text:
    Rebecca CONLIFF, Appellant v. Walter HUDSON, Appellee.
    No. 2009-CA-01803-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.

      K.F. Boackle, Rigland, Jeffrey L. Lee, attorneys for appellant.
    John W. Christopher, attorney for ap-pellee.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Madison County Chancery Court’s award of property to Walter Hudson by adverse possession, as well as the award of $821 in damages for the destruction of plants on the property. Aggrieved by the chancellor’s award Of property and damages, Rebecca Conliff appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Therman Howard owned an eighty-acre tract of land located in Madison County. On September 11, 1974, Conliff purchased a forty-acre tract of land from the eighty-acre tract owned by Howard. On October 11, 1977, Hudson purchased the remaining forty-acre tract of land from Howard. These tracts are adjacent, with Conliffs tract of land being on the west side of Hudson’s tract. Shortly after his purchase, Hudson had his residence constructed on his property. Apparently, neither property owner had their land surveyed until years later.

¶ 3. An old fence line between the parties’ property was thought by Hudson to be the property boundary. Believing the property all the way to the old fence to be his, Hudson planted shrubs, trees, flowers, and installed a water line on the property east of the old fence. The parties lived this way until Conliff had her property surveyed on August 29, 1996. The survey revealed that her actual boundary line was not the old fence line but was actually within eight feet of Hudson’s home. The actual boundary line now showed Conliff to be the owner of the property Hudson had previously developed east of the fence line. After a disagreement arose between Hudson and Conliff over ownership of the disputed piece of property lying between the old fence and survey line, Conliff prepared and Hudson executed a lease agreement for the disputed property spanning twenty-nine feet in width from the old fence line to what the survey indicated was the actual boundary of Conliffs property. Hudson testified that he only entered into the lease to keep the peace with Conliff. The first lease was executed on September 24, 1996, and was for a term of one year. In the lease, the property is described as:

Beginning at the first metal fence post past the southeast corner of the Tractor Barn go South 200 feet turn East to the surveyed line approx. 29 feet turn North 200 feet along surveyed line, turn West approx. 29 feet to the same metal fence post South of the Tractor Barn described as the beginning point.

¶ 4. A second lease was executed on November 5, 1997, with the same property description, but the lease was now for a term of sixty months. Approximately five years later and at the termination of this second lease, Conliff decided not to renew it. In 2003, Conliff sent Hudson a letter telling him to remove his belongings off the property because “he had trashed the property.” She also filed charges against Hudson in 2003 for violating the lease and malicious mischief. Then, in 2005, Conliff had a bulldozer tear down the existing old fence separating ■ the property and constructed a new barbed wire fence on the survey line which came within a few feet of Hudson’s back steps. She also destroyed the plants that Hudson had planted on the property prior to the 1996 survey.

¶ 5. On August 12, 2004, Hudson filed a complaint to confirm and quiet title to the twenty-nine feet of property he had previously occupied and was currently leasing from Conliff. Hudson then filed an amended complaint seeking to confirm and quiet title to the property, an adjudication that Hudson owned the disputed tract through adverse possession, and damages for Conliffs destruction of the plants on the disputed tract of land. Hudson also sought to have Conliff remove a video camera that was directed at his property.

¶ 6. The chancery court held that Hudson had sufficiently proven his ownership of the property through adverse possession, awarded him the disputed property plus damages in the amount of $821 for Conliffs destruction of the plants and shrubs on the property, and enjoined Con-liff from using the video camera to view Hudson’s property. The chancery court found that the lease’s description was invalid because it inadequately described the property being leased, but even if the lease was valid, the only way Conliff could have reacquired title to the property was through adverse possession.

¶ 7. Conliff now appeals raising four issues:

I. Whether the chancery court applied a clearly erroneous legal standard by ruling that Hudson’s adverse-possession claim was “reactivated.”
II. Whether the chancery court erred in its findings of fact that Hudson had satisfied the adverse-possession element of claim of ownership.
III. Whether the chancery court committed manifest error by holding the lease between the parties invalid for insufficiency of the legal description.
IV. Whether the chancery court committed manifest error by incorrectly describing the boundary line between the parties’ property.

Finding no error, we affirm.

DISCUSSION

¶ 8. When reviewing a chancellor’s decision, our standard of review is limited. Nichols v. Funderburk, 883 So.2d 554, 556 (¶ 7) (Miss.2004). The chancellor’s determinations will only be reversed when they were manifestly wrong, clearly erroneous, or when the chancellor applied an incorrect legal standard. Id. Generally, a finding that the proof of adverse possession was insufficient is factual and requires the application of the substantial-evidence/manifest-error rule. Walker v. Murphree, 722 So.2d 1277, 1280 (¶ 15) (Miss.1998). However, this Court has stated “the analysis of this issue will deal with the chancellor’s holding that an adverse[-]possession claim can be reactivated, and since this is a finding of law we must engage in de novo review.” Gillespie v. Kelly, 809 So.2d 702, 706 (¶ 12) (Miss.Ct.App.2001).

I. Adverse Possession

¶ 9. Conliff first asserts that the chancellor erred in both allowing Hudson to “reactivate” his prior adverse possession and granting Hudson the property by adverse possession. She argues that even if Hudson satisfied all the elements of adverse possession prior to 1996, by voluntarily entering into the lease, Hudson abandoned his ownership of the property. Mississippi Code Annotated section 15 — 1— 13(1) (Rev.2003) governs adverse-possession claims and provides in part:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full, complete title ....

A six-element test is relied upon by the chancery court when assessing claims of adverse possession. The party claiming adverse possession must show, by clear and convincing evidence as to each element, that his possession was (1) under a claim of right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1993); Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992); Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990).

¶ 10. In Gillespie, 809 So.2d at 707 (¶ 14), a case which both parties cite in their briefs, the majority of this Court held that since several of the Kellys’ predecessors in title, and the Kellys themselves, had permission to use the easement, no prior claims of adverse-possession ripened. The Kellys were not permitted to “reactivate” their adverse possession claim by combining their two periods of adverse possession that were divided by a period of permissive use. Id. However, Judge Southwick, in his concurring opinion, found that the majority missed two important points in its analysis. Id. at 710 (¶ 28) (Southwick, P.J., concurring). The first point being that: “Once adverse possession has begun, the record title owner cannot stop the running of the period merely by granting permission.” Id. Judge Southwick distinguished possession beginning without permission from the title owner and possession beginning with permission from the title owner. Id. at 710-11 (¶¶ 29-30). In the current case, it is undisputed that Hudson began his possession without permission from Conliff, the title owner. Further, the Mississippi Supreme Court has held that an offer to pay for land after an adverse-possession title has ripened is not a disclaimer of title. Rotenberry v. Arnold, 212 Miss. 564, 566, 55 So.2d 141, 142 (1951).

¶ 11. The second point is that “[rjegardless of the time during which permissive use may have interrupted the continuity of the possession, it is alleged that adverse possession had prior to then already created title. Once adverse possession creates an easement, it cannot be lost by the record title owner granting permission.” Gillespie, 809 So.2d at 710 (¶ 28) (Southwick, P.J., concurring) (emphasis added). In the current case, it is undisputed that prior to signing the lease in September 1996, Hudson had been in possession of the disputed property since 1977. He satisfied all six elements of adverse possession by clear and convincing evidence between 1977, when he purchased the property, and August 1996, when Con-liff had the survey done; thus, he acquired title to the disputed parcel by adverse possession. It is well-settled Mississippi law that once the elements of adverse possession have been satisfied, a full and complete title is vested in the adverse possessor. Levy v. Campbell, 200 Miss. 721, 728, 28 So.2d 224, 226 (1946). Further, in Fant v. Williams, 118 Miss. 428, 79 So. 343, 345 (1918), the Mississippi Supreme Court held “that land acquired by adverse possession cannot be lost by mere abandonment.” Once title has been acquired by adverse possession, “it is not relinquished merely by the new owner’s indicating a belief in the former owner’s title.” Gillespie 809 So.2d at 711 (¶ 32) (Southwick, P.J., concurring). “[Tjitle can be lost only by proper transfer, such as deed, will, or intestacy, or by another period of possession ripening title in a new adverse user.” Id. (citing Lowi v. David, 134 Miss. 296, 302, 98 So. 684, 685 (1924)). While it is true Hudson waited from August 1996 when the line was surveyed until August 2004 to file his suit to quiet and confirm title, we note that the statute of limitations on the filing of such a suit is ten years. Miss.Code Ann. § 15-1-7 (Rev.2003).

¶ 12. We hold that once Hudson satisfied the elements of adverse possession, title to the disputed parcel vested in him. For Conliff to thereafter establish a superior claim to the disputed parcel, she would have to meet all six elements of adverse possession by clear and convincing proof. This she failed to do. There simply was no necessity to “reactivate” Hudson’s adverse-possession claim after the survey or the execution of the lease.

¶ 13. This issue is without merit.

II. Lease’s Property Description

¶ 14. Conliff also asserts that it was error for the chancellor to hold that the lease was invalid because the description was not sufficient. Our resolution of the prior issue renders this issue moot.

III. Boundary-Line Description

¶ 15. The final issue Conliff asserts is that the chancellor committed manifest error by incorrectly describing the parties’ new boundary line. An appellant is required “to provide authority in support of an assignment of error.” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005) (citing United Plumbing & Heating Co., Inc. v. Mosley, 835 So.2d 88, 92 (Miss.Ct.App.2002)). The “[fjailure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment [of error].” Id. In the present case, Conliff failed to cite to any legal authority in her original brief or reply brief to support this issue; therefore, we will not consider it. However, pursuant to Mississippi Rule of Civil Procedure Rule 60(a), this Court grants leave to the chancery court to correct, if necessary, any clerical errors that may be found in the boundary-line description contained in the judgment.

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

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

      . Mississippi Rule of Civil Procedure Rule 60(a) provides: Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders up until the time the record is transmitted by the clerk of the trial court to the appellate court and the action remains pending therein. Thereafter, such mistakes may be so corrected only with leave of the appellate court.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Rivers PRIDE, Ethel Butler, C.W. Pride, Robert Pride, Hester Burnette, Virgie Deloney, Herman Pride and Jimmie Elaine Ellis, Appellants v. Daniel PRIDE and William Pride, Appellees.
    No. 2009-CA-00165-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.

      Kenneth E. Stockton, attorney for appellants.
    Randolph Walker, attorney for appel-lees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. More than two years ago, the Pride family represented to the chancery court they had reached an agreement to auction the family home, resolving a three-year-old legal battle over this one-acre property. The chancery court entered an order setting out their agreement. But a faction of the family appealed that order. Because their arguments are procedurally barred, we affirm the chancery court’s December 18, 2008 order directing the auction of the homesite.

PROCEDURAL HISTORY

I. Trial Level

¶ 2. In May 2005, Rivers Pride, Robert Pride, C.W. Pride, Herman Pride, Ethel Butler, Hester Burnette, Virgie Deloney, Terry Ellis, and Jimmie Elaine Ellis (collectively “Rivers”) filed a complaint in Pa-nola County Chancery Court against their brothers, William Pride and Daniel Pride (collectively “William”). Rivers asked for a “partition in kind or by sale” of approximately 150 acres, including a home, inherited from W.E. Pride and Savannah Pride. William filed a counterclaim, also seeking a partition. The record indicates Rivers wanted to divide the property equally, while William wanted to sell the entire 150 acres.

¶ 3. The chancellor appointed a three-member commission to survey the property and determine if it could be divided equally. In September 2006, the commission submitted a report, recommending a partition in kind of the land into ten tracts, except for the one-acre homesite, which the commission recommended should be sold. The chancery court held a hearing on November 21, 2006. At the hearing, William objected to the commissioners’ report, arguing all the land should be sold. Rivers, however, agreed with the commissioners’ report. When William suggested the property be appraised before deciding if it should be partitioned in kind, Rivers responded that no appraisal was necessary because each party would receive one tenth of the total value of the property, regardless of what the total was.

¶ 4. On December 19, 2006, the chancery court entered an order adopting the commissioners’ report. The chancery court found “a partition in kind would promote the interest of all co-tenants and a sale of the one-acre house site at partition sale would promote the interest of all co-tenants .... ” The next day, the chancery court issued a notice of sale of the home-site. The sale never took place.

¶ 5. On December 22, 2006, William filed a motion for judgment notwithstanding the verdict (JNOV), arguing there was insufficient evidence for a partition in kind. Rivers responded that William’s motion should be dismissed.

¶ 6. On August 15, 2007, the chancery court denied William’s motion. After the thirty-day notice-of-appeal deadline had expired, William filed a motion for an extension of time to appeal, which Rivers contested. Before the chancery court ruled on William’s motion for an extension, William filed two more motions: (1) a motion for contempt for Rivers’s failure to return certain personal property as ordered by the December 19, 2006 order, and (2) a motion to appoint a caretaker of the home, which had yet to be sold.

¶ 7. On December 2, 2008, the chancery court heard all three of William’s motions. It granted William a fourteen-day extension to appeal the denial of his motion for JNOV and the underlying order adopting the commissioners’ report. It denied his contempt motion, providing Rivers additional time to return William’s property. But it did not reach the motion to appoint a caretaker because at the hearing both parties informed the chancellor that they agreed to auction the house within sixty days. When the chancellor asked whether anyone objected to the sale, none of the parties spoke up. The resulting December 18, 2008 order stated:

In regards to [William’s] motion to appoint a caretaker, the parties announced to the Court that they are in agreement to sell the house and 1 acre of land on which it sits at public auction, thereby resolving the issue of appointing a caretaker. Pursuant to the parties’ agreement, dictated into the record and affirmed by all parties, it is therefore ordered that the house and 1 acre of land as described on the plat thereof on file in this cause shall be sold at public auction to the highest bidder within 60 days of the entry of this Order.

II. Appellate Level

¶ 8. Granted the extension, William filed a notice of appeal on December 10, 2008. He challenged the August 2007 denial of his motion for JNOV and the underlying December 2006 order accepting the commissioners’ report. But William’s notice specified he “agree[d] with the ruling ordering a partition by sale of the family home and one-acre lot.” Rivers filed his own notice of appeal on January 16, 2009, seeking review of the December 2008 order directing the sale of the homesite.

¶ 9. The two appeals were consolidated. After being granted numerous extensions, William failed to timely file an appellant brief. William’s appeal was dismissed pursuant to Mississippi Rule of Appellate Procedure 2(a)(2). Rivers’s appeal was unaffected.

DISCUSSION

¶ 10. Rivers claims the chancery court erred by not following the requirements of Mississippi Code Annotated section 11-21-11 (Rev.2004) in its order of the sale of the homesite. In finding Rivers’s arguments procedurally barred, we must first clarify which order determined the home-site should be partitioned by sale.

¶ 11. The chancery court issued two orders regarding the sale of the homesite: (1) the December 2006 order that determined the one-acre homesite should be partitioned by sale, rather than partitioned in kind like the rest of the acreage, and (2) the December 2008 order that directed the previously determined sale should take place within sixty days to avoid the need to appoint a caretaker, resolving William’s March 2008 motion. We pause to note that it was in issuing the December 2006 order that the chancery court had to determine whether the circumstances met the prerequisites for partition by sale. Based on the dismissal of William’s appeal, the December 2006 order is no longer before us. Therefore, we will not consider whether the prerequisites of section 11-21-11 existed prior to ordering a partition by sale in 2006. Likewise, we reject William’s arguments that the chancery court similarly erred in ordering a partition in kind of the 150 acres because these arguments are aimed at resurrecting his dismissed appeal of the 2006 order.

¶ 12. Procedural bar aside, we note “a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless these conditions [of section 11-21-11] are fully met.” Parker v. Parker, 980 So.2d 328, 326 (¶ 8) (Miss.Ct.App.2008) (quoting Fuller v. Chimento, 824 So.2d 599, 602 (¶ 9) (Miss.2002)) (emphasis added); see Dailey v. Houston, 246 Miss. 667, 683, 151 So.2d 919, 926 (1963) (error to order partition by sale rather than in kind over objection of co-tenant). But here Rivers made absolutely no protest. He neither objected to the commissioners’ report nor to the chancery court’s decision to partition the homesite by sale. In fact, at the November 2006 hearing prior to accepting the report, it was Rivers’s attorney who suggested selling the homesite. And it was Rivers’s witness, Robert Pride, who testified that, while he wanted to divide the 150 acres, he wanted to sell the homesite. In his reply brief, Rivers concedes he agrees with decision to partition the homesite by sale.

¶ 13. , Nevertheless, Rivers tries to make an end run around the procedural bar by attacking the December 2008 order setting forth the procedure for accomplishing the sale. Rivers maintains the chancery court erred by omitting that an appraisal must take place before the auction, as mandated by section 11-21-11. But this argument against the 2008 order not only lacks merit, but it too is procedurally barred.

¶ 14. First, neither section 11-21-11, nor its companion Mississippi Code Annotated section 11-21-27 (Rev.2004), mandates that an appraisal must be obtained prior to selling partitioned land. Rather, in both statutes, “the court may cause an appraisal to be made of the property.” Miss.Code Ann. §§ 11-21-11, -27 (emphasis added). So clearly chancellors are vested with discretionary authority over whether to require an appraisal.

¶ 15. Second, Rivers waived any objection to the lack of an appraisal because he never raised the issue of appraisal in the chancery court. E.g., Charles E. Morgan Constr. Co. v. City of Starkville, 909 So.2d 1145, 1148 (¶ 9) (Miss.Ct.App.2005) (refusing to consider a matter not first presented to the trial court). It is axiomatic that we will not find a chancellor abused his or her discretion in failing to grant a request the parties never made. The parties stipulated on the record to the procedure for partition by sale. And the chancellor adopted the procedure requested by the parties. Therefore, any argument this procedure is improper because it did not include an appraisal was waived. See Morris-Shea Bridge Co. v. Coastal Land Dev. Co., 911 So.2d 506 (¶¶3-6) (Miss.2005) (dismissing appeal because parties stipulated to resolution of controversy); Myers v. Miss. Farm Bureau Mut. Ins. Co., 749 So.2d 1173, 1174 (¶4) (Miss.Ct.App.1999) (consent to dismissal of claim estopped the appeal of claim).

¶ 16. Finding Rivers’s argument procedurally barred, we affirm the December 2008 order directing the auction of the one-acre homesite.

¶ 17. THE JUDGMENT OF THE PA-NOLA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . William and Daniel are the uncles of Terry Ellis and Jimmie Elaine Ellis, who are children of William and Daniel’s deceased sister, Alberta Pride Ellis.

      . Section 11-21-11 provides:
      If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests. The court may appoint a master to make the sale, and may make all proper orders to protect the rights of the parties interested. The court may order the sale of a part of the land and the partition in kind of the residue.
      Before the court shall order a sale of the lands, the court may cause an appraisal to be made of the property, the expense of which shall be taxed and collected as costs in the proceedings. If the court causes an appraisal of the property to be made, then, subsequent to the receipt and filing of the appraisal with the court, the court shall hold in abeyance its order for sale of the land for a period of thirty (30) days in order to allow the parties the opportunity to reach an agreement as to a partition in kind or sale of the lands.

      . Section 11-21-27 provides:
      If, after a judgment for partition and the appointment of masters, it shall appear from the report of the masters, or on exceptions to their report, that a just and equal division of the land cannot be made, or that a sale will better promote the interest of all the cotenants, the court shall order a sale of the land, or such part thereof as may be deemed proper, and a division of the proceeds among those interested, as provided for.
      Before the court shall order a sale of the lands, the court may cause an appraisal to be made of the property, the expense of which shall be taxed and collected as costs in the proceedings. If the court causes an appraisal of the property to be made, then, subsequent to the receipt and filing of the appraisal with the court, the court shall hold in abeyance its order for sale of the land for a period of thirty (30) days in order to allow the parties the opportunity to reach an agreement as to a partition in kind or sale of the lands.


author: BARNES, J.,

text:
    James Lynwood BERGERON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-01722-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.

      Daniel Wesley Kitchens, attorney for appellant.
    Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. James Lynwood Bergeron appeals the Adams County Circuit Court’s denial of his motion for post-conviction relief, claiming that he was erroneously sentenced as a habitual offender. Upon review, we find that the record does not support Bergeron’s status as a habitual offender. We reverse the circuit court’s denial of the motion and remand this case for re-sentencing.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On June 17, 2002, Bergeron was indicted on three counts: murder, possession of a stolen motor vehicle, and possession of a deadly weapon as a convicted felon. The indictment noted that Berger-on was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2000). Bergeron’s habitual-offender status was based upon two 1993 convictions from Georgia — burglary and theft by taking. These convictions were brought in a single indictment, and both crimes were committed in the same evening when Ber-geron broke into a car dealership, stole the keys to a vehicle, and moments later, drove the vehicle off the premises.

¶ 3. Bergeron pleaded guilty in Adams County to the charges of possession of a weapon and stolen property and was sentenced to three years and five years, respectively, with the sentences to run consecutively without reduction, suspension, or probation. In a jury trial held on November 15, 2002, Bergeron was convicted of the lesser offense of manslaughter. He was given the maximum sentence of twenty years based on his classification as a habitual offender. This sentence was ordered to run consecutively to the eight years resulting from his guilty-plea sentences.

¶ 4. On direct appeal, this Court upheld Bergeron’s conviction. See Bergeron v. State, 913 So.2d 997 (Miss.Ct.App.2005). However, on January 28, 2009, the Mississippi Supreme Court partially granted Bergeron’s application for leave to seek post-conviction relief on the sole issue of his classification as a habitual offender. Following a hearing, the Adams County Circuit Court denied Bergeron’s motion for post-conviction relief, and Bergeron now appeals.

STANDARD OF REVIEW

¶ 5. A denial of a motion for post-conviction relief will not be disturbed on appeal unless the circuit court’s “findings are clearly erroneous.” Rowland v. State, 42 So.3d 503, 506 (¶ 8) (Miss.2010) (citing Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)). “However, where questions of law are raised!,] the applicable standard of review is de novo.” Id.

Whether the circuit court erred in finding that Bergeron was a habitual offender under Mississippi Code Annotated section 99-19-81.

¶ 6. Bergeron asserts that the circuit court erred in sentencing him as a habitual offender under Mississippi Code Annotated section 99-19-81, which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). Bergeron claims that his two Georgia convictions were not separately brought and did not arise “out of separate incidents and different times.” Both charges were brought in a single indictment. Both convictions arose from a series of acts committed by Bergeron on December 13, 1993, when he broke into a car dealership, stole a set of keys, and used the keys to take an automobile from the lot. Bergeron stole the keys solely to obtain the vehicle, and these actions happened within minutes of one another.

¶ 7. We first address the State’s contention that this issue is barred by res judicata because the issue should have been raised on direct appeal. While it is true that issues which should have been raised at trial or on direct appeal will not be considered in post-conviction-relief proceedings, those errors which concern fundamental rights are the exception to this rule. Rowland, 42 So.3d at 506 (¶ 10). Furthermore, this Court has stated that “[t]he right to be free from an illegal sentence is a fundamental constitutional right; therefore, a claim of illegal sentence cannot be procedurally barred under the Mississippi Uniform Post-Conviction Collateral Relief Act.” Williams v. State, 24 So.3d 360, 364 (¶ 10) (Miss.Ct.App.2009). Therefore, we do not find Bergeron’s claim to be barred from appellate review.

¶ 8. The Mississippi Supreme Court has held that “[a] prior offense may be considered under the statute even if [it] occurred on the same day as the instant offense as long as the two charges arose from ‘separate incidents.’ ” Buckley v. State, 511 So.2d 1354, 1359 (Miss.1987) (citing Crawley v. State, 423 So.2d 128, 129 (Miss.1982)). This issue was thoroughly discussed in Pittman v. State, 570 So.2d 1205 (Miss.1990), a case that the Adams County Circuit Judge found to be analogous to Bergeron’s Georgia convictions. In Pittman, the defendant was convicted of burglarizing a store. He was sentenced as a habitual offender as he had two prior convictions: burglary of Dotson Elementary School and grand larceny from Wilson Elementary School. These charges arose from events that occurred on the same night, and both schools were in close proximity as they were connected to one another by a common walkway and enclosed by a single, all-inclusive fence. The supreme court found that the convictions were separate incidents and upheld the defendant’s sentence as a habitual offender. Id. at 1207.

¶ 9. In its analysis, the Pittman court provided guidance for determining whether incidents could be considered separate:

[B]efore such behavior should be labeled habitual, it would seem that the events should be sufficiently separate that the offender’s criminal passions may have cooled so that he has time to reflect, and if after such an interval the individual forms and actualizes a new criminal design, and then does so a third time, he should be met with all of the power of the public force. Conversely, two offenses committed in rapid succession do not suggest the same repetitiveness of criminal design such that the offender may be thought predictably habitual thereafter, or deserving of severe sanction.

Pittman, 570 So.2d at 1206 (emphasis added). However, Bergeron asserts that his case is actually more analogous to the following hypothetical situation posed by the Pittman court:

No doubt, if [Bobbie Lee] Pittman broke and entered one room in the Wilson Elementary School and, finding nothing of value, then moved to another room in the same school and thereafter stole the three television sets from that room, we would consider the union of these acts sufficient that they would constitute but a lone incident under the statute. The record before us, however, reflects that the Dotson Elementary School and the Wilson Elementary School are separate schools, notwithstanding their proximity and common use of the auditorium and cafeteria.

Id. at 1207.

¶ 10. Bergeron further contends that his case more closely resembles the situation in Riddle v. State, 413 So.2d 737 (Miss.1982). Roy Lee Riddle was indicted and convicted of burglary, kidnapping, and rape of a child and sentenced using two of the predicated offenses to support his status as a habitual offender. All three offenses occurred in the same evening. The supreme court found that Riddle had burglarized the house and kidnapped the child to achieve his purpose of committing the rape. Thus, “the only previous crimes shown to have been committed by Riddle were crimes which arose out of a single incident[,]” a fact that the State acknowledged. Id. at 738. Bergeron claims that, just as Riddle had one goal — to commit rape, his Georgia actions had but one goal: to steal a car. As the Pittman court noted in its discussion of Riddle: “Though subject to separate prosecution, the Riddle offenses arose out of a common temporal nucleus of operative fact and did not qualify as ‘separate incidents at different times.’ ” Pittman, 570 So.2d at 1206 (citing Riddle, 413 So.2d at 738) (emphasis added); see also Walls v. State, 759 So.2d 483, 489 (¶ 19) (Miss.Ct.App.2000) (finding that defendant’s two predicate offenses of assault, “for habitual offender status, arose out of a single incident or a common temporal nucleus of operative fact and [did] not qualify as separate incidents at different times”). This Court has reiterated this point, stating:

It is understandable why two crimes originating out of the same nucleus of operative facts should be counted as one crime for evaluating whether one should receive an enhanced penalty for his continual involvement in criminal activity. If the purpose of the statute is to deter subsequent criminal activity, it would be patently unfair to count multiple crimes — arising out of a common nucleus of operative facts and committed at the same time by an individual during one foray into criminal activity — as separate crimes because neither of the multiple crimes constitutes subsequent involvement in criminal activity. Such an interpretation is consistent with the laudable purpose of the statute: to stiffen the penalty for repeat offenders, not for current offenders who commit several crimes during their one foray into criminal activity.

Otis v. State, 853 So.2d 856, 862 (¶ 16) (Miss.Ct.App.2003).

¶ 11. We find Bergeron’s analysis to be well-reasoned. Bergeron broke into the car dealer’s office, stole a set of keys, and used the keys to take the car from the dealer. There was only one victim and one intent, to steal a car. In comparison, in Garrison v. State, 950 So.2d 990, 995 (¶ 19) (Miss.2006), the Mississippi Supreme Court found that the defendant’s prior convictions constituted two separate felonies as there were “two separate victims and two types of criminal intent.” See also Davis v. State, 850 So.2d 176, 179-80 (¶¶ 13-15) (Miss.Ct.App.2003) (finding that the defendant’s convictions, although committed in a series of events, were separate incidents as they involved two different victims and the second crime occurred at “some point later in time and location ha[d] nothing to do with the [first] case”). Thus, we find that Bergeron’s two 1993 Georgia convictions — burglary and theft by taking — arose from the same incident. As such, they cannot alone support his habitual-offender status.

¶ 12. Although the State claims that Bergeron agreed at his guilty-plea hearing that his two 1993 convictions satisfied the requirements of section 99-19-81, the transcript of this hearing is not contained in the record. The only semblance of any agreement in the record occurred at Ber-geron’s sentencing hearing for his manslaughter conviction when the circuit judge inquired if Bergeron had “anything concerning the habitual offender status.” Bergeron’s counsel answered, “No, your Honor.” We find this to be insufficient to support any overt consent by Bergeron as to his status as a habitual offender.

¶ 13. The State also argues that, even if the two Georgia convictions could not be counted separately, the two felonies for which Bergeron pleaded guilty immediately prior to trial would support his status as a habitual offender. However, as section 99-19-81 states, the convictions supporting the habitual-offender classification must be brought separately and arise “out of separate incidents at different times.” The record reflects that the two guilty pleas — possession of a firearm by a convicted felon and possession of a stolen motor vehicle — arose out of the same incident that resulted in Bergeron’s manslaughter conviction. The circuit judge correctly stated that he would not consider these convictions for the purposes of Ber-geron’s habitual-offender status.

¶ 14. Finding that the record does not support Bergeron’s status as a habitual offender, we reverse the judgment of the circuit court and remand this case for re-sentencing.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS 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 ADAMS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT.


author: CARLTON, J.,

text:
    Arise Gerald McDONALD and Laureen J. McDonald, Appellants v. Jerry KING, Appellee.
    No. 2010-CA-00688-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.

      John Denver Fike, attorney for appellants.
    Mark C. Baker Sr., Pelahatchie, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Anse and Laureen McDonald appeal the judgment of the Special Court of Eminent Domain in Rankin County dismissing the McDonalds’ petition for the establishment of a private road through the property of Jerry King for the purpose of ingress and egress to the McDonalds’ property. The McDonalds now appeal, claiming that the Special Court of Eminent Domain incorrectly acted as an appellate court in its consideration of the case and that the court used the improper standard for determining whether to establish a private road. Finding no error, we affirm the judgment of the Special Court of Eminent Domain. The Special Court of Eminent Domain found that the evidence failed to show that a route across King’s property was reasonably necessary to access the McDonalds’ property.

FACTS

¶ 2. The McDonalds own approximately eighty acres of land in Simpson County, Mississippi, and this property is also accessible from Rankin County, Mississippi. King owns land in Rankin County, which adjoins Moncure Road, a public road located north of the McDonalds’ land in Simpson County. King’s property has access to Moncure Road by way of an existing driveway on his property.

¶ 3. In 2008, the McDonalds filed a complaint for the removal of obstruction of an easement through a portion of King’s land, which would allow Anse to haul sand from his property using eighteen-wheeler trucks for the purposes of operating his commercial mining business. On July 9, 2008, the Rankin County Chancery Court held that the McDonalds did not possess an easement across King’s property. The Mc-Donalds then filed a complaint in the Special Court of Eminent Domain on October 13, 2008, seeking to establish a private road through a portion of King’s land for ingress and egress, as provided under Mississippi Code Annotated section 65-7-201 (Rev.2005). The McDonalds claimed that without an easement across King’s property, they are landlocked from accessing their property. The McDonalds asserted that no other access exists to their land for the purposes of running their business other than the private road across King’s property. King argued, however, that allowing the McDonalds to use his property in such a manner would endanger his health, safety, and welfare.

114. On August 27, 2009, the Special Court of Eminent Domain conducted the “reasonableness” segment of the bifurcated trial, as required under section 65-7-201. After considering the reasonableness of the McDonalds’ petition for a private right-of-way, the Special Court of Eminent Domain dismissed the McDonalds’ petition without prejudice on October 8, 2009. The trial judge found that King’s suggestion of building a road along an alternate route provided reasonable access to the Mc-Donalds’ land. He also held that the Mc-Donalds had failed to provide any monetary figures regarding the cost of building an alternate road to access their property. The trial judge determined that based on the figures that actually were provided at the hearing, the cost of building a new road for the purpose of operating the Mc-Donalds’ commercial mining business did not constitute an unreasonable cost. This appeal followed.

STANDARD OF REVIEW

¶ 5. The Mississippi Supreme Court has established that the standard of review of eminent-domain proceedings is as follows:

This Court reviews decisions of a special court of eminent domain as it would any trial court. We review questions of law de novo, and we will not overturn findings of fact where they are supported by substantial evidence in the record unless there was abuse of discretion by the trial judge or the findings were manifestly wrong or clearly erroneous.

Morley v. Jackson Redevelopment Auth., 874 So.2d 973, 975 (1111) (Miss.2004) (internal citations omitted).

DISCUSSION

I. Whether the Special Court of Eminent Domain incorrectly acted as an appellate court.

¶ 6. The McDonalds argue that in the present case, the court followed the procedure of the pre-amended version of section 65-7-201, which, prior to the 2003 amendment, allowed the county board of supervisors to survey the land and adjudicate the most reasonable route of ingress and egress. The board of supervisors’ decision was then appealable to the county court. The McDonalds assert that in the 2003 amendment to section 65-7-201, the Legislature removed the power to adjudicate private-way proceedings from the board and gave it to the special court of eminent domain, therein granting the special court of eminent domain original, exclusive jurisdiction over issues concerning the application for eminent domain for a private road for the purposes of ingress and egress to a landlocked parcel. The McDonalds claim that Special Court of Eminent Domain, thus, acted outside of its scope and power by improperly acting as an appellate court, instead of determining the case on its merits.

¶ 7. Section 65-7-201, as amended in 2003, states that:

When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use. The court sitting without a jury shall determine the reasonableness of the application. The owner of the property shall be a necessary party to the proceedings. If the court finds in favor of the petitioner, all damages that the jury determines the landowner should be compensated for shall be assessed against and shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings.

The statutory language instructs the Special Court of Eminent Domain to determine the reasonableness of the petitioner’s application for a private road. • Mississippi Code Annotated section 11-27-3 (Rev. 2004), which created the Special Court of Eminent Domain, establishes that “[t]he original powers and jurisdiction shall be and is hereby fixed in the county court in each county that has elected to come under the provisions of section 9-9-1 Mississippi Code of 1972.”

¶8. In their appellate brief, the McDonalds assert that the lower court failed to make a determination based upon the merits of this case and simply relied on the assertions of the Rankin County Board of Supervisors. However, the procedural history in the record before us shows no decision by the Rankin County Board of Supervisors, nor any review of such decision by the Special Court of Eminent Domain. Indeed, after a review of the record, we find that the court conducted a bifurcated trial as required by section 65-7-201 and determined the case on its merits, finding insufficient evidence that a route across King’s property was reasonably necessary for ingress or egress to McDonalds’ property. We find no instance in the record of the Special Court of Eminent Domain acting as an appellate court; thus, this issue is without merit.

II. Whether the Special Court of Eminent Domain used the wrong standard in determining the reasonableness of the application.

¶ 9. The McDonalds also claim that not only did the 2003 amendment to section 65-7-201 transfer the forum for eminent-domain proceedings, but it also changed the procedure for such proceedings. Prior to the 2003 amendment, the private-way statute held that a person desiring the establishment of a private road should apply by petition, and then the board of supervisors should determine the reasonableness of the application based on the facts and reasons stated in the petition. The amended version now states that a special court of eminent domain shall determine reasonableness based on the facts and reasons stated by the petitioner, and it also states that the case shall proceed as nearly as possibly as provided in Title 11, Chapter 27 for the condemnation of private property for public use.

¶ 10. The McDonalds claim that the amended statutory language instructing that eminent-domain cases proceed as closely as possible as provided in Title 11, Chapter 27 suggests that the amendment changed not only the forum, but it also changed the standard that courts must use in examining private-way petitions. The McDonalds claim that in this case before us, the Special Court of Eminent Domain applied the standard of “no other possible routes,” a standard which the McDonalds argue frustrates the purpose of condemning private property for public use. The McDonalds submit that because the 2003 amendment to section 65-7-201 changed the standard for determining reasonableness of private-way petitions, the Special Court of Eminent Domain’s misguidedly relied on pre-2003 case law in its decision. The McDonalds claim that the court relied on the pre-2003 amendment standard to require a showing of physical impossibility of creating an alternative route, when instead, it should have used the standard of reasonable necessity.

¶ 11. In cases falling under the purview of section 65-7-201, the Mississippi Supreme Court has interpreted the phrase “necessary for ingress and egress” as reasonably necessary and not absolutely necessary. Quinn v. Holly, 244 Miss. 808, 813, 146 So.2d 357, 359 (1962). Additionally, the petitioner carries the burden of proving the proposed private road is reasonably necessary. Hooks v. George County, 748 So.2d 678, 683 (¶27) (Miss.1999).

¶ 12. Despite the McDonalds’ allegations, the record reflects that the court heard testimony regarding the reasonableness and existence of other possible alternative routes across and also south of King’s property. The trial judge clearly stated that his “role at this point is simply to decide whether or not the complaint, which in this case seeks to condemn this particular road that passes by the Kings’ house, is a reasonable route to get to the property.” In addition, the transcript from the hearing reflects that the trial judge repeatedly referred to Ganier v. Mansour, 766 So.2d 3, 7-8 (¶¶ 14-17) (Miss.Ct.App.2000), when discussing the controlling law as to eminent-domain cases. In Ganier, this Court recognized the supreme court’s “reasonable necessity” standard when determining whether a landowner is entitled to an easement for ingress and egress over someone else’s land. Id. We further note that the trial judge listened to testimony from the parties and their witnesses before dismissing the McDonalds’ petition. After considering this evidence, the trial judge determined that the alternate route proposed by King provided reasonable access to the McDonalds’ property; hence, the Mc-Donalds’ suggested route across King’s property was not necessary for ingress or egress to the McDonalds’ property based upon the evidence presented. After our review of the record, we find that the trial judge utilized the proper standard for determining reasonableness in the bifurcated hearing in the present case; thus, we find no abuse of discretion in the trial judge’s decision. This issue lacks merit.

¶ 13. THE JUDGMENT OF THE RANKIN COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: GRIFFIS, P.J.,

text:
    Jeff Wayne TUCKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00165-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.

      Jeff Wayne Tucker, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Jeff Wayne Tucker appeals the judgment of the Lee County Circuit Court denying his motion for post-conviction collateral relief. He claims: (1) his guilty plea was entered involuntarily; (2) his trial counsel was ineffective; and (3) he was entitled to an evidentiary hearing. We find no error and affirm.

FACTS

¶ 2. In cause number CR08-497, Tucker was indicted on Count I, gratification of lust under Mississippi Code Annotated section 97-5-23 (Rev.2006), and Count II, sexual battery under Mississippi Code Annotated section 97-3-95 (Rev.2006). By separate indictment in cause number CR08-640, Tucker was also charged with the felonious failure to register as a sex offender under Mississippi Code Annotated sections 45-33-25 & -27 (Supp.2010). By an agreed order with the State, Tucker’s status as a habitual offender was dropped from the indictments.

¶ 3. On September 24, 2008, Tucker appeared before the circuit court and entered guilty pleas to all three charges. Tucker was sentenced to fifteen years and ordered to pay a $1,000 fíne in Count I, and he was sentenced to thirty years with fifteen years suspended and ordered to pay a $1,000 fíne in Count II. He was ordered to serve the sentences in Counts I and II concurrently. Tucker was further sentenced to five years for his failure to register as a sex offender. That sentence was ordered to run consecutively to the sentences in Counts I and II.

¶ 4. On August 26, 2009, Tucker filed a motion for post-conviction relief. The motion attacked his conviction and sentence for the felonious failure to register as a sex offender under cause number CR08-640. He claimed that: (1) he had received ineffective assistance of counsel; (2) his guilty plea was entered involuntarily; and (3) the 1997 conviction which gave him the status of a sex offender was invalid. On September 15, 2009, Tucker filed a second motion for post-conviction relief that challenged his convictions and sentences for gratification of lust and sexual battery under cause number CR08^497. He again asserted claims that his counsel was ineffective and that his guilty pleas were entered involuntarily.

¶ 5. The circuit court found that Tucker’s claims had no merit. Therefore, the relief requested in both of Tucker’s motions for post-conviction relief was denied. Tucker now appeals the circuit court’s judgment.

STANDARD OF REVIEW

¶ 6. 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

1. Ineffective Assistance of Counsel

¶ 7. Tucker’s primary contention on appeal is that his counsel was ineffective during the plea proceedings. To prove ineffective assistance of counsel, Tucker must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Tucker to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689,104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 8. Specifically, Tucker claims that his attorney exploited Tucker’s fear of returning to jail to force Tucker to plead guilty. He further claims that his attorney threatened to abandon him if he did not plead guilty. Also, according to Tucker, his attorney told him not to tell the circuit judge about his fear of the jail or the threats made by the attorney. However, Tucker provided no proof of such allegations other than his own affidavit.

¶ 9. Tucker argues that he can provide no other proof other than his own statement because he was the only witness to his attorney’s conduct. The record, however, specifically refutes Tucker’s current claims. At the plea hearing, Tucker testified that he was satisfied with the legal advice and services of his attorney. The circuit judge asked: “Do you believe that Mr. Farese has properly advised you before entering your pleas of guilty and properly represented your best interest in your cases?” Tucker replied: “Yes, Your Honor.”

¶ 10. The following testimony was also given at the plea hearing:

Q: Mr. Tucker, has anyone forced you in any way, put any pressure on you, or promised you anything in order to get you to enter these pleas of guilty?
A: No, Your Honor.
THE COURT: [Counsel], during the time that you have represented Mr. Tucker, have you told him anything, represented to him or led him to believe or tried to convince him that he will get any particular sentence, that is he will be given a specific number of years or probation or some insignificant number of years, days, weeks or months or whatever because he is entering his pleas of guilty?
[COUNSEL]: No, sir Your Honor. For the record I have received discovery from the State in this matter. I have reviewed that discovery with Mr. Tucker. We had a revocation hearing set this morning in another cause, and that is to be withdrawn. I have reviewed all of this not only with Mr. Tucker, but in the presence of his brother, Mr. Danny Tucker, who is present in this courtroom, and I have additionally advised the defendant that I would not stand with him for a guilty plea if he maintained he did not commit these offences, nor would the Court accept any guilty pleas if he did not admit his guilt. That was reviewed not only in the presence of the defendant privately, but also in the presence separately with the defendant and his brother, Danny Tucker, and also officer Herb Wells of the courtroom staff, Lee County Sheriffs Department.
So it is my belief the defendant certainly knows what he is doing here this morning offering these pleas, and I specifically advised him that even though this plea recommendation was made by the district attorney’s office, that it did not bind the Court, and the Court certainly could sentence him to the maximum of these three charges.
Q: All right. Mr. Tucker, you have heard the statements made by your attorney standing there next to you. Is everything he just stated to the Court true and correct?
A: Yes, Your Honor.

¶ 11. This Court is entitled to rely on Tucker’s sworn statement made to the circuit judge. See Green v. State, 880 So.2d 377, 382 (¶ 21) (Miss.Ct.App.2004). Tucker’s claims on appeal are in direct conflict with his sworn testimony given at the plea hearing.

¶ 12. Tucker also claims that his attorney was ineffective in his failure to investigate. First, he claims that he had properly registered as a sex offender. In an attempt to prove his compliance, he presented affidavits from neighbors stating that he lived in Blue Springs, Mississippi, in Union County, not Lee County. However, those affidavits state that he lived at the address in Union County until April 10, 2008. The indictment alleges that he failed to registered in Lee County on April 11, 2008. It was at that time that Tucker began to spend the night at his business located in Lee County. Thus, the proof offered by Tucker does not provide a defense to this charge. Certainly, it does not prove a deficiency on the part of his attorney’s investigation of this matter.

¶ 13. Second, Tucker attempts to attack his conviction for failure to register as a sex offender by disputing his 1997 conviction for sexual battery. He offered affidavits of witnesses who state that the victim of the 1997 sexual battery had fabricated his testimony against Tucker. There is nothing in the record to show that Tucker’s attorney should have investigated the validity of the prior conviction. In fact, Tucker testified under oath at the plea hearing that he was guilty of failure to register as a sex offender.

¶ 14. Because Tucker offers no proof of his claims of ineffective assistance of counsel, and because those claims are wholly refuted by Tucker’s testimony under oath, Tucker has failed to prove any deficiencies of his attorney. Accordingly, this issue has no merit.

2. Voluntariness of Tucker’s Guilty Pleas

¶ 15. In a related argument, Tucker asserts that his guilty pleas were entered involuntarily due to the threats made by his attorney. Tucker states that he had been assaulted at the jail prior to his plea hearing. He claims that his fear of returning to jail and the threats by his attorney made pleading guilty his only option.

¶ 16. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). Such a plea is voluntary and intelligently made when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 17. Again, as discussed above, the record clearly refutes this claim. Tucker testified that he had not been forced or pressured in any way to plead guilty. The record of the plea hearing is clear that Tucker was informed of the charges against him and that he was aware of the consequences of entering his guilty pleas. Therefore, this issue has no merit.

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

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


text:
    John Earl THOMAS, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2010-CC-01018-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.
    John Earl Thomas, appellant, pro se.
    Albert B. White, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. John Earl Thomas appeals the decision of the Mississippi Department of Employment Security (MDES) to deny him unemployment benefits. We find no error and affirm.

FACTS

¶ 2. On October 31, 2008, Thomas was fired from his job at Bigbee Transportation, Inc. He filed a claim for unemployment benefits. An MDES claims examiner conducted an investigation to determine whether Thomas was eligible to receive benefits. The examiner found that Thomas had been fired for misconduct connected with his work, which made him ineligible for benefits under Mississippi Code Annotated section 71-5-513(A)(l)(b) (Supp. 2010).

¶ 3. On January 27, 2009, MDES mailed Thomas a “Notice of Nonmonetary Determination Decision” that informed him that his claim had been denied and that he had fourteen days from the date the notice was mailed to file an appeal with MDES. Thomas filed an appeal on October 19, 2009, which was past the deadline. An Administrative Law Judge (ALJ) conducted a hearing by telephone to determine whether Thomas had good cause for the late appeal.

¶ 4. At the hearing, the following exchange occurred:

ALJ: What was the reason that you waited until um October 19 to file your appeal?
Thomas: Because I give [sic] them anything I had said. And I told my supervisor everything!,] and I was denied. And I got the write up too[,] and I thought that it would be a good time for me to try to get my hearing.

The ALJ found that Thomas failed to show good cause for the late appeal; therefore, the prior decision to deny benefits became final.

¶5. Thomas appealed to the MDES Board of Review, which affirmed the ALJ’s findings. Thomas then appealed to the Circuit Court of Lowndes County, which affirmed the decision of the Board of Review. He now appeals.

STANDARD OF REVIEW

¶ 6. The standard of review of administrative-agency decisions is “[a]n agency’s conclusions must remain undisturbed unless the agency’s order[:] 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Maxwell v. Miss. Empl. Sec. Comm’n, 792 So.2d 1031, 1032 (¶ 7) (Miss.Ct.App.2001). Upon judicial review, “the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Supp.2010).

ANALYSIS

¶ 7. Mississippi Code Annotated section 71-5-517 (Supp.2010) provides in part:

Upon the taking of a claim by [MDES], an initial determination thereon shall be made promptly and shall include a determination with respect to whether or not benefits are payable.... The claimant ... may file an appeal from such initial determination ... within fourteen (14) days after notification thereof, or after the date such notification was sent to his last known address.

In this case, the claims examiner made an initial determination that Thomas was ineligible for benefits. Notice of this determination was mailed to Thomas on January 27, 2009. Thomas concedes that he received this notice. He did not file his appeal until October 19, 2009, approximately nine months after the notice was mailed. Therefore, his appeal was untimely filed.

¶ 8. This Court has stated:

[T]he fourteen-day time period may be relaxed or extended if there is a showing , of “good cause” by the appellant.... “Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party’s control.” Miss. Empl. Sec. Comm’n v. Marion County Sheriff’s Dep’t, 865 So.2d 1153, 1157 (¶ 10) (Miss.2004).

Cervato v. Miss. Empl. Sec. Comm’n, 968 So.2d 957, 960-61 (¶¶ 10-11) (Miss.Ct.App.2007). Here, Thomas concedes that he received the January 27th notice. Yet he offered no explanation for his late appeal that could be reasonably viewed as good cause.

¶ 9. There was substantial evidence to support the ALJ’s findings; therefore, we must affirm the circuit court’s judgment.

¶10. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS AFFIRMED.

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


author: SHAW, Justice. COBB, Chief Justice

text:
    Jennifer PRECISE, as administrator ad litem of the estate of Khamora Witherspoon, deceased, and Mioka Witherspoon, as mother and next friend of Khamora Witherspoon, deceased v. Harvey EDWARDS, M.D., et al.
    1081276.
    Supreme Court of Alabama.
    Sept. 24, 2010.

      Benjamin L. Woolf, Tuscaloosa, for appellants.
    Scott M. Salter and Allison J. Garton of Starnes & Atchison LLP, Birmingham, for appellees Harvey Edwards, M.D., Thomas Rosenstiel, M.D., Steve Allen, M.D., and Obstetrics and Gynecology of West Alabama, P.C.
    A. Courtney Crowder and Terri Olive Tompkins of Phelps, Jenkins, Gibson & Fowler, LLP, Tuscaloosa, for appellees DCH Health System, Beth Boothe, R.N., and Shawna Garcia, R.N.
    W. Stanley Rodgers and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellees Julie Vaughn, M.D., and Tuscaloosa Pediatrics, P.C.
   SHAW, Justice.

Jennifer Precise, administrator ad litem of the estate of Khamora Witherspoon, and Mioka Witherspoon, as mother and next friend of Khamora Witherspoon, the plaintiffs below, appeal from a summary judgment in favor of Harvey Edwards, M.D.; Thomas Rosenstiel, M.D.; Steve Alen, M.D.; Obstetrics and Gynecology of West Aabama, P.C.; Julie Vaughn, M.D.; Tuscaloosa Pediatrics, P.C.; DCH Health System; Beth Boothe, R.N.; and Shawna Garcia, R.N., the named defendants, as to the plaintiffs’ wrongful-death claim alleging medical malpractice. We affirm.

Facts and Procedural History

Khamora Witherspoon, the infant decedent, was born on September 7, 2006, and died on September 20, 2006. Amost two years later, on September 7, 2008, the plaintiffs filed the underlying wrongful-death action in the Tuscaloosa Circuit Court, alleging that Khamora died as the result of the combined negligence of the named defendants. At the time of filing, the plaintiffs indicated that they were opting to conduct service by a process server. See Rule 4(i)(l), Aa. R. Civ. P. Specifically, the final page of the plaintiffs’ complaint stated that each named defendant was to be served by a process server and listed the respective addresses of the named defendants.

It is undisputed that all the named defendants were served by process server on January 16, 2009, over four months after the complaint was filed, at the addresses listed on both the complaint itself and on the individual summonses generated at the time the complaint was filed. Amost immediately following service, the defendants separately filed motions to dismiss the complaint or, in the alternative, for a summary judgment on grounds including, but not limited to, the fact that the action was barred by the applicable statute of limitations. See Johnson v. Brookwood Med. Ctr., 946 So.2d 849, 858 (Ala.2006) (“It is well established that the two-year limitations period found in § 6-5A10, Aa.Code 1975, for asserting wrongful-death actions (and not § 6-5-482, Aa.Code 1975, the medical-malpractice limitations period) applies to wrongful-death cases alleging medical malpractice.”). Specifically, the defendants contended that, despite the fact that the plaintiffs filed their complaint before the expiration of the applicable statute of limitations, the plaintiffs, because they lacked the requisite intent to serve the defendants, in effect, failed to “commence” this action before the statute of limitations expired on September 20, 2008. In support of their motion, the defendants relied on the summonses.

The plaintiffs filed a response in opposition to the defendants' motions in which they attempted to distinguish the cases cited in the motions. The plaintiffs further asserted that the acknowledged delay in service, in and of itself, was insufficient to support the entry of a summary judgment for the defendants. However, the plaintiffs offered no evidence in support of their opposition, nor did they actually explain the 131-day delay in service. Instead, they merely attempted to distinguish the authorities cited by the defendants.

Following a hearing, the trial court granted all pending summary-judgment motions based on the defendants’ statute-of-limitations arguments. Specifically, the trial court held that the record indicated a lack of the required bona fide intent by the plaintiffs to have the defendants immediately served.

The plaintiffs subsequently filed a motion to alter, amend, or vacate the trial court’s order in which they contended that the trial court failed, pursuant to Rule 4(b), Ala. R. Civ. P., to give the plaintiffs 14 days’ notice to allow them to provide good cause for the delay in service before entering the summary judgment. In support of their postjudgment motion, the plaintiffs submitted two affidavits attempting to demonstrate good cause for the delay. The trial court, following a hearing, struck the submitted affidavits as untimely evidentiary material filed in opposition to the defendants’ summary-judgment motions. In that same order, the trial court denied the plaintiffs’ postjudgment motion. The plaintiffs appealed.

Standard of Review
“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). 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. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima 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. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[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.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

Discussion

The filing of a complaint commences an action for purposes of the Alabama Rules of Civil Procedure but does not “commence” an action for purposes of satisfying the statute of limitations. Pettibone Crane Co. v. Foster, 485 So.2d 712 (Ala.1986). See also Dunnam v. Ovbiagele, 814 So.2d 282 (Ala.2001); Maxwell v. Spring Hill Coll, 628 So.2d 385, 336 (Ala.1993) (“ ‘This Court has held that the filing of a complaint, standing alone, does not commence an action for statute of limitations purposes.’ ” (quoting Latham v. Phillips, 590 So.2d 217, 218 (Ala.1991))). For statute-of-limitations purposes, the complaint must be filed and there must also exist “a bona fide intent to have it immediately served.” Dunnam, 814 So.2d at 237-38.

The trial court’s summary-judgment order contained the following findings:

“The court in Dunnam [v. Ovbiagele, 814 So.2d 232 (Ala.2001),] noted that what is required to ‘commence’ an action under Rule 3[, Ala. R. Civ. P.,] for statute of limitations purposes is ‘both the filing of a complaint and a bona fide intent to have it immediately served.’ Dunnam, 814 So.2d at [237-38]. The court further noted that the question of whether such a bona fide intent existed at the filing of the complaint is to be determined by an objective standard. Id. at 238. Applying that standard to Dr. Marco [one of the defendants] (whose address was known to the plaintiff), the court stated:
“ ‘[W]hen the complaint was filed on January 2, 2000, Dunnam had an address at which Dr. Marco could be served, and Dr. Marco was in fact served at that address on May 5, 2000. We are provided with no explanation, beyond an explanation of misunderstanding and oversight on the part of one of the assistants, as to why Dun-nam did not attempt to effect service at that address on January 2, 2000. We conclude that Dunnam’s failure in this regard, viewed objectively, evidences a lack of the required bona fide intent to have Dr. Marco immediately served.’
“Id. at 238-9.
“This Court finds that the same situation exists here. The Plaintiff[s] had the addresses of the various Defendants, had the summonses to be sent with a copy of the complaint, and actually served the Defendants at those addresses 131 days after filing the complaint. Although the Plaintiff[s] provided the addresses to the clerk here at the time of filing — which was not done in Dun-nam — that is a distinction without a difference since the Plaintiff[s], here, assumed the burden of service by process server. In Dunnam and here, something more was required by the Plaintiffs] after the filing of the complaint. In Dunnam, addresses had to be provided to the clerk to facilitate service. Here, a process server had to be secured to actually ... serve the summons and complaint.. The fact that so much time passed before that ‘something more’ was done evidences a lack of intent to immediately serve at filing. In the view of this Court, holding on to the clerk-issued summonses for 131 days before serving them (as here) is tantamount to withholding from the clerk a known address for 114 days (as in Dun-nam).
“Because the Plaintiffs] assumed the responsibility of serving the summons and complaint by process server, this case is different than Ex parte East Alabama Mental Health[-Mental Retardation Bd., Inc., 939 So.2d 1 (Ala.2006) ]. In that case, the plaintiffs request for certified mail placed the burden of service on the clerk under Rule 4(i)(2)(B), Ala. R. Civ. P, as was noted by the court. Nothing more was required under the rule. Indeed, the court concluded that because the plaintiff requested certified mail service, the plaintiff ‘did all that was required by the Rules of Alabama Civil Procedure to facilitate service[,]’ Ex parte East Alabama Mental-Health, 939 So.2d at 5, when he provided addresses of the defendants. That is a different situation than here. Had [these] Plaintiff[s] requested service by certified mail or personal service by sheriff, the outcome here would be different. Instead, because no service was made, or apparently attempted, for 131 days, this Court concludes that, viewed objectively, the record indicates a lack of the required bona fide intent to have the Defendants immediately served.
“Accordingly, the summary judgment motions of all Defendants are granted and this action is dismissed.”

(Emphasis original.)

On appeal, the plaintiffs contend that the facts of this case are more analogous to Ex parte East Alabama Mental Health-Mental Retardation Board, Inc., 939 So.2d 1 (Ala.2006), which they maintain requires a reversal of the trial court’s judgment in this case and that Dunnam, upon which the trial court relied, is distinguishable. We disagree.

As noted by the trial court, in Dunnam, the plaintiff, Dunnam, filed an action against three defendants. Dunnam possessed the address of one of the defendants, Dr. Marco, but did not have reliable addresses for the other two defendants. When the plaintiff ultimately supplied the circuit clerk with the addresses for the defendants — some 114 days after the complaint was filed — the circuit clerk mailed the complaint and summonses to all three defendants. Although this Court held that it was unclear whether the plaintiff had an intent to serve the two defendants whose addresses were unknown, we specifically held that there was no intent to serve Dr. Marco:

“However, when the complaint was filed on January 2, 2000, Dunnam had an address at which Dr. Marco could be served, and Dr. Marco was in fact served at that address on May 5, 2000. We are provided with no explanation, beyond an explanation of misunderstanding and oversight on the part of one of the assistants, as to why Dunnam did not attempt to effect service at that address on January 2, 2000. We conclude that Dunnam’s failure in this regard, viewed objectively, evidences a lack of the required bona fide intent to have Dr. Marco immediately served.”

Dunnam, 814 So.2d at 238-39. Even though the complaint was served on Dr. Marco within the time for service stated in Rule 4(b), Ala. R. Civ. P., the unexplained delay nevertheless evidenced a lack of intent to commence the action at the time it was filed.

East Alabama Mental Health also involved service by certified mail. The plaintiff there, unlike the plaintiff in Dun-nam, provided the proper addresses to the clerk for service by mail. The plaintiff went through the necessary steps of providing the clerk with the “summonses for service upon the defendants” and with the “necessary documents or information” for service of process. 939 So.2d at 2, 5. However, the particular practice of the clerk’s office of the Lee Circuit Court was to provide certified-mail cards for counsel to mail the summonses and complaints. Rule 4(i)(2), Ala. R. Civ. P., actually provided that the clerk would “mail the summonses and complaints,” and not the plaintiff, who in that case had “d[one] all that was required by the Rules of Alabama Civil Procedure to facilitate service.” 939 So.2d at 5. Nevertheless, the circuit clerk’s procedure had “apparently shifted the responsibility for mailing the summonses and complaints” to the plaintiff. 939 So.2d at 5. The plaintiff ultimately delayed two and one-half months before mailing the complaints, and the defendants sought a writ of mandamus directing that the case be dismissed. We held that, under the more rigid mandamus standard of review, although the plaintiffs tardiness “may ” be evidence of a lack of intent, because the plaintiff, under the facts of that case, made all the various efforts required by the rule to effectuate service by certified mail short of performing the clerk’s duty to place the summonses in the mail, the defendants had not established a clear legal right to relief.

Both Dunnam and East Alabama Mental Health indicate that a delay in serving the defendant can show the lack of intent to have the defendant served. East Alabama Mental-Health, 939 So.2d at 5 (noting that the plaintiffs delay “may be some evidence indicating that, at the time he filed the complaint, he lacked the intention to immediately serve the summons and complaint”); Dunnam, 814 So.2d at 239 (holding that the plaintiffs failure to “attempt to effect service at [the defendant’s] address” at the time the complaint was filed, “viewed objectively, evidence[d] a lack of the required bona fide intent to have [the defendant] immediately served”). The distinction between the two, besides the difference in the standards of review, is found in the fact that in East Alabama Mental Health the plaintiff performed all the tasks required by rule to effectuate service and wás tardy only in performing one of the tasks that by law was placed on the circuit clerk: placing the summonses in the mail. On the other hand, in Dun-nam, the plaintiff did less than what was required to provide service of process and was tardy in performing his own duty: actually providing the clerk with Dr. Marco’s address for mailing the summons. These two cases are not inconsistent, and the following rule can be drawn from the reasoning in both: “a bona fide intent to have [an action] immediately served” can be found when the plaintiff, at the time of filing, performs all the tasks required to serve process. This was the situation in East Alabama Mental Health. On the other hand, when the plaintiff, at the time of filing, does not perform all the tasks required to effectuate service and delays a part of the process, a lack of the required bona fide intent to serve the defendant is evidenced.

The instant case involves service by process server, not by certified mail. The plaintiffs elected this procedure and undertook the duty to obtain a process server. At the time of filing, and for over four months thereafter, the plaintiffs failed to do so. Like the plaintiff in Dunnam, the plaintiffs here were tardy in performing the steps required of them to effectuate service. This unexplained failure to perform tasks required to effectuate service at the time of filing, “viewed objectively, evidences a lack of the required bona fide intent to have [the defendants] immediately served.” 814 So.2d at 239. This lack of intent was unrebutted in the trial court.

Additionally, the plaintiffs make numerous arguments regarding whether they were entitled to an extension of time to serve their complaint under Rule 4(b), Ala. R. Civ. P. However, the summary judgment is premised on the plaintiffs’ failure to commence the action for statute-of-limitations purposes; Rule 4(b) is immaterial to this analysis. The plaintiffs’ arguments that the trial court erred with respect to this issue are without merit.

Conclusion

The plaintiffs have not demonstrated that the trial court erred in entering a summary judgment in favor of the defendants; therefore, the judgment of the trial court is affirmed.

AFFIRMED.

LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

By affirming the trial court’s summary judgment and thereby approving the trial court’s reliance on Dunnam v. Ovbiagele, 814 So.2d 232 (Ala.2001), the main opinion has altered the longstanding rule that, to “commence” an action within the applicable statutory limitations period, a plaintiff must have a “bona fide intent to have the complaint immediately served,” 814 So.2d at 238, and this intent must be present at the time the action is commenced, i.e., at the time the complaint is filed. See Ex parte East Alabama Mental Health-Mental Retardation Bd., Inc., 939 So.2d 1, 4-5 (Ala.2006) (holding that the defendants were not entitled to a writ of mandamus directing the entry of a summary judgment when the materials submitted to this Court contained evidence indicating that, at the time th.e complaint was filed, the plaintiff intended to serve the complaint); Dunnam, 814 So.2d at 237-39 (determining whether the evidence demonstrated that “at the time of filing the complaint” the plaintiff intended to serve various defendants). Cf.■ Rule 3, Ala. R. Civ. P. (“[A] civil action is commenced by filing a complaint with the court.”); Ward v. Saben Appliance Co., 391 So.2d 1030, 1035 (Ala.1980) (“We hold that in the present case the action was not ‘commenced’ when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served.” (emphasis added)). Therefore, I respectfully dissent.

In Dunnam, the plaintiff sued three medical doctors: Dr. Luis Marco, Dr. Aya-sha Meloukhia, and Dr. Fortunate Ovbia-gele. This Court held:

“[W]hen the complaint was filed on January 2, 2000, [the plaintiff] had an address at which Dr. Marco could be served, and Dr. Marco, was in fact served at that address on May 5, 2000. We are provided with no explanation, beyond an explanation of misunderstanding and oversight ..., as to why [the plaintiff] did not attempt to effect service at that address on January 2, 2000. We conclude that [the plaintiffs] failure in this regard, viewed objectively, evidences a lack of the required bona fide intent to have Dr. Marco immediately served.”

814 So.2d at 238-39.

However, in Dunnam, the delay in serving the two other defendants, Dr. Melouk-hia and Dr. Ovbiagele, was exactly the same length as the delay in serving Dr. Marco. The court clerk testified that, “at the time of filing,” 814 So.2d at 238, plaintiffs counsel stated that he did not know the address of Dr. Meloukhia or Dr. Ovbia-gele, but that he would find and supply those address “for service on the defendants.” Therefore, as to Dr. Meloukhia and Dr. Ovbiagele, this Court held:

“[U]nder the circumstances of this case we cannot conclude that, as a matter of law, at the time of filing [the plaintiff] lacked that requisite intent. There is a genuine issue of material fact concerning [the plaintiffs] intent to effect service of process on Dr. Meloukhia and Dr. Ovbiagele, and the resolution of the limitations issue as to them is not appropriate on a summary-judgment motion.”

814 So.2d at 238.

Thus, in Dunnam, the only difference between affirming and reversing the summary judgment was whether, at the time of filing, the plaintiff evidenced a bona fide intent to immediately serve the defendants.

The operative facts in the present case are comparable to those pertaining to Dr. Meloukhia and Dr. Ovbiagele in Dunnam, and unlike those pertaining to Dr. Marco. At the time Precise filed her complaint, she provided the clerk’s office with everything necessary for immediate service on all defendants. At the time of filing, everything Precise did was consistent with an intent to serve the defendants immediately. At the time of filing, Precise indicated that she intended to perfect service through a process server. Cf. Dunnam, 814 So.2d at 238-39 (holding that an issue of fact precluded a summary judgment on statute-of-limitations grounds when, at the time of filing the complaint, the plaintiff indicated the intent to obtain service on two defendants, but failed to perfect service on those defendants until nearly six months after the complaint was filed). However, Precise did not obtain service until 131 days after she filed the complaint. Given Precise’s acts and stated intent at the time of filing, an issue of fact exists as to whether, at the time she filed the complaint, she intended to obtain timely service.

The operative facts in this case are also similar to those in Ex parte East Alabama Mental Health-Mental Retardation Board, Inc., supra. In East Alabama, the plaintiff provided the clerk’s office with all the information necessary for immediate service. One additional step was required of the plaintiff to effectuate immediate service: the plaintiff had to place the summonses and complaints in the mail in a timely manner. When the complaints were not served for two and a half months, the defendants moved for a summary judgment, arguing that the delay following the filing of the complaint indicated the plaintiffs lack of intent to serve process at the time of filing the complaint. The trial court rejected that argument, and the defendants petitioned this Court for mandamus review. This Court held that the record contained “evidence suggesting] that [the plaintiff] intended to serve process upon the defendants when he filed the complaint; he did all that was required by the Rules of Alabama Civil Procedure to facilitate service, short of placing the summonses and complaints in the mail.” 939 So.2d at 5. The Court further noted that, although a delay, like the delay here in dispatching the special process server, “may be some evidence indicating that, at the time [the plaintiff] filed the complaint, he lacked the intention to immediately serve the summons and complaint,” East Alabama, 939 So.2d at 5 (emphasis added), such evidence would have at most created an issue of fact. Thus, the existence of the delay, in and of itself, did not entitle the defendants to a writ of mandamus directing the trial court to enter a summary judgment.

Similarly, when she filed the complaint, Precise did everything required of her by the Alabama Rules of Civil Procedure, and she indicated that she intended to perfect service via process server. All that was required of her after that point was to supply the summonses and complaints to a process server and to see that service was perfected. Thus, as in East Alabama, the record in this case gives rise to competing factual inferences regarding whether, at the time of filing, Precise had an intent to perfect service in a timely manner. Summary judgment was therefore not appropriate. See Dunnam, supra; East Alabama, supra. Accordingly, I respectfully dissent.

      . The record reflects that there were no unsuccessful service attempts on any of the named defendants between the date the complaint was filed and January 16, 2009.

      . Rule 4(i)(2)(B), as it existed in 2004, stated that ”[t]he clerk shall ... place the sealed envelope in the United States mail....” Subsequent amendments to the rule in 2008 added the procedure now found in Rule 4(i)(2)(B)(ii), which allows counsel to mail the summonses for the clerk.

      . Because this case involves service by process server, the fact that the plaintiffs knew and disclosed the defendants’ addresses to the circuit clerk is irrelevant — the circuit clerk was not charged with a responsibility to act on those addresses.

      . Absent a showing of good cause for the delay, Rule 4(b), Ala. R. Civ. P., requires service on a defendant within 120 days of the filing of the complaint.

      . The main opinion attempts to distinguish East Alabama on the ground that that case turned on the "more rigid mandamus standard of review,” which requires that a petitioner establish a "clear” legal right to relief. 60 So.3d at 233. I am unpersuaded by this distinction. The petitioner in East Alabama sought relief from the denial of a motion for a summary judgment. Summary judgment "shall be rendered forthwith” when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. In reviewing a summary judgment, this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Dunnam v. Ovbiagele, 814 So.2d at 236. Therefore, unless the law is unsettled, being entitled to a summary judgment is no different from being "clearly” entitled to a summary judgment. The law is not unsettled in this case, and it was not unsettled in East Alabama. Practically speaking, the standard of review is the same in both cases.

      . While recognizing the possibility that the delay could give rise to an inference of an intent to delay service, this Court held that the "record [was] devoid of any indication that at the time that [the plaintiff] filed his complaint he did not intend to serve process upon” the defendants, 939 So.2d at 4, and that the evidence "suggestfed]” an intent to serve process on the defendants when the plaintiff filed the complaint. 939 So.2d at 5. Thus, East Alabama contains conflicting statements as to whether the record was "devoid” of evidence of an intent to delay service or whether it contained conflicting evidence on that point. Either way, however, the defendants had not demonstrated that they were entitled to a summary judgment. See Rule 56(c)(3), Ala. R. Civ. P. (summary judgment is appropriate when there exists "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law”).