author: IRVING, J.,

text:
    Dr. Rick HOOVER, Appellant v. Dr. Robert HOLBERT, Appellee.
    No. 2009-CA-01349-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.

      Kristopher W. Carter, Ocean Springs, attorney for appellant.
    William T. Reed, attorney for appellee.
    Before KING, C.J., IRVING, ROBERTS and CARLTON, JJ.
   IRVING, J.,

for the Court:

¶ 1. Dr. Robert Holbert owned the Gautier Medical Clinic P.A. in Gautier, Mississippi. In 2000, Dr. Holbert sold the clinic to Dr. Rick Hoover. Around the time of the sale, Dr. Hoover executed a promissory note to Dr. Holbert in the amount of $100,000. Dr. Hoover refused to pay the note, claiming that it was merged into a subsequent asset purchase agreement. Dr. Holbert sued Dr. Hoover in the Jackson County County Court. The county court ruled in favor of Dr. Holbert, and Dr. Hoover appealed to the Jackson County Circuit Court, which found that the promissory note was valid and affirmed the judgment of the county court. Dr. Hoover now appeals, claiming that the par-ol-evidence rule “strictly prohibits bringing in the prior promissory note to alter the unambiguous terms of the subsequent Asset Purchase Agreement.... ”

¶ 2. We agree with the county court that the promissory note is valid and enforceable. Accordingly, we affirm the circuit court’s judgment.

FACTS

¶ 3. On August 18, 2000, Dr. Hoover executed a promissory note to Dr. Holbert for $100,000. In its entirety, the note states:

I[,] Rick Hoover[,] promise to compensate Robert Holbert $100,000. This compensation will become due Aug. first 2005. Furthermore^] there will be interest paid at the rate of. 5% each year on the principle of $100,000. This compensation is for remuneration for services and goods rendered. This promissory note may not be reduced. This is a personal as well as a business debt. In the event of Robert Holbert’s death[,] this compensation will be paid to his legitimate heirs. In the event of the death or disability of Rick Hoover this compensation will be paid by his estate. In the event of disability[,] arrangements will be made as necessary. It would be expected a legitimate effort would be made to respect this compensation. This promissory note is a legitimate debt and would be considered a ligament [sic] debt were it to be tried in court. All services and goods have been rendered complete for this contract. There are no outstanding contributions to be made by Dr. Holbert to Dr. Hoover for this compensation. This note represents a complete contract and does not require any fmther documentation for payment due.

(Emphasis added). On the same day, Drs. Hoover and Holbert entered into an “Asset Purchase Agreement” for the sale of Dr. Holbert’s medical clinic to Dr. Hoover. The relevant portions of that agreement are as follows:

THIS Asset Purchase Agreement is made the 18th day of August, 2000[,] by and between RICK D. HOOVER, M.D., hereinafter referred to as “Purchaser[,”] and ROBERT D. HOLBERT, M.D. and GAUTIER MEDICAL CLINIC, P.A., hereinafter referred to as “Sellers[.”]
WHEREAS, Sellers own the Accounts Receivable, inventory!,] and other assets utilized by Sellers in the practice and on the real property of the practice;
WHEREAS, Purchaser is a licensed medical doctor who desires to purchase, own, manage[,] and operate the medical clinic owned by Sellers;
NOW THEREFORE, in consideration of the mutual covenants and agreement in [sic] contained, Sellers agree to sell to Purchaser the assets described herein and Purchaser agrees to purchase such assets from Sellers on the terms and conditions provided in this agreement!.]
⅝ ⅝ ⅜
ARTICLE II
A. SALE AND PURCHASE OF ASSETS
1. Upon the terms and subject to the conditions of this Agreement, effective as of the Closing Date, Sellers shall sell, transfer, assign, convey!,] and deliver good and marketable title to the Assets to Purchaser, and Purchaser shall purchase the Assets from Sellers free and clear of any Encumbrances other than Encumbrances specifically assumed by Purchaser, for the consideration set forth in this Agreement. Purchaser shall not purchase the Excluded Assets. The sale, transfer, assignment!,] and conveyance of the Assets shall be made by the execution and delivery at Closing of a bill of sale ... as of the Closing Date and a recordable warranty deed executed by Sellers, as shown on Exhibit 2.2, and other instruments of assignment, transfer!,] and conveyance as Purchaser shall request.
8. Consideration for sale and transfer for the purchase price for the assets shall be payable at closing in cash in the amount of $300,000 for the personal and real property conveyed in transfer herein.
9. Sellers shall at any time, and from time to time, at and after the closing upon request of the Purchaser shall [sic] take any and all steps necessary to place Purchasers [sic] in possession [sic] an operating control of the assets and business to be transferred hereunder.
10. Warranties of Seller: Seller has no debts, liabilities, claims!,] or obligations (whether crude, absolute!,] contingent!,] known!,] or unknown or otherwise) of any nature whatsoever affecting the assets other than liabilities that have been specifically disclosed on the Tax Schedule.
⅜ ⅜ :¡í
14. Authority, Binding Effect. Sellers have full power and authority to enter into this Agreement and to carry out the transactions contemplated hereby. The execution, delivery, and performance of this Agreement constitutes the valid and binding agreement of Sellers enforceable in accordance with its terms.
⅜ * *
22. Allocation of Purchase Price:
a. $230,000.00 — Purchase price for real property owned by Robert D. Holbert, individually.
b. $70,000.00 — Purchase price for real property and non-real property owned by Gautier Medical Clinic, P.A.
ARTICLE IV
A. SELLERHS RIGHT OF EMPLOYMENT
1. Seller shall have the right for a period of two years, and longer if extended by the parties, to engage in the practice of medicine at the Gautier Medical Clinic location in Gautier, Mississippi. Seller shall receive as compensation the sum of 53% of all income received as a direct result of the practice of medicine. This agreement, the exhibits [,] and the schedules delivered pursuant hereto constitute the entire contract between the parties hereto. Pertaining to the subject matter hereof and to precede all prior and contemporaneous agreement, understandings, negotiations [,] and discussions whether written or oral of the parties and there are no representations, warranties [,] or other agreements between the paHies in connection with the subject matter hereof except as specifically set forth herein.

(Emphasis added). Dr. Hoover contends that section one of article four invalidates the promissory note, which was executed shortly before the purchase agreement.

¶ 4. On August 16, 2004, Dr. Holbert filed suit against Dr. Hoover in the county court. The suit proceeded to trial, during which Dr. Holbert realized that the promissory note had not actually matured. Accordingly, on March 1, 2005, the county court dismissed Dr. Holbert’s suit without prejudice for being “filed prematurely.” The promissory note matured on August 1, 2005; however, Dr. Hoover refused to make any payments on the promissory note once that date had passed. On November 28, 2007, Dr. Holbert again filed suit in the county court. Both doctors filed motions for summary judgment, and the county court denied both motions after allowing the parties sixty days to conduct additional discovery. The only evidence that appears to have been produced during that sixty days was an affidavit from George Murphy, the attorney who drafted the purchase agreement. In its order denying the motions, the county court allowed the parties ten days in which to request a trial; the order stated that if trial was not requested, then the county court would rule on the record before it. No request for a trial was filed by either side, and the county court proceeded to rule on the case with the evidence it had. The county court found in favor of Dr. Holbert and ordered Dr. Hoover to pay $100,000 plus interest on the promissory note; Dr. Hoover was also ordered to pay court costs. Dr. Hoover filed an appeal to the circuit court, which affirmed the county court’s judgment.

¶ 5. Murphy’s affidavit stated that he had drafted the purchase agreement and that, to the best of his knowledge, the “contract was the entire agreement between the parties with regard to the subject matter therein. It was for that reason we placed the integration clause in the contract.” There was evidence showing that the $100,000 promissory note was executed because Dr. Hoover could only get financing for $300,000 while the sale price of the clinic was $400,000. In its order in favor of Dr. Holbert, the county court stated:

The Plaintiff has proved by a preponderance of the [ejvidence that the parties reached an agreement to sell and purchase the Gautier Medical Clinic and the real estate for the sum of $400,000.00. However[,] the lending institution would only lend $300,000.00 based on the hard assets. The parties reached an agreement that the Defendant would pay an additional $100,000.00, reflected in the Note sued upon and executed on the same day as the documents consummating the sale and the Hoover’s [sic] loan from the Bank of $800,000.00, making a total purchase price of $400,000.00.

After hearing oral argument, the circuit court stated the following:

I have to note that even though the signatures, or the documents occurred— the signing of same on the same day, that the Asset Purchase Agreement is clear, and I don’t find it unambiguous. I mean, it makes it very clear that these two men entered into a contract for $800,000 to sell the business, and Dr. Hoover signed it, Dr. Holbert signed it in his individual capacity, and his corporate capacity, and it sets out with specificity what is being purchased, building, et cetera. The Promissory Note, on the other hand, is signed by different signatories, and it is for remuneration and services. Totally different from assets.

¶ 6. Additional facts, if necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Dr. Hoover contends that the circuit and county courts erred in finding the promissory note enforceable. Dr. Hoover argues that the parol-evidence rule “strictly prohibits bringing in the prior promissory note to alter the unambiguous terms of the subsequent Asset Purchase Agreement” and that “summary judgment for Dr. Hoover was appropriate because the full agreed upon purchase price of $300,000 ... was paid in full.”

¶ 8. When reviewing the interpretation of a contract, we employ a de novo standard of review. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss.2010). An appellate court “first look[s] to the express wording of the contract itself, looking at the contract as a whole, to the exclusion of extrinsic or parol ... evidence.” Id. (citing Warwick v. Gautier Util. Dist., 738 So.2d 212, 215 (¶ 8) (Miss.1999)). The “ ‘canons’ of contract construction” will then be applied “[i]f the parties’ intent is unclear....” Id. (citing HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1105(26) (Miss.2003)). “Finally, if the meaning remains ambiguous, only then may the court consider extrinsic evidence.” Id. (citing HeartSouth, 865 So.2d at 1105 (¶ 26)).

¶ 9. The basis of this suit is the promissory note, not the asset purchase agreement. Therefore, we must look at the promissory note to see if its meaning can be ascertained from its express terms. We find that it can. The promissory note stated that it was “for remuneration for services and goods rendered.” No reference was made to the sale of the medical clinic, and the promissory note concluded by stating that: “This note represents a complete contract and does not require any further documentation for payment due.” The intent of the promissory note is clear from its terms: it represents a debt owed by Dr. Hoover to Dr. Holbert in the amount of $100,000 for “services and goods rendered.” The note indicated that the debt was personal as well as business related. The purchase agreement, testimonies, and Murphy’s affidavit all constitute parol evidence as to the promissory note. Since the terms of the promissory note are explicit and easily understood, it would be improper to consider any extrinsic evidence. In short, the promissory note constitutes a separate legal obligation from the asset purchase agreement, and the two should not be considered together. The county court was correct in entering a judgment against Dr. Hoover for $100,000 plus interest and court costs, and the circuit court was correct in affirming that judgment.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    Michael COUNCIL, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2009-CP-01572-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.
    Michael Council, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp and James M. Norris, attorneys for appellee.
    Before KING, C.J., IRVING, ROBERTS and CARLTON, JJ.
   IRVING, J.,

for the Court:

¶ 1. Michael Council was convicted of robbery and sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Eleven years of the sentence was suspended. After serving the remaining four years, Council was released from the MDOC on post-release supervision (PRS). Shortly thereafter, Council’s PRS was revoked. Council filed a motion for post-conviction relief in the Forrest County Circuit Court, arguing that there was insufficient evidence to support the revocation. The circuit court found that it lacked jurisdiction and dismissed Council’s motion:

¶ 2. We find that the circuit court erred in determining that it lacked jurisdiction. Therefore, we reverse and remand.

FACTS

¶ 3. In 2004, Council was convicted of robbery and sentenced to fifteen years in the custody of the MDOC, with four years to serve. Council served those four years and was then released on PRS. On April 25, 2007, the circuit court revoked Council’s PRS and sentenced Council to serve the remaining eleven years.

¶ 4. The basis of the revocation was Council’s arrest for delivery of a controlled substance to a correctional facility. Council was arrested with Jackson, a felon. At the revocation hearing, which included several defendants, Council waived his right to a full hearing. The circuit court then allowed the State to present the evidence supporting revocation. The following represents nearly the entirety of Council’s revocation hearing:

[COURT]: Each of you is before the Court on a petition for revocation of your probation or post-release supervision. Are you satisfied with the administrative notice and hearing requirements afforded to you thus far?
[COUNCIL]: Yes, sir.
[COURT]: At this stage[,] you are entitled to a formal hearing wherein the State of Mississippi would call your supervising officer to testify as to the alleged violations, or you can waive that formal hearing and the alleged violations will simply be read to you, and I will ask you if you admit or deny the same. Do you desire to have a formal hearing, or do you want to waive that formal hearing?
⅜ ⅜ *
[COUNCIL]: Waive.
[COURT]: What can the State show in Mr. Council’s case? Mr. Council, did you want a formal hearing, or do you want to waive the formal hearing?
[COUNCIL]: I want to waive it.
[COURT]: Okay.
[PROSECUTOR]: Your Honor, the State would show that one of the conditions of Michael Council’s probation was that he commit no offenses against the laws of this state or any other state, and he was arrested and has been charged in Marion County with the crime of delivery of a controlled substance to a correctional facility.
[COURT]: Do you admit you were charged with that?
[COUNCIL]: I was charged with it.
[PROSECUTOR]: Another condition, Your Honor, was that he avoid injurious or vicious habits and persons and places of disreputable conduct, and he was arrested with another inmate by the name of Jermaine Jackson, who is a convicted felon.
[COURT]: Do you admit or deny that?
[COUNCIL]: Yes, sir.
[COURT]: Anything you want to say?
[COUNCIL]: At the time that charge was committed, I basically was in the blind. I didn’t know what was going on at the time, and I think I tried to explain to the people at the time they picked us up, but, you know, Your Honor, they never — they didn’t want to believe half of what I was saying. They still arrested me on the charge.
[COURT]: Was this when you were with Jermaine Jackson?
[COUNCIL]: Yes, sir.
[COURT]: Anything else?
[COUNCIL]: And, you know, at the time I didn’t know Jermaine Jackson was on paper. I didn’t know anything about that. I didn’t think I wasn’t just hanging around like that at the time, sir.
[COURT]: Anything else?
[COUNCIL]: No, sir.
[COURT]: I find you are in violation of the terms and conditions of your post-release supervision and hereby revoke the same. I sentence you to eleven years, Mississippi Department of Corrections.

The State offered no other evidence in support of Council’s revocation.

¶ 5. On July 9, 2009, Council filed a motion in the circuit court, alleging that there was an insufficient factual basis for the revocation of his PRS. In the motion, Council stated that he had just met Jackson when he was arrested with him and that he did not know that Jackson was a convicted felon. On July 22, 2009, the circuit court dismissed the motion on the ground that the court lacked jurisdiction to hear the motion. On August 6, 2009, Council filed a notice of appeal of the circuit court’s dismissal.

¶ 6. Additional facts, if necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. When reviewing a circuit court’s denial or dismissal of a motion for post-conviction relief, we will reverse the judgment of the circuit court only if its factual findings are “clearly erroneous”; however, we review the circuit court’s legal conclusions under a de novo standard of review. Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009). Council must show “ ‘by a preponderance of the evidence’ that he is entitled to relief.” Id. (quoting Miss.Code Ann. § 99-39-23(7) (Rev.2007)).

¶ 8. There was insufficient evidence to support the revocation of Council’s PRS. At the hearing, the State essentially offered only evidence that Council had been charged with delivering a controlled substance to a correctional facility, and Council admitted that he had been so chai’ged. Council did not admit to committing the offense with which he had been charged, nor did he admit knowing that Jackson was a convicted felon. According to Council, he was “in the blind” as to what was going on at the time of his arrest.

¶ 9. The State argues that “probation need not be reinstated simply because the new charges are dismissed if the evidence shows that it is more likely than not that the offender violated the terms of probation.” The State cites this Court’s opinion in Hardin v. State, 878 So.2d 111 (Miss.Ct.App.2004) as support. The circumstances in Hardin were markedly different from those in the present case. In Hardin, Larry Hardin’s probation was revoked after he was charged with sale of cocaine, a charge that was later dismissed. Id. at 112 (¶ 1). We affirmed, finding that there was sufficient evidence to support the revocation, regardless that the charges against Hardin were later dismissed. We noted that the following evidence supported the revocation:

Narcotics Officer David Lindsey testified that he participated in an undercover sting operation in which he monitored a drug buy from Hardin to an undercover informant. Officer Lindsey testified that after the buy, Hardin fled from the officers first by car then on foot, dropping the money and more cocaine along the way. The following day, Hardin turned himself in to the police and confessed to the sale.

Id. at 112-13 (¶ 4). There is no such evidence to support Council’s revocation. If the State had such evidence, it failed to offer it.

¶ 10. Council’s post-conviction motion should have been treated as a motion for post-conviction relief. As such, the motion was properly filed in the Forrest County Circuit Court. Miss. Code Ann. § 99-39-7 (Supp.2009). The circuit court erred in dismissing the motion on the ground that it was filed in the wrong county. In as much as we have found the evidence insufficient to support the revocation of Council’s PRS, it might appear at first blush that we should reverse and render. We decline to do so for two reasons. First, the charges may still be pending against Council, and we do not want to limit the State on remand from proceeding in any way it deems appropriate. Second, we note that Council waived the right to a formal revocation hearing. It is not clear to us whether that meant he admitted the petition or simply that he was not requiring the State to prove its case by the production of witnesses to the charge. If it was Council’s intention to do the latter, the State still would have been required to present a factual basis to the circuit court to support the revocation. For these reasons, we reverse and remand for further proceedings as the State deems appropriate. Nothing contained in this opinion should be interpreted on remand as a finding by this Court precluding or permitting any defenses which Council may offer to any further proceedings emanating out of the charges underlying this appeal.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . It is not clear whether the charges were dismissed after the revocation of Council’s PRS. The record contains an order for nolle prose of a charge against Council and Jermaine Jackson, but it does not specify the charges that are being nolle prossed.


text:
    Sylvester YOUNG, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-02026-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.

      Sylvester Young Jr., Appellant, pro se.
    Stephanie Breland Wood, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. After Sylvester Young Jr.’s probation was revoked, he was sentenced to serve twelve years in the custody of the Mississippi Department of Corrections (MDOC). While serving that time, Young filed a motion requesting habeas corpus relief. The Lauderdale County Circuit Court reframed the motion as one for post-conviction relief and subsequently denied the motion. Young contends that the circuit court’s judgment is in error.

¶ 2. The circuit court correctly found no merit to Young’s complaint; therefore, we affirm the circuit court’s judgment.

FACTS

¶ 3. In 1997, Young pleaded guilty to the crime of armed robbery and was sentenced to twenty years’ confinement in the custody of the MDOC, with eight years to serve, twelve years suspended, and five years of reporting probation. On September 13, 2007, while on probation after serving the eight years, an agreed order of probation revocation was entered, sentencing Young to serve the twelve suspended years. On the same day, Young entered a guilty plea to a separate crime involving a gun possession and was sentenced to serve one year in the custody of the MDOC, with 364 days suspended and one day to serve.

¶ 4. On August 13, 2009, Young filed his motion for habeas corpus, alleging that his sentence was illegal. From the motion, it appears that Young mistakenly believed that he was confined only on the 2007 gun-possession charge. On November 10, 2009, the circuit court denied the motion, noting Young’s 2007 probation revocation and resulting twelve-year sentence. The circuit court observed that Young was unable to articulate “why his sentence is illegal or allege any factual basis in support of his assertion,” and found Young’s motion “absolutely meritless on its face.... ” The motion was “denied as being frivolous,” and Young was ordered to forfeit sixty days of earned time for filing the motion.

¶ 5. Additional facts, if necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. When a trial court has denied a petitioner’s motion for post-conviction relief, we “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo.” Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008) (quoting Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008)).

¶ 7. Young presents the following allegation of error, which we state verbatim: “Whether Appellant’s earned probation ‘after’ serving eight (8) years in confinement, pursuant to Mississippi Code Annotated section 47-7-47, exempted the Circuit Court of Lauderdale County of any authority to alter or vacate its original judgment.”

¶ 8. Prior to 2001 and at the time of Young’s sentencing, section 47-7-47(2)(a) read: “Any circuit court or county court may ... acting upon the advice and consent of the commissioner at the time of the initial sentencing only ... suspend the further execution of the sentence and place the defendant on earned probation.... ” Young essentially contends, based on this statute, that the circuit court could not sentence him to serve the remainder of his sentence after he violated his probation.

¶ 9. Young misinterprets the restrictions of section 47-7-47. That section as it was written at the time of Young’s sentencing governed the jurisdiction of a circuit court to suspend a sentence after an initial sentencing hearing. There is no evidence in the record before us that any part of Young’s sentence was suspended at a time other than his initial sentencing hearing. Young’s assertion that the circuit court was without jurisdiction to reinstate the suspended portion of his sentence after he violated his probation is without merit. Mississippi Code Annotated section 47-7-37 (Supp.2009) states that, upon an alleged violation of probation, a circuit court “may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.” In other words, circuit courts have the jurisdiction to revoke probation upon proof of a violation. In the present case, Young apparently agreed to an order finding that he had violated his probation.

¶ 10. We find no error in the circuit court’s denial of Young’s motion for post-conviction relief.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

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


text:
    Matthew NASH, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00538-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.

      Clarence T. Guthrie III, Ridgeland, attorney for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. A jury in the Warren County Circuit Court convicted Matthew Nash of murder, shooting into an occupied dwelling, and two counts of aggravated assault. The circuit court sentenced him to life in the custody of the Mississippi Department of Corrections for the murder, to ten years for the shooting into an occupied dwelling, and to twenty years each for the aggravated-assault convictions. The circuit court ordered that the sentences run consecutively, so Nash will have to serve a sentence of life plus fifty years.

¶ 2. Nash’s appellate counsel, who is different from his trial counsel, has filed a brief in accordance with Lindsey v. State, 939 So.2d 743 (Miss.2005), alleging that there are no arguable issues to present on appeal. The State also notes no arguable issues. Nash’s counsel filed the brief on March 8, 2010; therein, counsel avers that Nash has been given a copy of counsel’s brief, a copy of the record, and a transcript of the trial proceedings. Nash’s counsel also states that Nash has been informed of his right to file a pro se brief to appeal his conviction. Nash has not filed a pro se brief.

¶ 3. This Court has made a diligent search of the entire record, and we have found no error in the circuit court’s proceedings. Therefore, we affirm the judgment of the circuit court.

FACTS

¶ 4. On June 16, 2007, Justin Maurice Harris had an altercation with Anthony Trevillion or Armond Trevillion at The Biscuit Company, a nightclub in Vicksburg, Mississippi. The altercation turned physical, and Harris and several other individuals were thrown out of the club. There were several different accounts of what happened at the club; what is clear is that Harris and his brother, Jarvis Bowman, were both at the club and were evicted therefrom, along with the Trevillion brothers. Some time after leaving The Biscuit Company, Harris, Bowman, and a family friend, Garrod Bunch, went to The Smoke Break, a convenience store. While they were there, Anthony and another individual arrived at the store. Bowman testified that Anthony and Harris “looked at each other” and acted as though they might fight, although nothing further happened at The Smoke Break. Thereafter, Harris, Bowman, and Bunch went to Harris and Bowman’s home on Grammar Street in Vicksburg. In the early morning hours of June 17, 2007, Harris was shot and killed by Anthony and Armond after Harris exited his house to speak with Nash.

¶ 5. Nash, who is related to both Harris and Anthony, was not at The Biscuit Company or The Smoke Break. However, Nash learned of the fight that had taken place at The Biscuit Company. According to Linda Miller, on June 16, 2007, presumably after the fight at the nightclub, Nash asked her where Harris lived. Miller testified that she took Nash to Harris’s home and then left with friends to go to her home. Miller stated that she and her friends heard gunshots approximately ten minutes later.

¶ 6. Bowman admitted that he and Harris had an argument over what had happened at The Biscuit Company after they returned to their home. Bowman testified that after he fought with Harris, Nash approached the house and came up on the porch. According to Bowman, the Trevil-lion brothers were behind Nash. Bowman testified that Nash told Harris that he did not have any problem with Harris; within seconds, Bowman realized that the Trevil-lion brothers had firearms. Bowman warned Harris about the firearms and then ran into the house. Bunch, who was nearby, ran into the kitchen and hid behind an icebox.

¶ 7. Bowman testified that the Trevillion brothers began shooting within seconds of Nash speaking to Harris. Harris was shot multiple times, including a fatal shot to the left side of his torso. The brothers shot into the house multiple times. When the police examined the house, they found only one room that had not been penetrated by bullets. At least one bullet was stopped by the icebox that Bunch had hidden behind. By all accounts, Nash left the porch as the Trevillion brothers started firing. According to Nash, who testified at trial, Anthony and Armond were firing into the house as Nash left with a third Trevillion brother, Alonzo Trevillion. Nash claimed that he only went to the house to speak with Harris and that he did not know that Anthony and Armond were going to open fire on Harris.

¶ 8. Claudia Hester lived across Grammar Street from Harris and Bowman. She testified that she looked outside early that morning and saw three individuals walking down the street. She identified Nash as one of the three and testified that he was walking behind the other two, who were carrying long firearms; she testified that she does not know much about firearms and that the objects might have been rifles or shotguns. It later became apparent that one Trevillion brother was wielding a shotgun and the other used a rifle. Hester testified that she remembered Nash in particular because he turned and made eye contact with her. Hester called 911 because she saw the firearms.

¶ 9. Nash, Armond, Alonzo, and Anthony were all indicted together. Nash was first tried in June 2008, but a mistrial was declared because the jurors could not reach a unanimous verdict. Nash was retried in February 2009 and found guilty of all four counts against him.

¶ 10. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. When counsel believes that there are no arguable issues for appeal, the pi'oper procedure is to file a brief in accordance with Lindsey, as counsel has done in the present case. Having reviewed the record, we find no error in the circuit court’s proceedings. Accordingly, we affirm the circuit court’s judgment.

¶ 12. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE, SHOOTING INTO AN OCCUPIED DWELLING AND SENTENCE OF TEN YEARS, AND TWO COUNTS OF AGGRAVATED ASSAULT WITH A SENTENCE OF TWENTY YEARS FOR EACH COUNT, WITH THE SENTENCES TO RUN CONSECUTIVELY ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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


author: STUART, Justice. WOODALL, Justice

text:
    Ex parte Emily Richey THOMPSON. (In re Emily Richey Thompson v. Kristopher Eric Richey).
    1080041.
    Supreme Court of Alabama.
    March 5, 2010.
    Joan-Marie Kettell Dean, Huntsville, for petitioner.

      Submitted on petitioner’s brief only.
   STUART, Justice.

This Court granted the petition for the writ of certiorari in this child-visitation case to determine whether the Court of Civil Appeals’ no-opinion affirmance of the trial court’s order awarding the noncustodial father unsupervised visitation conflicts with prior decisions of that court. We find the decision is in conflict with prior decisions, and we reverse and remand.

I.

Emily Richey Thompson (“Thompson”) and Kristopher Eric Richey (“Richey”) met in 2001 and started dating shortly thereafter. In October 2001, Thompson became pregnant with the parties’ child, who was born on July 8, 2002. At the time the child was born, the parties were not married and were no longer dating. They reconciled shortly after the child was born, and they married on May 8, 2004. In September 2005, the parties separated. They reconciled briefly and then separated for the final time in December 2005.

Thompson filed for divorce and sought custody of the minor child and requested that Richey’s visitation with the child be supervised visitation. She requested supervised visitation primarily because she alleged that Richey had sexually abused the child and also based on the facts that Richey had used cocaine, marijuana, crystal methamphetamine, oxycodone, Xanax, and methadone, that he had been in drug and alcohol rehabilitation a number of times and had repeatedly relapsed, and that in 2006 he had been arrested twice for driving under the influence of alcohol and once for public intoxication. The parties appeared at a hearing held in March 2007, at which, upon agreement of the parties, the parties were divorced. All other issues were reserved for the final hearing. In its pendente lite order, the trial court, by agreement of the parties, awarded custody of the minor child to Thompson and ordered that Richey have supervised visitation.

At the final hearing in September 2007, the evidence revealed the following facts relevant to Richey’s visitation with the minor child: Richey was 26 years old at the time of the final hearing. In 2006 he was arrested twice for driving under the influence. In that same year, he was arrested for public intoxication. He admitted to having used cocaine, marijuana, and crystal methamphetamine. When Richey was a juvenile, he was adjudicated delinquent on the underlying charge of driving under the influence of alcohol. He was also adjudicated a youthful offender based on the underlying charge of driving under the influence of alcohol.

Richey has attended three rehabilitation programs. He attended a program called Three Springs as a juvenile. He attended a program offered by Rapha Ministries while he and Thompson were dating. Nonetheless, he again started using Xanax and methadone and drinking alcohol. Then, in September 2006, he attended another rehabilitation program at the Sunrise Lodge in Russellville.

At the March 2007 hearing that took place in this case, Richey claimed to be clean and sober. He testified that he had not used any drugs or alcohol in six months. Within 10 days of that hearing he was seen at a local bar, consuming alcohol. He admitted at the September 2007 hearing that he continues to drink alcohol. According to Thompson, on three or four occasions between March 2007 and September 2007, Richey telephoned Thompson while he was under the influence of either drugs or alcohol.

Much of the testimony in this case focused on Richey’s alleged sexual abuse of the minor child. One incident occurred in July 2004, while the parties were married and living together. Thompson came home from work and found the two-year-old child sitting on Richey’s lap. When the child hopped down, Thompson saw that Richey was sexually aroused. Richey acknowledged that this event occurred and stated that it was “very abnormal.” He admitted that it “concerned” him, but he never sought any counseling in connection with the event.

In January 2006, the child complained to her mother of irritation in her genital area. Thompson observed redness and irritation in the area. Because of the irritation, the child could not sit down in a tub of water. When Thompson asked the child what was wrong, she told Thompson that her father had touched her. The child’s pediatrician diagnosed her as having vulvovaginitis but could not say whether the child had been sexually abused.

Thompson reported the incident to the Marshall County Department of Human Resources (“DHR”). Ann Stephenson, a child-abuse investigator who had worked for DHR for 20 years at the time of the hearing, testified in this case. She stated that she has performed “several hundred” investigations. She testified that upon completing her investigation, she made a finding that the child’s complaint of sexual abuse at the hands of her father was “indicated.” She explained that a finding of “indicated” means “that the Department believed the child.” Stephenson also explained that the sexual-abuse case was due to be presented to the grand jury the next time it was convened. Richey denied inappropriately touching the minor child. He contested the finding of “indicated” and requested a hearing with DHR. After an administrative review of the case at which no witnesses were presented, DHR’s finding was changed to “not indicated.” No evidence as to the reason for the change was presented at the final hearing. Stephenson maintained her opinion that the child’s account of the incident was truthful. Stephenson recommended that Richey’s visitation with the child be supervised.

Sherry Swindall, the clinical director of and a child therapist employed by the Marshall County Child Advocacy Center also testified in the trial of this case. She interviewed the child extensively. She explained that the child “made an outcry of sexually inappropriate touching by her father.” Based on her interviews, Swindall recommended that the child have no unsupervised visits with the father. She remained of that same opinion the date of the final hearing. She explained that she had seen no indication during her interviews with the child that the child had been coached.

Following the hearing, the trial court entered its final judgment finding that there was “no credible evidence presented in this hearing that the Defendant/father committed any act of sexual abuse or misconduct with the minor child” and awarding Richey unsupervised visitation with the minor child. Thompson appealed. The Court of Civil Appeals affirmed the trial court’s order, without an opinion. Thompson v. Richey (No. 2070305, July 18, 2008), 30 So.3d 466 (Ala.Civ.App.2008) (table). Thompson petitioned this Court for a writ of certiorari, which we granted. Thompson filed a brief addressing the merits; Richey did not file a brief.

II.

Thompson asserts that the Court of Civil Appeals’ affirmance of the trial court’s order is in conflict with prior decisions of that court. The trial court found “no credible evidence presented in this hearing that the Defendant/father committed any act of sexual abuse or misconduct with the minor child.” She urges that the Court of Civil Appeals’ affirmance is in conflict with Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007), in which the Court of Civil Appeals stated: “ ‘ “[W]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.” ’ ” (Quoting B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999), quoting in turn Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979).)

Thompson argues that the trial court’s finding that there was no credible evidence of sexual abuse is clearly erroneous based on the testimony of the DHR child-abuse investigator, Stephenson, who investigated the allegations of sexual abuse in this case and found them “indicated,” recommended that Richey’s visitation with the child be supervised, and stated a criminal case against Richey would be presented to the next grand jury to convene in Marshall County. She also cites the testimony of Swindall, the clinical director of and child therapist employed by the Marshall County Child Advocacy Center, who, after conducting numerous interviews with the child, testified that the child made “an outcry of sexually inappropriate touching by her father” and that she saw no indication that the child had been coached and who recommended supervised visitation. Lastly, she points to her own testimony that the minor child told her that her father had touched her.

The facts in Cheek v. Dyess are quite different from those in the present case. Cheek v. Dyess involved a modification of child custody in a case in which the custody of two younger children had been transferred from the mother to the father because the children were not being encouraged to respect their father and other adults and because of lack of supervision of and bad conduct primarily by an older sibling whose custody remained with the mother. The Court of Civil Appeals reversed the trial court’s judgment on the custody issue; this Court granted the writ of certiorari and, after a review of the record, quashed the writ. Although factually different, an identical legal principle applies in Cheek v. Dyess and this case. Even when the ore tenus rule is applicable, when the conclusion of the trial court is so contrary to the weight of the evidence that witness demeanor could not substantiate it, it is clearly erroneous and must be reversed.

The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision will not be reversed unless it has exceeded its discretion. Alexander v. Alexander, 625 So.2d 433, 435 (Ala.Civ.App.1993).

“Every case involving a visitation issue must be decided on its own facts and circumstances, but the primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child.”

Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994).

When a trial court’s judgment in a nonjury case is based on ore tenus testimony, the court’s findings are presumed correct, and its judgment based on those findings will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. BSI Rentals, Inc. v. Wendt, 893 So.2d 1184, 1186 (Ala.Civ.App.2004). “‘However, even under the ore tenus rule, “where the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.” ’ ” Cheek v. Dyess, 1 So.3d at 1029 (quoting B.J.N. v. P.D., 742 So.2d at 1274, quoting in turn Jacoby v. Bell, 370 So.2d at 280).

Furthermore, the ore tenus rule, which cloaks a trial court’s judgment in a nonjury case based upon ore tenus evidence with a presumption of correctness, applies only to disputed issues of fact. Thus, although the issue whether Richey touched his daughter sexually, leading to redness and irritation of her genitalia, which was diagnosed as vulvovaginitis, a claim he adamantly denied, would be subject to the ore tenus rule, numerous facts present in this case would not be subject to the ore tenus rule because those facts were undisputed. Those facts not subject to dispute include: Richey attended a “boot camp” as the result of a conviction on an assault charge; he had used and abused cocaine, oxycodone, Xanax, methadone, and alcohol; he had attended three different drug and alcohol rehabilitation programs, completing only the last program and subsequent to completing that program he had recommenced drinking alcohol; in the year before the final hearing he had been arrested twice for driving under the influence of alcohol and once for public intoxication; and at the time of the final hearing he had been convicted of one driving-under-the-influence charge and the public-intoxication charge and the other driving-under-the-influence charge was still pending. Also, it is undisputed that Richey has a violent temper and has thrown items such as drink cans, a cooler, and telephones; he has kicked down doors on two occasions; he pushed Thompson down once and threw her down another time; and, shortly before the final hearing, he flew into a fit of rage in the presence of the minor child. In addition, Richey did not have a valid driver’s license at the time of trial because of his arrests and convictions, but he continued to drive even though he knew it was illegal because he stated “he had to.” He fathered another child who was a year older than the minor child by another woman and was in the process of consenting to the termination of his parental rights to that child. Lastly, Richey did not deny the incident in which Thompson saw that he was aroused when the minor child got off his lap. He acknowledged that the arousal was inappropriate and abnormal, yet he did nothing to seek help following the incident. These facts clearly made an award of unsupervised visitation inappropriate and, in fact, clearly erroneous.

Thompson also alleges that the Court of Civil Appeals’ affirmance in this case is in conflict with I.L. v. L.D.L., 604 So.2d 425 (Ala.Civ.App.1992). In I.L.:

“The mother testified to the following: When the child was one-year-old, the mother suspected an abuse problem because of the way that the child was acting, and she took her to the pediatrician. The pediatrician told the mother not to worry if the child was not ‘ripped and torn.’ After the divorce the mother again noticed inappropriate behavior by the child after the child returned from her weekend visitation with her father. She took the child to the pediatrician, who called in a nurse-specialist from the abuse clinic.
“On the morning after the next weekend visitation, the mother took the child back to the pediatrician. The pediatrician called the Child Advocacy Center (Center) and the Department of Human Resources (DHR). The child was counseled at least twelve times by a certified clinical psychologist at the Center. The mother also went to group counseling so that she would be able to help the child. She filed her motion to suspend visitation in response to what she was told by a health care professional.
“In describing the child’s conduct since the divorce, the mother stated that the child has been very scared of men with beards and that the father used to have a beard. At first the child would stick things near her vagina and place her finger in her mouth and say ‘Daddy do this, Momma. Daddy do it.’ Then the child would touch her vaginal area and say ‘Daddy pee pee, Mommy.’ The child would wake up screaming in the middle of the night and would not let anyone touch her. This behavior has subsided.
“The mother, whose income is $700 per month, testified that her expenses for the child have increased and that she has been told that the child will need counseling for the rest of her life.
“The maternal grandmother testified that prior to the divorce the child had nightmares and that she never wanted to be left alone with her father. She further stated that after the divorce the child would scream, kick, and shut the door in her father’s face, saying ‘no, Daddy, no, no, no.’ She further testified that ‘[w]hen [the child] returned from visitation, she laid in the floor and grabbed herself in the groin and said Daddy, ma. Daddy do, ma. She stuck her finger in her mouth and shoved it back and forth and said daddy, ma, daddy.’
“A social worker in a protective services capacity with DHR testified to the following: DHR does have a concern for the child and recommends that the child’s visitation with the father be supervised. The father did not cooperate with the investigation into his living conditions, as he did not want her to talk to the people with whom he lived. She did not complete the investigation of the father’s home, which was in another county, and then he joined the military. She needs to reinterview the father because of new information in her report to the court that was received from the child psychologist. Although the social worker asked the father’s attorney to have the father contact her as soon as he arrived from his military service, the father did not contact her.
“The report of the psychologist gave the social worker more ‘reason to suspect.’ Some of her conclusions are based on an interview with the child. She was unable to totally assure the court that information obtained from a two-and-one-half-year-old child would be accurate.
“The social worker submitted a report to the trial court that included the following: In an interview the maternal grandfather stated that he had been concerned about the father since the child was eight or nine months old and that he noticed the father taking an excessive amount of time to change the child’s diapers. He stated that he saw the child sit on a metal turtle doorstop and rub herself on it, and he found this action very upsetting. In addition, the psychologist told the social worker that
“ ‘the [child] had told her additional information and made a disclosure of sexual abuse by her “Daddy” to [the psychologist], during several counseling sessions. The sessions began in March. According to [the psychologist], the child picked up the anatomical doll she called “daddy” and said “daddy’s peepee” and put it in her mouth. Each time the child comes to counsel with [the psychologist] she asks for the “Nonnie doll” and “Daddy doll.” When the child stuck the “pee pee” in her mouth, she says “Yuk.” [The psychologist] asked the child, ‘Tour daddy”? and [the child] said ‘Tes.” ’
“The social worker further stated in the report that she planned to talk to the child again but that she had not yet done so. She found her separate interviews with family members and others to be believable.”

604 So.2d at 427-28. The Court of Civil Appeals noted:

“The trial judge stated at the hearing that he did not have much confidence in reports and that ‘this is the sort of thing you ought to have worked out between yourselves.’ He further stated that he has ‘problems with people who draw conclusions about what two and one-half or two-year-old children say or do.’ ”

604 So.2d at 428. The Court of Civil Appeals reversed the trial court’s order granting the father unsupervised visitation. Thompson argues that the present case is in conflict with l.L. because in this case the Court of Civil Appeals affirmed the trial court’s order granting unsupervised visitation and, in essence, its finding that there was no credible evidence of sexual abuse, which Thompson equates to the trial court’s having a “problem” with the opinions of her two experts. We agree. The expert witnesses both recommended supervised visitation by Richey. The trial court disregarded their testimony and their recommendations and awarded Richey unsupervised visitation.

Lastly, Thompson asserts that the Court of Civil Appeals’ no-opinion affirmance conflicts with the holding in Y.A.M. v. M.R.M., 600 So.2d 1035 (Ala.Civ.App.1992). In Y.A.M. v. M.R.M., the mother claimed that the father had sexually abused the parties’ three-year-old daughter. The father’s visitation was to be supervised on a pendente lite basis. At trial, the mother testified that .the child had told her that her father had hurt her. A Department of Human Resources social worker testified that she had an opinion about what had happened to the child but she was not permitted to state it because she had not been qualified as an expert witness. A therapist with the Child Advocacy Center testified about the disclosures the child had made to her and recommended that visitation with her father be supervised. In spite of this testimony, the trial court granted the father unsupervised visitation. The Court of Civil Appeals disagreed. In so doing it stated:

“In view of the evidence presented, we find that granting unsupervised visitation to the father at this time is not in the best interests and welfare of the daughter. Consequently, we hold that the trial court abused its discretion by awarding unsupervised and overnight visitation to the father.... ”

The primary consideration in establishing visitation rights for the noncustodial parent is the best interests and welfare of the child. In l.L. and Y.A.M., the Court of Civil Appeals found supervised visitation by the noncustodial parents to be in the best interests and welfare of the minors in the face of allegations of sexual abuse and recommendations by expert witnesses that visitation be supervised. Those facts are present in this case. Additionally, in the present case, there is substantial undisputed evidence of Richey’s inappropriate sexual arousal when the child, then two years old, sat on his lap, of Richey’s abuse of drugs and alcohol, of his repeated attempts at rehabilitation and subsequent relapses, and of three alcohol-related arrests in a very short period, as well as his admission that he continues to drink alcohol and the fact that he has exhibited rage and inappropriate violent conduct in the presence of the minor child. A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child. The totality of circumstances indicates the trial court’s award of unsupervised visitation here is improper, and in making such an award the trial court exceeded the discretion permitted a trial judge in matters involving child custody and visitation. The judgment of the Court of Civil Appeals is reversed, and the case is remanded with instructions to reverse the trial court’s judgment and remand the cause to the trial court.

REVERSED AND REMANDED.

LYONS, SMITH, BOLIN, MURDOCK, and SHAW, JJ., concur.

COBB, C.J., and WOODALL and PARKER, JJ., concur in the result.

WOODALL, Justice

(concurring in the result).

The numerous undisputed facts discussed in the majority opinion are sufficient to convince me that the trial court clearly exceeded its discretion in awarding unsupervised visitation to Kristopher Eric Richey. Consequently, I concur in the decision to reverse the judgment of the Court of Civil Appeals insofar as it affirmed that aspect of the order of the trial court.

COBB, C.J., and PARKER, J., concur.


author: BRYAN, Judge.

text:
    Emily Richey THOMPSON v. Kristopher Eric RICHEY.
    2070305.
    Court of Civil Appeals of Alabama.
    May 28, 2010.
    Joan-Marie Kettell Dean, Huntsville, for appellant.
    Submitted on appellant’s brief only.
   After Remand from the Alabama Supreme Court

BRYAN, Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Thompson, 51 So.3d 265 (Ala.2010). On remand to this court and in compliance with the supreme court’s opinion, we reverse the trial court’s order granting Kristopher Eric Richey unsupervised visitation with the parties’ minor child, and we remand the cause to the trial court to issue an order consistent with the supreme court’s opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


author: WOODALL, Justice.

text:
    N & L ENTERPRISES, LLC v. LIOCE PROPERTIES, LLP.
    1081516.
    Supreme Court of Alabama.
    May 7, 2010.
    Rehearing Denied June 18, 2010.

      Alex L. Holtsford, Jr., and S. Mark Dukes of Holtsford Gilliland Higgins Hit-son & Howard, P.C., Montgomery, for appellant.
    Morris J. “Mo” Brooks, Jr., of Leo & Brooks, LLC, Huntsville, for appellee.
   WOODALL, Justice.

N & L Enterprises, LLC (“N & L”), entered into a lease with Lioce Properties, LLP, in January 2006 for office and warehouse space in a building owned by Lioce Properties. Lioce Properties later sued N & L, alleging that N & L had defaulted on its obligations under the lease. The trial court entered a summary judgment in favor of Lioce Properties, finding that N & L had breached the lease and awarding Lioce Properties $939,845.14. N & L appealed. We affirm in part, reverse in part, and remand.

Facts and Procedural History

N & L, whose primary business involves copier sales and service, was originally owned by Nicholas Lioce, Jr.; his wife, Louise Lioce; and their sons, Nick Lioce (“Nick”) and Harry Lioce (“Harry”). In 2000, the Lioces sold N & L to Berney, Inc., a division of Global Imaging, Inc. Berney, Inc., retained Nick as the president of N & L.

According to N & L, while Nick was managing N & L, he suggested to Harry, who was the chief operating officer of Interconnect Systems Corporation (“Interconnect”), that N & L and Interconnect work together to obtain a copier-service contract with the United States Army at Redstone Arsenal (“the AMCOM contract”). N & L could not pursue the AM-COM contract on its own, because the contract was set aside for small businesses, i.e., a small-business set-aside contract, and N & L was too large to qualify for the contract. On the other hand, Interconnect qualified as a small business for purposes of the AMCOM contract but, according to N & L, Interconnect did not, at that time, have the ability to provide copier service. In January 2004, N & L and Interconnect entered into a partnering agreement, and Interconnect was successful in obtaining the AMCOM contract. N & L and Interconnect jointly worked on the AMCOM contract until August 2006. Interconnect paid N & L approximately 90% of the revenue it collected under the AMCOM contract.

In January 2006, N & L entered into a commercial lease agreement (“the lease agreement”) with Lioce Properties pursuant to which N & L leased from Lioce Properties 20,565 square feet of office and warehouse space in a building located at 2950 Drake Avenue in Huntsville (“the building”). At that time, Interconnect was already a tenant in the building.

The events underlying this dispute began on August 4, 2006, when N & L terminated Nick’s employment as its president. On August 25, 2006, Interconnect terminated its partnering agreement with N & L and took over the copier-service work under the AMCOM contract. On August 30, 2006, N & L informed Lioce Properties that

“under the terms of the lease covering the space leased by N & L from [Nick’s] family, N & L may terminate the lease if any competitive business is operated out of the building in which N & L is located. It now appears [Nick] and/or his family were in fact operating a competitive business in the building. Accordingly, we are evaluating all our options, including, without limitation, the termination of the lease.”

On May 2, 2007, Lioce Properties informed N & L that it considered N & L’s failure to pay some of the rent owed for January 2007 a default under the terms of the lease, and it demanded payment of $2,746.77 plus a late charge and an attorney fee. On May 31, 2007, N & L informed Lioce Properties that it was terminating the lease pursuant to § 3.8 of the lease and that N & L would vacate the property immediately. Lioce Properties admits that N & L vacated the premises on or about May 31, 2007, but says that it could not access the building for a short while thereafter because N & L retained some building-security-system codes and keys.

On June 29, 2007,' N & L again told Lioce Properties that it was terminating the lease pursuant to § 3.8 because, it said, Interconnect, a tenant in the building, was engaging in activities that directly competed with N & L’s business. On July 5, 2007, Lioce Properties informed N & L that, based on N & L’s alleged default for failure to pay rent, Lioce Properties had elected to accelerate “rents and other sums due.”

Meanwhile, on July 1, 2007, Lioce Properties rented space in the building to The Lioce Group, Inc., formed by Nicholas Lioce, Jr., and Louise Lioce in April 2007 to provide copier sales and service. According to Lioce Properties,

“[t]he Lioce Group rented 1,400 square feet of warehouse space and 308 square feet of office space of the 20,565 square feet formerly rented by N & L (a total of 1,708 square feet, or 8.3% of N & L’s former Building space). In December 2007, The Lioce Group rented another $180.00/month in additional Building space.”

Lioce Properties’ brief, at 10-11. According to Lioce Properties, the remainder of the space formerly occupied by N & L remains unleased despite what it describes as “considerable, ongoing efforts by Lioce [Properties]” to lease the space. Id. at 11.

On June 18, 2007, Lioce Properties sued N & L, alleging “that N & L was in default of the Lease [agreement] and seeking damages in the nature of past due rent, accelerated future rent, additional rent for operating expenses, late fees, interest, and legal fees pursuant to the Lease terms.” N & L’s brief, at 3. N & L filed a counterclaim seeking a judgment, declaring that N & L was legally entitled to terminate the lease under § 3.8.

Lioce Properties filed a motion for a partial summary judgment on the issue of N & L’s alleged breach of the lease agreement and later moved for a summary judgment on the issue of damages. N & L moved for a summary judgment on its counterclaim.

On December 16, 2008, the trial court granted Lioce Properties’ motion for a summary judgment regarding N & L’s claim alleging breach of the lease agreement and denied N & L’s motion for a summary judgment on its counterclaim. The trial court found:

“Interconnect cannot be deemed a competitor. While Interconnect terminated a business relationship with [N & L] and assumed [N & L’s] duties with regard to a government contract, [N & L] was legally precluded from competing for that contract since it did not qualify for small business set-aside work. Further, [N & L] was generally in the business of selling and servicing copiers, scanners, printers and fax machines. No evidence suggests that Interconnect was engaged in this line of business, with its work limited to the government contract in question along with sales and service of certain telecommunication equipment.”

Subsequently, the trial court entered a summary judgment in favor of Lioce Properties on the issue of damages, resulting in a final judgment against N & L in the amount of $939,845.14. N & L appeals from that judgment.

Issues

N & L identifies three issues this Court must address: (1) “[w]hether the trial court erred by finding that ... there was no competition between Interconnect and N & L that would justify N & L terminating the lease”; (2) “[w]hether the trial court erred by not finding a legal abandonment of the lease by N & L, and a termination of the lease by Lioce [Properties]”; and (3) “[w]hether the trial court erred by finding that the terms of the lease super-ceded Alabama law on the remedies available to a lessor in the event of an abandonment.” N & L’s brief, at 6.

Standard of Review

“This Court’s review of a summary judgment is de novo. We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. In making such a determination, we must review the evidence in the light most favorable to the non-movant. Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004) (quoting West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989)) (citations omitted).

Analysis

I.

N & L first argues that the trial court erred in finding as a matter of law that Interconnect was not competing with N & L’s business and that, therefore, N & L did not have the legal right to terminate the lease agreement pursuant to § 3.8. Section 3.8 provides:

“Landlord shall not lease to or otherwise permit any other office equipment dealer or similar business to occupy any space in the Building. Any violation of this Section 3.8 shall constitute a breach of this Lease [agreement] and, in addition to any other remedy to which Tenant may be entitled, Tenant may immediately terminate this Lease [agreement]. This clause does not apply to current tenants of the Building so long as any current tenants of the Building do not directly compete with Tenant’s business.”

N & L argues that Interconnect was clearly in competition with it for purposes of § 3.8 because, after the termination of the partnering agreement between N & L and Interconnect, Interconnect took over N & L’s business as the copier-service provider under the AMCOM contract. According to N & L, “[w]hen Interconnect became the new provider of copier service to AMCOM it unquestionably went into competition with N & L.” N & L’s brief, at 19.

The only authority N & L cites in support of its arguments are definitions of the word “competition” it has taken from Lioce Properties’ motion for a partial summary judgment:

“ ‘[Competition is] [t]he struggle for commercial advantage; the effort or action of two or more commercial interests to obtain the same business from third parties. Black’s Law Dictionary, West Publishing. Competition is the struggle between rivals for the same trade at the same time. Ferd Heim Brewing Co. v. Belinder, 71 S.W. 691, 695 (Mo.Ct.App.1902). Rivalry between two or more businesses striving for the same customers or market. Webster’s II New College Dictionary (1995). Direct competition means that the two [competitors] served essentially the same group of customers with essentially the same goods and services. Bagdon v. Firestone Tire & Rubber Co., [No. 87 C 4698, November 16, 1989] (N.D.Ill.1989) [ (not reported in F.Supp.) ]. Any person who competes with another person in the same market area at the same level of distribution. McGuire Oil Co. v. Mapco, Inc., 612 So.2d 417, 420 (Ala.1992).’ ”

N & L’s brief, at 18-19. N & L then argues that “[a]ll of these definitions apply to the relationship between Interconnect and N & L after Interconnect terminated the partnering agreement.” Id. at 19. We disagree.

According to N & L, before the partnering agreement, “Interconnect’s business had focused on providing telecommunication equipment and services,” and “Interconnect [had done] no copier service work.” N & L’s brief, at 2, 8. On the other hand, N & L’s primary business had always been copier sales and service. There is no evidence, outside the context of the AMCOM contract, indicating that N & L and Interconnect ever provided any of the same services or served any of the same customers. There is no evidence indicating that N & L and Interconnect ever competed with each other for the same contracts or business opportunities. Therefore, we cannot say that N & L and Interconnect were pursuing “the same trade at the same time,” “striving for the same customers or market,” or “serv[ing] essentially the same group of customers with essentially the same goods and services.”

Moreover, in the context of the AMCOM contract, N & L was not “competing] ... in the same market area at the same level of distribution” as, or competing with, Interconnect “to obtain the same business from third parties” because the AMCOM contract is a small-business set-aside, and N & L is too large to pursue the contract on its own. Therefore, the trial court correctly concluded that “Interconnect cannot be deemed a competitor” in terms of the lease agreement and that N & L “was ... not entitled to rely on [§] 3.8 ... to terminate the lease.” We affirm the trial court’s judgment in this regard.

II.

N & L next argues that “[t]he trial court erred by not finding a legal abandonment of the lease by N & L, and a termination of the lease by Lioce [Properties], when there was no evidence to the contrary.” N & L’s brief, at 22. Abandonment is “[t]he relinquishing of a right or interest with the intention of never again claiming it.” Black’s Law Dictionary 2 (8th ed. 2004). In a plurality opinion, Justice Brown wrote: “The distinction between default and abandonment has previously been recognized in Alabama law.... As a general rule, abandonment occurs when the lessee leaves the premises vacant with the avowed intention not to pay rent.” Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1100 (Ala.2003) (citations omitted).

“[W]hen a tenant abandons leased premises the landlord has two options. First, the landlord may allow the premises to remain vacant and recover rent for the whole term of the lease, or the landlord may end the lease by accepting the abandoned property and re-entering the premises.”

Ex parte Kaschak, 681 So.2d 197, 200 (Ala.1996).

N & L argues that it abandoned the leased premises by vacating the building on May 31, 2007, and informing Lioce Properties that it considered the lease to have been terminated pursuant to § 3.8. Further, N & L argues that Lioce Properties accepted the abandonment by retaking possession of the property and by leasing a portion of the premises to The Lioce Group. Therefore, N & L argues, the lease was terminated, and Lioce Properties’ “damages are thus limited to any unpaid rent up to the date of the termination of the lease.” N & L’s brief, at 25.

Lioce Properties acknowledges that N & L vacated the premises on May 31, 2007, and that N & L informed Lioce Properties that it considered the lease to have been terminated. Nick testified that Lioce Properties “regain[ed] access and control over the premises that had been vacated” and that “Lioce Properties has had control of those premises ever since.” Lioce Properties also acknowledges that “Me-ginning on July 1, 2007, ... The Lioce Group rented ... warehouse space and ... office space ... formerly rented by N & L.” Lioce Properties’ brief, at 11. Lioce Properties also admits that it has made “considerable, ongoing efforts” to lease the remainder of the space vacated by N & L. Id.

This undisputed evidence indicates that, by July 1, 2007, Lioce Properties had retaken possession and control of the leased premises. Therefore, we agree with N & L that “[i]t is clear from the evidence that there has been a legal abandonment, an acceptance of the abandonment, and a surrender of the lease,” N & L’s brief, at 24, and that Lioce Properties “end[ed] the lease by accepting the abandoned property and reentering the premises.” Kaschak, 681 So.2d at 200. Had the trial court properly applied the well recognized principles of abandonment and termination of leases, it could not have awarded damages representing rent due after the lease had been terminated. However, as discussed in Part III of this analysis section, the trial court found that these principles did not apply under the facts of this case.

III.

N & L next argues that “[t]he trial court erred by finding that the terms of the lease superceded Alabama law on the remedies available to a lessor in the event of an abandonment.” N & L’s brief, at 26. Specifically, the trial court held that “the language of Section 8.2 of the lease [agreement] ... trumps the common law.” Lioce Properties argues that § 8.2(a) of the lease agreement “mandates that N & L’s lease obligations continue even if N & L surrendered or Lioce [Properties] reentered and repossessed the leased premises.” Lioce Properties’ brief, at 22 (emphasis in original).

N & L argues, however, that § 8.2 “does not address a situation where there has already been an abandonment by the tenant,” N & L’s brief, at 27, and that because “abandonment does not come within the purview of the lease [agreement], the lease [agreement] cannot be used to supercede the remedies available at common law.” Id. at 28. We agree with N & L.

“ ‘ “[L]ease agreements are contracts and ... the general principles of contract construction apply in ascertaining the scope and meaning of a lease agreement.” ’ ” New Gourmet Concepts, Inc. v. Siedo Invs. Co., 988 So.2d 961, 965 (Ala.2007) (quoting Hardin v. Kirkland Enters., Inc., 939 So.2d 40, 44 (Ala.Civ.App.2006), quoting in turn Bowdoin Square, 873 So.2d at 1098). “In construing a contract, this Court is guided by the principle that ‘ “[t]he intention of the parties controls ... and the intention of the parties is derived from the contract itself, where the language is plain and unambiguous.” ’ ” State ex rel. Riley v. Lorillard Tobacco Co., 1 So.3d 1, 12 (Ala.2008) (quoting Dunes of GP, L.L.C. v. Bradford, 966 So.2d 924, 928 (Ala.2007), quoting in turn Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993)). This Court has also stated: “[I]t is well settled that the words of a contract are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract itself.” Food Serv. Distribs., Inc. v. Barber, 429 So.2d 1025, 1028 (Ala.1983).

The terms “abandon” or “abandonment” do not appear in the lease agreement. Nevertheless, Lioce Properties argues that § 8.2 of the lease agreement applies, because § 8.2 addresses circumstances in which the tenant surrenders the premises and the landlord reenters and/or repossesses the premises.

“ ‘ “It is well settled that a court in seeking to ascertain the intention of the parties in construing a contract, will consider the contract as a whole, although the immediate object of the inquiry is the meaning of a particular clause. Further, a contract must be construed as a whole and, whenever possible, effect must be given to all its parts.” ’ ”

Gulf Coast Realty Co. v. Professional Real Estate Partners, Inc., 926 So.2d 992, 1005 (Ala.2005) (quoting West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.2d 1290, 1294 (Ala.1993), quoting in turn Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 698, 299 So.2d 289, 295 (1974)).

' Section 8 of the lease agreement addresses “Default and Remedies,” and its subsections set forth (1) the circumstances that constitute a default by N & L, which do not include abandonment (§ 8.1); (2) the remedies available to Lioce Properties if N & L defaults (§ 8.2); (3) the assessment of costs incurred by Lioce Properties as the result of a default by N & L (§ 8.3); (4) the protection of Lioce Properties against a waiver of a default (§ 8.4); and (5) the circumstances that constitute a default by Lioce Properties (§ 8.5).

Section 8.2(a), upon which Lioce Properties relies, provides:

“In the event of any default hereunder by Tenant, then without prejudice to any other rights which it has pursuant to this Lease or at law or in equity, the Landlord shall have the following rights and remedies, which are cumulative and not alternative:
“(a) Landlord may terminate this Lease [agreement] by notice to Tenant and retake possession of the Premises for Landlord’s account. Tenant shall then quit and surrender the Premises to Landlord. Tenant’s liability under all of the provisions of this Lease [agreement] shall continue notwithstanding any expiration and surrender, or any re-entry, repossession, or disposition hereunder, including to the extent legally permissible, payment of all Rent and other charges until the date this Lease [agreement] would have expired had such termination not occurred. If Landlord so elects, Rent shall be accelerated and Tenant shall pay Landlord damages in the amount of any and all sums which would have been due for the remainder of the Term.”

(Emphasis added.)

Read in context, § 8.2(a) preserves N & L’s liability under the lease agreement, “notwithstanding any expiration and surrender, or any re-entry, repossession, or disposition” that occurs after the landlord has terminated the lease agreement “by notice to Tenant.” In this case, it was N & L, the tenant, that gave notice to Lioce Properties, the landlord, that N & L was terminating the lease agreement pursuant to § 3.8. The lease agreement simply does not address, as Lioce Properties claims, whether N & L’s liability under the lease agreement remains intact in the event it abandons the leased premises, regardless of a reentry by Lioce Properties. Therefore, the trial court erred in determining that the provisions of the lease agreement “trump” the common law as to the effect of an abandonment by the tenant followed by the acceptance of the abandonment by the landlord who reentered and re-let the property.

Conclusion

N & L was not entitled to terminate the lease agreement pursuant to § 3.8. However, because the lease was terminated by Lioce Properties’ actions following N & L’s abandonment of the leased premises, N & L’s liability is limited to the amounts owed under the lease agreement through the date of termination. Thus, the trial court erred in awarding Lioce Properties damages in excess of those amounts. Therefore, we reverse the trial court’s summary judgment as to damages and remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.

      . Section 3.8 of the lease provides:
      "Landlord shall not lease to or otherwise permit any other office equipment dealer or similar business to occupy any space in the Building. Any violation of this Section 3.8 shall constitute a breach of this Lease [agreement] and, in addition to any other remedy to which Tenant may be entitled, Tenant may immediately terminate this Lease [agreement]. This clause does not apply to current tenants of the Building so long as any current tenants of the Building do not directly compete with Tenant’s business.”


author: PER CURIAM.

text:
    John W. RICE and Tom Parker v. Beth CHAPMAN, as Secretary of State for the State of Alabama, et al.
    1091133.
    Supreme Court of Alabama.
    May 28, 2010.
    Algert S. Agricola, Jr., of Ryals, Plum-mer, Donaldson, Agricola & Smith, P.C., Montgomery; and William P. Gray, Jr., Douglas N. Robertson, and John David Gray of Gray & Associates, L.L.C., Birmingham, for appellants.
    Troy King, atty. gen., and James W. Davis, asst. atty. gen., for appellees Secretary of State Chapman, the probate judges, and circuit clerks; and Jean W. Brown, chief legal advisor, Office of Secretary of State, for appellee Secretary of State Chapman.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee Alan Eric Johnston.
    Williams B. Sellers of Balch & Bingham LLP, Montgomery, for appellee the Alabama Republican Party Executive Committee.
   PER CURIAM.

On April 30, 2010, John W. Rice (identified in the complaint as “a resident and qualified Republican elector of Lee County who intends to vote in the Republican primary election on June 1, 2010”) and Tom Parker (identified in the complaint as “a qualified Republican candidate for re-election to the office of Associate Justice, Alabama Supreme Court, place 3, in the Republican primary election on June 1, 2010”) (hereinafter “the petitioners”) filed a petition for a writ of prohibition, mandamus, certiorari, or other appropriate extraordinary relief in the Montgomery Circuit Court and named as respondents Beth Chapman, as Secretary of State for the State of Alabama, all Alabama probate judges and circuit clerks, and Alan Eric Johnston, in his individual capacity as a candidate for Associate Justice Alabama Supreme Court, place 3. By amendment, the petitioners added the Alabama Republican Party State Executive Committee as a respondent because, pursuant to Ala. Code 1975, § 17-13-17, it has the responsibility of receiving and tabulating primary-election returns and declaring the results of the election.

The petitioners contend Secretary of State Chapman improperly certified Johnston as a candidate because Johnston did not comply with Alabama Code 1975, § 17-5-4, requiring prospective candidates to timely file “Appointment of Principal Campaign Committee,” and Alabama Code 1975, § 36-25-15, which requires candidates to file “Statement of Economic Interest” forms.

The petitioners also filed a motion for a preliminary injunction, asking the circuit court to compel Secretary of State Chapman, the probate judges, and the circuit clerks “to take all necessary actions to remove the name of Respondent Alan Eric Johnston from the ballot for the June 1, 2010, Republican primary election for the office of Associate Justice of the Alabama Supreme Court, place 3, to prevent the counting or tabulating of any votes cast for Respondent Alan Eric Johnston ..., and to prevent the issuance of any certificate of election or nomination to Respondent Alan Eric Johnston” pending a decision by the circuit court on the merits of the petition for extraordinary relief.

Johnston moved to dismiss the petition, alleging, among other grounds, that the circuit court lacked jurisdiction to entertain the petitioners’ pre-election claims, citing § 17-16-44, and decisions of the Alabama Supreme Court.

The parties submitted a joint stipulation of facts that set out the dates on which the actions that led to the filing of the petition occurred:

“1. On April 1, 2010, Respondent Johnston filed his ‘Declaration of Candidacy’ form along with the necessary candidate qualifying filing fee with the Alabama Republican Party State Executive Committee for the office of Associate Justice, Alabama Supreme Court, place 3.
“2. On April 7, 2010, Respondent Johnston’s ‘Appointment of Principal Campaign Committee’ form dated April 5, 2010, was received by the Alabama Secretary of State’s office.
“3. On April 7, 2010, Respondent Johnston’s ‘Statement of Economic Interests’ form dated April 5, 2010, was received by the Alabama Ethics Commission.
"No jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process, or order from any judge or court, whereby the results of any election are sought to be inquired into, questioned, or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void and shall not be enforced by officer or obeyed by any person. If any judge or other officer hereafter undertakes to fine or in any wise deal with any person for disobeying any such prohibited injunction, process, or order, such attempt shall be null and void, and an appeal shall lie forthwith therefrom to the Supreme Court then sitting, or next to sit, without bond, and such proceedings shall be suspended by force of such appeal; and the notice to be given of such appeal shall be 14 days.”
“4. On April 7, 2010, the Alabama Republican Party State Executive Committee certified the name of Alan Eric Johnston to the Alabama Secretary of State to appear on the ballot as a candidate for the Republican nomination for the office of Associate Justice, Alabama Supreme Court, place 3, in the Republican primary on June 1, 2010.
“5. On April 12, 2010, Respondent Chapman certified the name of Respondent Johnston to the probate judge in each county in Alabama as a candidate for the Republican nomination for the office of Associate Justice, Alabama Supreme Court, place 3, in the Republican primary on June 1, 2010.”

Following a hearing on May 13, 2010, the Montgomery Circuit Court entered an order on May 17 denying the requested relief on the merits.

On appeal, the petitioners contend that the circuit court erroneously found that Johnston had timely filed the “Statement of Economic Interests” in accordance with the requirements of the Alabama Ethics Act, § 36-25-1 et seq., Alabama Code 1975, and that Johnston had timely filed the form appointing his principal campaign committee. Therefore, the petitioners contend that the circuit court’s order denying the motion for a preliminary injunction is based on an incorrect premise. The petitioners also ask this Court to overrule Davis v. Reynolds, 592 So.2d 546 (Ala.1991), as “being inconsistent with the clear and unambiguous language of the [Fair Campaign Practices Act, § 17-5-1 et seq., Alabama Code 1975].”

The respondents argue that the trial court’s opinion, though in their view correct on the merits, should not have been entered because, they argue, that court lacked subject-matter jurisdiction under Alabama Code 1975, § 17-16-44. Because the Court holds that the respondents are correct and that subject-matter jurisdiction does not exist under the facts of this case, we do not address the merits of the petitioners’ claims for relief that are based on the purported failure of Johnston to comply with the Ethics Act or the Fair Campaign Practices Act.

ANALYSIS

Alabama Code 1975, § 17-16-44, sometimes referred to as the “jurisdiction-stripping statute,” severely restricts a court’s jurisdiction to hear actions challenging the conduct or results of elections. As noted above, the statute provides:

“No jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute.... ”

The petitioners’ lawsuit implicates the jurisdiction-stripping statute because it seeks to impact the “conduct” of the June 1, 2010, Republican primary election by having the court either remove the name of one of the candidates, Eric Johnston, from the ballot or instruct the Republican Party not to canvass votes cast for Johnston. Thus, in order for a court to exercise jurisdiction over this action, § 17-16-44 requires that there be a statute giving it “authority to do so” which is “specially and specifically enumerated.... ”

The petitioners have cited as the statutory authority for the court’s jurisdiction Alabama Code 1975, § 36-25-15(c). That provision of the Ethics Act provides that “[o]ther provisions of the law notwithstanding” if a candidate fails to “submit a statement of economic interests in accordance with the requirements of this chapter, the name of the person shall not appear on the ballot....” The general language found in that prefatory statement to § 36-25-15(c) clearly cannot meet the requirement set forth in § 17-16^4 that a court’s authority must be “specially and specifically enumerated by statute.... ” The petitioners have cited no other provision of the law that would provide the court with the authority to hear this case, and the Court is aware of no such provision.

Therefore, pursuant to Alabama Code 1975 § 17-16^44, the Court holds that there does not exist subject-matter jurisdiction. Accordingly, the order of the trial court is hereby vacated, and this appeal is dismissed.

ORDER VACATED; APPEAL DISMISSED.

TORBERT, Special Chief Justice, and KENNEDY, HARWOOD, SUTTLE, STEWART, TOMPKINS, and CAPELL, Special Justices, concur.

INGRAM and BAXTER, Special Justices, not sitting.

      . Following the filing of the notice of appeal in this case on May 18, 2010, the Chief Justice and Associate Justices of the Supreme Court of Alabama acknowledged that Canon 3 of the Alabama Canons of Judicial Ethics required their recusal from consideration of this appeal. On May 21, 2010, in a random selection procedure consisting of a blind drawing from a pool of retired justices, appellate judges, and circuit judges, Chief Justice Sue Bell Cobb, pursuant to the authority contained in § 149, Art. VI, Alabama Constitution of 1901 (Off.Recomp.), and with the concurrence of the Associate Justices except Justice Parker, who did not participate, appointed the following nine judges to serve as the Special Supreme Court of Alabama in case number 1091133:
      The Honorable C.C. "Bo” Torbert, Jr.
      The Honorable Kenneth Frank Ingram
      The Honorable H. Mark Kennedy
      The Honorable Robert Bernard Harwood, Jr.
      The Honorable Ned Michael Suttle
      The Honorable Donald Wayne Stewart
      The Honorable N. Pride Tompkins
      The Honorable J. Thomas Baxter
      The Honorable John L. Capell

      . The petition describes these respondents as officials who "have certain duties and responsibilities regarding the printing of ballots for and the conduct of the June 1, 2010, Republican primary election for the office of Associate Justice, Alabama Supreme Court, place 3. The probate judges and circuit clerks are named as respondents herein solely for the purpose of effectuating any relief this court may enter in the premises.”

      .
      "(a) Candidates at every level of government shall file a completed statement of economic interests for the previous calendar year with the appropriate election official simultaneously with the date he or she becomes a candidate as defined in Section 17-22A-2 or the date such candidate files his or her qualifying papers with the appropriate election official, whichever date occurs first. Such election official shall within five days forward the statement of economic interests of the candidate to the commission. Nothing in this section shall be deemed to require a second filing of the person’s statement of economic interests if a current statement of economic interests is on file with the commission.
      "(b) Each election official who receives a declaration of candidacy or petition to appear on the ballot for election from a candidate and each official who nominates a person to serve as a public official shall, within five days of the receipt or nomination, notify the commission of the name of the candidate, as defined in this chapter, and the date on which the person became a candidate or was nominated as a public official.
      "(c) Other provisions of the law notwithstanding, if a candidate does not submit a statement of economic interests in accordance with the requirements of this chapter, the name of the person shall not appear on the ballot and the candidate shall be deemed not qualified as a candidate in that election. Notwithstanding the foregoing, the commission may, for good cause shown, allow the candidate an additional five days to file such statement of economic interests. If a candidate is deemed not qualified, the appropriate election official shall remove the name of the candidate from the ballot."

      .

      . Ex parte Krages, 689 So.2d 799 (Ala.1997); Harvey v. City of Oneonta, 715 So.2d 779 (Ala.1998); Etheridge v. State of Alabama, 730 So.2d 1179 (Ala.1999); Bryan v. Hubbard, 6 So.3d 491 (Ala.2008); Roper v. Rhodes, 988 So.2d 471 (Ala.2008); and Wood v. Booth, 990 So.2d 314 (Ala.2008).

      . The Court also notes that it is undisputed that the Republican Party provides a pre-primary election process by which the qualifications of a candidate may be challenged, and that the petitioners here did not avail themselves of that process. Moreover, it is undisputed that the Republican Party provides a post-primary election contest process that also allows the qualifications of a candidate for office to be challenged.