text:
    CITY OF BRUCE, Appellant v. BORREGO SPRINGS BANK, N.A., Appellee.
    No. 2011-CA-00276-COA.
    Court of Appeals of Mississippi.
    March 20, 2012.
    Rehearing Denied July 24, 2012.

      Jeffrey Carter Smith, attorney for appellant.
    Stephan L. McDavid, attorney for appel-lee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Borrego Springs Bank, N.A. filed suit to hold the tax deed issued by the City of Bruce, Mississippi void and declare Bor-rego’s property to be free of any encumbrances. The circuit judge declared the tax sale void because the City had failed to met the statutory notice requirements under Mississippi Code Annotated section 27-43-3 (Rev.2010). On appeal, the City argues the circuit judge erred because the required notice was substantially provided. We find no error and affirm.

FACTS

¶ 2. Borrego was a first position lien-holder on property owned by Skuna River, LLC. Skuna filed for bankruptcy shortly after Borrego financed the property purchase. The ad valorem taxes outstanding on the land were listed in the bankruptcy schedule. The bankruptcy court auctioned the land once owned by Skuna, and Borre-go bought the land free and clear of all liens.

¶ 3. After Borrego purchased the property, the City went forward with a tax sale of the property on August 28, 2006, during the bankruptcy period. After the tax sale on September 1, 2006, Skuna issued a deed transferring the property to Borrego, which filed the deed.

¶ 4. The City concedes that prior to the expiration of the redemption period it did not publish notice of the sale in a public newspaper in the county in which the land was located. However, Borrego did receive a certified letter stating the redemption period was nearing expiration. Borre-go filed for summary judgment declaring the tax sale void because the notice requirements of section 27-43-3 had not been met. The circuit judge granted the motion for summary judgment based on the City’s failure to comply with the notice requirements of section 27-43-3, and there by rendering the tax sale void.

STANDARD OF REVIEW

¶ 5. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 183,185 (¶ 4) (Miss.2003)). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists. The moving party has the burden of demonstrating that no genuine issue of material fact exists within the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Id. (internal citations and quotations omitted).

¶ 6. Further, when an appeal concerns property sold in a tax sale, this Court has held: “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners.” Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991). “Any deviation from the statutorily mandated procedure renders the sale void.” Roach v. Goebel, 856 So.2d 711, 716 (¶ 29) (Miss.Ct.App.2003) (citing Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980)).

ANALYSIS

¶ 7. The issue is whether the circuit court erred in granting summary judgment declaring the tax sale void based on the City’s failure to comply with the notice requirements of section 27-43-3. The City argues it substantially complied with the statutory requirements, and Borrego received actual notice. Borrego argues the statute is clear and must be strictly construed and that failure to comply with each of the notice requirements renders the tax sale void.

¶ 8. Section 27-43-3 provides:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and, address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (4-5) days prior to the expiration of the redemption period. If said reputed owner is a nonresident of the State of Mississippi, then the clerk shall mail a copy of said notice thereto in the same manner as hereinabove set out for notice to a resident of the State of Mississippi, except that personal notice served by the sheriff shall not be required.
The failure of the landowner to actually receive the notice herein required shall not render the title void, provided the clerk and sheriff have complied with the duties herein prescribed for them. Should the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.

(Emphasis added).

¶ 9. “Section 27-43-3 requires redemption notice to be given by personal service, by mail, and by publication in an appropriate newspaper.” DeWeese Nelson Realty, Inc. v. Equity Servs. Co., 502 So.2d 310, 312 (Miss.1986). All three requirements must be met for the redemption notice to be complete and in accordance with the statute. Id.

¶ 10. In Moore v. Marathon Asset Management, LLC, 973 So.2d 1017, 1021 (¶ 15) (Miss.Ct.App.2008), this Court held the chancery court clerk failed to meet the statutory notice requirements, and the tax sale was void. In Moore, the clerk sent notice via certified mail, but the record failed to show notice published in the county newspaper. Id.

¶ 11. Here, the record is clear the municipal clerk failed to publish the redemption notice in the county newspaper forty-five days before the redemption period expired. The City does not dispute its failure to publish notice in the county newspaper. Because of the failure to publish the redemption notice, the statutory notice requirement was not met.

¶ 12. We must strictly construe the notice statutes in favor of the landowners. Accordingly, we find that the circuit judge did not err as a matter of law by voiding the tax sale as the municipal clerk did not comply with the statutory notice requirements.

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

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


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Thomas EVANS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KM-01225-COA.
    Court of Appeals of Mississippi.
    March 20, 2012.
    Rehearing Denied July 24, 2012.

      Thomas Evans, Jr., appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Thomas Evans Jr. appeals his conviction and sentence for driving under the influence (DUI), first offense. Evans raises the following assignments of error: whether (1) the verdict is against the overwhelming weight of the evidence; (2) the State failed to prove Officer John Marolt, a Mississippi State Highway Patrol officer, possessed sufficient qualifications and certifications to administer the breath-analysis tests; and (3) the trial court erred by failing to appoint him counsel to protect his Sixth Amendment rights. Finding no error, we affirm.

FACTS

¶ 2. On March 15, 2009, Evans was traveling on Highway 82 near Mathiston, Mississippi, when Officer Marolt stopped his vehicle. Officer Marolt testified he stopped Evans’s vehicle for speeding. Officer Marolt stated Evans was traveling at a high rate of speed, 105 miles per hour in a 65 miles-per-hour zone. Officer Marolt further testified that when he approached the vehicle, he asked Evans, the driver of the vehicle, for his driver’s license. As this was taking place, Officer Marolt said he noticed a strong smell of intoxicating beverage emitting from inside the vehicle. Officer Marolt asked Evans to step out of the vehicle, and Evans complied. Officer Marolt testified Evans’s eyes were dilated, and Evans slurred his speech. Officer Marolt testified that he then attempted to administer a portable breath test, but Evans refused to blow hard enough into the machine for the test to register. As a result, Officer Marolt decided to take Evans to the police department. Officer Marolt stated that while transporting Evans to the police department, Evans admitted consuming alcoholic beverages earlier that day.

¶ 3. Officer Marolt testified that the video equipment in his police car recorded the roadside stop and Evans’s transport to the police department; however, the video recording was admitted at trial for identification purposes only since the State experienced technical difficulties with the video equipment at trial.

¶ 4. Once at the police department, Officer Marolt offered Evans the Intoxilyzer test, but Evans refused. Officer Marolt testified:

I, what I recall is we got to the jail, and you [Evans] were offered the test at the end of the observation period, at which time you [Evans] refused. And I ran all the information through the machine, and then about ten minutes later[,] you [Evans] were wanting to take the test. That is not how it works. You are offered that test one time, and when you refuse it, you refused it.

Officer Marolt ticketed Evans for driving under the influence of alcohol, no proof of liability insurance, careless driving, and speeding.

¶ 5. On July 17, 2009, the Webster County Justice Court found Evans guilty of DUI, first offense. Evans subsequently appealed to the Circuit Court of Webster County where, after a trial de novo, he was found guilty of DUI, first offense, in violation of Mississippi Code Annotated section 63 — 11—30(l)(a) (Supp.2011). The circuit court then imposed a forty-eight hour suspended sentence, and the court ordered Evans to pay a fine and court costs as well as to attend the Mississippi Alcohol Safety Education Program. Feeling aggrieved, Evans now appeals his conviction and sentence.

DISCUSSION

I. THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 6. Evans argues that his conviction is against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). “The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). We weigh the evidence, however, in the light most favorable to the verdict. Id. (citation omitted).

¶ 7. Evans cites to the following in support of his argument: the video recording of the roadside stop and his transport to the police department was not admitted into evidence at trial; the State presented no test results at trial to establish his intoxication; the State failed to show that Evans refused the Intoxilyzer test; Officer Marolt demonstrated bias toward him; and there was no proof, other than Officer Marolt’s testimony, that Evans was intoxicated. Furthermore, Evans argues no proof of probable cause existed as to why Officer Marolt stopped his vehicle on the night in question.

¶ 8. Here, we find the State offered ample evidence in support of Evans’s DUI conviction. Officer Marolt testified to the following: Evans was traveling at an extremely high rate of speed; Officer Marolt smelled alcohol emitting from Evans’s vehicle; Evans slurred his speech; Evans’s eyes were dilated; Evans admitted that he had consumed alcoholic beverages earlier that day; and Evans initially refused to take the Intoxilyzer test at the police department. Accordingly, we find that the evidence did not preponderate so heavily against the verdict that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 9. Additionally, we find no merit to Evans’s claim that Officer Marolt lacked probable cause to initiate the traffic stop. We recognize that as a general rule, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Henderson v. State, 878 So.2d 246, 247 (¶ 7) (Miss.Ct.App.2004) (quoting Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). The record shows Officer Marolt witnessed Evans’s vehicle traveling 105 miles per hour, which was in violation of the 65 miles-per-hour speed limit. The officer’s observations were enough for him to determine that a speeding violation occurred. Thus, probable cause clearly existed for the traffic stop. This issue is without merit.

II. OFFICER MAROLT’S TESTIMONY

¶ 10. Evans argues the State failed to prove Officer Marolt possessed the qualifications and certifications required to administer breath-analysis tests. Thus, Evans claims Officer Marolt improperly testified that he failed to blow hard enough into the portable breath test for it to register. In support of his argument, Evans cites Johnston v. State, 567 So.2d 237, 238 (Miss.1990) for the proposition that, “A chemical analysis of a person’s breath, blood, or urine is deemed valid only when performed according to approved methods; performed by a person certified to do so; and performed on a machine certified to be accurate.” (Emphasis added). Additionally, Evans cites to Mississippi Code Annotated section 63-11-19 (Supp.2011) for the proposition that the State failed to prove as part of its authenticity burden that Evans’s breath test was “performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis.”

¶ 11. After reviewing the record, we find no merit to this argument. At trial, Officer Marolt testified he was unable to get test results from the portable breath test at the roadside stop because Evans failed to blow into the machine hard enough for it to register. Officer Marolt then testified that when he offered Evans the Intoxilyzer test at the police department, Evans refused. Officer Marolt explained that although Evans later requested to take the Intoxilyzer test, too much time had passed and Evans refused his chance to take the test at the proper time. While we recognize “[t]he results of a breath-analysis test are only valid if performed by a person certified to give such a test[,]” see Hudspeth v. State, 28 So.3d 600, 603 (¶ 12) (Miss.Ct.App.2009), we find that no breath-analysis test results were presented at trial to establish Evans’s guilt. As such, the question of whether Officer Marolt possessed sufficient qualifications and certifications to administer breath-analysis tests is irrelevant. The admissibility and relevancy of evidence falls within the trial court’s discretion, and absent an abuse of that discretion, we will not disturb that decision. Pulido v. City of Oxford, 991 So.2d 1223, 1228 (¶ 22) (Miss.Ct.App.2008) (citation omitted). This issue is without merit.

III. RIGHT TO COUNSEL

¶ 12. Evans claims the trial court violated his right to counsel pursuant to the Sixth Amendment of the United States Constitution by failing to appoint him an attorney at trial.

¶ 13. “The Mississippi Constitution Article 3, Section 26 and the Sixth Amendment of the United States Constitution grant a defendant the right to be heard by himself or counsel or both.” Fields v. State, 879 So.2d 481, 484 (¶ 12) (Miss.Ct.App.2004). “Though the right to counsel is absolute, the right to counsel of choice is not absolute.” Id. at (¶ 13) (citing Atterberry v. State, 667 So.2d 622, 630 (Miss.1995)). “This right may not be used to thwart the progress of a trial.” Id. (citing Ladnier v. State, 273 So.2d 169, 173 (Miss.1973)). The denial of a last minute continuance to retain new counsel falls within the discretion of the trial court. Id. (citation omitted).

¶ 14. During his proceedings in justice court, Evans indicated that he wanted counsel and asserted he was indigent. However, the justice court’s order states that Evans proceeded pro se after receiving two continuances to obtain counsel. The record further shows that Evans appeared for trial before the circuit court without counsel on June 21, 2010. Evans advised the circuit judge that he owed money to his attorney and asked for a continuance, which the circuit court granted. In granting the continuance, the court stated:

Okay, we will just move this over until 10 o’clock next Monday, Mr. Evans. And your attorney, you need to tell them [sic] to be here, and if that attorney doesn’t represent you, if you want an attorney, you are going to have to go hire somebody else because we can’t — I mean you are not entitled to an appointed lawyer....

The circuit court ordered that the trial commence on June 28, 2010. Evans appeared at the June 28, 2010 hearing, again without counsel. Evans told the court that he had offered payment of $650 to one attorney and contacted another attorney regarding his representation, but he had not retained counsel by the date of trial. The circuit judge then informed Evans that trial would proceed whether he had counsel or not given the amount of time Evans had to secure counsel.

¶ 15. While we recognize that an indigent is entitled to competent counsel to defend him, the record shows Evans neither requested a court-appointed attorney nor properly qualified himself as indigent with the circuit court prior to trial. See Wynn v. State, 964 So.2d 1196, 1204 (¶ 32) (Miss.Ct.App.2007) (finding the defendant’s contention that he was denied his right to counsel without merit because the defendant was “not indigent and thus not entitled to court-appointed counsel[.]”). Accordingly, we find this issue without merit.

¶ 16. THE JUDGMENT OF THE WEBSTER COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN JAIL SUSPENDED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT.

      . See Fields, 879 So.2d at 484 (¶ 13).

      . The record shows that after the trial, on July 27, 2010, Evans filed a motion to proceed on appeal in forma pauperis. The circuit court denied Evans’s motion based on his failure to offer proof that he was indigent. Evans then filed a motion to reconsider the circuit court's order denying his motion to appeal in forma pauperis. The circuit court granted Evans’s motion to reconsider, stating: Evans has attached to his motion a sworn Declaration in Support of Request to Proceed with Appeal to Supreme Court In For-ma Pauperis, that purports to list all of his income and assets. This court finds his declaration to be highly suspect. However, since this court has no independent way of verifying the truthfulness of his declaration, this court will accept his declaration as true_


author: MAXWELL, J.,

text:
    Catherine LEPORI, Appellant v. Alton WELCH, Appellee.
    No. 2011-CA-00057-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.

      M. Judith Barnett, attorney for appellant.
    Joe Sam Owen, Charles C. Wimberly III, Gulfport, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES, ISHEE, and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Mississippi Code Annotated section 93-15-103 (Rev.2004) lists the circumstances when a court may terminate a parent’s rights in the best interest of the child. After her son Brandon Rathbone died in a work-related accident, Catherine LePori petitioned under section 93-15-103 to terminate the parental rights of Brandon’s biological father, Alton Welch, to prevent Welch from benefitting from the wrongful-death action she had filed. The chancery court dismissed the petition because: (1) section 93-15-103 is not applicable after a child dies; and (2) a petition to terminate parental rights is not the proper way to challenge a natural father’s right to benefit from a wrongful-death action. We affirm.

BACKGROUND FACTS

¶ 2. In 1988, LePori gave birth to an illegitimate son, Brandon. In 2001, the Department of Human Services filed a complaint against Welch to establish paternity. A judgment of paternity and order to pay child support was not entered until 2007. In March 2008, nineteen-year-old Brandon died when a sewer line he was working in collapsed.

¶ 3. A year later, in March 2009, LePori filed a petition to terminate Welch’s paternal rights. The petition was filed in the Forrest County Chancery Court, under the same cause number as the judgment of paternity. The petition alleged LePori “is entitled to terminate Welch’s parental rights, posthumously, so that he will not inherit, as that term is used, from any wrongful-death claim that may be asserted.” Both LePori and Welch acknowledge that LePori did in fact file a wrongful-death action in Forrest County Circuit Court. And it was Welch’s motion to intervene in that action that caused LePori to file her termination petition.

¶ 4. Welch responded to the termination petition with a motion to dismiss. He argued the termination-of-parental-rights statute LePori sought to take advantage of could not be applied posthumously. The chancellor found Welch’s motion was well-taken and dismissed LePori’s petition. LePori timely appealed.

DISCUSSION

I. Termination of Parental Rights

¶ 5. LePori argues the chancellor failed to consider as grounds for termination the “substantial erosion” of Brandon and Welch’s relationship caused by Welch’s actions. See Miss.Code Ann. § 93-15-103(3)(f). But the grounds for termination in section 93-15-103(3) are to be considered only when the circumstances of section 93-15-103(1) are met:

When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

Miss.Code Ann. § 93-15-103(1).

¶ 6. It is clear from the plain language of section 93-15-103—as well as the cases that have applied this section—the concern of the statute is when a parent’s rights may be terminated in order for the child to be adopted. E.g., S.R.B.R. v. Harrison County Dep’t of Human Servs., 798 So.2d 437, 445 (¶ 32) (Miss.2001) (Department of Human Services petitioned for termination of parental rights because close relatives, who had temporary custody of child, were interested in adopting child); Petit v. Holifield, 443 So.2d 874, 875 (Miss.1984) (natural mother and her new husband petitioned for adoption of minor child by husband over the objection of natural father). And as with child custody, “the best interest of the child is the paramount consideration” when deciding whether to terminate parental rights. Lauderdale County Dep’t of Human Servs. v. T.H.G., 614 So.2d 377, 385 (Miss.1992) (citing Petit, 443 So.2d at 877). Because the statute concerns the best interest of the child—not the parent’s interest in inheriting from the child—it logically follows the statute only addresses circumstances when the child is still living. Thus, the chancellor correctly concluded this statute is not to be applied posthumously.

II. Right to Inherit from Illegitimate Child

¶ 7. LePori argues the dismissal of her termination proceeding will lead to the inequitable result of Welch unjustly bene-fitting from the wrongful-death action. The Wrongful Death Act, set forth in Mississippi Code Annotated section 11-7-13 (Rev.2004), governs who may benefit from a wrongful-death action. “The provisions of this section shall apply ... to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.” Id.

¶ 8. Mississippi Code Annotated section 91-1-15(3)(a)-c) (Supp.2011) gives the natural father of an illegitimate child the right to inherit if: (a) the parents participated in a marriage ceremony before the birth of the child; (b) there had been an adjudication of paternity or legitimacy before the child died; or (c) there had been a adjudication of paternity within a certain statutory time limit following death, which meets the statutory requirements. Additionally, the natural father must “ha[ve] openly treated the child as his, and ha[ve] not refused or neglected to support the child” in order to inherit. Miss.Code Ann. § 91-1-15(3)(d)(i) (Supp.2011).

¶ 9. The Wrongful Death Act, by incorporating section 91-1-15, addresses the inequity of a natural father of an illegitimate child benefitting from a wrongful-death action when he has failed to acknowledge and support his child. Miss.Code Ann. § 11-7-13. But it does not require the father’s rights be terminated under section 93-15-103. Instead, it imposes the duty on the father to show he meets the requirements of section 91-1-15 and is, thus, one of his child’s heirs-at-law. Miss.Code Ann. § 11-7-13.

¶ 10. So contrary to LePori’s assertion, equity did not require the chancellor to stretch section 93-15-103 beyond its intended purpose. LePori cites, as persuasive authority, New Jersey Division of Youth & Family Services v. M.W., 398 N.J.Super. 266, 942 A.2d 1 (2007), which terminated a mother’s parental rights posthumously. However, in that case, the court was faced with a parent who, after abandoning her child, sought to benefit from New Jersey’s wrongful-death statute, which, unlike Mississippi, did not prohibit recovery to a parent who fails to support the child. The New Jersey court “exercise[d][its] equitable powers in unusual circumstances” to grant termination posthumously because “there [were no] other lawful grounds to interdict her from receiving the inheritance.” Id. at 17.

¶ 11. In Mississippi, there are other lawful grounds for LePori to challenge the equity of Welch’s inheriting from Brandon. When opening Brandon’s estate, LePori could have initiated an action to determine Brandon’s heirs-at-law, following the procedures of Mississippi Code Annotated sections 91-1-27 and 91-1-29 (Rev.2004). This is the exact posture of the Mississippi cases LePori presented to the chancellor and to this court. See, e.g., Estate of Patterson v. Patterson, 798 So.2d 347, 348-50 (¶¶ 1-3, 9-16) (Miss.2001) (holding that, in action to determine deceased illegitimate child’s heirs-at-law, half-brother could not inherit because common father did not meet statutory requirements to inherit); Estate of McCoy v. McCoy, 988 So.2d 929, 931-33 (¶¶5, 9-13) (Miss.Ct.App.2008) (reversing chancellor’s finding that biological father was heir-at-law because father failed to show right to inherit under section 95-1-15(3)). Further, when Welch sought to intervene in the wrongful-death action in circuit court, LePori could have argued he had no right to intervene because he cannot show he meets the qualifications under sections 11-7-13 and 91-1-15(3). See M.R.C.P. 24(a) (procedure for intervention as of right).

¶ 12. Neither the estate proceeding pending in chancery court nor the wrongful-death action pending in circuit court is before this court on appeal. Thus, whether Welch has the statutory right to inherit from Brandon and receive benefits from the wrongful-death action is outside the scope of this appeal.

CONCLUSION

¶ 13. The only issue before this court is whether section 93-15-103 can be applied to terminate a parent’s rights after his or her child has died. And the statute clearly does not contemplate posthumous application. Issues arising after a child’s death, such as who may benefit from a wrongful-death claim and who is an heir-at-law, are addressed by other statutes. Thus, the chancellor did not err in dismissing LePo-ri’s petition to terminate under section 93-15-103 because it was filed after Brandon’s death.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: FAIR, J., LEE, C.J., BARNES, J.,

text:
    Dawn Smith Shannon CLIFTON, Appellant v. Thomas R. SHANNON, Appellee.
    No. 2011-CA-00037-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.

      Mitzi Conar Johnson, attorney for appellant.
    John Thomas Lamar Jr., Senatobia, attorney for appellee.
   FAIR, J.,

for the Court:

¶ 1. Dawn Clifton appeals a judgment transferring physical custody of her daughter to Thomas Shannon, her father. Because the chancellor failed to make findings of fact required for a proper determination of custody, we reverse and remand the chancery court’s judgment.

FACTS

¶ 2. Thomas and Dawn were divorced in DeSoto County, Mississippi, in 1999. Dawn was awarded custody of their daughter Ashley who was born on May 16, 1996. Both parents were given joint legal custody, and Thomas was awarded reasonable visitation.

¶ 3. Dawn moved to Colorado in December 2005, and shortly thereafter remarried. Thomas also remarried and remains in DeSoto County. In 2006, Thomas’s visitation schedule was modified by agreement, as it was impractical due to the travel distance between the parties. Thomas filed a petition for contempt and modification of custody in 2010, and Ashley joined in the petition. He claimed that a material change in circumstances adversely affecting the child had occurred. Dawn objected to the chancery court’s jurisdiction.

¶ 4. Because Ashley’s school year would begin in August, an emergency hearing was held in July to address the issue of temporary custody. Meeting with the chancellor in camera, Ashley described her experiences in the homes of both parents and expressed her preference to reside in her father’s home in Mississippi. The chancellor, retaining jurisdiction over issues of custody, awarded Thomas temporary custody in August. Five months later, the chancellor entered a judgment awarding “primary physical custody” to Thomas, determining that it was “in the best interest of the minor child.... ” The decision to modify custody was based in major part on Ashley’s testimony and expressed preference to reside with her father. The chancellor noted Ashley’s participation in extra-curricular activities in Mississippi, church involvement in Mississippi, and the fact that she “is well-adjusted with her step-mother and step-sister” in Mississippi. The chancellor also explained that Ashley “does not desire to reside with her [mother] and feels more comfortable living with her father, as opposed to her mother, her mother’s current husband, and her mother’s new child.”

¶ 5. Dawn now appeals questioning the court’s jurisdiction, asserting that the evidence was insufficient to support a modification of custody, and seeking attorney’s fees for this appeal. We affirm the chancery court’s jurisdiction and find an award of attorneys fees unsupported. However, finding that the chancellor failed to make findings of fact and conclusions of law as required in a custody modification case by the Supreme Court of Mississippi, we reverse and remand for further proceedings and compliance with the mandates of the supreme court.

DISCUSSION

1. Jurisdiction

¶ 6. Dawn argues that because the chancery court did not have continuing exclusive jurisdiction, Thomas’s petition should have been dismissed. She cites the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in Mississippi Code Annotated sections 93-27-101 to 402 (Rev.2004 & Supp.2010), to support her argument that jurisdiction should have been in Colorado. She claims that because Colorado has been Ashley’s home for four and a half years, there are no significant connections to Mississippi that warrant the exercise of jurisdiction over the custody-modification matter.

¶ 7. “Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So.3d 1023, 1026 (¶ 11) (Miss.Ct.App.2011) (citing Yeager v. Kittrell, 35 So.3d 1221, 1223 (¶¶ 12, 14) (Miss.Ct.App.2009)). However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard. See White v. White, 26 So.3d 342, 346-48 (¶¶ 10, 14) (Miss.2010).

¶ 8. In Yeager, this Court stated “[a] court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree.” Yeager, 35 So.3d at 1224 (¶ 16) (citing Miss.Code Ann. § 93-27-201 (Supp.2009)).

However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one pai'ent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. Only the issuing state may make this determination.

Id. (internal citation omitted).

¶ 9. There was sufficient evidence that Ashley still maintained a significant connection to Mississippi because her father and extended family reside here. In a recent opinion addressing a chancery court’s jurisdiction over a proceeding for modification of custody, the Mississippi Supreme Court held that since the father had continuously resided in Mississippi:

[I]t was within the chancellor’s discretion to determine that both the child and [the father] had a “significant connection with this state.” Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over [the] matter....

White v. White, 26 So.3d 342, 347-48 (¶ 14) (Miss.2010).

¶ 10. The DeSoto County Chancery Court was the court of original jurisdiction. Nothing in the record suggests that the chancellor erred in retaining jurisdiction. In fact, the Colorado court, where Dawn filed another custody action, had declined jurisdiction on the emergency relief that was requested and did not assume jurisdiction.

¶ 11. Dawn further contends that Mississippi is an inconvenient forum, as “the overwhelming abundance of substantial evidence and witnesses” with regard to the child’s home life are located in Colorado. She cites Mississippi Code Annotated section 93-27-207, which states in pertinent part:

(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

(Emphasis added.)

¶ 12. While Colorado may have been a more convenient forum for Dawn, the chancery court is endowed with the discretion to make that decision. Prior custody proceedings were conducted in Mississippi, and Ashley spent several weeks in Mississippi during the year visiting her father and family. We find that Mississippi was an appropriate forum and that the chancery court properly retained exclusive jurisdiction.

2. Custody Modification

¶ 13. To order a change in custody, the chancellor was first required to find a material change of circumstances and then to undertake an Albright analysis to determine the child’s best interests. McDonald v. McDonald, 39 So.3d 868, 880 (¶ 37) (Miss.2010); Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The chancellor failed to follow this controlling authority, as she did not make specific findings of fact regarding a material change in circumstances or the Albright factors.

¶ 14. In Estate of Langston v. Williams, 57 So.3d 618, 622 (¶ 17) (Miss.2011), the supreme court held that when a chancellor applies an incorrect legal standard, an appellate court must remand rather than render. The error here is essentially a failure to apply the correct legal standard and to do so of record. See, e.g., Johnson v. Johnson, 823 So.2d 1156, 1160 (¶ 9) (Miss.2002); Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997) (“[T]he failure to make findings of fact and conclusions of law ... requir[es] reversal and remand.”)

¶ 15. The two separate opinions written in this matter discuss the evidence that may have been considered by the chancellor in making her decision to remove Ashley from her mother’s custody and award custody to her father. Both opinions contain more discussion of the weight and sufficiency of evidence and factual conclusions than is contained in the record before us.

¶ 16. Chief Judge Lee’s opinion favors affirming the award and emphasizes the weight that should be given to certain evidence in support of a change in custody. He also suggests that if the evidence is insufficient to support a material-change finding, then this case is so unusual and compelling that the general rules set out above should be disregarded in favor of an overall best-interests-of-the-minor determination as occurred in Riley v. Dorner, 677 So.2d 740, 745 (Miss.1996).

¶ 17. Judge Barnes favors reversing and rendering the judgment, finding that the evidence is insufficient to support a modification and that custody should remain with Dawn.

¶ 18. Because the required findings were not made by the chancellor as our supreme court has directed, this Court must reverse and remand her judgment. On remand, the chancellor should make such findings and hold such hearings as may be necessary in light of the time that has passed since custody of the child was changed. Ashley is now sixteen years old and has been living with her father in Mississippi for almost two years. The chancellor should consider the present circumstances as well as those existing when the original decision to change custody was entered.

3. Attorney’s Fees

¶ 19. Dawn briefly asserts that she should be awarded attorney’s fees on appeal. The chancellor held that each party would be responsible for their respective attorney’s fees. “Attorney[’s] fees are not normally awarded in child custody modification actions.” McCraw v. Buchanan, 10 So.3d 979, 985 (¶ 24) (Miss.Ct.App.2009) (quoting Mixon v. Sharp, 853 So.2d 834, 841 (¶ 32) (Miss.Ct.App.2003)). Since attorney’s fees were not awarded by the chancellor, we will not grant them on appeal. See Rankin v. Bobo, 410 So.2d 1326, 1329 (Miss.1982). Therefore, we decline to award attorney’s fees in this matter.

¶ 20. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED IN PART AS TO JURISDICTION AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

LEE, C.J.,

concurring in part and dissenting in part:

¶ 21. I must respectfully dissent as I find the chancellor was correct in modifying custody. I concur with the majority regarding the jurisdiction of the chancery court and denial of attorney’s fees.

¶22. In Riley v. Dorner, 677 So.2d 740, 745 (Miss.1996), the Mississippi Supreme Court held: “In weighing a request for modification of child custody, a chancellor’s ultimate concern must always be whether such change would be in the child’s best interest.” Although the requirement of a material change in circumstances is listed first in the test for a change of custody, the chancellor must consider the totality of the circumstances with the child’s best interest in mind. Id. I find the chancellor’s ultimate concern in this case was Ashley’s best interest.

¶ 23. Regarding whether a material change in circumstances occurred, I must defer to our standard of review and the chancellor’s discretion. The chancellor met privately with Ashley in chambers to discuss Ashley’s living arrangement. The chancellor considered that Ashley had been moved to Colorado from her home in Mississippi shortly after the divorce. This was one factor that created a material change of circumstances. She was uprooted from her established life and surroundings in DeSoto County. While in DeSoto County, Ashley was near her maternal and paternal grandparents, as well as aunts and uncles. The chancellor noted that while in her father’s care in Mississippi, Ashley was happy and well-adjusted; she was near extended family; she enjoyed living with her step-sister, who is close to Ashley’s age; she had been re-baptized and joined her father’s church; and she was involved in extra-curricular activities. Ashley was fourteen years old at the time of the hearing; thus, she was old enough to state her preference. The chancellor found Ashley was “very adamant” in her desire to move back to Mississippi. The chancellor noted Ashley had thought about her decision for a long time, and it was not a “knee-jerk reaction.” It was clear to the chancellor Ashley was happier and more involved in family and school activities while living in Mississippi.

¶ 24. As for Ashley’s living situation in Colorado, the chancellor considered that Ashley felt uncomfortable around her stepfather, Ashley’s mother had recently had another child, and the family did not do as many activities together as a whole as Ashley’s family in Mississippi. The chancellor also took into account the timing of the decision to change custody, which was July 26, 2010, since Ashley was about to start a new school year. I find the chancellor’s first consideration was Ashley’s best interest, and it was not an abuse of discretion for the chancellor to modify custody. Thus, I would affirm the chancellor’s decision and find this issue without merit.

CARLTON, J., JOINS THIS OPINION.

BARNES, J.,

concurring in part and dissenting in part:

¶ 25. I concur with the majority’s findings regarding Issues I and III. As to Issue II, I also agree that the chancellor’s modification of custody warrants' reversal. However, I dissent from the majority’s decision to remand for further findings. The custody modification was based solely on Ashley’s preference to live with her father in Mississippi, and there simply was no evidence presented that a material change in circumstances adversely affecting Ashley had occurred in the custodial home. See Self v. Lewis, 64 So.3d 578, 584 (¶ 29) (Miss.Ct.App.2011). Therefore, I would render the chancery court’s judgment and return Ashley to her mother’s custody.

¶ 26. It is clear from the record that the only basis for the modification of custody was Ashley’s preference. Thomas provided no evidence of a material change in circumstances; nor did the chancellor make any factual findings that a material change in circumstances had occurred. When asked on cross-examination if there was any other basis for the request for modification, other than the child’s preference, Thomas admitted: “No, ma’am.” Ashley freely admitted that she loved both parents and that she experienced a stable and satisfactory atmosphere in both homes. In regard to accommodations, she stated that “both are really nice houses.” Ashley also stated she had a good relationship with her mother and that they were “like sisters.” She said they had no disagreements, other than normal parent-child arguments. She noted that she and her mother would go shopping and to the movies, and that her mother even took her occasionally to a local rock-climbing facility. She also testified that her mom was supportive of her calling her dad whenever she wanted. Similarly, she enjoyed activities with her father, participating in hunting, camping, and fishing. She was the same age as her step-sister in Mississippi, and they were friends.

¶ 27. “A child’s preference of where to live is a factor to be considered in determining child custody.” Potts v. Windham, 56 So.3d 589, 593 (¶ 15) (Miss.Ct.App.2011) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)). However, if there is no finding of a material change in circumstances, then there is no occasion for an analysis of the Albright factors. See id. In a similar case, Dykes v. McMurry, 938 So.2d 330 (Miss.Ct.App.2006), we upheld a chancellor’s refusal to modify custody, as the only basis for modification presented by the non-custodial parent was one of the children’s stated preference to live with his father. We noted that there was no evidence that the child suffered any abuse or felt threatened at his custodial home; in fact, the child appeared to be “healthy and well-adjusted in his mother’s home.” Id. at 336 (¶22). Therefore, we concluded that the evidence was insufficient “to show there ha[d] been a material change in circumstances adverse to his children’s well-being sufficient to warrant a change in custody.” Id. This Court has recognized:

Mississippi Code Annotated Section 93-11-65 (Rev.2004) allows a child who has attained the age of 12 to state her preference to the court as to whether she would rather live with her mother or father. However, the trial court is not bound to follow the child’s preference. See Polk v. Polk, 589 So.2d 123 (Miss.1991). Furthermore, we have found no authority to support a conclusion that a child’s statement, in and of itself, of his or her preference to live with the noncustodial parent would rise to the level of a material or substantial change of circumstances.

In re E.C.P., 918 So.2d 809, 824 (¶62) (Miss.Ct.App.2005) (emphasis added); see also Best v. Hinton, 838 So.2d 306, 308 (¶ 8) (Miss.Ct.App.2002) (modification of custody based upon the child’s preference was reversed because “such an expression, supported by nothing more ” is not “the type of adverse material change in circumstance that would warrant a custody modification.”) (emphasis added). Were it otherwise, a child might attempt to blackmail the custodial parent into granting favors for fear of losing custody; or a non-custodial parent might attempt to bribe the child into requesting a change in custody.

¶ 28. In determining whether to modify custody, the chancellor noted Ashley’s testimony that she felt uncomfortable around her stepfather. During the in camera testimony before the chancellor, Ashley explained:

A. It’s because of my stepdad, like, I just — I feel kind of nervous around him. Like, I know he’s not going to physically hurt me or anything.
Q. Right.
A. But I’m also scared for my mom because he has threatened her before. It’s only happened once, and it was a really big fight. But that still really freaked me out.
So, yes, I was in the house and it was just scary for me to be there because we had — it was the first year we moved there, so I was only, like, eight or nine.

(Emphasis added). The chancellor later observed:

She — I know, Mom, that you testified that she and her stepfather were very close and spend a lot of time together. That is not what I got from her. She said she’s very nervous around her stepfather. She is uncomfortable around him, and she is fearful at times for you.... She feels uncomfortable. She feels — she doesn’t feel very close to him.

However, the incident where Dawn and her husband fought happened on only one occasion, two years before any petition for modification was filed. In a recent case, Potts, 56 So.3d at 593 (¶ 14), this Court affirmed the chancellor’s findings that allegations the child’s mother and stepfather argued and cursed in front of the child, and two occasions of physical violence between the mother and her husband, described as “isolated incidents,” were “insufficient to warrant a modification of custody.” Ashley acknowledged that she was in no danger, and Dawn gave no indication that there was any trouble in the marriage. Ashley also admitted that she was rarely disciplined, stating that her stepfather had grounded her on only one occasion for not doing her homework. Dawn testified that the only change that has occurred in the family recently was that she had given birth nine months prior to the hearing. Dawn quit her part-time job as a result and was a stay-at-home mom.

¶ 29. The chancellor also noted Ashley’s testimony that her family in Colorado did not do a lot of activities as a whole family, which the chancellor compared to the testimony that her Mississippi family did activities “as a family.” Ashley stated that some Colorado family activities, such as going to church regularly, did not include her stepfather; however, Dawn explained that was because he was a different religious denomination and went to his own church. Plus, it was noted that family activities had declined because of the arrival of the new baby. None of these incidences warrant a finding of a material change in circumstances adversely affecting the welfare of the child. The issue of custody is extremely important to a family, which is why this standard is so crucial to the determination of whether custody should be modified.

¶ 30. In Ortega v. Lovell, 725 So.2d 199, 204 (¶ 26) (Miss.1998), the Mississippi Supreme Court held that “[bjecause there was no showing of a material change in circumstances,” the chancellor erred in modifying custody, and it reversed and rendered the judgment of the chancery court. In this case, the chancellor simply stated that the modification was in the “best interest of the child,” and made no attempt to discuss whether there was a material change in circumstances in Dawn’s home adversely affecting Ashley’s welfare. Furthermore, the record would not support such a finding.

¶ 31. Accordingly, I would reverse and render the chancellor’s judgment and return Ashley to the custody of her mother.

IRVING AND GRIFFIS, P.JJ., JOIN THIS OPINION.


author: STUART, Justice.

text:
    Ex parte Aziz O. MOHABBAT and Karima Mohabbat. (In re Aziz O. Mohabbat and Karima Mohabbat v. Sanjay K. Singh and Ramendra P. Singh).
    1110503.
    Supreme Court of Alabama.
    April 6, 2012.

      Albert G. Lewis III and Justice D. Smyth III of Lewis, Smyth & Winter, P.C., Tuscaloosa, for petitioners.
    Robert F. Prince of Prince, Glover & Hayes, Tuscaloosa, for respondents.
   STUART, Justice.

Aziz O. Mohabbat and Karima Mohab-bat sued Sanjay K. Singh and Ramendra P. Singh in the Tuscaloosa Circuit Court, asserting claims of suppression and unjust enrichment. Following a jury trial, the trial court entered a $630,000 judgment in favor of the Mohabbats. The Singhs moved for a new trial; however, their motion was ultimately denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., and the Singhs thereafter filed a notice of appeal to this Court. The Singhs also moved the trial court to enter a stay of execution of the $630,000 judgment pending the appeal even though, the Singhs alleged, they did not have the resources to execute a supersedeas bond in the amount required by Rule 8(a)(1), Ala. R.App. P. On January 9, 2012, the trial court granted the motion and accepted a supersedeas bond in the amount of $100,000, as opposed to the $787,500 presumably required by Rule 8(a)(1). The Mohabbats moved the trial court to reconsider its decision that same day; however, the trial court denied their motion on January 17, 2012. On January 23, 2012, the Mohabbats petitioned this Court for a writ of mandamus directing the trial court to require the Singhs to execute a bond in the amount of $787,500 before a stay of execution of the judgment could be entered. On February 22, 2012, we ordered .the Singhs to file a response to that petition. We now grant the Mohabbats’ petition and issue the writ.

I.

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court. Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000).”

Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). Moreover, “[bjecause mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly [exceeded] its discretion.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987)).

II.

The Mohabbats argue that the trial court was without authority to reduce the supersedeas bond required by Rule 8(a)(1); rather, they argue, only this Court can waive the clear requirement of Rule 8(a)(1) and reduce the amount of the required supersedeas bond. Moreover, the Mohab-bats allege that the Singhs failed to put forth any evidence indicating that a reduced supersedeas bond was appropriate, even if the trial court was empowered to make such a decision. Accordingly, we first review whether a trial court has authority to reduce the amount of the super-sedeas bond required by Rule 8(a)(1). This Court has previously considered this issue in Ex parte Spriggs Enterprises, Inc., 376 So.2d 1088, 1088-89 (Ala.1979):

“The issue for our determination is whether the amount of the bond required to stay execution of a judgment solely for the payment of money rests within the trial court’s discretion in view of [Ala. R.App. P.] 8. We hold that it does not.
“Rule 8 of our Rules of Appellate Procedure provides in part:
‘“(a) Stay by Supersedeas Bond. The appellant shall not be entitled to a stay of execution of the judgment pending appeal (except as provided in [Ala. R. Civ. P.] Rule 62(e)) unless he executes bond with good and sufficient sureties, approved by the clerk of the trial court, payable to appellee (or to the clerk or register if the trial court so directs), with condition, failing the appeal, to satisfy such judgment as the appellate court may render, when the judgment is:
“ ‘(1) For the payment of money only, in an amount equal to 150% of the amount of the judgment if the judgment does not exceed $10,000.00, or 125% if the judgment exceeds $10,-000.00[.]’
“The plain meaning of Rule 8(a)(1) is that one who appeals a judgment against him for money damages only must execute a supersedeas bond in an amount equal to 125% of the amount of the judgment when the judgment exceeds $10,000.00. The language utilized in the rule is mandatory; the trial judge is given no discretion in setting the amount of the supersedeas bond.”

(Final emphasis added.) Thus, Ex parte Spriggs Enterprises makes it clear that the trial court has no discretion to alter the amount of the supersedeas bond required by Rule 8(a)(1).

It is apparent, however, that there was some confusion among the parties and the trial court on this issue based on the fact that this Court has recognized that the strict requirements of Rule 8(a) may be waived in extraordinary circumstances. Those extraordinary circumstances are described in the Committee Comments to Rule 8(a) and (b), Adopted January 12, 2005:

“In Ex parte Spriggs Enterprises, Inc., 376 So.2d 1088,1089 (Ala.1979), the Alabama Supreme Court held that ‘[t]he plain meaning of Rule 8(a)(1) is that one who appeals a judgment against him for money damages only must execute a supersedeas bond in an amount equal to 125% of the amount of the judgment when the judgment exceeds $10,000. The language utilized in the rule is mandatory; the trial judge is given no discretion in setting the amount of the su-persedeas bond.’ Note, however, that the Supreme Court has recognized, for good cause shown (set forth as grounds for a motion filed by the appellant) and pursuant to Rule 8(b) and Rule 2, [Ala. R.App. P.,] the need to suspend the requirements of Rule 8(a) in extraordinary circumstances and to direct the trial court to accept a bond in an amount other than that required by Rule 8(a). For example, on December 29, 2003, in case no. 1030488, Ware v. Timmons, in response to a motion to suspend the requirement of Rule 8(a)(1), the Alabama Supreme Court issued an order, providing, in pertinent part:
“ ‘It is ordered that the appellants are required to post with the trial court the maximum bond obtainable, based on the appellants’ entire net worth and available insurance coverage, to be determined by the trial court, within 14 days from the date of this order.’ ”

Importantly, this is not an enumerated exception to Rule 8(a); rather, it is a recognition that, in some instances, justice requires that the rule be waived. Rule 2(b), Ala. R.App. P., authorizes such a waiver, providing that “[i]n the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction_” (Emphasis added.) There is no rule authorizing a trial court to suspend a rule of appellate procedure, and a trial court has no discretion to do so. Only an appellate court may waive the requirements of Rule 8(a)(1) and authorize the acceptance of a supersedeas bond in an amount less than that described in Rule 8(a)(1). Hence, the Committee Comments quoted above state that in such extraordinary circumstances an appellate court may “direct” the trial court to accept a bond in an amount other than the amount required by Rule 8(a).

Moreover, we note that although Rule 8(b) provides that a motion for a stay of a judgment pending appeal or for approval of a supersedeas bond “must ordinarily be made in the first instance in the trial court,” this requirement does not apply when a party is seeking permission to execute a reduced supersedeas bond in order to obtain a stay of a judgment. As explained supra, the trial court can only deny such a motion; it has no authority to grant such a motion, and “Alabama law does not require the performance of a vain or useless act.” Mutual Assur., Inc. v. Wilson, 716 So.2d 1160, 1165 (Ala.1998). Rather, a party seeking a reduced super-sedeas bond should, as prescribed by Rule 8(b), file a motion in the appellate court in which the appeal is pending explaining that “application to the trial court for the relief sought is not practicable,” Rule 8(b), because the trial court lacks authority to grant that relief. Such a motion should be accompanied by parts of the record and other evidence as permitted by Rule 8(b) supporting the movant’s argument that a reduced supersedeas bond is appropriate. See Scrushy v. Tucker, 955 So.2d 988,1001 (Ala.2006) (“Absent evidence from [the appellant] as to his inability to make any arrangements that would satisfy the requirements for posting a supersedeas bond, consideration of the Ware option is premature. We therefore deny the emergency motion to stay execution of the judgment.”). No such motion has been filed with this Court in this case.

III.

The trial court had a duty to apply Rule 8(a)(1) and to require the Singhs to execute a bond in the amount of $787,500 before granting their motion for a stay of execution of the judgment entered against them. Because the trial court has failed to do so, the Mohabbats have a clear legal right to the relief they seek, and their petition is granted. The trial court is hereby directed to vacate its January 9, 2012, order granting the Singhs’ motion to accept a supersedeas bond in the amount of $100,000 and further directed not to accept any supersedeas bond in an amount less than $787,500 — the amount required by Rule 8(a)(1) — unless otherwise directed by this Court at a later date.

PETITION GRANTED; WRIT ISSUED.

WOODALL, PARKER, SHAW, and WISE, JJ., concur.

MALONE, C.J., recuses himself.

      . Rule 8(a)(1) provides that an appellant against whom a monetary judgment has been entered is entitled to a stay of execution of that judgment pending appeal only upon executing a supersedeas bond "in an amount equal to ... 125% [of the judgment] if the judgment exceeds $10,000.00.”

        . We note, however, that the requirement that a motion for a stay of a judgment pending appeal or for approval of a supersedeas bond ordinarily be brought first in the trial court does have operation when the judgment being appealed is, in whole or in part, a nonmone-tary judgment. In such an instance, the trial court does have discretion in setting the amount of the supersedeas bond required so long as, if the judgment appealed includes any monetary damages, it is at least equal to what Rule 8(a)(1) would require if the judgment included only those monetary damages. See Rules 8(a)(2) and (3).


author: PARKER, Justice.

text:
    Wade TUCKER et al. v. RICHARD M. SCRUSHY CHARITABLE FOUNDATION, INC.
    1100736.
    Supreme Court of Alabama.
    April 6, 2012.
    Hope T. Cannon, N. Christian Glenos, and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for appellant HealthSouth Corporation.
    John W. Haley, Ralph D. Cook, Bruce J. McKee, and Michael D. Ermert of Hare, Wynn, Newell & Newton, LLP, Birmingham; John Q. Somerville of Somerville, LLC, Birmingham; Frank P. DiPrima of Law Office of Frank DiPrima, PA, Morris-town, New Jersey; and Steven P. Gregory of Gregory Law Firm, P.C., Birmingham, for appellants Wade Tucker and Wendell H. Cook, Sr., Testamentary Trust.

      Christopher R. Hood of Lietman, Siegal, Payne & Campbell, P.C., Birmingham; and Timothy M. Fulmer and David D. Schoel of Natter & Fulmer, P.C., Birmingham, for appellee.
   PARKER, Justice.

Wade Tucker, the Wendell H. Cook, Sr. Testamentary Trust, and HealthSouth Corporation (hereinafter collectively referred to as “the plaintiffs”) appeal from the circuit court’s partial summary judgment in favor of the Richard M. Scrushy Charitable Foundation, Inc. (“the Foundation”). We reverse and remand.

Facts and Procedural History

The circuit court set forth the relevant facts and the procedural history in its order granting the Foundation’s summary-judgment motion:

“This matter is now before the Court on the Richard M. Scrushy Charitable Foundation (the ‘Foundation’)’s Motion for Partial Summary Judgment. The Court heard oral argument from the parties on July 20, 2010 and on December 2, 2010.
“1. On June 18, 2009, this Court entered a judgment against Richard M. Scrushy (‘Scrushy’) in favor of Plaintiffs for roughly $2,876,103,000 (the ‘Judgment’) in Tucker, et al. v. Scrushy, et al., CV-02-5212 (the ‘Tucker Action’).
“2. On October 16, 2009, as part of their efforts to collect on the Judgment, the Plaintiffs issued a process of garnishment to the Foundation in the Tucker Action. A garnishment is a process to execute on ‘money or effects’ of a judgment debtor ‘in the possession or under the control of a third person.’ See Alabama Code [1975,] § 6-6-370. On January 22, 2010, the Foundation filed a sworn answer to the Plaintiffs’ garnishment denying that it ‘has possession or control of any belongings’ of Scrushy.
“3. On February 19, 2010, Plaintiffs filed a ‘Verified Contest of Garnishment Answer of Richard M. Scrushy Charitable Foundation, Inc.,’ pursuant to Alabama Code [1975,] § 6-6-458 (the ‘Garnishment Contest’). As grounds for the Garnishment Contest, Plaintiffs alleged, among other things, that ‘Scrushy has dominated and controlled the Garnishee [Foundation] such that it is the mere alter ego of Scrushy.’ Thus, according to Plaintiffs, the approximately $3 million in assets held by the Foundation are, by operation of law, assets that belong to Scrushy and subject to the payment of Plaintiffs’ Judgment. The Foundation did not file a response to the Plaintiffs’ Garnishment Contest.
“4. In addition to their efforts to execute on the Judgment in the Tucker Action, on July 2, 2009, Plaintiffs filed a separate action, Tucker, et al. v. Scrushy, et al, CV-09-901245, against the Foundation and others, under the Alabama Uniform Fraudulent Transfer Act, (‘AUFTA’), Ala. Code [1975, § ] 8-9A-1 et seq. (the ‘AUFTA Action’). On December 28, 2009, Plaintiffs amended their complaint in the AUFTA Action to assert claims against the Foundation for violation of the AUFTA (Count One), Unjust Enrichment (Count Two), Civil Conspiracy (Count Three) and Aiding and Abetting (Count Four). Plaintiffs allege that: (1) Scrushy fraudulently transferred millions of dollars to the Foundation to avoid payment to Scrushy’s creditors, including Plaintiffs; (2) the Foundation was unjustly enriched by transfers from Scrushy to the detriment of Scrushy’s creditors; (3) the Foundation participated in a conspiracy with Scrushy and others to fraudulently transfer property of Scrushy to the detriment of Scrushy’s creditors, including Plaintiffs; and (4) the Foundation aided and abetted Scrushy to commit fraudulent transfers. Plaintiffs’ complaint in the AUFTA Action does not assert an alter ego claim against the Foundation.
“5. On May 6, 2010, the Foundation moved for partial summary judgment on all of Plaintiffs’ claims in the AUF-TA Action. In its motion for partial summary judgment, the Foundation asserts that Plaintiffs’ claims against the Foundation in the AUFTA Action are time barred. The Foundation’s motion also asserts that Alabama law does not recognize a private cause of action for aiding and abetting. The Foundation’s motion for summary judgment is not directed to and does not address Plaintiffs’ Garnishment Contest.
“6. On June 24, 2010, the Plaintiffs filed an Opposition to the Foundation’s motion for partial summary judgment. On August 16, 2010, the Plaintiffs submitted additional evidence in support of their Opposition. In those submissions, Plaintiffs argued, among other things, that the motion was premature and that Plaintiffs should have an opportunity to engage in additional discovery. On October 1, 2010, this Court entered an Order giving Plaintiffs through October 29, 2010, to take five additional depositions bearing on issues of fact. Subsequently, this Court extended the October 29, 2010, deadline to November 12, 2010. The Court established November 19, 2010 as the deadline for submitting any additional briefs relating to the Foundation’s motion for partial summary judgment.
“7. On November 19, 2010, after conducting the permitted additional discovery, Plaintiffs submitted a filing entitled ‘Supplement in Response to Foundation’s Motion for Partial Summary Judgment and Plaintiffs’ Request for a Trial Setting.’ In this filing, the Plaintiffs (i) acknowledge that Plaintiffs’ claims against the Foundation in the AUFTA Action are time barred because Scrushy’s transfers to the Foundation all occurred prior to July 2, 2003, and (ii) request a trial setting for Plaintiffs’ Garnishment Contest pursuant to Alabama Code [1975,] § 6-6-458 on grounds that Plaintiffs’ motion for partial summary judgment is not directed to and does not resolve their Garnishment Contest. Plaintiffs’ submissions include deposition testimony and documentary evidence which, they contend, support the aver-ments of their Garnishment Contest, including their claim that the Foundation is the mere alter ego and instrumentality of Scrushy.
“[8]. On December 1, 2010, the Foundation filed a ‘Reply to Plaintiffs Supplement in Response to Foundation’s Motion for Partial Summary Judgment and Plaintiffs Request for a Trial Setting.’ In this filing, the Foundation asserts that Plaintiffs are not entitled to a trial of their Garnishment Contest as a matter of law and that summary judgment should also be granted in favor of the Foundation in the Garnishment Contest for various reasons.
“[9]. On December 2, 2010, the Court heard final oral arguments of the parties, including Plaintiffs’ objection that the arguments raised by the Foundation in its December 1, 2010 Reply directed to the Garnishment Contest do not comply with the requirements of Rule 56[, Ala. R. Civ. P.,] governing motions for summary judgment. In deciding the Foundation’s motion for partial summary judgment, this Court has considered the parties’ arguments and written submissions as well as the documentary evidence and affidavits submitted by the parties.

The circuit court entered a summary judgment in favor of the Foundation concerning the plaintiffs’ claims brought under the Alabama Uniform Fraudulent Transfer Act, § 8-9A-1 et seq., Ala.Code 1975 (“the AUFTA”), determining that the plaintiffs’ AUFTA claims were time-barred; the plaintiffs agreed that their AUFTA claims were time-barred. . Concerning the plaintiffs’ garnishment contest filed pursuant to § 6-6-370 et seq., Ala. Code 1975 (“the garnishment statutes”), the circuit court entered a summary judgment against the plaintiffs and in favor of the Foundation, stating as follows:

“With regard to the Plaintiffs’ Verified Contest of Garnishment Answer of Richard M. Scrushy Charitable Foundation, Inc., the Court likewise finds that the Foundation is entitled to final summary judgment on that claim. The Court finds that the Plaintiffs’ garnishment claim against the Foundation arises out of and is predicated upon the transfers which Scrushy made to the Foundation on or before October 10, 2002, rather than upon the Judgment. Accordingly, because Plaintiffs’ fraudulent transfer claims against the Foundation under the AUFTA are time-barred, the process of garnishment issued to the Foundation is also time-barred. Thus, even if the Foundation is the mere alter ego and instrumentality of Scrushy as argued by Plaintiffs, Plaintiffs’ claims in the Garnishment Contest are nonetheless time barred since they arise out of and are predicated upon Scrushy’s transfers to the Foundation which are time-barred.”

The plaintiffs appealed.

Discussion

Initially, we note that the plaintiffs do not appeal the summary judgment in favor of the Foundation as to the plaintiffs’ AUFTA claims. Thus, the only issue before this Court is whether the circuit court’s summary judgment in favor of the Foundation in the plaintiffs’ garnishment contest was in error.

The plaintiffs argue that the circuit court exceeded its discretion by conducting a hearing on that part of the Foundation’s summary-judgment motion that concerned the plaintiffs’ garnishment contest on less than 10 days’ notice as, required by Rule 56(c)(2), Ala. R. Civ. P. We agree.

Rule 56(c)(2) provides:

“(2) Time. The motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing, except that a court may conduct a hearing on less than ten (10) days’ notice with the consent of the parties concerned. Subject to subpara-graph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing.”

In this case, as set forth above, the Foundation did not file its request for a summary judgment as to the plaintiffs’ garnishment contest until December 1, 2010, the day before the already scheduled December 2, 2010, hearing on the Foundation’s motion filed on May 6, 2010, seeking a summary judgment on the plaintiffs’ AUFTA claims against the Foundation. It is undisputed that at the December 2, 2010, hearing the circuit court heard oral argument on the Foundation’s request for a summary judgment in the plaintiffs’ garnishment contest; the circuit court noted in its judgment that it “heard final oral arguments of the parties, including Plaintiffs’ objection that the arguments raised by the Foundation in its December 1, 2010, Reply directed to the Garnishment Contest do not comply with the requirements of Rule 56[, Ala. R. Civ. P.,] governing motions for summary judgment.”

By the plain language of the rule, compliance with the notice provision in Rule 56(c) may be excused with the consent of the parties. In this case, nothing in the record indicates that the plaintiffs consented to the Foundation’s request for a summary judgment on the plaintiffs’ garnishment contest being heard on less than 10 days’ notice. In fact, as indicated in the circuit court’s judgment, the plaintiffs objected, based on Rule 56, to the circuit court’s consideration at the December 2, 2010, hearing of the Foundation’s request for a summary judgment in the plaintiffs’ garnishment contest. Therefore, the plaintiffs did not waive their right under Rule 56(c)(2) to insist on 10 days’ notice of the hearing.

Additionally, we note that “the requirements of Rule 56(c) are procedural in nature, and the trial court is afforded a wide range of discretion in applying them.” Middaugh v. City of Montgomery, 621 So.2d 275, 279 (Ala.1993). Further, noncompliance with the 10-day-notice requirement does not constitute reversible error absent a showing of actual prejudice. Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So.2d 826, 828 (Ala.1991). In the instant case, prejudice to the plaintiffs was inevitable. Under Rule 56(c)(2), which requires that “any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing,” the plaintiffs did not even have an opportunity to respond to the Foundation’s request for a summary judgment in their garnishment contest because the Foundation’s request was filed only one day before the hearing at which that request was contested. Therefore, having been deprived of the opportunity to respond to the Foundation’s summary-judgment request as to the plaintiffs’ garnishment contest, the plaintiffs were necessarily prejudiced by the failure of the circuit court to comply with Rule 56(c)(2).

The Foundation argues that “[although the [circuit] court held a summary judgment hearing on December 2, 2010, the [circuit] court did not actually enter its Memorandum Opinion and Order until February 7, 2011 .... ” The Foundation’s brief, at p. 54. Thus, the Foundation argues, the plaintiffs “suffered no prejudice because they had ample opportunity to file supplemental briefs and chose not to do so.” Id. The Foundation appears to argue that the plaintiffs could have avoided being prejudiced and could have corrected the circuit court’s error in considering the Foundation’s summary-judgment request at the December 2, 2010, hearing by voluntarily filing an opposition to the Foundation’s summary-judgment motion following the hearing and before the circuit court entered the summary judgment. However, the Foundation provides no legal support for its argument, and nothing in Rule 56 allows a party to file an untimely opposition to a summary-judgment motion. The Foundation’s argument is not well taken.

Conclusion

Because the circuit court exceeded its discretion by conducting a hearing on the Foundation’s request for a summary judgment in the plaintiffs’ garnishment contest on less than 10 days’ notice in violation of Rule 56(c)(2) and over the objections of the plaintiffs, we reverse the circuit court’s summary judgment insofar as it considered the plaintiffs’ garnishment contest, and we remand the cause for further proceedings. We instruct the circuit court to reissue a notice of hearing date in compliance with Rule 56(c)(2) and to consider all evidentiary materials timely filed by both sets of parties in anticipation of that hearing date.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      "  Although that action was initially pending before Judge Michael Graffeo, it was subsequently transferred and consolidated with Tucker v. Scrushy, CV-02-5212.”

      . We note that the plaintiffs also argue that the circuit court’s summary judgment in their garnishment contest was in error because, the plaintiffs argue, their garnishment contest was not time-barred. However, our decision reversing the circuit court's summary judgment in that regard based on our holding that the circuit court exceeded its discretion by conducting a hearing on the Foundation's summary-judgment request in the garnishment contest on less than 10 days' notice pretermits discussion of this issue.


author: PER CURIAM. BRYAN, Judge,

text:
    ALABAMA INSURANCE GUARANTY ASSOCIATION v. WATER WORKS AND SANITARY SEWER BOARD OF the CITY OF MONTGOMERY.
    2091028.
    Court of Civil Appeals of Alabama.
    June 17, 2011.
    Howard K. Glick of Ritchey, Simpson, Glick & Burford, PLLC, Mountain Brook, for appellant.
    Robert E. Sasser, Patrick L.W. Sefton, and Timothy J. Gallagher of Sasser, Sef-ton, Tipton & Davis, P.C., Montgomery, for appellee.
   PER CURIAM.

The Alabama Insurance Guaranty Association (“AIGA”) appeals from a summary judgment entered by the Montgomery Circuit Court in which that court determined that, as a matter of law, the AIGA could not recover substantial sums of money that it had paid, on behalf of the Water Works and Sanitary Sewer Board of the City of Montgomery (“the Board”), to an injured employee of the Board following the insolvency of the Board’s workers’ compensation insurer, Legion Insurance Company (“Legion”). Because we conclude that the trial court erred in concluding that the AIGA’s claim was time-barred, we reverse that court’s judgment and we remand the cause for further proceedings.

The legal proceedings leading to the judgment under review began in October 2009 when the AIGA sued the Board, seeking a declaration of the parties’ rights and liabilities under the AIGA’s enabling legislation, the Alabama Insurance Guaranty Association Act (“the Act”), which is codified in Chapter 42 of Title 27 of the Code of Alabama 1975. As a general rule, under the Act, when an insurer of risks that is licensed by this state is judicially declared insolvent and is ordered to be liquidated, any unpaid claims that are made against that insurer by residents of this state and that fall within the coverages in the policies issued by that insurer are “covered claim[s]” payable by the AIGA. See Ala. Code 1975, §§ 27-42-5(6) and 27-42-8(a)(1). The parties’ dispute stems from a claim made by one of the Board’s employees, who was injured in a workplace accident in 2001; because that claim was covered by a workers’ compensation insurance policy issued to the Board by Legion, the Board’s claim was forwarded to the AIGA in 2003 upon Legion’s insolvency.

In October 2003, an AIGA claims examiner notified the Board by letter of Legion’s insolvency. In that letter, the AIGA indicated that the Board’s insurance claim might not fall within the definition of a “covered claim” in the Act. Under a 2000 amendment to the Act (Act No. 2000-743, Ala. Acts 2000), claims by an insured “whose net worth exceeds twenty-five million dollars ($25,000,000) on December 31 of the year” before an insurer’s insolvency were, for the first time, excluded from the scope of “covered claim[s]” under the Act, and the AIGA was extended a concomitant right to recover moneys it had paid on behalf of such a high-net-worth insured. The October 2003 letter directed the Board to provide the AIGA with documentation of the Board’s net worth. The Board failed to provide such documentation to the AIGA, prompting the AIGA claims examiner to send a second letter on November 10, 2003, to again seek that documentation and to warn that a failure to provide that documentation within 15 days might result in the Board’s loss of rights and coverages under the Act. However, exactly 15 days later, the Board and its employee settled all aspects of the employee’s workers’ compensation claim; the AIGA funded the $40,000 compensation settlement amount and has since paid for the employee’s medical benefits.

In January 2004, the AIGA claims examiner again contacted the Board, this time by sending a facsimile transmission indicating that the AIGA would need a response to “our letter” (presumably, a reference to the AIGA’s November 10, 2003, letter). The Board did not respond to the facsimile transmission. There is no indication in the record that any further action was taken by the AIGA for a period of over five years after that facsimile message was sent as to the payment of the Board’s insurance claim.

Pursuant to Act No. 2009-716, Ala. Acts 2009, which became law in May 2009, certain amendments to the Act went into effect on August 1, 2009. Among the changes made by the legislature was the addition of provisions to the Act under which (1) the AIGA was expressly empowered to request net-worth information from insureds and claimants; (2) the AIGA was expressly authorized, upon any refusal of insureds or claimants to provide requested financial information, to deem that insured or claimant a “high net worth insured”; (3) a refusal by an insured to provide requested financial information to the AIGA would give rise to a rebuttable presumption in judicial proceedings that the insured’s net worth was greater than $25,000,000; and (4) a court determining that an insured that had refused to provide financial information to the AIGA was a high-net-worth insured would be authorized to award' attorney fees and costs to the AIGA. Ala.Code 1975, § 27-42-ll(g) and (h). The AIGA, apparently anticipating the impending effect of the amendments to the Act, notified the Board by a letter dated June 18, 2009, that the Board appeared to be a high-net-worth insured; the AIGA requested reimbursement of all moneys paid to satisfy the employee’s workers’ compensation claim against the Board. The Board apparently did not receive that letter until early September 2009, after the amendments had taken effect; the Board, in a letter replying to the AIGA, denied liability, contending that the applicable statute of limitations barred any i'eimbursement claim.

On October 30, 2009, shortly after the Board had denied the AIGA’s reimbursement request, the AIGA brought its action; the AIGA sought, among other things, a judgment in the amount of $49,135.61 plus attorney fees and costs. The Board filed an answer denying liability and asserting, among other things, that the applicable statute of limitations barred the AIGA’s reimbursement claim and that the portion of the 2009 amendments to the Act allowing recovery of attorney fees was unconstitutional as applied to the Board. Each party filed a summary-judgment motion; in its brief in support of its motion, the Board “request[ed] that [the trial court] ... apply a two-year statute of limitations and render summary judgment in [the Board’s] favor as to all claims pending against it that seek to collect money from the Board for [sums] paid by [the] AIGA prior to October 20, 2007.” The parties jointly requested that the trial court deem the case submitted on the cross-motions. The trial court granted the Board’s summary-judgment motion and awarded the AIGA a judgment of only $1,092.03 plus court costs {i.e., the amount of medical benefits paid by the AIGA on behalf of the Board’s injured employee during the two years preceding the institution of the AIGA’s action); the Board then paid the amount of that judgment into court. The AIGA appealed to this court, which has appellate jurisdiction based upon the amount of the judgment involved. Because the trial court’s judgment was based upon the documentary evidence submitted by the parties in connection with their cross-motions for a summary judgment, we afford the trial court’s judgment no presumption of correctness. See Continental Elec. Co. v. City of Leeds, 473 So.2d 1056, 1058 (Ala.Civ.App.1984), aff'd, 473 So.2d 1060 (Ala.1985).

The primary dispute between the parties, as evidenced by their appellate briefs, concerns the applicable statute of limitations. The Board contends that the trial court properly applied a two-year statute of limitations to bar the large majority of the AIGA’s reimbursement claim, averring that the reimbursement claim accrued upon the AIGA’s initial payment of moneys on the Board’s behalf in November 2003 and that the AIGA’s claim is in the nature of a claim for either a statutory “penalty” or a tort claim not specifically enumerated by the legislature in Chapter 2 of Title 6 of the Code, so as to be barred after two years have elapsed after its accrual. See Ala.Code 1975, § 6 — 2—38(j) and (l). The AIGA contends that its claim is instead one governed by a six-year statute of limitations (see Ala.Code 1975, § 6-2-34(5)) and that, regardless of which limitations statute applies, the AIGA’s claim did not accrue until the AIGA’s receipt of information permitting “discovery” of the fact that the Board was a high-net-worth insured (a “discovery’ that purportedly occurred in 2009). Because the AIGA filed its civil action in October 2009, less than six years after indemnifying the Board as to its employee’s workers’ compensation claim in November 2003, the threshold material question is which of the two limitations statutes, § 6-2-34 or § 6-2-38, governs the AIGA’s reimbursement claim.

To properly answer that question, we must assess the nature of the AIGA’s reimbursement right. As we have noted, the Act was amended in 2000 so as to exclude, for the first time, claims asserted by insureds having a net worth of over $25,000,000 from the scope of AIGA’s indemnity responsibilities. See former § 27-42-5(4), Ala.Code 1975 (provision in effect from 2000 to 2009 defining “covered claim” under the Act). Likewise, the Act was amended in 2000 so as to extend to the AIGA “the right to recover from ... [a]n insured whose net worth ... exceeds twenty-five million dollars ... and whose liability obligations, including obligations under workers’ compensation insurance coverages, to other persons are satisfied in whole or in part by the payments” made by the AIGA on that insured’s behalf. Ala.Code 1975, former § 27-42-ll(d) (in effect from 2000 to 2009). Thus, under the Act as it was in effect in November 2003, once a payment was made by the AIGA on behalf of a high-net-worth insured, the AIGA’s right to recover that payment immediately vested; there is no indication in the Act itself that the AIGA’s recovery right was in any way conditioned upon the status of the AIGA’s knowledge concerning whether a particular insured had a high net worth.

The right to recover bestowed by the legislature upon the AIGA under the Act as it read in 2003 is not identified by the Act as a cause of action sounding in tort or in contract, nor is it labeled as a penalty to be imposed by a court upon an insured for having a relatively high net worth. Rather, it is a statutory right permitting the recovery of a liquidated sum: an amount equal to what the AIGA has paid on behalf of a high-net-worth insured. Our review of applicable Alabama law leads us to agree with the AIGA that the six-year statute of limitations provided in Ala.Code 1975, § 6-2-34, upon which the AIGA relies, does indeed apply in this situation. The AIGA’s reimbursement claim is in the nature of a common-law action of debt (as opposed to assumpsit upon an express or implied contract) for the recovery of money provided by law. See City of Anniston v. Douglas, 250 Ala. 367, 371, 34 So.2d 467, 471 (1948) (“when a statute creates a liability to pay money and prescribes no particular form of action for its recovery, an action of debt is the appropriate remedy”), and City of Anniston v. Dempsey, 253 Ala. 597, 601, 45 So.2d 773, 776 (1950) (“a cause of action ... for money and nothing else when the liability is fixed by law ... is in debt and the statute of limitations is six years”; citing Douglas and Ala.Code 1940, tit. 7, § 21 (now codified as Ala.Code 1975, § 6-2-34)); see also State Highway Dep’t v. Oglesby, 530 So.2d 846, 848 (Ala.Civ.App.1988) (retired state employee’s claim for recovery of unpaid statutory per diem allowance held to be in debt and subject to six-year limitations period set forth in § 6-2-34). Although we agree with the Board that in this case there is no document, such as a promissory note, that evidences the existence of a contractual debt owed to the AIGA, “[a]n action of debt may or may not be based on contract” (Douglas, 250 Ala. at 370, 34 So.2d at 470), and the AIGA’s right of recovery under the Act as it was in effect in 2003 is no less subject to § 6-2-34 for the lack of such an express agreement.

Based upon the foregoing facts and authorities, we conclude that the AIGA’s reimbursement claim against the Board was timely brought in October 2009, less than six years after the AIGA made its first payment on behalf of the Board as a result of Legion’s insolvency. Thus, the trial court erred in determining, as it did, that the AIGA’s reimbursement claim against the Board was barred as a matter of law to the extent that it sought moneys paid more than two years before the AIGA brought its action in October 2009. As to that aspect of the trial court’s judgment, we reverse, and we remand the cause to the trial court for further proceedings consistent with this opinion.

The AIGA further contends that the trial court erred in failing to award it attorney fees pursuant to subsection (h) of Ala. Code 1975, § 27-42-11, as amended in 2009. Based upon the trial court’s determination that the AIGA was not entitled to recover the large majority of its payments on behalf of the Board to the employee, the trial court could properly have denied a fee award on the basis that the AIGA had not actually prevailed in the action without reaching the preliminary constitutional question raised by the Board concerning whether the 2009 amendment could properly be applied retroactively to the parties’ dispute. Our reversal of the trial court’s judgment as to the AIGA’s reimbursement claim, however, necessarily implicates the correctness of the trial court’s denial of a fee award; we thus reverse the trial court’s judgment as to that issue as well, and we remand the cause for that court, in the first instance, to consider whether the 2009 amendment to § 27-42-11 applies retroactively to the parties’ dispute and, if the amendment is held to be applicable, to determine whether the AIGA is entitled to a fee award as a component of any new judgment on the merits entered on remand from this court.

REVERSED AND REMANDED.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

In Jefferson County v. Reach, 368 So.2d 250, 252 (Ala.1978), the supreme court stated:

“The distinction between a claim ex contractu and one ex delicto is found in the nature of the grievance. Where the wrong results from a breach of a promise, the claim is ex contractu. However, if the wrong springs from a breach of a duty either growing out of the relationship of the parties, or imposed by law, the claim is ex delicto.”

In the case now before us, the claim asserted by the Alabama Insurance Guaranty Association (“the AIGA”) is not based on a promise; consequently, it is not a contract claim. See Jefferson County v. Reach. Because the AIGA’s claim is not in contract, it is, in my opinion, governed by the two-year statute of limitations contained in § 6-2-38(l), Ala.Code 1975. Section 6-2-38(l) provides:

“(O All actions for any injury to the person or rights of another not arising from, contract and not specifically enumerated in this section must be brought within two years.”

(Emphasis added.)

For its conclusion that the six-year statute of limitations contained in § 6-2-34(5), Ala.Code 1975, applies, the main opinion relies on a line of cases addressing claims by government employees seeking to recover unpaid money their government employers owed them by law, i.e., City of Anniston v. Douglas, 250 Ala. 367, 34 So.2d 467 (1948), City of Anniston v. Dempsey, 253 Ala. 597, 45 So.2d 773 (1950), and State Highway Dep’t v. Oglesby, 530 So.2d 846 (Ala.Civ.App.1988). Those cases are plainly distinguishable from the case now before us — the AIGA is not a government employee seeking to recover unpaid money its government employer owes it by law. Accordingly, I would hold that, because the AIGA’s claim is not based on a promise, it is governed by the two-year statute of limitations contained in § 6-2-38(Z).

I also conclude that the trial court did not err in denying an award of attorney fees to the AIGA. Section 27-42-11(h), Ala. Code 1975, provides that the trial court “may award to the [AIGA] attorney’s fees and costs.” (Emphasis added.) “ ‘An award of attorney fees, where permissible, is a matter within the discretion of the trial court and will not be reversed on appeal absent a showing that the trial court abused its discretion.’ ” Feil v. Wittern Group, Inc., 784 So.2d 302, 315 (Ala.Civ.App.2000) (quoting ISS Int’l Serv. Sys., Inc. v. Alabama Motor Express, Inc., 686 So.2d 1184, 1189 (Ala.Civ.App.1996)). I see no indication that the trial court exceeded its discretion by not awarding attorney fees to the AIGA.

Accordingly, I would affirm the judgment of the trial court in its entirety. Therefore, I respectfully dissent.

      . Although the liability of the AIGA generally does not extend to the first $100 of covered claims or exceed $150,000, workers’ compensation insurance claims are exempt from those limitations. See Ala.Code 1975, § 27-42—8(a)(1).

      . The attorney general filed an answer and waived further participation in the action.

      . "(j) All actions qui tam or for a penalty given by statute to the party aggrieved, unless the statute imposing it prescribes a different limitation, must be brought within two years.

      "(I) All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”

      . "The following must be commenced within six years:

      "(5) Actions for the recovery of money upon a loan, upon a stated or liquidated account or for arrears of rent due upon a parol demise.”

      . We note here the Board's citation of a noted treatise on the law of damages for the proposition that a two-year statute of limitations applies to "an action based upon a liability created by statute ... unless some other time limit is mentioned in the statute creating it." Jenelle M. Marsh and Charles W. Gamble, Alabama Law of Damages § 11:25 (5th ed.2004). This statement appears to be an overbroad textual gloss upon the holding in Universal Credit Co. v. Clay County Trading Co., 235 Ala. 577, 180 So. 259 (1938), which concerned a claim for a true statutory penalty for failing to record a satisfaction of a chattel lien (i.e., a claim as to which the predecessor of Ala.Code 1975, § 6 — 2—38(j), would have applied by its terms). In contrast, Douglas, Dempsey, and Oglesby clearly hold that a six-year limitations period applies to claims based upon statutory liabilities that do not involve penalties.

      . We decline the AIGA’s request to simply render a judgment in its favor because, notwithstanding this court’s conclusion as to the applicable statute of limitations, the AIGA did not demonstrate at the summary-judgment stage that none of the affirmative defenses asserted by the Board has any factual or legal basis.

      . Section 6-2-34(5) provides:
      "The following must be commenced within six years:

      "(5) Actions for the recovery of money upon a loan, upon a stated or liquidated account or for arrears of rent due upon a parol demise.”