author: ISHEE, J.,

text:
    In the Matter of the ESTATE OF Thelma McCULLOUGH, Deceased: Patricia A. Catchings, Appellant v. The Estate of Thelma McCullough, Deceased, Geraldine Yates, Administratrix, Appellee.
    No. 2009-CP-01931-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.
    Patricia A. Catchings, Jackson, appellant, pro se.
    No Brief Filed, for appellee.
   ISHEE, J.,

for the Court:

¶ 1. This case involves a dispute over the amount of attorney’s fees awarded to the appellant, attorney Patricia A. Catchings, arising from the administration of the estate of Thelma M. McCullough (estate). Catchings contends the chancellor erred in determining the amount of reasonable attorney’s fees in the estate. Finding no error, we affirm the judgment of the Hinds County Chancery Court.

FACTS AND PROCEEDINGS BELOW

¶2. Thelma Morant McCullough was born November 28, 1911, and died intestate on November 19, 2003, in Hinds County, Mississippi. Geraldine Yates (Yates) filed a petition in the Chancery Court of Hinds County to open the estate and was appointed administratrix of the McCullough estate. A judgment determining heirs was entered on February 8, 2005, but the chancery court, after finding statutory issues regarding the declaration of heirs, entered a second order setting aside the judgment determining the heirs.

¶ 3. On May 4, 2006, the chancery court again heard the motion to determine heirs, and the court entered an order and opinion to determine heirs on November 28, 2006. The aggrieved heirs filed a petition and an “Amended Petition Requesting Reconsideration of Prior Order, Determination and Adjudication of Heirship in Petitioners or Alternatively, Contesting the Constitutionality of Statute.” Thereafter, on January 5, 2009, an order denying the motion for reconsideration was entered, stating that the heirs were barred by the statute of limitations from claiming an interest in the McCullough estate.

¶ 4. On February 18, 2009, Catchings, who provided legal services for the estate, presented the chancery court with a motion to pay fees and expenses of the estate, to accept the accounting, and to close the estate. Catchings provided the chancery court with time sheets detailing the attorney’s fees incurred during the course of the administration of the estate in the amount of $88,550.

¶ 5. On April 3, 2009, the chancellor ordered that Catchings was entitled to $36,660 in reasonable attorney’s fees for her work on the estate. In her order, the chancellor noted that the estate was worth approximately $304,815.33 as of January 2009. The chancellor further ordered that Yates, as administratrix, was entitled to $11,000; and Tony Williams, who was caretaker for McCullough’s house and property, was entitled to $1,425 in fees. Aggrieved, Catchings now appeals.

DISCUSSION

¶ 6. Catchings alleges that the chancellor incorrectly applied the McKee factors in determining a reasonable amount of attorney’s fees with regard to her work on the estate. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

¶ 7. A chancellor has broad discretion in awarding attorney’s fees. Faris v. Jemigan, 939 So.2d 835, 840 (¶ 14) (Miss.Ct.App.2006). “Unless the chancellor’s ruling was manifestly wrong, his decision regarding attorneys’ fees will not be disturbed on appeal.” Id. at 840-41 (¶ 14) (citing Ward v. Ward, 825 So.2d 713, 720 (¶ 28) (Miss.Ct.App.2002)).

¶ 8. After reviewing the chancellor’s order and applicable case law on the issue, we find that the factors used in the court’s analysis were proper, even though the chancellor may have cited to the wrong authority. The Mississippi Supreme Court has stated that in estate matters, the proper factors to consider in determining reasonable attorney’s fees are:

1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3) The fee customarily charged in the locality for similar legal services;
4) The amount involved and the results obtained;
5) The time limitation imposed by the client or by the circumstances;
6) The nature and length of the professional relationship with the client;
7) The experience, reputation and ability of the lawyer or lawyers performing the services; and
8) Whether the fee is fixed or contingent.

In re Estate of Johnson v. Moore, 735 So.2d 231, 237 (¶27) (Miss.1999) (quoting Moreland v. Riley, 716 So.2d 1057, 1062 (¶ 16) (Miss.1998)).

¶ 9. In the present case, the chancellor’s analysis applied the same factors as above, but it incorrectly stated that the factors were taken from the McKee case. Catchings does not contend that McKee was cited improperly. Rather, Catchings argues that the chancellor did not apply the McKee factors correctly. However, we find that while the chancellor may have improperly cited to McKee as the applicable case law, the factors used in the chancellor’s analysis are identical to those set forth in In re Estate of Johnson, which is controlling. In re Estate of Johnson, 735 So.2d at 237 (¶ 27).

¶ 10. Further, because of the minimal amount of time expended and the simplistic nature of the estate, the chancellor was of the opinion that $250 an hour for approximately 354 hours (totaling to $88,550) in attorney’s fees was unreasonable. The chancellor concluded that, after examining Catchings’s time sheets and tasks completed on behalf of the estate, a total of $36,660 was a reasonable fee.

¶ 11. Although we are of the opinion that, in most circumstances, $250 an hour for estate matters is not an unreasonable fee, we are unable to find where the chancellor abused her discretion. As we have held numerous times before, unless the chancellor’s ruling regarding attorney’s fees is manifestly wrong, the ruling will not be disturbed on appeal. Ward, 825 So.2d at 720 (¶ 28). Accordingly, this issue is without merit, and we affirm the chancery court’s judgment.

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

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


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    D.L. HARKNESS and Mary P. Harkness, Appellants v. BUTTERWORTH HUNTING CLUB, INC., Robert Hammett, Richard Hammett and Harold Hammett, Appellees.
    No. 2009-CA-01842-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Michael D. Simmons, Jackson, attorney for appellants.
    John Michael Gilmore, Durant, attorney for appellees.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. D.L. and Mary Harkness sued But-terworth Hunting Club (BHC) for trespass, to quiet title, and to enjoin BHC from trespassing across a portion of the Harknesses’ property in Holmes County, Mississippi. BHC countersued for an easement by necessity. The Holmes County Chancery Court declined to grant the Harknesses any relief and awarded BHC an easement by necessity. Aggrieved, the Harknesses appeal. After careful consideration, we find that the chancery court erred when it awarded BHC an easement by necessity. Accordingly, we reverse the judgment of the chancery court and render a judgment in favor of the Harknesses enjoining BHC from trespassing on the Harknesses’ property.

FACTS AND PROCEDURAL HISTORY

¶ 2. BHC acquired the title to its property via a warranty deed from Holmes and Carroll Land Company, Inc. in April 1992. It is undisputed that BHC’s property was landlocked at that time. BHC did not obtain access to its property by way of an easement by necessity. One month earlier, M.V. Cooley acquired adjacent property from Holmes and Carroll. That property changed hands three more times before the Harknesses acquired it in 2007. BHC’s property and the Harknesses’ property were both once part of a common tract. However, BHC and the Harknesses do not derive their respective titles from the same grantor.

¶ 3. BHC also leased sixteenth section land for hunting. The sixteenth section land that BHC leased adjoined both BHC’s and the Harknesses’ property. ' BHC accessed its property via a road (the Road) that begins on a public road known as Hebron Road. The Road then crosses the previously mentioned sixteenth section land, runs across the southwest corner of the Harknesses’ property, and finally runs onto BHC’s property. BHC’s access across the Harknesses’ property via the Road is the center of this dispute.

¶ 4. For many years, BHC leased or had permission to use the Road. After the Harknesses acquired their property in 2007, they asked BHC to refrain from using the Road. BHC used the Road anyway. BHC contended that the Road was a public road. Failing that, BHC also claimed that it had an easement by necessity or a prescriptive easement to traverse the Harknesses’ property. The Harkness-es attempted to block BHC from using the Road. BHC cut locks on gates that the Harknesses had erected, cut fences on the Harknesses’ property, and filled ditches that the Harknesses dug at each end of the Road.

¶ 5. In December 2007, the Harknesses sued BHC on multiple theories intended to prevent BHC from trespassing on their property. BHC argued that the Road was a public road; therefore, the Harknesses had no authority to prevent BHC from using the road for ingress and egress to its property. BHC also countersued and argued that it was entitled to an easement to traverse the Harknesses’ property. The parties went before the chancellor in June 2009. In September 2009, the chancellor rendered her opinion. The chancellor found that, to access BHC’s property by some means other than by use of the Road, BHC would have to build a new road and cross “several deep ravines” by either building a bridge or placing a culvert across one or more ditches. The chancellor further found that it would be “very expensive” for BHC to do so. The record does not indicate that the chancellor personally viewed the property or the “several deep ravines.” There was no testimony regarding what it would cost to cross the “ravines.” Nevertheless, according to the chancellor, BHC was, therefore, entitled to an easement by necessity. The Harknesses claim the chancellor erred when she awarded BHC an easement by necessity.

STANDARD OF REVIEW

¶ 6. Unless they were either manifestly wrong or clearly erroneous, we will not disturb the chancellor’s findings on appeal. Daley v. Hughes, 4 So.3d 364, 367 (¶ 6) (Miss.Ct.App.2008). If there is substantial evidence that supports the chancellor’s decision, we will affirm. Id.

ANALYSIS

¶ 7. The Harknesses argue that the chancellor erred when she awarded BHC an easement by necessity. The Harkness-es base their claim on the following arguments: (1) BHC was landlocked at the time it acquired its property; (2) BHC does not derive its title from the same person from whom the Harknesses acquired their title; and (3) BHC failed to sustain its burden of proof regarding the expenses involved with obtaining access to its property by some means other than the Road.

¶ 8. “[A]n easement by necessity arises by implied grant when a part of a commonly-owned tract of land is severed in such a way that either portion of the property has been rendered inaccessible except by passing over the other portion or by trespassing on the lands of another.” Broadhead v. Terpening, 611 So.2d 949, 953 (Miss.1992). The concept regarding an easement by necessity is based upon “the implication that someone who owned a large tract would not intend to create inaccessible smaller parcels.” Leaf River Forest Prods., Inc. v. Rowell, 819 So.2d 1281, 1284 (¶ 10) (Miss.Ct.App.2002) (quoting Cox v. Trustmark Nat’l Bank, 733 So.2d 353, 356 (¶20) (Miss.Ct.App.1999)). To demonstrate a prima facie case for an easement by necessity, a claimant must prove that “(1) the dominant and servient parcels were once under common ownership, (2) severance by the common owner®, (3) the necessity for the easement arose at the time of the severance by the common owner(s), and (4) the necessity is continuing.” Daley, 4 So.3d at 868 (¶ 11).

¶ 9. As mentioned above, the Hark-nesses argue that BHC failed to sustain its burden of proving that its property became landlocked as a result of the Hark-nesses’ acquisition of their property. Specifically, the Harknesses argue as follows:

BHC’s witnesses — officers and stockholders in BHC — testified that they knew that the BHC land was landlocked when they purchased it in 1992. Moreover, these same witnesses testified that they knew that BHC’s land was severed from a landlocked tract of land. BHC presented no evidence to show when or how Holmes and Carroll Land Company’s land — the larger tract from which its land was severed and conveyed— became landlocked or what means of access may have been available at the time Holmes and Carroll Land Company’s land became landlocked.

(Internal citations omitted). Stated differently, the Harknesses claim that BHC was not entitled to an easement by necessity because BHC knowingly acquired landlocked property from a dominant estate that was, itself, landlocked. Essentially, the Harknesses argue that they should not be responsible for providing BHC with access to its property when they were not responsible for BHC’s property becoming landlocked, and they will not be compensated in any way for the easement that BHC obtained.

¶ 10. BHC argues that it is irrelevant that its property was landlocked at the time it acquired it. BHC cites to precedent that held: “[A]n easement by necessity will be granted when the land is not necessarily landlocked but would be ‘highly convenient or essential to the full enjoyment of the land.’ ” Sturdivant v. Todd, 956 So.2d 977, 993 (¶ 54) (Miss.Ct. App.2007) (quoting Fourth Davis Island Land Co. v. Parker, 469 So.2d 516, 520 (Miss.1985)). BHC also claims that the pertinent consideration “is limited to whether the alternative route would involve disproportionate expense and inconvenience.” Id. BHC also relies on Sturdi-vant for the principle that an alternative route involves disproportionate expense and inconvenience “when the expense of making the means of access available would exceed the entire value of the property to which access was sought.” Id. (quoting Miss. Power Co. v. Fairchild, 791 So.2d 262, 266 (¶ 11) (Miss.Ct.App.2001)). However, “[a]n easement by necessity will not be awarded when the only evidence before the court is that the alternative route would be longer and more inconvenient.” Id. (citing Swan v. Hill, 855 So.2d 459, 464 (¶ 22) (Miss.Ct.App.2003)).

¶ 11. BHC is correct that this Court has held that an easement by necessity will be awarded “where the land is not necessarily landlocked but would be highly convenient or essential to the full enjoyment of the land.” Id. (internal citation omitted). See also Daley v. Hughes, 4 So.3d 364, 369 (¶ 16) (Miss.Ct.App.2008) (quoting Swan, 855 So.2d at 463 (¶ 18)). That language originated from the Mississippi Supreme Court’s decision in Fourth Davis Island Land Co., 469 So.2d at 520. After carefully reviewing the supreme court’s decision in Fourth Davis Island, it is clear that this Court’s decisions regarding the concept that an easement by necessity will be awarded upon a demonstration of convenience or upon a demonstration that an easement is essential to the full enjoyment of the land are misapplications of the supreme court’s attempt to distinguish two distinctly separate concepts.

¶ 12. In Fourth Davis Island, the supreme court distinguished two types of easements by necessity; those involving what the supreme court termed “ways of necessity,” and those involving matters that may be “highly convenient or essential to the full enjoyment of the land.” Id. at 521. The supreme court cited two cases as examples of circumstances in which an easement may qualify as one which is highly convenient or essential to the full enjoyment of the land. Id. One case, Shipman v. Lovelace, 214 Miss. 241, 249, 58 So.2d 657, 659 (1952), involved an attempt to secure an easement for access to a sewer. The other case, Hutcheson v. Summit, 220 Miss. 834, 838, 72 So.2d 225, 226 (1954), involved an attempt to secure an easement for access to a water line. Fourth Davis Island involved an attempt to secure an easement for electrical service. Fourth Davis Island, 469 So.2d at 517. The supreme court held that there is one standard of proof that applies to an attempt to obtain an implied easement for utility services, and a different standard of proof that applies to an attempt to obtain an implied easement for the purpose of ingress and egress over another landowner’s property. The supreme court clearly held that “[sjince the easement sought by Fourth Davis is not a way of necessity, it follows that the chancellor should not have held Fourth Davis to the burden of proving strict necessity but instead reasonable necessity.” Id. Conversely, one must prove strict necessity to obtain an implied easement involving a “way of necessity.” Id. To the extent that this Court has held otherwise, we now correct those misapplications of the supreme court’s decisions.

¶ 13. We also take this opportunity to clarify another matter. The Harknesses argue that the chancellor erred when she awarded BHC an easement by necessity because BHC failed to present evidence regarding the expenses involved in accessing BHC’s property by some means other than the Road. It was undisputed that BHC had an alternate route to access its land without trespassing across the Hark-nesses’ property, although that means was more inconvenient to BHC, and it would be more expensive than acquiring an easement by necessity from the Harknesses. In Evanna Plantation, Inc. v. Thomas, 999 So.2d 442, 447 (¶ 16) (Miss.Ct.App. 2009), this Court held that, because there was insufficient proof that a bridge was the sole means to access property, there was no testimony regarding the expense involved with crossing a body of water, and there was no testimony as to the value of the property to be accessed, the chancellor did not err when he declined to award an easement by necessity.

¶ 14. However, in Daley, 4 So.3d at 369 (¶ 18), this Court found no error in a chancellor’s decision to award an easement by necessity where the appellees in that case “failed to present evidence comparing the cost of building a bridge ($10,000) to the value of the land to which access was sought, in that, no evidence was presented regarding the value of the Appellees’ land south of the creek.” Daley relied on three cases for its holding that proof of the value of the land to which access is sought is not essential to prove reasonable necessity for an easement: Alpaugh v. Moore, 568 So.2d 291 (Miss.1990), Rotenberry v. Renfro, 214 So.2d 275 (Miss.1968), and Mississippi Power Co. v. Fairchild, 791 So.2d 262 (Miss.Ct.App.2001). Those cases all involved attempts to secure access by way of the procedure discussed in what eventually became Mississippi Code Annotated section 65-7-201 (Rev.2005). Alpaugh, 568 So.2d at 293; Rotenberry, 214 So.2d at 276; Fairchild, 791 So.2d at 265 (¶ 10). Those cases did not pertain to a landowner’s attempt to secure a “way of access” easement by necessity across another landowner’s property. Accordingly, Al-paugh, Rotenberry, and Fairchild should not be interpreted in a manner that allows a landowner to obtain a “way of access” easement by necessity without the necessary proof of the costs involved in obtaining alternative access to property or the relative costs of the property one seeks to access. To clarify, we reiterate that an easement by necessity will not be awarded when the only evidence presented was that an alternative route would be longer and less convenient. Swan, 855 So.2d at 464 (¶ 22). Where one seeks to obtain a “way of access” easement by necessity but submits no evidence as to the allegedly higher costs of an alternative route, a trial court will not err in declining to award an easement. Because BHC presented no evidence regarding the costs of accessing its property by some means other than by crossing the Harknesses’ land, the chancellor further erred when she awarded BHC an easement by necessity without any supporting proof. Simply stating that it would appear to be “very expensive” to access property by some other means is not sufficient.

¶ 15. It bears mentioning that BHC had the option of employing a different legal mechanism to secure access over the Road. Mississippi Code Annotated section 65-7-201 (Rev.2005) provides as follows:

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

However, in the event that BHC obtained an easement across the Harknesses’ land pursuant to the procedure set forth in section 65-7-201, BHC would have been required to compensate the Harknesses for its involuntary taking of an interest in the Harknesses’ property. Here, BHC sought to obtain access in a manner that, if sufficiently demonstrated, would not have required it to compensate the Harknesses at all. In any event, we find that the chancellor abused her discretion when she found that BHC had presented sufficient proof of its entitlement to an easement by-necessity without presenting any evidence regarding the expenses involved in accessing its property in some manner other than by driving on the Harknesses’ property. Accordingly, we reverse the judgment of the chancellor and render judgment for the Harknesses.

¶ 16. THE JUDGMENT OF THE HOLMES COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: LEE, C.J.,

text:
    Jessie BEAL, Appellant v. STATE of MISSISSIPPI, Appellee.
    No. 2010-CP-00164-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Jessie Beal, appellant, pro se.
    Office of The Attorney General, by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, C. J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 27, 2009, in the Madison County Circuit Court, Jessie Beal pleaded guilty to one count of statutory rape. Beal was sentenced to serve twenty-seven years in the custody of the Mississippi Department of Corrections. Beal subsequently filed a motion for post-conviction relief. The trial court dismissed Beal’s motion. Beal now appeals asserting the following issues: (1) he was denied his right to a timely initial appearance; (2) his constitutional rights were violated; (3) his trial counsel was ineffective; and (4) his guilty plea was not knowingly and intelligently entered. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 2. When reviewing a trial court’s denial or dismissal of a motion for post-conviction relief, we will reverse the judgment of the lower court only if its factual findings are clearly erroneous; however, we review the circuit court’s legal conclusions under a de novo standard of review. Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss. 2009).

DISCUSSION

I. TIMELY INITIAL APPEARANCE

II. CONSTITUTIONAL RIGHT TO A TIMELY INITIAL APPEARANCE

¶ 3. In his first two issues, Beal argues that he was denied a timely initial appearance and his constitutional rights were violated when the trial court failed to give him a timely initial appearance. Upon the entry of a valid guilty plea, certain challenges are waived by the defendant, including the right to an initial appearance. Davis v. State, 967 So.2d 1269, 1270 (¶ 4) (Miss.Ct.App.2007); Battaya v. State, 861 So.2d 364, 366 (¶¶ 7-8) (Miss.Ct.App.2003). These issues are without merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

¶4. In his third issue on appeal, Beal argues that his trial counsel was ineffective for failing to raise the issue of Beal’s initial appearance. According to Beal’s brief, his initial appearance occurred six days after his arrest in violation of Rule 6.03 of the Uniform Rules of Circuit and County Court, which requires an initial appearance within forty-eight hours of arrest.

¶ 5. Prisoners alleging ineffective assistance of counsel in a motion for post-conviction relief must show the elements of the claim with specificity and detail. Sandifer v. State, 799 So.2d 914, 918 (¶ 12) (Miss.Ct.App.2001). Specifically, Beal must allege facts showing his counsel’s performance was deficient, and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 6. As previously discussed, by pleading guilty, Beal waived any challenge to his initial appearance. We cannot find that Beal’s attorney was deficient in failing to raise this issue during Beal’s guilty plea hearing. Furthermore, Beal has failed to state with particularity how his counsel’s performance was deficient and any resulting prejudice. This issue is without merit.

IV. VOLUNTARINESS OF GUILTY PLEA

¶ 7. In his final issue on appeal, Beal argues that the timing of his initial appearance influenced his decision to enter a guilty plea. Other than this single assertion, Beal offers no facts to support his claim that the timing of his initial appearance had any bearing on his guilty plea. A plea is considered “voluntary and intelligent” if the defendant is advised regarding the nature of the charge against him and of the consequences of the guilty plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). According to the plea colloquy, Beal admitted that he was guilty of statutory rape. Beal was also informed of the effect of the plea, the rights he would waive if he pleaded guilty, and the possible sentence he could receive. This issue is without merit.

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

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


author: BARNES, J.,

text:
    James E. JOHNSON, Appellant v. Deloris FERGUSON, Appellee.
    No. 2010-CA-00220-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Taylor D. Buntin III, Southaven, attorney for appellant.
    Michael Kevin Graves, Hernando, William Bradley Palmertree, attorneys for ap-pellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Deloris Ferguson purchased a 15.5-acre parcel of real property at a tax sale in DeSoto County, Mississippi, on August 26, 2005. James E. Johnson was the property owner of record. In September 2008, the parcel was conveyed to Ferguson after the redemption period had expired. Johnson filed a complaint to set aside the tax sale, and Ferguson subsequently filed a complaint to confirm the tax sale. The cases were consolidated for further proceedings. Both Ferguson and Johnson filed motions for summary judgment. The chancery court granted Ferguson’s motion and denied Johnson’s; Johnson now appeals. Finding that the tax sale was void, we reverse and render judgment in favor of Johnson.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. The 15.5 acres of land at issue in this appeal is part of a larger twenty-five-acre parcel of real property, which has been in Johnson’s family for many years. However, the 15.5-acre parcel and the other 10.36 acres are listed as separate tax parcels. Johnson lived on the property until he was approximately fifty years old, when he moved from the property and bought a residence in Memphis, Tennessee. Although Johnson has lived in Memphis for approximately twenty years, he maintains that he is still considered a resident of DeSoto County, citing several reasons. Johnson continued to claim the twenty-five acres as his homestead. He also maintains a Mississippi driver’s license, is registered to vote in DeSoto County, and pays Mississippi income taxes. Johnson’s daughter, Trenese Franklin, lives on the 10.36 acres at 3671 Horn Lake Road, Nesbit, Mississippi; his son, Terrell Johnson, has lived in a mobile home on the 15.5-acre parcel since 2001 (3567 Horn Lake Road). Since 1986, DeSoto County has listed Johnson’s physical and mailing address as 3671 Horn Lake Road, Nesbit, Mississippi 38651.

¶ 3. Ferguson purchased the 15.5-acre parcel on August 26, 2006, for $173.69, representing the past-due 2005 ad valorem taxes and costs. Notice of the tax sale was sent to Johnson at the 3671 Horn Lake Road address listed in the land records. However, the letter was returned “unclaimed.” Additionally, the DeSoto County’s Sheriffs Office posted a notice of the tax sale on the door of the 3671 Horn Lake Road property. Publication of the sale was also made on June 24, 2008, and on July 1, 2008. In the record is a “Tax Search Form” stating that the chancery clerk attempted to serve notice to Johnson on two separate occasions. At the bottom of this form, it states:

Affidavit
In accordance with Section 27-43-3 of the Mississippi Code of 1972, I have issued and attempted to serve the notice required upon the above named reputed owner in the above described manner in an effort to ascertain the reputed owner’s street and post office address, and after diligent search and inquiry, I have tried to locate the person named above, This the _ day of _, 20_

The tax-search form was signed by the deputy chancery clerk in space allotted; however, the form was neither dated nor notarized.

¶ 4. The chancery clerk conveyed the 15.5-acre parcel to Ferguson on September 26, 2008. Johnson filed a complaint to set aside the conveyance on October 8, 2008. Ferguson later filed a complaint to confirm title in a separate action; both cases were consolidated for further proceedings. On July 8, 2009, Ferguson filed a motion for summary judgment. Johnson responded with a counter-motion for summary judgment, claiming that the tax sale was void as: (1) the chancery clerk’s affidavit did not satisfy the requirements of Mississippi Code Annotated section 27-43-3 (Rev.2006); (2) the notice to Johnson of the tax sale was not conducted as required under section 27-43-3; (3) the tax sale was not conducted pursuant to Mississippi Code Annotated section 27-41-59 (Rev. 2006); and (4) Johnson’s failure to receive notice -violated his due-process rights under the United States Constitution.

¶ 5. On January 12, 2010, the chancellor, finding “the statutory requirements for a valid tax sale [had] been met,” granted Ferguson’s motion for summary judgment and entered a final judgment to quiet and confirm title in favor of Ferguson. Johnson appeals, incorporating his claims from his counter-motion for summary judgment. Upon review, we find that the tax sale is void as the purported “affidavit” was un-sworn. Thus, the chancery court erred in granting summary judgment for Ferguson, and we reverse and render judgment in favor of Johnson.

STANDARD OF REVIEW

¶ 6. A grant of summary judgment is reviewed de novo. Farmer v. Richardson, 970 So.2d 261, 264 (¶ 9) (Miss.Ct.App.2007) (citing Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶13) (Miss.1998)). “Summary judgment should be granted only where the pleadings, discovery materials, and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Chariot v. Henry, 45 So.3d 1237, 1247 (¶ 31) (Miss.Ct.App.2010) (citing M.R.C.P. 56). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. at 1246 (¶ 31) (quoting Russell v. Orr, 700 So.2d 619, 622 (¶ 8) (Miss.1997)). “The party requesting summary judgment bears the burden of demonstrating that no genuine issue of material fact exists.” Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss.2010) (citing Watson Quality Ford, Inc. v. Casanova, 999 So.2d 830, 833 (¶ 7) (Miss.2008)).

Whether the affidavit filed by the chancery clerk’s office satisfied the statutory requirements of section 27-43-3.

¶7. “When property is sold for unpaid county or municipal ad valorem taxes, the property owner must be given notice of his right to redeem the property within 180 days of, but no less than 60 days prior to, the expiration of the redemption period.” Viking Invs., LLC v. Addison Body Shop, Inc., 931 So.2d 679, 681 (¶ 6) (Miss.Ct.App.2006) (quoting DeWeese Nelson Realty, Inc. v. Equity Servs. Co., 502 So.2d 310, 311 (Miss.1986)). The statute governing the owner’s right to notice of redemption is Mississippi Annotated Code section 27-43-3, which states that if the reputed owner of the property is a resident of Mississippi, notice must be given by registered or certified mail to the owner’s usual physical or mailing address, personal notice in the same manner as in Mississippi Rule of Civil Procedure 4, and publication in the county where the land is located. If the owner is a non-resident, then personal notice is not required. The statute further states that if the chancery clerk is unable to serve effective notice to the owner after two attempts:

[I]t shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sale record.

Miss.Code Ann. § 27 — 13-3.

¶ 8. Johnson contends that the chancery clerk failed to satisfy the requirements of the statute as the “affidavit” submitted by the chancery clerk’s office was not a sworn affidavit. As such, he claims that the tax sale is void. “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners.” Viking Invs., LLC, 931 So.2d at 681 (¶ 7) (quoting Roach v. Goe-bel, 856 So.2d 711, 716 (¶ 29) (Miss.Ct.App. 2003)). “Any deviation from the statutorily mandated procedure renders the sale void.” Id.

¶ 9. We agree with Johnson that the purported “affidavit” was insufficient to meet the requirements of section 27-43-3. In Thomas v. Greenwood Leflore Hospital, 970 So.2d 273, 277 (¶ 19) (Miss.Ct.App. 2007), this Court stated that:

An affidavit is “a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Blacks Law Dictionary 58 (7th Edition 1999). The affidavit appears to be a standard form affidavit, but without being sworn it cannot create an issue of material fact. For our purposes it is merely a piece of paper with the word “affidavit” as its title.

Furthermore, in a recent case, Rebuild America, Inc. v. McGee, 49 So.3d 156, 159 (¶¶ 7-8) (Miss.Ct.App.2010), we found that “unsworn affidavits executed by a deputy clerk,” were not sufficient to cure any defects to notice and “insufficient to meet the statutory requirements.” Here, the wording in the purported affidavit is similar to that contained in the document in McGee, and although the document is labeled as an “Affidavit,” it is neither sworn nor notarized. It is only signed by the deputy chancery clerk. Therefore, in accordance with our holdings in Thomas and McGee, we must find that the document purporting to be an “affidavit” in this case is “merely a piece of paper with the word ‘affidavit’ as its title.” See Thomas, 970 So.2d at 277 (¶ 19). Thus, it is insufficient to meet the statutory requirements of section 27-43-3.

¶ 10. Accordingly, we find that the chancellor erred in granting summary judgment in favor of Ferguson as the tax sale was void for failure to comply with the statute, and we reverse and render judgment in favor of Johnson. In light of this ruling, all other issues raised by Johnson on appeal are rendered moot.

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

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

      . After the legal proceedings on this property were commenced, DeSoto County denied Johnson's homestead tax exemption on his DeSoto County property.

      . Although Johnson had a history of being late with his tax payments, prior to this tax sale, Johnson had always managed to redeem the property.


author: GRIFFIS, P.J., CARLTON, J.,

text:
    Hazel L. CUMMINGS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01896-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.

      Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Hazel L. Cummings appeals her conviction of embezzlement under Mississippi Code Annotated section 97-23-19 (Rev.2006). On appeal, she argues that: (1) there was insufficient evidence to support the verdict; (2) her sentence of restitution was illegal or, alternatively, the Jones County Circuit Court failed to consider the factors set forth in Mississippi Code Annotated section 99-7-3 (Rev.2007) to determine whether restitution was appropriate; and (3) her sentence of restitution violated her Sixth Amendment right to a jury trial. We find that the State failed to present any evidence to support the award of restitution in the amount ordered by the circuit court. Therefore, the circuit court’s order of restitution in the amount of $34,411.04 is reversed, and this case is remanded for the proper determination of restitution. We find no error as to the remaining issues and affirm.

FACTS

¶ 2. Cummings was the manager of three convenience stores located in Jones County, Mississippi: the BP Station at Daphne, the Interstate BP, and Convenience Corner. All three stores are owned by Leon and Ellen Stinson. Ellen testified that she kept the books for the stores. She began to notice that there were discrepancies in the amounts listed on the stores’ daily sheets and the amount of money deposited in the bank. The total amount missing from the Daphne store was $7,309.59. There was no testimony or evidence admitted at trial as to the amounts missing from the other two stores.

¶ 3. Leon testified that Cummings was responsible for removing the cash from each store’s safe and depositing it in the bank. He said that Cummings had blamed the Stinsons’ son, Ralph, for removing the cash from the safes. Ellen testified that Cummings denied taking the money; however, Cummings never provided her with an explanation as to why the deposits did not match the daily sheets.

¶ 4. Ralph testified that he had the ability to open the safes and that he had once cashed a check for $300 using the money in one of the safes. Kim Smith, the manager of Convenience Corner, testified that she had seen Ralph take cash from the safe to deposit at the bank on numerous occasions. Ruby Milsap, also an employee of Convenience Corner, testified that she had seen Ralph open the safe.

¶ 5. The jury found Cummings guilty of embezzlement, and the circuit judge sentenced her to ten years in the custody of the Mississippi Department of Corrections. Her sentence was suspended upon her successful completion of the Restitution Center, five years of post-release supervision, and the Circuit Court Community Service Program. Cummings was ordered to pay restitution in the amount of $34,411.04, plus attorney’s fees and court costs.

¶ 6. Cummings’s motion for a new trial was denied. She now appeals her conviction and sentence.

ANALYSIS

1. Whether there was sufficient evidence of the element of conversion to support Cummings’s conviction of embezzlement.

¶7. Cummings argues that there was insufficient evidence to support the jury’s verdict. Specifically, she claims that there was no evidence presented of conversion, an essential element of embezzlement. She contends that the State failed to prove that she had converted the funds for her own personal use. Cummings states that a mere showing that the deposits were missing was not enough to prove she had embezzled the funds.

¶ 8. When reviewing the denial of a motion for a directed verdict based on an objection to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted).

¶ 9. Embezzlement is defined by Mississippi Code Annotated section 97-23-19 (Supp.2010), which provides, in part:

If any person shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been entrusted to his care or possession by virtue of his office, position, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of felony embezzlement,....

¶ 10. Cummings correctly asserts that conversion is an essential element of the crime of embezzlement. “The intent to convert may always be proven by circumstantial evidence if it is sufficient to prove a willful and unlawful conversion!;] however, to sustain a verdict of ‘guilty,’ based upon circumstantial evidence, the testimony must exclude every reasonable hypothesis but that of guilt.” Gradsky v. State, 243 Miss. 379, 385, 137 So.2d 820, 822 (1962) (citations omitted).

¶ 11. This Court discussed the element of conversion in Patterson v. State, 724 So.2d 920 (Miss.Ct.App.1998). Lester Patterson was hired to collect rent for the owners of an apartment building. Id. at 921 (¶ 2). During the second month of his employment, Patterson failed to deliver the rent money to the owners. Id. at 921 (¶ 3). After two months’ worth of rent money was not delivered, the owners filed a complaint with the police department and Patterson was charged with embezzlement. Id.

¶ 12. At trial, Patterson testified that the money had been stolen. However, one of the owners testified that he had spoken with Patterson several times, and Patterson gave him various excuses for not having the rent. Id. at (¶ 4).

¶ 13. On appeal, Patterson argued that the State failed to prove that he had converted the funds for his own use. Id. at 921-22 (¶ 5). This Court noted that Patterson had claimed the money was stolen. However, Patterson’s own testimony contradicted that theory because, at one point, Patterson had claimed that he could not find the owners to deliver the money. This Court further noted that Patterson did not report the stolen money to the police. Id. at 922 (¶ 7).

¶ 14. Based on the facts presented, a reasonable inference was raised that Patterson had converted the funds for his own use. Id. This Court held that: “Embezzlement does not require a distinct act of taking, and the conversion essential to the crime of embezzlement may consist of failing to account for and to pay over money on demand.” Id. (quoting 26 Am.Jur.2d Embezzlement § 4 (1966)).

¶ 15. Similarly, here, the State presented sufficient circumstantial evidence for the jury to conclude that Cummings had converted the funds for her personal use. Cummings, as manager, was responsible for removing the money from the safe, counting the money, completing the deposit slips, and making the deposits. She had access to the safe, and it was her duty to check the totals on the daily sheets to make sure they matched the amount of cash in the safe.

¶ 16. When asked about the missing deposits, Cummings told the Stinsons that there was no money to deposit. Cummings never reported the missing cash to the police. As manager, she would have been immediately aware that there was insufficient cash to make the required deposits. It was not until Cummings was later questioned about the missing deposits that she reported the missing cash to the Stinsons and accused Ralph of stealing the money.

¶ 17. The State presented evidence that Cummings had failed to account for and to pay over the money that she was responsible for depositing in the bank. It was reasonable for the jury to infer that Cummings had converted the funds for her personal use. As we must view all the evidence presented in the light most favorable to the State, we find that this evidence was sufficient to prove the element of conversion. Accordingly, this issue has no merit.

2. Whether Cummings’s sentence of restitution was illegal.

¶ 18. The circuit judge sentenced Cummings to pay the Stinsons $34,411.04 in restitution. Cummings contends that the State failed to show that this amount of money was embezzled from the Stin-sons. She asserts that the State merely put on proof that $7,809.59 was missing from the Daphne store. The State responds that the circuit judge had great discretion in sentencing Cummings, and even if her sentence was improper, such error is not reversible because Cummings’s counsel failed to object to the amount of restitution during the sentencing hearing.

¶ 19. This Court reviews the terms of a sentence under an abuse-of-discretion standard. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Hoops v. State, 681 So.2d 521, 537 (Miss. 1996). “Unless the sentence is grossly disproportionate or not within the statutory limits, we will not disturb the sentence on appeal.” Owens v. State, 17 So.3d 628, 632 (¶ 8) (Miss.Ct.App.2009).

¶ 20. Cummings managed three stores owned by the Stinsons. The State, seemingly in an effort to keep matters simple for the jury, only offered evidence of the missing deposits from the Daphne store. In his opening statement, the prosecutor said:

[W]hat I’ll show you is simply for the store at Daphne. I want you to understand that under the law all we have to do is prove that more than $500 was missing on one occasion. I’m going to show you about six or eight occasions, and so we’re not here going through every deposit that was made or not made for a month, for three different stores, which is literally going to be hundreds. I’m going to show you about ten or [twelve] of these things.

¶ 21. The prosecutor correctly stated that, for a felony conviction of embezzlement, section 97-23-19 merely requires proof that the defendant embezzled property with a value of $500 or more. During Ellen’s testimony, the State entered into evidence the daily sheets and the bank statements showing that several deposits from the Daphne store — totaling $7,309.59 — were never made. This was more than sufficient evidence to meet the State’s burden to show that the value of the property at issue was $500 or more.

¶ 22. But the State failed to put on any evidence of the alleged missing deposits from the other two stores. At the sentencing hearing, the prosecutor announced to the circuit court that a total of $34,411.04 had been embezzled from all three stores owned by the Stinsons. Then the following exchange occurred:

[Counsel for Defendant]: Your honor, the State only presented evidence of about $6,000. The State did not present evidence of $34,000.
[Prosecutor]: We charged her with embezzlement of a sum in excess of $500 and that’s what she was convicted of.
The Court: What were you able to show?
[Prosecutor]: I’ll have to look back at my notes, Your Honor. But that’s the amount of restitution—

The circuit judge then continued the hearing to a later date so the issue could be resolved. When the hearing resumed a month later, the circuit judge sentenced Cummings to pay $34,411.04 in restitution without a discussion of the State’s evidence.

¶ 23. The State contends that this issue was waived by Cummings’s failure to object at the sentencing hearing. However, in the statement quoted above, counsel for Cummings told the circuit judge that the State had failed to prove its claimed amount of restitution. We find that such statement amounted to an objection that was sufficient to raise the issue before the circuit judge and preserve the issue for appeal.

¶ 24. Mississippi Code Annotated section 99-37-3(1) (Rev.2007) allows the court to order restitution, stating:

When a person is convicted of criminal activities which have resulted in pecuniary damages, in addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim; provided, however, that the justice court shall not order restitution in an amount exceeding Five Thousand Dollars ($5,000.00).

For purposes of this section, “criminal activities” are defined as “any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” Miss.Code Ann. § 99-37-1(a) (Rev.2007).

¶25. Cummings argues that, because the State’s evidence only showed that $7,309.59 was embezzled from the Daphne store, the jury could not have convicted Cummings of embezzling the total amount alleged by the State. Since Section 99-37-3(1) allows restitution to be imposed for only those criminal activities of which the defendant admitted or was convicted, she claims that she can be required to pay only the amount presented to the jury— $7,309.59.

¶ 26. However, as discussed above, the State was required to prove that Cummings embezzled property with a value of $500 or more in order for the jury to find Cummings guilty of felony embezzlement. Such evidence was offered to the jury, and Cummings was convicted of embezzlement. The jury was not required to determine the amount of restitution owed the Stin-sons. Under section 99-37-3(1), it is within the power of the circuit judge to order that an amount of restitution be paid.

¶ 27. While we find that Cummings’s conviction of embezzlement gave the circuit judge the authority to order restitution in the full amount that was embezzled from the Stinsons, we further find that there was no evidence presented to the circuit judge to support the amount of restitution imposed. At the sentencing hearing, the State was asked what amount it had proven that Cummings embezzled; yet, the prosecutor never gave the circuit judge a proper answer. Although the prosecutor announced that $34,411.04 was owed by Cummings, the State failed to present any evidence of this amount during sentencing.

¶ 28. This issue was addressed in Powell v. State, 536 So.2d 13, 17 (Miss.1988). Troy Powell was ordered to pay $9,648 in restitution for the victim’s medical bills. The Mississippi Supreme Court stated:

Powell also claims that there was no proof as to the amount of medical expenses. After Troy Powell was found guilty a separate proceeding was held on November 24, 1986, to determine sentencing. Judge Pigott during this proceeding sentenced Powell to nine years in the custody of the Department of Corrections and took up the issue of restitution. The judge in determining the amount of restitution stated on the record that the victim had incurred $4,648.00 worth of medical bills from the doctors and hospitals and another bill for $5,000.00 from the University Hospital for a total of $9,648.00. The bills themselves were never introduced into evidence.
It was error for the judge to use facts not in evidence to determine the amount of restitution....

Id. (emphasis added).

¶ 29. Here, as in Powell, there was no evidence offered at the separate sentencing hearing to support any amount of restitution greater than the $7,809.59 proved at trial. It was error for the circuit judge to order $84,411.04 in restitution without such evidence. Accordingly, we reverse the judgment of restitution, and we remand this case for resentencing so that the circuit court, upon review of the evidence previously provided by the State, may determine the proper amount of restitution.

3. Whether Cummings’s Sixth Amendment right to a jury trial was violated by the circuit court’s order of restitution.

¶ 30. On appeal, Cummings raises a constitutional challenge to the circuit court’s authority to impose restitution. She claims that, under the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the issue of restitution must be submitted to the jury. She cites the holding in Apprendi, stating: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Cummings cites this one sentence from the holding in Apprendi; yet, she fails to apply that holding to her claim of improper restitution.

¶ 31. Cummings failed to object on this basis during sentencing. As such, she is procedurally barred from raising this constitutional violation on appeal. Mingo v. State, 944 So.2d 18, 28 (¶23) (Miss. 2006). She now claims that the issue amounts to plain error. We disagree. “The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Flora v. State, 925 So.2d 797, 811 (¶ 42) (Miss.2006) (citation omitted).

¶ 32. Cummings fails to show this error. Indeed, the federal circuit courts of appeal have declined to apply the holding of Apprendi to restitution. See Dohrmann v. U.S., 442 F.3d 1279, 1281 (11th Cir.2006) (adopting the holding of the Third, Sixth, Seventh, Eighth, and Tenth Circuits that Apprendi does not apply to restitution orders because the restitution statute does not have a prescribed statutory maximum). The United States Fifth Circuit Court of Appeals stated in U.S. v. Garza, 429 F.3d 165, 170 (5th Cir.2005): “We agree with our sister Circuits, who have uniformly held that judicial fact-finding supporting restitution orders does not violate the Sixth Amendment.”

¶ 33. We find that Cummings has failed to show that the circuit court’s imposition of restitution constitutes plain error that has resulted in a manifest miscarriage of justice. Accordingly, this issue is procedurally barred from our review.

¶ 34. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF EMBEZZLEMENT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO BE SUSPENDED UPON THE SUCCESSFUL COMPLETION OF THE RESTITUTION CENTER, FIVE YEARS OF POST-RELEASE SUPERVISION, AND COMPLETION OF THE CIRCUIT COURT COMMUNITY SERVICE PROGRAM, IS AFFIRMED; THE AMOUNT OF THE JUDGMENT OF RESTITUTION IS REVERSED; AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

concurring in part and dissenting in part:

I would affirm Cummings’ conviction and sentence in this case.

      . The supreme court found that this error was not reversible, however, because Powell had failed to make an objection to the amount of restitution during his sentencing hearing. Powell, 536 So.2d at 17. As we discussed above, we find that Cummings made a timely objection to preserve this issue for appeal.

      . On remand, we urge the circuit judge to consider Cummings’s indigent status when determining the issue of restitution. Section 99-37-3(2) requires that:
      In determining whether to order restitution which may be complete, partial or nominal, the court shall take into account:
      (a) The financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant;
      (b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and
      (c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment.


author: PER CURIAM.

text:
    I.C.E. CONTRACTORS, INC. v. MARTIN & COBEY CONSTRUCTION COMPANY, INC.
    1080619.
    Supreme Court of Alabama.
    Sept. 17, 2010.

      John R. Baggette, Jr., of Sirote & Per-mutt, P.C., Huntsville, for appellant.
    Michael L. Fees, Allen L. Anderson, and Stacy L. Moon of Fees & Burgess, P.C., Huntsville, for appellee.
   PER CURIAM.

I.C.E. Contractors, Inc. (“ICE”), appeals from the trial court’s order granting a motion to compel arbitration filed by Martin & Cobey Construction Company, Inc. (“Martin & Cobey”). We reverse and remand.

Facts and Procedural History

On October 31, 2008, ICE sued Martin & Cobey, Scannell Properties # 78, LLC (“Scannell”), Regions Bank (“Regions”), and FedEx Freight East, Inc. (“FedEx”). The complaint alleged breach of contract and other claims against Martin & Cobey arising from the alleged failure of Martin & Cobey to pay for construction materials and/or equipment supplied to Martin & Cobey by ICE. The complaint alleged that Martin & Cobey, on or about December 11, 2007, had entered into the contract it allegedly breached. Martin & Cobey answered the complaint on December 8, 2008.

On December 9, 2008, Martin & Cobey filed a motion to compel arbitration and to stay the matter pending arbitration. Attached to the motion was a document entitled “Standard Short Form Agreement Between Contractor and Subcontractor” (“the form agreement”) and dated October 15, 2007. The form agreement named Martin & Cobey and ICE as the parties to the agreement, and it provided that if neither direct discussions nor mediation resolved a dispute between the parties, the parties agreed to use arbitration to resolve the dispute. However, the form agreement was not signed by Martin & Cobey or ICE.

On December 31, 2008, ICE filed an opposition to Martin & Cobey’s motion to compel arbitration. Attached to the opposition was an affidavit of the president of ICE, Guy W. Smith. Smith testified that ICE never agreed to the terms of the form agreement and that ICE never entered into any agreement that would obligate ICE to arbitrate the claims set forth in its complaint.

On January 7, 2009, Martin & Cobey responded to ICE’s opposition to the motion to compel arbitration. In that response, Martin & Cobey argued that the form agreement is the only contract in evidence and that ICE is estopped from objecting to arbitration because, it argued, ICE is seeking the benefits of the form agreement without the responsibilities of the form agreement. The response also contended that “even if ICE is not es-topped from objecting to arbitration, the issues within the above-styled matter are so intertwined with the issues contained in the [ongoing] arbitration between Martin & Cobey and Scannell that compelling arbitration is appropriate.”

On January 8, 2009, ICE replied to Martin & Cobey’s response to ICE’s opposition to the motion to compel arbitration. Attached to this reply was another affidavit of the president of ICE. He testified that ICE did not perform any work under the terms of the form agreement. He further testified:

“The agreement between ICE and Martin & Cobey with regard to the work performed by ICE on the Scannell project was comprised of various estimates and change orders which were submitted to Martin & Cobey by ICE and approved by Martin & Cobey, as well as job specifications, emails, and other correspondence between Martin & Cobey and ICE. An example of these documents is the fax dated December 11, 2007 from ICE to Martin & Cobey attached hereto as Exhibit ‘A’ which was a revised pricing proposal for the project based on specifications provided by Martin & Cobey to ICE as of December 11, 2007. Martin & Cobey accepted this proposal and ICE commenced work on the project after December 11, 2007. Martin & Cobey and ICE did not enter into any agreement to perform work on the project prior to December 11, 2007.”

A hearing was held on the motion to compel arbitration on January 9, 2009. On January 12, 2009, the trial court ordered a stay of further proceedings and granted Martin & Cobey’s motion to compel arbitration. ICE appealed.

Standard of Review

“‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ ” Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala. 2002) (quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999) (emphasis omitted)). “The party seeking to compel arbitration has the initial burden of proving the existence of a written contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce.” Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003). ““‘[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’ ” Ken-worth of Birmingham, Inc. v. Langley, 828 So.2d 288, 290 (Ala.2002) (quoting Fleet-wood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)).

Discussion

ICE contends that the trial court erred in ordering that its claims against Martin & Cobey be arbitrated because, ICE says, Martin & Cobey did not meet its initial burden of proving the existence of a contract calling for arbitration. In Alabama, one of the requisite elements of a valid contract is mutual assent to the essential terms of the contract. Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1118 (Ala.2003). ICE contends that Martin & Cobey did not prove mutual assent to the terms, including the arbitration provision, of the unsigned form agreement attached to Martin & Cobey’s motion to compel arbitration. We agree.

‘“Whether a contract exists must be determined under general state-law contract principles. Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615 (Ala.1997). The purpose of a signature on a contract is to show mutual assent, see Ex parte Holland Mfg. Co., 689 So.2d 65 (Ala. 1996); Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala.1986); Ex parte Pointer, 714 So.2d 971 (Ala.1997); however, the existence of a contract may also be inferred from other external and objective manifestations of mutual assent. Unless a contract is required by a statute to be signed (the [Federal Arbitration Act] contains no such requirement), or by the Statute of Frauds to be in writing (the contract here is not subject to Alabama’s Statute of Frauds, Ala. Code 1975, § 8-9-2, which requires the signature of the party against whom enforcement is sought), or unless the parties agree that a contract is not binding until it is signed by both of them (there is no evidence of such an agreement), it need not be signed by the party against whom enforcement is sought, provided it is accepted and acted upon.’ ”

Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1142 (Ala.2003) (quoting Ex parte Rush, 730 So.2d 1175, 1177-78 (Ala. 1999)).

In the present case, the only evidence presented by Martin & Cobey was the form agreement, which was not signed by either party. Martin & Cobey simply did not present any evidence of mutual assent to the terms of the form agreement. Martin & Cobey did not present a signature on a contract to show mutual assent to an arbitration agreement, nor did it present any evidence of any external and objective manifestations of mutual assent to the terms of the form agreement. Therefore, Martin & Cobey did not meet its initial burden of proving the existence of a written contract calling for arbitration.

Martin & Cobey alleges that ICE manifested assent to the form agreement because, Martin & Cobey says, ICE seeks to enforce payment by Martin & Cobey under the form agreement. See Bowen, 879 So.2d at 1143 (holding that “[a] plaintiff cannot seek the benefits of a contract but at the same time avoid the arbitration provision in the contract”). Specifically, Martin & Cobey argues:

“[I]n the present case, the Circuit Court had evidence before it that ICE benefit-ted from and relied on the [form agreement]. First, it is undisputed that the [form agreement] amount is $748,250.00 (C. at 29) or, based on the figure included in the Revised FedEx Pricing, $790,800.00 (C. at 109.) However, ICE claims only $178,377.50 for the remaining portion of the unpaid [form agreement]. (See C. at 5.) In other words, ICE has received at least $612,422.50, worth of payments, which could only have been obtained using the pay application attached to the [form agreement]. (See C. at 44.)”

Martin & Cobey’s brief, at 20-21.

However, Martin & Cobey has not presented any evidence to support its bare assertion that ICE seeks to enforce payment by Martin & Cobey under the form agreement dated October 15, 2007, or that ICE could have received payments only “using the pay application attached to the [form agreement].” On the other hand, ICE presented affidavit testimony indicating that it never agreed to the terms of the form agreement. Also, the breach-of-contract claim in ICE’s complaint explicitly seeks to recover under a contract entered into “on or about December 11, 2007,” not October 15, 2007. Martin & Cobey failed to present any evidence indicating that ICE is seeking the benefits of the form agreement but at the same time attempting to avoid the arbitration provision in the form agreement.

Conclusion

Martin & Cobey failed to meet its initial burden of proving the existence of a written contract calling for arbitration; thus, the trial court erred in ordering that ICE’s claims be arbitrated. Therefore, we reverse the trial court’s order and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . On December 19, 2008, ICE filed a notice of dismissal as to Regions, and Regions was dismissed as a defendant on January 6, 2009. Scannell and FedEx are not here on appeal.

      . This argument concerning the intertwining of issues has been abandoned on appeal. Martin & Cobey’s brief states that "[w]hile the circuit court properly considered the intertwining of the issues raised in the suit between Martin & Cobey and [Scannell] in determining whether to enforce arbitration between ICE and Martin & Cobey, Martin & Cobey and Scannell resolved their dispute after this appeal was filed, and such an analysis is no longer relevant.” Martin & Cobey’s brief, at 7 n. 2.


author: LYONS, Justice.

text:
    GULF BEACH HOTEL, INC. v. GULF STATE PARK AUTHORITY et al. Gulf Beach Hotel, Inc. v. Gulf State Park Authority et al.
    1081809 and 1081811.
    Supreme Court of Alabama.
    Sept. 17, 2010.
    William J. Baxley, Joel E. Dillard, and Elizabeth W. McElroy of Baxley, Dillard, Dauphin, McKnight & James, Birmingham, for appellant.
    William A. Gunter IV, gen. counsel, Alabama Department of Conservation and Natural Resources Legal Division, for ap-pellees the Alabama Department of Conservation and Natural Resources and its officials; Kirkland E. Reid of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., Mobile, for appellees Auburn University, Dr. Jay Gouge, as successor to Dr. Ed R. Richardson, and West Paces Hotel Group, LLC; and Benjamin H. Albritton, asst. atty. gen., for appellee Governor Bob Riley.
   LYONS, Justice.

Gulf Beach Hotel, Inc. (“Gulf Beach”), appeals from a judgment of the Montgomery Circuit Court in consolidated cases dismissing its amended complaint against multiple defendants for lack of jurisdiction. We affirm.

Factual Background and Procedural History

On June 26, 2008, the trial court entered a summary judgment for the plaintiffs— Gulf Beach, Charley Grimsley, the Alabama Education Association (“the AEA”), and the Alabama State Employees Association (“the ASEA”) — and against Governor Bob Riley; the Alabama Department of Conservation and Natural Resources (“the Department”); the commissioner of the Department, M. Barnett Lawley; Department officials Marcus Easterwood, Richard Liles, and Terry Boyd; then Finance Director James Allen Main; Auburn University (“the University”); the president of the University, Dr. Jay Gogue; the Gulf State Park Authority (“the Authority”); and West Places Hotel Group, LLC (hereinafter referred to collectively as “the defendants”), in consolidated actions CV-05-1409 and CV-05-1804. The plaintiffs challenged the defendants’ actions related to a memorandum of understanding between the Department and the University relative to the lease and sublease of property in Gulf State Park for use as a hotel (“the MOU”).

In its June 26, 2008, judgment, the trial court determined that the lease contemplated by the MOU violated §§93 and 213.32 of the Alabama Constitution of 1901 (Off.Recomp.); the State Parks Concession Act, § 9-14-20 et seq., Ala.Code 1975 (“the Concession Act”); the Gulf State Park Improvement Act, § 9-14B-1 et seq., Ala. Code 1975 (“the Improvement Act”); and the State Land Sales Act, § 9-15-70 et seq., Ala.Code 1975 (“the Land Sales Act”). In a detailed statement, the trial court enjoined the defendants from engaging in specific acts that violated those provisions. The trial court then stated: “The court retains jurisdiction of this matter to enforce its ruling and to ensure that the defendants comply with the terms of this order.” On July 3, 2008, after the entry of the trial court’s judgment, the circuit clerk created entries in the case-action summary showing that all parties had been “disposed” by the trial court’s judgment. The defendants subsequently appealed.

On March 27, 2009, in Gulf State Park Authority v. Gulf Beach Hotel, Inc., 22 So.3d 432 (Ala.2009), this Court affirmed the trial court’s judgment in part, reversed it in part, and dismissed several defendants from the action. Specifically, this Court dismissed the University, the Department, and the Authority, concluding that they were entitled to immunity under Article I, § 14, Ala. Const.1901. This Court then reversed the trial court’s judgment as to § 93, § 213.32, the Land Sales Act, and the Improvement Act, concluding that the defendants’ actions did not violate those constitutional provisions or acts. Regarding the Concession Act, however, this Court determined: “The defendants have not demonstrated any error in the trial court’s holding that the proposed transactions would violate the Concession Act.” 22 So.3d at 442. In conclusion, this Court stated, in part: “[W]e affirm the trial court’s judgment insofar as the trial court held that the Concession Act has been, or would be, violated by the past or proposed actions of the defendants.” Id.

In May 2009, the legislature enacted what became Act No. 2009^466, Ala. Acts 2009. Act No. 2009-466, as summarized by the defendants before the trial court, “describes by metes and bounds certain property at Gulf State Park formerly covered by the MOU and provides a specific new set of rules to govern any lease of that property.” Act No. 2009^466 also specifically provides that the Concession Act does not apply to the property.

After Act No. 2009-466 became law, Gulf Beach sought additional discovery from the remaining defendants and from third parties regarding Act No. 2009-466 and the remaining defendants’ plans relative to the property. On August 4, 2009, the remaining defendants objected and moved to dismiss the action for lack of jurisdiction. The remaining defendants requested that the trial court dismiss the action in its entirety, stating: “There is no pleading before this court which purports to justify supplemental relief.” Specifically, the remaining defendants argued that case no. CV-05-1409 and case no. CV-05-1804 were rendered moot because the MOU was “not in effect any longer” as a result of this Court’s March 27, 2009, decision and the enactment of Act No. 2009-466.

Gulf Beach filed an amended complaint on August 7, 2009. In the first paragraph of the amended complaint, Gulf Beach stated that it adopted and incorporated all the allegations and counts of the original complaint, including its claims against the defendants who had been previously dismissed. It then discussed Act No. 2009-466 and stated five counts, each challenging Act No. 2009-466 on a different ground as either constitutionally infirm or violative of statutory provisions, including the Concession Act. Gulf Beach did not allege that the defendants had violated any terms of the trial court’s June 26, 2008, injunction. Gulf Beach sought new relief in the form of a declaration of its rights, a declaration that Act No. 2009-466 was unconstitutional, and an order “permanently restraining [the defendants] from carrying out the construction proposed by [Act No. 2009-466] and the [MOU].”

On August 10, 2009, the trial court granted the remaining defendants’ motion to dismiss for lack of jurisdiction, without stating the basis for its ruling. Gulf Beach subsequently moved the trial court to alter, amend, or vacate its order. The trial court denied that motion, and Gulf Beach appealed. The defendants have moved to dismiss these appeals, alleging a lack of jurisdiction based on substantially the same arguments made in the remaining defendants’ motion to dismiss before the trial court. Because the defendants’ arguments are identical to those discussed by the parties in their briefs regarding the merits of the appeals, we will consider the motion concurrently with the merits of the appeals.

Standard, of Review
“In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creóla Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.’
878 So.2d at 1148-49.”

Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005).

Analysis

Gulf Beach argues on appeal that the trial court erred in dismissing its amended complaint for lack of jurisdiction because, it says, the trial court, in its June 26, 2008, judgment, “retain[ed] jurisdiction of this matter to enforce its ruling and to ensure that the defendants comply with the terms of [the June 26, 2008,] order.” Gulf Beach also references this Court’s statement that “we affirm[ed] the trial court’s judgment insofar as the trial court held that the Concession Act has been, or would be, violated by the past or proposed actions of the defendants.” 22 So.3d at 442.

To support its argument, Gulf Beach first relies on this Court’s statements that a trial court has residual jurisdiction to enforce its judgments, citing State Personnel Board v. Akers, 797 So.2d 422, 424 (Ala.2000) (“A trial court has inherent authority to interpret, clarify, and enforce its own final judgments.... Thus, even after this Court, on the direct appeal, affirmed the trial court’s ... judgment, that court retained jurisdiction to interpret and clarify that judgment.”); George v. Sims, 888 So.2d 1224, 1227 (Ala.2004) (“a trial court has ‘residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment’”); and Helms v. Helms’ Kennels, Inc., 646 So.2d 1343, 1347 (Ala.1994) (“a trial court does have residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment” ).

In its amended complaint, Gulf Beach stated that it adopted and incorporated the allegations and claims stated in the original complaint. However, as discussed below, all of those allegations and claims had already been fully and finally adjudicated by the trial court in its June 26, 2008, judgment. Additionally, the only relief Gulf Beach claimed in its amended complaint was 1) a declaration of its rights, 2) a declaration that Act No. 2009-466 was unconstitutional, and 3) a new order enjoining the defendants from proceeding with plans for the property as authorized by Act No. 2009^66. This relief is similar to the relief sought by the plaintiffs in their original complaint, but is based on a different fact, namely the enactment and effect of Act No. 2009-466. Gulf Beach did not allege any violation of the trial court’s June 26, 2008, judgment. Nor did it request a show-cause order or other similar relief consistent with an attempted enforcement of that judgment.

State Personnel Board, George, and Helms relate to the trial court’s residual jurisdiction to enforce its judgments. Similarly, the trial court, in its June 26, 2008, judgment, expressly retained jurisdiction for the specific and limited purpose of enforcing its ruling. Because Gulf Beach did not seek enforcement of the June 26, 2008, judgment, the trial court did not have retained or residual jurisdiction to consider the amended complaint. Any claims regarding the validity or effect of Act No. 2009-466 should, therefore, have been asserted in a new action challenging that legislation.

Gulf Beach next argues that a trial court, after an appeal of its judgment, has jurisdiction to permit new pleadings, particularly when the appellate court has not given specific directions to the trial court. Gulf Beach cites Ex parte Insurance Co. of North America, 523 So.2d 1064, 1069 (Ala.1988) (“[A] trial court, after this Court has reversed and remanded without directions but has not entered a judgment constituting a final adjudication of all issues, has the discretion to grant a motion to amend an original complaint as to issues not yet finally adjudicated.”), and Ex parte Roach, 414 So.2d 80, 82 (Ala.1982)(“‘When this court reverses and remands without further direction, the trial court may, in the exercise of sound judicial discretion, permit further pleadings and proof as justice and equity dictate.’ Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974).”).

However, Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974), the decision relied on in Roach and quoted by Gulf Beach, was expressly overruled in Insurance Co. of North America. In that case, this Court explained:

“[A] trial court, after this Court has reversed and remanded without directions but has not entered a judgment constituting a final adjudication of all issues, has the discretion to grant a motion to amend an original complaint as to issues not yet finally adjudicated. “... Citizensbank relies on Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974), for the proposition that a plaintiff can amend its complaint after this Court has reversed without directions. As we have already-noted, that proposition is not necessarily untrue, but neither is it correct in all situations. In Havard, this Court reversed a judgment for the plaintiff, holding that ‘the affirmative charge should have been given by the trial judge,’ but then went on to allow an amendment to the complaint and further proceedings under the amended complaint. To the extent that Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974), is inconsistent with our holding in the present case, it is expressly overruled.”

523 So.2d at 1069-70 (emphasis added).

Consistent with this explanation, subsequent decisions of this Court have made clear that the pertinent inquiry regarding whether the trial court has jurisdiction to consider an amended pleading after a judgment has been entered is whether the judgment is final. See, e.g., Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 665 (Ala.2009) (“Although the trial court may have retained jurisdiction to alter its judgment by an appropriate postjudgment motion, no such motion was granted by the trial court in this case. Thus, the trial court lacked jurisdiction to accept Blakeney LLC’s amendment purporting to add new claims and a new party.”), and Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 490-91 (Ala. 2008) (“[A] trial court has no jurisdiction to entertain a motion to amend a complaint to add new claims or new parties after a final judgment has been entered, unless that ‘judgment is first set aside or vacated’ pursuant to the state’s rules of civil procedure .... A trial ‘ “court cannot, by its subsequent action, divest a [judgment] of its character of finality. A final [judgment] is not rendered interlocutory by the retention of the case on the docket, nor by the subsequent rendition of another [judgment] therein.” ’ [Pratt Capital, Inc. v.j Boyett, 840 So.2d [138,] 144-45 [(Ala. 2002) ] (quoting Nichols [u Ingram Plumbing ], 710 So.2d [454,] 456 [ (Ala.Civ.App.1998) ], quoting in turn Min-gledorff v. Falkville Downtown Redev. Auth., 641 So.2d 830, 832 (Ala.Civ.App. 1994)). Neither can a final judgment ‘be made nonfinal by the trial court’s calling it nonfinal.’ Smith v. Fruehauf Corp., 580 So.2d 570, 572 (Ala.1991) (emphasis added).”).

In this case, the trial court entered a permanent injunction on June 26, 2008. That order disposed of all issues between the parties and left nothing for the trial court to adjudicate. Entries in the case-action summary on July 3, 2008, show that the trial court’s order disposed of all parties to the litigation. The defendants appealed, and, on March 27, 2009, this Court affirmed the trial court’s judgment in part, reversed it in part, and dismissed certain defendants. This Court’s decision did not revive any issues, and it left nothing for the trial court to adjudicate between the parties. As discussed above, the trial court retained residual jurisdiction to enforce its judgment, see State Personnel Board, supra; however, that judgment was final. See Dickerson v. Alabama State Univ., 852 So.2d 704, 705 (Ala.2002) (“The general rule is that a trial court’s order is not final unless it disposes of all claims as to all parties.”). Accordingly, the trial court had no authority to consider new claims, and it correctly dismissed the amended complaint.

Gulf Beach next argues that the trial court’s dismissal of the amended complaint violates the separation of powers mandated by § 43, Ala. Const.1901. This argument, however, relates solely to the merits of Gulf Beach’s claims challenging the constitutionality of Act No. 2009-466. Specifically, Gulf Beach argues that Act No. 2009-466 was an impermissible effort by the legislature to invade the province of this Court and the trial court and to reverse the outcome of the present litigation. Gulf Beach reasons that, by refusing to allow Gulf Beach to challenge Act No. 2009-466 in the present litigation, the trial court has validated the legislature’s exercise of a judicial function.

This argument, however, fails in that the trial court properly refused to consider the merits of Gulf Beach’s challenge to Act No. 2009-466. Gulf Beach may assert its arguments that Act No. 2009-466 is invalid, under § 43 or otherwise, in a new action challenging that legislation. The trial court correctly refused to consider matters not properly before it.

Conclusion

Gulf Beach has not shown that the trial court erred in dismissing the action. We, therefore, deny the motion to dismiss the appeal as moot and affirm the trial court’s judgment.

1081809 — MOTION TO DISMISS APPEAL DENIED; AFFIRMED.

1081811 — MOTION TO DISMISS APPEAL DENIED; AFFIRMED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . In the context of this proceeding we speak of jurisdiction in the sense of the authority of the trial court to proceed consistent with principles dealing with finality of judgments as opposed to subject-matter jurisdiction.

      . Although there are two case numbers on appeal because the notice of appeal identified consolidated cases, the only appellant is Gulf Beach; the style in these appeals has been corrected accordingly.

      . The complete sentence reads as follows: "Although a trial court has 'residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment,’ that authority is not so broad as to allow substantive modification of an otherwise effective and unambiguous final order.” 888 So.2d at 1227.

      . The complete sentence reads as follows: "Although a trial court does have residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment, see Jones v. City of Opelika, 242 Ala. 24, 4 So.2d 509 (1941), that authority is not so broad as to extend to the actions taken by the trial court in this case....” 646 So.2d at 1347.

      .Gulf Beach also refers to portions of this Court's decision in Ernst & Young, LLP v. Tucker, 940 So.2d 269, 288 (Ala.2006), in which this Court noted the speculative nature of a trial court’s reservation of jurisdiction after referring certain of the plaintiff’s claims to arbitration, stating: "The trial court’s reservation of authority to award [the plaintiff's] attorneys a fee from any recovery clearly relates to a speculative eventuality, depending on the outcome of the arbitration and any order resulting from the arbitration relating to attorney fees.” In the next sentence, this Court then declined to impute error to the trial court based on the speculative retention, stating: "We will not predicate reversible error at this point on such a contingent and problematic eventuality.” Id. Gulf Beach does not explain how this decision relates to the situation presented by these appeals.

      . In its brief on appeal, Gulf Beach raises substantive arguments regarding the validity of Act No. 2009-466. Those arguments are not properly before this Court, and they do not alter our conclusion that the trial court correctly dismissed Gulf Beach’s claims challenging Act No. 2009-466 for lack of jurisdiction. Questions regarding the validity of Act No. 2009-466, as stated above, are properly raised in separate litigation.

      . Article III, § 43, Ala. Const.1901, provides:
      "In the government of this state, except in die instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”