bush did the initial examinations, and I did the verification.
Q. We don’t know who Jamie Bush is. Is he also someone employed by the Mississippi Crime Laboratory in that department?
A. Yes. Actually, he’s my boss. He’s the section chief for the latent print section. He is a certified latent print examiner. He’s at the Mississippi Crime Laboratory in Meridian.

Thereafter, Wilkerson testified that he reviewed Jamie Bush’s report and compared the fingerprints found at the crime scene with Denham’s known fingerprints. Wilkerson then offered this conclusion:

Q. Based on your examination of the known print card and the latent lift from the inside window of the utility room, which one of those three conclusions did you reach, sir?
A. LI, which was the inside of the window, was made by the left middle fingerprint of Patrick Denham to the exclusion of everybody else in the world.

¶ 11. Denham argues that he had a constitutional right to cross-examine the other expert who identified his print. Denham claims that Bush’s opinion was clearly testimonial under Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Hence, Denham urges this Court to grant him a new trial so that he may properly confront all the witnesses against him. Bell v. State, 928 So.2d 951, 960-61 (¶¶ 36-38) (Miss.Ct.App.2005).

¶ 12. Indeed, Denham has a constitutional right to be confronted with the witnesses who testify against him. U.S. Const. amend. VI; Miss. Const. of 1890, art. 3, § 26. This right applies to in-court testimony as well as testimonial hearsay, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Rubenstein v. State, 941 So.2d 735, 754(¶ 46) (Miss.2006) (citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). “[T]he purpose of the Confrontation Clause is ‘to advance the accuracy of the truth determining process ... by assuring that the trier of fact has a satisfactory basis for evaluating the trust of a prior statement.’ ” Id. (quoting Lanier v. State, 533 So.2d 473, 488 (Miss.1988)). In Rubenstein, the Mississippi Supreme Court held that the Confrontation Clause does not apply to non-testimonial hearsay. Rubenstein, 941 So.2d at 754(¶ 47).

¶ 13. There was no testimony or evidence from Bush. The jury heard only that Bush performed the initial fingerprint examination at the crime lab. Bush’s report was neither admitted into evidence nor were his findings ever presented to the jury. Accordingly, we find no merit to this issue.

II. Whether the trial court erred when it failed to exclude evidence of other crimes.

¶ 14. Denham next argues that the trial court abused its discretion when it allowed evidence of other crimes. More specifically, Denham challenges the admission of several photographs taken of him by Detective Nick Calico on a date prior to the burglary. Denham claims that the evidence unduly prejudiced him and should have been excluded under Mississippi Rule of Evidence 403 and Rule 404(b).

¶ 15. Denham argued that drivers are not stopped by police and photographed for no reason. The jury was thus aware that Denham was suspected of some crime for police officers to want to photograph him, his car, and his shoes. Detective Calico stopped Denham in early March of 2005. Calico testified that Denham was not engaged in any illegal conduct and was not ticketed on that day. Calico also testified he took pictures of Denham. At the hearing on the motion in limine, Denham’s counsel argued:

This burglary happened on March 3, 2005. Two days prior to this incident my client was stopped in Palmer’s Crossing with two other individuals in a green Buick vehicle. And the officers, as a result of their ongoing investigation separate from this case, took photographs of my client and the other individuals in the car, their shoes, and the vehicles. It’s believed that the State will intend to offer this into evidence in this case. We would state that this has no relevance whatsoever. It’s extremely prejudicial to my client. And furthermore, it would affect my cross-examination. There would be no way that I could cross-examine the officer that’s going to testify about this information without having to get into the fact that there were other burglaries involved that he may have been implicated in....

The trial judge ruled that “officers are allowed to testify as to how they develop suspects and everything else as long as they don’t bring in other bad acts that are going to — so I’m going to allow the testimony in that regard.”

¶ 16. Denham claims error by the trial judge because no on-the-record balancing test was conducted by the court, as required by Rule 403. In addition, Denham claims that the admission of the photographs and the testimony of Detective Calico was clearly prejudicial and tended to show evidence of other crimes, prior bad acts, and bad character of the appellant in violation of Rule 404(b). Hence, Denham argues that his rights to due process and a fair trial were violated.

¶ 17. The State counters by arguing that the Forrest County Sheriffs Department considered Denham a possible suspect in other burglaries the department was investigating. During the investigation of these burglaries, Sheriffs Deputy Nick Calico pulled Denham over and photographed him as well as his vehicle. As part of his decision, the trial judge determined that Calico would not reference the fact Denham was a possible suspect in other burglaries. In fact, Calico’s trial testimony revealed only that he had previously encountered Denham and had the opportunity to photograph him and his vehicle. The photo of Denham’s vehicle was entered into evidence. Peden identified Denham’s vehicle, depicted in the photo, as the vehicle in which Denham fled the crime scene.

¶ 18. The admissibility of evidence of other crimes or bad acts committed by the defendant is governed by Rule 404(b). White v. State, 842 So.2d 565, 573(¶ 24) (Miss.2003). “The reason for the rule is to prevent the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged.” Id. Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 404(b) provides:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 19. We find no unfair prejudice in Calico’s testimony. Likewise, we find that Calico’s testimony did not raise any evidence of Denham’s other crimes or bad acts. Calico testified that during his encounter with Denham he was not engaged in any illegal conduct. Accordingly, we find no merit to this issue.

III. Whether the trial court erred when it alloiued an eyewitness to make an in-court identification.

¶ 20. Denham argues that Peden’s testimony was tainted by the unduly suggestive out of court identification he made on the day of the crime. Within two hours of the burglary, Peden was asked to view a photographic line-up at the police station. Peden positively identified Denham, and he stated that he was one-hundred percent sure about his identification. The line-up included photographs of five individuals of the same race and sex. There is no indication that any improper emphasis was placed on any of the photographs. During the trial, Peden identified Denham as the man he chased from Mathis’ home.

¶ 21. “Pretrial photograph identifications have been generally upheld if the witnesses view the photographs separately and if there is no emphasis placed on certain photographs as opposed to others.” Isom v. State, 928 So.2d 840, 847(¶ 23) (Miss.2006) (quoting Burks v. State, 770 So.2d 960, 963 (Miss.2000)). In Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court discussed five factors to be considered in determining whether a lineup is impermissibly suggestive: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. However, for the trial court to consider the Biggers factors, the defendant must assert that the out-of-court identification was im-permissibly suggestive. Wilson v. State, 574 So.2d 1324, 1327 (Miss.1990) (citing Jones v. State, 504 So.2d 1196, 1199 (Miss.1987)). The Biggers factors may then be used “to determine whether the in-court identification is sufficiently reliable to overcome the taint of the prior improperly attained identification.” Ellis v. State, 667 So.2d 599, 605 (Miss.1995) (quoting Gayten v. State, 595 So.2d 409, 418 (Miss.1992)).

¶ 22. Here, Denham fails to state any reason or basis to claim why or how the photographic line-up was impermissibly suggestive. Instead, Denham moves directly to a Biggers analysis. Denham’s analysis actually tries to attack the credibility of Peden’s out-of-court and in-court identifications. This is a jury issue and the Biggers factors do not control this analysis. We find no merit to this issue.

IV. Whether the trial court improperly refused a jury instruction on inconsistent testimony.

¶ 23. Finally, Denham challenges the trial judge’s decision to refuse Den-ham’s instruction on inconsistent testimony. Denham offered the following instruction: “You have heard the evidence that Nelson Peden made statements prior to trial that are inconsistent with his testimony at this trial. If you believe inconsistent statements were made by Nelson Peden, you may consider, [sic] the inconsistencies in evaluating the believability of Nelsen [sic] Peden’s testimony.”

¶ 24. Denham argues that the Mississippi Supreme Court has held that a defendant is entitled to an inconsistent statement instruction where the witness has given a prior inconsistent statement. Ferrill v. State, 643 So.2d 501, 505-06 (Miss.1994). Conflicts between testimony of a witness and the written statement of a witness would justify such an instruction. In Wright v. State, 797 So.2d 1028, 1030-31 (¶¶ 11-13) (Miss.Ct.App.2001), similar to the case at bar, the trial judge refused an inconsistent statement instruction stating:

Wright had requested the trial court to instruct the jury that, in evaluating the credibility to assign to Deputy Campbell’s testimony, it should take into account the fact that he had made statements prior to the trial that were inconsistent with his trial testimony. The court refused the instruction saying that it was “a comment on the testimony of one witness as to one particular part of that one witness’s testimony. And for that reason the Court is refusing that instruction.”
The alleged inconsistency in Campbell’s pre-trial statement arose out of the fact that, in his written report shortly after the incident, Campbell had not mentioned seeing the defendant holding a shiny object while in the store nor had he reported seeing Wright throw such an object into the car before running away on foot.
We agree with Wright’s contention that it is not, as the trial court held, an improper comment on the testimony of a witness to instruct the jury regarding the proper effect to give to prior inconsistent statements by witnesses testifying at trial. Such instructions have been approved in a number of prior decisions of the Mississippi Supreme Court. See, e.g., Ferrill v. State, 643 So.2d 501, 505 (Miss.1994); McGee v. State, 608 So.2d 1129, 1135 (Miss.1992).

¶ 25. Denham was entitled to a jury instruction which presents his theory of the case, unless the instruction incorrectly states the law, is fairly covered elsewhere in the instructions, or lacks foundation in the evidence. Phillipson v. State, 943 So.2d 670, 671(¶ 6) (Miss.2006). If the instruction was granted, the trial judge would have concluded and informed the jury that Peden’s statements made prior to trial were inconsistent with his trial testimony. We have reviewed Peden’s pretrial statement and cannot find where any statements therein were inconsistent with his trial testimony. Accordingly, we find that the trial court was correct in refusing proposed instruction D-2 as having no foundation in the evidence.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AS AN HABITUAL OFFENDER AND SENTENCE TO SERVE A TERM OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PROBATION, PAROLE, OR EARLY RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Roger MURRAY d/b/a Twin River Auto Sales, Appellant, v. Tammy BLACKWELL, Appellee.
    No. 2006-CA-01373-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.
    David S. Van Every, Columbus, attorney for appellant.
    William L. Bambach, Columbus, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This case involves a Lowndes County contract dispute arising from the “as is” sale of a used automobile. The buyer sued the seller in county court for breach of the implied warranties of merchantability and fitness for a particular purpose. The Circuit Court of Lowndes County affirmed the county court’s judgment in favor of the buyer finding that the implied warranties may not be waived. The seller appeals to this Court and asserts that the trial court erred in finding that the buyer did not waive the implied warranties by executing a notice of exclusion or modification of implied warranty pursuant to Mississippi Code Annotated section 75 — 2—315.1(3)(a) (Rev.2002). We find error and reverse and remand for a new trial.

FACTS

¶ 2. On March 24, 1999, Tammy Blackwell purchased for $4,625 a 1989 Mazda 626 from Roger Murray d/b/a Twin River Auto Sales in Columbus, Mississippi. According to Mr. Murray, the vehicle had been driven approximately 140,000 miles when he sold it to Ms. Blackwell. At the time of purchase, Ms. Blackwell signed a notice of exclusion or modification of implied warranty (“as is” agreement). The “as is” agreement executed by the parties stated in part as follows:

UNDER MISSISSIPPI LAW, CONSUMERS ARE ENTITLED TO AN IMPLIED WARRANTY, WHICH MEANS THAT THE DEALER MAY BE RESPONSIBLE FOR MAKING REPAIRS TO DEFECTIVE VEHICLE EQUIPMENT THAT PRESENTLY EXISTS OR MAY OCCUR IN THE FUTURE. IF A MOTOR VEHICLE, IS OVER 6 MODEL YEARS OLD OR HAS BEEN DRIVEN MORE THAT 75,000 MILES, THIS IMPLIED WARRANTY MAY BE MODIFIED.
AS PROVIDED IN SECTION 75-2-315.1, MISSISSIPPI CODE OF 1972, ANNOTATED, THIS IS TO GIVE NOTICE THAT ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE INTENDED, COVERING THE VEHICLE IDENTIFIED BELOW, ARE HEREBY EXCLUDED OR MODIFIED AS FOLLOWS:

PLEASE CHECK ONE:

□ [checked] Vehicle sold As Is

□ 30-Day Warranty — Dealer Pays_%

□ Other (explain)_

¶ 3. Ms. Blackwell took possession of the car and made monthly payments to Mr. Murray until the car was paid in full on July 10, 2000. Beyond these facts, the circumstances surrounding the sale are in dispute.

¶ 4. Ms. Blackwell testified at trial that she noticed the 1989 vehicle “had a bad thump to it.” Her testimony is unclear as to when she noticed the thump. At one point she testified that she noticed the thump several days after she took possession of the car. Ms. Blackwell stated that she returned to Twin River Auto Sales to complain, whereupon Mr. Murray told her that he previously had the transmission worked on at Best Transmission and suggested that she take the car to Best Transmission for further repair since he had already paid them to repair the transmission. Ms. Blackwell testified that she took the car to Best Transmission for repairs and left it for a week or two. She stated that the thumping continued after she picked the car up and that she complained of the persistent problem each month when she went to Twin River Auto Sales to pay Mr. Murray.

¶ 5. Mr. Murray testified that Ms. Blackwell never complained that there was anything wrong with the car. He maintained that he never told Ms. Blackwell to take the car to Best Transmission for repairs or made any repairs to the car himself. Ms. Blackwell’s mother also testified and stated that she went to Mr. Murray’s with her daughter to make payments on the vehicle and that neither she nor Ms. Blackwell ever mentioned any problems with the car after its alleged service at Best Transmission.

¶ 6. Ms. Blackwell used the car until June 2001 when she took the car to Cott-man’s Transmission for repairs. Apparently, Ms. Blackwell was unable to pay for these services. The car was abandoned at Cottman’s on or about June 21, 2001, and eventually sold to satisfy a mechanic’s lien.

¶ 7. On February 15, 2002, Ms. Blackwell filed suit against Mr. Murray in county court for breach of the implied warranties of merchantability and fitness for a particular purpose. The county court entered a judgment in favor of Ms. Blackwell which found simply that Ms. Blackwell was entitled to a judgment against Mr. Murray in the amount of $4,900 plus all costs and post-judgment interest at the rate of eight percent until paid in full. Mr. Murray then appealed to the Lowndes County Circuit Court. In affirming the county court’s judgment,- the circuit court found that the implied warranties of merchantability and fitness for a particular purpose may not be waived.

STANDARD OF REVIEW

¶ 8. “The county court was the fact finder, and the circuit court, as well as this Court, are bound by the judgment of the county court if supported by substantial evidence and not manifestly wrong.” Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss.1990) (citations omitted).

DISCUSSION

I. Whether the trial court erred in finding that the implied warranties of merchantability and fitness for a particular purpose may not be waived in the sale of a late-model used vehicle?

¶ 9. Mr. Murray asserts that Ms. Blackwell effectively waived the implied warranties of merchantability and fitness for a particular purpose by executing the notice of exclusion or modification of implied warranty pursuant to Mississippi Code Annotated section 75 — 2—315.1 (3)(a) (Rev.2002). We agree.

¶ 10. Mississippi law recognizes two implied warranties in contracts for the sale of goods: the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. The implied warranty of merchantability arises under Mississippi Code Annotated section 75-2-314, which states in part that: “a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” Miss.Code Ann. § 75-2-314(1) (Rev.2002). The implied warranty of fitness for a particular purpose arises under Mississippi Code Annotated section 75-2-315, which provides in part that: “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.”

¶ 11. As a general rule, these implied warranties may not be waived or disclaimed. In this regard, Mississippi Code Annotated section 11-7-18 (Rev. 2004) provides in part: “Except as otherwise provided in Sections 75-2-314, 75-2-315, 75-2-315.1 and 75-2-719, there shall be no limitation of remedies or disclaimer of liability as to any implied warranty of merchantability or fitness for a particular purpose.” Similarly, Mississippi Code Annotated section 75-2-719(4) (Rev.2002) provides in part: “Any limitation of remedies which would deprive the buyer of a remedy to which he may be entitled for breach of an implied warranty of merchantability or fitness for a particular purpose shall be prohibited.”

¶ 12. Prior Mississippi cases interpreting these statutes in the context of a used car sale have held that the implied warranties of merchantability and fitness for a particular purpose apply to the sale of used vehicles and may not be waived or disclaimed. See Gast v. Rogers-Dingus Chevrolet, 585 So.2d 725, 728 (Miss.1991) (citing Beck Enterprises, Inc. v. Hester, 512 So.2d 672, 676 (Miss.1987)); Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So.2d 324, 327 (Miss.1988); State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 736 So.2d 384, 390(¶24) (Miss.Ct.App.1999). However, none of the above-cited cases considered the permissible disclaimer of implied warranties under section 75-2-315.1(3)(a). Therefore, this issue appears to be one of first impression in Mississippi.

¶ 13. In the instant case, we are mindful of seemingly well-established Mississippi precedent which holds that the implied warranties may not be waived or disclaimed in a contract for the sale of a used motor vehicle. However, we have no difficulty finding that Ms. Blackwell effectively waived the implied warranties by executing the “as is” agreement as contemplated by section 75 — 2—315.1 (3)(a) despite the general rule against disclaimer of implied warranties. Section 75-2-315.1 is specifically excepted from the non-disclaimer statute, section 11-7-18. See above. This fact, together with a plain reading of section 75-2-315.1 itself, makes abundantly clear that the legislature intended to permit the disclaimer of implied warranties in contracts for the sale of late-model used vehicles.

¶ 14. The execution of the “as is” agreement in the instant case complied with section 75-2-315.1 in all respects. The Mazda 626 was over six-years-old at the time of sale and thus subject to disclaimer of implied warranties under section 75-2-315.1(3)(a)(ii). The exclusion that was on the form proscribed by the Attorney General, in writing, mentioned merchantability and was conspicuous. Moreover, Ms. Blackwell testified that she signed and understood the “as is” agreement and its consequences. We, therefore, hold that the trial judge erred in finding that the implied warranties were not waived or disclaimed.

2. Express Warranty

¶ 15. The remaining inquiry in this case involves the effect of Mr. Murray’s alleged words or conduct regarding the repair of the vehicle subsequent to the sale. To this end, Ms. Blackwell claims that Mr. Murray made an additional express warranty to repair the thumping sound and, thereafter, breached this express warranty by failing to repair the defect.

¶ 16. Mr. Murray argues that, after Ms. Blackwell picked the vehicle up from Best Transmission, she failed to reject the vehicle under section 75-2-602 or to revoke her acceptance of the vehicle within a reasonable time under section 75-2-607. In support of this argument, Mr. Murray argues that Ms. Blackwell continued to use the vehicle for over two years after she picked the vehicle up from Best Transmission. Mr. Murray specifically points out that, during the two years of use, Ms. Blackwell bought new tires for the vehicle and pledged the vehicle’s title as collateral for a loan. Accordingly, Mr. Murray argues that Ms. Blackwell’s damages, if any, are limited to “the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted-” Miss.Code Ann. § 75-2-714(2).

¶ 17. The trial court made no finding pn these issues and the opinion of the circuit court addressed only the issue of waiver of implied warranties. We also note that the trial judge made no findings as to how the amount of damages was calculated and did not specify under which provision(s) of the uniform commercial code damages were awarded. As we are without a sufficient basis to review these issues, we reverse and remand for a new trial to consider the effect of Mr. Murray’s alleged statements concerning the repair of the vehicle and of Ms. Blackwell’s continued use of the vehicle.

¶ 18. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . This document, commonly referred to as an "as is” agreement, is a form document made available to used car dealers by the Attorney General of the State of Mississippi pursuant to Mississippi Code Annotated section 75-2-315.1.

      . Ms. Blackwell testified as follows:
      Mr. Murray had told me that he had already had a transmission done to the car which other people that noticed the bad thump in that car, they told me it was the transmission. I went to Mr. Murray and I told him also. He said well, I just got a transmission put in that car, so take it to Best Transmission who I had the people that was repairing this transmission and they will help you, you know, because I paid — I mean, that's the only thing he kept telling me: I paid them. I paid them.

      . Ms. Blackwell returned to Cottman’s at some point to setde the matter of payment and discovered that the garage had changed ownership and was now Gene’s Transmission. Ms. Blackwell later found out that Gene’s Transmission was owned and operated by the same person that owned Best Transmission and "didn’t feel that [she] should have to pay any extra money for a car that was supposed to have been fixed at first by Best Transmission.”

      . Section 75-2-315.1 provides in pertinent part:
      (1) Any oral or written language used by a seller of consumer goods and services, which attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer's remedies for breach of those warranties, is unenforceable. However, the seller may recover from the manufacturer any damages resulting from breach of the implied warranty of merchantability or fitness for a particular purpose.
      (2) Any oral or written language used by a manufacturer of consumer goods, which attempts to limit or modify a consumer’s remedies for breach of the manufacturer’s express warranties, is unenforceable.
      (3)(a) The provisions of this section do not apply to a motor vehicle:
      (i) Required to be titled under state law;
      (ii) That is over six (6) model years old or that has been driven more than seventy-five thousand (75,000) miles; and
      (iii) If, at the time of sale of the motor vehicle, the seller gives the purchaser notice of the inapplicability of this section on the form prescribed by the State Attorney General.
      (b)(i) An exclusion or modification of an implied warranty of merchantability, or any part of a warranty under this subsection shall be in writing, mention merchantability, and be conspicuous.
      (ii) An exclusion or modification of the implied warranty of fitness shall be in writing and conspicuous.
      (iii) Any exclusion or modification of either warranty shall be separately acknowledged by the signature of the buyer.

      . The contract of sale contained a merger clause which would ordinarily preclude oral testimony seeking to vary the terms of the written agreement. However, no objection was made to the testimony of Mr. Murray’s alleged statements.


author: LEE, P.J., BARNES, J.,

text:
    Harold C. GORDON, Jr., Appellant, v. Maggie McGEE, Katie Young, Rosie Del Harris, Velda S. Williams, Velmar S. Stallings, Tie Ron S. Randle, Sain S. Trotter, Eunice S. Haynes, Bobbie S. Tolon, Theodore Smith, Eckford Smith, Patrick Bibbs, Coleman Buress, Angela Buress, Linda Gail Young, Amy Denise Buress Miller, Carrie Jean Buress, Earleen Bibbs, Yolanda Randle, Tiffany Bibbs, Quentin Bibbs, Greta Bibbs, Billie Gillespie, Terry Gillespie, Linda Gillespie Davis; and Any and All Unknown Heirs of Minnie Bibbs, Appellees.
    No. 2006-CA-01367-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.
    Taylor Tucker, attorney for appellant.
    . Gary Goodwin, Columbus, attorney for appellees.

      Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On July 12, 2002, Harold Gordon filed a petition for determination of heir-ship and partition of real property in the Oktibbeha County Chancery Court. Gordon claimed certain interest in approximately eighty acres of real property owned by various members of the Bibbs family. On April 21, 2006, the chancellor entered a decree determining that Gordon owned an undivided one-eighth interest in the property. The chancellor also ordered a sale of the merchantable timber and a partition of the property once the timber was sold. A special commissioner was appointed to handle the timber sale. Eventually the timber was sold and funds were disbursed including $5,562.43 to Maggie McGee, one of the Bibbs heirs, for reimbursement of taxes.

¶2. Gordon now appeals to this Court asserting that the chancellor erred in determining that he only owned a one-eighth interest in the property and in authorizing the reimbursement of taxes to Maggie McGee in the amount of $5,562.43.

FACTS

¶ 3. Ed Bibbs obtained ownership of the real property in question in 1933. Ed and his wife Minnie had eight children, Patrick, Scott, Eddie, Katie, Annie, Maggie, Rosie and Ezell. Upon Ed’s death, which was sometime prior to March 25, 1950, this real property passed to his nine heirs in equal shares. Minnie and her eight children each owned a one-ninth interest in the real property. On March 25, 1950, seven of Ed’s nine heirs conveyed, via quitclaim deed, their interest in the property to Minnie. Ezell, spelled “Ezelle” in the deed, was not included and retained his one-ninth interest while Minnie then had eight-ninths interest. On July 11, 1974, Minnie conveyed the property, via quitclaim deed, back to all of her eight children, including Ezell, as tenants in common with equal parts.

¶ 4. Ezell later died and his heir at law, Ezell Bibbs, Jr., retained his interest in the property. On March 9, 1998, Ezell, Jr., sometimes referred to as “Ezil” in Gordon’s brief, conveyed his interest in the property, via warranty deed, to Gordon.

¶ 5. We note that there are numerous heirs involved in this case; however, since the issues in this case do not directly relate to any of the heirs specifically other than Minnie and Ezell, Jr., we do not find it necessary to include their names.

DISCUSSION

I. DID THE CHANCELLOR ERR IN DETERMINING GORDON’S INTEREST?

¶ 6. We first note that the appellees did not file a brief in this matter; thus, we have two options before us. The first is to take their failure to file a brief as a confession of error and reverse, which should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.” May v. May, 297 So.2d 912, 913 (Miss.1974). The second is to disregard the appellee’s error and affirm, which should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.” Id. Although the record is not large, we find that Gordon does make out a case of error and we must reverse.

¶ 7. Gordon argues that the chancellor erred in determining that he only had a one-eighth interest in the real property. Gordon claims that he has a one-ninth interest and a one-eighth interest in the property because Ezell kept his one-ninth interest in 1950 and also received another one-eighth share from Minnie in 1974. The chancellor found otherwise as follows: “[I]t was Minnie’s clear intention [in 1974] for all of her children to have an equal interest in the property after her deed to them. Therefore, Gordon has a one-eighth undivided interest in the property.”

¶ 8. In construing instruments of conveyance, “it is necessary under well recognized rules of construction that they be considered as a whole, and the intent of the parties be gathered from the plain and unambiguous language contained therein.” Rogers v. Morgan, 250 Miss. 9, 21, 164 So.2d 480, 484 (1964). “Clear, unambiguous instruments must be construed as written.” Whittington v. Whittington, 608 So.2d 1274, 1278 (Miss.1992). A deed can only convey title in land that the grantor actually possesses or owns. Williamson v. De Bruce, 213 Miss. 530, 534, 57 So.2d 167, 168-69 (1952). The 1950 deed wherein seven of the Bibbs children conveyed their property to Minnie clearly states, “The above described property is that which we inherited from our father, Ed Bibbs ... and the above grantor and grantees constitute all the heirs of said Ed Bibbs with the exception of Ezelle Bibbs.” The 1974 deed from Minnie conveyed the property to her eight children “as tenants in common with equal parts.” The phrase “with equal parts” and testimony from Minnie’s great-granddaughter, Angela Buress Stewart, stating that each child was to receive ten acres apiece, convinced the chancellor that each child received one-eighth interest. However, we find that Ezell clearly did not convey his interest back to his mother, Minnie, and that this one-ninth interest clearly passed to his son, Ezell, Jr. Thus, Minnie had only eight-ninths interest in the land in 1974 when she conveyed her interest to all eight children. Ezell received a one-eighth share from Minnie in 1974, which interest also passed to Ezell, Jr.

¶ 9. We find that the chancellor erred in finding that Gordon only owned a one-eighth interest. Gordon is entitled to the other one-ninth originally conveyed to Ezell in 1950; thus, we reverse and render. The chancellor had granted a stay of the distribution of the one-ninth interest pending appeal and Gordon is now entitled to that amount.

II. DID THE CHANCELLOR ERR IN AUTHORIZING THE REIMBURSEMENT OF TAXES TO MAGGIE MCGEE IN THE AMOUNT OF $5,562.43?

¶ 10. In his other issue on appeal, Gordon argues that the chancellor erred in awarding Maggie McGee the sum of $5,562.43 as reimbursement for taxes. Gordon states that McGee mailed a motion for reimbursement of payment of ad valo-rem property taxes on June 19, 2006, but that this motion was never filed. Gordon argues that the chancellor should not have considered the motion since it was never filed with the chancery clerk. According to the general chancery docket pages, Gordon is correct, this motion was not entered into the docket. The record before us does not contain any information regarding this motion other than the chancellor’s order approving the reimbursement and a statement during the June 21, 2006 hearing wherein this motion was referenced. We cannot say whether this amount was reasonable as there is nothing in the record to support such amount. This motion was not properly before the chancellor, and the appellees offer no evidence to support the chancellor’s findings; thus, we must also reverse and render on this issue.

¶ 11. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, GRIFFIS AND ROBERTS, JJ.

BARNES, J.,

Concurring:

¶ 12. While I concur with the conclusion reached by the majority, I write separately because I believe the amount of Gordon’s entire interest in the remaining property is unclear from the findings. I agree with the majority that Gordon retained his original one-ninth interest that was conveyed to Ezell in 1950. I also agree that Gordon inherited from Minnie a one-eighth interest in her portion of the entire estate. As Minnie’s portion was eight-ninths of the entire property, Gordon is entitled to another one-ninth interest in the entire property, meaning he now has a two-ninths share of the entire property. The remaining seven-ninths of the property is thereby left for equal distribution to the remaining seven children or their heirs.

CHANDLER, GRIFFIS AND ROBERTS, JJ., JOIN THIS OPINION.


author: SEE, Justice.

text:
    Ex parte James CULBRETH. (In re James Culbreth v. State of Alabama).
    1050510.
    Supreme Court of Alabama.
    Dec. 22, 2006.

      James Culbreth, pro se.
    Submitted on petitioner’s brief only.
   SEE, Justice.

Facts and Procedural History

James Culbreth was convicted in the Montgomery Circuit Court of the crime of sodomy. He was incarcerated pursuant to that conviction in a correctional facility in Tutwiler, Mississippi. On October 20, 2008, Culbreth petitioned the Montgomery Circuit Court for habeas corpus relief, “seeking credit for time he spent in jail in the State of Washington following his release on bond and his subsequent failure to appear for trial in Montgomery Circuit Court.” The Montgomery Circuit Court denied Culbreth’s habeas corpus petition, and Culbreth appealed. In an unpublished order, the Court of Criminal Appeals held that the Montgomery Circuit Court did not have jurisdiction over Culbreth’s habeas corpus petition because it was not the “nearest circuit court” as is required by § 15-21-6, Ala.Code 1975. The Court of Criminal Appeals for this reason held that the circuit court’s order was void for lack of jurisdiction, and it dismissed Culbreth’s appeal. Culbreth v. State (No. CR-04-2573, Dec. 5, 2005), 954 So.2d 1150 (Ala.Crim.App.2005) (table). We reverse the judgment of the Court of Criminal Appeals.

Issue

The issue in this case is whether the trial court had subject-matter jurisdiction under § 15-21-6, Ala.Code 1975, to dismiss Culbreth’s petition for the writ of habeas corpus.

Standard of Review

We review de novo whether the Montgomery Circuit Court had jurisdiction over Culbreth’s petition for the writ of habeas corpus. Solomon v. Liberty Nat'l Life Ins. Co., 953 So.2d 1211 (Ala.2006); State Dep’t of Revenue v. Arnold, 909 So.2d 192, 193 (Ala.2005).

Analysis

Section 15-21-6, Ala.Code 1975, requires that a petition for the writ of habeas corpus be filed in the proper court:

“(a) When the person is confined in a county jail or any other place on a charge of felony or under a commitment or an indictment for felony, the petition for a writ of habeas corpus must be addressed to the nearest circuit court judge.
“(b) When the person is confined in the penitentiary or under a sentence, judgment or order of the supreme court or the circuit court, other than an indictment for felony, the petition must be addressed to the nearest circuit court judge.
“(c) In all other cases, it may be addressed to any one of them, and when the person is confined in any other place than the county jail or the penitentiary and on any other than a criminal charge, it may be addressed to any circuit court judge.”

We first address whether § 15-21-6, Ala.Code 1975, imposes a jurisdictional requirement or a venue limitation. “Jurisdiction is ‘[a] court’s power to decide a case or issue a decree.’ ... In deciding whether [a petitioner’s] claim properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the [requisite] constitutional and statutory authority..."Ex parte Seymour, 946 So.2d 536 (Ala.2006). Venue, in contrast, addresses “[t]he county or other territory over which a trial court has jurisdiction.” Black’s Law Dictionary 1591 (8th ed.2004). All Alabama trial court judges have the power to issue writs of habeas corpus. Ex parte State ex rel. Shirley, 20 Ala.App. 473, 475, 103 So. 68, 69 (1925)(“While it is undoubtedly true that, when a party is confined in jail under a criminal charge, a petition for habeas corpus must be addressed to the nearest circuit court judge or to the probate judge of the county (Code 1923, § 4310), all circuit judges within the state have the power to issue writs of habeas corpus”). Thus, § 15-21-6, Ala.Code 1975, implicates not jurisdiction, but venue.

Venue can be waived, and any objection to improper venue is waived if not timely raised. See Rule 12(h)(1), Ala. R. Civ. P. (“A defense of ... improper venue ... is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a)[, Ala. R. Civ. P.,] to be made as a matter of course.”). In this case, the Court of Criminal Appeals’ order denying rehearing notes that the trial court “denied the petition on the ground that venue was improper”; however, Culbreth’s petition to this Court alleges that the State “never responded” in the trial court, and the State has not denied the allegation that it did not file an answer or other response in the trial court. Because there is an allegation that the State did not object to venue in the Montgomery Circuit Court and there is no indication before us to the contrary, any such objection the State might have to venue in the Montgomery Circuit Court has been waived.

Because § 15-21-6 limits venue, and not a circuit court’s jurisdiction, the circuit court had the power to rule on the merits of Culbreth’s petition, and the Court of Criminal Appeals erred in dismissing Cul-breth’s appeal on jurisdictional grounds. Moreover, any objection based on improper venue apparently has been waived. We therefore remand this case to the Court of Criminal Appeals for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and LYONS, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ„ concur.

      . It is unclear why Culbreth was incarcerated in Mississippi after having been convicted in Alabama. We note, however, that at the time of Culbreth's incarceration, Alabama was under a court order to reduce the number of inmates in its prisons. In an effort to ease prison overcrowding, the Alabama Department of Corrections contracted with several out-of-state facilities to house Alabama prisoners.


author: WISE, Judge.

text:
    James CULBRETH v. STATE of Alabama.
    CR-04-2573.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.

      James Culbreth, pro se.
    Albert Sim Butler and Kim T. Thomas, asst. gen. counsel, Department of Corrections, for appellee.
   On Remand from the Alabama Supreme Court

WISE, Judge.

The appellant, James Culbreth, an inmate at Easterling Correctional Facility, appeals from the circuit court’s denial of his petition for a writ of habeas corpus.

On October 20, 2003, Culbreth petitioned the Montgomery Circuit Court for a writ of habeas corpus seeking credit for time he spent in jail in the State of Washington following his release on bond and his subsequent failure to appear for trial in the Montgomery Circuit Court. On August 29, 2005, the circuit court denied the petition on the ground that venue in Montgomery County was improper, and further, because the relief sought by the appellant was cognizable in a Rule 32, Ala.R.Crim.P., petition — rather than in a habeas corpus petition. This appeal followed.

The relief sought by the appellant is cognizable in a petition for writ of habe-as corpus. See Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996); Swicegood v. State, 646 So.2d 158 (Ala.Crim.App.1993) (a petition for writ of habeas corpus is the proper method by which to test whether the state has correctly calculated the time an inmate must serve in prison). As we stated in Graves v. State, 710 So.2d 535 (Ala.Crim.App.1997):

“A petition for a writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time an inmate must serve in prison. Swicegood v. State, 646 So.2d 158 (Ala.Cr.App.1993). Section 15-18-5, Ala.Code 1975, requires that a convicted person be ‘credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.’ ”

710 So.2d at 536.

Culbreth claimed in his petition that he had been credited with 227 days of pretrial incarceration, representing the time Culbreth spent in the Montgomery County Detention Facility awaiting trial. However, Culbreth claims, the Department of Corrections failed to credit him with the time spent incarcerated in the State of Washington before he was returned to Alabama to face trial. The State did not refute Culbreth’s claim. Indeed, our examination of the record indicates that the State filed no response whatsoever to Culbreth’s petition. When the State fails to refute facts alleged by the petitioner, those facts must be taken as true. See, e.g., Dupaquier v. State, 814 So.2d 1008, 1010 (Ala.Crim.App.2001); Mintz v. State, 675 So.2d 1356, 1358 (Ala.Crim.App.1995); Boutwell v. State, 488 So.2d 33, 34 (Ala.Crim.App.1986).

This case does not involve a situation where Culbreth escaped from custody following conviction. If that were the case, he would not be entitled to credit for time spent incarcerated outside the State of Alabama. See § 15-18-6, Ala.Code 1975 (“An escapee from a state penal institution who is recaptured and returned to custody shall be credited with all of his actual time spent incarcerated within the State of Alabama prior to his transfer and return to the custody of the [Department] of Corrections.”); see also Boutwell v. Nagle, 861 F.2d 1530 (11th Cir.1988). Culbreth, however, had not yet been convicted. Instead, he was released on bond pending trial. When Culbreth failed to appear for his trial, a fugitive warrant was issued for his arrest. Thus, § 15-18-5, Ala.Code 1975, governs Culbreth’s case. This statute provides:

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the [Department] of Corrections.”

(Emphasis supplied.) Because § 15-18-5 does not limit credit to time spent incarcerated within the State of Alabama, Cul-breth is entitled to credit for the time he spent incarcerated in the State of Washington — if that incarceration occurred as a result of the fugitive warrant issued by the Montgomery Circuit Court when Culbreth failed to appear for his trial.

Based on the foregoing, we remand this case to the circuit court with instructions that that court conduct an evidentiary hearing on the claims raised in Culbreth’s petition. Following the evidentiary hearing, the circuit court shall make specific, written findings regarding those claims. If the circuit court determines that Cul-breth is entitled to a credit for additional time spent in jail, then it should so state and give Culbreth the additional credit against his sentence. The circuit court shall take all necessary action to ensure that the circuit clerk files a return to remand with this Court within 56 days after the release of this opinion. The return to remand shall include a transcript of the evidentiary hearing, any additional filings by the parties, the circuit court’s written findings of fact, and any other orders the circuit court may enter in connection with this case.

REMANDED WITH INSTRUCTIONS.

BASCHAB, P.J., and McMILLAN, SHAW, and WELCH, JJ„ concur.

      . Culbreth's petition was filed in the county in which he was originally convicted, rather than the county in which he is presently incarcerated. On January 5, 2006, this Court dismissed Culbreth’s appeal by an unpublished order, concluding that the circuit court lacked jurisdiction to rule on Culbreth's petition. The Alabama Supreme Court reversed this Court’s judgment, holding that the failure to object waived the issue of improper venue. Moreover, the Court concluded, improper venue did not deprive the Montgomery Circuit Court of subject-matter jurisdiction to review Culbreth's habeas corpus petition. Ex parte Culbreth, 966 So.2d 910 (Ala.2006).

       Note from the reporter of decisions: On April 20, 2007, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


author: LYONS, Justice.

text:
    Robin G. BARNETT, Candace Penry, and Jeffrey Barnett v. ESTATE OF Barbara C. ANDERSON. W. Perry Hall, guardian ad litem for minors Abby E. Reed, Ella K. Reed, Michael J. Barnett, Alexandra B. Penry, Sarah G. Penry, William G. Holmes, and Virginia A. Holmes v. Kathryn A. Reed and Gertrude A. Holmes Penton.
    1051676 and 1051829.
    Supreme Court of Alabama.
    March 16, 2007.

      Patrick B. Collins, Daphne, for appellants Robin Barnett, Candace Penry, and Jeffrey Barnett.
    W. Perry Hall of Kilborn, Roebuck & McDonald, Mobile, guardian ad litem for minors Abby E. Reed, Ella K. Reed, Michael J. Barnett, Alexandra B. Penry, Sarah G. Penry, William G. Holmes, and Virginia A. Holmes.
    Shirley M. Justice, Peter M. Wright, and Catherine L. Wilson of Sirote & Permutt, P.C., Mobile, for appellees Kathryn A. Reed and Gertrude A. Holmes Penton.
    Richard G. Alexander, Mobile, guardian ad litem for Anderson L. Reed and Kathryn K. Reed.
   LYONS, Justice.

These appeals are from a final order of the Mobile Circuit Court in a declaratory-judgment action in which the plaintiffs were seeking an interpretation and declaration of the legal effect of certain language contained in a will. We have consolidated the appeals for the purpose of writing one opinion.

I. Facts and Procedural History

The facts are undisputed. Barbara C. Anderson (“the testatrix”) died in 1970. Her will, executed on April 5, 1965, was admitted to probate in August 1970. The testatrix’s two daughters, Kathryn A. Reed and Gertrude A. Holmes Penton (hereinafter referred to collectively as “the daughters”) were issued letters testamentary as coexecutors for the estate. In July 2005 the daughters filed a petition for a declaratory judgment, seeking an interpretation and a declaration of the legal effect of item four of the testatrix’s will, which reads as follows:

“ITEM FOUR
“All the rest, residue and remainder of my property of every kind or nature, I GIVE, DEVISE AND BEQUEATH unto my two daughters, Gertrude Holmes and Kathryn Reed, to have and to hold share and share alike provided however that ‘The Farm’ adjacent to the extension of the Blackwell Nursery Road consisting of approximately three hundred acres shall not he sold during the terms of their natural lives and twenty-one years thereafter. Upon their deaths, title to ‘The Farm’ shall vest in the heirs of their bodies per stirpes, but not to be sold or otherwise disposed of for a period of twenty-one years succeeding the death of the survivor of my two daughters.”

(Emphasis added.)

Specifically, the daughters sought a judgment declaring that the language in item four restricting the sale of the farm was void as an unlawful restraint on the alienation of property and declaring that they owned the farm outright in fee simple. The petition lists the lineal descendants (20 children and grandchildren) of each daughter as necessary parties. Of the 17 living lineal descendants, the following filed separate and various motions, including motions in opposition to the petition as well as motions to dismiss it: Robin G. Barnett, Candace Penry, and Jeffrey Barnett (represented by Patrick Collins), and Abby E. Reed, Ella K. Reed, Michael J. Barnett, Alexander B. Penry, Sarah G. Penry, William G. Holmes, and Virginia A. Holmes (represented by guardian ad litem W. Perry Hall). Those lineal descendants who have objected to the daughters’ petition for a declaratory judgment are hereinafter referred to collectively as “the heirs.”

Following a hearing, the trial court entered a judgment declaring that the daughters owned the farm in fee simple, reasoning (1) that under § 35-4-2, Ala. Code 1975, all estates in land are presumed to be fee-simple estates unless there is clear and unambiguous language indicating that a lesser estate was intended; (2) that the will failed to reference a life estate; (3) that the language in the will was an attempt to create a common-law estate in fee tail, which by operation of § 35-4-3, Ala.Code 1975, is converted into an estate in fee simple; and (4) that the restriction in the will providing that the farm shall not be sold during the daughters’ natural lives and for 21 years thereafter was an unlawful restriction on the alienation of land and was therefore void as against public policy.

The heirs appeal, contending that trial court erred in concluding that the testatrix’s will did not evidence an intent to convey a lesser title to the farm than fee simple. Specifically, they argue that the trial court’s reliance on Hacker v. Carlisle, 388 So.2d 947 (Ala.1980), a case dealing with a deed rather than a will, is misplaced and that its judgment is due to be reversed. The daughters, on the other hand, claim that the language in the will conveys the farm to them in fee simple. The issue on appeal is whether the testatrix’s intent regarding the disposition of the farm can be ascertained from the four corners of her will. We conclude that it can.

II. Standard of Review

The operative facts in this case are undisputed, and we are presented with a pure question of law. Thus, “[t]his Court’s review of the application of the law to the undisputed facts is de novo.” Lyons v. Norris, 829 So.2d 748, 750 (Ala.2002).

III. Analysis

Section 35-4-2, Ala.Code 1975, provides: “Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.”

Regarding the construction of deeds, it is well settled that a deed is construed most strongly against the grant- or. See Moss v. Williams, 822 So.2d 392, 396-97 (Ala.2001) (“This Court has long recognized that § 35-4-2 is simply ‘a statutory affirmance of the general rule that a deed is construed most strongly against the grantor.’ ”). “[GJreater strictness is required in the construction of deeds than of wills.” Porter v. Henderson, 203 Ala. 312, 315, 82 So. 668, 671 (1919).

The law in Alabama regarding the interpretation of wills is well settled:

“[T]he intention of the testatrix is the law of the will, which the court should consider as a whole, giving effect to each provision where it is possible to do so; it is the court’s duty to carry out the testatrix’s intention where that intent can be ascertained. To determine the intent of a testator or testatrix, the court must look to the four corners of the instrument, and if the language is unambiguous and clearly expresses the testator’s or testatrix’s intent, then that language must govern. Galin v. Johnson, 457 So.2d 359 (Ala.1984). Where a will contains ambiguous or doubtful expressions, it is the duty of the court to determine what the testator or testatrix intended. Brittain v. Ingram, 282 Ala. 158, 209 So.2d 653 (1968).”

Born v. Clark, 662 So.2d 669, 671 (Ala.1995) (emphasis added). Therefore, the statutory presumption that every estate in land should be taken to be in fee simple unless it clearly appears otherwise, although applicable in the context of a will, must be read in that context in light of the rules governing ascertainment of the intent of the testatrix.

The trial court, relying primarily on Hacker, supra, found that the testatrix’s will in the instant case conveyed to the daughters fee-simple title to the farm based on the absence of any express reference in the will to a life estate. The trial court apparently reasoned that without such language there could be no intent on the testatrix’s part to convey a lesser estate than fee simple.

We find Hacker readily distinguishable. Hacker involved a deed executed in 1914 by Jasper Carlisle to his son, John Car-lisle. The deed contained the following handwritten clause: “It is understood that [John Carlisle] is not to sell above described lands but it is to go to his heirs.” 388 So.2d at 949. After John Carlisle died, his heirs sought an interpretation and declaration of the interest conveyed by the deed. The trial court found that Jasper Carlisle had conveyed a life estate to his son John Carlisle with a remainder interest in John’s heirs. This Court reversed the trial court’s judgment, concluding, in part, that the handwritten portion of the deed neither “clearly” nor “minimally” designated a life estate in order to overcome the presumption in favor of a conveyance of a fee-simple estate. In ascertaining the intent of Jasper Carlisle, this Court also relied upon the conduct of the parties after the conveyance, which confirmed Jasper Carlisle’s intent to convey a fee-simple estate. Hence, the language in the deed when viewed as a whole, coupled with the parties’ conduct, indicated that the estate conveyed was a fee-simple estate.

In keeping with the well-settled law of wills as opposed to deeds, our only inquiry is whether the testatrix’s intent can be ascertained from the four corners of the will or, in this case, from the four corners of item four in the will. Of course, a bequest in a will does not become effective until the death of the testatrix; thus, unlike the circumstances involving a deed as evidenced by Hacker, the occasion to evaluate the postdisposition conduct of the testatrix/grantor never presents itself.

The first provision in item four regarding the farm states that the farm “shall not be sold during the terms of [the daughters’] natural lives and twenty-one years thereafter.” (Emphasis added.) The daughters claim that this language is legally insufficient to create a life estate. The daughters, however, ignore the well-settled principle that a court has an obligation to consider the language of the entire will in order to ascertain the testatrix’s intent as to a particular provision. See McLean v. Brasfield, 460 So.2d 153, 155 (Ala.1984) (“The polestar to guide a court in the construction of a will is the intent of the testator and that intent should be determined by considering the instrument as a whole and not by construing any subpart separately.”). Standing alone, the language in the first provision may seem lacking in complete meaning, being silent as to the creation of a remainder interest in favor of others. However, when the first provision is read in conjunction with the second provision, which states that “[ujpon [the daughters’] deaths, title to ‘The Farm’ shall vest in the heirs of [the daughters’] bodies per stirpes,” the testatrix’s intent is clear. (Emphasis added.) The second provision shows that the testatrix did not intend for the daughters to have a fee-simple estate, and a reading of the first provision, in light of the second provision, imports that the testatrix intended the daughters to have only a life estate in the farm with a remainder interest to vest in the daughters’ heirs per stirpes. The language in both provisions, when read together, should be given its plain and ordinary meaning. In Prater v. Hughston, 202 Ala. 192, 193, 79 So. 564, 565 (1918), this Court stated:

“It may be true that, if clause 1 stood alone in a deed, it would be void for uncertainty, but wills are liberally construed so as to effectuate the intention of the testator, and must receive greater liberality of construction than is to be given to ordinary legal instruments.”

We find no language in item four of the testatrix’s will to suggest that the testatrix intended to convey the farm to the daughters outright in fee simple. Instead, the language imports that the testatrix intended to convey a lesser estate, and such intention overcomes the presumption set forth in § 35-4-2, Ala.Code 1975. Accordingly, the daughters have only a life estate in the farm and their heirs have a remainder interest therein.

The trial court also found that the language in the will stating that “[ujpon [the daughters’] deaths, title to ‘The Farm’ shall vest in the heirs of their bodies per stirpes, but not to be sold or otherwise disposed of for a period of twenty-one years succeeding the death of the survivor of my two daughters” was merely an attempt by the testatrix to create a fee tail, which is automatically converted by statute into a fee-simple estate. See § 35-4-3, Ala.Code 1975 (“Every estate in real or personal property in fee tail, now or hereafter created, becomes an estate in fee simple, and the person in whom such a conditional fee vests has the same power over the estate as in case of pure and absolute fees.”). Black’s Law Dictionary 650 (8th ed.2004) defines “fee tail” as “[a]n estate that is heritable only by specified descendants of the original grantee, and that endures until its current holder dies without issue (e.g., ‘to Albert and the heirs of his body’).” The trial court’s rationale presupposes the validity of its conclusion that the daughters otherwise hold a conditional fee-simple interest, as opposed to a mere life estate. Because we have determined that the daughters hold only a life estate, we need not address the effect of the statutory conversion of a conditional fee tail to a fee-simple estate that might otherwise be presented by such language.

We note that the trial court, after holding that the daughters held a fee-simple interest in the farm, declared void the restriction on the sale of the farm until 21 years after the death of the last of the two daughters to die. Because the trial court did not find that the heirs held any remainder interests, it therefore never answered the question of the effect, if any, of that restriction on the remaindermen. In other words, the premise upon which the trial court based its declaration that the restriction was void as an unlawful restriction on the alienation of land was based on an erroneous finding that the daughters held title in fee simple. We decline to review an issue, i.e., the effect, if any, of that restriction on the remaindermen, that was not considered by the trial court.

Based on the foregoing, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

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

      . The daughters' lineal descendants are: Mark B. Reed, Timothy P. Reed (deceased), Kathryn K. Reed, Anderson L. Reed, Damon Benjamin Reed, Byron Anderson Reed, Abby E. Reed, Ella K. Reed, Oliver W. George (deceased), Edward E. Holmes, Sr. (deceased), Robin G. Barnett, Candace G. Penry, Aimee H. Stone, Edward E. Holmes II, Jeffrey J. Barnett, Michael J. Barnett, Alexandra B. Penry, Sarah G. Peniy, William G. Holmes, and Virginia A. Holmes.

      . At some point during the proceedings below, Richard G. Alexander was appointed guardian ad litem for two minors who had previously been represented by W. Perry Hall: Anderson L. Reed and Kathryn K. Reed. Alexander, acting on behalf of these minors, filed a brief in these appeals, in essence adopting the daughters’ brief and taking the daughters' position on appeal.

      .The heirs also contend that the daughters' petition is barred by the statute of repose. Our resolution of the appeal in favor of the heirs on the issue of construction of the will renders it unnecessary to consider this alternative basis for reversing the trial court’s judgment.


author: SMITH, Justice.

text:
    Ex parte BAPTIST HEALTH SYSTEM, INC. (In re Baptist Health System, Inc. v. Ola Osborne).
    1041914.
    Supreme Court of Alabama.
    April 6, 2007.

      Michael M. Eley and Bart Harmon of Webb & Eley, P.C., Montgomery, for petitioner.
    E. Blake Hale Hardwieh, Oscar H. Hale, and Patrick B. Hale of Hale & Associates, LLC, Montgomery, for respondent.
    Gregory C. Cook, Ed R. Haden, Aaron L. Dettling, and Steven R. Parker of Balch & Bingham, LLP, Birmingham, for amicus curiae Alabama Council of Associated Workers’ Compensation Self-Insurers’ Funds, in support of the petitioner.
    David M. Wilson and Jonathan L. Ber-ryhill of Wilson & Berryhill, P.C., Birmingham, for amici curiae A.G.C. Fund, A.T.A. Fund, and Marshall Durbin, Inc., in support of the petitioner.
    William K. Abell and Arthur Leslie of Shinbaum, Abell, McLeod & Vann, P.C., Montgomery, for amicus curiae Alabama Trial Lawyers Association, in support of the respondent.
   SMITH, Justice.

Baptist Health System, Inc., petitioned for a writ of certiorari seeking review of the Court of Civil Appeals’ no-opinion af-firmance of an order of the Montgomery Circuit Court in a workers’ compensation case Ola Osborne brought against Baptist Health Baptist Health Sys., Inc. v. Osborne (No. 2030565, June 30, 2005), 945 So.2d 495 (Ala.Civ.App.2005) (table). We granted the petition, issued the writ, and directed the parties to submit briefs. Because the order of the trial court from which Baptist Health appealed is not a final judgment, however, we now quash the writ.

Facts and Procedural History

On September 12, 2000, Osborne filed a workers’ compensation action against Baptist Health in the Montgomery Circuit Court. Osborne’s claim was based on an on-the-job injury to her back she sustained on October 7, 1998, while working for Baptist Health. After a hearing at which the parties submitted evidence and presented testimony, the trial court entered an “order of judgment” setting forth its findings of fact and conclusions of law.

The trial court’s order required Baptist Health (1) to begin paying benefits to Osborne based on permanent total disability; (2) to pay Osborne a lump sum representing accrued temporary and permanent total-disability benefits; (3) to indemnify Osborne from any subrogation interest asserted against her; and (4) to pay all past, present, and future medical expenses related to Osborne’s treatment for her on-the-job injury, including reimbursing Osborne for any out-of-pocket medical expenses she actually incurred after February 11, 1999, the date Baptist Health refused to pay for additional medical treatment, until the date of the trial court’s order.

The Court of Civil Appeals affirmed the order of the trial court, without an opinion. This Court granted Baptist Health’s petition for a writ of certiorari.

Discussion

The merits of the substantive issues in this appeal have been extensively briefed by the parties and by amici curiae. Unfortunately, however, the order from which Baptist Health appeals is not a final judgment, and the Court of Civil Appeals therefore did not have jurisdiction to consider the merits of the underlying action.

“Although neither party has questioned [the Court of Civil Appeals’] appellate jurisdiction, we must consider whether [it had] jurisdiction over this appeal because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu’ ” Williams Power, Inc. v. Johnson, 880 So.2d 459, 461 (Ala.Civ.App.2003) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

“ ‘An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.’ Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). ‘[Wjithout a final judgment, this Court is without jurisdiction to hear an appeal.’ Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).”

Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006).

This Court has noted;

“[I]t must be remembered that ‘[d]am-ages are [an element] of a claim to vindicate a legal right.’ Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).
“ ‘Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.’ Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977). ‘That a judgment is not final when the amount of damages has not been fixed by it is unquestionable.’ ‘Automatic’ Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala.1977).”

Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361-62 (Ala.2004).

In Williams Power, the Court of Civil Appeals held that an order in a workers’ compensation case purporting to award damages for past medical expenses was not a final judgment, because the order did not specify the amount of those expenses. 880 So.2d at 460-61. The Court of Civil Appeals stated:

“ ‘It is well established that a final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable luithout resorting to extraneous facts.’

“Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (emphasis added). See, e.g., Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977) (‘Where the amount of damages is an issue ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.’). In this case, the amount of damages pertaining to past medical expenses was not specified by the trial court, and, thus, the appeal has been taken from a nonfinal judgment.

“In GAP Corp. v. Poston, 656 So.2d 1225 (Ala.Civ.App.1995), the issue before this court was the payment of medical expenses for the medical treatment rendered to the employee for his work-related injury. This court explained that ‘the trial court specifically detailed the periods of treatment and the corresponding amount of expenses; however, only a few of these amounts are reflected in the exhibits the worker submitted as evidence of the amount of medical expenses.’ Poston, 656 So.2d at 1228. This court concluded:

“ ‘Although the trial court did not err in its findings regarding the company’s liability for the medical treatments performed by Dr. Rodning, we are unable to determine if the trial court determined the correct amount of medical expenses from the record. We remand the cause for the trial court to determine the proper amount of medical expenses which are supported by the record.’
“Poston, 656 So.2d at 1228.'
“Unlike Poston, in the present case the trial court did not make an award of a sum certain for past medical expenses. Therefore, its order was not a final judgment. A nonfinal judgment will not support an appeal. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998). We therefore dismiss the appeal.”

880 So.2d at 461.

In this case, the trial court specified the amount of damages it was awarding to Osborne for permanent total disability and for accrued temporary and permanent total disability. By ordering Baptist Health to pay for all past medical expenses related to Osborne’s treatment since her on-the-job injury including reimbursing Osborne for any out-of-pocket medical expenses she incurred after February 11, 1999, until the date of the trial court’s order, the trial court determined that Baptist Health is liable for those past medical expenses. However, the trial court’s order does not state a sum certain representing the amount of those past medical expenses.

Because the trial court in this case has not specified the amount of damages to be awarded to Osborne for past medical expenses, the trial court has not rendered a final judgment that will support an appeal. Dzwonkowski, 892 So.2d at 361-62; Williams Power, 880 So.2d at 461. Consequently, the Court of Civil Appeals was without jurisdiction to issue its no-opinion affirmance of the trial court’s order, Hamilton, 959 So.2d at 642; Dzwonkowski, 892 So.2d at 361-62; Williams Power, 880 So.2d at 461; its order, therefore, is void. Boykin v. Law, 946 So.2d 838, 844 (Ala.2006) (“ ‘A lack of jurisdiction, either over the person or over the subject matter[,] renders a judgment void.’ ” (quoting Nigg v. Smith, 415 So.2d 1082, 1084 (Ala.1982))).

Because the judgment of the Court of Civil Appeals is void, Baptist Health still can pursue an appeal as a matter of right after the trial court’s judgment has been made final. The writ of certiorari is “issued to promote the ends of justice, no other adequate remedy being available.” Ex parte Sellers, 250 Ala. 87, 88, 33 So.2d 349, 350 (1948); see also Huggins v. State, 278 Ala. 18, 18, 174 So.2d 697, 697 (1965) (“The common-law writ of certiorari will not, in general, be issued ‘ “where the party has a remedy by appeal to correct the irregularity or injustice of which he complains.” ’ ” (quoting Alabama Great Southern R.R. v. Christian, 82 Ala. 307, 309, 1 So. 121, 122 (1887))).

Conclusion

The writ of certiorari previously issued is quashed.

WRIT QUASHED.

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

MURDOCK, J., recuses himself.

      . Amici curiae briefs have been filed by Alabama Council of Associated Workers’ Compensation Self-Insurers' Funds; the Associated General Contractors Workers Compensation Self-Insurers Fund, the Alabama Truckers Association Workers Compensation Self-Insurers Fund, and Marshall Durbin, Inc.; and the Alabama Trial Lawyers Association.


text:
    THE DUNES OF GP, L.L.C. v. Virginia BRADFORD.
    1051501.
    Supreme Court of Alabama.
    April 13, 2007.

      Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette, for appellant.
    Shawn T. Alves and J. Bradford Boyd Hicks of Stone, Granade & Crosby, P.C., Bay Minette, for appellee.
   SMITH, Justice.

The Dunes of GP, L.L.C. (“The Dunes”), appeals from the trial court’s denial of its motion to compel arbitration of an action against it filed by Virginia Bradford. We affirm.

Facts and Procedural History

In June 2004, Bradford entered into a preconstruction “purchase agreement” with The Dunes to buy a condominium unit in a development in Gulf Shores known as The Dunes Condominiums. The purchase agreement contained the following arbitration provision:

“Purchaser and Seller agree that all disputes between the parties which arise or remain unresolved after the closing shall be resolved by binding arbitration in accordance with Ala. Code Section 6-6-1, et seq., and the Resolution Resources Corporation Rules for Arbitration, as in effect on the date of the recordation of the Declaration. The decision of the arbitrator shall be final and the arbitrator shall have authority to award attorney’s fees and allocate the costs of arbitration as part of any final award.”

Bradford tendered $31,500 as an “initial earnest money deposit”; the earnest money was deposited with Gulf Shores Title Company, Inc. (“Gulf Shores Title”).

For reasons unclear from the record, Bradford and The Dunes never closed on the transaction. Subsequently, both Bradford and The Dunes sought to obtain the $31,500 in earnest money deposited with Gulf Shores Title.

On December 12, 2005, Gulf Shores Title filed an action interpleading Bradford and The Dunes and seeking a judgment declaring which of them was the rightful owner of the $31,500. The Dunes answered and filed a cross-claim against Bradford, asserting that it was entitled to the $31,500. Bradford filed an answer, a cross-claim against The Dunes, and a third-party complaint against various parties, seeking specific performance of the purchase agreement and damages for breach of contract, fraud, civil conspiracy, and unjust enrichment.

On April 13, 2006, The Dunes filed a motion to compel Bradford to submit her claims against it to arbitration pursuant to the arbitration provision in the purchase agreement. Bradford filed a response, and the trial court held a hearing on the motion. On June 13, 2006, the trial court denied The Dunes’ the motion. The Dunes appeals.

Standard of Review
“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:
“ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).

Discussion

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), provides that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable .... ” 9 U.S.C. § 2. The FAA “mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding contract that involves interstate commerce.” Ex parte Conference America, Inc., 713 So.2d 953, 955 (Ala.1998).

In support of its motion to compel arbitration, The Dunes submitted a copy of the purchase agreement, which contains the arbitration provision, along with various documentary evidence establishing that the transaction that formed the basis for the purchase agreement involved interstate commerce. Therefore, the burden then shifted to Bradford to produce evidence indicating that the arbitration agreement was not valid or that it did not apply to the dispute in question.

Bradford argues that the language of the arbitration provision limits its scope to either disputes that arise after the closing of the transaction or disputes that remain unresolved after the closing. Bradford testified in a affidavit opposing the motion to compel that because the parties never closed on the purchase of the condominium, the arbitration provision does not apply because the triggering event — the closing — never occurred. Bradford argues that she does not contest the validity of the arbitration provision; instead, she contends that by its language it simply does not apply to the dispute in question. The Dunes, on the other hand, argues that the arbitration provision covers disputes that arise before the closing.

“ ‘ “Agreements to arbitrate are essentially creatures of contract,” and ordinary contract rules govern the interpretation of arbitration provisions.’ Orkin Exterminating Co. v. Larkin, 857 So.2d 97, 103 (Ala.2003) (quoting Blount Int’l, Ltd. v. James River-Pennington, Inc., 618 So.2d 1344, 1346 (Ala.1993)). “When interpreting a contract, a court should give the terms of the contract their clear and plain meaning and should presume that the parties intended to do what the terms of the agreement clearly state.’ Brewbaker Motors, Inc. v. Belser, 776 So.2d 110, 112 (Ala.2000). Additionally, this Court will interpret the terms of a contract to give ‘effect to all terms used.’ Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995). See also Board of Water & Sewer Comm’rs of Mobile v. Bill Harbert Constr. Co., 870 So.2d 699, 710 (Ala.2003) (‘The law is settled that this Court is bound to construe contracts so as to give meaning to all provisions whenever possible.’).
“The duty to arbitrate is a contractual obligation, and ‘a party cannot be required to arbitrate any dispute that he or she has not agreed to submit to arbitration.’ [Georgia Power Co. v. Partin, 727 So.2d 2, 5 (Ala.1998) ].”

Medical Servs., LLC v. GMW & Co., [Ms. 1041753, December 15, 2006] — So.2d -,-(Ala.2006).

In interpreting an arbitration provision, “any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (emphasis added). “Thus, a motion to compel arbitration should not be denied ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an Interpretation that covers the asserted dispute.’ United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).” Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001) (emphasis added).

The Dunes’ argument is as follows:

“While the mandatory binding arbitration clause in the present contract is not artfully drafted, the doubt regarding its scope must be construed in favor of arbitration. A practical interpretation of the arbitration provision is that the provision was meant to govern disputes arising both before and after the closing. Specific performance is an obvious claim likely to arise out of a contract for the sale of real estate. It is unlikely that a seller would agree to arbitration but exclude specific performance from arbitration.”

The Dunes’ brief at 6.

Other than this paragraph, The Dunes does not explain how the language of the arbitration provision requires this “practical interpretation.” In any event, in construing a contract, this Court looks not for “a practical interpretation,” but to the intention of the parties. “The intention of the parties controls in construing a written contract and the intention of the parties is to be derived from the contract itself, where the language is plain and unambiguous.” Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993).

By its terms, the arbitration provision here is applicable to “all disputes between the parties which arise or remain unresolved after the closing.” In order to accept The Dunes’ argument that the arbitration provision covers the dispute in this case, we must interpret this phrase to mean that both (1) disputes that “arise” at any time and (2) disputes that “remain unresolved after closing” must be submitted to arbitration. Bradford, however, argues that the plain language of the provision indicates that it applies to (1) disputes that “arise” after closing and (2) disputes that “remain unresolved” after closing. In other words, Bradford would have the phrase “after closing” modify both the words “arise” and “remain unresolved.”

Normally, doubt regarding the scope of an arbitration provision would require this Court to construe the provision in favor of arbitration. See Moses H. Cone Mem’l Hosp., supra; Colquitt, supra. However, in construing a contract, we must give effect and meaning to all its terms and provisions, whenever possible. Medical Servs., — So.2d at-; Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995); and Board of Water & Sewer Comm’rs of Mobile v. Bill Harbert Constr. Co., 870 So.2d 699, 710 (Ala.2003). To read the arbitration provision to apply to those disputes that “arise” and also to separate disputes that “remain unresolved after closing” would render the second description unnecessary. Specifically, if parties must arbitrate all disputes that “arise,” then the parties must necessarily arbitrate disputes that “remain unresolved after closing” because such disputes have already arisen and are subject to arbitration. Thus, the phrase describing disputes that “remain unresolved” would be superfluous.

We must instead read the phrase to give all of its terms meaningful operation. Therefore, the phrase “after closing” must apply to or “modify” both disputes that arise after closing and disputes that re-mam unresolved after closing. This interpretation gives meaning to the all the terms in the arbitration provision.

The Dunes argues that paragraph 2.b. of the purchase agreement, which provides, in part, that the “holder” of the earnest money “shall disburse Earnest Money only as follows ... upon order of a court or arbitrator having jurisdiction over any dispute involving the Earnest Money ..indicates that the purchase agreement “contemplates” that an arbitrator would be involved in a dispute involving the earnest money. The Dunes raises this argument for the first time in its reply brief; therefore, it is not properly before us. See Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002) (noting the “settled rule that this Court does not address issues raised for the first time in a reply brief’).

Because the closing has not taken place, the arbitration provision is not applicable to the dispute between the parties. Therefore, the trial court did not err in denying The Dunes’ motion to compel arbitration.

AFFIRMED.

COBB, C.J., and SEE, WOODALL, and PARKER, JJ., concur.