author:
IRVING, J.,
      CARLTON, J.,

text:
    Craig E. WOLFE, Appellant v. Kimberly Pauline WOLFE, Appellee.
    No. 2009-CA-00947-COA.
    Court of Appeals of Mississippi.
    Nov. 30, 2010.

      Cheryl Denise Rogers Johnson, attorney for appellant.
    Kimberly Pauline Wolfe, appellee, pro se.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   IRVING, J.,

for the Court:

¶ 1. Kimberly Wolfe and Craig Wolfe wed after meeting at Keesler Air Force Base in Mississippi. In May 2008, while living in Ohio, Kimberly and Craig filed a dissolution to begin the process of ending their marriage. As part of that dissolution, the Fairfield County Common Pleas Court Domestic Relations Division in Ohio entered an order restraining both Kimberly and Craig from interfering with each other’s lives. In July 2008, Kimberly moved to Mississippi; Craig followed in October. While in Mississippi, events allegedly occurred that caused Kimberly to file a petition in the Pearl River County Chancery Court for a restraining order. The chancellor found merit to Kimberly’s petition and entered a domestic-violence protective order against Craig. Displeased at the entry of the protective order, Craig appeals and asserts multiple contentions of error, which we consider as two issues: (1) whether the chancellor erred in entering a protective order in Mississippi and (2) whether the chancellor had the authority to enforce the Ohio restraining order.

¶ 2. We find that there was insufficient evidence to justify a protective order; therefore, we reverse and render the judgment of the chancery court.

FACTS

¶3. After Kimberly and Craig were married, Craig; an officer in the United States Air Force, went to serve in Iraq. At the time of his departure, Craig and Kimberly, then pregnant with their first child, Nathanael, were living in Alaska, where Craig had been stationed. By the time that Craig returned to Alaska, it was clear that relations between him and Kimberly had become strained. In October 2007, after Craig’s return from Iraq, he and Kimberly moved to Ohio.

¶ 4. According to Kimberly, Craig raped her in April 2008. Craig maintains that the sexual contact was consensual. The chancellor made no determination as to whether the incident was consensual, and there is no indication in the record that any official proceeding has taken place regarding the alleged rape. Kimberly became pregnant as a result of the' encounter. In May 2008, Kimberly and Craig stopped living together. Around the same time, Kimberly convinced Craig to agree to a dissolution of their marriage; shortly thereafter, Craig learned that Kimberly was pregnant. A later paternity test, performed at Craig’s request, determined that the unborn child was Craig’s. Craig then obtained a restraining order in Ohio to prevent Kimberly from having an abortion.

¶ 5. As stated, in July 2008, Kimberly moved to Mississippi. Under the terms of the Ohio visitation order, Craig must remain within sixty miles of Kimberly in order to exercise full visitation. Craig testified that he followed Kimberly to Mississippi as a result. However, the visitation order pertains only to Nathanael. The Wolfes’ second child, Benjamin, was born in 2009 and has never had contact with his father because Kimberly refuses to allow Craig to have visitation with Benjamin without a court order.

¶ 6. Kimberly and Craig’s relationship did not improve upon their arrival in Mississippi. Craig testified that Kimberly told him that, under Mississippi law, he had to meet her at the police station to take Nathanael for visitation. Craig testified that he later learned that there was no requirement that he meet Kimberly at the police station for visitation. Kimberly' testified that Craig then demanded that they meet at a Wendy’s or a McDonald’s, and that if they did not, Craig would not bring Nathanael back at the end of his visitation period. While meeting at the police station to exchange Nathanael, there was an incident that involved Craig touching Kimberly’s stomach while she was pregnant with Benjamin; Craig testified that he did so with Kimberly’s permission, while Kimberly testified that Craig rubbed her stomach without permission. Kimberly also complained of an incident at the police station where Craig allegedly “pinned” her between her open car door and her car and rubbed her stomach. Kimberly testified that she is afraid of Craig in part because he wants visitation with Benjamin, although Kimberly admitted that Craig has had visitation with Nathanael for ten months without incident.

¶ 7. On April 20, 2009, the chancery court entered a domestic-violence protective order against Craig. In addition to prohibiting Craig from contacting Kimberly, the chancellor incarcerated Craig for ninety days. The next day, the chancery court entered an order releasing Craig and suspending his ninety-day sentence “on the condition that Craig E. Wolfe return to Ohio immediately.” On April 30, Craig filed a motion to set aside or reconsider the protective order. A hearing on the motion was held on May 7, 2009, and the chancery court issued a final protective order on the same day. As justification for the order, the chancery court found that Craig: (1) had “attempted to cause or intentionally, knowingly[,] or recklessly caused bodily injury” to Kimberly; (2) had placed Kimberly in fear of “imminent serious bodily injury”; and (3) had engaged in stalking or cyberstalking. The chancery court gave the following factual basis for these findings: “On 4/24/2008 there was a[n] alleged unconsentual [sic] sex with petitioner by respondent; in 12/08 he threatened not to return the minor child; he has violated the 7/30/08 Ohio mutual restraining order, attached hereto as an exhibit.”

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1.. Validity of Mississippi Order

¶ 9. In order to obtain a restraining order in Mississippi, an individual “may seek a domestic abuse protection order ... by filing a petition alleging abuse by the respondent.” Miss.Code Ann. § 93-21-7(1) (Rev.2004). The Mississippi Code contains a specific definition of what constitutes “abuse”:

“Abuse” means the occurrence of one or more of the following acts between spouses, former spouses, persons living as spouses or who formerly lived as spouses, persons having a child or children in common, other individuals related by consanguinity or affinity who reside together or who formerly resided together!,] or between individuals who have a current or former dating relationship:
(i) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon;
(ii) Placing, by physical menace or threat, another in fear of imminent serious bodily injury;
(iii) Criminal sexual conduct committed against a minor within the meaning of Section 97-5-23;
(iv) Stalking within the meaning of Section 97-3-107;
(v) Cyberstalking within the meaning of Section 97-45-15; or
(vi) Sexual offenses within the meaning of Section 97-3-65 or 97-3-95.

Miss.Code Ann. § 93-21-3(a) (Supp.2009).

¶ 10. When all of the events testified to by Kimberly are reviewed, it is clear that there was insufficient evidence for a protective order. Kimberly essentially testified that: (1) Craig had touched her stomach when she did not want him to, (2) Craig had made her feel “pinned” near her car, and (3) Craig had threatened to keep custody of Nathanael. None of these events involved Craig causing Kimberly any form of bodily injury, nor did they constitute criminal sexual conduct. Furthermore, none of the incidents related by Kimberly constitute stalking or cyberstalk-ing. Kimberly never testified that she feared “imminent serious bodily injury.” Although Kimberly testified to an alleged sexual assault by Craig in Ohio, the chancellor apparently did not find Kimberly credible as to the assault, as he specifically declined to find that Kimberly had shown evidence of sexual battery or rape. Therefore, there was no ground to issue the protective order under Mississippi law.

¶ 11. Consequently, we reverse and render the chancery court’s entry of a Mississippi protective order.

2. Enforcement of Ohio Order

¶ 12. Although not specifically addressed as such by the chancery court, we find it necessary to consider whether the chancery court’s judgment can be affirmed as an enforcement of the Ohio order. It is clear that Kimberly’s testimony would be sufficient to show a violation of the Ohio order, which prohibited the Wolfes from bothering, harassing, annoying, and interfering with one another.

¶ 13. However, enforcement of the Ohio protective order would require a finding that Craig is in contempt of the Ohio order. Under Rule 81 of the Mississippi Rules of Civil Procedure, strict notice requirements must be adhered to in order to initiate a contempt proceeding. Those notice requirements were not complied with in this case; therefore, the chancery court lacked jurisdiction to enforce the Ohio protective order. As a result, the Ohio protective order cannot be used to affirm the chancery court’s judgment.

¶ 14. For the reasons discussed, we reverse and render the judgment of the chancery court.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES, J.

CARLTON, J.,

dissenting:

¶ 16. I respectfully dissent and find that sufficient evidence exists to support the chancellor’s issuance of a protective order. The preponderance of the evidence constitutes the standard of proof the petitioner bears to prove allegations of abuse in support of a protective order. Miss. Code Ann. § 93-21-11 (Supp.2009). In recognizing that the chancellor finds facts and determines credibility, an appellate court will not reverse a chancellor’s findings of fact when the evidence reasonably supports those findings. Robbins v. Robbins, 40 So.3d 637, 638 (¶ 2) (Miss.Ct.App.2010).

¶ 17. A protective order issued by a tribunal of another state to protect the applicant from domestic abuse, as defined by statute, shall be accorded full faith and credit by the courts of this state and enforced in this state as provided for in the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act. Miss.Code Ann. § 93-21-11 (Supp.2009); Miss.Code Ann. § 93-21-16 (Supp.2009); Miss.Code Ann. § 93-22-5 (Rev.2004). Moreover, a knowing violation of a protective order by a Mississippi or foreign court is a misdemeanor. Miss.Code Ann. § 93-21-21 (Rev.2004).

¶ 18. I therefore find no abuse of discretion and would affirm the judgment of the chancellor.

BARNES, J., JOINS THIS OPINION.

      . Kimberly testified that she and Craig ceased having consensual sex on February 14, 2009. However, it is clear from the totality of her testimony that she meant February 14, 2008.

      . Kimberly also testified that she moved out July 4, 2008. Although it is not clear from the record what Kimberly meant when she said she moved-out July 4, perhaps, in light of her other testimony that she and Craig stopped living together in May, she meant that this was the date that she left Ohio and came to Mississippi.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Emma HANNAH, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01655-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Emma Hannah, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before KING, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Emma Hannah appeals the dismissal of her second motion for post-conviction relief (PCR). In 2002, during the course of her murder trial, she pled guilty to the lesser offense of manslaughter. Though her 2009 PCR motion is based in part on a claim of “newly discovered evidence,” we find she simply recasts allegations asserted in a prior PCR motion. Thus, the newly-discovered-evidence exception to the three-year statute of limitations does not apply. Aside from the untimeliness of her present PCR motion, we further find no ineffective assistance of counsel nor involuntariness on Hannah’s part in withdrawing her 2003 PCR motion. For these reasons, we affirm the dismissal of her 2009 PCR motion.

PROCEDURAL HISTORY

¶ 2. In 2001, the State charged Hannah with murdering her husband Winfred Hannah by pouring a pot of boiling water on him while he slept. After the State’s first witness testified at trial, Hannah decided to plead guilty to the lesser offense of manslaughter in December 2002. The Winston County Circuit Court accepted her guilty plea and sentenced her to twenty years in the custody of the Mississippi Department of Corrections.

¶ 3. Hannah filed her first PCR motion in 2003, which the circuit court denied. The Mississippi Supreme Court reversed the denial and remanded the matter to the circuit court for an evidentiary hearing on the issues of (1) ineffective assistance of counsel and (2) the voluntariness of her plea. Hannah v. State, 943 So.2d 20, 27 (¶ 20) (Miss.2006). At the December 2006 evidentiary hearing, the circuit court heard testimony from Hannah’s trial attorney and held that Hannah had received effective counsel in 2002. However, before the circuit court addressed the voluntariness of her guilty plea, Hannah -withdrew her PCR motion and requested to return to prison. The circuit court conducted a hearing on her decision to withdraw her PCR motion. The circuit judge questioned Hannah, who testified under oath, as well as her family members and her attorney. Satisfied he was complying with Hannah’s wishes, the circuit judge granted Hannah’s withdrawal of her PCR motion and returned Hannah to the custody of MDOC to serve the remainder of her manslaughter sentence.

¶ 4. Two-and-a-half years later, Hannah filed this second PCR motion. She claimed: (1) there was newly discovered evidence; (2) her lawyer at the 2006 evi-dentiary hearing was ineffective; and (3) her withdrawal of her first PCR motion was involuntary. The circuit judge found the evidence Hannah deemed newly discovered had already been presented, could have been presented, or was already within Hannah’s knowledge during prior proceedings. He also noted his previous 2007 order where he found Hannah, while represented by counsel, had freely and voluntarily withdrawn her first PCR motion. Therefore, he dismissed Hannah’s motion as successive under Mississippi Code Annotated section 99-39-23(6) (Supp.2009) and time-barred under section 99-39-5 (Supp.2009).

¶ 5. The circuit judge further found Hannah’s motion was frivolous and failed to state a claim for which relief can be granted. He imposed sanctions under Mississippi Code Annotated section 47-5-138 (Supp.2009). As the first “final order” issued against her, Hannah lost sixty days of earned time. Miss.Code Ann. § 47-5-138(3)(a) & (b)(i). On appeal, Hannah does not contest the imposition of sanctions.

DISCUSSION

¶ 6. We review the dismissal of a PCR motion under an abuse-of-discretion standard. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). We will not overturn a trial court’s denial of post-conviction relief unless its factual findings are clearly erroneous. Id. If questions of law are raised on appeal, our standard of review is de novo. Id.

A. Newly Discovered Evidence

¶ 7. Hannah filed her second PCR motion more than six years after her 2002 guilty plea. Mississippi’s Uniform Post-Conviction Collateral Relief Act bars motions filed more than three years after the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2). But an exception applies when a petitioner presents “evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence[.]” Miss.Code Ann. § 99-39-5(2)(a)(i).

¶ 8. Hannah titled her second motion: “Motion for Post-Conviction Collateral Relief-Newly Discovered Evidence.” Her allegedly “new” evidence included Winfred’s medical records, a 911 tape, and the testimony of Winfred’s mother and sister. However, she had already presented this evidence in her first PCR motion. See Hannah, 943 So.2d at 32-35 (¶ ¶ 39-48) (Smith, C.J., dissenting) (discussing Hannah’s factual allegations). Because we find Hannah presented no newly discovered evidence, let alone evidence not reasonably discoverable in 2002 nor practically conclusive of her innocence, we affirm the circuit court’s ruling that section 99-39-5(2) bars Hannah’s untimely filed motion.

B. The Claims of Ineffective Assistance of Counsel and Plea Involuntariness

¶ 9. Despite the procedural bar, we also find no merit to her 2009 PCR motion. Hannah’s second PCR motion claims ineffective assistance of counsel, not at her 2002 trial, but at her 2006 evidentia-ry hearing. She also claims her decision to withdraw her first PCR motion before the circuit court ruled on the voluntariness of her 2002 guilty plea was itself involuntary.

¶ 10. To establish an ineffective-assistance-of-counsel claim, Hannah must demonstrate: (1) her attorney’s performance was deficient, and (2) this deficiency deprived her of a fair trial. Beene v. State, 910 So.2d 1152, 1155 (¶ 10) (Miss.Ct.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We are instructed to assess the totality of the circumstances in determining whether counsel’s assistance was effective. Wiley v. State, 750 So.2d 1193, 1199 (¶ 11) (Miss.1999).

¶ 11. Hannah withdrew her first PCR motion after the circuit court found Hannah’s 2002 Mai attorney had acted reasonably by advising her to plead guilty to manslaughter to avoid a potential life sentence for murder. Hannah does not contest this finding. In rejecting her 2009 PCR motion, the circuit court similarly found Hannah’s lawyer at her 2006 eviden-tiary hearing had reasonably advised her to withdraw her PCR motion to avoid a murder trial.

¶ 12. We point out that before granting her requested withdrawal, the circuit court carefully advised Hannah of the consequence of a successful PCR motion-a new trial on the murder charge with a potential life sentence. The circuit judge also informed her that if she withdrew her 2003 PCR motion she would return to prison to serve the remainder of her twenty-year manslaughter sentence.

¶ 13. It has long been held that “[s]ol-emn declarations in open court carry a strong presumption of verity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978). Before the circuit court permitted Hannah to withdraw her PCR motion, he questioned her under oath about her decision to withdraw the motion. In response to pointed inquiries from the court, Hannah testified she was satisfied with her current counsel and wished to withdraw her PCR motion and serve her manslaughter sentence. The record indicates her attorney’s and family members’ responses to questions from the court corroborate Hannah’s withdrawal was voluntary.

¶ 14. Based on Hannah’s sworn testimony that it was her wish to withdraw her first PCR motion, we find Hannah’s withdrawal of her PCR motion was voluntary. We also find her attorney’s advice to withdraw her attack on the manslaughter plea certainly falls within the wide range of reasonable professional assistance.

CONCLUSION

¶ 15. For the reasons stated, we affirm the dismissal of Hannah’s 2009 PCR motion.

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

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

      . Section 47-5-138(3)(a) defines a "final order” as "an order of a state or federal court that dismisses a lawsuit brought by an inmate while the inmate was in the custody of the Department of Corrections as frivolous, malicious or for failure to state a claim upon which relief could be granted.” Section 47-5 — 138(3)(b)(i) directs: "On receipt of a final order, the department shall forfeit: (i) Sixty (60) days of an inmate’s accrued earned time if the department has received one (1) final order as defined herein....”

      . Because there was no "newly discovered evidence,” we do not address whether her guilty plea waived all evidentiary-based claims.


author: GRIFFIS, J.,

text:
    Demario WALKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00221-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Demario Walker, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Demario Walker filed a “Petition to Clarify Sentence” in the Circuit Court of Wilkinson County. The circuit court treated it as a petition for post-conviction collateral relief and denied relief. We find no error and affirm.

FACTS

¶ 2. On June 10, 2008, Walker pleaded guilty to aiding the escape of a felon under Mississippi Code Annotated section 97-9-29 (Rev.2006). Walker was sentenced to serve five years in the custody of the Mississippi Department of Corrections, to run consecutively to eight years remaining from a prior conviction. On August 4, 2008, Walker filed a petition for post-conviction collateral relief. It was denied by the circuit court. Walker appealed, but the appeal was dismissed by this Court as untimely filed.

¶ 3. On January 27, 2009, the circuit court denied Walker’s “Petition to Clarify Sentence.” The petition is not part of the record before this Court. Walker now appeals the circuit court’s judgment that denied the petition.

STANDARD OF REVIEW

¶ 4. A circuit court’s denial of post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 5. Because the “Petition to Clarify Sentence” is not in the record, we do not know what arguments it contained. The only indication we have is the circuit court’s order denying relief, which states that Walker claimed his sentence was “ambiguous.”

¶ 6. “It is the responsibility of the appellant to designate the record pursuant to Rule 10(b) of the Mississippi Rules of Appellate Procedure in a manner sufficient to allow this Court to review the appellant’s issues.” Austin v. State, 971 So.2d 1286, 1287 n. 1 (Miss.Ct.App.2008). Following the circuit court’s denial of his “Petition to Clarify Sentence,” it appears that Walker filed a notice of appeal but failed to designate the record, as was his responsibility under the rules. Walker clearly understood the rules. He is a veteran at post-conviction collateral relief litigation. See Walker v. State, 35 So.3d 555 (Miss.Ct.App.2010); Walker v. State, 910 So.2d 584 (Miss.Ct.App.2005); Walker v. State, 861 So.2d 354 (Miss.Ct.App.2003).

¶ 7. Walker’s brief before this Court makes no arguments whatsoever about his sentence. Instead, he argues that his trial counsel was ineffective, that his guilty plea was involuntary, that cumulative errors require reversal, and that he is actually innocent. We strongly suspect these are issues that were not raised in his “Petition to Clarify Sentence.” As this Court has explained:

It is well settled that issues not raised below may not be raised on appeal. “Questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error.” Stringer v. State, 279 So.2d 156, 158 (Miss.1973); Jones v. State, 915 So.2d 511, 513 (¶ 7) (Miss.Ct.App.2005).

Austin, 971 So.2d at 1288 (¶ 8).

¶ 8. Even if these arguments had been made in his petition, they would be procedurally barred. Walker’s first petition for post-conviction collateral relief — the first to attack his conviction for aiding the escape of a felon — was denied by the circuit court, and he failed to timely pursue an appeal. He is now barred from bringing any further petitions for post-conviction collateral relief unless he can show that an exception applies. Miss. Code Ann. § 99-39-23(6) (Supp.2009). Furthermore, he cannot escape the procedural bars by merely styling his petition as one to “clarify sentence.” Johnson v. State, 31 So.3d 647, 649 (¶ 7) (Miss.Ct.App.2010).

¶ 9. Accordingly, we find no merit to Walker’s appeal.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY DENYING THE PETITION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WILKINSON COUNTY.

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


text:
    Rosa ROBINSON and Willie Washington, Appellants v. Ivey BURTON and Hilda Burton, Appellees.
    No. 2008-CP-01776-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Rosa Robinson, Appellant, pro se.
    Willie Washington, Appellant, pro se.
    Beth Burton, Mark Ivey Burton, Kosciusko, attorneys for appellees.
    Before LEE, P.J., GRIFFIS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Ivey Burton and Hilda Burton requested the Attala County Chancery Court partition a 119.54-acre parcel of land in which they owned an undivided interest. Several relatives, including Rosa Robinson and Willie Washington, who also owned an interest, objected to the land being partitioned. The chancellor ultimately ordered a partition sale, finding it was in the best interest of all property owners. He reasoned this was the only practical option given the numerous shares into which the land was divided and the small size of many of the interests. We find no manifest error in this decision.

¶ 2. Robinson additionally claims the chancellor was biased and held racial prejudices against her. Though Robinson never sought to have the chancellor recuse himself from the case, our plain-error review of the record reveals no evidence of bias to warrant reversal.

¶ 3. Finding no merit to Robinson’s remaining arguments, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. The parties in this appeal all held an interest in a 119.54-acre parcel of land. There were a total of thirty-nine interest holders. The Burtons collectively owned approximately forty-eight percent of the land, while every other person owned five percent or less. Robinson owned less than two percent of the parcel, and Washington owned less than one percent. Many others owned less than one percent.

¶ 5. Following a three-day hearing, the chancellor ordered the land and the timber on it sold and the proceeds divided among the interest holders. He concluded this was the only practical option that “would best promote the interest of all undivided interest owners.” The chancellor recognized that some of the heirs, including Robinson, desired to retain fee-simple ownership. But the chancellor found this task “to be next to impossible based on ... the various minute interests owned by the other thirty-eight (38) undivided interest owners.” The chancellor concluded that separating thirty-nine tracts of varying size would be an extremely expensive task considering that each individual tract would have to be surveyed. He further noted the timber varied “in quantity and quality throughout the 119.54 acre tract.”

¶ 6. After the chancellor entered a judgment directing the sale of the land, Robinson filed a motion in the Mississippi Supreme Court to stay the sale. The supreme court denied the stay, but granted Robinson leave to file for a stay in the chancery court. However, by the time Robinson filed her January 6, 2009, motion to stay in the chancery court, the land and timber had already been sold approximately two weeks earlier on December 22, 2008.

¶ 7. Robinson proceeds pro se on this appeal as she did at the trial level. She alleges numerous errors, many of which are unclear. But from our review, we discern that the crux of her arguments center on (1) the chancellor’s alleged improper disposal of the property; (2) the chancellor’s alleged impartiality and racial bias; and (3) the chancellor’s refusal to grant a continuance.

¶ 8. Concerning the second issue, the Burtons, represented by counsel, filed a motion to strike Robinson’s brief. They argue the brief should be stricken because of its highly disrespectful overtures toward the chancellor. See M.R.A.P. 28(k). They additionally allege Robinson’s appeal is frivolous and request damages sustained as a result. See M.R.A.P. 38. By order entered December 9, 2009, the supreme court found the motion should be “passed for consideration with the merits of the appeal.” Thereafter, the supreme court assigned the appeal to this court.

STANDARD OF REVIEW

¶ 9. We employ the familiar “manifest error” standard of review to a chancellor’s decision to order a partition sale of land. Cathey v. McPhail & Assoc., Inc., 989 So.2d 494, 495 (¶ 3) (Miss.Ct.App.2008). Under this standard, we will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). In conducting this review, we are restrained from substituting our own judgment for that of the chancellor, even if we disagree with his or her findings of fact and would arrive at a different conclusion. Coggin v. Coggin, 837 So.2d 772, 774 (¶3) (Miss.Ct.App.2003). But when reviewing a chancellor’s interpretation and application of law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

DISCUSSION

I. Sanctions

¶ 10. We first address the Bur-tons’ request that we sanction Robinson by striking her brief and deeming her appeal frivolous.

¶ 11. The Burtons claim that Robinson’s brief should be stricken under Rule 28(k) of the Rules of Appellate Procedure. Rule 28(k) provides that “[a]ny brief containing language showing disrespect or contempt for the trial court will be stricken from the files, and the appropriate appellate court will take such further action as it may deem proper.” Though the manner in which Robinson chooses to cast her accusations against the chancellor arguably toes the line of Rule 28(k), we decline to sanction Robinson by striking any part of brief. See Young v. Benson, 828 So.2d 821, 824 (¶ 11) (Miss.Ct.App.2002) (refusing to strike pro se appellant’s brief, which may have asserted “baseless claims of error, including that the chancery clerk violated her civil rights ... [and that] the trial judge was not impartial”).

¶ 12. The Burtons also seek to invoke Mississippi Rule of Appellate Procedure 38, which allows us to “award just damages and single or double costs to the appellee” if we find an appeal is frivolous. The supreme court “has equated the Rule 38 frivolousness to the definition of the same concept in Mississippi Rule of Civil Procedure 11.” Harris v. Harris, 988 So.2d 376, 380 (¶ 16) (Miss.2008). The inquiry turns on “whether a reasonable person would have any hope for success.” Id. This objective inquiry is determined from the vantage point of a reasonable person in the litigant’s position when he or she filed the claim. Mark S. Bounds Realty Partners, Inc. v. Lawrence, 34 So.3d 1224, 1228 (¶ 12) (Miss.Ct.App.2010). Pro se litigants are subject to the same sanctions as represented parties. Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987).

¶ 13. The Litigation Accountability Act also provides for sanctions if the court, upon request or its own motion, finds that a claim is brought “without substantial justification.” Miss.Code Ann. § 11-55-5(1) (Rev.2002). The Legislature defined this phrase to include claims that are “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § ll-55-3(a) (Rev.2002). The supreme court has held that the Act and Rule 11 are not conflicting; rather each augments the other. See Stevens v. Lake, 615 So.2d 1177, 1184 (Miss.1993).

¶ 14. Though some of Robinson’s arguments could perhaps be deemed frivolous, we decline to impose sanctions. Our supreme court has found it inappropriate to sanction a party who has presented a justi-ciable claim, where the other party incurred no additional expense by defending other exaggerated claims. Dethlefs, 511 So.2d at 118. Robinson’s primary argument is that the chancellor improperly disposed of her family property. We cannot agree with the Burtons that Robinson could not have reasonably hoped to prevail on this claim. This is especially so given the strong preference against a partition sale.

¶ 15. Further, while Robinson’s brief does contain seemingly exaggerated and unsupported claims, the Burtons have not specifically identified the assertions they deem frivolous. Nor have they explained the prejudice they have suffered as a result of defending the appeal. Indeed^ the Burtons do not even attempt to respond to most of Robinson’s allegations but instead focus almost exclusively on the partition sale. For these reasons, we find sanctions inappropriate.

II. Procedural Bars

¶ 16. Before addressing Robinson’s arguments, we note Robinson cites no legal authority in her appellate brief. This omission alone serves as a recognized procedural bar to our consideration of her claims. Dampier v. State, 973 So.2d 221, 228 (¶ 20) (Miss.2008). She further fails to specifically identify assignments of error as required by our appellate rules, which we have also held to be a procedural bar. Reed v. State, 987 So.2d 1054, 1056-57 (¶¶ 6-8) (Miss.Ct.App.2008) (citing M.R.A.P. 28(a)(8)).

¶ 17. Our supreme court has emphasized that “[p]ro se parties should be held to the same rules of procedure and substantive law as represented parties.” Dethlefs, 511 So.2d at 118. But at the same time, the supreme court has instructed that we “credit not so well pleaded allegations so that ... meritorious [claims] may not be lost because inartfully drafted.” Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995). Filings of pro se litigants in criminal cases are held “to less stringent standards than [those] drafted by lawyers.” McFadden v. State, 580 So.2d 1210, 1214 (Miss.1991). And we afford this same deference to pro se litigants in civil cases. Zimmerman v. Three Rivers Planning and Dev. Dist., 747 So.2d 853, 856 (¶ 6) (Miss.Ct.App.1999).

¶ 18. With these rules in mind, we choose to proceed in spite of Robinson’s procedural defaults. But our review is limited to “any self-evident error for which no authority would be necessary.” Kellar v. Miss. Employment Sec. Comm’n, 756 So.2d 840, 842 (¶6) (Miss.Ct.App.2000) (citing Johnson v. State, 154 Miss. 512, 513, 122 So. 529 (1929)) (holding appellate court is under no duty to consider allegations in pro se litigant’s brief which contains no legal authority). We now turn to Robinson’s primary arguments.

III. Partition Sale

¶ 19. Partition is a statutory right. Mosby v. Mosby, 962 So.2d 119, 122 (¶ 8) (Miss.Ct.App.2007). Cotenants have an absolute right to the partition of property, with one statutory exception not applicable here. See id. (citing Miss.Code Ann. § 91-1-23 (Rev.2004)). Any party in interest may institute an action for a partition in kind or partition sale in the chancery court. Miss.Code Ann. § 11-21-5 (Rev.2004).

¶ 20. Mississippi Code Annotated section 11-21-11 (Rev.2004) provides for a partition sale where a chancellor determines: (1) “a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind”; or (2) “an equal division cannot be made[.]” Only one of these two requisites must be satisfied for a partition sale to be proper. Fuller v. Chimento, 824 So.2d 599, 602 (¶ 9) (Miss.2002).

¶21. There is a preference for partition in kind over partition sale. Fuller, 824 So.2d at 602 (¶ 12). And chancellors have “no authority to decree a sale unless the statutory requisites are ‘clearly’ met and a ‘substantial reason’ exists for choosing partition by sale over partition in kind.” Georgian v. Harrington, 990 So.2d 813, 816 (¶ 9) (Miss.Ct.App.2008) (quoting Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 850 (Miss.1992)). The burden is on the party seeking a partition sale to prove the statutory requisites are met. Overstreet v. Overstreet, 692 So.2d 88, 90-91 (Miss.1997). “The propriety of a partition sale or partition in kind is determined on a case-by-case basis.” Fuller, 824 So.2d at 601 (¶ 9).

¶ 22. In Cathey, the chancellor ordered a partition sale based on considerations similar to those involved here. The chancellor found a partition sale appropriate because approximately 300 heirs owned various interests in a 160-acre parcel of land, some of which were extremely small. Id. at 495-96 (¶¶ 2, 7). He also found there would be problems with access if the land were divided; the land was not uniform in its desirability; and the partition expenses could not be covered except through sale of the property. Id. at 496 (¶ 7). This court found no manifest error in the chancellor’s decision that a partition sale was in the best interest of all parties. Id.

¶ 23. In Fuller, our supreme court determined that in addition to being in the best interest of all interest holders, the requested partition in kind was unfeasible because of “the configuration of the buildings and the odd shape of the property[.]” 824 So.2d at 603 (¶ 13). The property could not be equally divided where the property line did not split one of the seven buildings on the property. Id. Despite the appraisers’ conclusion that the buildings contributed nothing to the property value, the supreme court concluded the buildings were usable, and therefore an equal division could not be achieved. Id.

¶ 24. Here, the chancellor considered dividing the 119.54-acre tract in which thirty-nine heirs owned an interest. He recognized Robinson and other co-owners desired to retain fee-simple ownership of their undivided shares. But the chancellor found dividing the land in this manner unfeasible, given the numerous undivided interests where many owned less than one percent of the parcel. The chancellor also noted that surveying the land would be an expensive endeavor because each individual tract would have to be surveyed. He further pointed to evidence showing that the timber was not uniform throughout the tract and that some of the land had road frontage while other portions did not. Based on these reasons, he concluded a partition in kind was unfeasible, and a partition sale was in the best interest of all heirs.

¶ 25. Considering the characteristics of the land, the varying sizes of the many individual interests, and the feasibility and realities underlying a division of the tract, we draw from Cathey and Fuller and find no error in the chancellor’s determination that a partition sale was the best alternative for all concerned. We likewise find that the statutory requisites for ordering a partition sale were clearly met.

IY. Impartiality of the Chancellor

¶ 26. Robinson makes various allegations centered on the chancellor’s temperament and partiality. She claims: (1) he was disrespectful to her and shouted at her; (2) he told her that he was “going to show [her] some Mississippi justice”; (3) he “violated [her] civil rights”; and (4) he was biased against her and conspired with the Burtons to prevent her from keeping her property. She further suggests the chancellor held racial prejudices against her.

¶ 27. Robinson makes serious accusations of impropriety, which we give our utmost attention. Yet in considering these accusations, we are confronted with the fact that at no point prior to or during the trial did she request that the chancellor recuse himself. Nor did she contemporaneously object to the chancellor’s purportedly disrespectful comments. Our supreme court has held that failure to move to recuse or to contemporaneously object to alleged impropriety procedurally bars this issue from our review. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1141 (¶ 10) (Miss.2002). In Frierson, the supreme court reviewed a litigant’s later claims of judicial impropriety for plain error. Id. at (¶¶ 10-12). The supreme court relied on the well-established rule that “if no contemporaneous objection is made, the error, if any, is waived.” Id. (quoting Smith v. State, 797 So.2d 854, 856 (¶7) (Miss.2001)). Other jurisdictions have applied this same rationale and held that claims of judicial impropriety or racial bias not properly raised in the trial court are procedurally barred. See Harbin v. Roberts, 305 Ga.App. 107, 699 S.E.2d 36, 38-39 (2010); In re Key, 182 N.C.App. 714, 643 S.E.2d 452, 456 (2007); State v. Alfatlawi, 153 P.3d 804, 820 (Utah Ct.App.2006) (racial bias); People v. Moniz, 2003 WL 21508430, unpublished opinion per curiam of the Mich. Court of Appeals, issued July 1, 2003 (Docket No. 234431) (racial bias).

¶ 28. While procedural bars may apply, we proceed to determine whether the record shows error affecting Robinson’s substantial rights. Because of the nature and seriousness of Robinson’s allegations and to ensure there has been no miscarriage of justice, we review for plain error. See Frierson, 818 So.2d at 1141 (¶¶ 10-12). In conducting our review, we are mindful that the supreme court has clearly explained there is a presumption that the “trial judge is qualified and unbiased, and this presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption.” Payton v. State, 897 So.2d 921, 943 (¶ 72) (Miss.2003). The scope of this inquiry focuses on whether a “reasonable person, knowing all the facts and circumstances, would harbor doubts about [the trial judge’s] impartiality.” Frierson, 818 So.2d at 1142 (¶¶ 12,15) (quoting Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1209 (¶21) (Miss.2000)).

¶ 29. Our inquiry is made more difficult here by the generalities of Robinson’s allegations. Though Robinson does not allege many specifics, it appears from our review that most of her assertions implicating the chancellor’s temperament and alleged bias stem from the chancellor interrupting Robinson during her closing argument.

¶ 30. The record shows that during her final argument Robinson strongly insinuated the chancellor had been unfair in handling the issuance of subpoenas for two witnesses. She hones in on the chancellor’s interruption of her summation and his effort to correct what he deemed to be a factual misrepresentation in her argument. The chancellor disagreed that he had cut short her case or thwarted her obtaining process on two witnesses.

¶ 31. Our review indicates that apparently Robinson had not followed the chancellor’s earlier instructions regarding the issuance of subpoenas. But we note the record shows the chancellor recessed court to allow Robinson additional time to serve the requested subpoenas, and the two witnesses that Robinson sought to secure both ultimately testified. It is apparent from the record that the chancellor tried to ensure Robinson was able to call the two witnesses she wished to testify. And when Robinson suggested otherwise, the chancellor understandably interjected to clarify the record. In doing so, he warned Robinson of the court’s authority to hold her in contempt for further baseless attacks on the court. See Dennis v. Dennis, 824 So.2d 604, 608-09 (¶ 10) (Miss.2002) (discussing court’s authority to find persons in direct contempt for comments “calculated to embarrass or prevent the orderly administration of justice”). We find nothing that suggests racial undertones or bias in this exchange.

¶ 32. Robinson places much emphasis on her claim that the chancellor threatened he would show her some “Mississippi justice,” which she argues had racial connotations. However, we find no such comment in the record. We further note the court reporter certified that the transcript fully and correctly depicted the hearing. Robinson contends the exchange was intentionally omitted from the trial transcript, but she has come forward with nothing to support this allegation. And as the appellant, Robinson has the burden “to ensure the record contains ‘sufficient evidence to support [her] assignments of error on appeal.’ ” Nelson v. State, 919 So.2d 124, 126 (¶ 7) (Miss.Ct.App.2005).

¶ 38. Had record support existed that the chancellor’s rulings were under-girded by racial prejudice or impropriety, our analysis and conclusions would indeed differ drastically. But we find no support for her claim of racial prejudice, and we are strictly precluded from considering matters outside the record. Hardy v. Brock, 826 So.2d 71, 76 (¶ 26) (Miss.2002). Other jurisdictions havé likewise concluded that an appellant may not rest upon bare allegations of omissions from transcripts with no corroborating evidence. State v. Baker, 582 So.2d 1320, 1335 (La.Ct.App.1991); Zabin v. Picciotto, 73 Mass.App.Ct. 141, 896 N.E.2d 937, 966 (2008). We have carefully combed the record and found no support for Robinson’s claims of racial bias. Because Robinson’s accusations of judicial bias neither appear in the record nor are apparent from the context of the chancellor’s rulings, we find no reversible, error under our plain-error review.

V. Continuance

¶ 34. Robinson finally contends that the chancellor erred in adjudicating ownership of the land without hearing testimony from her proposed handwriting expert. She contends the chancellor improperly failed to grant a continuance to allow her proposed handwriting expert to testify that the signature on a deed to the property was a forgery.

¶ 35. Trial judges are vested with “broad discretionary powers in granting or refusing to grant a continuance.” Frye v. S. Farm Bureau Cas. Ins. Co., 915 So.2d 486, 490 (¶12) (Miss.Ct.App.2005) (citing McClendon v. State, 335 So.2d 887, 888 (Miss.1976)). We review this issue for an abuse of discretion. Owens v. Thomae, 759 So.2d 1117, 1120 (¶10) (Miss.1999). We do not reverse the denial of a motion for continuance “unless manifest injustice appears to have resulted from [its] denial[.]” Davidson v. N. Cent. Parts, Inc., 737 So.2d 1015, 1017 (¶5) (Miss.Ct.App.1998) (citing Thomas v. Hilbum, 654 So.2d 898, 903 (Miss.1995)).

¶ 36. The record shows that Robinson was not diligent in securing the presence of her proposed witness, which the supreme court has held to be a sufficient basis to deny a request for a continuance. Cantrell v. Peugh, 149 Miss. 21, 28, 115 So. 116, 117 (1927). Robinson failed to designate the witness as an expert sixty days before trial as required by Uniform Chancery Court Rule 1.10(A). Instead, three days into the hearing, she informed the chancellor for the first time that she wished to have the witness testify by telephone because he could not appear in person. For these reasons, we find no error in the chancellor’s refusal to grant a continuance.

¶ 37. Further, we see no manifest error in the chancellor’s finding that Robinson failed to meet her elear-and-convincing burden of showing fraud given the lack of credible evidence supporting her position. Because we find no self-evident error concerning the chancellor’s disposition of the land or any other error requiring reversal, we affirm.

¶ 38. THE JUDGMENT OF THE AT-TALA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . For simplicity purposes, we use Robinson’s name in referring to the appellants. All discussion regarding Robinson applies equally to Washington unless specifically noted otherwise.

      . The property has a complicated history involving numerous family members either inheriting or receiving inter-vivos conveyances of various undivided interests in the property over many years.

      . Washington was represented by counsel at trial but has appealed pro se.

      . See Issue III.

      . We recognize that Robinson does cite some authority in her reply brief, but failure to argue an issue in the principal brief is a procedural bar. Tanner v. State, 20 So.3d 764, 768 n. 4 (Miss.Ct.App.2009). Waiver aside, we note that most of her arguments are still unsupported by authority, and none of the authority cited entitles her to relief under the facts of this case.

      .Since challenged by Robinson, we note that the chancery court has subject-matter jurisdiction over partition actions. Miss. Const, art. 6 § 159, § 160. See also Miss.Code Ann: § 11-21-3 (Rev.2004).

      . See, e.g., Ballard v. Commercial Bank of DeKalb, 991 So.2d 1201, 1207 (¶26) (Miss.2008).


author: IRVING, J., CARLTON, J.,

text:
    Philip Wayne LADNER, Sr., Appellant v. Deborah LADNER, Appellee.
    No. 2008-CA-02110-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      J. Richard Kanuch, attorney for appellant.
    Robert H. Koon, Gulfport, attorney for appellee.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   IRVING, J.,

for the Court:

¶ 1. Philip Wayne Ladner Sr. and Deborah Ladner each filed for a divorce in the Hancock County Chancery Court; Deborah asserted that Philip had subjected her to habitual cruel and inhuman treatment, while Philip filed a counterclaim for divorce on the ground of adultery. The chancery court granted Philip and Deborah each a divorce on their respective fault grounds. The court then divided the marital estate, emancipated the Ladner’s minor child, granted Deborah alimony, and ordered Philip to pay part of Deborah’s attorney’s fees. Feeling aggrieved, Philip appeals and asserts that the chancellor erred in granting a dual-fault divorce, in finding that Deborah had proven habitual cruel and inhuman treatment, in awarding periodic alimony to Deborah, and in ordering Philip to pay Deborah’s attorney’s fees.

¶ 2. There is insufficient evidence to support Deborah’s claim of habitual cruel and inhuman treatment; therefore, we reverse and render the chancery court’s grant of a divorce to Deborah on that ground. We also find that the chancellor’s findings are inadequate to support the award of attorney’s fees, and we reverse and remand that issue to the chancery court so that it may enter adequate findings. However, we find no fault with the chancery court’s alimony order and, therefore, affirm that part of the judgment. As neither party has challenged the chancery court’s grant of a divorce to Philip, that part of the judgment also remains undisturbed.

FACTS

¶ 3. Deborah and Philip wed in 1982; their first child, Kristen, was born in 1983. Later, Philip went to work offshore. Deborah and Philip’s relationship became more strained after Philip went to work offshore. In 1989, Deborah gave birth to their second child, Philip Jr. Throughout 2005, Deborah engaged in an extramarital affair, which Philip found out about in January 2006. Despite attending marital counseling, Deborah filed for divorce on May 25, 2006, and Philip filed for divorce on July 17, 2008.

¶ 4. At trial,- Deborah claimed that Philip had sexually assaulted her numerous times. Deborah also testified that Philip was verbally abusive, physically abusive, and that he had once threatened her with a gun. Deborah admitted that she had engaged in an approximately year-long extramarital affair shortly before her separation from Philip. Philip denied that he was abusive, denied that he had sexually assaulted Deborah, and denied that he had held a gun to her head. Deborah offered no evidence, other than her own testimony, to support her allegations.

¶ 5. At the conclusion of the trial, the chancellor found that Deborah was entitled to a divorce from Philip on the ground of habitual cruel and inhuman treatment; he also found that Philip was entitled to a divorce from Deborah on the ground of adultery. After dividing the marital estate, the chancery court determined that Deborah was entitled to periodic alimony and that Philip should pay for half of Deborah’s attorney’s fees.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Our supreme court has set out the standard of review that we apply in cases such as this one:

We employ a limited standard of review in domestic relations cases. “[An appellate court] will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Duncan v. Duncan, 774 So.2d 418, 419 [ (¶ 4) ] (Miss.2000) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 [ (¶ 13) ] (Miss.1999).) “Under the standard of review utilized to review a chancery court’s findings of fact, particularly in the areas of divorce, alimony[,] and child support, [an appellate court] will not overturn the [chancery] court on appeal unless its findings were manifestly wrong.” Id. For questions of law, our standard of review is de novo. Id. (citing Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 [ (¶ 13) ] (Miss.1999)).

In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010).

1. Grant of Dualr-Fault Divorce

¶ 8. In his first contention of error, Philip argues that the chancellor was unable, under Mississippi law, to grant a fault divorce to both Philip and Deborah. This question is moot because we are reversing and rendering the chancellor’s grant of a divorce to Deborah.

2. Determination of Fault

¶ 9. Philip contends that the chancellor erred in finding that Deborah proved that she had been subjected to habitual cruel and inhuman treatment. We agree.

¶ 10. It is undisputed that a chancery court may grant a divorce on the fault ground of “habitual, cruel and inhuman treatment.” Shavers v. Shavers, 982 So.2d 397, 403 (¶ 35) (Miss.2008) (citing Miss.Code Ann. § 93-5-1 (Rev.2004)). This particular fault ground must be proven “by a preponderance of the credible evidence.” Id. (citing Cooper v. Cooper, 518 So.2d 664, 666 (Miss.1988)). Most importantly, “[t]he party alleging cruel and inhuman treatment typically must corroborate the testimony.” Id. (citing Gardner v. Gardner, 618 So.2d 108, 114 (Miss.1993)). The corroborated testimony must show conduct that “endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering it impossible for [the other] spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.” Id. at 404 (¶ 89) (quoting Gardner, 618 So.2d at 113-14).

¶ 11. As mentioned above, Deborah provided evidence in the form of her own testimony that Philip had been abusive and had assaulted her. Deborah also offered two police reports and two protective orders into evidence. However, as the chancery court correctly noted, those documents had no corroborative value, as all of the information on them was provided by Deborah. The only other evidence that was offered was a statement on one of the police reports that Philip Jr. was afraid of his father and Philip’s testimony that he had broken his daughter’s door once in anger. Neither of these are sufficient to corroborate Deborah’s testimony about the alleged abuse against her; at best, the incidents show that Philip had a troubled relationship with his children. In short, there is no evidence to corroborate Deborah’s testimony. As such, there was not enough credible evidence for the chancellor to grant Deborah a divorce on the basis of habitual cruel and inhuman treatment.

¶ 12. Therefore, we reverse and render the chancery court’s grant of a fault divorce to Deborah.

3. Periodic Alimony

¶ 18. Philip contends that the chancery court erred in granting Deborah periodic alimony. In part, Philip argues that alimony was improper because Deborah failed to prove that she had been subjected to habitual cruel and inhuman treatment.

¶ 14. We find no error in the chancery court’s grant of periodic alimony. Although we are reversing and rendering the chancery court’s finding of fault as to habitual cruel and inhuman treatment, fault is only one ground that is considered under the factors found in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). It is clear from the chancery court’s judgment that it adequately considered the other factors for granting alimony and found that alimony is justified. Most significantly, the chancery court found that Philip makes approximately four times as much as Deborah, and Deborah is in poor health compared to Philip. Even removing fault as a factor, it is clear that there is a sufficient basis for the chancery court’s grant of periodic alimony.

¶ 15. This contention of error is without merit.

U. Attorney’s Fees

¶ 16. Philip contends that the chancery court erred in ordering Philip to pay Deborah’s attorney’s fees because she is able to pay them.

¶ 17. Philip is correct that the touchstone issue in granting attorney’s fees is a party’s inability to pay her attorney’s fees. Fisher v. Fisher, 771 So.2d 364, 369 (¶ 18) (Miss.2000) (citing Grogan v. Grogan, 641 So.2d 734, 744 (Miss.1994)); Gray v. Gray, 745 So.2d 234, 239 (¶26) (Miss.1999) (citing Benson v. Benson, 608 So.2d 709, 712 (Miss.1992)). However, the chancery court did not make any specific finding as to Deborah’s inability to pay her attorney’s fees. Accordingly, we reverse the chancellor’s award of attorney’s fees and remand this case to the chancery court. Johnson v. Johnson, 650 So.2d 1281, 1288-89 (Miss.1994). On remand, the chancery court must examine Deborah’s financial situation and make specific findings as to Deborah’s ability to pay her attorney’s fees.

¶ 18. THE JUDGMENT OF THE HANCOCK COUNTY CHANCERY COURT IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

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

CARLTON, J.,

dissenting:

¶ 19. I respectfully dissent from the majority’s decision to reverse and render the chancery court’s grant of a fault divorce to Deborah Ladner. Upon review of my record, I find that sufficient evidence exists to corroborate Deborah’s testimony regarding Philip Ladner’s abuse; therefore, I would affirm the chancery court’s grant of a divorce based on the fault ground of habitual cruel and inhuman treatment.

¶ 20. The Mississippi Supreme Court has held that a divorce on the ground of habitual cruel and inhuman treatment “will not be granted on the uncorroborated testimony of the complainant.” Anderson v. Anderson, 190 Miss. 508, 512, 200 So. 726, 727 (1941). This Court has further established that “[t]he complaining spouse’s testimony alone is inadequate to establish habitual cruel and inhuman treatment to obtain a divorce.” Hoskins v. Hoskins, 21 So.3d 705 707 (¶ 7) (Miss.Ct.App.2009).

¶ 21. In the present case, the majority found that the evidence presented at trial provides insufficient corroboration to Deborah’s testimony about the alleged abuse by Philip. At trial, Deborah offered two police reports and two protective orders into evidence, as well as a statement on one of the police reports that Deborah and Philip’s son, Philip Jr., was afraid of his father. In addition, Philip himself admitted at trial that he had broken his daughter’s door once in anger.

¶ 22. The record also reveals that during the trial, Deborah testified that her daughter and a neighbor have called the police on two separate occasions regarding a domestic disturbance between Philip and Deborah. In the report from the Wave-land Police Department, Reporting Officer David Allen detailed that he was dispatched to the Ladners’ home at 1201 McKinley Street, Waveland, Mississippi, on May 17, 2006, at approximately 10:30 p.m. According to Officer Allen’s report, he stated that he:

contacted Deborah Ladner who stated that she had gotten an order of protection against her husband Phillip [sic] Ladner but the order did not stipulate that he could not live at their residence at 1201 McKinley. [Deborah], who was staying at 1236 McKinley, stated that her son, Phillip [sic] Ladner Jr., had come home from work and found that his father had put new locks on the house. [Philip] was not at the house.
Philip Jr. did not want to call his father ... because he was scared of him. I suggested that he go with his mother for the time being, if custody arrangements permitted it, and come back later when his father was [sic] home.

¶ 23. Our supreme court has established that in cases involving a divorce based on the ground of habitual cruel and inhuman treatment, “[t]he corroborating evidence need not be sufficient in itself to establish the ground”; rather, “it need only provide enough supporting facts for a court to conclude that the plaintiffs testimony is true.” Bell on Mississippi Family Law § 4.02[8][d] at 74 (citing Anderson, 190 Miss, at 508, 200 So. at 728). Additionally, the supreme court has stated that chancellors are charged with weighing the evidence presented, and an appellate court will not disturb a chancellor’s determination when supported by findings of fact unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Samples v. Davis, 904 So.2d 1061, 1063-64 (¶ 9) (Miss.2004) (citing Jundoos-ing v. Jundoosing, 826 So.2d 85, 88 (¶ 10) (Miss.2002)). This Court respects those findings of fact which are supported by substantial credible evidence. Keough v. Keough, 742 So.2d 781, 782 (¶ 5) (Miss.Ct.App.1999).

¶ 24. Keeping this standard of appellate review in mind, I find that the record indeed reflects sufficient evidence to support the chancellor’s findings of fact in the present case. Although the majority held that Deborah had failed to provide evidence to corroborate her testimony, I find that the two petitions for temporary protection from Philip, as well as the police report issued in response to Philip’s violation of the protective order, in which the reporting officer noted that Philip Jr. was scared of his father, provide sufficient evidence for the chancellor’s grant of divorce on the ground of habitual cruel and inhuman treatment. Therefore, I dissent from the majority’s decision to reverse and render the judgment of the chancery court.

      . Philip Jr. was seventeen years old at the time of the police report, and Kristen was apparently seventeen years or older at the time of the door-breaking incident.


author: WOODALL, Justice.

text:
    Ex parte Efé DANGERFIELD et al. (In re Forrest Frost et al. v. Efé Dangerfield et al.).
    1090276.
    Supreme Court of Alabama.
    May 14, 2010.

      Glenmore P. Powers II and John J. Breckenridge, asst, counsel, Alabama Department of Revenue; and George Beck, Jr., and Terrie Scott Biggs of Capell & Howard, P.C., Montgomery, for petitioners.
    J. Mark White, William M. Bowen, Jr., Andrew C. Allen, and Hope S. Marshall of White, Arnold & Dowd, P.C., Birmingham, for respondents.
   WOODALL, Justice.

Efé Dangerfield, Lisa McKniqht, Carol Murphy, and Charles Crumbley, defendants in an action in the Montgomery Circuit Court, petition this Court for a writ of mandamus directing the Montgomery Circuit Court to grant their motion to dismiss the complaint or, in the alternative, to quash subpoenas issued in the case. We grant the petition in part and deny it in part.

I. Factual and Procedural Background

On August 6, 2009, a complaint was filed in the Montgomery Circuit Court by (1) Crown Motors, Inc. (“Crown”); (2) Forrest Frost, a director, shareholder, and officer of Crown; and individuals who were employees of Crown at the time of the events made the basis of this action, namely, (3) Marie Hatcher, (4) Donald Reuger, (5) Kevin Roden, and (6) Theresa Schoonover. Hatcher, Reuger, Roden, and Schoonover were “service advisor,” “service manager,” “body-shop manager,” and “office manager for the body shop,” respectively. Named as defendants in the complaint were certain officials of the Alabama Department of Revenue (“the Department”), namely, (1) Carol Murphy, (2) Special Agent Efé Dangerfield, (3) Sales, Use, and Business Tax Supervisor Lisa McKnight, and (4) Investigations Divisions Director Charles Crumbley. The complaint contained the following factual allegations:

Crown sells new and used automobiles at dealerships located in Gadsden, Anni-ston, and Fort Payne. The Gadsden dealership is owned and operated by Frost. For approximately two years immediately preceding the events made the basis of this action, Murphy, on behalf of the Department, had been auditing Crown’s sales-tax reports.

On the morning of May 14, 2009, Dangerfield obtained a warrant to search the premises of Crown’s Gadsden dealership. At around noon on May 14, approximately 35 representatives of various governmental agencies, including the Department and the Federal Bureau of Investigation, converged on the premises of the Gadsden dealership. According to the complaint:

“The agents sealed off every entrance/exit way with law enforcement vehicles and roped off the areas with yellow tape. The agents, armed with firearms, stormed the two separate buildings located on the car lot. The agents announced their purpose and ‘corralled’ everyone into the front portion of the main building of the dealership. This included employees and customers present anywhere on the premises. Office personnel were segregated from everyone else. Females were not allowed to bring their purses with them. No one was permitted to use a cell phone or telephone. The agents refused to allow anyone to contact the owner Mr. Frost. Everyone was told that they could leave only after talking to an agent. Employees were not permitted to leave for lunch. Roden ordered pizza for the employees from a local restaurant. Roden was escorted outside by agents to the pizza delivery vehicle, where the pizza was searched by the agents before the pizza was permitted into the dealership ....
“17. The agents obtained everyone’s name and contact information. With the employees and dealership management still corralled in the front of the showroom, the interviews began. Each individual was questioned separately in a private office in the back of the building. Individuals who needed to use the restroom were escorted by an agent.
“18. After several hours and after the agents and officers had obtained the information they wanted, the detainees were informed that all employees except office personnel could leave; however, once they left they could not return. Still, before anyone was permitted to exit the lot, their motor vehicle was stopped by two state troopers who asked if there was any ‘illegal contraband or paperwork’ in the vehicle. Schoonover was forced to open personal correspondence for inspection by the state troopers before she was allowed to leave the premises.
“19. Although all of the employees and customers at the dealership that morning were in fact in custody and were held incommunicado and not free to leave, no one was informed of any constitutional right. Everyone believed that each had to answer the interrogator’s questions before they would be permitted to leave.
“20. During the time the ‘house arrest’ continued, customers were unable to get their cars repaired or serviced. With only one exception, customers were not even permitted access to their vehicles which were ready for pickup. During the time of the search and seizure, the entire daily business of Crown was shut down. In addition, the Department seized virtually every scrap of paper, every computer and every flash drive.
“21. The Department removed enough documents and filing cabinets to fill at least two Ryder [brand rental] trucks and several vans. Computers were placed into a Chevrolet Suburban [sport-utility vehicle].”

(Footnote omitted.) A few days later, the Department obtained and executed another search warrant at the Gadsden dealership. Pursuant to this warrant, all documents in the attic of the main building of the dealership were seized.

On June 8, 2009, Crown “attempted to file a Motion for Return of Property” with the Department, seeking the return of the seized documents. However, the Department disallowed the filing, asserting that there was “no pending case” with which to associate it. When Crown attempted to file the motion in the district court and the circuit court of Etowah County, its attempts were met with the same response.

The complaint contained 11 counts. All the defendants were sued in both their individual and official capacities. Count 1 (alleging a violation of due-process rights) alleged that Dangerfield, McKnight, Murphy, and Crumbley “acted willfully, wantonly, maliciously, in bad faith, beyond their authority, under a mistaken interpretation of the law, and intentionally,” in order to deny the “plaintiffs their contractual and property rights without Due Process of law.” Compensatory damages were sought under count 1.

Count 2 (alleging unlawful search and seizure) was brought solely on behalf of Frost and Crown. It alleged that the defendants “acted willfully, wantonly, maliciously, in bad faith, beyond their authority, under a mistaken interpretation of the law, and for the purpose of interfering with, destroying and denying ... Frost’s and Crown’s rights” in conducting an unlawful search of the premises of the dealership. Relief sought in count 2 included compensatory damages, punitive damages, and “return of all property illegally seized.”

Count 3 alleged intentional interference with business and contractual relations and was brought solely on behalf of Crown. Under that count, Crown sought compensatory damages, punitive damages, and “return of all property illegally seized.”

Count 4 alleged conversion and was brought solely on behalf of Crown. It alleged that the defendants “acted willfully, wantonly, maliciously, in bad faith, beyond their authority, under a mistaken interpretation of the law and for the purpose of converting Crown’s property,” that is, “virtually every scrap of paper, every computer and every flash drive within its possession.” Relief sought under count 4 included compensatory damages, punitive damages, and “return of all property illegally converted.”

Count 5 (seeking return of chattels m specie) was brought on behalf of Crown and sought the recovery of Crown’s property.

Count 6 (class claims alleging unlawful detention) was brought on behalf of Hatch-er, Reuger, Roden, Schoonover, and “all others similarly situated.” It alleged that the defendants “acted willfully, wantonly, maliciously, in bad faith, beyond their authority, under a mistaken interpretation of the law, and for the purpose of falsely imprisoning Hatcher, Reuger, Roden and Schoonover and others similarly situated.” Relief sought under count 6 was compensatory damages and punitive damages. Count 7 contained a similar class claim alleging false arrest, and count 8 alleged conspiracy.

Count 9 sought a judgment declaring (1) that the search warrants under which the Department conducted the searches of the premises of the dealership were “null, void, and without any effect whatsoever and were issued without authority and in violation of the law”; (2) that the “defendants’ acts and omission” were in violation of the law; (3) that the defendants’ acts or omissions interfered with and denied Crown’s contractual/property rights and business relationships; and (4) that the defendants’ acts or omissions “constitutfed] the false imprisonment, detainment, and arrest of Hatcher, Reuger, Roden, and Schoonover and all others similarly situated.”

Count 10 sought to enjoin “the enforcement of any future search warrants,” as well as all further actions in alleged violation of the plaintiffs’ rights in contract, property, and liberty.

Finally, count 11 (request for return of property) was on behalf of Crown only. It sought, pursuant to Rule 3.13, Ala. R.Crim. P., the return of all property that was removed from the Gadsden dealership. Rule 3.13 provides, in pertinent part:

“A person aggrieved by an unlawful search and seizure may move the court for the return of the property seized on the ground that he or she is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be restored. If a motion of return of property is made or comes on for hearing after an indictment or information is filed, it shall be treated also as a motion to suppress evidence.”

On August 20-21, 2009, the plaintiffs issued subpoenas directing the defendants to appear for depositions, and to bring with them:

“1. Any and all documents, notations, memorand[a], data entries, e-mails, reports, video recordings, audio recordings, interview notes, and all Alabama Department of Revenue policies, practices and procedures which were used during the past five years to conduct searches and seizures from individuals, and/or any type of business....
“2. Any and all documents, notations, memorand[a], data entries, e-mails, reports, text messages, photographs, video recordings, audio recordings, and interview notes, generally and specifically, for this case_
“3. A copy of any and all e-mails sent, or received by, any and all government employees who were part of the planning, conducting and/or implementation of the search and seizure operations which occurred during 2009 at Crown Motors, Inc., Gadsden, AL.”

On September 1, 2009, the defendants filed a motion to dismiss the complaint, pursuant to Rule 12(b)(1) and (2), Ala. R. Civ. P. The same day, the defendants filed a motion to quash the subpoenas. On October 15, 2009, the trial court denied both motions. On November 19, 2009, the defendants (hereinafter referred to as “the petitioners”) filed this petition seeking a writ of mandamus directing the Montgomery Circuit Court to dismiss the claims against them on various immunity grounds or, in the alternative, to grant their motion to quash the subpoenas.

II. Immunity

The denial of a motion to dismiss “ ‘grounded on a claim of immunity’ ” is properly renewable by mandamus. Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009). “A writ of mandamus is a drastic and extraordinary writ that will issue to compel a summary judgment on immunity grounds only upon a showing of a" clear legal right in the petitioner to the immunity sought.” Id. at 22. “The burden of establishing a clear legal right to the relief sought rests with the petitioner.” Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007).

The claims of the plaintiffs (hereinafter referred to as “the respondents”) are asserted against the petitioners in both their official and individual capacities. The petitioners rely on two types of immunity as grounds for dismissal, namely, (1) absolute State immunity and (2) State-agent immunity.

A. Absolute State Immunity— Official-Capacity Claims

Discussion of State immunity necessarily begins with the principle “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” Ala. Const.1901, § 14. It is settled beyond cavil that State officials cannot be sued for damages in their official capacities. Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 132-33 (Ala.2002) (a suit for damages against State officials in their official capacities is, in essence, an action against the State itself and cannot proceed). On this basis, we can summarily grant the petition as to the dismissal of counts 1 through 8 to the extent those counts seek damages from the petitioners in their official capacities.

However, certain actions against State officials are not regarded as actions against the State for purposes of § 14. Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). For example, “Conjunctive action may be maintained against a state official [in his official capacity], if the official is acting beyond the scope of his authority or acting illegally.” St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So.2d 333, 334 (1961). Also not regarded as prohibited actions are those “brought under the Declaratory Judgments Act [Ala.Code 1975, § 6-6-220 et seq.], seeking construction of a statute and how it should be applied in a given situation.” Aland v. Graham, 287 Ala. 226, 230, 250 So.2d 677, 679 (1971). We will address in turn counts 9 and 10, which seek, respectively, declaratory and injunc-tive relief.

1. Declaratory Relief

The petitioners contend that count 9 is, “for all purposes, merely an attempt by the [respondents] to circumvent the ... sovereign immunity afforded state officials acting in their representative capacities,” petition, at 20 (emphasis added), and, consequently, “fails to fall within the exception from § 14 afforded declaratory judgment actions.” Petition, at 19. We agree.

A party may not characterize “claims as falling within the purported ‘exception’ to § 14 [when] they are, in effect, in the nature of claims seeking damages.” Alabama Dep’t of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 844 (Ala.2008). There is nothing to be “declared” under count 9 that does not also form the bases of one or more of counts 1 through 8, all of which— except count 5 — seek damages. Thus, count 9 should have been dismissed.

2. Injunctive Relief

The essence of the request in count 10 is an injunction against “the enforcement of any future search warrants.” (Emphasis added.) The petitioners contend that “the Circuit Court of Montgomery County has no jurisdiction in a ... civil proceeding ... to enjoin the [Department] officials from the exercise of their duties falling within the criminal investigation of the enforcement of revenue laws.” Supplemental brief of petitioners in their official capacities, at 7. We agree.

Our constitution provides:

“Sec. 42. Legislative, executive and judicial departments established.
“The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”
“Sec. 43. Separation of Powers.
“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

Ala. Const.1901, §§ 42-43 (emphasis added).

The Department is an agency of the executive branch “charged with the general responsibility of supervising [and enforcing] Alabama’s tax laws.” City of Mobile v. M.A.D., Inc., 684 So.2d 1283, 1287 (Ala.1996). See Ala.Code 1975, § 40-2-11(1). Its agents have authority “to serve and execute any and all search warrants obtained in accordance with law for [statutorily designated purposes].” Ala.Code 1975, § 32-8-8. See Ala.Code 1975, § 15-5-1 et seq. (relating generally to the issuance of search warrants).

The relief requested in count 10 seeks— in a factual vacuum — exemption from criminal investigation and prosecution in futuro. To countenance such a request would constitute a clear intrusion upon the authority of the executive branch in violation of § 43 of the constitution. Consequently, count 10 should have been dismissed. In short, all the claims that were set forth in this complaint against the petitioners in their official capacities should have been dismissed, except counts 3, 4, 5, and 11, to the extent those counts seek the return of property from the petitioners in their official capacities.

B. State-Agent Immunity — Individual-Capacity Claims

The legal claims against the petitioners in their individual capacities stand on better ground. In their individual capacities, State agents do not enjoy absolute immunity from suits seeking damages. Instead, the Department’s agents in their individual capacities “enjoy only qualified immunity from suit.” Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002). “The law of qualified immunity was succinctly restated in Ex parte Cranman, 792 So.2d 392, 405-06 (Ala.2000), [and] adopted by a majority of this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000).” Burgoon, 835 So.2d at 133. Under the Ex parte Cranman, 792 So.2d 392 (Ala.2000), restatement, State agents are not entitled to immunity if they have “ ‘acted willfully, maliciously, fraudulently, in bad faith,’ Giambrone [v. Douglas ], 874 So.2d [1046], 1052 [ (Ala.2003) ], or ‘[were] not exercising [their] ... judgment in the manner set forth in the examples in Cranman.’ Ex parte Hudson, 866 So.2d [1115, 1118 (Ala.2003) ].” Howard v. City of Atmore, 887 So.2d 201, 205 (Ala.2003).

“ ‘[A] motion to dismiss is typically not the appropriate vehicle by which to assert ... State-agent immunity and ... normally the determination as to the existence of such a defense should be reserved until the summary-judgment stage, following appropriate discovery.’” Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 398 (Ala.2003) (emphasis added) (quoting Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 813-14 (Ala.2002)). This is so because the question whether a State agent was acting “willfully, maliciously, fraudulently, in bad faith,” or was not “exercising ... judgment in the manner set forth in the examples in Cranman,” Howard, 887 So.2d at 205, is generally fact specific. See Ex parte City of Tuskegee, 932 So.2d 895, 908 (Ala.2005); Ex parte Alabama Dep’t of Mental Health & Men tal Retardation, supra. Also, in reviewing the grant or denial of a motion to dismiss, the question “ ‘is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief.’ ” Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 398 (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). Because there has yet been no discovery and, therefore, no development of facts central to the State-agent-immunity defense, the trial court did not err in denying the motion to dismiss the claims against the petitioners in their individual capacities.

The only caveat to this conclusion regards the claims in counts 3, 4, 5, and 11 for the return of property from the petitioners in their individual capacities. A request for such relief from State officials in their individual capacities is meaningless. “This is so, because State officials act for and represent the State only in their official capacities.” Ex parte Dickson, 46 So.3d 468, 474 (Ala.2010).

III. Discovery

Finally, the petitioners contend that the trial court erred in denying their motion to quash subpoenas, which seek, among other things, “[a]ny and all documents, notations, memorand[a], data entries, e-mails, reports, video recordings, audio recordings, [and] interview notes” prepared “generally and specifically for this case, as well as “all Alabama Department of Revenue policies, practices and procedures which were used during the past five years to conduct searches and seizures from individuals, and/or any type of business.” According to the petitioners, they have already disclosed to the respondents that the Department has no “policies, practices, and procedures ... separate and apart from those found in the Alabama Rules of Criminal Procedure.” Reply brief, at 12. However, the petitioners contend that such things as the documents, e-mails, recordings, and interview notes listed in the subpoenas are protected from disclosure by, among other things, the privilege afforded by Ala. Code 1975, § 12-21-3.1.

Section 12-21-3.1, which relates to the “subpoena of law enforcement officers and investigative reports,” provides, in pertinent part:

“(a) Neither law enforcement investigative reports nor the testimony of a law enforcement officer may be subject to a civil or administrative subpoena except as provided in subsection (c).
“(b) Law enforcement investigative reports and related investigative material are not public records. Law enforcement investigative reports, records, field notes, witness statements, and other investigative -writings or recordings are privileged communications protected from disclosure.
“(c) Under no circumstance may a party to a civil ... proceeding discover material which is not authorized discoverable by a defendant in a criminal matter. Noncriminal parties may upon proper motion and order from a court of record: Secure photographs, documents and tangible evidence for examination and copying only by order of a court imposing such conditions and qualifications as may be necessary to protect a chain of custody of evidence; or protect the prosecutors’, law enforcement officers’, or investigators’ work product; or to prevent the loss or destruction of documents, objects, or evidence. Such discovery order may be issued by a court of record upon proof by substantial evidence that the moving party will suffer undue hardship and that the records, photographs or witnesses are unavailable from other reasonable sources.
“(d) Discovery orders prior to the disposition of the criminal matter under investigation are not favored and should be granted only upon showing that the party seeking discovery has substantial need of the materials and is unable, without undue hardship, to obtain the substantial equivalent by other means.”

(Emphasis added.)

The scope of discovery by a defendant in a criminal case is controlled by Rule 16.1, Ala. R.Crim. P., which provides, in pertinent part:

“(e) Information not discoverable. Except as provided in (a), (b), and (d), the discovery or inspection of reports, memoranda, witness lists, or other internal state/municipality documents made by the prosecutor or the prosecutor’s agents, or by law enforcement agents, in connection with the investigation or prosecution of the case, or of statements made by state/municipality witnesses or prospective state/municipality witnesses, is not authorized.”

(Emphasis added.) Subsections (a), (b), and (d) require the showing of “good cause” by the defendant as a prerequisite to discovery of certain specified materials. The respondents concede the applicability of § 12-21-8.1. Respondents’ brief, at 25.

A petition for a writ of mandamus is the “proper means of review to determine whether a trial court has [exceeded] its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders ... so as to prevent an abuse of the discovery process by either party.” Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala.1993). To be entitled to materials within the scope of § 12-21-3.1, a party must demonstrate “by substantial evidence, that [he] will suffer undue hardship arid that the records, photographs or witnesses are unavailable from other reasonable sources.” (Emphasis added.) See also Ex parte Sexton, 904 So.2d 1251, 1252 (Ala.2004) (§ 12-21-3.1 requires a “showing of undue hardship and unavailability”).

The respondents have made no allegation — much less a showing — of hardship as required by the statute, or of the “good cause” required by Rule 16.1 for the discovery of the documents, notations, memoranda, and interview notes accumulated by the Department during its investigation. Therefore, the tidal court exceeded its discretion in denying the petitioners’ motion to quash the subpoenas. That order is due to be vacated.

IV. Conclusion

In summary, the petition is granted to the extent it seeks dismissal of all requests for damages from the petitioners in their official capacities. The petition is also granted to the extent it seeks dismissal of counts 9 and 10 in them entirety. The petition is granted as to counts 3, 4, 5, and 11 to the extent they seek return of property from the petitioners in their individual capacities. The petition is granted to the extent that a vacatur of the order denying the motion to quash the subpoenas is required. In all other respects, the petition is denied.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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