text:
    Demetrius McNUTT, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00788-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Demetrius McNutt, appellant, pro se.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   ISHEE, J., for the Court:

¶ 1. In April 2009, Demetrius McNutt pleaded guilty in the Jackson County Circuit Court to murder and felony evading arrest. McNutt was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC) for murder and five years for felony evading arrest, with the sentences to run concurrently. In March 2010, McNutt filed a motion for post-conviction relief (PCR) in the circuit court, claiming that he had received ineffective assistance of counsel and that his guilty pleas were involuntary. The circuit court denied McNutt’s PCR motion on April 16, 2010. McNutt then filed the instant appeal. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS

¶ 2. In 2005, McNutt was convicted in Alabama of possession of a controlled substance and was released on probation. In October 2007, McNutt was driving in Jackson County, Mississippi, when he was pursued by police officers who motioned for him to pull over his vehicle. McNutt refused to comply with the officers’ requests; instead, he attempted to evade the officers. McNutt ultimately crashed into a telephone pole and was caught while trying to escape on foot near the scene of the accident. Because McNutt was still on probation, he was charged with felony evasion and released on bond pending a trial.

¶ 3. Approximately six months later, on the night of April 13, 2008, McNutt received a phone call from Christopher Coleman, informing him that Coleman had a robbery lined up that evening in which McNutt had previously agreed to participate. Subsequently, Coleman drove to McNutt’s house to pick him up, and McNutt entered the vehicle armed with a .22-caliber handgun. McNutt then hid himself from view by lying down on the backseat of Coleman’s car.

¶ 4. Coleman drove them to meet Brent Jackson, who was driving a vehicle Coleman and McNutt knew contained drugs and money. Coleman met Jackson outside of an undisclosed building and stopped the car. McNutt exited the car and demanded that Jackson give McNutt the drugs and money Jackson had in his vehicle. McNutt testified that Jackson charged at him, and McNutt shot him twice. Jackson ultimately died of the gunshot wounds.

¶ 5. Coleman fled the scene in his car, and McNutt left in Jackson’s vehicle. Upon reconvening, Coleman and McNutt examined the drugs and $5,000 in cash from Jackson’s car. McNutt gave Coleman $250, and he gave Jackson’s vehicle away. He then obtained a different vehicle and fled with the drugs and remaining money. Sometime later, the police became aware of McNutt’s location and arrested him on the charge of felony murder, or capital murder.

¶ 6. The State agreed to reduce the charge from capital murder to simple murder. On April 28, 2009, the circuit court held an arraignment hearing on the murder charge and the felony-evasion charge. The circuit court extensively questioned McNutt regarding his understanding of the charges and his recollection of the events on April 13, 2008. McNutt recounted the events of the evening and affirmed that he fully understood the charges against him and the consequences of pleading guilty. McNutt then pleaded guilty to murder and felony evasion. The circuit court sentenced McNutt to life in the custody of the MDOC for the murder charge and five years in the custody of the MDOC for the felony-evasion charge, with the sentences to run concurrently.

¶ 7. McNutt timely filed a PCR motion in the circuit court alleging ineffective assistance of counsel and alleging he gave involuntary guilty pleas. The circuit court denied McNutt’s PCR motion, which McNutt now appeals. Finding no error, we affirm.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 8. It is well settled that in order for a defendant to prevail on an ineffective-assistance-of-counsel claim, he or she must “show by a preponderance of the evidence (1) that counsel’s performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.App.2005)). Additionally, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Finally, “a presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)).

¶ 9. McNutt asserts that his counsel was ineffective for failing to investigate the facts and circumstances of the murder charge independently and introduce exculpatory evidence demonstrating that Coleman was the mastermind of the crime, and not McNutt. McNutt further claims that his lawyer’s failure to investigate is reversible error because he should have been charged with manslaughter since he only shot Jackson after Jackson charged at him. Finally, McNutt states that his counsel was ineffective by failing to interview Coleman and scout the scene of the crime for other potential eyewitnesses.

¶ 10. In support of his claim that the killing of Jackson was manslaughter due to a theory of self-defense, McNutt states in his appellate brief that his counsel “could have discovered that [McNutt] was at home [,] and that Coleman brought the victim to [McNutt’s] residence and involved [McNutt] in the crime.” Despite McNutt’s repeated assertions on appeal that he was merely an innocent bystander of the crime, McNutt’s testimony to the contrary at his guilty-plea hearing contradicts this claim. In particular, McNutt stated that he had previously discussed the robbery in question with Coleman, and Coleman called him on the night of April 13, 2008, to inform him that the circumstances were prime to complete the robbery of Jackson’s vehicle. McNutt further testified that he voluntarily got into Coleman’s car with a .22-caliber handgun and hid himself from view in anticipation of meeting up with Jackson to rob him. McNutt stated that he exited Coleman’s vehicle with his gun and told Jackson: “Give it up. Give me what you got.” Jackson then charged McNutt, and McNutt admitted that he shot Jackson twice, “[o]ne in the shoulder and the other one in the chest.” Finally, when asked to describe Coleman’s involvement in the crime, McNutt stated that Coleman’s job was to set up Jackson and that McNutt and Coleman had talked prior to the night of the incident about how the robbery was to be committed.

¶ 11. As such, McNutt cannot now refute the testimony he gave under oath with mere allegations that his counsel failed to investigate the case properly. McNutt explained in full detail for the circuit court exactly what happened on the night of the murder, and he admitted he killed Jackson during the commission of an armed robbery. This Court has stated: “Great weight is given to statements made under oath and in open court during sentencing.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003) (quoting Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999)). Furthermore, “ ‘the trial court may dismiss a motion for post-conviction relief if the [movant] fails to submit affidavits in support of his allegations’ of ineffective assistance; his own bare assertions are insufficient.” Mason v. State, 42 So.3d 629, 633 (¶ 11) (Miss.Ct.App.2010) (quoting Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss.Ct.App.2009)).

¶ 12. Finally, McNutt’s testimony reflects that he was aware of the charges and the consequences of pleading guilty to the charges before he entered his guilty pleas. The circuit court thoroughly explained the process of pleading guilty, and the court also explained the alternative of sending the case to trial, as well as the potential outcomes of both options. As such, McNutt has failed to prove his ineffective-assistance-of-counsel claims. We find this issue is meritless.

II. Voluntariness of Guilty Pleas

¶ 13. When reviewing the volun-tariness of guilty pleas, an appellate court “will not set aside findings of a trial court sitting without a jury unless such findings are dearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss.Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶ 24) (Miss.1999)). Additionally, “[t]he burden of proving that a guilty plea is involuntary is on the defendant and must be proven by preponderance of the evidence.” Id. (citation omitted). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009).

¶ 14. Notwithstanding the fact that McNutt bases his legal arguments on federal rules of criminal procedure and federal law, as opposed to the applicable state court rules and law, he argues that the record lacks a factual basis to support his guilty pleas. Again, having reviewed the transcript from the arraignment, it is clear that McNutt’s assertions that “the [circuit] court merely had the prosecution to relate the charges in which [McNutt] was to plead guilty” is blatantly false. The circuit court extensively questioned McNutt about the events on the night in question, and the circuit judge instructed McNutt to tell the circuit court, in his own words, exactly what happened on that night. McNutt complied and described in exact detail his commission of Jackson’s murder and his felony evasion.

¶ 15. Because it is evident from the record that McNutt voluntarily and intelligently admitted to committing both crimes describing his part in them in detail, his argument that the record lacks factual bases for his guilty pleas fails. As stated previously, the record also supports the circuit court’s exhaustive explanation and questioning of McNutt regarding his involvement in the crimes, the consequences of the crimes, and McNutt’s options to plead guilty or set the case for trial. Accordingly, we find this issue is meritless.

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

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


source: Caselaw Access Project

author: ISHEE, J., for the Court:

license: Public Domain

text:
    Will Robertson BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01759-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Will Robertson Brown, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   ISHEE, J., for the Court:

¶ 1. Will Robertson Brown pleaded guilty to arson in the second degree on September 12, 1986, and was sentenced to seven years in the custody of the Mississippi Department of Corrections (MDOC). Brown appeals, more than twenty years later, claiming that his plea was involuntary and that he received ineffective assistance of counsel. The Jackson County Circuit Court denied his motion for post-conviction relief (PCR). Finding no error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brown is currently serving an enhanced sentence in federal prison in Marion, Illinois. On September 12, 1986, he entered guilty pleas in the circuit court to charges of burglary and larceny, as well as arson in the second degree. Brown was sentenced to serve seven years on each charge, with all sentences to run concurrently.

¶ 3. More than twenty years later, on May 11, 2010, Brown filed a PCR motion, challenging his guilty pleas to burglary and larceny. A week later, on May 17, 2010, Brown filed another PCR motion in the same court, challenging the voluntariness of his guilty plea for arson in the second degree. The circuit court summarily denied both of Brown’s PCR motions on the grounds that they were proee-durally time-barred. Brown appealed. The issue on the present appeal concerns only the voluntariness of his guilty plea for arson in the second degree. Brown has filed another appeal for relief regarding the burglary and larceny pleas under a separate cause.

STANDARD OF REVIEW

¶ 4. We will not disturb a circuit court’s denial of a PCR motion unless the decision is found to be clearly erroneous. Edmondson v. State, 17 So.3d 591, 594 (¶ 5) (Miss.Ct.App.2009). We review questions of law de novo. Id.

DISCUSSION

¶ 5. As Brown pleaded guilty, he had three years from the entry of the judgment of his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2011). Claims made outside of the three-year statute of limitations must raise one of the exceptions found in Mississippi Code Annotated section 99-39-5(2)(a)-(b).

¶ 6. Brown pleaded guilty to arson and was sentenced on September 12, 1986, but he waited more than twenty years to file a PCR motion. Clearly, his PCR motion is time-barred. Brown also failed to claim any of the listed exceptions to the procedural bar. He makes no showing of any of the exceptions set out by law that would except the motion from the statute of limitations. Accordingly, this issue is procedurally barred.

¶ 7. Moreover, Brown is currently serving a sentence in federal prison in Marion, Illinois. Post-conviction relief applies only to a prisoner who is in the custody of the State, serving a sentence imposed by a Mississippi court. Smith v. State, 914 So.2d 1248, 1250 (¶ 7) (Miss.Ct.App.2005) (citations omitted). Brown has already served the time required for his guilty plea for arson in Mississippi. He is no longer in the custody of the MDOC. Thus, he is not entitled to relief under Mississippi’s PCR statute.

¶ 8. Because Brown is not currently in the custody of the MDOC and is also procedurally time-barred from filing a PCR motion, we affirm the circuit court’s denial of his PCR motion.

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

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


author: IRVING, P.J., for the Court:

text:
    MISSISSIPPI BAPTIST MEDICAL CENTER and Reciprocal of America (Mississippi Insurance Guaranty Association a/k/a "Miga"), Appellants v. Billy MURPHY, Appellee.
    No. 2010-WC-02019-COA.
    Supreme Court of Mississippi.
    Oct. 11, 2011.
    Douglas R. Duke, Jackson, attorney for appellants.
    Bill Waller Sr., attorney for appellee.
   IRVING, P.J., for the Court:

¶ 1. This appeal arises out of a workers’ compensation claim filed by Billy Murphy against Mississippi Baptist Medical Center (Baptist). The Rankin County Circuit Court affirmed the judgment of the Mississippi Workers’ Compensation Commission, which ordered Baptist to pay one-half of the costs of gastrointestinal treatment that Murphy received and one-half of the cost of a diseogram procedure that Murphy had undergone. Feeling aggrieved, Baptist appeals and contends that the Commission improperly focused on the testimony of Murphy’s treating physician and that the Commission erred in ordering Baptist to pay one-half of Murphy’s medical bills under Mississippi Code Annotated section 71-3-37 (Rev.2011).

¶2. We conclude that Baptist has not appealed from a final judgment, as the Commission merely ordered Baptist to pay certain expenses. The Commission did not make any final adjudication as to the merits of Murphy’s claim. Accordingly, the circuit court lacked jurisdiction to hear the appeal. Therefore, we vacate the circuit court’s judgment and remand this case to the Commission for further proceedings consistent with its order.

FACTS

¶ 3. Murphy was working for Baptist in January 2000 when he injured his back while lifting a machine over his head. Approximately one year later, while working for River Oaks Hospital, Murphy fell on the floor and sustained further injuries. As a result of his injuries, Murphy took a variety of painkillers in the years following the injuries. In 2005 and 2006, Murphy was treated for severe gastrointestinal issues. Dr. Ron Williams, who had been treating Murphy for his pain, testified by deposition that the painkillers had substantially contributed to Murphy’s need for gastrointestinal treatment.

¶4. Murphy filed claims against both Baptist and River Oaks. The administrative judge (AJ) found that Murphy’s gastrointestinal issues were not related to the injuries he suffered while working for Baptist and River Oaks. Murphy appealed to the Commission, which issued an order in 2010, amending the findings of the AJ and requiring Baptist and River Oaks to share the costs of Murphy’s gastrointestinal treatments and a diseogram procedure. However, the Commission’s order did not make any finding as to who would ultimately be liable for the costs of any treatments. In fact, the Commission explicitly ordered both Baptist and River Oaks to “share equally in the payment of the medical benefits awarded herein until it is determined which party is solely liable, at which time the liable Employer/Carrier must reimburse the other non-liable Employer/Carrier. ...” The Commission then remanded the case to the AJ for additional proceedings. However, Baptist filed the present appeal, and there is no indication of any further proceedings before the AJ.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. It is clear that the Commission has not issued a final judgment or order in this case. In Superior Manufacturing Group, Inc. v. Crabtree, 62 So.3d 992 (Miss.Ct.App.2011), this Court addressed another case where the Commission did not enter a final judgment. In Crabtree, the Commission entered an order allowing Bill Crab-tree to reopen his claim and remanding the matter to the AJ. Id. at 992 (¶ 1). Superi- or Manufacturing Group, Inc. then filed an appeal of the Commission’s order. Id. We dismissed for lack of jurisdiction, noting that “interlocutory orders by the ... Commission are not appealable.” Id. at 995 (¶ 11) (quoting Cunningham Enters., Inc. v. Vowell, 937 So.2d 32, 34 (¶ 3) (Miss.Ct.App.2006)); see also Kukor v. Ne. Tree Serv., Inc., 992 So.2d 1242, 1244 (¶ 8) (Miss.Ct.App.2008) (holding that the circuit court lacked jurisdiction over an appeal from a Commission order remanding the case to the AJ for a determination of the claimant’s average weekly wage).

¶ 7. Likewise, the order entered in this case was not a final judgment of the Commission; therefore, Baptist's appeal is interlocutory. Accordingly, we hold that the circuit court lacked jurisdiction; therefore, we vacate the circuit court’s judgment and remand this case to the Commission for further proceedings consistent with its order.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS VACATED, AND THIS CASE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COMMISSION’S ORDER. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: PARKER, Justice.

text:
    Ex parte TYSON CHICKEN, INC. (In re Anna Ruth Guyton v. Tyson Chicken, Inc.).
    1090866.
    Supreme Court of Alabama.
    April 15, 2011.
    Joseph H. Driver, Glenn E. Ireland, and Debra J. Krotzer of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    Leon Garmon, Gadsden, for respondent.
   PARKER, Justice.

Tyson Chicken, Inc. (“Tyson”), petitioned this Court for a writ of mandamus directing the Etowah Circuit Court to transfer the worker’s compensation action brought by Anna Ruth Guyton to the Marshall Circuit Court where, it- says, venue is proper.

Facts and Procedural History

The facts of this case, as described by Tyson, are undisputed. Guyton, who lived in Etowah County, was an employee of Tyson’s at its production facility in Marshall County. On August 5, 2009, she was apparently injured on the job, and she subsequently filed a claim for worker’s compensation benefits on August 19, 2009, in the Etowah Circuit Court.

Tyson filed its answer on August 21, 2009, asserting, among other things, that venue in Etowah County was improper. On September 15, 2009, Tyson filed a motion to transfer the action to Marshall County. Guyton argued in response that her residence in Etowah County made venue there proper.

Tyson’s motion was denied on October 26, 2009. The trial court’s order reads in full: “It appearing that [Guyton] resides in Etowah County, [Tyson’s] Motion to Transfer Venue is hereby DENIED.” Tyson petitioned the Court of Civil Appeals for a writ of mandamus. That court denied the petition without an opinion on March 11, 2010. Ex parte Tyson Chicken, Inc. (No. 2090197, March 11, 2010), — So.3d - (Ala.Civ.App.2010) (table). Tyson subsequently petitioned this Court for a writ of mandamus directing the Etowah Circuit Court to transfer the case to the Marshall Circuit Court. We grant the petition and issue the writ.

Standard of Review

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).
“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).

As the party moving for the transfer, Tyson has the burden of demonstrating that venue in Etowah County was improper. Once Tyson made that prima facie showing, the burden then shifted to Guy-ton to rebut Tyson’s prima facie showing. See Ex parte Movie Galleny, Inc., 31 So.3d 104, 109 (Ala.2009).

Discussion

The sole issue in this case is whether Tyson does business in such a way in Etowah County as to make venue proper there. Venue in the courts of this State is a matter of statute, not judicial discretion. See § 6-3-1 et seq., Ala.Code 1975. Tyson and Guyton agree that venue in this case is governed by § 6-3-7(a) Ala. Code 1975, which states:

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

The parties agree that all the events related to this litigation occurred in Marshall County, where Guyton was employed by Tyson in its production facility, and that venue in Marshall County is therefore proper under § 6-3-7(a)(l). They also agree that Tyson’s principal place of business in Alabama is in Calhoun County and that venue would also be proper in that county under § 6 — 3—7(a)(2). Finally, it is undisputed that Guyton is a resident of Etowah County, where she filed her claim. The only issue before this Court is whether Tyson does business by agent in Eto-wah County within the language of § 6-3-7(a)(3) and, thus, whether venue under subsection (a)(3) is proper in Etowah County.

The undisputed facts in this case, as presented by Tyson and agreed to without exception by Guyton, show no activity by Tyson in Etowah County sufficient to meet this standard. Tyson’s principal place of business in Alabama is in Calhoun County; its production facility is in Marshall County. Tyson specifically claims that it does no business by agent in Eto-wah County, a claim Guyton did not refute before the trial court. Guyton argues that placing a product into the intrastate stream of commerce, hiring employees who reside in Etowah County, and having an agent for service of process in the State are sufficient to meet the statutory requirement of doing “business by agent in the county of the plaintiffs residence” and therefore makes venue proper in Etowah County.

Guyton argues that Tyson puts its product, processed chicken, into the intrastate stream of commerce with the knowledge that some of that product will almost certainly appear for sale at retail locations in Etowah County. Guyton’s stream-of-commerce argument is an incorrect understanding of the venue statute, confusing venue with the due-process standards for personal jurisdiction. In support of her argument, Guyton cites no cases regarding venue. She instead cites famous cases regarding personal jurisdiction, including Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Because jurisdiction is not contested here, however, these cases are inapt.

Neither the language of § 6-3-7(a)(3) nor the decisions of this Court support Guyton’s argument. The language of the statute — “does business by agent in the county of plaintiffs residence” — implies more than the undirected arrival in the county of the plaintiffs residence of products produced by the defendant corporation; this Court has previously interpreted that language to mean that the corporation, “with some regularity, ... performs there some of the business functions for which it was created.” Ex parte South-Trust Bank of Tuscaloosa County, N.A., 619 So.2d 1356, 1358 (Ala.1993). There is, by contrast, no evidence indicating that Tyson performs any business functions at any time in Etowah County. Guyton does not even allege that those entities selling Tyson’s products are agents of Tyson through whom it does business, as required by the language of the statute.

Guyton asks this Court to consider expanding venue to make venue proper in any county in which a court has personal jurisdiction, but the legislature, not this Court, is the proper forum to consider such changes to the venue statute as Guy-ton suggests. See § 43, Ala. Const. 1901 (“In the government of this state ... the judicial [department] shall never exercise the legislative and executive powers, or either of them.... ”).

Guyton’s other arguments are equally unconvincing. First, the fact that Tyson has a registered agent in the State cannot be sufficient to make venue in Eto-wah County proper because, if that were so, venue for an action against a corporation would then be proper in any and every county, and the statute would be rendered meaningless. See Chism v. Jefferson County, 954 So.2d 1058, 1074 (Ala.2006) (“ ‘It is presumed that the legislature does not enact meaningless, vain, or futile statutes.’ ” (quoting Druid City Hosp. Bd. v. Epperson, 378 So.2d 696, 699 (Ala.1979))). Second, our decisions do not indicate that hiring employees constitutes doing business by their employer in the county where those employees choose to live; venue is dependent on the decisions of the defendant corporation, not on the personal choices of its employees independent of their employment. See, e.g., Ex parte Greenetrack, Inc., 25 So.3d 449, 454 (Ala.2009) (holding that an inter-county bus service transporting gaming customers from Pickens County to Greene County, where gaming facility was located, was “ ‘incidental to [Greenetrack’s] corporate business functions’ ” and therefore did not constitute “doing business” in Pickens County as those words were used in the venue statute, even though Greenetrack also had employees in Pickens County and advertised there (quoting Ex parte Scott Bridge Co., 834 So.2d 79, 81-82 (Ala.2002))). Similarly, the consideration of the appropriate weight to be given to the plaintiffs residency in choosing between multiple appropriate venues does not arise in this case, because, as already discussed, Etowah County is not a proper venue. Finally, the fact that the courthouse in Etowah County and the courthouse in Marshall County are only 30 miles apart and the parties and their counsel would only have to travel a relatively short distance to Etowah County does not make venue proper in a county where the requirements of the venue statute are not met.

We therefore conclude that venue in Etowah County was improper as to this case and that the trial court erred in refusing to transfer the case to Marshall County. Tyson has a legal right to have the case transferred to another circuit where venue was proper. Because Tyson properly invoked the jurisdiction of this Court in its petition, the writ of mandamus will issue in this case.

Conclusion

Venue in this State is controlled by statute. Although, as Guyton points out, it is not “set ... into stone,” the proper forum for any change in the law of venue is the legislature, not this Court. In the case before us today, application of the language of the venue statute, as previously interpreted by this Court, to the facts before us can lead to only one conclusion: venue is improper in Etowah County and is proper in Marshall County. Tyson has established a clear legal right to have this case transferred. Therefore, we grant the petition and issue the writ directing the Etowah Circuit Court to transfer this case to the Marshall Circuit Court.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, SHAW, and WISE, JJ., concur.


text:
    FEDERAL CREDIT, INC. v. Greg FULLER.
    1051726.
    Supreme Court of Alabama.
    April 15, 2011.

      C. Rena Webb, Huntsville, for appellant.
    Submitted on appellant’s brief only.
   PARKER, Justice.

Federal Credit, Inc. (“Federal Credit”), appeals from a judgment entered on a jury verdict in favor of Greg Fuller on Fuller’s claim against Federal Credit alleging defamation. We reverse the Marshall Circuit Court’s judgment and render a judgment for Federal Credit.

I. Facts and Procedural History

Before us on this appeal are only a brief filed by Federal Credit and the record on appeal; accordingly, for purposes of this appeal, we will base our decision on the facts as stated in Federal Credit’s brief. See Johnson v. Stewart, 854 So.2d 544, 551-52 (Ala.2002) (opinion on application for rehearing) (“Where the appellee makes no correction or addition to the appellant’s statement of the facts, ‘[t]he statements made by appellant ... will be taken to be accurate and sufficient for decision.’ ” (quoting Taylor v. First Nat’l Bank of Tuskaloosa, 279 Ala. 624, 628, 189 So.2d 141, 144 (1966))); Grief Bros. Cooperage Corp. v. Johnson, 31 Ala.App. 552, 553, 19 So.2d 557, 558 (1944) (“ ‘Where the facts stated in brief of appellant fully present the errors, and the appellee does not challenge such statement of the record, and point out the omissions or inaccuracies, we are fully authorized by [this Court’s] rules to accept as true appellant’s statement of the record.’ ” (quoting New York Life Ins. Co. v. Mason, 236 Ala. 44, 49, 180 So. 775, 780 (1938))).

On September 14, 2001, Federal Credit and Fuller entered into a “Deferred Presentment Service Agreement” (“the contract”), under which Fuller borrowed $1,000 from Federal Credit. Pursuant to the contract, Fuller provided Federal Credit with two checks in the amount of $500 each, plus one check in the amount of $300 for a “service fee”; under the terms of the contract, Federal Credit agreed to hold Fuller’s checks until the “presentment date,” i.e., the date payment was due under the contract, October 5, 2001. Fuller, however, failed to pay the amount due under the contract on or before the presentment date. Shortly thereafter, Federal Credit presented Fuller’s checks to the bank on which the checks were drawn; the bank returned each of Fuller’s checks to Federal Credit stamped “account closed” and “payment stopped.”

On October 8, 2001, Federal Credit mailed Fuller a document styled as a “10 Day Legal Notice” (“the notice”); Federal Credit addressed the envelope containing the notice to Fuller’s employer, Charter Communications (“Charter”), with “Mr. Fuller” handwritten in significantly smaller letters immediately below “Charter Communications.” When the notice arrived at Charter, three or four other employees of Charter, including Fuller’s boss, Tom Salters, viewed the notice before Fuller was called into Salters’s office and presented with the notice. The notice stated:

“This statutory notice is provided pursuant to Section 13A-9~13[.]2 of the Code of Alabama.[] You are hereby notified that a check, apparently issued by you, has been dishonored. Pursuant to Alabama Law, you have ten (10) days from receipt of this notice to render payment of the full amount of such check or instrument plus service charges, the total amount due being $1573.00. Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that you delivered the instrument with intent of [sic] defraud and may turn over the dishonored check and all other available information relating to this incident to the proper authorities for criminal and/or civil prosecution. A photocopy of your bad check which will be part of the evidence presented against you should this matter be transferred to the proper authorities, is attached for your review. This company utilizes the services of the District Attorney Worthless Check Unit and District Court System.”

(Boldface type and emphasis in original.) Copies of Fuller’s two checks for $500 and one check for $300 appeared at the bottom of the notice. Federal Credit had “stamped” the notice numerous times, including as follows: “DISTRICT COURT FILE EVIDENCE DATA BASE FILE # 8802 ds” next to each check; and “APPROVED OCT 8 2001 FOR PICKUP TO ALABAMA DISTRICT COURT AUTHORIZATION CODE: 8805-d.s.” (Capitalization in original.)

On October 10, 2001, Federal Credit filed a statement of claim in the small-claims division of the Marshall District Court, seeking a judgment in the amount of $1,573, plus court costs. On December 17, 2001, the district court entered the following notation on the case-action-summary sheet: “[Fuller] enters consent judgment for $1500.00 plus eost[s] for the purpose of appeal to circuit court to file counter-claim in excess of jurisdictional amount of small claims court.” On the same day, Fuller appealed to the Marshall Circuit Court.

In August 2002, Fuller filed in the circuit court a counterclaim against Federal Credit, seeking compensatory damages in the amount of $50,000 and punitive damages in the amount of $5,000,000 on claims alleging defamation and “violation of the [Alabama] Small Loan[] Act and usury.” The case was tried before a jury beginning on April 12, 2006. At the close of Fuller’s case-in-chief, Federal Credit orally moved the circuit court for a “directed verdict,” arguing, in sum, that Fuller had failed to prove the elements of either defamation or usury; the circuit court partially granted Federal Credit’s motion, dismissing Fuller’s usury claim.

On April 13, 2006, the jury returned a verdict in favor of Fuller on Fuller’s defamation claim, awarding Fuller compensatory damages in the amount of $25,000 and punitive damages in the amount of $35,000. On May 12, 2006, Federal Credit filed a motion for a new trial; a motion for remittitur; and a “renewal motion for a judgment as a matter of law.” In the last of those motions, Federal Credit argued that it was entitled to a judgment as a matter of law because, it said:

“Greg Fuller alleges that a letter being sent to him via his employer seeking repayment of a debt defamed him. Although indebtedness may be defamatory, the fact that he owed Federal Credit ... was absolutely true. Truth is an absolute defense to defamation. Ripps v. H[e]rrington, 241 Ala. 209, 1 So.2d 899 (1941).
“All statements in the communication were true. The letter states that Federal Credit ... utilized the services of the District Court System to collect on unpaid accounts. This statement is true and is not defamatory. In fact, Federal Credit ... did just that by initiating this cause of action. The letter states that Federal Credit ... utilizes the services of the District Attorney Worthless Check Unit. This also is true. This statement recites company policy and does not defame Greg Fuller. Pursuant to Alabama law, a District Attorney can be utilized to collect on deferred presentments wherein the account has been closed or no account is in existence.
“The letter also states ‘DISTRICT COURT FILE EVIDENCE DATA BASE # 8802 ds’ and ‘Approved OCT 8 2001 FOR PICKUP TO ALABAMA DISTRICT COURT AUTHORIZATION CODE: 8805-d.s.’ These statements are true. These notations were placed on the letter for company use. These statements do not defame Greg Fuller.”

Federal Credit’s postjudgment motions were denied by operation of law on August 10, 2006. Federal Credit filed a timely notice of appeal on August 30, 2006.

II. Standard of Review

“ ‘When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a [judgment as a matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on-a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id.’ ”

Phillips v. Seward, 51 So.3d 1019, 1023 (Ala.2010) (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003)).

III. Discussion

“To establish a prima facie case of defamation, a plaintiff must show:
“ ‘[1] that the defendant was at least negligent [2] in publishing [3] a false and defamatory statement to another [4] concerning the plaintiff, [5] which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod).’ ”

Ex parte Crawford Broad. Co., 904 So.2d 221, 225 (Ala.2004) (quoting Delta Health Group, Inc. v. Stafford, 887 So.2d 887, 895 (Ala.2004), quoting in turn Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1091 (Ala.1988) (emphasis added)).

Truth is a “complete and absolute defense” to defamation. Battles v. Ford Motor Credit Co., 597 So.2d 688, 692 (Ala.1992) (citing Jakob v. First Alabama Bank of Montgomery, 361 So.2d 1017 (Ala.1978), cert. denied, 439 U.S. 968, 99 S.Ct. 460, 58 L.Ed.2d 428 (1978); Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899 (1941)). Truthful statements cannot, as a matter of law, have a defamatory meaning. See McCaig v. Talladega Publ’g Co., 544 So.2d 875, 879 (Ala.1989) (“Given the truthfulness of the published statements, the trial court correctly determined that the statements, as a matter of law, were not capable of having a defamatory meaning....”). Dispositive of Fuller’s defamation claim is the principle that truth is an absolute defense.

In his counterclaim, Fuller contended that the following statements set forth in the notice were false: (1) “[T]hat [Fuller] delivered the instrument with intent of [sic] defraud.” (emphasis in original); (2) that “[t]his company [Federal Credit] utilizes the services of the District Attorney Worthless Check Unit and District Court System.” (Boldface type and emphasis in original.)

There was a paucity of evidence presented at trial regarding Federal Credit’s allegedly defamatory statements. Regarding Fuller’s allegation that Federal Credit defamed him by stating in the notice that Fuller had “delivered the instrument with intent of [sic] defraud,” the only evidence Fuller presented at trial was his testimony that he did not “write those checks with the intent to defraud anyone.”

The notice does not specifically state that Fuller delivered the checks to Federal Credit with the intent to defraud Federal Credit; rather, the notice states, in relevant part: “Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that [Fuller] delivered the instrument with intent of [sic] defraud and may turn over the dishonored check ... to the proper authorities for criminal and/or civil prosecution.” (Original emphasis omitted.) Considering the above-quoted statement in its entirety (rather than, as Fuller has done, considering only a selective part of the statement), it is clear that the statement was not an allegation that Fuller intended to defraud Federal Credit when he wrote the checks, but was instead simply a notification to Fuller of the potential consequences if he failed to pay the amount due under the contract. Although Fuller and the other employees of Charter who saw the notice might have mistakenly construed the statement as accusing Fuller of intentionally defrauding Federal Credit, the statement was not false and, therefore, is not actionable.

Next, we consider Fuller’s claim that the following statement in the notice was false and therefore defamatory: “This company [Federal Credit] utilizes the services of the District Attorney Worthless Check Unit and District Court System.” (Boldface type in original.) In support of his allegation that Federal Credit falsely stated in the notice that it “utilizes” the Marshall District Court, Fuller offered the testimony of Glenda Tate, an employee of that court. Tate testified that the stamps on the notice stating “DISTRICT COURT FILE EVIDENCE DATA BASE FILE # 8802 ds” and “APPROVED OCT 8 2001 FOR PICKUP TO ALABAMA DISTRICT COURT AUTHORIZATION CODE: 8805-d.s.” were not “generated” by the Marshall District Court and that she had never seen that court use those particular stamps; Tate did not testify, however, that Federal Credit does not “utilize” that court in any prosecution resulting from a failure to pay. Furthermore, it is without question that Federal Credit “utilizes” the Marshall District Court; as noted, Federal Credit initiated the proceedings in this action by filing a statement of claim in the small-claims division of the Marshall District Court.

In support of his allegation that Federal Credit falsely stated in the notice that it “utilizes” the Marshall County District Attorney’s worthless-check unit, Fuller offered the testimony of Byron Waldrop, an attorney employed by the Marshall County District Attorney’s office. Waldrop testified that he had no personal knowledge of the Marshall County District Attorney’s office ever prosecuting persons who had presented “bad checks” to Federal Credit; however, Waldrop also testified that he “never see[s]” many of the worthless-check cases prosecuted by that office. Furthermore, Waldrop testified that the Marshall County District Attorney’s office does “prosecute checks that are written on accounts that are closed.” The evidence presented by Fuller was insufficient to show that Federal Credit falsely stated in the notice that it utilizes the Marshall County District Attorney’s office.

In view of the evidence in the record, we conclude that Fuller failed to meet his burden of making a prima facie showing that false information was reported in the notice seen by other employees of Charter; thus, Federal Credit was entitled to a judgment as a matter of law on Fuller’s defamation claim. See Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 49 (Ala.1982) (reversing the trial court’s judgment in favor of the plaintiff and directing the entry of a judgment for the defendant, concluding, in part, that a truthful statement indicating that the plaintiff owed a debt to the defendant and had refused to pay the debt was not defamatory). Accordingly, the circuit court’s judgment in favor of Fuller is due to be reversed and a judgment rendered for Federal Credit on Fuller’s claim against it. See Mizell, supra; McCaig, supra.

TV. Conclusion

For the reasons discussed above, we reverse the circuit court’s judgment and render a judgment for Federal Credit.

REVERSED AND JUDGMENT RENDERED.

COBB, C.J., and STUART, SHAW, and WISE, JJ., concur.

      . In the contract, Fuller provided Federal Credit with both his home address and the name and telephone number of his employer, Charter. Atha Ellis, an employee of Federal Credit, testified that Federal Credit attempted to send the notice to Fuller at his home address by certified mail; however, Ellis testified, the certified letter was either “refused” or "not claimed” by Fuller.

      . We note that, with regard to Federal Credit’s mailing of the notice to Fuller at his place of employment, the contract provided: "You [Fuller] agree to the release, disclosure and use of any information contained herein and in the ... information form including but not limited to account/contract status ... to whomever deemed necessary by us.” (Emphasis added.)

      . Alabama Code 1975, § 13A-9-13.2, which is entitled "Negotiating worthless negotiable instrument — Notice of refusal of payment upon instrument,” provides, in relevant part:
      "(1) Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the instrument or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making, drawing, uttering, or delivering the instrument.
      "(2) The form of notice shall be substantially as follows:
      " 'This statutory notice is provided pursuant to Section 13A-9-13.2 of the Alabama Code. You are hereby notified that a check or instrument numbered ., apparently issued by you on .(date), drawn upon. (name of bank), and payable to ., has been dishonored. Pursuant to Alabama law, you have 10 days from receipt of this notice to tender payment of the full amount of the check or instrument plus a service charge of not more than (fill in appropriate amount provided by law), the total amount due being $. Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that you delivered the instrument with intent to defraud and may turn over the dishonored instrument and all other available information relating to this incident to the proper authorities for criminal prosecution.’ ”

      . Rule 50(a), Ala. R. Civ. P., effective October 1, 1995, was amended to rename a "motion for a directed verdict” a "motion for a judgment as a matter of law.”

      . The record on appeal reveals that Fuller consented to the entry of a judgment against him in the circuit court in the amount of $1,500. ("The nominal defendant [Fuller] has consented to judgment in the amount of $1,500.”)

      . The circuit court entered a notation on the case-action-summary sheet on August 14, 2006, purporting to deny Federal Credit's postjudgment motions. However, the circuit court’s denial of Federal Credit’s post-judgment motions was ineffective because it occurred more than 90 days after Federal Credit had filed those motions. See Rule 59.1, Ala. R. Civ. P. ("No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days.... A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder ... shall constitute a denial of such motion as of the date of the expiration of the period.”).

      . On October 30, 2006, this Court stayed the proceedings on appeal and placed this case on its administrative docket because Federal Credit had filed a suggestion of bankruptcy. The case was returned to this Court’s active docket on January 11, 2010.

      . Federal Credit also argues, among other things, that the circuit court’s judgment is due to be reversed because, Federal Credit says, it is immune from civil liability in this case under Ala.Code 1975, § 13A-9-13.2(3), which provides:
      "Any party holding a worthless negotiable instrument and giving notice in substantially similar form to that provided in subdivision (2) of this section shall be immune from civil or criminal liability for the giving of the notice and for proceeding under the forms of the notice.”
      However, the record on appeal reveals that Federal Credit did not raise this argument in the circuit court. This Court has held that other forms of statutory immunity are affirmative defenses that are waived if not affirmatively pleaded. See Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793, 795 (Ala. 1984) ("[W]e hold that the defense of statutory employer immunity is an affirmative defense in Alabama, and is subject to the pleading requirements of Rule 8(c)[, Ala. R. Civ. P.J and the case law regarding such a defense.”). Because Federal Credit failed to raise the defense of statutory immunity under § 13A-9-13.2(3) in the circuit court, it has waived this defense for appellate review; thus, we cannot consider this argument. See Ex parte Ford Motor Co., 47 So.3d 234, 241 (Ala.2010) (" ‘ "This Court cannot consider arguments raised for the first time on appeal; our review is restricted to the evidence and arguments considered by the trial court.” ’ ” (quoting Marks v. Tenbrunsel, 910 So.2d 1255, 1263 (Ala.2005), quoting in turn Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992))).

      . Furthermore, we note that Fuller admitted at trial that he did not pay the amount due under the contract in a timely manner.


author: WISE, Justice.

text:
    Clinton HOBBS and Wanda Hobbs v. MOBILE COUNTY.
    1100004.
    Supreme Court of Alabama.
    April 22, 2011.
    Charles J. Potts of Briskman & Binion, P.C., Mobile, for appellants.
    Jay M. Ross and R. Jason Crane of Ross, Jordan & Gray, P.C., Mobile, for appellee.
   WISE, Justice.

Clinton Hobbs and Wanda Hobbs appeal from a judgment of the Mobile Circuit Court, granting a motion to dismiss in favor of defendant Mobile County (“the County”)- We affirm in part, reverse in part, and remand.

Facts and Procedural History

The Hobbses filed a complaint against the County, Thompson Engineering, Inc., and Hosea 0. Weaver & Sons, Inc. (“the defendants”). They alleged the following facts in their complaint:

“In June 2001, [the Hobbses] purchased that certain real property generally described _at Celeste Court, Sara-land, Alabama. Subsequent to the purchase of their homestead property, [the Hobbses] spent substantial time and money making improvements to same including the construction of a pond located on their property which is comprised of five (5) acres more or less.
“... On information and belief, beginning sometime in 2008, at or near the [Hobbses’] homestead, Defendants undertook a project denominated as ‘MCR 2000-007 Celeste Road’ whereby certain road and storm water drainage system work was performed by Hosea O. Weaver & Sons under contract with Mobile County and/or Thompson Engineering. Thompson Engineering designed the modifications to the existing County roadway (Celeste Road) and also designed modifications to the storm water capture and drainage system in the area. Thompson Engineering performed this work pursuant to a contract it had with Mobile County. Mobile County assumed a duty and is under a responsibility under the law to design, maintain and construct adequate and reasonable storm water drainage and flood control measures for this area of the County....
“... As a result of the faulty design, construction and maintenance of the afore described road work and storm water management system, vast amounts of storm water now flow onto [the Hobbses’] property, depositing silt, dirt, mud and other debris, where such events did not occur before the construction project. The [Hobbses’] home and real property, including the pond referenced above, has, within the past two (2) years, sustained damage, diminution of value, and the [Hobbses’] right to the peaceful use and enjoyment of their property, including, but not limited to, use as a church retreat, has been interfered with.
“... The first flooding event (subsequent to and as a result of the Defendants’ work on this project) which damaged [the Hobbses’] property occurred in July 2008; further flooding events have occurred on numerous, subsequent occasions preceding the filing of this suit. Plaintiff, Pastor Clinton Hobbs, has exhausted all efforts to have Mobile County and/or the Defendants remediate the flooding problems caused by the faulty design, construction and maintenance of the roadway and storm water system. These efforts have proved utterly fruitless in that flooding onto and damage to the [Hobbses’] property is continuing to the present. [The Hobbs-es] aver that each flooding event is a separate occurrence and injury.”

In count I of their complaint, the Hobbs-es asserted a claim for damages against the defendants as a result of alleged negligence and/or wantonness in the design, construction, and/or maintenance of the drainage system. In count II of their complaint, they asserted a claim for damages based on nuisance and trespass as a result of the alleged negligent design, construction, and/or maintenance of the roadway and drainage system. Finally, in count III of their complaint, the Hobbses asserted a claim for injunctive relief. The County filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief could be granted and a brief in support of that motion, arguing that it was entitled to a dismissal of the Hobbses’ action against it based on the Hobbses’ failure to give notice of their claims before filing their complaint, pursuant to § 6-5-20 and § 11-12-8, Ala.Code 1975. The Hobbses filed a response to the motion to dismiss, and the County replied to them response.

After conducting a hearing on the motion, the circuit court on September 17, 2010, entered an order granting the County’s motion to dismiss without stating the grounds therefor. On September 29, 2010, the Hobbses filed a notice of appeal to this Court. Because the judgment appealed from did not appear to be a final judgment, this Court on February 4, 2011, remanded the case to the circuit court for that court (1) to certify the interlocutory order of September 17, 2010, as a final judgment under Rule 54(b), Ala. R. Civ. P.; (2) to adjudicate the remaining claims relating to Thompson Engineering, Inc., and Hosea O. Weaver <& Sons, Inc., thereby making the interlocutory order final and appealable; or (3) to take no action, in which event the appeal would be dismissed as being from a nonfinal judgment. On February 8, 2011, the circuit court certified the interlocutory order of September 17, 2010, as a final judgment under Rule 54(b), Ala. R. Civ. P.

Standard of Review

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Gannett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

Issue

The Hobbses raise the following issue on appeal: Whether the circuit court erred in granting the County’s Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss based upon the Hobbses’ failure to present the County with timely claims pursuant to § 11-12-1 et seq. and § 6-5-20, Ala.Code 1975, when the relief the Hobbses seek is, in part, injunctive relief, which is historically equitable relief, and such equitable claims are not subject to the notice provisions of § 11-12-1 et seq. and § 6-5-20 by virtue of the holding in Ford v. Jefferson County, 774 So.2d 600 (Ala.Civ.App.2000).

Discussion

In its motion to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6), Ala. R. Civ. P., and its brief in support of that motion and again in its brief to this Court, the County, citing § 6-5-20 and § 11-12-8, argues that it was entitled to a dismissal of the Hobbses’ claims against it because the Hobbses had not presented notice of their claims against the County to the county commission within 12 months after the claims accrued. In their brief to this Court, the Hobbses concede that they did not provide notice of their claims to the County within that 12-month period. (Hobbses’ brief, at p. 10.)

Section 6-5-20(a), Ala.Code 1975, provides:

“An action must not be commenced against a county until the claim has been presented to the county commission, disallowed or reduced by the commission and the reduction refused by the claimant.”

Section 11-12-8, Ala.Code 1975, provides:

“All claims against counties must be presented for allowance within 12 months after the time they accrue or become payable or the same are barred, unless it be a claim due to a minor or to a lunatic, who may present such claim within 12 months after the removal of such disability.”

This Court discussed the applicability of § 6-5-20 and § 11-12-8, Ala.Code 1975, to a similar situation in Wheeler v. George, 39 So.3d 1061, 1088 (Ala.2009), and stated:

“Section 11-1-2, Ala.Code 1975, provides: ‘Every county is a body corporate, with power to sue or be sued in any court of record.’ A county is not immune from suit, therefore, because it is a governmental entity. However, all claims against a county, whether in tort or in contract, must comply with the requirement of a presentment of an itemized, verified claim to the county commission. As this Court stated in Cook v. St. Clair County, 384 So.2d 1, 5 (Ala.1980):
“ ‘There is no restriction to the type of suit that may be brought against the county — tort or contract. The only requirements that must be met regarding a suit against a county are set out in §§ 6-5-20(a), 11-12-5, 11-12-6, and 11-12-8, Code 1975 requiring presentment of an itemized, verified claim, to the county commission within twelve months of accrual, and acted on within ninety days prior to commencement of the suit.’
“It is undisputed that neither [of the plaintiffs] presented a claim to the County Commission at any time. This failure to file the statutorily mandated claim acts as a procedural bar to all claims against the County and the County Commission. The summary judgment entered in their favor is due to be affirmed.... ”

Likewise, in this case, the Hobbses did not comply with the requirement of presentment of their claims to the county commission before filing suit. Consequently, they concede that their claims presented in counts I and II of the complaint alleging negligence and wantonness (count I) and trespass and nuisance (count II) are barred by § 6-5-20 and § 11-12-8, Ala. Code 1975. However, citing Ford v. Jefferson County, supra, the Hobbses argue that an exception to the presentment requirement exists in cases in which the plaintiff seeks historically equitable (as opposed to legal) remedies. Therefore, they argue, because count III of the complaint seeks injunctive relief, that count was not barred.

Count III of the Hobbses’ complaint sets forth the following allegations and prayer for relief:

“[The Hobbses] aver that while the damage to the [Hobbses’] property is continuing in nature, the harm is abata-ble. [The Hobbses] further aver that absent the intervention of this Court’s equitable jurisdiction, [the Hobbses] will continue to suffer damage and irreparable harm to their property, for which there is no adequate remedy at law, and will continue to suffer personally if action is not taken by the Court to enjoin Defendants from failing to abate the trespass and nuisance caused by their joint and several acts and omissions. [The Hobbses] pray for an Order of Injunction as follows:
“a) enjoining the Defendants and otherwise ordering the abatement of the channelization of water and other debris onto [the Hobbses’] property and ordering the remediation of the defects and deficiencies in the roadway and drainage system as well as to the [Hobbses’] property, including [the Hobbses’] pond;
“b) awarding attorneys fees and other costs and expenses to which the [Hobbses] are entitled under the premises;
“c) awarding such other relief as may be equitable and to which the [Hobbses] are entitled.”

In Ford, supra, three Jefferson County probation officers sued Jefferson County and “Jefferson County Juvenile Services,” seeking damages and injunctive and declaratory relief. 774 So.2d at 602. The county defendants moved to dismiss the complaint, alleging, in part, that the officers had not properly filed their claims against Jefferson County in accordance with § 6-5-20 and § 11-12-1 et seq., Ala. Code 1975. The trial court entered a judgment for the county defendants, and the officers appealed.

The Alabama Court of Civil Appeals reversed the trial court’s judgment with regard to the officers’ claims for injunctive relief, reasoning as follows:

“[W]e note a crucial distinction, with respect to the applicability of the notiee-of-claim statutes, between legal and equitable forms of relief. In Mobile County v. Barnes-Creary Supply Co., 225 Ala. 127, 142 So. 72 (1932), the Alabama Supreme Court considered the propriety of an injunction preventing a county, as well as other entities, from constructing a highway abutting the complainant’s property where the complainant had not presented his claim to the county commission before filing a suit in equity. The Alabama Supreme Court affirmed the injunction, reasoning:
“ ‘It is further argued that the bill was demurrable for a failure to show a presentation of an itemized, verified claim against the county. Section 228, Code 1923 [now § 11-12-8, Ala.Code 1975]; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174 [1921]. But we do not interpret the statute as applicable to a case of this character.
“ ‘Application for injunction presupposes necessity for immediate action that adequate relief may be had. And, as said by the Washington court in Kiser v. Douglas County, 70 Wash. 242, 126 P. 622 [1912], if the statute be so construed as applicable to such a case as this, “it would follow that in all cases where a claim for equitable relief existed the party aggrieved would be obliged to suffer a threatened injury or invasion of property right before he could obtain redress or relief.” And in Sammons v. Gloversville, 175 N.Y. 346, 67 N.E. 622 [1903], a similar statute was held to have no application to a suit on the equity side of the court. We think the holding of these authorities sound, and approve the same.
“‘The case of Jones v. Jefferson County, supra, upon which appellant relies, was not a case of this character, but an action at law, and is here inapplicable.’
225 Ala. at 129-30, 142 So. at 73-74. Thus, it would appear that the county notice-of-claim statutes are inapplicable to claims that seek historically equitable (as opposed to legal) remedies. To the extent that the trial court’s judgment barred the issuance of permanent injunctive relief against the defendants based upon the deprivations of state constitutional rights of free speech asserted by the officers, the trial court erred in entering the summary judgment in favor of the defendants on the basis of the notice-of-claim statutes.”

Ford, 774 So.2d at 604-05 (footnote omitted; emphasis added).

The County argues that the exception to the notice-of-claim statutes noted in Ford does not apply in this case because, it says, the Hobbses did not seek historically equitable relief. Specifically, the County contends that, because the Hobbses sought to force or compel the County to act, rather than to prevent it from acting, the relief sought “is clearly beyond that contemplated by the court in Ford.” (County’s brief, at p. 14.) The County also argues that the Hobbses are precluded from seeking equitable relief because they allegedly had an adequate remedy at law to compensate them for the damage but did not timely pursue that remedy. In response, the Hobbses argue:

“One Alabama legal authority defines an injunction as ‘a command to a person to do or refrain from doing an act. It may be mandatory, requiring the person to restore things to a former condition, or it may be prohibitory, which restrains a person from the continuance of some act which is injurious to the Plaintiff. The injunction is the most effective and extensive of all equable remedies.... Its history is lost in antiquity.’ McCloud, Grover S., Equable Remedies and Extraordinary Writs in Alabama (2nd Edition) (1994) p. 134. It is recognized under Alabama law that an injunction is an appropriate remedy where the trespass is of a continuous or repeated nature. See, Orso v. Cater, 272 Ala. 657, 133 So.2d 864 (1961). Equity has jurisdiction to enjoin continuing trespasses. Monsanto Chemical Co. v. Fincher, 272 Ala. 534, 133 So.2d 192 (1961).
“[The County] claims that the holding in Ford does not apply because the [Hobbses] ‘seek to force the County to act.’ [County’s] Brief, p. 14. In fact, [the Hobbses] seek an order from the trial court enjoining the [County] from allowing the continuing trespass to occur. To the extent that requires action on the part of Mobile County, such is not beyond the scope of the historically equitable remedy of an injunction, nor does it make an injunction something other than a equitable remedy....
“[The County] also claims that [the Hobbses] had an adequate remedy at law. The alleged facts belie that position. The condition that now exists, as alleged, which causes injury and damage to the [Hobbses’] property will continue to so exist unless and until remedial action is taken. Again, the [Hobbses’] claim[] for injunctive relief is for the abatement of a continuing tort which will continue after every significant rainfall event to the detriment of [the Hobbses’] peaceful use and enjoyment of their property as well as to the value of same. No amount of legal damages will bring the matter to status quo or otherwise protect the Hobbs[es] from further damage.”

(Hobbses’ reply brief, at pp. 2-3, 4.) We find the Hobbses’ arguments more persuasive.

In Town of York v. McAlpin, 232 Ala. 158, 167 So. 539 (1936), the plaintiff brought a suit in equity to require the abatement of a nuisance and the payment of damages as a result of the nuisance when culverts were constructed in such a way as to cause surface water to overflow onto his property. The lower court rendered a judgment abating the nuisance and awarding damages, and this Court affirmed the judgment, noting initially: “The authorities are to the effect that a nuisance such as is here complained of may be abated in a proper case, and damages ascertained and allowed by a court of equity.” McAlpin, 232 Ala. at 159, 167 So. at 539. The Court also held: “[Ijnjunction is a proper remedy to restrain repeated or continuing trespasses where the remedy at law is inadequate because of the nature of the injury, or because of the necessity of multiplicity of actions to obtain redress.” 232 Ala. at 159, 167 So. at 540.

In this case, the Hobbses sought an injunction to abate a continuing trespass. Based on the authorities cited herein, the County’s arguments that the Hobbses were not seeking historically equitable relief and that they had an adequate remedy at law are without merit. The Hobbses sought historically equitable relief — i.e., an injunction — in count III of their complaint. Based on the holding in Ford, that claim is not barred by § 6-5-20 and § 11-12-8, Ala.Code 1975. Therefore, the circuit court erred to the extent it dismissed count III of the complaint based on the Hobbses’ failure to notify the County of their claim within the statutory 12-month period.

Conclusion

For the above-stated reasons, we affirm the circuit court’s judgment of dismissal as to counts I and II of the complaint as to the County. As to count III of the complaint, we reverse the circuit court’s judgment of dismissal, and we remand the case for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.


author: PER CURIAM.

text:
    Patricia WORKING, Rick Erdemir, and Floyd McGinnis v. JEFFERSON COUNTY ELECTION COMMISSION et al.
    1091055.
    Supreme Court of Alabama.
    April 22, 2011.

      Albert L. Jordan, Sally S. Reilly, and Susan E. McPherson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellants.
    French A. McMillan, asst, county atty., Birmingham, for appellee.
   On Application for Rehearing

PER CURIAM.

The opinion of January 14, 2011, is withdrawn, and the following is substituted therefor.

Patricia Working, Rick Erdemir, and Floyd McGinnis (“the Working plaintiffs”) appeal from an order of the Jefferson Circuit Court denying their motion seeking an award of attorney fees and expenses following the conclusion of their legal action against the Jefferson County Election Commission and its members in their official capacities, namely, Probate Judge Alan King, Circuit Clerk Anne Marie Adams, and Jefferson County Sheriff Mike Hale (hereinafter collectively referred to as “the JCEC”). We vacate the order and remand with directions.

These parties have previously been before this Court. See Working v. Jefferson County Election Comm’n, 2 So.3d 827 (Ala.2008) (“Working I”). The facts underlying the substantive issues in this case are thoroughly set forth in Working I and will not be repeated here. Suffice it to say that the Working plaintiffs’ action challenged the validity of a special election held on February 5, 2008, for a seat on the Jefferson County Commission. The action sought declaratory and injunctive relief based on state-law and federal constitutional grounds. In particular, the Working plaintiffs averred that the challenged election infringed their rights (1) under the First and Fourteenth Amendments by “unauthorizedly diluting” their opportunities “to speak to voters about the candidates,” and (2) under the Fourteenth Amendment by denying them “equal protection of the laws, in light of the right to vote to fill vacancies conferred on persons in other counties of the State.”

In Working I, this Court — on state-law grounds — held that the special election was invalid. We pretermitted discussion of the grounds the Working plaintiffs had asserted under the federal constitution. 2 So.3d at 841 n. 11.

On August 27, 2008, the Working plaintiffs filed a motion in the trial court seeking attorney fees under the common-benefit doctrine and as a “prevailing party” pursuant to 42 U.S.C. § 1988. Subsequently, the Working plaintiffs filed a motion in the trial court, pursuant to Ala. Code 1975, § 6-6-20, to “enter an order providing for mediation of the pending motion[] for attorneys fees.” The motion stated, in pertinent part:

“Plaintiffs have attempted to pursue discussions with counsel for the defendant [JCEC] for the purpose of resolving the pending [motion for a fee award], but those attempts have not resulted in any agreement. This court has set the pending motion[ ] for a hearing, and continued [it] at the request of counsel for the parties. The parties had anticipated that discussion would result in agreement. No discussions have occurred for a number of months, and recent efforts by Plaintiffs’ counsel to engage in discussion have been ignored by counsel by the defendant [JCEC].
“For these reasons, an order directing mediation (including an appointment of a mediator and a provision for completion within 45 days) is [an] appropriate way to attempt to resolve the pending motions, and is due to be entered as a matter of law.”

The trial court did not order mediation. Instead, on March 30, 2010, it denied the Working plaintiffs’ motion for an award of attorney fees. In rejecting their argument based on the common-benefit doctrine, the court concluded that, although the Working plaintiffs had “prevailed, ... the victory [had] resulted in no real benefit to the public.” As for their claim based on § 1988, the “court agree[d] that the [Working] plaintiffs were prevailing parties in this litigation.” However, it held that the federal statute afforded no basis for a fee award, because, it concluded, the “alleged federal civil rights and First Amendment claims” were “not the focus of the litigation.” (Emphasis added.)

From that order the Working plaintiffs appealed. One issue they raise on appeal is whether the trial court erred in sub silentio denying their motion for mediation. Specifically, they contend that the trial court failed to follow the mandate of § 6-6-20. They contend, in effect, that the trial court did not have the discretion to deny their motion for mediation. We agree.

Section 6-6-20 provides, in pertinent part:

“(b) Mediation is mandatory for all parties in the following instances:
“(2) Upon motion by any party. The party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed.
“(3) In the event no party requests mediation, the trial court may, on its own motion, order mediation. The trial court may allocate the costs of mediation, except attorney fees, among the parties.
“(c) If any party fails to mediate as required by this section, the court may apply such sanctions as it deems appropriate pursuant to Rule 37 of the Alabama Rules of Civil Procedure.
“(g) Where a claim of immunity is offered as a defense, the court shall dispose of the immunity issue before any ' mediation is conducted.”

(Emphasis added.)

“Although a trial court has discretion as to whether to stay the proceedings during the mediation, the trial court has to order mediation upon request of a party.” Ex parte Morgan County Comm’n, 6 So.3d 1145, 1147 (Ala.2008) (noting that the trial court had no discretion to deny the motion of a party requesting mediation (emphasis added)). “ ‘Section 6-6-20, Ala.Code 1975, allows one party to require a court to order mediation of a dispute, irrespective of the position of any other party to the dispute.’ ” 6 So.3d at 1147 (quoting Alabama Civil Court Mediation Rules, Comment to Amendment to Rule 2, Effective June 26, 2002 (emphasis added)). See also Mackey v. Mackey, 799 So.2d 203, 207 (Ala.Civ.App.2001) (mediation is mandatory when requested by a party).

The JCEC contends that it is a State agency and that it is, therefore, immune from liability for attorney fees. However, this argument is made for the first time on appeal. In other words, the immunity argument was never made in the trial court. To be sure, § 6-6-20(g) requires resolution of immunity issues before ordering mediation. However, the statute — on its face — is directed to the “trial court.” In other words, it is the trial court, not this Court, that is directed to first address an immunity defense. To date, no such defense has been presented to the trial court. A party cannot circumvent the statute by arguing immunity in this Court after a demand for mediation has been denied in the trial court without the defense of immunity having been presented there. Thus, any discussion of the immunity issue by this Court would be premature at this time.

In short, because the trial court was without the discretion to deny the demand for mediation, it prematurely addressed the merits of the motion for attorney fees. Consequently, the order of the trial court is vacated and the case is remanded for further proceedings consistent with § 6-6-20.

APPLICATION GRANTED; OPINION OF JANUARY 14, 2011, WITHDRAWN; OPINION SUBSTITUTED; ORDER VACATED; AND CASE REMANDED.

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


author: PITTMAN, Judge.

text:
    STATE of Alabama ex rel. Betty DUNN v. Van Wilson DUNN.
    2090659.
    Court of Civil Appeals of Alabama.
    April 15, 2011.

      Sharon E. Ficquette, chief staff atty., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellant.
    Thomas E. Harrison, Mobile, for appel-lee.
   PITTMAN, Judge.

This appeal arises from a judgment of the Mobile Circuit Court (“the Alabama court”) declining to allow the State of Alabama, proceeding on the relation of Betty Dunn (“the mother”), to garnish the wages of Van Wilson Dunn (“the father”) in order to satisfy a child-support arrearage claimed by the State to exist pursuant to a 1987 judgment of that court divorcing the parties and a 1994 order of that court finding the father to be in contempt for nonpayment.

During the marriage of the father and the mother, the mother bore two children, one in 1976 and one in 1983. The mother and the father were divorced by the Alabama court in 1987; under that court’s judgment, the father was directed to pay child support in the amount of $80 per week to the mother. The father thereafter moved to Florida. After the mother had assigned her rights to collect child support to the Mobile County Department of Human Resources, a civil action seeking establishment of an order of support and assessment of an arrearage against the father was ultimately brought in the Fifteenth Circuit Court of Florida (“the Florida court”) by the mother and the State of Florida’s Department of Health and Rehabilitative Services pursuant to the terms of the former Uniform Reciprocal Enforcement of Support Act (“URESA”), a uniform act that was in force in both Alabama and Florida at the time. See Ala.Code 1975, § 30-4-80 et seq. (repealed), and Fla. Stat. Ann. § 88.011 et seq. (repealed). The Florida court, in February 1992, entered a judgment ruling that the father was to pay child support in the amount of $54 per week to the clerk of that court, although no arrearage was determined by that court.

Subsequently, in October 1994, the State of Alabama, on the relation of the mother, filed the first of two contempt actions in the Alabama court seeking, among other things, a declaration that the father’s child-support payments were in arrears and that a total amount of over $30,000 was owed. That contempt action was assigned case no. DR-87-500090.01. In December 1994, the Alabama court entered an order finding the father to be in contempt, awarding the State a judgment in the principal amount of $18,793.97, reserving the issue of interest for a later determination, and issuing a writ of arrest directed to the father pending his payment of $10,000 to purge himself of contempt. The father was not arrested, and no further orders or filings appear to have taken place in the first contempt action for more than 10 years.

It appears from the record that, at some point after the rendition of the Florida court’s URESA judgment, the Florida court determined the father to be delinquent in meeting his support-payment obligations under that judgment. Based upon that failure to pay, a “certificate of delinquency” equivalent to a final judgment was filed in the official records in Florida. The record in this appeal contains a document, dated November 25, 2002, indicating that that delinquency judgment was satisfied by full payment by the father of all delinquent support, costs, and fees.

The record further indicates that, in September 2008, the State of Alabama, again on the relation of the mother, filed a second contempt action in the Alabama court alleging that the father owed $87,663.60 in unpaid child support and interest accrued thereon. That action was assigned case no. DR-87-500090.02. The father opposed the State’s claim in the second contempt action, arguing that he had satisfied all of his obligations under the Florida court’s judgment, which judgment, the father claimed, had “reduee[d] the amount of child support due.” The State, for its part, contended that the Florida court’s URESA judgment did not suspend or replace the Alabama court’s support judgments. Although the judgment entered in case no. DR-87-500090.02 does not appear in the record in this appeal, the parties agree that the Alabama court dismissed the second contempt action. Also, the Alabama court entered an order in the first contempt action vacating its writ of arrest directed to the father.

In December 2009, the State, on behalf of the mother, filed a process of garnishment in the first contempt action seeking the withholding from the father’s Social Security benefits of sums to satisfy what the State claimed was a $75,758.37 debt stemming from unpaid child support. In response, the father filed a motion to immediately suspend the garnishment proceedings, contending that the judgment in the second contempt action had determined that the child-support arrearage alleged by the State did not exist. After a hearing, the Alabama court entered a judgment granting the father’s motion and suspending any garnishment attempts in the first contempt action. The State filed a postjudgment motion in which it again asserted that it had the right to enforce the Alabama court’s support judgments notwithstanding the Florida court’s URE-SA judgment. After a hearing, the Alabama court modified its judgment in the first contempt action to expressly state that the father owed no child-support ar-rearage and that the federal Social Security Administration was “discharged and relieved from any further liability.”

The State, on the relation of the mother, appeals. In its brief, the State asserts that the Alabama court was without power to, in its words, “forgive” an accrued child-support arrearage; that the Florida court’s 1992 URESA judgment did not modify the Alabama court’s 1987 support judgment; and that garnishment is an appropriate remedy to collect child support that is in arrears. The father’s argument on appeal is limited to a contention that the 1992 URESA judgment did, in fact, effect a modification of his support obligation and that the 2002 satisfaction of that judgment negated the proposition that he owed any further child support.

We considered a parallel fact pattern in State ex rel. Department of Human Resources v. Curran, 716 So.2d 1196 (Ala.Civ.App.1997). In Curran, the father of two minor children was ordered in a 1987 Alabama divorce judgment to pay $300 per month in child support, after which he moved to South Carolina and unilaterally reduced his child-support payments upon the marriage of the elder child. Thereafter, the Lee County Department of Human Resources, on behalf of the children’s mother, initiated a URESA action in South Carolina seeking, among other things, payment of a claimed $5,600 child-support ar-rearage and enforcement of the father’s support obligation as to the remaining minor child; the South Carolina court prospectively ordered the father to pay $200 per month in child support. In June 1995, after the younger child had attained the age of 18 years, the South Carolina court dismissed the URESA action without prejudice; however, the State of Alabama subsequently brought a contempt action in Alabama seeking, among other things, enforcement of the provisions of the divorce judgment. Although the trial court in Curran determined that the father in that case was somewhat in arrears in paying his child support, the State appealed, contending that the trial court had erred in calculating the arrearage because, the State said, the support provisions of the Alabama divorce judgment remained controlling until the younger child attained the age of majority in Alabama. Upon a review of URESA, we agreed with the State’s position in Curran:

‘The purpose of the URESA proceeding is to provide a simple, fair, and convenient method of enforcing a support obligation without having to extradite the payor spouse to another state.’ Barnes v. State ex rel. State of Virginia, 558 So.2d 948, 949 (Ala.Civ.App.1990). A URESA action is not brought to modify, overcome, or replace an order of child support in a divorce judgment. State ex rel. Van Buren County Dep’t of Social Services v. Dempsey, 600 So.2d 1019, 1023 (Ala.Civ.App.1992). Further, ‘[t]he remedies provided by URESA “are in addition to and not in substitution for any other remedies.” ’ Allsup v. State ex rel. Salas, 648 So.2d 597, 599 (Ala.Civ.App.1994), quoting § 30-4-98, Ala.Code 1975.
“South Carolina’s order, as the ‘responding state’ pursuant to the URESA petition, was not a modification of the 1987 divorce order, but a new order of support. Allsup, supra. There being no modification, the 1987 divorce judgment remained in effect. Murphy v. Murphy, 395 So.2d 1047, 1049 (Ala.Civ.App.1981). Curran’s compliance with the South Carolina order did not negate his arrearage or his responsibilities under the divorce judgment. ‘Any modifications to the divorce judgment and support obligations must be made by the circuit court with jurisdiction over the divorce judgment.’ Wearb v. Luks, 708 So.2d 181[, 184-85] (Ala.Civ.App.1997); [see also] Ex parte O’Neill, 420 So.2d 264 (Ala.1982). Further, ‘[t]he order of support in a case of reciprocal support does not in any manner “supersede,” overcome or replace an order of child support in a divorce case.’ Willis v. Levesque, 402 So.2d 1003, 1004 (Ala.Civ.App.1981).
“We conclude that the trial court did not properly calculate the arrearage and interest owed under the 1987 divorce judgment. Curran was required to pay $300 per month child support until his children reached age 19 or the court modified the support order. See § 26-1-1, Ala.Code 1975. Curran’s [older child] was emancipated as a result of her marriage in September 1990; however, as previously stated, this fact did not automatically modify his support obligation. Hamilton [v. Phillips, 494 So.2d 659, 661 (Ala.Civ.App.1986) ]. Further, Curran’s [younger child], born on December 8, 1976, did not attain the age of majority until December 1995. Although the South Carolina order of June 1995 relieving Curran of his payments and arrearage in June 1995 relieved him of his child support obligation because ‘the only child in this case is 18 and has graduated from high school,’ the age of majority in Alabama is 19 and Curran was required to make child support payments until December 1995. § 26-1-1, Ala.Code 1975. The judgment as to the arrearage amount is reversed and the case is remanded for the trial court to recalculate the arrearage, and interest thereon. Curran is entitled to credit for the payments made under the URESA order against any amount that the trial court determines he owes. See Wearb, supra.

716 So.2d at 1199-1200 (emphasis added).

On the authority of Curran, we conclude that the Florida court’s URESA judgment did not, as the father contends, modify the father’s child-support obligation under the Alabama court’s divorce judgment from $80 per week to $54 per week. While URESA was in effect in Florida, Florida’s version of URESA specifically provided, just as Alabama’s version of URESA did, that “[a]ny order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support” issued in a divorce or separate-maintenance action. See Fla. Stat. Ann. § 88.281 (repealed), and Ala.Code 1975, § 30-4-93(b) (repealed). Indeed, an appellate court in Florida has squarely held that the courts of that state lacked power under URESA to modify a child-support judgment entered by a sister state that had also enacted URESA. See Berkman v. Berkman, 951 So.2d 928, 931 (Fla.Dist.Ct.App.2007).

Because the Florida court’s URESA judgment could not, and did not, modify the Alabama court’s divorce judgment, the Alabama court erred in determining that the State was not entitled to enforce the provisions of that judgment by seeking garnishment of property owned by the father and in discharging and relieving the father from any further liability under the Alabama court’s divorce judgment. Therefore, we reverse the Alabama court’s judgment in the first contempt action terminating the State’s process of garnishment, and we remand the cause for further proceedings.

REVERSED AND REMANDED.

THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . Alabama has since repealed its version of URESA and replaced it with its version of the Uniform Interstate Family Support Act, which is codified at Ala.Code 1975, § 30-3A-101 et seq. See Act No. 97-245, Ala. Acts 1997.

      . We note that the father has not contended in his brief on appeal that the judgment of dismissal in the second contempt action should be held to bar the State from initiating garnishment proceedings incident to the first contempt action. To the extent that the Alabama court may have afforded preclusive effect to its judgment of dismissal in the second contempt action, we would simply note that a judgment dismissing a contempt action does not bar enforcement of an otherwise valid underlying judgment. Hall v. Hall, 485 So.2d 747, 750 (Ala.Civ.App.1986) (citing Howell v. Thomas, 566 F.2d 469, 470 (5th Cir.1978), which noted that the outcome of a second proceeding cannot "collaterally estop the effect of an already concluded prior proceeding.”).

      . Of course, the father "is entitled to credit for the payments made under the [Florida court’s] URESA order against any amount that the [Alabama] court determines he owes." Curran, 716 So.2d at 1200.