author: BARNES, J.,

text:
    Cooper L. “Pete” MISSKELLEY, Appellant v. CARROLL COUNTY, Mississippi and Carroll/Montgomery Regional Correctional Facility, Appellees.
    No. 2009-CA-01054-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2010.

      Webb Franklin, Greenwood, attorney for appellant.
    Silas W. Mediaren, Sandra Denise Buchanan, Jackson, attorneys for appellees.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Cooper P. “Pete” Misskelley is the former warden of the Carroll County/Montgomery County Correctional Facility. When Misskelley became physically disabled and unable to perform his duties as warden, he requested his accrued catastrophic leave, a benefit granted by language contained in the correctional facility’s personnel policy handbook. His accrued leave totaled 275 days. However, the Board of Supervisors of Carroll County (the Board) approved only fifty-two days of catastrophic leave; the remaining 223 days were considered “creditable service” to his retirement plan since the Board considered Misskelley terminated from employment as of December 31, 2007. Misskelley filed a complaint against Carroll County and the Carroll County/Montgomery County Regional Correctional Facility (hereinafter referred to collectively as Carroll County), claiming that he should have received the remaining 223 days of accrued leave. Carroll County responded with a motion to dismiss and/ or, alternatively, a motion for summary judgment. The Circuit Court of Carroll County granted the motion, dismissing Mis Shelley’s claim with prejudice, and Misskelley now appeals. We affirm the circuit court’s judgment, finding that there was no genuine issue of material fact but that the Board correctly interpreted the personnel policy and that Misskelley was not entitled to the remaining catastrophic leave.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Misskelley entered into a written employment contract with Carroll County on January 20, 2004, to become the warden for the County’s recently constructed correctional facility. The initial term of the contract was for a period of one year beginning on January 1, 2004. The contract was to renew automatically on a yearly basis unless either party submitted a notice of termination sixty days prior the termination date of the contract or renewal. The contract also stated that Misskel-lejfs employment could be terminated “for reasonable cause” or “failure or refusal to adequately perform the duties” as warden.

¶ 3. Misskelley was also bound by Carroll County’s personnel policy handbook, which covered all correctional facility employees. The handbook had a clause that provided for catastrophic leave. The clause stated:

The Facility shall allow thirty (80) days per year (20 hours per month) for catastrophic injury or illness for employees and appointed officials. A catastrophic injury or illness means a severe condition or combination of conditions affecting the mental or physical health of an employee or member of an employee’s immediate family that requires the services of a licensed physician for an extended period of time and that forces the employee to exhaust all personal and sick leave that cannot be carried over into the next calendar year. Unused catastrophic leave shall be earned over into subsequent calendar years and any unused leave shall be counted as creditable service for the purposes of the retirement system upon termination of employment. Catastrophic leave can only be used by employees or appointed officials upon approval of the Sheriff of Carroll County and the Board of Supervisors of Carroll County. Catastrophic leave shall be retroactive to all current covered employees in the retirement system beginning at their date of employment with Carroll County.

(Emphasis added).

¶ 4. On April 24, 2007, Carroll County Sheriff Donald Gray wrote a letter to the Carroll County Chancery Clerk, stating that, effective April 22, 2007, Misskelley had resigned from his position as warden. According to Misskelley, the letter stemmed from his refusal to work with an insubordinate employee; however, he denies that he resigned. The following day, Sheriff Gray approved a final paycheck for Misskelley, totaling $14,800.80, which included his salary through April 30, 2007, and compensation for twenty-four days of unused vacation time and 193 hours of compensatory time. Due to Misskelley’s departure, two other employees resigned. On May 4, 2007, Sheriff Gray wrote a second letter to the chancery clerk informing him that Misskelley would be resuming his duties as warden, and the period between April 30, 2007, and May 7, 2007, would be considered an unpaid leave of absence. Misskelley never entered into a new written employment contract with Carroll County.

¶ 5. On November 5, 2007, Sheriff Gray submitted a letter to the Board requesting that catastrophic leave be granted for Misskelley. Attached to this request was a letter by Dr. Susan Neely, dated October 26, 2007, which stated that Misskelley suffered from severe arthritis and was unable to perform his duties as warden. She further recommended that a knee and hip replacement were necessary before Missk-elley could resume his duties. That same day, the Board met and unanimously approved Sheriff Gray’s request to pay Misskelley for his unused catastrophic leave, “pending determination of ending date.”

¶ 6. The following day, a new sheriff for Carroll County, Jerry Carver, was elected. Carver immediately hired a new warden for the correctional facility. On November 16, 2007, the Board approved catastrophic leave for Misskelley for the period of November 9, 2007, to December 31, 2007, “pending termination date.” (Emphasis added). Thus, Misskelley was paid for fifty-two days of his catastrophic leave. His remaining leave of 223 days was certified by the Board and submitted to the state’s Public Employment Retirement System (PERS) for consideration as “creditable service” under the terms of the personnel handbook policy. Misskelley, aggrieved by this result, appeared at the next Board meeting and stated that he was entitled to the entire 275 days of catastrophic leave; however, the record does not reflect that the Board took any further action regarding this matter. At the January 8, 2008, meeting, the Board approved the employment contract for the new warden.

¶ 7. On January 29, 2008, Misskelley filed a notice of claim and intention to file suit in accordance with Mississippi Code Annotated section 11-46-11 (Rev.2002) of the Mississippi Tort Claims Act (MTCA). Then, on June 18, 2008, Misskelley filed a complaint with the Carroll County Circuit Court, alleging that the Board’s failure to pay him for all of his accrued catastrophic leave “was unlawful, malicious, arbitrary, and in direct violation of Carroll County’s written personnel policy, and in violation of [Misskelley’s] contract of employment.” On January 14, 2009, Carroll County filed a motion to dismiss and/or, alternatively, a motion for summary judgment. Its position was that Misskelley’s claim was barred because: he failed to exhaust his administrative remedies and file a bill of exceptions pursuant to Mississippi Code Annotated section 11-51-75 (Rev.2002); his employment contract had terminated, making him an “at-will” employee; and the Board’s actions were in compliance with the catastrophic leave clause contained in the personnel policy handbook.

¶ 8. On May 29, 2009, the circuit court granted Carroll County’s motion for summary judgment. In its order, the circuit court stated that since Misskelley’s claim was a breach-of-contract claim under the MTCA, no bill of exceptions was necessary. The circuit court further found that Misskelley was not employed after December 31, 2007, and that the status of Missk-elley’s employment, whether contractual or at-will, was irrelevant as it pertained to the application of the catastrophic leave clause contained in the handbook. Finally, the circuit court held that the Board did not breach Misskelley’s contract and that the Board had followed Carroll County’s personnel policy in awarding the accrued catastrophic leave appropriately. The circuit court’s judgment was entered on June 25, 2009, dismissing Misskelley’s claim with prejudice, and Misskelley now appeals. Finding that no genuine issue of material fact exists that the Board properly interpreted the catastrophic leave policy, we affirm the circuit court’s grant of summary judgment.

STANDARD OF REVIEW

¶ 9. If a circuit court determines from “the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits,” that no genuine issue of material facts exists and that the movant is “entitled to judgment as a matter of law[,]” then a motion for summary judgment may be granted. United Plumbing & Heating Co., Inc. v. AmSouth Bank, 30 So.3d 343, 345 (¶ 4) (Miss.Ct.App.2009) (citing M.R.C.P. 56(c)). The movant has the burden to show that “no genuine issue of material fact[ ] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Howard v. City of Biloxi, 943 So.2d 751, 754 (¶ 4) (Miss.Ct.App.2006). This Court conducts a de novo review of a circuit court’s grant or denial of summary judgment. Duckworth v. Warren, 10 So.3d 433, 440 (¶ 22) (Miss.Ct.App.2009) (citing Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 15) (Miss.2006)).

I. Whether the circuit court erred in determining that Misskelley’s employment status was not relevant to his claim.

¶ 10. Misskelley submits that the resolution of the issue of his employment status was outcome determinative and should have been addressed by the circuit court. Admittedly, we find that there is a dispute of fact as to whether Misskelley resigned in April 2007; however, it is not a material issue pertinent to Misskelley’s actual substantive claim. Thus, we agree with the circuit court’s finding that the question of whether Misskelley had actually resigned in April 2007, making him an at-will employee, or whether he retained his status as a contract employee, was not relevant to the issue of whether he was entitled to payment for his accrued catastrophic leave.

¶ 11. The handbook was applicable to all employees of the correctional facility, whether their status was contractual or at-will. Misskelley, in his response to Carroll County’s motion for summary judgment, admitted as much, stating that “the issue of whether or not [he] was a contracted employee .... has no relevance to [his] claim that the County violated the terms of its catastrophic leave policy.” At the motion on the hearing for summary judgment, counsel for Misskelley, Webb Franklin, also agreed with the circuit court on this point, as follows:

BY THE COURT: Yeah, [Misskelley] is governed by the handbook. That is the point I’m trying to make. It doesn’t matter what his contract says. It’s, not, the terms of the contract are not at issue. It’s the terms of the handbook that are at issue. Isn’t that right?
BY MR. FRANKLIN: You are right. You are correct.
BY THE COURT: .... If to be hired in the first place, the Sheriff hired him, and he had to do so with the approval of the Board, then there may be some questions about whether or not this resignation letter was, in fact, a resignation letter or whether he was just placed on — then you get into a question of whether he claimed his back benefits during the time he was off and all like that. You have got some factual issues and things to determine there, but does it have anything to do with what I have got to determine here today in y’all’s motion?
BY MR. FRANKLIN: No, Your Honor. So we would certainly admit that he would have to take a credit against what he got paid for his sick leave. I mean obviously. We don’t deny that. We don’t dispute that argument.
BY THE COURT: Well, it also goes into ... if a determination is going to be made as to how he was employed, whether he was a contract employee or at will employment, that fact that he took those benefits at that time might have some relevance to that. But /all are not asking me to decide that[.]
BY MR. FRANKLIN: No.

Misskelley stated in his response to the motion for summary judgment, as well as at the hearing, that the issue of employment status would only be relevant as it pertains to the issue of attorney’s fees, if he succeeds on the breach-of-contract claim. Therefore, this issue was waived by Misskelley and is also without merit.

II. Whether the circuit court erred in finding that Carroll County did not breach Misskelley’s employment contract.

¶ 12. Misskelley contends that Carroll County’s failure to keep him in catastrophic-leave status and compensate him for the accrued 223 days constituted a breach of his employment contract as the personnel handbook was a part of his employment contract. However, the circuit court found that there was no breach of Misskelley’s employment contract.

¶ 13. The Mississippi Supreme Court has held that an employee policy manual “can create contractual obligations, even in the absence of a written agreement.” Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1088 (Miss.1987). Furthermore, “a written contract can be modified by a policy handbook which then becomes part of the contract, but only where the contract expressly provides that it will be performed in accordance with the policies, rules and regulations of the employer.” Id. (citing Robinson v. Bd. of Trs. of E. Cent. Junior Coll., 477 So.2d 1352, 1353 (Miss.1985)) (emphasis added). It is undisputed that Misskelley was bound by the terms of the personnel handbook.

¶ 14. In his original complaint, Misskel-ley contended that he should have remained employed and received his regular pay and benefits “until his leave status ha[d] expired.” He also requested reimbursement for private insurance that he was forced to obtain, damages for loss of retirement credit during the 223 days he was not on leave, damages for mental suffering and emotional distress, punitive damages, and attorney’s fees. Thus, Misskelley argues, in effect, that once he was placed on catastrophic leave, he was guaranteed employment through his accrued 275 days.

¶ 15. We cannot accept Misskelley’s interpretation as there is nothing in the handbook or Misskelley’s contract to support this claim. Misskelley has even confessed to this Court that “the case at bar is not a termination of employment case.” Misskelley’s counsel also admitted to the circuit court that he was no longer under the contract.

BY THE COURT: Okay. He is still under contract then under your interpretation, isn’t he?
BY MR. FRANKLIN: Well, no, sir. He is not because he is unable to perform his job. He has earned his catastrophic leave, and it has now expired, but he hasn’t been paid for it.

¶ 16. Moreovei’, Misskelley’s employment contract makes no mention of the employee handbook and its policies. Therefore, although the handbook’s catastrophic leave policy was legally binding between the County and Misskelley, the policy had no legal effect on Misskelley’s written employment contract. Misskelley admitted this fact at the hearing on the motion for summary judgment:

[BY MR. FRANKLIN]: All right. Now if I might, Mr. Misskelley, even if the Court should find that your contract, your written contract was [vitiated], under that portion of the policy, it wouldn’t really make any difference, would it?
[BY MR. MISSKELLEY]: I wouldn’t think so; no, sir.
[BY MR. FRANKLIN]: Why?
[BY MR. MISSKELLEY]: Because the personnel policy covered everybody including me.

After further discussion, counsel for Misskelley reiterated, as follows:

BY THE COURT: Yeah, he is governed by the handbook. That is the point I’m trying to make. It doesn’t matter what his contract says. It’s, not, the terms of the contract are not at issue. It’s the terms of the handbook that are at issue. Isn’t that right?
BY MR. FRANKLIN: You are right. You are correct.

¶ 17. Therefore, we find no error in the circuit court’s finding that the Board did not breach Misskelley’s employment contract in not awarding Misskelley his 223 days of accrued catastrophic leave.

III. Whether Misskelley’s employment was terminated by Carroll County.

¶ 18. Misskelley claims that his employment with Carroll County was never officially terminated as he was neither informed by the Board or Carroll County that he was terminated nor that he would not receive his entire 275 days of catastrophic leave. We find this assertion without merit. The circuit court found that Misskelley had notice of his termination based upon the fact that he appeared before the Board prior to December 31, 2007, to contest the Board’s termination of his leave status. The Board, on November 16, 2007, approved only fifty-two days of leave for Misskel-ley, pending termination date. The record supports the circuit court’s finding that Misskelley was aware of this decision by the Board, considering that he appeared before the Board at its next meeting to challenge its decision. As already noted, Misskelley’s counsel stated at the summary-judgment hearing that Misskel-ley was not under the written contract as he is still disabled and unable to perform his duties as warden — a fact that Misskel-ley also confirmed in his testimony. As the circuit court observed in its order, this violates Section Five of Misskelley’s employment contract, which states that the contract shall terminate upon the “[wjarden’s failure or refusal to adequately perform the duties of his employment.” Furthermore, Misskelley knew that a new warden had been hired, and he made no claim for salary after December 31, 2007.

¶ 19. Accordingly, we find nothing in the record to support that Misskelley was still employed by Carroll County after December 31, 2007.

IV. Whether the circuit court erred in its interpretation of the catastrophic-leave clause of Carroll County’s personnel policy.

¶ 20. The catastrophic-leave clause in the personnel policy handbook provided that, upon an employee’s termination, “any unused leave shall be counted as creditable service for the purposes of the retirement system[.]” Misskelley argues that this provision was meant for those employees who had not utilized their catastrophic leave due to illness or injury. Thus, he claims that since he was placed on leave prior to termination, he should have remained on leave for the remaining 223 days. In other words, he claims that his right to his accrued catastrophic leave had “vested.”

¶ 21. A vested right is “[a] right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person’s consent.” Black’s Law Dictionary 1438 (9th ed.2009). The personnel policy handbook clearly states that: “Catastrophic leave can only be used by employees or appointed officials upon approval of the Sheriff of Carroll County and the Board of Supervisors of Carroll County.” (Emphasis added). This language indicates that an employee’s use of his accrued catastrophic leave is not a vested right; rather, it is a benefit conferred by the Board and Sheriff on a discretionary basis. Further, there is nothing in the handbook that states the Board is required to approve the entire amount of leave accrued by an employee. The handbook clearly states that any leave not used by termination date was to be deemed “creditable service,” and the Board adhered to this policy.

¶ 22. Thus, we find no error in the circuit court’s interpretation of the catastrophic leave policy. As no genuine issue of material fact exists to show that the Board’s actions interpreting the policy were in error, we affirm the circuit court’s grant of summary judgment in favor of Carroll County.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF CARROLL COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ, CONCUR. MAXWELL, J., NOT PARTICIPATING.

      . This figure is the time accrued from Missk-elley’s original date of hire by Carroll County in April 1999.

      . The Mississippi Department of Corrections (MDOC) was also listed as a defendant in the original complaint, but Misskelley later conceded that he had no cause of action against the MDOC. As such, the circuit court submitted an order and final judgment on April 21, 2009, dismissing all claims against the MDOC; therefore, it is not a party to this appeal.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Carl Edward RAYFORD, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01160-COA.
    Court of Appeals of Mississippi.
    Oct. 19, 2010.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Carl Edward Rayford was found guilty of murder by a jury in the Harrison County Circuit Court. Rayford was sentenced to life in the custody of the Mississippi Department of Corrections. The trial court subsequently denied Rayford’s motion for a new trial. Rayford now appeals asserting that the evidence was insufficient to support the verdict, and the verdict is against the overwhelming weight of the evidence.

FACTS

¶ 2. On the morning of May 26, 2002, Rodney Terrell was walking to his job at Gulf Concrete when he was spotted by a friend, David Carter. Carter offered Terrell a ride, and Terrell accepted. After only a few blocks, Carter dropped Terrell off at another location in Gulfport, Mississippi, so Terrell could ride the rest of the way to work with a co-worker. Moses Brent was taking his garbage to the street when he saw Terrell exit Carter’s car. Brent saw Terrell walk to an apartment door in the complex across the street. As Terrell stood in front of apartment number five, Brent saw a man exit the same apartment and shoot Terrell five times with a handgun. After Terrell fell to the ground, Brent saw the man, later identified as Rayford, stand over Terrell and shoot him again. Brent immediately called 911. Brent stayed on the phone with the dispatcher to report Rayford’s subsequent actions.

¶ 3. Brent stated that Rayford reloaded his handgun, entered his apartment for a moment, exited his apartment wearing another shirt, got an assault rifle and ammunition from his truck, loaded the items in a Ford Mustang, and then drove away. Brent testified that Rayford conducted himself calmly and did not appear to be in a hurry.

¶ 4. Officer Greg Goodman, with the Gulfport Police Department, was dispatched to the scene and spotted Rayford’s Mustang. Officer Goodman attempted to block Rayford’s car, but Rayford accelerated and drove around the police car. Ray-ford was apprehended shortly thereafter. Officer Goodman stated that Rayford acted calmly and complied with police orders. In searching Rayford’s car, the police found a loaded handgun, a loaded assault rifle, and a canvas bag full of ammunition.

¶ 5. Officer Craig Peterson interviewed Rayford at the police station. Rayford stated that his co-workers had picked on him, and he had planned to quit that morning.

¶ 6. Rayford’s boss at Gulf Concrete testified that he never received any reports of a conflict between Rayford and Terrell. One of Rayford’s co-workers testified that Rayford was quiet and did not interact often with the other employees. There was testimony that the other employees sometimes picked on Rayford. Rayford’s landlord testified that Rayford mentioned several times that he had problems with his co-workers, but Rayford never revealed anything specific. Rayford’s sister testified that Rayford had told her he was picked on by his co-workers and that he was going to quit.

¶ 7. During trial, Rayford raised the defense of insanity. Rayford had a history of mental illness, having been first diagnosed with chronic depression in 1994. On one occasion Rayford had been prescribed antidepressant medication, but it is unclear how often Rayford took his medication. Rayford previously had attempted suicide on several occassions. Two experts testified concerning Rayford’s mental illness: Dr. Anthony Stock testified on behalf of Rayford, and Dr. Henry Maggio testified for the State.

DISCUSSION

I. LEGAL SUFFICIENCY OF THE EVIDENCE

¶ 8. In his first issue on appeal, Rayford argues that the evidence was insufficient to support the guilty verdict. Specifically, Rayford contends that the State did not prove beyond a reasonable doubt that he was legally sane at the time he shot Terrell. Mississippi still follows the M’Naghten test for determining whether a person was sane at the time of the crime. Woodham v. State, 800 So.2d 1148, 1158 (¶ 29) (Miss.2001). Under the M’Naghten test, the accused must be “laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it, that he did not know that what he was doing was wrong.” Roundtree v. State, 568 So.2d 1173, 1181 (Miss.1990). The accused must not have known right from wrong at the time of the offense. Woodham, 800 So.2d at 1158 (¶ 29). The question of “a defendant’s sanity is within the province of the jury, which may accept or reject expert and lay testimony.” Id. A defendant is presumed sane until a reasonable doubt of sanity is created. Roundtree, 568 So.2d at 1181. Once a reasonable doubt of sanity is raised, the State bears the burden to prove the defendant’s sanity beyond a reasonable doubt. Id.

¶ 9. Dr. Stock, a psychiatrist, testified on behalf of Rayford. Dr. Stock examined Rayford for approximately one hour one year after the crime. Dr. Stock testified that Rayford was responsive during the examination and gave logical answers in response to the questions. Dr. Stock testified that Rayford had suffered from depression throughout his life and had attempted suicide five times. Dr. Stock diagnosed Rayford with major depression with severe psychotic findings. Dr. Stock opined that at the time of the murder, Rayford suffered from a brief psychotic episode and was unable to understand the nature and quality of his acts or know the difference between right and wrong. Rayford told Dr. Stock that on the day of the murder, when Rayford saw Terrell, he had an emotional surge of anger and then saw blood. Rayford told Dr. Stock that he was “floating out of his body.” Dr. Stock testified that Rayford was of “unsound mind at the time [of the murder] based upon the way [Rayford] reported the events of the day.”

¶ 10. Dr. Stock admitted that he had not been provided with the police reports and was unaware that there was an eyewitness to Rayford’s actions. Dr. Stock admitted that Rayford’s actions after the shooting could be perceived as purposeful actions, such that Rayford knew what he had done was wrong. In Dr. Stock’s report, he opined that Rayford “may” have been experiencing a “micro-psychotic event.” Dr. Stock noted that his diagnosis should be “substantiated through an extensive and full forensic evaluation.”

¶ 11. Dr. Maggio, a psychiatrist, testified for the State. Dr. Maggio also examined Rayford more than a year after the murder. Dr. Maggio reviewed Rayford’s medical records as well as court documents related to the case. Dr. Maggio opined that Rayford’s actions after the shooting were not the result of impulse. Dr. Maggio admitted that Rayford suffered from major depressive disorder, but he determined that Rayford knew the difference between right and wrong. Dr. Maggio noted that there was nothing in Rayford’s medical history to suggest prior psychotic episodes.

¶ 12. Both Dr. Stock and Dr. Maggio noted that Rayford complained in the past of having hallucinations. However, it is not evident that Rayford was having hallucinations on the day of Terrell’s murder.

¶ 13. We will not reverse a jury’s finding that a defendant was legally sane at the time of the crime if there is substantial evidence to support such a finding. Woodham, 800 So.2d at, 1159 (¶ 31). In addition to Dr. Maggio’s testimony, there was evidence that: Rayford was upset with his co-workers; Rayford had trouble sleeping prior to the murder because of his relationship with his co-workers; and Ray-ford acted purposefully immediately after shooting Terrell. The jury did not find that the evidence supported a finding of insanity. Finding substantial evidence to support the jury’s verdict, we find this issue is without merit.

II. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 14. Rayford also argues that the overwhelming weight of the evidence did not support a guilty verdict. This Court will “only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Here, the evidence presented by the State proved Rayford was legally sane at the time of the crime beyond a reasonable doubt. We cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 15. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: COBB, Chief Justice.

text:
    William H. PHILLIPS v. Lew DICKEY et al.
    1061046.
    Supreme Court of Alabama.
    April 24, 2009.
    Rehearing Denied April 16, 2010.
    E.J. Saad, David F. Walker, and Jason Gerth of Crosby Saad LLC, Mobile, for appellant.
    Edward S. Sledge III and W. Craig Hamilton of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for appellees Lew Dickey, Cumulus Broadcasting LLC, Cumulus Licensing LLC, and Cumulus Media, Inc.
    Henry A. Callaway III and Rodney R. Cate of Hand Arendall, LLC, Mobile, for appellees .Com + , L.L.C., and Ken Johnson.
   COBB, Chief Justice.

William H. Phillips, the plaintiff in an action in the Mobile Circuit Court alleging civil conspiracy and tortious interference with a business relationship, appeals from summary judgments in favor of Ken Johnson, .Com + , L.L.C., Lew Dickey, Cumulus Licensing, L.L.C., Cumulus Broadcasting, L.L.C., and Cumulus Media, Inc. Because the Mobile Circuit Court lacked jurisdiction of the matter, we vacate the summary judgments, dismiss this appeal, and dismiss the action.

This case has its genesis in a dispute between Barry Wood and Phillips over ownership interests in Baldwin Broadcasting Company (hereinafter “Baldwin”), which owned and operated FM radio broadcast stations WAVH in Daphne and WZEW in Fairhope. Phillips contended that Baldwin was a partnership between Wood and Phillips; Wood contended that Phillips was an employee of Baldwin. This Court has considered that case on two occasions. See Wood v. Phillips, 823 So.2d 648 (Ala.2001) (“Wood I”), and Wood v. Phillips, 849 So.2d 951 (Ala.2002) (“Wood II”). The facts surrounding the dispute are fully set forth in Wood I and Wood II.

In 1999, Cumulus Broadcasting Company (now Cumulus Broadcasting, L.L.C.) offered to purchase WAVH and WZEW, the two radio stations owned by Baldwin. Subsequently Phillips sued Wood in a dispute over ownership interests in Baldwin. On November 3, 2000, Wood filed a petition in bankruptcy in the United States District Court for the Eastern District of Virginia. While Wood’s bankruptcy proceeding was pending, a jury in the state-court action returned a verdict in favor of Phillips, finding that he had a 40% partnership interest in Baldwin. Wood appealed to this Court. Wood II. While Wood II was pending on appeal before this Court, the bankruptcy court ordered an auction of Wood’s assets, including the radio stations. In conjunction with the sale of the radio stations, Woods and Phillips entered into a settlement agreement, pursuant to which Phillips would receive a percentage of the proceeds from the sale of the stations. The settlement agreement also stated that Wood and Phillips would ask the trial court to modify its order “to clarify that the partnership found by the jury was [Baldwin Broadcasting Company partnership] and that such entity did not own the licenses (the ‘McDermott Order’),” which, the agreement stated, “always have been held by the sole proprietorship Baldwin Broadcasting Company.” The settlement agreement further provided that Wood would request dismissal of his appeal before this Court. On May 14, 2002, .Com+, L.L.C., entered into one, and Cumulus Broadcasting, L.L.C., and Cumulus Licensing, L.L.C., entered into another, “Amended and Restated Asset Purchase Agreement” with Wood.. Com 4-, L.L.C., was proposing to purchase WZEW, and Cumulus Broadcasting, L.L.C., and Cumulus Licensing, L.L.C., were proposing to purchase WAVH. Both asset-purchase agreements contained escalation clauses if the sale of the radio stations did not close by December 31, 2002. Both asset-purchase agreements also stated that the agreements could be terminated at any time by the mutual written consent of the seller and buyer, by written notice to the other party if the buyer or seller breached any material representations or warranties or defaults on its agreements, by written notice of either party if the FCC denied the FCC application, or by written notice of either party if the closing was not consummated by the expiration of the local-marketing agreements.

On May 15, 2002, the United States Bankruptcy Court for the Eastern District of Virginia entered an order confirming Wood’s amended plan of reorganization, approving the asset-purchase agreements, which incorporated the settlement agreement, and approving the sale of the radio stations. The bankruptcy court’s order contained the following provisions:

“6. The Plan is binding upon all parties in interest, regardless of whether the claims of interests of such parties are impaired or unimpaired, regardless of whether the holders of such claims or interests have accepted the Plan, and regardless of whether the holders of such claims or interests have filed proofs of claim or interest.
“9. The Court retains jurisdiction over this matter in accordance with the terms of the Plan and as otherwise provided by applicable law.
“34. This Court retains jurisdiction to enforce and implement the terms and provisions of the Plan, this Order, the Asset Purchase Agreements, and the Bid Procedures Order, all amendments thereto, any waivers and consents thereunder, and of each of the agreements executed in connection therewith in all respects, including, but not limited to, retaining jurisdiction to: (a) compel delivery of the Assets to [Cumulus Broadcasting, L.L.C., and Cumulus Licensing, L.L.C.,] and [.Com + , L.L.C.]; (b) resolve any disputes arising under, or related to, the Asset Purchase Agreements, this Order and the Bid Procedures Order; (c) interpret, implement, and enforce the provisions of this Order and the Bid Procedures Order; and (d) protect Cumulus and [.Com + , L.L.C.,] against any kind or nature of Encumbrance whatsoever (except those contemplated by the Plan and the Sale).”

After entering into the settlement agreement, the parties failed to have the trial court enter the order referred to in that agreement as the McDermott Order. Wood also failed to ask this Court to dismiss his appeal as he agreed to do in the settlement agreement, and on November 8, 2002, this Court reversed the trial court’s judgment holding that Phillips was a partner in Baldwin and remanded the cause to the trial court for a new trial. Wood II.

By May 2004, the local-marketing agreements had expired, and the FCC had yet to approve the application to transfer the FCC licenses to facilitate the sale of the radio stations. On September 9, 2004, Cumulus Broadcasting, L.L.C., and Cumulus Licensing, L.L.C., gave Wood notice of their termination of the WAVH asset-purchase agreement, and .Com + , L.L.C., gave Wood notice of its termination of the WZEW asset-purchase agreement on January 20, 2005. Wood subsequently moved the bankruptcy court to terminate the settlement agreement between him and Phillips, and the bankruptcy court scheduled a hearing on May 20, 2005. Before the hearing in the bankruptcy proceeding, Dickey, president of Cumulus Media, and Johnson, president of .Com + , L.L.C., were deposed. The attorney representing Phillips in the bankruptcy proceeding was present either in person or by telephone during both depositions. Phillips alleges that the deposition testimony of both individuals indicated an agreement between Cumulus Broadcasting, L.L.C., Cumulus Licensing, L.L.C., .Com + , L.L.C., and Wood to convince the bankruptcy court to set aside the sale of the radio stations in part so that Wood, following this Court’s decision in Wood II, would not have to pay Phillips a percentage of the proceeds of the sale of the radio stations.

At the hearing before the bankruptcy court, Phillips failed to bring to the court’s attention Dickey’s and Johnson’s deposition testimony regarding an alleged quid pro quo between Wood and Cumulus Broadcasting, L.L.C., and Cumulus Licensing, L.L.C., and Wood and .Com + , L.L.C., regarding the asset-purchase agreements and the sale of WAVH and WZEW. The bankruptcy court subsequently held that intervening circumstances prohibited the closing of the sale of the radio stations and, thus, that the settlement agreement between Woods and Phillips was to be set aside.

On September 8, 2006, Phillips instituted the present action against Dickey, Cumulus Licensing, L.L.C., Cumulus Broadcasting, L.L.C., Cumulus Media, Inc., Wood, Johnson, and .Com + , L.L.C., alleging that Dickey, Johnson, the Cumulus entities, and .Com + , L.L.C., had conspired with Wood to terminate the asset-purchase agreements so that Wood would then be able to terminate the settlement agreement with Phillips and that they tortiously interfered with the contractual agreement between Phillips and Wood. On October 13, 2006, Wood removed the action to the United States District Court for the Southern District of Alabama, arguing that pursuant to 28 U.S.C. § 1452, the case must be removed to federal district court because it was related to a bankruptcy proceeding. Phillips amended his complaint, voluntarily dismissing Wood, and the case was remanded to the Mobile Circuit Court on November 13, 2006.

Johnson and .Com +, L.L.C., moved for a summary judgment on January 31, 2007. Phillips responded, and on March 16, 2007, the trial court held a hearing on the summary-judgment motion filed by Johnson and .Com + , L.L.C. The trial court granted their summary-judgment motion on March 21, 2007. Dickey and the Cumulus entities then filed a motion for a summary judgment on April 9, 2007, and the trial court granted their summary-judgment motion on April 10, 2007. Phillips appeals.

Before addressing the issues Phillips raises before this Court, we must consider whether the trial court had subject-matter jurisdiction. As this Court recently held:

“This Court is not limited by the parties’ jurisdictional arguments; we are obligated to look beyond those arguments and to dismiss an appeal ex mero motu if, for any reason, jurisdiction does not exist. Reynolds v. Colonial Bank, 874 So.2d 497, 503 (Ala.2003) (“‘[I]f there is an absence of jurisdiction over the subject-matter, this ends the inquiry; it cannot be waived or supplied by consent.” ’ (quoting Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930) (emphasis added))); Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (‘Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.’ (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))); Payne v. Department of Indus. Relations, 423 So.2d 281 (Ala.Civ.App.1982); and Bibb v. Boyd, 417 So.2d 206, 208 (Ala.Civ.App.1982) (‘[I]n any event, lack of jurisdiction over the subject matter is not waivable and may be raised ex mero motu by either a trial court or by an appellate court’ (citing 5 Wright and Miller, Federal Practice and Procedure, Civil § 1393)). A court is obligated to vigilantly protect against deciding cases over which it has no jurisdiction because ‘[i]t would amount to usurpation and oppression for a court to interfere in a matter over which it has no jurisdiction, and its pronouncements in respect thereto would be without force, and its decrees and judgments would be wholly void. This is a universal principle, as old as the law itself.’ Wilkinson, 221 Ala. at 256, 128 So. at 364.”

Crutcher v. Williams, 12 So.3d 631, 635 (Ala.2008).

In its May 15, 2002, order confirming Wood’s amended plan of reorganization, approving the asset-purchase agreements, and approving the sale of substantially all assets of Wood’s bankruptcy estate, the bankruptcy court explicitly retained jurisdiction over matters relating to the asset-purchase agreements. Specifically, the bankruptcy court stated:

“34. This Court retains jurisdiction to enforce and implement the terms and provisions of the Plan, this Order, the Asset Purchase Agreements, and the Bid Procedures Order, all amendments thereto, any waivers and consents thereunder, and of each of the agreements executed in connection therewith in all respects, including, but not limited to, retaining jurisdiction to: (a) compel delivery of the Assets to [Cumulus Broadcasting, L.L.C., and Cumulus Licensing, L.L.C.,] and [.Com+, L.L.C.]; (b) resolve any disputes arising under, or related to, the Asset Purchase Agreements, this Order and the Bid Procedures Order; (c) interpret, implement, and enforce the provisions of this Order and the Bid Procedures Order; and (d) protect Cumulus and [.Com + , L.L.C.,] against any kind or nature of Encumbrance whatsoever (except those contemplated by the Plan and the Sale).”

Phillips’s claim of a conspiracy among Dickey and the Cumulus entities, Johnson and .Com+, L.L.C., and Wood to have the bankruptcy court set aside the asset-purchase agreements and his claim that Dickey, the Cumulus entities, Johnson, and .Com + , L.L.C., tortiously interfered with his business relationship with Wood are clearly claims relating to “disputes arising under, or related to, the Asset Purchase Agreements .... ” As the United States District Court for the Northern District of Alabama has observed:

“All courts, including bankruptcy courts, retain jurisdiction to enforce their own orders and judgments. The Bankruptcy Court retains jurisdiction to construe and enforce its own orders from prior core proceedings and should do so.”

Consumer Portfolio Servs., Inc. v. Coleman, 342 B.R. 817, 820 (N.D.Ala.2006).

Phillips’s claims regarding Wood’s, Dickey’s, and Johnson’s actions should have been raised before the bankruptcy court at its hearing on May 20, 2005. Phillips knew before the hearing of both Dickey’s and Johnson’s deposition testimony to the effect that there was purportedly a quid pro quo agreement to have the asset-purchase agreements and settlement agreement set aside; yet he failed to inform the bankruptcy court of the alleged quid pro quo agreement. At the time Phillips filed his claims in the state court, they were subject to the jurisdiction of the bankruptcy court.

The bankruptcy court explicitly retained jurisdiction over “disputes arising under, or related to, the Asset Purchase Agreements.” Phillips’s claims clearly are disputes related to the asset-purchase agreements. Because the bankruptcy court retained jurisdiction, the courts of this State lack jurisdiction. See Wollman v. Jocar Realty Co., 19 A.D.3d 210, 211, 799 N.Y.S.2d 17, 18 (2005) (“Where jurisdiction is expressly retained by the bankruptcy court, it should be construed as exclusive jurisdiction, even though not specifically denominated as such, so as not to render the provision a nullity.”); Bryan v. Speakman, 53 F.2d 463, 465 (5th Cir.1931) (“By the great weight of authority, it has always been the law that the rule which operates to prevent unseemly conflicts between state and federal equity courts, that that which first acquires jurisdiction of a res retains possession of it ... has governed the relations between state courts and courts of bankruptcy.”); City of Opelika v. Daniel, 59 Ala. 211, 214 (1877) (“To preserve harmonious the relations between the State tribunals and those of the United States, it was early seen that when matters that were within the jurisdiction of both, had been subjected to the control of one of them, there should not be any unnecessary interference therewith by the other.”). We therefore vacate the summary judgments in favor of Dickey, Cumulus Broadcasting, L.L.C., Cumulus Licensing, L.L.C., Cumulus Media, Inc., Johnson, and .Com 4-, L.L.C. Furthermore, because a void judgment will not support an appeal, this appeal is dismissed.

Because we conclude that the trial court lacked subject-matter jurisdiction, we pre-termit discussion of the issues raised by Phillips in his appeal.

JUDGMENT VACATED; APPEAL DISMISSED; AND CASE DISMISSED.

WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . The name of this entity also appears in the record as "DotCom Plus, L.L.C.”

      . The order sought is referred to as the McDermott order because it would have been entered by the late Judge William H. McDer-mott.

      . The actual parties to the asset-purchase agreement were Cumulus Broadcasting, Inc., and Cumulus Licensing Corp., the predecessors to Cumulus Broadcasting, L.L.C., and Cumulus Licensing, L.L.C., respectively.

      . Without deciding the issue, this Court notes that it is uncertain whether the trial court would have had jurisdiction to enter such an order. As this Court held in George v. Sims, 888 So.2d 1224, 1226-27 (Ala.2004):
      " ‘A final judgment is an order "that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” ' Lunceford v. Monumental Life Ins. Co., 641 So.2d 244, 246 (Ala.1994) (quoting Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990)). Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered, except to correct clerical errors. See Rule 59(e) and Rule 60, Ala. R. Civ. P.; Cornelius v. Green, 477 So.2d 1363, 1365 (Ala.1985) (holding that the trial court had no jurisdiction to modify its final order more than 30 days after its final judgment); Dickerson v. Dickerson, 885 So.2d 160, 166 (Ala.Civ.App.2003) (holding that, absent a timely post-judgment motion, the trial court has no jurisdiction to alter, amend, or vacate a final judgment); and Superior Sec. Serv., Inc. v. Azalea City Fed. Credit Union, 651 So.2d 28, 29 (Ala.Civ.App.1994) ('It is well settled that after 30 days elapse following the entry of a judgment, the trial court no longer has authority to correct or amend its judgment, except for clerical errors.’).
      "... Although a trial court has 'residual jurisdiction or authority to take certain actions necessaiy to enforce or interpret a final judgment,’ that authority is not so broad as to allow substantive modification of an otherwise effective and unambiguous final order. Helms v. Helms' Kennels, Inc., 646 So.2d 1343, 1347 (Ala.1994).”


author: MURDOCK, Justice.

text:
    Jerry M. BLEVINS v. Beth CHAPMAN, Secretary of State of Alabama.
    1090581.
    Supreme Court of Alabama.
    April 2, 2010.

      Jerry M. Blevins, Montgomery, for appellant.
    Troy King, atty. gen., and James W. Davis and William G. Parker, Jr., asst, attys. gen., for appellee.
   MURDOCK, Justice.

Jerry M. Blevins appeals from a summary judgment entered against him and in favor of Secretary of State Beth Chapman by the Montgomery Circuit Court on his complaint challenging the constitutionality of § 12 — 17—20(b)(16), Ala.Code 1975. We affirm the summary judgment.

I. Facts and Procedural History

Blevins is an attorney residing in El-more County, which is located in the 19th Judicial Circuit. The 19th Judicial Circuit consists of Elmore, Autauga, and Chilton Counties; within the circuit there are three circuit judges — one for each county to be filled by a resident of that county. It is undisputed that Blevins intends to run in the 2010 election for judgeship no. 3, which is the circuit judgeship designated for Chilton County. Blevins meets all the candidacy qualifications to run for judgeship no. 3 except the requirement in § 12-17 — 20(b)(16), Ala. Code 1975, that he be a resident of Chilton County. As secretary of state, Chapman has taken the position that Blevins’s name cannot be certified for inclusion on the ballot as a candidate in 2010 for the no. 3 circuit judgeship because he is a resident of Elmore County, not Chilton County.

Section 12-17-20(b)(16), Ala.Code 1975, provides:

“There shall be three circuit judges in the nineteenth judicial circuit. The judge occupying judgeship No. 1 shall be a resident of Elmore County, the judge occupying judgeship No. 2 shall be a resident of Autauga County, and the judge occupying judgeship No. 3 shall be a resident of Chilton County. A person qualifying as a candidate for election to a judgeship under this subdivision shall be a resident of the county for the judgeship the person seeks for a period of not less than one year prior to the date the person qualifies as a candidate for election to the office and thereafter during his or her tenure in office.”

Blevins filed this action against Chapman, as secretary of state, seeking declaratory and injunctive relief and contending that § 12 — 17—20(b)(16), Ala.Code 1975, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and that, therefore, he should be entitled to stand as a candidate in the 2010 election for judgeship no. 3 of the 19th Judicial Circuit. After cross-motions for a summary judgment, the trial court ruled in favor of Chapman.

II. Standard of Review

“Our review of constitutional challenges to legislative enactments is de novo. See Jefferson County v. Richards, 805 So.2d 690 (Ala.2001).” Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001).

III. Analysis

Blevins notes that the general residency requirement for circuit judges in Alabama is provided in § 12-17-22, Ala.Code 1975, which provides: “Each circuit judge must have resided in the circuit for which he is elected or appointed for at least 12 months preceding his election or appointment and must reside in such circuit during his continuance in office.” In the 19th Judicial Circuit, unlike the other 15 circuits in Alabama that include more than one county, circuit judges must be residents of the county for the seat they hold, not just a resident of a county within the circuit. Blevins notes that residents of the 19th Judicial Circuit are permitted to vote for all three judicial seats but that in order to be candidate for a seat one must be a resident of the county for which the seat is designated.

Blevins contends that the county-residency requirement for circuit judges in the 19th Judicial Circuit violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Specifically, Blevins argues that § 12-17-20(b)(16), Ala.Code 1975, violates his fundamental constitutional rights as a candidate and as a voter. Blevins contends that the residency requirement for circuit judges in the 19th Judicial Circuit accords him different treatment as a candidate for circuit judge than candidates for circuit judgeships in every other circuit in Alabama. It also, he argues, limits the options of voters in the 19th Judicial Circuit by keeping an otherwise qualified candidate who resides in the circuit from running for a judgeship located in one of the two counties in which the candidate does not reside. Blevins insists that these limitations are unconstitutional under the Equal Protection Clause.

We begin by determining the level of scrutiny that must be applied in evaluating the constitutionality of § 12-17-20(b)(16).

“The Equal Protection Clause allows the States considerable leeway to enact legislation that may appear to affect similarly situated people differently. Legislatures are ordinarily assumed to have acted constitutionally. Under traditional equal protection principles, distinctions need only be drawn in such a manner as to bear some rational relationship to a legitimate state end. Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to justify them. See, e.g., McDonald v. Board of Election Comm’rs, 394 U.S. 802, 808-809 (1969); McGowan v. Maryland, 366 U.S. 420, 425-426 (1961). We have departed from traditional equal protection principles only when the challenged statute places burdens upon ‘suspect classes’ of persons or on a constitutional right that is deemed to be ‘fundamental.’ San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).”

Clements v. Fashing, 457 U.S. 957, 962-63, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). Statutes that infringe upon fundamental rights or that burden “suspect classes” “are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

Blevins contends that § 12 — 17—20(b)(16) should be subjected to “strict scrutiny” analysis and that Chapman failed to proffer a compelling state interest for the residency requirement therein for the circuit judges in the 19th Judicial Circuit. The problem with Blevins’s contention is that the residency requirement, as a ballot-access restriction, is initially and directly

“felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802 (1969).”

Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (footnote omitted).

As the above-quoted language from Bullock indicates, although the right to vote is itself a fundamental right, not every law that affects this right is subject to strict-scrutiny analysis.

“It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’ Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute. Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). The Constitution provides that States may prescribe ‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, § 4, cl. 1, and the Court therefore has recognized that States retain the power to regulate their own elections. Sugarman v. Dougall, 413 U.S. 634, 647 (1973); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986). Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ Storer v. Brown, 415 U.S. 724, 730 (1974).
“Election laws will invariably impose some burden upon individual voters. Each provision of a code, ‘whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.’ Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest ... would tie the hands of States seeking to assure that elections are operated equitably and efficiently.... Accordingly, the mere fact that a State’s system ‘creates barriers ... tending to limit the field of candidates from which voters might choose ... does not of itself compel close scrutiny.’ Bullock v. Carter, 405 U.S. 134, 143 (1972); Anderson, supra, 460 U.S., at 788; McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802 (1969).”

Burdick v. Takushi, 504 U.S. 428, 433-34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).

Where restrictions on candidates’ ballot access are concerned,

“the need for strict scrutiny might arise if, after ‘realistic’ examination of the circumstances of the case, it is concluded that the candidate restrictions have a ‘real and appreciable impact’ on the voters’ rights. In Bullock [v. Carter, 405 U.S. 134 (1972),] the Supreme Court found that the burden on voters was ‘neither incidental nor remote’ because so many office seekers were excluded that the voters’ choice of candidates was ‘substantially limited,’ and because the law especially burdened a group of voters forming a particular constituency with a common viewpoint (the poor). Thus the critical inquiry is whether the challenged law substantially diminishes the field of candidates (and thus substantially diminishes voter choice) and whether the law has a disparate impact on a cognizable political group.”

Joseph v. City of Birmingham, 510 F.Supp. 1319, 1330 (D.C.Mich.1981) (footnote omitted).

Bullock involved the primary-election filing-fee system in the State of Texas, which required candidates for local office to pay fees as high as $8,900. The United States Supreme Court concluded that the filing-fee system violated the Equal Protection Clause. In contrast to the filing-fee system evaluated in Bullock, the United States Supreme Court in Clements v. Fashing, supra, considered the constitutionality of § 19 of the Texas Constitution, which established a maximum “waiting period” of two years for a sitting justice of the peace to run for a seat in the Texas legislature. The Clements Court concluded that § 19

“places a de minimis burden on the political aspirations of a current officeholder. Section 19 discriminates neither on the basis of political affiliation nor on any factor not related to a candidate’s qualifications to hold political office. Unlike filing fees or the level-of-support requirements, § 19 in no way burdens access to the political process by those who are outside the ‘mainstream’ of political life.”

457 U.S. at 967, 102 S.Ct. 2836 (final emphasis added). In short, the provision did not “contain any classification that imposes special burdens on minority political parties or independent candidates. The burdens placed on those candidates subject to § 19 ... in no way depend upon political affiliation or political viewpoint.” Clements, 457 U.S. at 965, 102 S.Ct. 2836.

The residency requirement in § 12-17-20(b)(16) does not substantially diminish the field of candidates, nor does it discriminate based on political affiliation or viewpoint. It treats all candidates in the 19th Judicial Circuit equally and all voters in the 19th Judicial Circuit equally. It does not matter that the statute imposes a different requirement for residency on candidates for judgeships in the 19th Judicial Circuit than it does on candidates for judgeships in other circuits throughout the state because “the Equal Protection Clause relates to equality between persons as such, rather than between areas and ... territorial uniformity is not a constitutional prerequisite.” McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Therefore, § 12 -17-20(b)(16) must be evaluated using a “rational basis” analysis.

Although Blevins relies heavily on the case of Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), for his argument that § 12-17-20(b)(16) must satisfy the “strict scrutiny” standard, Hadnott was decided before the United States Supreme Court’s landmark election-law decision, Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), which established that election laws ordinarily should not be subjected to “strict scrutiny” and instead should be evaluated “by an analytical process that parallels [the Court’s] work in ordinary litigation.” Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Thus, Hadnott does not contradict our conclusion that § 12-17-20(b)(16) must satisfy “rational basis” analysis rather than “strict scrutiny.”

Even so, it is interesting that the Hadnott Court concluded that Alabama had a compelling state interest for its general residency requirement for circuit judges, which is now codified, as noted above, at § 12-17-22, Ala.Code 1975. Among the reasons the Hadnott Court listed as compelling state interests for the general residency requirement of state circuit judges were the following:

“We conclude that the State of Alabama has [a] compelling state interest in imposing a substantial pre-election residence requirement for circuit judges.
“The State of Alabama has a compelling state interest in exposing to the voters for a substantial period of time before election the person who will be a candidate for state circuit judge. The circuit court is the basic court of the state judicial system, the keystone of the structure. ...
“We consider it to be of urgent importance that the voter have an opportunity to observe, learn about and appraise those who seek to be candidates for a key judicial office that touches important events and relationships of their lives and of the community in which they live. There are innumerable qualities and qualifications that are relevant.
“The catalog could be endless. The democratic process contemplates that the voters shall make a choice. In the case of this important judicial office the state has a compelling interest in attempting to see that the voters have the opportunity that their choice be an informed one. Assertion of the state interest will bring imperfect results. Less than all voters will observe, learn and rationally choose, but this is not to deny to the state its interest in extending the opportunity.”

Hadnott, 320 F.Supp. at 119-21.

Echoing the above-stated rationale, the residency requirement imposed by § 12 — 17—20(b)(16) gives the voters of each county in the 19th Judicial Circuit the opportunity for a greater level of familiarity with the candidates for at least one of the judgeships in the circuit. Conversely, it ensures that among the three judges of the 19th Judicial Circuit, at least one judge will be familiar with each county within the circuit. It promotes the appearance of justice by preventing a more populous county from dominating the judicial seats in the circuit. It avoids the possibility of excessive recusals: by requiring that the three circuit judges be residents from the three counties that compose the circuit, it reduces the chances that more than one of the judges in the circuit might have to recuse himself or herself from a case because of familiarity with the parties or because of the circumstances of the case.

“[W]hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify5 the restrictions.” Burdick, 504 U.S. at 434, 112 S.Ct. 2059. Consequently, § 12-17-20(b)(16) does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

IV. Conclusion

Because the residency requirement for judges of the 19th Judicial Circuit imposed by § 12 — 17—20(b)(16), Ala.Code 1975, passes constitutional muster, we conclude that the trial court’s summary judgment in favor of the Secretary of State concerning Blevins’s complaint for declaratory and in-junctive relief is due to be affirmed.

AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and SHAW, JJ., concur.

BOLIN, J., concurs in the result.

      . See, e.g., City of Cleburne, 473 U.S. at 439, 473 U.S. 432 (noting that "[t]he Equal Protection Clause ... is essentially a direction that all persons similarly situated should be treated alike.” (citing Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982))).

      . We do not intend to suggest that this is an exhaustive list of rational reasons for the residency requirement imposed by § 12 — 17— 20(b)(16).


author: PER CURIAM. MURDOCK, Justice

text:
    Ex parte FORD MOTOR COMPANY. (In re Daniel Siniard, administrator of the estate of Deborah S. Siniard, deceased v. Ford Motor Company).
    1080438.
    Supreme Court of Alabama.
    April 2, 2010.

      See also, Siniard v. Ford Motor Co., 554 F.Supp.2d 1276.

      De Martenson, Jacob W. Crawford, D. Alan Thomas, Paul F. Malek, and M. Jeremy Dotson of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioner.
    Benjamin E. Baker, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   PER CURIAM.

Ford Motor Company (“Ford”), the defendant in a wrongful-death action pending in the Barbour Circuit Court, petitions this Court for a writ of mandamus directing the trial court to transfer the action to the Montgomery Circuit Court. We grant the petition and issue the writ.

I. Factual Background and Procedural History

On April 5, 2006, Deborah S. Siniard was driving a 1999 Mercury Mountaineer sport-utility vehicle north on Interstate 65 in Montgomery County when the vehicle left the road and rolled over. Siniard died in the accident. Siniard, a Tennessee resident, had purchased the vehicle in Tennessee from a Tennessee dealership, Jim Sloan Ford, Inc. Daniel Siniard, Deborah’s husband and the administrator of her estate, filed an action in the Clayton division of the Barbour Circuit Court against Ford and Jim Sloan Ford, Inc. The trial court granted the motion to dismiss filed by Jim Sloan Ford, Inc., based on lack of personal jurisdiction, leaving only Ford as a defendant.

Siniard’s complaint alleged that the roof, seat, and/or seat-belt system in the vehicle were defective and unreasonably dangerous in their design, manufacture, and/or marketing and that Ford was liable under the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”). Siniard also alleged negligence and wantonness. In paragraph five of the complaint, Siniard averred that “[vjenue is proper pursuant to Ala.Code (1975) § 6-3-7(a)(4).”

In its answer to the complaint, Ford denied the allegation of paragraph five and stated as its 10th defense that “[tjhis Defendant hereby affirmatively pleads improper venue in this case.” On June 27, 2008, however, Ford filed a motion to transfer the case to Montgomery County based on the doctrine of forum non conve-niens, codified in § 6-3-21.1, Ala.Code 1975. Ford supported its motion in part by affidavits from State Trooper Wayne Dailey, the investigating officer on the scene of the accident; State Trooper Steve Jarrett, the officer who responded to the accident and who helped with the investigation; and Jane Armstead, an eyewitness. The two troopers testified in their respective affidavits that they work and reside in Montgomery County and that it would be a hardship for them to testify in the Clayton division of Barbour County, which is located 70 miles from Montgomery. Armstead, a resident of Culleoka, Tennessee, testified in her affidavit that it would be more convenient for her to testify in Montgomery.

On December 10, 2008, the trial court entered an order denying Ford’s motion to transfer the case. The order provided, in pertinent part:

“This matter comes before the Court upon the motion to transfer [this case] for forum non conveniens filed by the Defendant, Ford Motor Company (‘Ford’). After considering each party’s brief and oral arguments, it is CONSIDERED and ORDERED that Ford’s motion to transfer for forum non conve-niens is DENIED. This Court finds that the Defendant has failed to meet its burden of proof under Ala.Code (1975) § 6-3-21.1. See also, Ex parte Alabama Power Co., 640 So.2d 921 (Ala.1994); Ex parte Independent Life & Accident Ins. Co., 725 So.2d 955 (Ala.1998); Ex parte Suzuki Mobile, Inc., 940 So.2d 1007 (Ala.2006); Ex parte Volvo Trucks North America, 954 So.2d 583 (Ala.2006).”

(Capitalization in original.)

Ford filed a petition for a writ of mandamus, asking this Court to order the trial court to transfer the case from the Barbour Circuit Court to the Montgomery Circuit Court.

II. Standard of Review

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

III. Analysis

Section 6-3-21.1(a), Ala.Code 1975, provides, in pertinent part:

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

(Emphasis added.) “A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.” Ex parte National Sec. Ins. Co., 727 So.2d at 789.

Ford contends that both the “convenience of parties and witnesses” and the “interest of justice” warrant the transfer of the action from Barbour County to Montgomery County. We agree.

As noted above, the two state troopers who responded to the accident both testified that it would be more convenient for them to testify in Montgomery County than in the Clayton division of Barbour County. Their affidavits explain that they both live and work in Montgomery County and that testifying in Barbour County would disrupt their work as public servants; Trooper Jarrett further explained that he had supervisory duties that would be disrupted if he were required to go to Barbour County to testify. Ford also notes that Haynes Ambulance of Alabama responded to the accident and that the principal office for Haynes Ambulance is located in Montgomery; Ford asserts that paramedics from Haynes Ambulance, as well as other witnesses who were present at the site of the accident soon after it occurred, will offer testimony regarding their observations as to the position of the decedent’s body, whether the decedent was wearing a seat belt, and other circumstances they observed that may be probative of the manner in which the accident occurred or its cause.

Ford argues that the foregoing considerations are material because, it argues, the purpose of allowing a transfer of a case “for the convenience of parties or witnesses” is to “ ‘prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.’ ” Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala.2003) (quoting Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995)). Ford also notes that this Court has stated that “litigation should be handled in the forum where the injury occurred.” Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006).

With respect to the “interest-of-justice” provision of § 6 — 3—21.1(a), we have held that “the ‘interest of justice’ require[s] the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.” Ex parte National Sec. Ins. Co., 727 So.2d at 790 (emphasis added). In expounding on this standard, we have stated:

“[I]n examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ ”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008) (quoting Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007)).

In this action, it is undisputed that the accident occurred in Montgomery County, that the authorities that responded and investigated the accident are located in Montgomery County, that relevant witnesses are located in Montgomery County, and that venue is proper in Montgomery County. It is also undisputed that Deborah S. Siniard, the decedent, resided in Tennessee, that Daniel Siniard currently resides in Tennessee, and that the vehicle that is the subject of the action was purchased in Tennessee. Although Ford apparently did business by agent in Barbour County at the time of the accident, it no longer does so. So far as this Court is aware, the only current connection between Barbour County and this action is that Siniard chose to file the action in that county.

This Court recently decided Ex parte Navistar, Inc., 17 So.3d 219 (Ala.2009), a case with similar relevant facts. Navistar concerned a single-vehicle heavy-truck rollover accident in which Edward Stewart, the driver of the truck, was killed. The accident occurred in Colbert County. Stewart’s daughter and the administratrix of his estate, Brooklyn Price, filed an action in Barbour County against Navistar— the designer, engineer, and manufacturer of the truck. Price sought damages for Navistar’s alleged negligence and wantonness and its alleged violation of the AEMLD, asserting that the truck was not “crashworthy.” Navistar moved to transfer the case to Colbert County based on the doctrine of forum non conveniens. It was undisputed that Price did not reside in Barbour County, that the truck was not purchased or manufactured in Barbour County, and that the accident did not occur in Barbour County. This Court concluded that the case should be transferred to Colbert County based on the interest-of-justice prong of § 6-8-21.1, Ala.Code 1975, because the accident occurred in Colbert County, while the only connection to Barbour County was that another purchaser of other Navistar trucks of the same model was located in Barbour County. This Court stated that “[t]he venue in which the product evidenced its alleged defect — the place where the accident occurred and potential witnesses reside — has a legal connection that in the interest of justice requires a transfer of venue of this case to that venue.” 17 So.3d at 222.

As in Navistar, in the present case the place where the accident occurred — Montgomery County — has a strong connection to the action. The only connection in Nav-istar between the action and the county in which the action had been filed — Barbour County — was the fact that Navistar sold a large number of trucks to a trucking company whose principal place of business was located in Barbour County. Here, there is no current connection whatsoever between the action and the county in which the action was filed — Barbour County — other than the fact that Siniard filed the action in that county. Simply put, “there is no witness, no document, no transaction, or anything else that would give the action a nexus with [Barbour] County that would justify burdening that county with the trial of the case.” Ex parte National Sec. Ins. Co., 727 So.2d at 790. Thus, even more than in Navistar, the facts in this case dictate that in the interest of justice the action must be transferred from Barbour County to Montgomery County.

Siniard complains that the interest-of-justice prong of the forum non conveniens doctrine is the product of “divinely inspired analysis” by this Court that “has no defined parameters that are subjective or objective.” As a result, Siniard states that he “finds himself at a loss as to how to present an argument.”

What Siniard does argue, however, is that Ford “did not meet its burden of proof [of] establishing that § 6-3-21.1 applies to the facts of this case.” Siniard quotes Ex parte Volvo Trucks North America, Inc., 954 So.2d 583, 585 (Ala.2006), for the proposition that “[t]he doctrine [of forum non conveniens ] is applicable only when the action is commenced in a county in which venue is appropriate.” Ironically, Siniard argues that Ford did not meet its burden because Ford “failed to offer evidence that Barbour County”— the county in which Siniard himself filed this action — “was [a] proper venue at the time this action was filed.” He notes that Ford denied in its answer that venue was proper in Barbour County and contends that Ford never presented evidence to the trial court establishing that venue was proper in Barbour County before it filed its motion to transfer the case to Montgomery County. Indeed, Ford’s memorandum brief in support of its motion for a change of venue explicitly stated that “[t]his case has no connection whatsoever with Barbour County, Alabama,” and that Ford “does not do business by agent in Barbour County....”

On appeal, Ford asserts in its petition that, at the time the accident occurred, Ford had a dealership located in Barbour County — Beatty Ford in Clayton, which is no longer in operation — making Barbour County a proper venue under § 6-3-7(a)(4), Ala.Code 1975 (setting venue “in any county in which the [corporate defendant] was doing business by agent at the time of the accrual of the cause of action”). Siniard notes, however, that there is no mention of the Ford dealership in any of the parties’ filings before the trial court. Because Ford presented no “evidence” to the trial court indicating that venue was appropriate in Barbour County, Siniard argues, Ford failed to meet its burden of proving that the doctrine of forum non conveniens applies in this case.

In support of his position, Siniard cites Ex parte AIG Baker Orange Beach Wharf, L.L.C., 12 So.3d 1204 (Ala.2009). In AIG Baker Orange Beach, however, it was undisputed that Jefferson County was an improper venue for the action. Because no dispute concerning that fact existed, the Court did not address whether the plaintiffs had the burden of proving that venue in Jefferson County was proper before invoking the doctrine of forum non conve-niens. No such unanimity concerning Barbour County as an improper venue exists in this case.

Although in its answer Ford disputed that Barbour County is a proper venue, it later filed a motion for a change of venue based only on the doctrine of forum non conveniens, which, of course, it was free to do as an alternative to pursuing the allegation in its complaint regarding venue. In so doing, Ford merely took as the premise for its motion the allegation in Siniard’s own complaint that venue was proper in Barbour County.

Furthermore, Siniard never disputed in the trial court the allegation in his own complaint that venue is proper in Barbour County. Thus, the opposite of the facts in AIG Baker Orange Beach exists here: far from conceding that venue is improper in Barbour County, both parties conceded to the trial court for purposes of the motion for a change of venue that Barbour County is an appropriate venue.

The import of Siniard’s argument is that Ford had the burden of proving that venue in Barbour County was proper when the only party that disputed this fact at any time during the procedural history of this case was Ford itself. Put another way, the party that filed this action in Barbour County, that expressly alleged in his complaint that venue was proper in Barbour County, and that never took any different position before the trial court, now complains on appeal that the opposing party failed to prove that venue in Barbour County was proper. Had Siniard made in the trial court the argument he now makes in this Court, he would have been asking the trial court to keep the action in Barbour County on the ground that Barbour County was not a proper venue for the action. This argument defies common sense. It also conflicts with our rules of appellate review because ‘“[t]his Court cannot consider arguments raised for the first time on appeal; our review is restricted to the evidence and arguments considered by the trial court.’ ” Marks v. Tenbrunsel, 910 So.2d 1255, 1263 (Ala.2005) (quoting Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992)).

Ford has demonstrated that the facts in this case warrant a transfer of the case from Barbour County to Montgomery County “for the convenience of parties and witnesses” and in the “interest of justice.” Siniard offers no meaningful argument to the contrary. Accordingly, we conclude that the trial court exceeded its discretion in denying Ford’s motion for a change of venue based on the doctrine of forum non conveniens.

IV. Conclusion

Section 6-3-21.1(a), Ala.Code 1975, requires the transfer of this action from Barbour County to Montgomery County. We therefore grant Ford’s petition for the writ of mandamus and direct the Barbour Circuit Court to enter an order transferring this action to the Montgomery Circuit Court.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I concur in the result on the ground that a transfer of this action to Montgomery County should have been ordered under the “convenience-of-parties-and-witnesses” provision of § 6-3-21.1(a), Ala.Code 1975. I write separately to express concerns relating to the interplay between the applicable venue statute, § 6-3-7, Ala.Code 1975, and the “interest-of-justice” provision of § 6-3-21.1(a).

Relatively recent decisions of this Court interpreting § 6-3-7(a)(l) appear to have forced defendants in some cases to resort to the invocation of the interest-of-justice provision of § 6-3-21.1(a) in order to avoid seemingly improper venues. I submit that a correct reading of § 6-3-7 would avoid the necessity of resorting to the interest-of-justice provision of § 6-3-21.1(a).

Section 6-3-7(a), Ala.Code 1975, provides:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred) or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

(Emphasis added.) By its terms, § 6-3-7(a)(4) applies to make venue proper in a county in which the defendant corporation was “doing business by agent” only if subsection (1), (2), or (3) does not apply. I suggest that a plain reading of § 6-3-7(a)(1) in a case such as this would lead to the conclusion that the county in which the accident occurred and in which the plaintiff was injured is a proper venue for the action under that provision and therefore that § 6-3-7(a)(4) is not applicable.

In pertinent part, § 6-3-7(a)(l) simply states that venue is proper against a corporate defendant “[i]n the county in which a substantial part of the events ... giving rise to the claim occurred.” Put plainly, the “rollover” of Deborah Siniard’s vehicle was an “event[ ] ... giving rise to the claim” in this action. This “event” occurred in Montgomery County. In my view, therefore, venue was proper in Montgomery County, which, in turn, rendered venue improper in Barbour County.

Because of our decision in Ex parte Suzuki Mobile, Inc., 940 So.2d 1007 (Ala.2006), however, if Ford was to seek a change of venue, it had no alternative but to do so by seeking a transfer based on the doctrine of forum non conveniens, and in particular the interest-of-justice provision of § 6-3-21.1(a), rather than on the basis that venue in Barbour County was improper. In Suzuki, the Court stated:

“ ‘Section 6-3-7(a)(l) provides that a civil action against a corporation may be brought “[i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred.” We construe “the events or omissions giving rise to the claim ” to be a clear reference to the wrongful acts or omissions of the corporate defendant.’ ”

940 So.2d at 1010 (quoting Ex parte Pikeville Country Club, 844 So.2d 1186, 1189 (Ala.2002)) (some emphasis omitted). I submit that, by construing “the events or omissions giving rise to the claim” to mean “the acts or omissions of the corporate defendant,” we effectively changed the meaning of § 6-8-7(a)(l). Compare § 6-3-2(a)(3) (setting venue for certain purposes in the county in which “the act or omission” complained of may have been done or may have occurred).

In Ex parte First Family Financial Services, Inc., 718 So.2d 658, 661 (Ala.1998), Justice Maddox, writing for the Court, stated that a change of venue based on forum non conveniens is appropriate only “ ‘ “when trial in the chosen forum would ‘establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience,’ or when the ‘chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.’ ” ’ ” (Quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), quoting in turn Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947).) As Justice Maddox went on to explain, a transfer based on improper venue normally should occur only where the balance of “the private- and public-interest factors involved ... weight ] heavily against litigation in the forum the plaintiff selected.” 718 So.2d at 661. I question whether in some cases we are now forcing through the “back door” of the “interest-of-justice” provision of § 6-3-21.1(a) a consideration — the location of the plaintiffs accident — that we incorrectly decided in Suzuki was not the location of an “event[ ] ... giving rise to the [plaintiffs] claim” and therefore could not enter into our deliberations through the “front door” of venue.

In this case, Ford does not seek a transfer based on improper venue, nor does it ask us to revisit our holding in Suzuki For purposes of this case, therefore, I must accept, as does the main opinion, the propriety of venue in Barbour County. I concur in the result because I believe that the defendant’s motion for a change of venue should have been granted under the convenience-of-parties-and-witnesses provision of § 6-3-21.1(a).

      . Ford initially removed this action to federal court and filed its answer in that court.

      . Armstead later filed another affidavit, however, in which she stated that it would not be inconvenient for her to travel to either county.

      . Ford asserts in its brief that, “upon information and belief,” none of the witnesses needed for trial are residents of Barbour County.

      . Ford's statement in its memorandum brief in support of its motion for a change of venue that it “does not do business by agent" in Barbour County does not necessarily contradict this assertion because the dealership may have ceased its operation before Ford filed its motion.

      . This is evident from the fact that nothing prevents a defendant from pleading both grounds in the alternative, see Rule 8(e)(2), Ala. R. Civ. P., or from filing a motion to transfer based on both grounds as alternative arguments, see, e.g., Ex parte National Sec. Ins. Co., 727 So.2d at 789 (noting that "National Security filed motions to dismiss or to transfer the action to Elmore Circuit Court, based on improper venue and on the doctrine of forum non conveniens Ex parte Alabama Great Southern R.R., 788 So.2d 886, 890 n. 6 (Ala.2000) (stating that because the Court granted Alabama Great Southern Railroad's "petition for the writ of mandamus on the ground of improper venue, we pretermit discussion of its alternative ground — the statutory forum non conveniens provisions”).

        .Compare Ex parte Associates Fin. Servs. Co. of Alabama, Inc., 705 So.2d 836, 837 (Ala.1997) (noting that the motion for a change of venue based upon the doctrine of forum non conveniens assumed that venue was proper in the forum in which the motion was filed).

      . In his opposition to Ford’s motion to transfer the case, Siniard contended that Ford failed "to meet [its] burden of proof under § 6-3-21.1,” not because it did not demonstrate that Barbour County was a proper venue, but because Ford allegedly failed "to establish that Montgomery County is a 'significantly' more convenient venue so as to override [Siniard’s] right to choose [his] forum."

      . The same impetus for the invocation of the interest-of-justice prong of § 6-3-21.1(a) existed in Ex parte Navistar, Inc., 17 So.3d 219 (Ala.2009), which, like this case, involved both a nonresident plaintiff and corporate defendants whose principal offices were not in Alabama, thereby making the applicability vel non of the venue provision in § 6 — 3—7(a)(1) dispositive of whether the venue provision in § 6-3-7(a)(4) would be triggered. Because under Ex parte Suzuki and its progeny § 6-3-7(a)(1) was not available, the defendant had no alternative but to invoke the doctrine of forum non conveniens, particularly its interest-of-justice prong, if it was to avoid a venue it considered inappropriate.

      . The views expressed by Justice Maddox on behalf of the Court in First Family Financial Services are consistent with the notion that venue statutes such as § 6-3-7 reflect a legislative determination that the statutorily prescribed locations are generally and presumptively just and appropriate.