author: ROBERTS, J.,

text:
    Peter McGOVERN, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2010-CP-01116-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 22, 2012.

      Peter McGovern, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Peter McGovern was convicted of selling amphetamines. He unsuccessfully sought to be declared eligible for parole through the Administrative Remedy Program (ARP) available through the Mississippi Department of Corrections (MDOC). After exhausting his administrative remedies, McGovern appealed to the Hinds County Circuit Court, which found no merit to his argument. Aggrieved, McGovern appeals. Finding that McGovern is not eligible for parole because he has been convicted of selling amphetamines, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2002, McGovern was convicted of selling amphetamines. He was sentenced to twenty years in the custody of the MDOC with fourteen years suspended followed by five years of post-release supervision. As best we can tell, in March 2008, McGovern was released and serving his term of post-release supervision when he committed some act that resulted in the revocation of his post-release supervision. He was then returned to custody to serve the fourteen-year term that had previously been suspended.

¶ 3. Having been returned to custody to serve the fourteen-year balance of his sentence, McGovern believed that he should be declared eligible for parole at some unspecified time. However, McGovern achieved no success in the ARP. He was informed that he was not eligible for parole because he had previously been convicted of residential burglary, which was considered a violent offense that precluded him from being eligible for parole. McGovern exhausted his administrative remedies through the ARP.

¶ 4. After the MDOC certified that McGovern had fulfilled the requirements of the ARP, McGovern filed a “motion for parole eligibility date” in the Hinds County Circuit Court. McGovern argued that he was eligible for parole by virtue of the 2008 amendments to Mississippi Code Annotated section 47-7-3 (Supp.2008). However, the circuit court noted that section 47-7-3 precluded a convict from being eligible for parole in the event of a conviction for the sale of a controlled substance. Because McGovern was serving a sentence for selling amphetamines, the circuit court denied McGovern’s request to declare him eligible for parole. Aggrieved, McGovern appeals.

STANDARD OF REVIEW

¶ 5. We will not disturb the decision of an administrative agency, such as the MDOC, unless the decision is unsupported by substantial evidence, arbitrary or capricious, beyond the agency’s scope or powers, or violative of the constitutional or statutory rights of the aggrieved party. Taylor v. Petrie, 41 So.3d 724, 727 (¶ 8) (Miss.Ct.App.2010) (citations and internal quotation omitted). However, we apply a de novo standard of review to questions of statutory interpretation. Finn v. State, 978 So.2d 1270, 1272 (¶ 6) (Miss.2008). The issue before the circuit court was one of law; hence, we review the decision de novo.

ANALYSIS

¶ 6. The sole issue on appeal is whether McGovern is eligible for parole of his sentence for selling amphetamines. “[P]arole eligibility is normally an executive decision and not one for the judiciary to determine.” Heafner v. State, 947 So.2d 354, 357 (¶ 12) (Miss.Ct.App.2007). Exclusive power over the granting and revoking of parole is vested in the state’s parole board. Miss.Code Ann. § 47-7-5 (Rev.2004). This Court has previously held that it is not improper for an inmate to pursue a question regarding his parole eligibility date by way of the MDOC’s ARP. Lattimore v. Sparkman, 858 So.2d 936, 938 (¶ 7) (Miss.Ct.App.2003). Nevertheless, an inmate may also challenge his parole eligibility as an original action in a circuit court. Id. McGovern chose the former course.

¶ 7. The MDOC argues McGovern should not be allowed to assert a retroactive analysis of his parole eligibility based on 2008 amendments to section 47-7-3. As authority for its position, the MDOC cites Mississippi Code Annotated section 99-19-1 (Rev.2007), which states:

No statutory change of any law affecting a crime or its punishment ... shall affect or defeat the prosecution of any crime committed prior to its enactment, ... and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, ... not withstanding amen-datory or repealing statutes, unless otherwise specially provided in such statutes.

The MDOC also cites McBride v. State, 914 So.2d 260, 264 (¶11) (Miss.Ct.App.2005) for the principle that an offender is not entitled to a new, more lenient sentence when the Mississippi Legislature amends a sentencing statute without specifically requiring resentencing of those previously sentenced under that statute. We find that the MDOC’s argument is misplaced. McGovern did not request a new or more lenient sentence. Furthermore, the MDOC cites no authority that would operate to limit the Legislature’s authority to retroactively apply any hypothetical amendments to the parole-eligibility provisions set forth within section 47-7-3. The MDOC’s argument is of no moment, however, considering that there were no amendments to section 47-7-3 by which McGovern would be considered ineligible for parole prior to those amendments and then eligible for parole after enactment of the amendments.

¶ 8. The Legislature set the following criteria regarding who is eligible for parole, stating:

No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that an offender convicted of only-nonviolent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph.... For purposes of this paragraph, “nonviolent crime” means a felony other than ... the sale or manufacture of a controlled substance under the Uniform Controlled Substances Law.... An offender convicted of a violation under Section 41-29-139(a), not exceeding the amounts specified under Section 41-29-139(b), may be eligible for parole.

Miss.Code Ann. § 47-7-3(l)(h) (Supp. 2011). Mississippi Code Annotated section 41-29-139(a) (Rev.2009) provides:

Except as authorized by this article, it is unlawful for any person knowingly or intentionally: (l)[t]o sell, barter, transfer, manufacture, distribute, dispensed or possess with intent to sell, barter, transfer, manufacture, distributed or dispense, a controlled substance; or (2)[t]o create sell, barter, transfer, distribute, dispensed or possess with intent to create, sell, barter, transfer, distributee,] or dispense, a counterfeit substance.

McGovern is currently serving the previously suspended portion of his sentence for selling amphetamines in violation of section 41-29-139(a). Section 47 — 7—3(l)(h) states that McGovern is eligible for parole if he had been convicted of a “nonviolent crime.” The statute further states that the sale of a controlled substance is not a “nonviolent crime” for the purposes of parole eligibility. Nevertheless, pursuant to section 47 — 7—3(l)(h), McGovern may still be eligible for parole if the controlled substance that he sold did not exceed “the amounts specified under [Mississippi Code Annotated section] 41-29-139(b) [ (Rev. 2009) ].” Section 41 — 29—139(b)(1) pertains to sentencing offenders convicted of selling “controlled substances classified in Schedule I or II ... except thirty (30) grams or less of marihuana, and ... a first offender ... who violates [section 41-29-139(a) ] with respect to less than one (1) kilogram but more than thirty (30) grams of marihuana.” Section 41-29-139(b)(2) sets sentencing parameters for “a first offender who violates [section 41-29-139(a) ] with an amount less than one (1) kilogram but more than thirty (30) grams of marihuana.” Finally, section 41 — 29—139(b)(3) pertains to offenders convicted of selling “thirty (30) grams or less of marihuana.” McGovern was convicted of selling amphetamines-not marijuana. None of the provisions of section 41-29-139(b) pertain to selling an amount of a controlled substance other than marijuana. They do not apply to an offender convicted of selling amphetamines. Because McGovern is incarcerated for selling amphetamines, he is not eligible for parole. Consequently, we find no merit to McGovern’s argument.

¶ 9. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . There have been amendments to section 47-7-3 since McGovern was sentenced for selling amphetamines, but those amendments had no bearing on McGovern’s parole eligibility. The amendments merely involved redefining paragraphs as subparagraphs and other similar modifications.

      . During the first and second steps of the ARP, the MDOC informed McGovern that he was not eligible for parole because he had previously been convicted of burglary. The third-step response was ambiguous in that it also concluded McGovern was not eligible for parole, but it did not specify why he was not eligible. Based on the discussion above, the first-and-second step ARP responses reached the right result, but they did so based on incorrect reasoning. Even though the MDOC incorrectly determined that McGovern was not eligible for parole as a consequence of his prior burglary conviction, he is still ineligible for parole because of his conviction for selling amphetamines. Although McGovern had a prior burglary conviction, he is not in the MDOC's custody for burglary.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Freddie PAYTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01488-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 22, 2012.
    Freddie Payton, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   GRIFFIS, P.J.,

for the court:

¶ 1. In 1970, Freddie Payton was convicted of the forcible rape of an eleven-year-old child, a- crime committed when Payton was fifteen years of age. Payton pleaded guilty and was sentenced to life imprisonment. Payton was paroled in 1984. But he was rearrested in 1986, and his parole was revoked. Payton was then recommitted to custody.

¶ 2. Payton has filed at least two motions for post-conviction collateral relief (“PCR”). The first PCR motion was filed in 1987, and the second PCR motion was filed in 1992. Both PCR motions were either denied or dismissed by the Attala County Circuit Court, and both of those judgments were affirmed without opinion by the Mississippi Supreme Court. See Payton v. State, 546 So.2d 701 (Miss.1989); Payton v. State, 661 So.2d 733 (Miss.1995).

¶3. On April 27, 2010, Payton filed a pleading with the Clerk of the Mississippi Supreme Court. This pleading was styled as, “Application for Leave to Proceed [with a Motion for PCR] in the Trial Court.” In the motion, Payton claimed that: his sentence was illegal; he had not received assistance of counsel regarding his 1970 guilty plea; and his sentence was unconstitutional under Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

¶ 4. On June 21, 2010, before the supreme court decided his application for leave to file a PCR motion, Payton filed a PCR motion with the circuit court.

¶ 5. One month later, by order dated July 21, 2010, the supreme court denied Payton’s application. The supreme court’s order indicated that the matter was before the panel of Chief Justice Waller and Justices Kitchens and Chandler. The panel determined: “Payton has previously raised two of these issues; therefore, those issues are procedurally barred pursuant to Mississippi] Code Annotated] [section] 99-31-21(3).” The panel also held that there was no merit to Payton’s claim that Graham was an intervening decision that invalidated his life sentence. The panel determined: “Payton was not sentenced to life without the possibility of parole and was, in fact, paroled for a period of time. Upon arrest for violation of parole, he was re-sentenced as an adult. Therefore, Pay-ton’s application should be denied.”

¶ 6. On August 11, 2010, the circuit court entered a judgment to dismiss Payton’s PCR motion. In its judgment, the circuit court held it did not have jurisdiction to consider Payton’s June 21, 2010 PCR motion because the Mississippi Supreme Court had denied his application for leave to file on July 21, 2010. Therefore, the circuit court concluded it lacked jurisdiction to consider the motion. On September 10, 2010, Payton filed his notice of appeal.

DISCUSSION

¶ 7. The Mississippi Supreme Court’s decision in Jackson v. State, 67 So.3d 725 (Miss.2011), obligates this Court to find the supreme court did not have jurisdiction to consider Payton’s “Application for Leave to Proceed in the Trial Court,” which was filed on April 27, 2010, with the Clerk of the Mississippi Supreme Court. We recognize that Jackson was decided seven days after a panel of the supreme court denied Payton’s application; however, it is our obligation to consider this case based on the most recent authority of the supreme court.

¶ 8. Before Jackson, this Court would have affirmed the circuit court’s decision. We would have held that when the supreme court is the last court to exercise jurisdiction over post-conviction matters, jurisdiction over future post-conviction claims is vested in the supreme court rather than a lower court. Evans v. State, 485 So.2d 276, 283 (Miss.1986). Once the supreme court has assumed jurisdiction, the movant must first obtain leave of the supreme court before filing a PCR motion in the circuit court. Id. Now, we must consider Jackson in this analysis.

¶ 9. Robert Jackson was indicted on a charge of capital murder for a killing that occurred on June 4, 1979. Jackson, 67 So.3d at 726 (¶ 3). Jackson pleaded guilty that same year. Id. at 727 (¶ 3). Jackson was sentenced to life in prison without parole. Id.

¶ 10. Jackson filed his first PCR motion on April 21, 1986. The circuit court dismissed the motion “based on the procedural bar of the statute of limitations and ‘on the basis of its merit.’ ” Id. at (¶ 4). On appeal, the supreme court reversed the circuit court’s judgment and found error in the application of the procedural bar. Id. at (¶ 5). The case was remanded to the circuit court. Id. On remand, the circuit court “either dismiss[ed] or den[ied] Jackson’s PCR motion. Jackson appealed that order to [the supreme court], which affirmed without opinion.” Id. at (¶ 6).

¶ 11. Jackson’s second PCR motion was filed in 1993. The circuit court “either dismissed or denied this motion as well,” and Jackson appealed. Id. The supreme court affirmed the circuit court’s decision ■without opinion. Id. at 728 (¶ 6).

¶ 12. In 1999, Jackson filed an “application” with the supreme court “for leave to proceed in the circuit court with a new PCR motion.” Id. at (¶ 8). The application was denied as a successive writ, pursuant to Mississippi Code Annotated section 99-39-27(9) (Supp.2010). Id.

¶ 13. In 2002, Jackson again sought leave to pursue a PCR motion. Id. at (¶ 9). The supreme court denied Jackson’s application on the basis that it was a successive writ. Id.

¶ 14. In 2004, Jackson filed another pleading with the supreme court that was treated as an “application for permission to seek post-conviction relief in the circuit court.” Id. at (¶ 10). The supreme court denied the application as a successive-writ.

¶ 15. In 2007, Jackson filed a PCR motion. Id. at (¶ 11). The circuit court dismissed the motion as a successive writ. Id. at 729 (¶ 11). On appeal, this Court, once again affirmed the dismissal of the PCR motion. Id. at (¶ 12). This Court concluded that Jackson’s PCR motion was procedurally barred, and we further held that “the circuit court was without jurisdiction to entertain Jackson’s motion absent leave of the supreme court, which Jackson did not obtain because this Court had last exercised jurisdiction in the case.” Id. (quoting Jackson v. State, 67 So.3d 781, 782 (¶¶ 6-7) (Miss.Ct.App.2009)).

¶ 16. Jackson filed a petition for a ■writ of certiorari with the supreme court, which was granted. Id. at (¶ 13). The supreme court issued an opinion that was later withdrawn on rehearing. Id. (¶¶ 13-15). In a modified opinion on rehearing, the supreme court ruled that the circuit court “should exercise initial jurisdiction over Jackson’s PCR motion.” Id. at (¶ 15). The supreme court held:

Where there has been no direct appeal of his conviction or sentence, the prisoner must file this PCR motion ... “as an original civil action in the trial court.” Miss.Code Ann. § 99-39-7 (Rev.2007). But if the prisoner’s conviction and sentence were directly appealed, and either the conviction was affirmed or the appeal dismissed by this Court, then he must file an application in this Court for leave to proceed in the trial court and include the proposed PCR motion with his application. Miss.Code Ann. §§ 99-39-7 (Rev.2007) and 99-39-27 (Supp. 2010).

Jackson, 67 So.3d at 730 (¶ 17).

¶ 17. Jackson had pleaded guilty, so there was no direct appeal. Id. at (¶ 18). As a result, Jackson’s PCR motions should have been filed with the circuit clerk, and no application for permission from the supreme court was required. The supreme court reasoned:

Because there has been no direct appeal of his conviction or sentence, Jackson must file his PCR motions in the trial court. Miss.Code Ann. § 99-39-7 (Rev. 2007). See Martin v. State, 556 So.2d 357, 359 (Miss.1990) (citing McDonall v. State, 465 So.2d 1077 (Miss.1985)) (“In cases where the prisoner has entered a plea of guilty, the trial court has exclusive, original jurisdiction to hear and determine a petition for post-conviction relief.”). Jackson’s original, 1986 “motion to vacate” and his PCR filings in 1993 and 2007 were properly filed PCR motions. But Jackson incorrectly filed in this Court three applications for leave to proceed in the trial court (i.e., to get permission to file new PCR motions in the trial court), in 1999, 2002, and 2004. This Court denied all three applications, finding them to be impermissible successive writs under Section 99-39-27(9).
When we characterized our disposition of Jackson’s 1999 application as a denial, we were stating that the merits of the PCR motion had been reviewed and rejected or that his arguments were barred on res judicata or waiver grounds. See Miss.Code Ann. § 99-39-27(9) (Rev.2007). This was not the case. We did not make a “final determination going to the merits of the underlying conviction and sentence.” Martin, 556 So.2d at 359. Nonetheless, we had, in fact, “exercised jurisdiction” over Jackson’s PCR proceedings, and “there is general language in our prior cases to the effect that the court to last exercise jurisdiction in the case has exclusive, original jurisdiction over the post-conviction petition.” Martin, 556 So.2d at 359 (citation omitted); McDonall, 465 So.2d at 1078. Based on these authorities, the trial court and the Court of Appeals found that, when we “denied” Jackson’s 1999 application, we assumed jurisdiction over Jackson’s PCR proceedings to the exclusion of the trial court. But the cases cited above presupposed that this Court had proper jurisdiction to exercise, which is not the case here.
Pursuant to Section 99-39-7 and Martin, this Court was without jurisdiction to consider Jackson’s 1999, 2002, and 200f applications for leave to proceed in the trial court, because Jackson’s conviction and sentence were never directly appealed. Miss.Code Ann. § 99-39-7 (Rev.2007); Martin, 556 So.2d at 358. The only way in which this Court properly could have considered Jackson’s PCR filings would have been if Jackson had first presented his PCR motion to the trial court, that court had denied relief, and Jackson had appealed that decision to this Court pursuant to Section 99-39-25. Miss.Code Ann. § 99-39-25 (Rev.2007); Martin, 556 So.2d at 358. Regarding Jackson’s misfiled applications, this had not happened, so this Court did not have subject-matter jurisdiction to entertain those applications, at first instance, or the merits of the PCR motions attached thereto.
Put simply, the fatal flaw in Jackson’s 1999, 2002, and 2004 applications was not that they were successive writs, but that they were filed in the wrong court. So we improperly exercised jurisdiction and denied Jackson’s applications. Miss.Code Ann. § 99-39-7 (Rev.2007). We should have merely dismissed the applications without prejudice for being filed in the wrong court and directed Jackson to file his PCR motions in the trial court. Martin, 556 So.2d at 358 (“this post-conviction relief action initiated by Martin must be dismissed without prejudice as having been filed in the wrong court”). We routinely dismiss mistakenly filed applications, but such action by this Court does not strip the trial court of jurisdiction. Martin, 556 So.2d at 359.
Therefore, as this Court was without jurisdiction to entertain them, we vacate and set aside our denials of Jackson’s 1999, 2002, and 2004 applications. While Section 99-39-25 gives this Court jurisdiction to address Jackson’s dismissed 2007 PCR motion, the Warren County Circuit Court should exercise initial jurisdiction over Jackson’s PCR proceedings. Miss.Code Ann. §§ 99-39-25(1), 99-39-7 (Rev.2007).

Jackson, 67 So.3d at 730-31 (¶ 18-22) (emphasis added).

¶ 18. Jackson is squarely on point with the instant case, and it requires that we reverse circuit court’s judgment and remand.

¶ 19. Payton pleaded guilty to forcible rape in 1970. Payton did not have a direct appeal. Payton filed two PCR motions. Both were denied or dismissed by the circuit court and were affirmed without opinion by the supreme court.

¶ 20. Payton believed he had to get permission from the supreme court to bring another PCR motion. Thus, on April 27, 2010, Payton filed his “Application for Leave to Proceed in the Trial Court.” Before the supreme court decided whether to grant or deny the application, Payton filed his PCR motion with the circuit court. The supreme court then denied the application, and the circuit court relied on this denial to dismiss Payton’s PCR motion for lack of jurisdiction.

¶ 21. Based on Jackson, Payton filed in the wrong court. The supreme court did not have jurisdiction. Apparently, Payton was correct to proceed with his PCR motion before the circuit court. As a result, we must reverse the circuit court’s August 11, 2010 judgment where it dismissed the PCR motion based on its lack of jurisdiction. On remand, the circuit court may consider Payton’s PCR motion even though the supreme court denied Payton’s application.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

LEE, C.J., BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

      . In Graham, the United States Supreme Court held that juveniles may not be sentenced to life without the possibility of parole for crimes other than homicide.


author: IRVING, P.J.,

text:
    Alfredo SANDOVAL, Appellant v. Kimberly SANDOVAL, Appellee.
    No. 2010-CA-01777-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied May 22, 2012.

      Michael Duane Mitchell, Jeannene Pacific, Laurel, attorneys for appellant.
    Margaret Williams Holmes, Petal, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On October 13, 2010, the Forrest County Chancery Court granted Alfredo Sandoval and Kimberly Sandoval a divorce on the ground of adultery. The chancery court also awarded Kimberly physical custody of the couple’s three children and divided the couple’s marital assets. Feeling aggrieved, Alfredo appeals and asserts that the chancery court erred in classifying the appreciation of some of the businesses as marital property and in its calculation of the appreciation period for the marital property.

¶ 2. Finding error, we affirm in part, reverse and render in part, and remand in part the judgment of the chancery court. We affirm that part of the chancery court’s judgment classifying the appreciation in value of the Laurel and Ellisville businesses as marital property. However, because the chancellor utilized the total appreciation occurring during the life of the Laurel and Ellisville businesses, rather than the amount of appreciation occurring during the course of the parties’ marriage, we reverse and remand. We also reverse and render that part of the judgment classifying as marital property the appreciation in value of the Forest, Mississippi businesses.

FACTS

¶ 3. Alfredo and Kimberly were married on March 14, 2007. Prior to their marriage, Alfredo and a business partner opened three grocery stores and a restaurant. These businesses continued to exist throughout Alfredo’s marriage to Kimberly. The three grocery stores were located in Laurel, Mississippi; Ellisville, Mississippi; and Forest, Mississippi. The restaurant was also located in Forest, Mississippi. Alfredo and Kimberly both testified that Kimberly’s name was included on the deed to the marital home and on the building that housed the business in Laurel. Kimberly argued that because Alfredo’s other businesses were funded using money from the Laurel business, she was entitled to an interest in the Ellisville and Forest businesses.

¶4. Alfredo testified that Kimberly assisted in operating the Laurel business for approximately three months but never went back to work after the birth of their first child in 2000. Additionally, Alfredo testified that while Kimberly was entitled to a one-fourth interest in the building housing the Laurel business and a one-half interest in the marital home located in Petal, Mississippi, Kimberly was not enti-tied to a percentage of the businesses because she did not actively participate in their operation.

¶ 5. The chancery court found that the marital home and the couple’s one-half interest in the building housing the Laurel business should be classified as marital property because Kimberly is listed on the deeds. The chancery court also determined that Kimberly was entitled to an equitable distribution of the increase in the value of the Laurel, Ellisville, and Forest businesses because of Alfredo’s active participation in the businesses’ appreciation in value during the marriage.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Even though the parties characterize the issue on appeal as one issue, we separate the issue into the following two issues for clarity: (1) whether the chancery court erred in classifying the appreciation of some of the businesses as marital property and (2) whether the chancery court erred in its calculation of the appreciation period of the marital property. An appellate court’s scope of review in a domestic-relations matter is limited. Williams v. Williams, 37 So.3d 1171, 1173 (¶4) (Miss.2010). As such, an appellate court will not disturb a chancery court’s findings unless the court was manifestly wrong, reached a clearly erroneous result, or applied an erroneous legal standard. Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994).

¶ 8. Before a chancery court can divide a couple’s assets, it must first classify the assets as marital or separate property. Fisher v. Fisher, 771 So.2d 364, 368 (¶ 14) (Miss.2000). Next, the chancery court must divide the assets based on the Ferguson factors. Id. Finally, if one party is left with a deficit after the division of assets, the chancery court should consider alimony based on the value of the nonmari-tal assets. Id. at 369 (¶ 14). “Marital assets” are those assets accumulated or acquired during the marriage. Wheat v. Wheat, 37 So.3d 632, 637 (IT 14) (Miss.2010). Excluded from the definition of “marital assets” are those assets attributable to one party’s separate estate prior to or outside the marriage. Craft v. Craft, 825 So.2d 605, 608 (¶ 11) (Miss.2002). Additionally, “[property brought into the marriage by one partner and used by the family becomes a marital asset.” Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 19) (Miss.2002) (citing Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994)).

¶ 9. The chancery court’s inquiry should examine both spouses’ contributions to the appreciation of assets. The active/passive test is used to classify the appreciated value of a spouse’s separate asset by examining the reason for its appreciation. Rhodes v. Rhodes, 52 So.3d 430, 436 (¶ 20) (Miss.Ct.App.2011). If the asset’s appreciation results from a spouse’s effort, the appreciation is “active” and thus, marital. Id. If the asset’s appreciation results from other causes, the appreciation is “passive” and, thus, remains separate property. Id.

1. Appreciation as Marital Property

¶ 10. The chancery court determined that Kimberly was entitled to “an equitable distribution of the ... increase in value of [all of] the businesses ... due to [Alfredo’s] active participation” in the businesses. We disagree as to the businesses located in Forest. In its application of the active/passive test, the chancery court erred in classifying the appreciation in value of the businesses in Forest as a marital asset. It is undisputed that neither Alfredo nor Kimberly worked at the Forest businesses. Alfredo only collected a commission check from his business partner. Alfredo’s business partner controlled the Forest businesses. Neither Kimberly nor Alfredo contributed to the appreciation in value of those businesses. As such, the appreciation of those businesses was passive and should not have been considered marital property.

¶ 11. Even though the Laurel and Ellisville businesses were incorporated pri- or to Alfredo’s marriage to Kimberly, the chancery court’s classification of the appreciation of those businesses as marital property was proper. Kimberly testified that she worked in both of these businesses throughout her marriage to Alfredo. However, as stated, Alfredo testified that while Kimberly helped with the Laurel business, she only worked there for three months prior to 2000. This was prior to the marriage. Alfredo further testified that Kimberly did not assist with the business in Ellisville. However, Alfredo continued to work at both of these businesses and took an active role in making the businesses profitable during his marriage to Kimberly. Thus, even though there was conflicting testimony about the length of time that Kimberly had worked at the Laurel and Ellisville businesses, the appreciation of the businesses is still marital property because Alfredo actively participated in making the businesses profitable. The chancery court correctly classified the appreciation of these businesses as marital property.

2. Period of Appreciation

¶ 12. Alfredo contends that the chancery court erred in considering the total current value of the businesses when dividing the marital assets. We agree. Only active appreciation that occurred during the course of the marriage is subject to equitable division. See A & L, Inc. v. Grantham, 747 So.2d 832, 839 (¶ 24) (Miss.1999). Although Alfredo and Kimberly dated for many years before getting married, they were married only three years. Therefore, only the active appreciation of the Laurel and Ellisville businesses, which occurred during the course of Alfredo and Kimberly’s three-year marriage, is marital property. Thus, the chancery court erred by not limiting its consideration of the appreciation of the businesses to the time during which Alfredo and Kimberly were married. Therefore, we remand this case for a re-classification of these assets and a re-distribution of the marital assets.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., SPECIALLY CONCURS WITHOUT SEPARATE WRITTEN- OPINION. MYERS, J., NOT PARTICIPATING.

      . The parties lived together and had children prior to their marriage.

      . As enumerated in Ferguson, the factors to be considered by the chancery court are:
      (1) substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows: (a) direct or indirect economic contribution to the acquisition of the property; (b) contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties!,] and duration of the marriage; and (c) contribution to the education, training!,] or other accomplishment bearing on the earning power of the spouse accumulating the assets; (2) the degree to which each spouse has expended, withdrawn!,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree!,] or otherwise; (3) the market value and the emotional value of the assets subject to distribution; (4) the value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; (5) tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; (6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; (7) the needs of the parties for financial security with due regard to the combination of assets, income!,] and earning capacity; and, (8) any other factor which in equity should be considered.


author: CARLTON, J.,

text:
    Mondrick BRADLEY a/k/a Mondric F. Bradley a/k/a Bradley Mondrick a/k/a Bradley Mondric a/k/a Mondric Bradley, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01746-COA.
    Court of Appeals of Mississippi.
    May 22, 2012.
    Hinds County Circuit Court, Malcolm 0. Harrison, J.
    Mondrick Bradley, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On July 31, 1991, Mondrick Bradley was' convicted of homicide and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Bradley was subsequently released on parole on March 21, 2001. Bradley was then returned from parole into the custody of the MDOC on February 27, 2002, and on August 14, 2003, he was indicted for the possession of cocaine in an amount more than 0.1 gram but less than 2 grams. On October 5, 2004, Bradley pleaded guilty to the charge of possession of cocaine, and the trial court imposed a three-month sentence in the custody of the MDOC.

¶ 2. On or about March 9, 2010, the MDOC denied Bradley parole. Bradley subsequently requested an administrative review, which was denied. Bradley then filed a motion for post-conviction relief (PCR) in the Hinds County Circuit Court. The circuit court dismissed Bradley’s PCR motion finding it barred as a successive motion under Mississippi Code Annotated section 99-39-23(6) (Supp.2011). Bradley appeals, raising the following assignments of error: whether he received (1) “an [filie-gal [fimposed [s]entence;” and (2) “an [illegal [fimposed [revocation].” Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. This Court will not reverse a trial court’s dismissal of a PCR motion absent a finding that the trial court’s decision was clearly erroneous. Evans v. State, 75 So.3d 1119, 1120 (¶ 4) (Miss.Ct.App.2011). However, we employ a de novo standard of review when issues of law are raised. Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

DISCUSSION

¶ 4. As explained by the circuit court in its order of dismissal, Bradley has previously filed three petitions for PCR, which were all denied by the circuit court. Under section 99-39-23(6), “all successive motions are barred if the prisoner has previously filed a PCR motion.” Id. at 1120 (¶ 5). Exceptions to this statutory bar exist in cases where “ ‘an intervening decision of the United States Supreme Court or the Mississippi Supreme Court’ adversely affects the outcome of the prisoner’s conviction or sentence, or where new evidence, not reasonably discoverable at trial, ‘has surfaced which would have caused a different result in the conviction or sentence.’ ” Owens v. State, 17 So.3d 628, 635 (¶ 18) (Miss.Ct.App.2009) (quoting Riggs v. State, 967 So.2d 650, 652 (¶7) (Miss.Ct.App.2007)). “A third ‘exception requires the prisoner to show that either his sentence has expired or his parole, probation or conditional release has been unlawfully revoked.’ ” Id. (quoting Bowie v. State, 949 So.2d 60, 62 (¶ 6) (Miss.Ct.App.2006)). The movant has the burden to show that he has met a statutory exception, Adams v. State, 954 So.2d 1051, 1053 (¶ 7) (Miss.Ct.App.2007). In the present case, Bradley has failed to present evidence to satisfy an exception. This issue is without merit.

¶ 5. Were we to address Bradley’s issues on the merits, we would also find no merit. We recognize that “the parole board, not the circuit court, has exclusive authority for the granting of parole within the parameters set forth in Mississippi Code Annotated section 47-7-3 (Supp.2009).” Chandler v. State, 27 So.3d 1199, 1201 (¶ 10) (Miss.Ct.App.2010). See Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 11) (Miss.2003) (“[The patrol board’s] control is independent of the circuit court’s sentencing authority.”) (citation omitted). Moreover, Bradley’s issues are merely assertions, and Bradley fails to substantiate the assertions with anything more.

¶ 6. Based on the forgoing, we affirm the trial court’s dismissal of Bradley’s PCR motion.

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

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

      . The dates pertaining to Bradley's previous conviction and his parole release and return are provided to this Court from his MDOC Inmate Time Sheet.


author: PARKER, Justice.

text:
    Ex parte GREEN TREE FINANCIAL CORPORATION a/k/a Conseco Financial Corporation. (In re Kathy Adams v. Green Tree Financial Corporation a/k/a Conseco Financial Corporation, et al.).
    1090110.
    Supreme Court of Alabama.
    Jan. 14, 2011.

      Roger S. Morrow, Joel H. Pearson, and Jada Price Loftin of Morrow, Romine & Pearson, P.C., Montgomery; and R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner.
    Barry C. Leavell of Leavell & Associates, Attorneys at Law, L.L.C., Montgomery, for appellee.
   PARKER, Justice.

Green Tree Financial Corporation a/k/a Conseco Financial Corporation (hereinafter referred to as “Green Tree”) petitions this Court for a writ of mandamus directing the Hale Circuit Court to vacate its order denying Green Tree’s motion to transfer the action against it and others to Tuscaloosa County. For reasons discussed below, we grant the petition and issue the writ.

According to the complaint filed in the trial court on May 30, 2008, Carla McKenzie, allegedly an agent of Southeastern Mobile Home Brokers, Inc. (hereinafter referred to as “Southeastern”), and/or Green Tree, entered Kathy Adams’s mobile home in Cottondale, which is in Tuscaloosa County, without legal authority and assaulted Adams while in the mobile home. Adams sued Green Tree, Southeastern, and McKenzie in Hale County claiming that she had been injured physically as the result of McKenzie’s alleged assault and that her mobile home had been damaged, all the result of McKenzie’s acts that, Adams claimed, had been directed by Green Tree and Southeastern.

Green Tree answered the complaint on July 2, 2008, with a “suggestion of bankruptcy, motion to dismiss or, alternatively, motion to transfer venue,” advising the trial court that “Green Tree Financial Corp., a/k/a Conseco Financial Corp. filed for Chapter 11 bankruptcy protection on December 17, 2002, in the United States Bankruptcy Court for the Northern District of Illinois, and was liquidated in that proceeding.” Petition, Exh. M, at 1. Green Tree suggested that the case against it should be dismissed “due to the application of the various orders entered in connection with Green Tree’s bankruptcy proceeding.” Id. Green Tree also argued that venue in Hale County was improper because, it stated, no defendant was a resident of, or did business in, Hale County, nor was the plaintiff a resident of Hale County. It noted that § 6-3-2, Ala. Code 1975, which applies to individuals like McKenzie, provides that

“venue is proper in the county where (1) the trespass occurred (Tuscaloosa County); (2) the defendant resides (Morgan County), or (3) the act or omission complained of occurred (Tuscaloosa County). See also [Ex parte Smith Wrecker Serv., Inc., 987 So.2d 534] (Ala.2007). The home is located in Tuscaloosa County, and therefore the trespass occurred there. Similarly, all acts and omissions occurred in Tuscaloosa County. Finally, Defendant McKenzie resides in Morgan County. Accordingly, venue as to Defendant McKenzie is improper in Hale County, and proper in Tuscaloosa County.”

Petition, Exh. L, at 1. Likewise, Green Tree argued:

“4. As against the corporate defendants, under Alabama Code § 6-3-7, venue is proper in the county where (1) a substantial part of the events or omissions occurred (Tuscaloosa County), (2) the county of the corporation’s principal office in Alabama is located (Morgan County — Southeastern Mobile Home Brokers; none for Green Tree), and (3) the county where the plaintiff resided (Tuscaloosa County). Here, venue is improper in Hale County, and proper in Tuscaloosa County, because the substantial part of the events occurred in Tuscaloosa County (i.e., the trespass, and breaking and entering), none of the defendants maintain a principal office in Hale County, and the Plaintiff resides in Tuscaloosa County.
“6. In addition, the interest of justice is best served by transferring this case to Tuscaloosa County. The interest of justice requires transfer of an action from a county with little, if any, connection to the action, to the county with a strong connection to the action. See Ex parte Sasser, 730 So.2d 604 (Ala.1999) (transferring motor vehicle accident case to county in which the accident occurred); Ex parte Safeway Ins. Co., 947 So.2d 380 (Ala.2006) (same); Ex parte Fuller, 955 So.2d 414 (Ala.2006) (same). Here, Hale County has little, if any, connection to this action, especially when compared to Tuscaloosa County which is the location of the home, the incident, the witnesses, the plaintiff and the pertinent medical care. For these reasons and others, the interest of justice requires transfer of this action.
“7. This Defendant also asserts application of the applicable statute of limitations.
“WHEREFORE, Green Tree respectfully requests this action be dismissed, or transferred to the Circuit Court of Tuscaloosa County, Alabama.”

Petition, Exh. M, at 2-3.

On December 12, 2008, the trial court placed the case on the administrative docket pending further orders of the court, and on December 30, 2008, Green Tree filed an amended “suggestion of bankruptcy, motion to dismiss or, in the alternative, to transfer venue and request for oral argument.” In its amended filing, Green Tree reiterated its status as having been liquidated in 2003 and noted that it had ceased any contacts that it had had with Alabama when it ceased doing business upon its liquidation. Further, citing Ex parte Phil Owens Used Cars, Inc., 4 So.3d 418 (Ala.2008), and Ex parte Harrison, 7 So.3d 1020 (Ala.Civ.App.2008), Green Tree asserted that, “[a]t the time of the filing of the suit, the Alabama State Courts no longer had personal jurisdiction over Defendant Green Tree.” Petition, Exh. E, at 1. Green Tree then stated:

“Currently, this matter has been placed on the Administrative Docket in the Circuit Court of Hale County, Alabama. Defendant Green Tree contends it should be dismissed from this action; or, alternatively, the case should be transferred to the Circuit Court of Tuscaloosa, Alabama, to be placed on an Administrative Docket of that Court, due to Circuit Court of Tuscaloosa County being the Court with proper venue. See, e.g., Ex parte Monsanto Co., 794 So.2d 350, 355-356 (Ala.2001) (directing the trial court ‘to dispose of the motion for a change of venue as the first order of business.’); Ex parte Haynes, 924 So.2d 687, 691 (Ala.2005); Ex parte State Farm Mutual, 893 So.2d 1111, 1115 (Ala.2004); Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001); Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999); Hales v. ProEquities, Inc., 885 So.2d 100 (Ala.2003).
“The Circuit Court of Hale County, Alabama is an improper venue for this matter and Defendant Green Tree respectfully requests that this matter be set for a hearing in order for the Court to hear oral arguments on the issue of venue.”

Id., at 2. In its brief in support of the amended filing, Green Tree, citing references to exhibits, provided the trial court with the following “summary of pertinent facts”:

• “Plaintiff Kathy Adams ... currently and at the time of the alleged incident made basis of this lawsuit ... resides at_Hurricane Road, Lot 61, Cottondale, Alabama and is a resident of Tuscaloosa County.... Plaintiff Adams does not now reside, nor in the previous three (3) years resided, in Hale County, Alabama.
• “On the date of the alleged incident, the home allegedly damaged was located in Tuscaloosa County, Alabama.... The home is not, nor has it ever been, located in Hale County, Alabama.
• “The alleged incident occurred on or about June 3, 2006, when Defendant Carla McKenzie ... allegedly went to the incorrect mobile home to assess it for Defendant Southeastern Mobile Home Brokers ... potential purchasing of the mobile home.
• “As a result of the alleged incident, Plaintiff Adams filed a complaint on May 30, 2008, in the Circuit Court of Hale County, Alabama, pleading breaking and entering, wantonness and recklessness, negligence, and assault and battery.
• “The Tuscaloosa Sheriffs Department investigated the alleged incident.
• “The alleged medical treatment sought by Plaintiff Adams as a result of the alleged incident was from medical care providers located in Tuscaloosa County, Alabama.
• “Defendant McKenzie does not now, nor has she ever resided in Hale County, Alabama, and she was served notice of this matter in Morgan County, Alabama. Furthermore, the Complaint of Plaintiff Adams alleges that Defendant McKenzie works for Defendant [Southeastern Mobile Home Brokers] in Decatur, Alabama.
• “Defendant [Southeastern Mobile Home Brokers] principal place of business in Alabama is located in Morgan County, Alabama[;] it does not maintain a principal office in Hale County, Alabama, and was served notice of this matter at its principal place of business in Morgan County, Alabama.
• “At the time of the incident, Defendant Green Tree did not do any business in Hale County, Alabama, due to that entity being liquidated in 2002 during a Chapter 11 bankruptcy proceeding where all assets were sold by the bankruptcy court in 2003 and that company ceased doing business at that time.
• “Defendant Green Tree did not do business in the State of Alabama or in Hale County, Alabama, on May 30, 2008, when this lawsuit was filed or on June 3, 2006, when the incident allegedly took place.... On June 3, 2006 and on May 30, 2008, there were no purchasers of the ownership or the assets of Conseco Financial Corp.-AL that had offices, employees or agents that were based or located in Hale County, Alabama.... Defendant Green Tree does not maintain a business office or have employees or agents in Hale County, Alabama.... Defendant Green Tree does not have its principal place of business located in Hale County, Alabama.”

Petition, Exh. F, at 2-3.

On June 8, 2009, Adams moved the trial court to amend her complaint by adding as defendants Green Tree Servicing, L.L.C., an Alabama limited liability company based in Minnesota, which was allegedly doing business in Alabama, and Green Tree-AL, L.L.C., an Alabama limited liability company doing business in Alabama. Both entities shared the Minnesota address at 345 St. Peter Street, Saint Paul, MN 55102.

The trial court held a hearing on the pending motions on August 18, 2009. Green Tree argued that caselaw requires that the issue of venue be determined first, citing Hales v. ProEquities, Inc., 885 So.2d 100, 106 (Ala.2003) (quoting Thompson v. Skipper Real Estate Co., 729 So.2d 287, 292 (Ala.1999)), for the proposition that “ ‘[a] defendant has the right to have the proper venue established before it has any obligation to move to compel arbitration’ ’’(emphasis omitted).

On September 25, 2009, the trial court denied Green Tree’s motion to transfer the case, saying only: “THIS MATTER IS BEFORE THE COURT ON A MOTION TO TRANSFER VENUE AND HAVING CONSIDERED THE SAME, IT IS ORDERED, ADJUDGED AND DECREED SAID MOTION IS DENIED.” Petition, Exh. C (capitalization in original).

Standard of Review

‘““The question of proper venue for an action is determined at the commencement of the action.” Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). “If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.” Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). “A petition for a writ of mandamus is the appropriate means for challenging a trial court’s refusal to transfer an action and such a petition is due to be granted if the petitioner makes a clear showing of error on the part of the trial court.” Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994). “In considering a mandamus petition, we must look at only those facts before the trial court.” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).’
“Ex parte Walter Indus., Inc., 879 So.2d 547, 548-49 (Ala.2003). The petitioner for the writ of mandamus has the additional burden of showing
“ ‘ “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’
“Ex parte Crawford Broad. Co., 904 So.2d 221, 224 (Ala.2004) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995))).”

Ex parte Haynes. Downard Andra & Jones, LLP, 924 So.2d 687, 691 (Ala.2005).

Analysis

Green Tree’s petition relies on §§ 6-3-2, 6-3-7, and 6-3-21.1, Ala.Code 1975, and Rule 82(d)(1), Ala. R. Civ. P., to argue that, under the circumstances of this case, venue cannot properly be laid in Hale County.

Adams argues that the petition should not be granted because, she says, Green Tree has another legal remedy that precludes issuance of the writ. Although Adams claims that Green Tree has an alternative to mandamus relief, she has failed to so demonstrate that another adequate remedy exists.

Adams also argues that all Green Tree’s arguments on behalf of the other named defendants are moot because those defendants did not join in the petition for the writ of mandamus. Green Tree, however, has not asserted a desire to argue on behalf of the other defendants. Because venue, under certain circumstances, will be proper against all joined defendants if it is proper against one defendant, see Rule 82(b)(1)(A), and 82(c), Ala. R. Civ. P., it is necessary for Green Tree to challenge the validity of venue laid in Hale County for all defendants. Thus, Green Tree’s arguments on behalf of the other defendants are not moot.

Looking, as we must, only to those facts before the trial court, Ex parte Movie Gallery, Inc., 81 So.3d 104, 109 (Ala.2009), and recognizing that proper venue is determined at the commencement of an action, Ex parte Chapman Nursing Home, Inc., 903 So.2d 818, 815-16 (Ala.2004), and not after additional parties have been joined to possibly repair a mislaid venue, it is obvious that Green Tree’s motions to the trial court properly referenced the governing statutory authority that defines a proper venue, §§ 6-3-2, 6-3-7, and 6-3-21.1, Ala.Code 1975. It is also obvious that Adams provided no persuasive rebuttal to Green Tree’s motions for a transfer of the action to Tuscaloosa County, where Adams, the plaintiff, resided and where the events transpired. The acts complained of, i.e., the alleged trespass and assault, did not occur in Hale County. The individual defendant does not reside in Hale County, and no corporate defendant maintains a principal office, employees, or agents in Hale County. The allegedly damaged property is not located in Hale County, and the plaintiff does not reside in Hale County. Considering these facts and absent evidence to the contrary, we hold that when this action was commenced venue lay in the wrong county, and the trial court erred in denying Green Tree’s motion for a transfer of the case to Tuscaloosa County, a proper venue, from Hale County, an improper venue.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., concurs.

WOODALL, SMITH, and SHAW, JJ., concur in the result.

      . The jurisdictional issues resulting from the suggestion of bankruptcy are not considered here because the petition for a writ of mandamus addresses only the Hale Circuit Court’s denial of Green Tree's motion to transfer the action to Tuscaloosa County.

      . Rule 82(b)(1)(A) provides:
      "Actions against an individual or individuals having a permanent residence in this state:
      "(A) Must be brought in the county where the defendant or any material defendant resides at the commencement of the action, except that if the action is a personal action other than an action on a contract, it may be brought either in the county where the act or omission complained of occurred, or in the county of the permanent residence of the defendant or one of them."

      (Emphasis added.)

      . Rule 82(c) provides:
      "Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13, 14, 22, and 24, as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties.”