author: GRIFFIS, P. J.,

text:
    REBUILD AMERICA, INC., Appellant v. COUNTRYWIDE HOMES LOANS, INC. and The Bank of New York, Appellee.
    No. 2010-CA-01597-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.

      Kimberly Pine Turner, attorney for appellant.
    G. Dewey Hembree III, John Thomas Rouse, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Rebuild America, Inc. (“Rebuild America”) appeals the grant of summary judgment in favor of Countrywide Home Loans, Inc. (“Countrywide”) and the Bank of New York voiding two property tax sales and setting aside the 2008 conveyance of property to Rebuild America. The chancellor held that the Hancock County Chancery Clerk had failed to provide notice of the two tax sales to the then-owners of the property. Finding that we lack jurisdiction, this appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

¶ 2. A full discussion of the underlying facts is not warranted given our ruling that we lack jurisdiction. However, a brief review is necessary to understand the events in the court below leading to our decision. This appeal arises from the sale of property for unpaid real estate taxes in 2003 and 2004 with respect to real property and improvements located in Bay St. Louis, Mississippi. At the time of the 2003 tax sale, the property was owned by Cindy and Scott Favre (“Favres”). Countrywide asserted an interest in the property by virtue of an April 18, 2003 deed of trust executed by the Favres in favor of Countrywide, which secured a mortgage loan of $380,000.

¶ 3. Wolf Run, LLC purchased the property on August 30, 2004, at a tax sale for unpaid 2003 taxes but never confirmed its tax title. On October 31, 2005, the property was again sold for unpaid 2004 taxes, this time to Wachovia Bank, N.A., as custodian for Sass Muni V, LLC (“Sass Muni”). The home located on the property was heavily damaged by Hurricane Katrina and has remained vacant since that time.

¶ 4. Rebuild America asserted its interest in the property by a quitclaim deed and assignment from U.S. Bank, N.A., as custodian for Sass Muni, dated February 1, 2008. Rebuild America filed suit on April 17, 2008, to confirm its title. On June 20, 2008, Countrywide and the Bank of New York filed their answers to the complaint and contested Rebuild America’s title. On August 29, 2008, Rebuild America filed a motion for summary judgment and asserted that Countrywide and the Bank of New York’s title had been extinguished by the 2003 tax sale, and thus both lacked standing to contest Rebuild America’s title. The chancellor denied Rebuild America’s motion for summary judgment.

¶ 5. On May 29, 2009, as part of a settlement from a separate lawsuit against Countrywide over the unpaid 2003 and 2004 taxes, the Favres conveyed the property to Countrywide by quitclaim deed. On June 18, 2010, Countrywide and the Bank of New York filed their counterclaims against Rebuild America to remove clouds and confirm title.

¶ 6. On July 6, 2010, Countrywide and the Bank of New York jointly filed a motion for summary judgment in an effort to void the 2003 and 2004 tax sales and to set aside the conveyance of the property to Rebuild America. Countrywide and the Bank of New York argued the 2003 and 2004 tax sales did not comply with Mississippi’s statutory scheme for tax sales. On August 26, 2010, the chancellor granted Countrywide and the Bank of New York’s motion for summary judgment and ruled the Hancock County Chancery Clerk had failed to provide statutory notice of the two tax sales to the Favres.

¶7. On September 13, 2010, Countrywide and the Bank of New York filed a motion for entry of a final judgment to confirm title and to dismiss the case against all defendants. While this motion was pending in the chancery court, Rebuild America filed its notice of appeal from the chancellor’s August 26, 2010 order granting summary judgment to Countrywide and the Bank of New York.

ANALYSIS

¶ 8. While not raised by the parties on appeal, this Court must first determine whether the chancellor’s August 26, 2010 order granting summary judgment constitutes a final judgment. Walters v. Walters, 956 So.2d 1050, 1053 (¶8) (Miss.Ct.App.2007) (citing Michael v. Michael, 650 So.2d 469, 471 (Miss.1995)). “ ‘Generally, parties may only appeal from a final judgment.’ ” Id. (citation omitted).

¶ 9. In Harris v. Waters, 40 So.3d 657, 658 (¶ 3) (Miss.Ct.App.2010), we explained that: “A final, appealable judgment is one that ‘adjudicates the merits of the controversy which settles all issues as to all the parties’ and requires no further action by the lower court.” (citation omitted). In Walters, we also examined the limited exception to the final-judgment rule set out in Rule 54(b) of the Mississippi Rules of Civil Procedure:

An exception to the final judgment rule is found Rule 54(b) of the Mississippi Rules of Civil Procedure, which allows the trial court to expressly direct the entry of final judgment as to fewer than all claims or parties in the action. Rule 54(b) states:
Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form if decision is subject to revision at any time before the entry of judgment adjudicating all of the claims and the rights and liabilities of all the parties.

Walters, 956 So.2d at 1053-54 (¶ 10).

¶ 10. Rebuild America did not seek certification pursuant to Rule 54(b) from the chancellor prior to filing its notice of appeal, nor does the chancellor’s August 26, 2010 order contain language that can be construed to authorize an appeal to this Court with respect to fewer than all claims or all parties in the case. While the August 26, 2010 order voided the 2003 and 2004 tax sales and set aside the conveyance of the property to Rebuild America, it did not confirm Countrywide’s tax title, nor was the order a judgment within the meaning of Rule 58 of the Mississippi Rules of Civil Procedure, which states:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim to all parties and which has been entered as provided in [Mississippi Rule of Civil Procedure] 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in [Rule] 79(a).

¶ 11. Aside from the August 26, 2010 order granting summary judgment in favor of Countrywide and the Bank of New York, no judgment has ever been entered in this case as set forth in Rules 58 and 79(a) prior to appeal. Regardless of the form of the chancellor’s August 26, 2010 order from which Rebuild America appeals, the action of the parties after the chancellor granted summary judgment is conclusive that the August 26, 2010 order did not resolve all claims as to all parties in the case and thus was not a final, ap-pealable judgment.

¶ 12. On September 8, 2010, thirteen days after the chancellor’s grant of summary judgment, the parties entered into an agreed order where the cross-defendant, Hancock County, Mississippi, consented to and waived further notice of a final hearing and entry of a final judgment on Countrywide and the Bank of New York’s counterclaims. On its face, this agreed order, signed by counsel for Rebuild America, acknowledged that further action was required by the chancellor prior the entry of a final judgment.

¶ 13. Further, Countrywide’s September 13, 2010 motion, filed eighteen days after summary judgment was granted, sought an order from the chancellor to confirm its tax title. However, because Rebuild America filed the notice of appeal before the chancellor ruled on Countrywide’s motion, Countrywide’s tax title was not confirmed and remains pending in the chancery court. Further action is required by the chancellor with respect to Countrywide’s September 13, 2010 motion and therefore, the chancellor’s August 26, 2010 order is not a final judgment. See Harris, 40 So.3d at 658 (¶ 2).

¶ 14. Finally, on September 13, 2010, Countrywide moved to dismiss all remaining defendants in the case, which included: Capital One Bank f/k/a/ Hibernia National Bank; Lyndon Property Insurance Company; Jim Hood, as Attorney General for the State of Mississippi; Cono Caranna, District Attorney for Hancock County, Mississippi; and the unknown heirs of O.D. Knox. Since Rebuild America filed its notice of appeal prior to the chancellor’s ruling on the September 13, 2010 motion, no final judgment was entered with respect to dismissal of all defendants.

¶ 15. Because the chancellor’s judgment does not qualify as a final order under Rule 58 and further because Rebuild America did not obtain certification from the chancellor to appeal fewer than all claims or all parties in this case under Rule 54(b), this matter is not appealable.

¶ 16. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

LEE, C.J., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Countrywide subsequently assigned the 2003 deed of trust to the Bank of New York. On September 23, 2003, the Favres executed a second deed of trust in favor of Countrywide securing a home-equity loan of $128,500.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    George Curtis BLAKELY, Jr., Appellant v. Teena Lynnette Williams BLAKELY, Appellee.
    No. 2010-CA-01948-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.

      Kent E. Smith, Holly Springs, attorneys for appellant.
    Luther Putnam Crull Jr., attorneys for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. George and Teena Blakely were granted an irreconcilable differences divorce in the Grenada County Chancery Court, ending a twenty-one-year marriage. They have two children, ten-year-old Kurt and nineteen-year-old Kayla. George received custody of Kayla by agreement, while the chancery court awarded custody of Kurt to Teena after a trial. George now appeals, arguing that the chancellor erred in applying the Albright factors. George also contends the court erroneously failed to award him child support and college expenses for Kayla. We find the chancellor’s decisions supported by substantial evidence, so we affirm.

FACTS

¶ 2. On October 15, 2008, Teena filed for divorce, alleging habitual cruel and inhuman treatment. She and George continued to reside in the marital home until January 28, 2009, when Teena left. Kayla and Kurt remained with George until February 22, 2010, when a temporary order for visitation and support was entered, giving George custody of the children and requiring Teena to pay support. The couple later agreed to an irreconcilable differences divorce and submitted the issues of Kurt’s custody and support to the court. Custody of Kayla was awarded to George by agreement because Kayla had a strained relationship with her mother. After a one-day trial, held on September 15, 2010, the chancery court awarded custody of Kurt to Teena. The chancellor denied any child support or college expenses for Kayla. George challenges these rulings on appeal.

STANDARD OF REVIEW

¶ 3. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor’s factual findings, on the other hand, will not be disturbed unless she was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings, we generally proceed on the assumption that she resolved all such fact issues in favor of the appellee. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990)).

DISCUSSION

1. Child Support and College Expenses for Kayla

¶ 4. In his first issue, George contends the chancellor should have awarded him child support and college expenses for Kayla. He argues the chancellor had no legal basis to deny these awards.

¶ 5. At the outset, we note that support for Kayla was not clearly addressed by the property settlement agreement, nor was it expressly submitted to the chancery court for determination. The Blakelys received an irreconcilable differences divorce under Mississippi Code Annotated section 93-5-2 (Supp.2011). The only agreed issues were that George would get custody of Kayla and that each party would be responsible for half of the children’s medical expenses. While education expenses and child support were submitted as issues for the chancery court to decide, it is unclear whether they are for both children or only Kurt. The document’s organization and use of singular pronouns suggest that the latter is more probable.

¶ 6. The issues of Kayla’s support and college expenses do not appear to have been expressly tried or even given much thought prior to this appeal, as the circumstances suggest any award would have been small. Kayla was nearly nineteen years of age at the time of trial. She was attending college and lived on campus, though she would stay with George on weekends. Kayla had a scholarship that paid for her tuition, housing, and food expenses. Books were the only out of pocket expense testified to at trial, costing about $300 per semester. Kayla was also employed part'time, and testimony indicated that she had paid for some of the cost her books, though she received an allowance from George. George also provided her with a vehicle and paid for some miscellaneous expenses.

¶ 7. Nonetheless, the chancellor addressed support and education expenses for Kayla in her judgment, and neither of the parties has argued the issue of waiver or attacked the adequacy and sufficiency of the consent agreement; so we will not address these potential concerns. We take it as a fact that the issues of Kayla’s support and college expenses were submitted to the chancery court for determination.

¶ 8. The chancellor held that Kayla’s course of conduct toward her mother warranted a denial of child support and college expenses. The chancellor found that Kayla had expressed a “total lack of respect” and an “unwillingness to have a relationship” with her mother. In denying support, the chancellor apparently relied on Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980).

¶ 9. Hambrick addressed the duty of a parent to support a college-age child. Hambrick’s nineteen-year-old daughter had finished high school, was attending college, and was employed and earning an income. She expressed a dislike of her father that was “close to hate” and had refused to have contact with him, averring that she had no intention to do so in the future. The supreme court held:

The duty of a father to send a child to college, under the circumstances of this case, is not absolute. It is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through respect for them parents, love, affection and appreciation of parental efforts, none of which are present in this instance.

Id. at 477. The supreme court reversed the chancellor’s award of child support to the custodial parent. Id. at 477-78.

¶ 10. This case presents many similarities to Hambrick. Although Kayla did not testify, it was uncontested that she and her mother had a strained relationship even before the separation. After the separation, Kayla refused to visit her mother and generally refused to communicate with her. Teena testified that when they did speak, her daughter would repeatedly call her a “whore.” Kayla rebuffed any attempts at reconciliation, refusing to return phone calls or text messages, and she had refused Teena’s gift for her high school graduation. Kayla had also threatened to lie in court to prevent Teena from getting custody or visitation, and she had assisted her father in alienating Kurt from his mother. This behavior caused Kurt great stress and difficulty with visitation.

¶ 11. George argues that the chancellor erroneously blamed Kayla when both mother and child were responsible for the strained relationship. He contends that Kayla’s anger at her mother’s adultery is understandable and that Teena had further strained the relationship by expressing concern over her daughter’s friendship with an older man. George notes also that the estrangement is not as severe as it was in Hambrick, where the daughter had not spoken with her father for six or seven years. While we recognize some validity in these arguments, sitting as an appellate court reviewing a cold record, we are not in a position to second-guess the chancellor’s interpretation of something as complex and personal as the relationship between a mother and her teenage daughter.

¶ 12. George also contends that the chancellor should have followed the holding in Caldwell v. Caldwell, 579 So.2d 543, 548 (Miss.1991), where the supreme court reversed the denial of child support to a fifteen-year-old child. The court held that a child of that age could only surrender her right to support through conduct that was “clear and extreme.” Id. However, we note that the Caldwell decision was based on the child’s age-the supreme court distinguished it from Hambrick on that basis. Id. As Kayla was college-aged, the chancellor did not err in applying Hambrick.

¶ 13. After reviewing the record in this case, we conclude the chancellor acted within her discretion in denying child support and educational expenses for Kayla.

2. Custody of Kurt; Albright factors

¶ 14. In his remaining issue, George contends the chancellor should have awarded custody of Kurt to him. He argues the chancellor’s decision resulted from an erroneous analysis of the Albright factors.

¶ 15. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court held that the best interest of the child must control in all custody decisions, and this principle has been adopted as public policy by the legislature in Mississippi Code Annotated section 93-5-24 (Rev.2004). In determining the best interest of the child in custody disputes, it is the duty of the court to consider that the relationship of parent and child is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (quoting J.W. Bunkley, Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi § 8.01 (2d ed.1957)).

¶ 16. To determine where the child’s best interest lies, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment responsibilities of the parents; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of the parents and children; (8) home, school, and community records of the children; (9) preference of children twelve years of age or older; (10) stability of the home environment and employment of each parent; and (11) other relevant factors in the parent-child relationship. Al-bright, 437 So.2d at 1005.

¶ 17. The chancellor is required to address each of the Albright factors that is applicable to the case before her. Powell v. Ayars, 792 So.2d 240, 244 (¶ 10) (Miss.2001). However, the chancellor need not decide that every factor favors one parent over the other. See Weeks v. Weeks, 989 So.2d 408, 411 (¶ 12) (Miss.Ct. App.2008). Nor are the Albright factors a mathematical formula where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Instead, the Al-bright factors exist to ensure the chancellor considers all the relevant facts before she reaches a decision. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way [she] sees fit” in determining where the child’s best interest lies. Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003).

¶ 18. In this case, the chancellor found that most of the Albright factors did not strongly favor either parent. Teena possessed superior parenting skills and capacity, had employment that was more conducive to custody, and had provided most of the care for the child prior to separation. George had stronger emotional ties to Kurt, but the chancellor was concerned that George had used them to alienate Kurt from his mother.

¶ 19. On appeal, George contends the chancellor’s findings in favor of Teena are erroneous. He also alleges that the chancellor failed to consider Teena’s adultery-under the moral fitness factor.

A. Undisputed Factors

¶ 20. Most of the Albright factors are not in dispute. Both parents are about the same age and are generally healthy. Both eventually had to leave the marital home after it was foreclosed on during the pen-dency of the divorce, but each showed an intent to remain in the area and keep Kurt in the same school. Teena and George had stable work histories. The chancellor concluded that both were “good parents” who “are capable of providing a good, moral, [and] stable home environment for the child.” Kurt had not reached twelve years of age at the time of trial, and thus was not old enough to express a preference under Mississippi law. See Miss.Code Ann. § 93—11—65(l)(a) (Supp.2011).

B. Parenting Skills, Willingness and Capacity

¶ 21. The chancellor recognized that both parents were willing and able to care for the children. However, she was concerned George had used his close relationship with Kurt to alienate him from his mother after the separation. George and Kurt were very close—Kurt would cry when he was separated from his father. During the marriage, this had caused George to quit a job when the hours impacted his time with the boy. George even allowed Kurt to sleep in his bed, a practice that continued after the separation.

¶ 22. There was testimony that after the separation, George frequently denied Teena visitation with Kurt, saying that Kurt did not want to go. Once a temporary order was entered for regular visitation, George permitted only the minimum required under the letter of the order. George was openly hostile toward Teena during the visitation exchanges, and he allowed Kayla to behave similarly in front of Kurt. When Kurt was reluctant to go with his mother, rather than comforting him, George would cry himself and tell Kurt the visitation would be over soon. George also bought Kurt a cell phone so he could call George during his visitation with Teena. The chancellor found that these actions were unjustified and had caused Kurt great stress.

¶ 23. George takes issue with the chancellor’s interpretation of these events, but he asks this Court to go beyond the scope of our review. “Where there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation.” Bowen v. Bowen, 982 So.2d 385, 395 (¶42) (Miss.2008) (quotations omitted).

¶ 24. The chancellor found that George’s alienating behavior reflected poorly on his parenting skills. The record supports this finding.

C.Moral Fitness

¶ 25. George attributed the breakup of the marriage to Teena’s extramarital affairs. He claimed to know of at least three affairs over the course of the marriage, apparently not counting a fourth that began after the separation. George contends the chancellor erred in finding this factor did not favor either parent. He recognizes that the issue is not whether Teena engaged in extramarital affairs, but how they relate to her parenting.

¶ 26. “Marital fault should not be used as a sanction in custody awards.” Albright, 437 So.2d at 1005. Adultery should be considered in evaluating moral fitness, but it should not be given undue weight. See Brekeen v. Brekeen, 880 So.2d 280, 286 (¶ 19) (Miss.2004). “Adultery of a parent may be an unwholesome influence and an impairment to the child’s best interest, but on the other hand, may have no effect.” Carr v. Carr, 480 So.2d 1120, 1123 (Miss.1985).

¶ 27. Reviewing the record, we find no error in the chancellor’s decision. There was no evidence Teena had exposed Kurt to any of her affairs, but George admitted he had allowed Kurt to be around his girlfriend after the separation. And while George correctly points out that Kayla knew of her mother’s affairs, there is no evidence Kurt did. Moreover, the chancellor found that George had used his wife’s decision to end the marriage to alienate the children from her, causing harm to the children that could have been avoided if he had acted with their best interest in mind.

¶ 28. We find no error in the chancellor’s findings on this issue.

D.Employment Responsibilities

¶ 29. The chancellor found that Teena’s employment was more conducive to child rearing. The record supports this finding: George had to be at work at 7:00 a.m. and would have to drop Kurt off with an aunt before school. Teena, on the other hand, started work at 8:80 a.m. Though she planned to live farther from Kurt’s school, in her custody Kurt could sleep later and spend the time before school with a parent rather than a relative. Tee-na would also get off work at 4:30 p.m., thirty minutes earlier than George, and she left work early on Fridays. The chancellor’s findings on this issue are supported by the record.

E. Continuity of Care

¶ 30. The chancellor found that this factor favored Teena based on her care of Kurt prior to the separation. George contests the evidence that Teena was the primary caregiver prior to separation, but, again, he asks this Court to reweigh evidence on appeal, which we cannot do. The real thrust of George’s argument on this issue is that the chancellor should have considered the approximately two years between the separation and the trial where George had custody of Kurt, including about a year between the separation and the temporary order. During that first year, Teena exercised very little visitation with Kurt.

¶ 31. George is correct that continuity of care after separation can be considered by the chancellor. See, e.g., Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997). However, in this case, the chancellor did consider what occurred after the separation. She concluded that George, not Tee-na, was responsible for Kurt’s recent alienation from his mother. This finding is supported by substantial evidence.

F. Conclusion

¶ 32. The chancellor was convinced that George could not put Kurt’s best interest above his anger at Teena. She concluded that placing Kurt in Teena’s custody would facilitate a healthier relationship with both parents. After reviewing the record, we find the chancellor’s decision supported by substantial evidence. George’s contention that the chancellor erred in her Albright analysis is without merit.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF GRENADA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: RUSSELL, J.,

text:
    Helen PEPPER, Appellant v. CITY OF JACKSON, Mississippi, Appellee.
    No. 2011-CC-00329-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.

      Earnestine Alexander, Jackson, attorney for appellant.
    James Anderson, Jr., Pieter John Teeu-wissen, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Helen Pepper appeals the Hinds County Circuit Court’s judgment, which affirmed the decision of the Civil Service Commission (Commission) to uphold Pepper’s sixty-day suspension without pay. She contends the Commission’s order was not supported by substantial evidence; the Commission acted in a manner that was arbitrary, unreasonable and capricious; her sixty-day suspension was excessive; and the Commission erred when it did not find that her suspension was politically motivated. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Pepper was employed with the Department of Administration of the Municipal Court for the City of Jackson. Her duties as municipal court clerk included processing affidavits, assisting police officers, and collecting, counting, and depositing money. All clerks for the City of Jackson were required to follow specific procedures for counting the money collected and bagging and depositing the money in a drop box. Under the procedures, the clerks are required to fill out a balance sheet for each deposit. Each clerk must count the money in the presence of another clerk. The depositing clerk must fill out a balance sheet and place that sheet in the money bag along with the cash and checks collected. The depositing clerk must then be accompanied by another clerk to the back of the office to witness the depositing clerk place the money bag in the drop box. Next, the depositing clerk must sign a “money bag drop verification form” certifying the amount of money deposited in the drop box. The witnessing clerk must then sign the form verifying that she witnessed the deposit of the money bag.

¶ 3. On November 1, 2004, Pepper began to close her cashier window and deposit the money she had collected on that day. The only other clerk present at that time was Chiquita Williams-Jemison, who was busy with customers at her own window. While Jemison was working, Pepper filled out her balance sheet indicating that she had collected a total of $2,958.06, including $1,200 in one hundred dollar bills and $331 in checks. Pepper then placed her balance sheet in her money bag and proceeded to deposit her bag in the drop box at the back of the office. Pepper signed the drop verification form and handed the form to Jemi-son for her signature. Jemison signed the form as a witnessing clerk even though she did not witness Pepper count or deposit the money in the drop box. On November 2, 2004, two accounting clerks retrieved Pepper’s money bag from the drop box to verify the bag’s contents. Both accounting clerks counted the money in Pepper’s bag and found that the bag was short by $1,531.06. The clerks then notified the supervisor, Charlotte Everett, who also counted the money and found the same shortage amount.

¶ 4. Court Administrator Jeanette Banks initiated an investigation for the missing funds from Pepper’s money bag. Jemison then came forward and disclosed that she falsified the money drop verification form by signing without witnessing Pepper count the money or place the money bag in the drop box. Jemison was disciplined by the City of Jackson for falsifying the verification form.

¶ 5. The City placed Pepper on a sixty-day suspension without pay, effective April 11, 2005, for failure to follow proper procedure in handling the money. The City found Pepper in violation of Civil Service and Personnel Rules as outlined in the Disciplinary Action Memorandum issued on April 6, 2005. The violations included: “Rule XII. Sec. 2.1E-Incompetency or inefficiency in the performance of duties of the position to which he/she is appointed, including becoming physically or mentally unable to perform” and “Personnel Rule 11.2.6 — Inefficiency, incompetence, carelessness, or negligence in performance of duties.”

¶ 6. Pepper appealed her suspension pro se to the Civil Service Commission. A hearing was held before the Commission on December 14, 2006. On April 12, 2007, the Commission found that Pepper had violated Civil Service and Personnel Rules by not following proper procedure and upheld her suspension.

¶ 7. On May 14, 2007, Pepper appealed to the Circuit Court of the First Judicial District of Hinds County. The circuit court affirmed the decision of the Commission, finding that substantial evidence existed to support the Commission’s determination that the suspension was made in good faith for cause. The circuit court also found that the decision of the Commission was not arbitrary, unreasonable, confiscatory, or capricious. From that judgment, Pepper now appeals.

DISCUSSION

¶ 8. The review of decisions of administrative agencies is limited in scope. Stevison v. Pub. Employees’ Ret. Sys., 966 So.2d 874, 878 (¶15) (Miss.Ct.App.2007). The employment decision of a city to remove, suspend, demote, or discharge a civil service employee is reviewed by the Civil Service Commission. City of Vicksburg v. Lane, 11 So.3d 162, 164 (¶ 10) (citing Miss. Code Ann. § 21-31-23 (Rev. 2007)). Decisions of the Commission may be appealed to the circuit court of the county in which the municipality is located. Id. “The circuit court’s standard of review is limited to determining whether the act of the Commission was or was not made in good faith for cause.” Id. The circuit court may only reverse the Commission’s decision if it is “(1) not supported by substantial evidence; (2) arbitrary or capricious; (3) beyond scope or power granted to the agency; or (4) violates one’s constitutional rights.” Sprouse v. Miss. Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994) (quoting Miss. Comm’n on Envt’l Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)). The Court “must not reweigh the facts of the case” in reviewing the decision of the Commission. Id.

¶ 9. The Commission found that the disciplinary action of the City of Jackson was not for political or religious reasons but was for cause shown. The circuit court found that the Commission acted in good faith for cause in upholding the length of Pepper’s suspension. Pepper argues there was no substantial evidence to support the Commission’s finding that she violated Civil Service and Personnel Rules. She also argues the Commission acted in a manner that was arbitrary, unreasonable, and capricious.

¶ 10. During the hearing before the Commission, several witness provided testimony regarding the proper procedure clerks must follow when depositing money. Among these witnesses were Pepper’s supervisor, Everett; the court administrator, Banks; and a deputy clerk, Jemison. Each witness stated that the procedure requires the depositing clerk to have another clerk witness the counting of the money. After this step, the depositing clerk must have the witnessing clerk accompany her to the back of the office to deposit the money bag into the drop box. These steps are then verified by signatures of both the depositing clerk and witnessing clerk.

¶ 11. According to Jemison, these steps were not followed, as Jemison admitted to falsifying the verification form. Pepper does not deny the fact that Jemison did not witness her count the money or accompany her to deposit the money bag. Instead, Pepper asserts that she should not be held responsible for the action or non-action of Jemison. But Pepper is not being held responsible for the action or non-action of Jemison. In fact, Jemison was disciplined due to falsifying Pepper’s money drop verification form. Pepper was disciplined for failing to follow proper procedure when handling money. According to the City of Jackson, failure to follow proper procedure when handling money constitutes incompetence, inefficiency, and negligence in the performance of duties. These are violations of Civil Service and Personnel Rules. Based on these facts, we find that substantial evidence existed to support the circuit court’s ruling that the Commission acted in good faith and not in a manner that was arbitrary, unreasonable, or capricious.

¶ 12. For the first time on appeal, Pepper contends her suspension was politically motivated due to a previous complaint she filed with the Equal Employment Opportunity Commission against Banks. In Pepper’s brief, she also contends the suspension constitutes “double jeopardy.” Both of these issues are procedurally barred, as they were never brought before the Commission. This Court has held that issues not raised before the Commission are deemed waived and may not be heard for the first time on appeal. Little v. City of Jackson, 375 So.2d 1031, 1033 (Miss. 1979). In addition, these issues are not for plain-error review, as Pepper’s fundamental rights were not affected, and the dismissal of these issues does not “prejudice the outcome” of the case. Hurt v. State, 34 So.3d 1191, 1197 (¶ 17) (Miss.Ct.App.2009).

¶ 13. We find that there is substantial evidence to support the decision of the circuit court affirming the decision of the Commission to uphold Pepper’s suspension. Therefore, the judgment of the circuit court is affirmed.

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

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


text:
    Sonja K. CANNON a/k/a Sonja Cannon a/k/a Sonja V. Cannon, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2011-CC-00816-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.

      Sonja K. Cannon, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Sonja Cannon appeals the Lincoln County Circuit Court’s judgment affirming the Mississippi Department of Employment Security’s (MDES) decision to deny her unemployment benefits. Finding no abuse of discretion, we affirm.

FACTS

¶ 2. Cannon was employed by Sanderson Farms as a line worker from August 2007 until her discharge in March 2010 for harassment of a co-worker.

¶ 3. Cannon worked with William Smith, a young maintenance man at Sanderson Farms. In July 2009, Smith reported that Cannon was stalking and harassing him even after he asked her to leave him alone. Lakeshia Costly and Ken Thompson, personnel supervisors, warned Cannon that this behavior was unacceptable and would not be tolerated.

¶ 4. In December 2009, Smith reported that Cannon had continued to harass him. Cannon waited in the parking lot for him to come out after work, told him that she loved him, and said that she missed him. At an interview with Thompson and Mattie Walker, the human resources manager, Cannon admitted making these statements. She was issued a formal warning and informed that if her behavior continued, she could be terminated.

¶ 5. In March 2010, Smith complained of Cannon’s harassment for the third time. This time, she grabbed his arm and told him that she hated him. Though Cannon admits this incident took place, she claims she slipped and was trying to steady herself when she grabbed Smith. Walker suspended Cannon for a few days before informing her that she was terminated for stalking and harassing another employee.

¶ 6. Based on her misconduct, Cannon was disqualified from receiving unemployment benefits. The administrative law judge (ALJ) affirmed the denial of benefits, as did the MDES Board of Review and the Lincoln County Circuit Court. Cannon appeals from that judgment.

STANDARD OF REVIEW

¶ 7. The standard of review in cases where this Court examines the circuit court’s judgment affirming the Board’s decision is abuse of discretion. Miss. Dep’t of Employment Sec. v. Clark, 13 So.3d 866, 870 (¶8) (Miss.Ct.App.2009) (quoting Howell v. Miss. Employment Sec. Comm’n, 906 So.2d 766, 769 (¶ 7) (Miss.Ct.App.2004)). Further, an agency’s findings should not be disturbed unless its order is: (1) not supported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) violates the claimant’s constitutional rights. Allen v. Miss. Dep’t of Employment Sec., 639 So.2d 904, 906 (Miss.1994).

¶8. Initially, we observe that Cannon appeals pro se, and her brief did not contain citation to any legal authority, statute, or part of the record relied upon as required by M.R.A.P. 28(a)(6). “As an appellate court, we are not required to consider an argument which is not supported by authority.” Doss v. State, 956 So.2d 1100, 1102 (¶ 7) (Miss.Ct.App.2007). However, appellate courts generally afford pro se litigants some leeway on appeal. See Kellar v. Miss. Employment Sec. Comm’n, 756 So.2d 840, 842 (¶ 6) (Miss.Ct.App.2000). We will review the arguments for any self-evident error that would not require the support of authority. Id.

ANALYSIS

¶ 9. We note that Cannon addressed all of her arguments to the facts. As we are not a fact-finding court, we are bound to accept the Board’s findings if they are supported by substantial evidence and are not arbitrary or capricious. Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). After hearing testimony from Cannon and a personnel supervisor, the ALJ determined that Cannon was terminated for violating Sanderson Farms’s policy against harassment. The ALJ also determined that Cannon knew her behavior violated this policy and was twice warned that it could result in her discharge. The Board affirmed. Its findings are supported by substantial evidence and were not arbitrary or capricious. Therefore, we review only the legal conclusions drawn by the Board of Review.

¶ 10. Section 71-5-513 of the Mississippi Code Annotated (Supp.2011) provides that an individual shall be disqualified for unemployment benefits when “he was discharged for misconduct connected with his work.” Misconduct has been defined as:

[Cjonduct evidencing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, come within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered “misconduct” within the meaning of the statute.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)).

¶ 11. The Board found that there was sufficient evidence that Cannon was guilty of willful misconduct connected with her work. The record contains substantial support for that finding. Cannon was advised of the policy against harassment during her orientation and during annual training. She was given a copy of the policy in her employee handbook, and the policy was also posted in the hallway at the Sanderson Farms facility. During the ALJ’s hearing, Cannon admitted that she was aware of the policy against harassment. Further, Cannon received two warnings that her behavior was unacceptable and that it could lead to her discharge.

¶ 12. Cannon also admitted telling Smith she loved him in December and admitted grabbing his arm and saying that she hated him in March. Cannon attacks the Board’s decision by asserting minor discrepancies in dates and the interpretation of her words. She claims that Smith led her on and that she did not feel like she was harassing him. However, these are factual assertions that we cannot review.

¶ 13. Cannon’s continued course of conduct involving Smith evidenced a willful and wanton disregard of the employer’s interest. We find no abuse of discretion and affirm the decision of the Lincoln County Circuit Court.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY IS AFFIRMED.

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


text:
    Marquis T. TOWNES a/k/a Marquis Townes, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00710-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.

      Marquis T. Townes, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Marquis Townes appeals the DeSoto County Circuit Court’s order dismissing his motion for post conviction relief (PCR). Townes raises three issues for review, which we restate for clarity: (1) whether his conviction and sentence should be overturned based on new evidence of self-defense; (2) whether he received ineffective assistance of counsel; and (3) whether Mississippi Code Annotated section 97-3-7 (Supp.2011) is unconstitutional. Finding no error, we affirm the circuit court’s dismissal of Townes’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Townes pled guilty to aggravated assault on July 28, 2008. At the plea hearing, Townes stated under oath that he was satisfied with the services of his attorney, and that he had no complaints about his attorney. Also on July 28, 2008, the circuit court sentenced Townes to 15 years and 117 days, with 117 days to serve in the custody of the Mississippi Department of Corrections (MDOC) and 15 years suspended and 15 years of post-release supervision. Townes was given credit for 117 days of time served and was also ordered to pay $29,084.04 in restitution. On January 29, 2010, ten years of Townes’s suspended sentence was revoked for his failure to pay restitution and his commission of new crimes. On November 10, 2010, Townes filed his PCR motion. The motion was dismissed, and he timely appealed.

DISCUSSION

¶ 3. “A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Lee v. State, 78 So.3d 330, 331 (¶ 5) (Miss. 2012) (quoting Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011)). “However, when issues of law are raised, the proper standard of review is de novo.” Id.

1. Whether Townes’s conviction and sentence should be overturned based on newly discovered evidence.

¶ 4. Townes argues that his conviction and sentence should be overturned because he has new evidence of a material fact-namely, that he was acting in self-defense at the time of the assault. He relies on Mississippi Code Annotated section 99-39-5(l)(e) (Supp.2011), which states:

(1) Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, ... may file a motion to vacate, set aside[,] or correct the judgment or sentence ... if the person claims:
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justicef.]

¶ 5. In Hoskins v. State, 812 So.2d 1043, 1044 (¶¶ 1-2) (Miss.Ct.App.2001), the defendant pled guilty to aggravated assault and subsequently filed a motion seeking a reduced sentence on the basis that he was acting in self-defense at the time of the assault. He argued that he had “new compelling facts” that were undiscoverable at the time of his guilty plea. Id. at (¶ 2). However, these “facts” consisted of “nothing more than Hoskins’s own version of the incident in which he claimed to have fired the weapon ... in self-defense.” Id. The circuit court treated the filing as a PCR motion and dismissed the motion. Id. at (¶ 3). This Court held that “[sjince all of the evidence relating to this self-defense claim was known to Hoskins at the time he entered his guilty plea, it is evident on the face of his motion that it cannot be newly discovered information unavailable to the defense through the exercise of reasonable diligence at the time the plea was entered.” Id. at (¶ 7). Therefore, we held his PCR motion lacked merit. Id.

¶ 6. In this case, Townes argues that he was acting in self-defense at the time of the assault. However, Townes’s PCR motion — like the motion in Hos-kins — consists of nothing more than his own version of the incident and an allegation that he was acting in self-defense. This defense was available to Townes at the time of his guilty plea. Further, this Court has previously held as follows:

Newly discovered evidence is relevant only in situations where a defendant went to trial and was convicted. If, following the trial, a defendant discovers relevant and material evidence which could not have reasonably been discovered prior to trial, the defendant may seek to have his conviction set aside based on the newly discovered evidence. When a defendant pleads guilty, he is admitting that he committed the offense. Therefore, by definition, a plea of guilty negates any notion that there is some undiscovered evidence which could, prove his innocence.

Jenkins v. State, 986 So.2d 1031, 1034 (¶ 12) (Miss.Ct.App.2008) (quoting Jones v. State, 915 So.2d 511, 514 (¶10) (Miss.Ct.App.2005)) (emphasis added). Thus, because Townes entered a plea of guilty, he cannot now claim he was acting in self-defense. This issue is without merit.

II. Whether Townes received ineffective assistance of counsel.

¶ 7. “To establish a claim of ineffective assistance of counsel, [the defendant] must prove, under the totality of the circumstances, that (1) his attorney’s performance was deficient and (2) the deficiency deprived the defendant of a fair trial.” Thomas v. State, 883 So.2d 1197, 1199 (¶ 12) (Miss.Ct.App.2004) (citing Jackson v. State, 815 So.2d 1196, 1200 (¶ 8) (Miss.2002)). In the context of a guilty plea, the defendant must prove, by a preponderance of the evidence, that but for the ineffective assistance of counsel, he would not have pled guilty and insisted on a trial. Pleas v. State, 766 So.2d 41, 43 (¶ 7) (Miss.Ct.App.2000).

¶ 8. Townes testified under oath at his plea hearing that he was satisfied with the services provided by his attorney. Townes further testified that he did not have any complaints about his attorney. We note that “declarations in open court carry a strong presumption of verity.” Thomas, 883 So.2d at 1199 (¶ 13) (quoting Brasington v. State, 760 So.2d 18, 25 (¶ 32) (Miss.Ct.App.1999)). Further, “[a] trial court is entitled to place great weight upon a defendant’s initial plea under oath.” Id. (citing Templeton v. State, 725 So.2d 764, 767 (¶ 10) (Miss.1998)). Townes failed to present any evidence in support of his claim that his prior sworn statements regarding his satisfaction with his attorney should be disregarded. See id. (holding that the defendant “failed to place before the trial court evidence of such weight as to establish that his prior sworn statement of satisfaction with his attorney should be disregarded”). Thus, this claim is without merit.

III. Whether Mississippi Code Annotated section 97-3-7 is unconstitutional.

¶ 9. Lastly, Townes argues that the aggravated-assault statute is unconstitutional. However, Townes fails to cite any authority to support his assertion. Therefore, his argument is procedurally barred. Martin v. State, 43 So.3d 533, 535 (¶ 10) (Miss.Ct.App.2010) (citing M.R.A.P. 28(a)(6)) (citation omitted).

CONCLUSION

¶ 10. Because Townes had the defense of self-defense available to him at the time he entered his guilty plea, his claim of newly discovered evidence is without merit. We also find no merit to Townes’s claim of ineffective assistance of counsel, as Townes admitted under oath that he was satisfied with the services of his attorney. Finally, Townes fails to cite any authority for his contention that the aggravated-assault statute is unconstitutional; therefore, his claim is procedurally barred.

¶ 11. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR.

      . We note that Townes does not allege his guilty plea was involuntary under Mississippi Code Annotated section 99 — 39—5(1 Xg) (Supp. 2011).


author: MALONE, Chief Justice.

text:
    Ex parte WRIGHT BROTHERS CONSTRUCTION COMPANY, INC., and GIBCO Construction, L.L.C. (In re Roger Whited v. Wright Brothers Construction Company, Inc., et al.).
    1100937.
    Supreme Court of Alabama.
    Jan. 13, 2012.

      Stanley A. Cash and Joseph R. Duncan, Jr., of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioner Wright Brothers Construction Company, Inc.
    Donald B. Kirkpatrick II and W. Walker Moss of Carr Allison, Birmingham, for petitioner GIBCO Construction, L.L.C.
    Jonathan C. Sapp, Sr., of the Sapp Law Firm, LLC, Jasper, for respondent.
   MALONE, Chief Justice.

Wright Brothers Construction Company, Inc. (“Wright Brothers”), and-GIBCO Construction, L.L.C. (“GIBCO”), both Tennessee corporations, petition this Court for a writ of mandamus directing the Walker Circuit Court to vacate its order denying their motion to transfer the underlying action to the Jefferson Circuit Court and to transfer the action. We grant the petition and issue the writ.

Factual Background and Procedural Histo'ry

In 2008 Roger Whited was involved in a two-vehicle accident at a quarry located northeast of Birmingham in Jefferson County. Both Whited and the driver of the other vehicle were employed by GIB-CO, who, along with Wright Brothers, was engaged in a project at the quarry. In 2010 Whited filed a complaint against Wright Brothers, GIBCO, and Sharon Gilbert, the owner and president of GIBCO, in the Walker Circuit Court seeking damages for personal injuries allegedly caused by the accident. In May 2010 Wright Brothers moved to transfer the action to Jefferson County, stating that Whited alleged in his complaint that he was a resident of Blount County, that the accident occurred in Jefferson County, and that therefore Jefferson County, not Walker County, was the proper venue for Whited’s action.

On June 29, 2010, Whited filed his response in opposition to Wright Brothers’ motion, stating that he was a resident of Walker County, not Blount County. Contemporaneously with that response in opposition, Whited also filed an amendment to his complaint stating that his statement that he was a resident of Blount County was a “clerical error.” Whited also alleged in his response that “Wright Brothers regularly does business [by agent] in Walker County, Alabama and has recently been engaged in major highway construction projects in Walker County.” Whited did not allege that Gilbert or GIBCO ever did business in Walker County but argued that venue in Walker County was proper as to them pursuant to Rule 82(c), Ala. R. Civ. P., which states, in pertinent part, that “[w]here several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.”

The day after Whited filed his response in opposition, Wright Brothers filed a document it referred to as a supplement to its motion for a change of venue and reply to Whited’s response. In that supplement and reply, Wright Brothers stated that it once did business in Walker County but that it had not done business there since 2005. Therefore, Wright Brothers argued, Walker County was not a proper venue for Whited’s action because the proper time for determining venue is the commencement of an action. Wright Brothers attached to its supplement an affidavit of Penny West, Wright Brothers’ corporate secretary. In that affidavit, West testified that Wright Brothers does not have a registered agent or office in Walker County, does not regularly carry on any business in Walker County, and has not done business in Walker County since 2005.

In August 2010 Wright Brothers filed a second supplement to address questions raised at an intervening hearing on the venue issue. At that hearing, Whited apparently alleged that Wright Brothers is affiliated with Walker County Rock Products, Inc. (‘WCRP”), a corporation whose principal location is in Walker County. In the second supplement, Wright Brothers stated that Wright Brothers is separate and distinct from WCRP and that the two corporations merely share some officers. Wright Brothers also noted that WCRP is not a party to this action and that it had ceased business operations in 1999. Wright Brothers attached to its second supplement a second affidavit of West in which she testified that Wright Brothers and WCRP were separate and distinct corporations, that filings with the Alabama Secretary of State indicated that WCRP had not been “active” since at least 1999, and that WCRP had no role in the quarry project on the site of the accident giving rise to this action. Attached to West’s affidavit was a printout from the Secretary of State’s Web site, dated August 2, 2010, showing that the last annual report filed by WCRP was filed in 1999.

Also in August 2010 GIBCO filed a “renewed” motion to transfer and a reply to Whited’s response in opposition to Wright Brothers’ motion to transfer. In that motion, GIBCO stated that GIBCO did not do business in Walker County. GIBCO also filed an affidavit of Sharon Gilbert in which she testified that GIBCO had never done any business or had an agent or office in Walker County.

After holding a second hearing on the venue question on April 7, 2011, the trial court denied Wright Brothers’ and GIB-CO’s motions on April 8, 2011. The trial court’s order stated in its entirety: “Defendants’ Motion to Transfer is hereby DENIED.”

Wright Brothers and GIBCO filed their joint petition for a writ of mandamus on May 20, 2011; this Court ordered answer and briefs from the parties on June 14, 2011. On June 28, 2011, the trial court entered an order entitled “Corrected Order Of April 8, 2011,” stating that it was entering the order pursuant to Rule 60(a), Ala. R. Civ. P. The “correction” to the one-sentence April 8, 2011, order comprised three pages of findings of fact, analysis, and legal conclusions, none of which, according to the materials before us, was suggested by Whited or the trial court at any earlier point in this action. The order purported to strike the affidavits proffered by Wright Brothers, finding the second one “false on its face.” The order based that conclusion on the trial court’s analysis of the affidavits as compared with eorpo-rate filings with the Alabama Secretary of State. Whited filed his answer to the petition with this Court the next day, incorporating many of the arguments that appeared for the first time in the trial court’s June 28 order. On July 13, 2011, Wright Brothers and GIB CO filed a reply brief with this Court addressing the new arguments raised in the trial court’s corrected order and in Whited’s answer.

Standard of Review

The parties disagree on the proper standard of review that applies to the trial court’s denial of the motions to transfer. Wright Brothers and GIBCO argue that their petition presents only an issue of statutory interpretation, making this Court’s standard of review de novo. Whited argues that the question on which the motions to transfer was decided — whether Wright Brothers was doing business in Walker County at either the time of the accident or at the commencement of this action — is a mixed question of law and fact.

“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.” Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). This Court will issue a writ of mandamus ordering a trial court to transfer an action when the trial court’s denial of a motion for a change of venue presents “ ‘a clear showing of error,’ ” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002) (quoting Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987)), or when the trial court has exceeded its discretion. Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 344 (Ala.2006); Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

Discussion

“ ‘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). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).
“ ‘The burden of proving improper venue is on the party raising the issue....’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Pike Fabrication, 859 So.2d at 1091. If Wright Brothers and GIBCO made a prima facie showing that venue in Walker County was improper, the burden then shifted to Whited to rebut that showing. Ex parte Movie Gallery, Inc., 31 So.3d 104, 109 (Ala.2009).

Once venue has been shown to be improper, transfer of the action is mandatory. Ex parte Parker, 413 So.2d 1105, 1106 (Ala.1982). Rule 82(d)(1), Ala. R. Civ. P., provides: “When an action is commenced laying venue in the wrong county, the court, on timely motion of any defendant, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.” (Emphasis added.)

The parties agree that Ala.Code 1975, § 6-3-7(a), governs the question of venue in this case. That statute provides, in pertinent part:

“(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 plaintiff’s 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.”

The parties agree that the event giving rise to this action occurred in Jefferson County and that Wright Brothers’ principal office in Alabama is not in Walker County. The parties agree that Whited resides in Walker County and that § 6-3-7(a)(3) would operate to establish venue in Walker County if Wright Brothers does business by agent in that county.

Wright Brothers had the burden of making a prima facie showing that it did not do business by agent in Walker County at the time of the accident or at the time Whited filed his complaint. Wright Brothers presented the affidavit of its corporate secretary stating that Wright Brothers had not done business in Walker County since 2005 and that it did not have an agent for service of process in Walker County. Whited countered by alleging, without proffering any supporting evidence, that Wright Brothers was affiliated with WCRP, an Alabama corporation with its principal place of business in Walker County. In response to that unverified allegation, Wright Brothers produced another affidavit of its corporate secretary stating that Wright Brothers and WCRP were separate and distinct corporate entities. Whited made no attempt to present any evidence to the contrary, although it was Whited’s burden to do so.

Even assuming, as Whited did and as the trial court apparently did in issuing its corrected order, that Wright Brothers was affiliated with WCRP, Whited cites no authority, and we are aware of none, rendering venue proper in any county in which any affiliate of a named corporate defendant does business when that affiliate is not made a defendant to the action and is not alleged to have contributed in any manner to the events giving rise to the action. Cases cited by Whited support only the proposition that, when a subsidiary of a corporation is sued and venue is proper in the county where the subsidiary is sued, venue can also be proper as to the subsidiary’s parent company if, for example, the subsidiary is the means by which the principal is able to do business in the county in which venue is asserted, Ex parte Charter Retreat Hosp., Inc., 538 So.2d 787, 789-90 (Ala.1989), or there is some other corporate purpose served by the subsidiary that makes venue in the county proper, Ex parte Beard, 556 So.2d 384, 385-86 (Ala.1990). Here, Whited made no such allegation but alleged merely that WCRP was a subsidiary of, or otherwise affiliated with, Wright Brothers.

The affidavits of Wright Brothers’ corporate secretary comport with data provided by the Alabama Secretary of State, and the materials accompanying this petition provide no reason to doubt the veracity of the corporate secretary’s affidavits. Whited failed to submit any evidence in rebuttal and thereby failed to meet his eviden-tiary burden. The materials before us can support only the determination that, pursuant to § 6 — 3—7(a)(1), venue for this action is improper in Walker County and proper in Jefferson County. The materials before us therefore present a clear showing of error on the part of the trial court in denying the motions for a change of venue, and we therefore pretermit discussion of the remaining issues raised by the parties.

Conclusion

Because venue for the underlying action is proper in Jefferson County and not in Walker County, Wright Brothers and GIB-CO have a clear legal right to the order they seek. Because in this case transfer under § 6-3-7 and Rule 82(d)(1) is mandatory, the trial court had an imperative duty to transfer the case and refused to do so. The only proper legal remedy is a writ of mandamus. Wright Brothers and GIBCO have properly invoked the jurisdiction of this Court. Accordingly, we grant the petition and issue the writ directing the Walker Circuit Court to vacate its April 2011 and June 2011 orders denying the transfer and to transfer this action to the Jefferson Circuit Court.

PETITION GRANTED; WRIT ISSUED.

STUART, PARKER, and WISE, JJ., concur.

SHAW, J., concurs in the result.

      . It appears that GIBCO’s August 2010 motion to transfer was the first such motion it filed; it did not join in Wright Brothers' May 2010 motion.

      . We recognize that the filing of a petition for a writ of mandamus does not divest the trial court of jurisdiction or stay the case. Ex parte Denson, 57 So.3d 195, 197 (Ala.2010) ("The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order in perfecting a filing in the case.”). The trial court's June 28, 2011, order is not properly before this Court. We are called on to review the decision challenged by the mandamus petition. "[Tjhis Court is bound by the record, and it cannot consider a statement or evidence in a party's brief that was not before the trial court.” Ex parte Pike Fabrication, Inc., 859 So.2d at 1089, 1091 (Ala.2002). Likewise, the new arguments in Whited’s answer, apparently never presented to the trial court, that parallel that order likewise cannot be considered by this Court in determining whether Wright Brothers and GIBCO’s petition for a writ of mandamus is due to be granted. Otherwise, the trial court and Whited would be permitted to "sandbag” Wright Brothers’ and GIBCO’s arguments. Cf. Ex parte Pike Fabrication, 859 So.2d at 1093 ("We believe that the trial court's denial of Pike's motion for a change of venue while reserving for an unlimited time the right to revisit the issue effectively traps Pike in an improper venue.”); Fogarty v. Southworth, 953 So.2d 1225, 1232 n. 3 (Ala.2006) (noting the definition of "sandbag” as “ 'to conceal one’s true position ... in order to take advantage’ " of an opponent (quoting Merriam-Webster's Collegiate Dictionary 1100 (11th ed. 2003))).


author: MURDOCK, Justice.

text:
    Ex parte James G. CASEY, Sr., and Julie Toner. (In re: Jo Ann H. Casey v. James G. Casey, Sr., and Julie Toner).
    1100444.
    Supreme Court of Alabama.
    Jan. 20, 2012.

      Patrick J. Ballard, Birmingham, for petitioners.
    James M. Wooten, Birmingham, for respondent.
   MURDOCK, Justice.

James G. Casey, Sr. (“James Sr.”), and Julie Toner (“Julie”), the daughter of James Sr. and Jo Ann H. Casey (“Jo Ann”), seek a writ of mandamus from this Court directing the Jefferson Circuit Court (“the circuit court”) to dismiss Jo Ann’s petition to remove a guardianship and conservatorship proceeding concerning her (“the guardianship proceeding”) from the Jefferson Probate Court (“the probate court”) to the circuit court. We grant the petition and issue the writ.

I. Facts and Procedural History

On June 11, 2008, Jo Ann filed a petition for divorce in the domestic-relations division of the Jefferson Circuit Court (“the domestic-relations court”); the divorce action is not the subject of the present petition. In her divorce petition, Jo Ann, who was 74 years old, alleged that James Sr. had committed domestic violence against her and that he had hidden from her most of their marital property and her separate property. According to James Sr. and Julie, however, the divorce proceeding was initiated as a result of undue influence exerted on Jo Ann by James G. Casey, Jr. (“James Jr.”), the son of James Sr. and Jo Ann.

On June 12, 2008, the domestic-relations court issued an ex parte temporary restraining order enjoining James Sr. “from harassing, intimidating, or committing any acts of violence upon [Jo Ann] during the pendency of [the divorce proceeding]” and “from disposing, transferring, spending, giving away or secreting any assets ... or otherwise disposing of any assets or monies belonging to [him or Jo Ann] except [those needed by him] for his normal and customary day to day living expenses.”

In July 2008, James Sr. filed a motion to dismiss the divorce petition on the ground that Jo Ann was mentally incompetent. Thereafter, the divorce proceeding was the subject of several delays.

In March 2009, the domestic-relations court entered an order stating that James Sr.’s motion to dismiss was “moot.” Neither that order nor any of the other materials before us reflect the basis for the court’s determination that James Sr.’s motion was moot.

Notwithstanding its March 2009 order finding James Sr.’s motion to dismiss Jo Ann’s divorce petition “moot,” the domestic-relations court entered an order in October 2009 setting Jo Ann’s divorce petition for trial in February 2010; the trial date was subsequently reset to April 20, 2010. Also in October 2009, James Sr. filed a motion requesting that the domestic-relations court order an independent medical examination of Jo Ann and appoint a guardian ad litem for Jo Ann.

In December 2009, James Sr. deposed Dr. Paul Roller, a geriatric-health-care physician, who had been treating Jo Ann for cognitive-impairment symptoms since May 2007. The purpose of this deposition apparently was to obtain evidence in support of James Sr.’s opposition to the divorce petition.

On January 5, 2010, James Sr. and Julie filed a petition in the probate court seeking letters of guardianship and conserva-torship as to Jo Ann. Thereafter, the domestic-relations court stayed the divorce proceeding pending resolution of the issues in the guardianship proceeding.

The probate court appointed Rita Mi-zelle as a “court representative” in the guardianship proceeding. After accepting her appointment, Mizelle interviewed James Sr., Julie, Jo Ann, and James Jr. In March 2010, Mizelle submitted a report to the probate court. According to the report, the “environment in [James Sr. and Jo Ann’s] home is very depressing and dysfunctional.” Mizelle’s report recommended against the appointment of James Sr. and Julie as the co-guardians and co-conservators of Jo Ann. It also recommended that Jo Ann

“be given a complete medical and psychological [examination] to determine if she was in the early stages of Alzheimer’s or dementia. At such time when a doctor determines she needs special care or guardianship, I recommend [the guardianship] be given to someone that can meet [Jo Ann’s] needs without placing her in an environment of fear and dislike.”

On March 29, 2010, the probate court entered an order appointing Dr. Roller to examine Jo Ann and requiring him to submit a written report to the court “as to any mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs or chronic intoxication, which affects the ability of the alleged incapacitated person to handle her personal affairs and/or financial interests.”

On April 16, 2010, Dr. Roller submitted his written report to the court. The report states, in part:

“From a physical standpoint Mrs. Casey’s health has been fairly stable. She has chronic atrial fibrillation and requires the use of an anticoagulant to keep her blood thin and prevent strokes. She has been able to maintain consistent follow-up and management of this medication which often times is difficult secondary to the need for routine blood testing. She has lost some weight and appears to be suffering from some anxiety and depression related to her current social stressors.
“Mental status today also appears to be stable. A brief screening questionnaire, Mini-Mental status exam, was performed by my staff. Mrs. Casey scorefd] a 22/30 on this exam which is unchanged from her initial evaluation almost 3 years ago. She answered most of my questions appropriately and appeared to understand her current medical issues. As noted in my office visit assessment, she continues to participate in her own healthcare needs, her activities of daily living such as personal hygiene, dressing herself and ambulating without difficulty. She also appears to maintain her instrumental activities such as using the telephone, assisting with her medications, house cleaning and attending various social activities.
“In my opinion, Mrs. Casey may have some mild cognitive deficit and memory loss but is not incapacitated. She does need some assistance in order to continue to reside in the community and this appears to be provided to her by her son rather than her spouse or other children. I am aware that she has previously been evaluated by Dr. Terri Steele who is a geriatric psychiatrist at University of Alabama Birmingham and has had formal neuro psychiatric testing by Dr. Daniel Marson, a psychologist at University of Alabama at Birmingham. I would defer to them for any additional information regarding her capacity to make financial decisions.”

Also in April 2010, J. Edmond Odom, Jr., an attorney who had been appointed Jo Ann’s guardian ad litem in the guardianship proceeding, submitted a letter to the probate court asserting that Jo Ann “does not need a Conservator or Guardian appointed for her in any fashion.” Further Moses O. Stone, an attorney who also had been appointed as a “court representative” in the guardianship proceeding, filed a report with the probate court. Stone’s report concludes that, based upon his interviews with James Sr., Julie, Janet Hubbard (who also is a daughter of James Sr. and Jo Ann), Jo Ann, and James Jr., “it is my considered opinion that the Co-petitioners James [Sr.] and Julie Toner should not be appointed Guardian and Conservator.”

On August 16, 2010, the probate court entered an order appointing another physician, Dr. Rebecca Jones, to examine Jo Ann and to submit a report to the court regarding whether Jo Ann had any physical or mental condition or substance-abuse problem that “affects the ability of the alleged incapacitated person to handle her personal affairs and/or financial interests.” Acting on the advice of her legal counsel, Jo Ann refused to submit to the scheduled examination by Dr. Jones, and she filed a motion requesting that the probate court vacate its August 16 order and enter a summary judgment in her favor and against James Sr. and Julie as to their petition for letters of guardianship and conservatorship. In support of her motion, Jo Ann relied, in part, upon the December 2009 deposition testimony of Dr. Roller and upon the opinions or recommendations given to the probate court by Dr. Roller, Mizelle, Odom, and Stone. As to Dr. Roller’s testimony, Jo Ann’s motion alleged:

“Dr. Roller testified that [Jo Ann] is capable of communicating with individuals and with him; of making health care decisions regarding her medication, care and treatment. According to Dr. Roller, [Jo Ann] is also capable of making responsible decisions regarding her finances, medication and health care. She is able to care for herself, feed herself, dress herself and manage her personal hygiene. According to Dr. Roller, [Jo Ann] is also able to follow his instructions and is capable of contributing and participating in her divorce action.”

Jo Ann’s motion asserted:

“[T]he requirements of the Alabama Uniform. Guardianship and Protective Proceedings] Act have been satisfied. [James Sr. and Julie] can present no evidence that [Jo Ann] is incapacitated, incompetent nor in need of protection under the act. Thus, there being no material facts in dispute, [Jo Ann] is entitled to summary judgment and the denial/dismissal of this Petition.
“Further, to require [Jo Ann] to submit to another single medical examination and evaluation by a doctor who has never treated her while there is such evidence currently before the Court indicating that she is competent is in violation of the Alabama Uniform Guardianship and Protective Proceedings] Act, as well as violative of [her] rights to due process and equal protection. On this basis, [Jo Ann] objects to the Order of the Court directing her to submit to another medical examination by Dr. Rebecca Jones and respectfully moves this Court to set aside and vacate such order.”

The probate court set James Sr. and Julie’s petition for letters of guardianship and conservatorship for a hearing on the merits to be conducted on January 6, 2011.

On October 14, 2010, the probate court again ordered a full physical and mental examination of Jo Ann by Dr. Olga Belot-serkovskaya and directed Dr. Belotserkov-skaya to submit a report to the court regarding Jo Ann’s capacity. Before the court-ordered exam by Dr. Belotserkov-skaya occurred, Jo Ann filed a “Petition for Removal/Transfer” in the circuit court (“the removal petition”); the removal petition sought an order “removing and transferring” the guardianship proceeding from the probate court to the circuit court pursuant to § 26-2-2, Ala.Code 1975. In conjunction with the filing of the removal petition, Jo Ann also filed a motion requesting that the circuit court stay further action by the probate court in the guardianship proceeding. The circuit court granted the motion to stay pending its ruling on the removal petition.

James Sr. and Julie objected to the relief requested in the removal petition on the ground that the circuit court lacked subject-matter jurisdiction to remove the guardianship proceeding from the probate court to the circuit court. On December 10, 2010, the circuit court conducted a hearing on the removal petition. Thereafter, the circuit court ordered and received additional briefing from the parties as to the issue of its jurisdiction.

On February 10, 2011, the circuit court entered an order granting Jo Ann’s petition to remove the guardianship proceeding from the probate court to the circuit court.

James Sr. and Julie petitioned this Court for a writ of mandamus and requested that this Court enter an order staying further proceedings in the circuit court until our disposition of their petition for the writ of mandamus. We entered an order staying the proceedings, and we now issue the writ.

II. Standard of Review

James Sr. and Julie argue that the circuit court lacked subject-matter jurisdiction to remove the guardianship proceeding when it entered the removal order. It is well settled that “ ‘[t]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ ‘We review de novo whether the trial court had subject-matter jurisdiction.’ ” Ex parte PinnOak Res., LLC, 26 So.3d 1190, 1198 (Ala.2009) (citations omitted).

“ ‘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.’ ”

26 So.3d at 1197 (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

III. Analysis

As to the administration of guardian-ships and conservatorships, the probate court is a court of general and original jurisdiction. See Ala. Const.1901, § 144; Ala.Code 1975, § 12-18-l(b)(6) and (b)(7); see also Ala.Code 1975, § 26-2A-31(a). Nevertheless, pursuant to Ala.Code 1975, § 26-2-2,

“[t]he administration or conduct of any guardianship or conservatorship of a minor or incapacitated person may be removed from the probate court to the circuit court, at any time before the final settlement thereof by the guardian or conservator of any such guardianship or conservatorship or guardian ad litem or next friend of such ward or anyone entitled to support out of the estate of such ward without assigning any special equity, and an order of removal must be made by the court or judge upon the filing of a sworn petition by any such guardian or conservator or guardian ad litem or next friend for the ward or such person entitled to support out of the estate of such ward, reciting in what capacity the petitioner acts and that in the opinion of the petitioner such guardianship or conservatorship can be better administered in the circuit court than in the probate court.”

James Sr. and Julie contend that the circuit court did not acquire subject-matter jurisdiction over the guardianship proceeding because, they argue, there was no “administration or conduct of [a] guardianship or conservatorship” to be removed when Jo Ann filed the removal petition. We agree.

As the parties and the circuit court recognized, a marked similarity exists between the language of § 26-2-2 and the language of Ala.Code 1975, § 12-11^41, which governs the removal of the administration of a decedent’s estate from the probate court to the circuit court. Section 12-11-41 states:

“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, dis-tributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.”

As it does with the administration of guardianships and conservatorships, the probate court has general and original jurisdiction over the administration of decedents’ estates. See Ala. Const.1901, § 144; Ala.Code 1975, § 12-13-l(b)(l) and (2). In regard to the application of § 12-11-41, this Court has noted that “[t]he circuit court cannot assume jurisdiction over the administration of an estate when the administration has not yet begun,” Ex parte Smith, 619 So.2d 1374, 1375-76 (Ala.l993)(emphasis added), and that “[t]he circuit court cannot initiate the administra^ tion of an estate, because the initiation of administration is a matter exclusively in the jurisdiction of the probate court.” Id. at 1376. As we explained in Smith, “the mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court.” 619 So.2d at 1376. We observed in Allen v. Estate of Juddine, 60 So.3d 852, 855-56 (Ala.2010) (citing Smith, 619 So.2d at 1376), that “[t]he administration of the estate was initiated by the probate court when it granted ... letters of administration.”

This Court recently reaffirmed the foregoing propositions of law in DuBose v. Weaver, 68 So.3d 814 (Ala.2011).

“[T]he administration of an estate does not begin merely upon the filing in the probate court of a petition for letters of administration or of a petition for probate of a will and for letters testamentary. As to the former, this Court has recognized that ‘the mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court.’ Ex parte Smith, 619 So.2d [1374,] 1376 [ (Ala.1993) ]; see also, e.g., Allen v. Estate of Juddine, 60 So.3d 852, 855 (Ala.2010) ...; Ex parte Berry, 999 So.2d [883,] 886 [(Ala.2008)] (‘[T]his Court in Ex parte Smith [, 619 So.2d 1374 (Ala.1993),] held that removal of the will proceeding from the probate court to the circuit court was premature because the probate court had not initiated the administration of the estate by acting on the petition.’); and Ex parte Kelly, 243 Ala. 184, 187, 8 So.2d 855, 857 (1942). As to the latter, this Court has noted that, where no letters of general administration have issued from the probate court and where the decedent’s will has not yet been admitted to probate, the circuit court 'is without jurisdiction to make an order’ removing the administration of the estate from the probate court to the circuit court. Ex parte Pettus, 245 Ala. 349, 351, 17 So.2d 409, 410-11 (1944).”

DuBose, 68 So.3d at 821-22 (final emphasis added).

Based upon the substantial similarity of the language of § 12-11^1 and the language of § 26-2-2, the reasoning that led us to the foregoing conclusions in Smith, Juddine, and DuBose regarding § 12 — 11— 41 now compels us to a comparable conclusion regarding § 26-2-2. The filing of a petition for letters of guardianship or con-servatorship does not begin “[t]he administration or conduct of [the] guardianship or conservatorship”; rather, the probate court must act upon the petition before the guardianship or conservatorship may by subject to removal to the circuit court. It likewise follows that, absent the existence of a guardianship or conservatorship, the circuit court cannot remove “[t]he administration or conduct of [the] guardianship or conservatorship” from the probate court. Accordingly, as the Court of Civil Appeals concluded in Ex parte Coffee County Department of Human Resources, 771 So.2d 485, 487 (Ala.Civ.App.2000), after also noting the similarity between § 12-11-41 and § 26-2-2, “the circuit court did not have jurisdiction to enter a removal order before the probate court had acted upon” the petition for letters of conservatorship.

In the present case, James Sr. and Julie filed the guardianship proceeding requesting that the probate court determine whether Jo Ann is in need of a guardian or conservator. Although there have been numerous proceedings in the probate court concerning the question whether Jo Ann is incapacitated in such a manner that requires the appointment of a guardian or conservator, the probate court has not yet answered that question. Likewise, it has not entered an order concluding that Jo Ann is in need of a guardian or conservator or appointing a guardian or conservator. See Ala.Code 1975, § 26-2A-105(b) (“The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person of the incapacitated person.”); Ala.Code 1975, § 26-2A-135(f) (“After hearing, upon finding that a basis for the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate protective order.”). In other words, the probate court has not entered an order creating a guardianship or conservatorship for Jo Ann. Logically, because no guardianship or con-servatorship has been created for Jo Ann, there is no “administration or conduct” of such guardianship or conservatorship to be removed from the probate court to the circuit court.

IV. Conclusion

For the foregoing reasons, the circuit court lacked subject-matter jurisdiction to remove the guardianship proceeding from the probate court. We therefore order the circuit court to enter an order vacating its February 10, 2011, removal order, lifting its stay of the guardianship proceeding, and dismissing the removal petition.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL and MAIN, JJ., concur.

BOLIN, J., concurs in the result.

      . There is some discussion in the briefs as to whether James Sr. subsequently violated the restraining order by making transfers of cash to Julie and Janet Hubbard, his and Jo Ann’s other daughter, and whether the parties agreed at one point to a dissolution of the restraining order. Neither of these issues appears germane to the question before us in this mandamus proceeding.

      . The petition also cited § 26-2A-32, Ala. Code 1975, as a basis for removal. Section 26-2A-32 addresses venue of guardianship and conservatorship actions and provides no basis for the circuit court’s removal order in this case.

      . The circuit court’s removal order also purported to transfer the guardianship proceeding to the domestic-relations division of the circuit court so that the guardianship proceeding could be consolidated with the stayed divorce proceeding.

      . Section 144, Ala. Const. 1901, uses the term "guardianship” in the sense that it was used before the enactment of the Alabama Uniform Guardianship and Protective Proceedings Act, Ala. Code 1975, § 26-2A-1 et seq. ("the AUGPPA”). At that time, the term "guardianship” might have referred to either (1) a guardianship of the person of a minor or of an incapacitated person, which still is referred to as a "guardianship” under the AUGPPA, see Ala.Code 1975, § 26-2A-20(7)(defining "guardian”), or (2) a guardianship of the property (i.e., estate) of a minor or of an incapacitated person, which is referred to as a "conservatorship” under the AUGPPA, see Ala.Code 1975, § 26-2A-20(2)(defining "conservator”). See also Comment to § 26-2A-1 ("[The AUGPPA] recognizes two fiduciary capacities — i.e., a 'guardian' who is 'of the person' and analogous to the role of the parent, and a 'conservator' who is 'of the property' and more closely analogous to the role of a trustee. Historically, in many states, including Alabama, the term 'guardian' covered both of these capacities and for that reason has been a source of confusion.”); see also 1 William Blackstone, Commentaries *448 ("The guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was the committee of the person, the curator the committee of the estate.”).

      . When the Alabama Uniform Guardianship and Protective Proceedings Act ("AUGPPA”) was enacted in 1987, § 26-2-2 was amended to reflect the terminology used in the AUGP-PA. Compare § 26-2-2, Ala.Code 1975, as amended, 1987 Ala. Acts, No. 87-590, with Tit. 21, § 26, Ala.Code 1940 (1958 Recomp.) ("The administration or conduct of any guardianship of a minor or person of unsound mind may be removed .... ”), the language of which remained unchanged when Tit. 21, § 26, was first recodified as § 26-2-2 in 1975.

      . The circuit court has original jurisdiction over actions filed pursuant to the Adult Protective Services Act, Ala.Code 1975, § 38-9-1 et seq. The present case was not initiated in the circuit court pursuant to that Act.
      Likewise, the present case does not involve, and we do not consider, the issue whether any of the orders of the probate court properly could have been appealed to the circuit court. See Ala.Code 1975, § 26-2A-36; Ala. Code 1975, § 12-22-20 et seq.

      . The probate court has subject-matter jurisdiction to determine whether a minor is in need of a guardian or conservator and whether a person is incapacitated and is in need of a guardian or conservator. See Ala.Code 1975, § 26-2A-31. The filing of a petition that raises the possibility of the necessity for the appointment of a guardian or conservator, however, is not the equivalent of creating a guardianship or conservatorship that must be "administ[ered] or conduct[ed].”
      Also, although we recognize that certain guardians exist by nature (i.e., a parent or natural guardian) or may be created by appointment, see Ala.Code 1975, § 26-2A-70 (temporary “guardian of a minor by parental appointment”); Ala.Code 1975, § 26-2A-100 (discussing a parent’s and a spouse’s right, by will or other writing, to appoint a guardian for an incapacitated child or spouse, respectively), the present case, which concerns an attempt to obtain a guardianship and conser-vatorship by appointment in the probate court, does not require us to determine how § 26-2-2 might be applied to the removal of such a natural or parent-appointed guardianship from the probate court to the circuit court.

      . The circuit court specifically concluded in its February 2011 removal order that "§ 26-2-2[, Ala.Code 1975,] allows that the administration or conduct of a petition for conserva-torship or guardianship may be removed to the Circuit Court before final settlement.” (Emphasis added.) Section 26-2-2 does not refer to the removal of a petition for conserva-torship or guardianship, however, but to the “administration or conduct of any guardianship or conservatorship.”
      Also, we note that whatever distinction, if any, the legislature might have intended between the terms "administration” and “conduct” in regard to guardianships and conser-vatorships, the language of § 26-2-2 plainly contemplates that a guardianship or conser-vatorship exist before either its "administration or conduct” can be the subject of removal from the probate court to the circuit court. This conclusion also is consistent with case-law references to the "conduct of a guardianship” in relation to the actions of a guardian after his or her appointment. See Moody v. Bibb, 50 Ala. 245, 246 (1874) (" 'Moody set up, as a bar to this suit, the decree discharging him on said final settlement of April 16, 1863; and he insisted that, in the management and conduct of his said guardianship, he acted throughout in good faith, and wholly without fraud.’ ” (quoting trial court’s order) (emphasis added)); see also, e.g., Aubrey's Estate v. De Lozier, 128 Okla. 79, 261 P. 192, 194 (1927) (“The annual account [of a guardian] is a part of the regular administration of the court, is intended to inform the judge and also interested parties of the status and general conduct of the guardianship, and is usually accepted and filed ex parte, and without a hearing.” (emphasis added)); Rickel v. Peck, 211 Minn. 576, 584, 2 N.W.2d 140, 144 (1942) (to like effect); Jones v. Parker, 67 Tex. 76, 82, 3 S.W. 222, 226 (1886) (to like effect); In re Guardianship of Langill, 123 Wash. 704, 704, 212 P. 1119, 1119 (1923) (to like effect); and Wescott v. Upham, 127 Wis. 590, 107 N.W. 2, 3 (1906) (to like effect).