author: ROBERTS, J., BARNES, J.,

text:
    Eldridge JOHNSON, Appellant v. STATE of Mississippi Appellee.
    No. 2010-CP-01335-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2012.

      Eldridge Johnson, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Eldridge Johnson appeals the Forrest County Circuit Court’s summary dismissal of Johnson’s motion for post-conviction relief. Johnson argues that the circuit court impermissibly sentenced him to a vague and indeterminate sentence. Finding that the circuit court erred when it sentenced Johnson in a manner that, for multiple reasons, cannot operate within the parameters of the law, we find that the circuit court erred when it summarily dismissed Johnson’s motion for post-conviction relief. Therefore, we reverse the judgment of the circuit court and remand this matter to the circuit court for further proceedings, if necessary, based on the State’s decision whether to pursue revocation proceedings, as discussed in further depth, below.

FACTS AND PROCEDURAL HISTORY

¶ 2. Johnson pled guilty to false pretense. On November 7, 2008, the Forrest County Circuit Court sentenced Johnson to ten years in the custody of the Mississippi Department of Corrections (MDOC). However, the circuit court also added the following language to Johnson’s order of conviction:

IT IS FURTHER ORDERED AND ADJUDGED that the Defendant shall serve two (2) years(s) in the custody of the Mississippi Department of Corrections Intensive Supervision House Arrest Program. Should the Defendant fail to successfully complete the service of said two (2) year(s) in the Intensive House Arrest Program, then this Court directs that the Defendant shall serve the entire ten (10) year sentence with the Mississippi Department of Corrections in the Department’s general population. Should the Defendant successfully complete the service of said two (2) year(s) in the Intensive House Arrest Program, the remaining eight (8) years of his ten (10) year sentence be and the same are hereby suspended pursuant to and in conformity with the Post-Release Supervision set out and authorized in Miss.Code Ann. § (1972), as amended, and Defendant shall he placed on Post-Release Supervision.

(Emphasis in original).

¶ 3. On December 3, 2009, Johnson filed a “motion to correct/modify sentencing order” in the Forrest County Circuit Court. Within his motion, Johnson stated that he had gone before the MDOC’s classification committee based on the allegation that he had violated the terms of the intensive supervision program (ISP) — colloquially known as house arrest. Johnson further stated that the MDOC classification committee informed him that “per order of the [circuit court] he was to serve the entire ten ... years [sic] sentence in the [MDOC].” Johnson reasoned that the circuit court impermissibly required that he complete the ISP as a condition of his term of post-release supervision.

¶ 4. The circuit court treated Johnson’s motion as a motion for post-conviction relief. The circuit court stated that, as seen in the order of conviction, “the [ISP] was not a condition of Johnson’s post-release supervision.” Accordingly, the circuit court summarily dismissed Johnson’s motion. Aggrieved, Johnson appeals.

STANDARD OF REVIEW

¶ 5. A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Rev.2007). We will affirm the circuit court’s summary dismissal of a PCR motion if, after reviewing the PCR motion de novo, we conclude that the petitioner has failed to “demonstrate ⅛ claim procedurally alive substantially showing denial of a state or federal right....’” Ivory v. State, 999 So.2d 420, 424 (¶ 9) (Miss.Ct.App.2008) (quoting Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999)).

ANALYSIS

¶ 6. Johnson does not attack the MDOC Classification Committee’s decision to remove him from the ISP. Instead, Johnson attacks the sentence imposed by the circuit court. Consequently, Johnson’s motion for post-conviction relief is subject to review. See Miss.Code Ann. § 99-39-5 (Rev.2007). We are also mindful that “[a]n argument that the sentence violates [the] law, either because it is clearly erroneous or because it is unredeemably ambiguous or incomplete, would be proper under the post-eonviction[-]relief procedures.” Burns v. State, 933 So.2d 329, 331 (¶ 8) (Miss.Ct.App.2006). Johnson’s specific claim is that the circuit court’s sentence was illegally vague and indeterminate. During Johnson’s two-year sentence to the ISP, he was under the full and complete jurisdiction of the MDOC, subject to reclassification to custody status if he violated the rules and guidelines of the ISP. Mississippi Code Annotated section 47-5-1003(3) (Rev.2004) provides:

To protect and to ensure the safety of the state’s citizens, any offender who violates an order or condition of the [ISP] shall be arrested by the correctional field officer and placed in actual custody of the [MDOC]. Such offender is under the full and complete jurisdiction of the department and subject to removal from the program by the classification hearing officer.

See also Babbitt v. State, 755 So.2d 406, 409 (¶ 11) (Miss.2006). Johnson claims that his re-classification from ISP status to custody status by the MDOC classification hearing officer effectively terminated the circuit court’s eight-year conditional sentence to post-release supervision under Mississippi Code Annotated section 47-7-34 (Rev.2004). After careful consideration, we agree.

¶ 7. There are two reasonable but mutually exclusive ways to interpret the circuit court’s sentence: (A) at the time the circuit court sentenced Johnson, it sentenced him to ten years with the possibility of later having eight years suspended if the MDOC found that Johnson had satisfactorily completed the ISP; or (B) at the time the circuit court sentenced Johnson, it suspended eight years of Johnson’s ten-year sentence and made Johnson’s successful completion of the ISP one of the conditions of Johnson’s suspended sentence. The uncertainty is based on the circuit court’s conditional suspension of Johnson’s sentence based on the undetermined — at least at the time Johnson was sentenced — outcome of whether he completed two years in the ISP. For multiple reasons, the circuit court’s sentence cannot operate within the parameters of the law.

¶ 8. First, the circuit court did not retain sentencing authority over Johnson, and even if it had attempted to retain sentencing authority over him, it could have only done so for one year pursuant to Mississippi Code Annotated section 47-7-47(2)(a) (Rev.2004), which states that a sentencing court may:

upon its own motion, acting upon the advice and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered into the custody of the [MDOC], to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation....

Without retention of sentencing jurisdiction pursuant to section 47-7-47, the circuit court’s authority to modify Johnson’s sentence terminated at the expiration of the term of court. Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997). See also Denton v. Maples, 394 So.2d 895, 898 (Miss.1981) (holding “the only time a trial judge can suspend a sentence is immediately after the defendant is convicted and at the time the trial judge announces and imposes sentence.”) Accordingly, the circuit court lacked the authority to defer the question of suspension of part of Johnson’s sentence to a later date past the term of court and conditioned on an event that may or may not occur in the future.

¶ 9. The dissent finds that the circuit court’s failure to retain sentencing jurisdiction over Johnson was not fatal to Johnson’s sentence. According to the dissent, the circuit court intended for the suspension of Johnson’s sentence to be “self-executing.” With utmost respect for the dissent, Johnson’s sentence could not be “self-executing.” At the precise moment that the circuit court sentenced Johnson, was Johnson sentenced to two years in the ISP with eight years suspended or was Johnson sentenced to ten years in the custody of the MDOC? The dissent concludes that the circuit court “clearly” sentenced Johnson to ten years in the custody of the MDOC. However, at the time the circuit court sentenced Johnson, it is only through clairvoyance, not clarity, that one could conclude that the circuit court sentenced Johnson to ten years in the custody of the MDOC, because the outcome determinative feature of Johnson’s sentence— whether he completed two years in the ISP — had not yet occurred.

¶ 10. If the dissent’s interpretation of Johnson’s sentence is correct, then the circuit court’s “self-executing” order would have allowed the circuit court to conditionally suspend Johnson’s sentence after the time that the circuit court actually sentenced Johnson. As mentioned, because the circuit court did not retain sentencing jurisdiction over Johnson, the circuit court could not “automatically” suspend Johnson’s sentence two years after the fact. The dissent’s interpretation would allow the circuit court to circumvent the statutory limitation that a circuit court “shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.” Miss. Code Ann. § 47-7-33 (Rev.2004); McGee v. State, 976 So.2d 954, 956 (¶ 12) (Miss.Ct. App.2008). To the extent that Brown v. State, 906 So.2d 833 (Miss.Ct.App.2004) contradicts this principle of law, Brown is hereby overruled.

¶ 11. If the dissent is correct that a circuit court has the power to issue ambiguous “self-executing” sentencing orders, by extension, circuit courts would have the authority to make the payment of fines a condition of receiving a suspended sentence. For example, under the dissent’s reasoning, a circuit court would have the authority to sentence a defendant to fourteen years in the custody of the MDOC with seven years to be suspended if a defendant paid a $125,000 fine by a certain future date. However, the Mississippi Supreme Court has explicitly held that such sentences are impermissibly indefinite and therefore in violation of section 47-7-33. Arnett v. State, 532 So.2d 1003, 1013 (Miss.1988).

¶ 12. According to the dissent, the circuit court’s failure to retain sentencing jurisdiction over Johnson is moot. The dissent relies on Ivory v. State, 999 So.2d 420, 429 (¶ 27) (Miss.Ct.App.2008) to support its position. However, the dissent fails to mention that the sentencing court in Ivory actually retained sentencing jurisdiction over the inmate in that case. Id. at 426 (¶ 13). The sentencing court in Ivory merely omitted language that would have made it necessary for the inmate to reappear before the sentencing court when it exercised its retained sentencing jurisdiction for one year. Id. at 429 (¶ 27). Unlike the circuit court in this case, the sentencing court in Ivory properly retained sentencing jurisdiction.

¶ 13. Additionally, allowing suspension of Johnson’s sentence after the circuit court no longer had the authority to do so would permit the circuit court to imper-missibly attempt to delegate its authority to suspend part of Johnson’s sentence. Circuit courts have exclusive authority regarding the sentencing of individuals who have been convicted of a felony. Miss. Code Ann. § 9-7-91 (Rev.2002). The Mississippi Constitution sets forth that the powers of the three separate branches of government of the State of Mississippi are divided into three distinctly separate departments: legislative, executive, and judicial. Miss. Const, art. 1, § 1.

¶ 14. The MDOC is a statutorily created body that is “under the policy direction of the governor.” Miss.Code Ann. § 47-5-8(1) (Rev.2004). Accordingly, the MDOC is part of the executive branch of the government, and the MDOC is not authorized to usurp authority that clearly lies with the judicial branch of the government. Consequently, the circuit court may not delegate its sentencing authority, including the authority to suspend a sentence, to the MDOC.

¶ 15. Furthermore, by operation of the circuit court’s sentence, Johnson was denied his constitutional rights incident to revocation of a suspended sentence. Johnson has constitutionally protected due-process rights to a hearing before the circuit court prior to the revocation of his suspended sentence. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Mississippi Code Annotated section 47-7-37 (Supp.2009) codifies the minimum due-process requirements applicable to probation-revocation procedures that were mandated by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 487-88, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and in Gagnon, 411 U.S. at 781-82, 93 S.Ct. 1756. Riely v. State, 562 So.2d 1206, 1209-12 (Miss.1990). The procedures for revocation of post-release supervision and recom-mitment of an offender to a correctional facility must be “conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.” Miss.Code Ann. § 47-7-34(2) (Rev.2004). After the final revocation hearing, the court “may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.” Miss.Code Ann. § 47-7-37.

¶ 16. However, only a court has the authority to revoke probation or post-release supervision under section 47-7-37. Grace v. State, 919 So.2d 987, 989 (¶ 8) (Miss.Ct.App.2005). Likewise, only a court may revoke a suspended sentence. Miss. Code Ann. § 47-7-37. It follows that the MDOC has no such authority. Johnson did not go before the circuit court for a revocation hearing. Instead, the MDOC effectively revoked Graham’s suspended sentence without affording him his due process rights to a revocation hearing and required that he serve his entire ten-year sentence, including the eight-year term that may or may not have been suspended.

¶ 17. Based on the circuit court’s failure to retain sentencing jurisdiction pursuant to section 47-7-47, its implied attempt to impermissibly delegate its authority to suspend part of Johnson’s ten-year sentence, and the fact that Johnson did not have a revocation hearing, the circuit court’s sentence is impermissibly indeterminate. We have held that where “a [defendant is given an illegal sentence that is more favorable than what the legal sentence would have been, then he/she is not later entitled to relief through a post-conviction action.” Jefferson v. State, 958 So.2d 1276, 1279 (¶ 9) (Miss.Ct.App.2007). However, so interpreted, Johnson’s sentence is not impermissible because it is illegally lenient. Rather, such an interpretation of his sentence renders it impermis-sibly vague, indeterminate, and indefinite because it conditionally suspended part of Johnson’s sentence after the circuit court had lost its sentencing jurisdiction; imper-missibly delegated the decision of whether part of Johnson’s sentence would be suspended to an agency of the executive branch of the government; and denied Johnson his due-process right to appear before the circuit court to determine whether he had violated the conditions of his suspended sentence.

¶ 18. Based on the matters discussed above, we find such an interpretation of the circuit court’s sentence is illegally vague and indeterminate. The other reasonable interpretation of the circuit court’s sentencing order is that, when the circuit court sentenced Johnson, the circuit court suspended eight years of Johnson’s ten-year sentence and made successful completion of the ISP a condition of Johnson’s suspended sentence. We choose this interpretation of the circuit court’s sentencing order. We believe that the intent of the circuit court at initial sentencing was to suspend eight years of Johnson’s ten-year sentence. A condition of that suspension and placement on post-release supervision for eight years was for Johnson to satisfactorily complete the ISP as determined by the circuit court.

¶ 19. As previously stated, the circuit court has not afforded Johnson a revocation hearing to determine whether he had violated a condition of the eight-year suspended portion of his sentence. Accordingly, we remand this matter to the circuit court so the circuit court or the State, if it so chooses, may initiate proper proceedings for the revocation of Johnson’s eight-year suspended sentence.

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

LEE, C.J., GRIFFIS, P.J., CARLTON AND RUSSELL, JJ„ CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY. BARNES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J., AND ISHEE, J. FAIR, J., NOT PARTICIPATING.

BARNES, J.,

dissenting:

¶ 21. With all respect to the majority’s opinion, I dissent. The sentence is not, as the majority claims, “impermissibly indeterminate.” The circuit court’s order clearly sentenced Eldridge Johnson to ten years’ incarceration. Furthermore, I do not find that the circuit court’s failure to retain jurisdiction was fatal to the efficacy of Johnson’s sentence in this case or that the failure to conduct a revocation hearing violated his constitutional rights.

¶ 22. The majority concludes that this Court should reverse and remand based upon the circuit court’s failure to retain sentencing jurisdiction, the court’s attempt to impermissibly delegate to the Mississippi Department of Corrections (MDOC) the authority to revoke Johnson’s suspended sentence, and the fact that Johnson did not receive a revocation hearing. Johnson’s completion of the ISP was a condition precedent to the suspension of eight years of his sentence. Thus, it appears that the circuit court intended for the suspension to be self-executing; that is, once Johnson had successfully completed the Intensive Supervision Program (ISP), the suspension would automatically occur without his being returned to the circuit court for re-sentencing. See Brown v. Miss. Dep’t of Corr., 906 So.2d 833, 835 (¶ 5) (Miss.Ct. App.2004) (finding that once the MDOC determines that a prisoner has violated the terms of his ISP, the MDOC is required to enforce the judge’s original sentencing order). It is only because Johnson failed to complete the ISP that his suspended sentence never came into being. Therefore, the issue of whether the circuit court had retained jurisdiction to modify his sentence is moot. See Ivory v. State, 999 So.2d 420, 429 (¶ 27) (Miss.Ct.App.2008) (as the defendant violated the terms of her ISP, any omission of language by the circuit court to have the defendant return for modification of sentence “becomes a nullity”).

¶ 23. It is also the majority’s position that the conditional nature of the sentence, coupled with the circuit court’s failure to retain jurisdiction, constituted an improper delegation of authority over sentencing to the MDOC. However, I find that there is no improper delegation as it was the circuit court that determined the sentence should be suspended upon the successful completion of the ISP; the MDOC merely decided whether the offender had violated the ISP. Since the circuit court set the condition for the suspension of the sentence, it did not impermissibly delegate authority to the MDOC. Johnson had an opportunity to have eight years of his sentence suspended; all he had to do was to complete the ISP. There is nothing to indicate that, if had Johnson had successfully completed the ISP, the MDOC would not have interpreted the sentencing order as automatically suspending the remainder of Johnson’s sentence as envisioned by the circuit court.

¶ 24. Lastly, I disagree with the majority’s finding that Johnson is entitled to a revocation hearing. The majority cites Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), for the proposition that Johnson had a constitutional right to a hearing prior to the revocation of his suspended sentence. However, the majority fails to appreciate that by violating the terms of the ISP, Johnson never received a suspended sentence. This Court has distinguished the holding in Gagnon, stating an inmate must complete the terms of his ISP and receive his suspended sentence in order to receive his right to hearing prior to revocation. Moore v. State, 830 So.2d 1274, 1276-77 (¶¶ 8, 13) (Miss.Ct.App.2002). Therefore, if Johnson had successfully completed his ISP term and been awarded his suspended sentence, “he would have a right to a hearing prior to revocation” of that suspended sentence. McBride v. Sparkman, 860 So.2d 1237, 1239 (¶ 5) (Miss.Ct.App. 2003).

¶ 25. The majority notes that Johnson is not contesting his removal from the ISP. Yet, it is this removal from ISP which broke the condition and made it impossible for Johnson to receive a suspended sentence. Further, Johnson could have sought judicial review of the MDOC’s decision regarding his ISP violation pursuant to Mississippi Code Annotated sections 47-5-801 to -807 (Rev.2011). In Edwards v. Booker, 796 So.2d 991, 995-96 (¶¶ 20-22) (Miss.2001), the Mississippi Supreme Court interpreted section 47-5-807 as giving jurisdiction to the circuit court to review the MDOC’s removal of a prisoner from the ISP. Also, this Court held in Lewis v. State, 761 So.2d 922, 923 (¶ 6) (Miss.Ct.App.2000), that under section 47-5-807, a prisoner who is aggrieved by a decision of the MDOC, after exhausting his administrative remedies, has a right “to judicial review of the matter[.]”

¶ 26. For these reasons, I would affirm the circuit court’s denial of Johnson’s motion for post-conviction relief. His sentence was not indeterminate, and there existed a mechanism by which he could have obtained judicial review of the MDOC’s decision to remove him from the ISP.

IRVING, P.J., AND ISHEE, J., JOIN THIS OPINION.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Jimmy MAGEE, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2010-CC-01313-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2012.

      Lydia Roberta Blackmon, attorney for appellant.
    Albert B. White, Madison, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Mississippi Department of Employment Security’s (MDES) denial of Jimmy Magee’s unemployment benefits. Magee was discharged by Central Transport, Incorporated (CTI) for exceeding the allowed number of “chargeable” accidents in an one-year period. Magee applied for unemployment benefits, but his claim was denied. He appealed this denial to an administrative law judge (ALJ). The ALJ affirmed the MDES decision; Ma-gee then appealed to the MDES Board of Review (Board). The Board also affirmed the ALJ’s decision and adopted the ALJ’s findings of fact and conclusions of law. Magee next appealed the Board’s decision to the Rankin County Circuit Court. The circuit court affirmed the Board’s decision and denied Magee’s subsequent motion to reconsider. Feeling aggrieved, Magee now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Magee began working for CTI on February 5, 2007, and continued working for it until October 21, 2008, when he was terminated for exceeding the number of allowed “chargeable” accidents in a one-year period. Magee’s first accident occurred on April 4, 2008, when he was making a right turn and hit the vehicle beside him. The second accident occurred on April 12, 2008, when Magee hit a parked vehicle while he was driving in reverse to pull away from a loading dock. Magee’s third accident occurred on September 9, 2008, when, while he was turning, his vehicle scratched another vehicle in another lane. Finally, Magee’s last accident occurred on October 21, 2008, and involved damage to a dolly and his vehicle’s fender after he hit the dolly while driving. After each accident, Magee received a written warning from CTI. He was placed on probation after the September 9, 2008 accident. Based on these accidents, CTI terminated Magee’s employment with the company after the October 21, 2008 accident citing the company’s accident policy.

¶ 3. Upon his termination from CTI, Ma-gee filed for unemployment benefits with MDES. After an investigation, MDES denied Magee’s request on January 28, 2009. Magee appealed this denial, and a telephonic hearing was held with Magee; Ted Matthews, CTI Safety Director; and an ALJ on April 6, 2009. Both Magee and Matthews provided testimony as to the events leading to Magee’s termination. Matthews testified that Magee was aware of the company’s policy regarding the number of accidents because: employees receive a written copy of CTI’s policy when they begin work; the policy is posted at the company facility; the policy is discussed at company meetings; and the policy was discussed with Magee at the meetings after each accident. Matthews testified the policy provides that the first three minor “chargeable” accidents receive written warnings, but depending on the severity of the accident, immediate termination was possible. Matthews defined a “chargeable” accident as follows: “If the driver could have done anything within reason to have prevented these accidents and did not do so, we charge, make that determination that it’s a preventable accident at that time based upon that information.” Magee testified that he was not aware of the company’s policy and that CTI had never properly investigated any of the accidents to determine if he was actually at fault. After hearing the evidence presented, the ALJ affirmed MDES’s denial of unemployment benefits.

¶ 4. Magee appealed to the Board. On May 20, 2009, the Board adopted the ALJ’s findings of fact and conclusions of law, thereby affirming the denial of Ma-gee’s unemployment benefits. Magee then appealed the Board’s decision to the circuit court which also affirmed the denial of Magee’s unemployment benefits. Undeterred, Magee filed a motion for reconsideration, which the circuit court denied. Feeling aggrieved, Magee appeals and raises the following issues, which we recite verbatim:

I. Whether the decision of the Board of Review is supported by substantial evidence!.]
II. Whether the decision of the Board of Review is arbitrary and capricious!.]
III. Whether the decision of the Board of Review violates the appellant’s due process rights in that the ap-pellee Central Transport failed to adequately establish the existence of a company policy regarding accidents and failed to provide notice to the appellant of the finality of its decision!.]

STANDARD OF REVIEW

¶ 5. When reviewing the circuit court’s judgment to affirm or deny the Board’s decision, this Court employs the abuse-of-discretion standard. Miss. Dep’t of Employment Sec. v. Clark, 13 So.3d 866, 870 (¶ 8) (Miss.Ct.App.2009) (quoting Howell v. Miss. Employment Sec. Comm’n, 906 So.2d 766, 769 (¶ 7) (Miss.Ct.App.2004)). “An administrative agency’s conclusions will remain undisturbed unless the agency’s order is: (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) in violation of the employee’s statutory or constitutional rights.” Miss. Dep’t of Employment Sec. v. Harbin, 11 So.3d 137, 139 (¶ 5) (Miss.Ct.App. 2009) (citing Miss. Dep’t of Employment Sec. v. Good Samaritan Pers. Servs., 996 So.2d 809, 812 (¶6) (Miss.Ct.App.2008)). Thus, if the Board’s decision is supported by substantial evidence and not arbitrary and capricious, the circuit court and this Court must affirm the Board’s decision. Clark, 13 So.3d at 870 (¶ 8).

ANALYSIS

I. The Board’s Decision

¶ 6. For efficiency purposes, we will combine the analysis of Magee’s first two issues. Magee first argues that the Board’s decision was not supported by substantial evidence and was arbitrary and capricious. He provides four reasons to support his contention: the alleged accidents were not thoroughly investigated; there was insufficient evidence of CTI’s accident policy and insufficient evidence to show Magee was aware of the policy; there was insufficient notice that Magee’s conduct was prohibited and could lead to termination; and Magee did not engage in wilful misconduct.

¶ 7. The Mississippi Supreme Court defined “arbitrary as ‘not done according to reason or judgment, but depending on the will alone.’” Wright v. Pub. Employees Ret. Sys., 24 So.Sd 382, 388 (¶ 29) (Miss. Ct.App.2009) (citing Pub. Employees Ret. Sys. v. Marquez, 774 So.2d 421, 429 (¶ 34) (Miss.2000)). Additionally, “[cjapricious means ‘done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.’ ” Id. “If an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Id. (quoting Marquez, 774 So.2d at 430 (¶35)).

¶ 8. Magee was terminated for “wilful and wanton repeated violations of [CTI] ’s accident prevention policy.” “Misconduct” in unemployment-benefits cases has been defined by the supreme court to mean “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). Relying on the supreme court’s decision in Wheeler, this Court held that “[b]ehavior that is careless and negligent to such degree, or recurrence thereof, as to manifest culpability, wrongful intent, or evil design can be classified as misconduct.” Nevels v. Miss. Dep’t of Employment Sec., 39 So.3d 995, 998 (¶ 11) (Miss.Ct.App.2010) (citing Wheeler, 408 So.2d at 1383). We have also held that “an employee would be disqualified from receiving unemployment benefits where the employee violated an employer’s policy or otherwise failed to meet a required condition of employment.” Clark, 13 So.3d at 871 (¶ 11) (quoting Halbert v. City of Columbus, 722 So.2d 522, 526-27 (¶19) (Miss.1998)).

¶ 9. In his brief, Magee argues that the Board’s decision was arbitrary and capricious and not based on substantial evidence. First, he submits that CTI failed to investigate thoroughly the accidents that led to his termination. Based on our reading of the transcript of Magee’s hearing before the ALJ, the issue of investigating the accidents was addressed in detail. Magee disputes the testimony provided by CTI that it had thoroughly investigated each accident to determine if the accident was avoidable. In situations such as these, where “[cjonflicting testimony presents a fact question for the Board, ... our standard of review does not permit this Court to second guess how the Board resolves conflicting testimony.” Quinn v. Miss. Dep’t of Employment Sec., 56 So.3d 1281, 1283 (¶ 9) (Miss.Ct.App.2011). In the instant ease, there is conflicting testimony concerning whether CTI investigated the accidents; however, that was a factual question for the Board to decide. We cannot second guess the Board’s finding on this factual issue.

¶ 10. Next, Magee argues that CTI failed to present evidence of the existence of its accident policy; furthermore, he contends that even if CTI proved the existence of the policy, CTI failed to prove that Magee was aware of the policy. Specifically, Magee asserts that CTI did not prove he received a copy of the policy, heard about the policy, attended the meetings where the policy was discussed, or that the policy was posted in the facility where Magee worked as CTI had claimed. When proving an employee violated an employer’s policy sufficient to disqualify him or her from receiving unemployment benefits, “the employer must prove both the existence of the policy and the violation thereof by the employee.” Clark, 13 So.3d at 871 (¶ 11) (citing Halbert, 722 So.2d at 527 (¶ 20)). The Board, adopting the ALJ’s findings of fact and opinion, found that CTI did prove the existence of a safety and accident policy and that Magee was aware of the policy. At the hearing before the ALJ, CTI entered a copy of the accident policy into evidence and also presented evidence that Magee received a written copy of the policy when he started work at CTI. CTI also testified that the policy was discussed at CTI meetings and that a poster containing the policy was posted at the facility where Magee worked. Based on this evidence, the Board agreed with the ALJ’s finding that CTI had proven the accident policy existed and that Magee’s accidents had violated the policy. As to this argument, we cannot find that the Board’s decision was not based on substantial evidence or was arbitrary and capricious.

¶ 11. Magee next argues he was not given sufficient notice that he could be terminated based on his conduct. Again, CTI presented evidence at the hearing that Magee was aware his accidents were against CTI’s policy. Specifically, CTI entered an Incident Action Report, signed by Magee, informing him that “[t]he company is placing you on probation. If you have an accident before April 9[, 2010,] you will be relieved of your duty at CTI.” Magee testified that the language quoted above was not on the paper when he signed it. We again must show deference to the factual findings of the Board and hold that based on the evidence presented, the Board’s decision was supported by substantial evidence and was not arbitrary or capricious.

¶ 12. Lastly, Magee argues that he did not engage in wilful misconduct sufficient to disqualify him from receiving unemployment benefits. He argues that pursuant to Wheeler, 408 So.2d at 1383, “mere inefficiency, unsatisfactory conduct, failure of good performance as a result of inability or incapacity, inadvertencies, isolated instances of ordinary negligence, or good faith errors are not considered ‘misconduct’ .... ” According to Magee, there is nothing in the record to demonstrate that the accidents were more than isolated instances of ordinary negligence or were due to any intentional neglect on his part. At Magee’s hearing, both CTI and Magee presented evidence about the nature of the accidents. The ALJ questioned each party and ultimately found that Magee’s involvement in four accidents within six months showed carelessness and negligence sufficient to warrant a finding of misconduct. Again, based on the evidence presented to us, we cannot find that the Board’s findings were arbitrary and capricious or unsupported by substantial evidence.

¶ 13. This issue is without merit.

II. Due-process Violation

¶ 14. Magee’s next issue claims that the Board’s decision violated his due-process right because CTI had “failed to adequately investigate the accidents in which the appellant was allegedly involved; failed to show that there was an established company policy regarding accidents!;] and failed to adequately notify the appellant of the consequences of his actions.” He also alleges that he received no notice of the “finality of [CTI’s] decision!.]”

¶ 15. Magee’s argument regarding this issue is identical to the issues discussed in the previous section. Further, Magee failed to cite to any relevant authority to support his contention. Mississippi Rule of Appellate Procedure 28(a)(6) requires claims to be supported by “citations to authorities, statutes, and parts of the record relied on.” Magee failed to provide any relevant support for his contention; therefore, we will not address the merits of this issue. See Clincy v. Atwood, 65 So.3d 327, 331 (¶ 9) (Miss.Ct.App.2011); Tanner v. State, 20 So.3d 764, 768 (¶ 19) (Miss.Ct.App.2009).

¶ 16. In conclusion, we find that the circuit court did not abuse its discretion in affirming the Board’s decision since the Board’s decision was not arbitrary and capricious and was supported by substantial evidence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.


author: MAIN, Justice. WOODALL, Justice MURDOCK, Justice COBB, Chief Justice

text:
    TOWN OF BOLIGEE v. GREENE COUNTY WATER AND SEWER AUTHORITY.
    1091301.
    Supreme Court of Alabama.
    June 3, 2011.
    Rehearing Denied Aug. 12, 2011.

      Booker T. Forte, Jr., Eutaw, for appellant.
    William D. Motlow, Jr., and Holly H. Bazemore of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellee.
    Tracy L. Roberts, asst. gen. counsel, Alabama League of Municipalities, Montgomery, for amicus curiae Alabama League of Municipalities, in support of the appellant.
   MAIN, Justice.

The Town of Boligee (“Boligee”) appeals from the judgment of the Greene Circuit Court denying Boligee relief on its complaint seeking a judgment declaring certain actions undertaken by the Greene County Water and Sewer Authority (“the Authority”) not to have been properly authorized.

Factual and Procedural Background

On May 30, 2008, Boligee filed a complaint in the trial court seeking a judgment declaring that the Authority’s actions in excavating, cutting trees, and digging and installing water pipelines on Boligee’s right-of-way were unlawful because those actions were undertaken without first obtaining Boligee’s permission. Boligee further asserted tort claims of trespass, unlawful cutting, and conspiracy based on the above allegations. In its answer, the Authority denied any wrongdoing and filed a counterclaim seeking damages pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975 (“ALAA”). After receiving additional pleadings from the parties, the trial court heard evidence ore tenus and then took the matter under advisement. The evidence generally indicated that Boligee, which operated its own water and sewer system, and the Authority had discussed a proposal involving the Boligee water system, but were unable to reach any agreement regarding the proposal, and that during the same time frame the then mayor of Boligee signed a contract allowing the Authority to use a right-of-way inside the municipal limits of Boligee to construct a pipeline to supply water to customers of the Authority living outside the Boligee municipal limits and outside the service area of Boligee’s water system.

The evidence indicated that, at the March 3, 2003, meeting of the Boligee Town Council, a representative of the Authority presented a proposal to the town council that would allow the Authority to run a water pipeline through Boligee to provide water for all citizens of Boligee. Pursuant to the proposal, the Authority was to assume all debt for repairing the water tank and installing the new pipeline; the Authority was to receive 60 percent of the profits from the water service and Boligee was to receive 40 percent of the profits from the water service; and Boli-gee was to retain ownership of the water system, as improved by the new addition. The town council passed a motion “agreeing] with the general plan of the presentation with the necessary working out of the details later.”

The Boligee water and sewer system was discussed at several subsequent meetings of the town council. The minutes from the April 7, 2003, meeting of the Boligee Town Council indicated as follows:

“The Mayor reported to the Council that the problem is that the City of Eutaw took over the system. ADEM [Alabama Department of Environmental Management] is looking to Eutaw to make repairs to the tank and other problems. Boligee wants to keep the system. Eu-taw wants Boligee to decide what we’re going to do. Tonight we have Booker Cook, John Stevens, and Dickey Odom and Vincent Atkins to share with us about the Greene County water system and what they can do for the Town of Boligee.”

Minutes from an April 14, 2003, meeting of the town council indicated that there were additional discussions about the Authority’s proposal but that no decision was reached. Minutes from the May 6, 2003, meeting of the town council indicated that “[the] Mayor shared with the Council that the City of Eutaw is interested in getting the water system and doing the work on the tank and take over the debt. No action.” Minutes from the June 2, 2003, meeting of the town council indicated as follows:

“Mayor Bonny Olayiwola shared with the Council that the problem with the system is that we can’t maintain it. What are we going to do? Honorable Jeanette Campbell said that the attorneys for the City of Eutaw and Greene County Water Authority along with our attorneys have come together to discuss the system. [Boligee Town] Attorney Booker Forte said the Town should see who was going to give the money back to the town to see which one is going to help the Town of Boligee, what can they offer to the town? What is more important to the town or the county as a whole? Will there be any royalty payments for the system? After 30 years, will the town be able to get the system back and will the town have the option to buy the system back? The Honorable Johnny Burton said to them — said to get them together. The Council agrees to Mayor Bonny, Vincent Eloise, attorneys come into a meeting together to discuss what could be done and what is best for the Town of Boligee.”

Testimony at trial further indicated that the town council ultimately decided not to enter into the proposed agreement with the Authority. Then, on June 18, 2003, the mayor of Boligee signed a written agreement permitting the Authority to construct and maintain a waterline along the right-of-way of U.S. Highway 11 and County Road 20 inside of the town limits of Boligee, for purposes of providing water to customers living outside the Boligee town limits and outside the service area of the Boligee water system.

Mayor Bonny Olayiwola testified before the trial court that she was mayor from 1996-2004 and again from November 2008 through the time of trial. She stated that she believed that as the chief executive officer of the town she had the authority to enter into the agreement with the Authority on behalf of Boligee. Mayor Olayiwo-la’s testimony indicated that she did not give the Authority any basis on which to believe that she did not have the requisite authority to sign the agreement on behalf of Boligee. In response to a question, she further testified that at no point during the period when she saw the Authority’s crews working on County Road 20 within the town limits of Boligee did she advise them that they were on Boligee’s right-of-way without permission, nor did she make any such statements to the town council.

Walter Taylor testified that he was a member of the town council from 1998-2004 and that he served as mayor of Boli-gee from 2004-2008. He stated that he did not recall ever seeing a written contract from the Authority and that nothing in the minutes of the town council meetings indicated that the council had approved the agreement signed by Mayor Olayiwola.

Taylor testified on cross-examination that he lived on County Road 20 approximately a mile and a half from where it intersected with U.S. Highway 11 and that he traveled both roads frequently. According to Taylor, he first noticed construction on U.S. Highway 11 and later on County Road 20. He stated that he did not stop and ask under what authority was the work being performed or raise any concerns before the town council regarding the legality of the work. Taylor stated that “it was brought up with some other issues” at a town council meeting, but that “was pretty much after it was completed, the construction was completed. During the latter part of the construction.” On redirect examination, the following exchange occurred:

“[Counsel for Boligee]: Mr. Taylor, you were asked by [the Authority] if you made any efforts to stop the installation of the water line as it was being installed in Boligee. Do you remember that question?
“[Taylor]: Yes, sir.
“[Counsel for Boligee]: Is there any reason you made no efforts to stop the water line?
“[Taylor]: Actually, after it was recognized, I think we had a meeting. It was when it was observed. We had a Council meeting and you were riding this— well, you asked as you were coming [to the] meeting about whether we knew about the construction on Highway 11. I mean on County Road 20. And at that point, you said that you would handle— get with them to handle whatever situations.”

John Stevens testified that he was employed by Centel Engineering as the project engineer for the Authority’s water-system project. Stevens read into the record an April 11, 2007, e-mail sent to him by the town attorney for Boligee, in which the attorney asserted that the minutes of the town council meetings did not reflect that the council had authorized the mayor to sign the complained-of agreement on behalf of Boligee. The e-mail further asserted that the only discussions in the minutes of the Boligee town council regarding the Authority pertained to the Authority’s proposal for different renovations and service to Boligee’s water system that were unrelated to the agreement signed by Mayor Olayiwola. The e-mail further indicated that Boligee’s attorney needed to speak with Stevens or a representative of the Authority unless someone had minutes of the town council meetings that reflected that the town council had authorized May- or Olayiwola to sign the written agreement or that the town council had agreed to the terms of the written agreement or a copy of an ordinance published in accordance with § 11-45-8, Ala.Code 1975.

Stevens testified that he did not recall whether he notified the Authority about the e-mail. He stated that he did have discussions with the Authority’s manager and its board of directors about the questions raised regarding the water-system project. According to Stevens:

“I told them that we had a signed franchise agreement that USDA [United States Department of Agriculture] approved and that [Boligee’s attorney] had called and said it was not approved by the Council, Town Council of Boligee and that according to USDA rules we didn’t have to have it approved by the Town Council of Boligee. The approval of the Mayor was all that was necessary. We weren’t aware that the Town Council of Boligee had not approved it until [Boligee’s attorney] brought it to our attention, but with the USDA rules we did not have to have the Town Council approval. Anything we did, we had to give the Town Council minutes and show them to USDA. In this case, we did not have to have that.”

Vincent Atkins testified that he was the manager and chief operating officer of the Authority. Atkins stated that he understood some concerns were brought to the attention of the United States Department of Agriculture (“the USDA”) regarding the agreement but that the USDA had indicated to the Authority that it was satisfied with the agreement, and the USDA’s approval was all Atkins believed he needed. Atkins indicated that Boligee did not contact the Authority about any concerns. When asked whether he understood that Boligee communicated its concerns to Stevens, Atkins stated that he believed that the USDA had contacted Stevens. Atkins further testified that he had provided the mayor with a copy of the agreement and that he had provided the town clerk with a copy outside of a regular meeting of the town council. According to Atkins, the purpose of the work proposed by the complained-of agreement signed by Mayor Olayiwola was separate and unrelated to the purpose of the work in the proposal that was presented to the town council and discussed at several council meetings. Atkins further testified that he and Boligee’s attorney had discussions in 2007 about the water system. Atkins denied that the subject matter of those discussions was that the Authority had laid waterlines without permission from the town council and stated instead that the meetings were about operating the Boligee water system or about operations and maintenance problems of that system. Atkins also testified as to a September 26, 2007, e-mail to him from Boligee’s attorney. Atkins stated that the construction on the waterline would have been nearly completed at that point. Atkins testified that the e-mail from Boligee’s attorney provided a proposal for the Authority to operate the Boligee water system and stated that the attorney “assume[d] Boligee will purchase water [for] the system from the Authority and considering Boligee’s assistance in the Authority expansion, [Boligee’s attorney] hope[d] the charge is accommodating.” Atkins stated that he understood the “assistance” referenced in the e-mail to be Boligee’s permitting the Authority to lay the waterline inside the town limits of Boligee to service the unincorporated areas of the county.

The trial court issued a judgment declaring that the mayor had the authority to bind Boligee to the complained-of agreement. The trial court also held that, because of the above finding, Boligee’s tort claims against the Authority were moot. Finally, the trial court found that there was substantial justification for Boligee’s initiating the action and, therefore, denied the Authority’s counterclaim filed pursuant to the ALAA. This appeal followed.

Standard of Review

“Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘ “[Wjhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).”

Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Aa.2010).

Mayor Olayiwola’s Authority to Enter into the Agreement

The trial court concluded that, pursuant to §§ 11-43D-14 and 11A7-5, Aa. Code 1975, Mayor Olayiwola had the authority to bind Boligee to the agreement with the Authority. Section 11-47-5 provides:

“Contracts entered into by a municipality shall be in writing, signed and executed in the name of the city or town by the officers authorized to make the same and by the party contracting. In cases not otherwise directed by law or ordinance, such contracts shall be entered into and executed by the mayor in the name of the city or town and all obligations for the payment of money by the municipality, except for bonds and interest coupons, shall be attested by the clerk.”

Section 11-43D-14 provides, in pertinent part:

“The mayor shall be the chief executive officer, and shall have general supervision and control of all other officers, employees, and affairs of the city, which shall include the management of the public utilities, either owned and operated by the city or operated by private corporations under contracts with the city.”

However, § 11-43D-1 et seq., Ala.Code 1975, is applicable only to Class 5 municipalities operating under a consent decree issued by a United States district court as specified in § 11^43D-1. Because Boligee is a Class 8 municipality, the trial court’s reliance on § 11^43D-14 was misplaced. Section 11-43D-14 has no applicability here. The statutes applicable in this case are discussed below.

Section 11-43-81, Ala.Code 1975, provides, in pertinent part, that “[t]he mayor shall be the chief executive officer, and shall have general supervision and control of all other officers and the affairs of the city or town, except as otherwise provided in this title.” Section 11-43-83, Ala.Code 1975, provides as follows:

“The mayor shall see that all contracts with the town or city are faithfully kept or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond. He shall perform such other executive duties, in addition to those prescribed in this article, as may be required of him by the council.”

We note that § 11-88-14, Ala. Code 1975, allows, in pertinent part, for entities such as the Authority to use the rights-of-way of public roads “subject only to the necessity of obtaining the municipal consent required by Section 220 of the Constitution of Alabama of 1901.” Section 220 of the Constitution of Alabama of 1901, provides:

“No person, firm, association, or corporation shall be authorized or permitted to use the streets, avenues, alleys, or public places of any city, town, or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town, or village.”

With regard to the authority of a city or town council, the Alabama Legislature has provided:

“All legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance. The council shall perform the duties required by this title and other applicable provisions of law.”

§ 11-43-43, Ala.Code 1975. Further, “[ejxcept as otherwise provided in this title, the council shall have the management and control of the finances and all of the property, real and personal, belonging to the city or town.” § 11-43-56, Ala.Code 1975.

It is undisputed that the Boligee town council never authorized the agreement at issue. There is no evidence indicating that the parameters of the agreement were ever discussed at the town council meetings. The town council’s management and control over the real property, as described in § 11^43-56, is controlling, and nothing in the language delegating certain authority to the mayor trumps that responsibility. Although a mayor is authorized to enter into and to execute the type of contract at issue in this case, he or she is allowed to do so only to the extent directed by the city or town council. The evidence in this case establishes that in this case Mayor Olayiwola did not possess the authority to enter into the agreement with the Authority.

Applicability of the Doctrine of Estoppel

“ ‘[Although the doctrine of es-toppel is rarely applied against a municipal corporation, it may be applied in a proper case when justice and fair play demand it and where there has been a misrepresentation or concealment of material fact.’ ” Peterson v. City of Abbeville, 1 So.3d 38, 44 (Ala.2008) (quoting City of Foley v. McLeod, 709 So.2d 471, 474 (Ala.1998)).

The trial court found in its final order, in pertinent part:

“Because members of the governing body of Boligee witnessed the construction of the water line as it progressed through the town limits of Bo-ligee yet took no action (either in the form of notifying [the Authority] of its objections(s), or informing a court of competent jurisdiction to seek injunc-tive relief), their actions and conduct, reasonably interpreted, would have certainly caused [the Authority] to believe that Boligee had given authority to [Mayor] Olayiwola to act on its behalf.
“Notwithstanding the foregoing, this Court further finds that Boligee, due to its inaction upon clearly witnessing the construction to its completion, is es-topped from now denying the validity of the agreement executed by Mayor Olayi-wola. City of Guntersville v. Aired, 495 So.2d 566 (Ala.1986)

There is no evidence in the record indicating that members of the governing body of Boligee misrepresented or concealed any material fact. Rather, the evidence established that Boligee, through its attorney, communicated its concerns regarding the lack of the town council’s approval but that the project engineer and the Authority concluded that the approval of the town council was not required for the project. Thus, despite the trial court’s conclusion to the contrary, Boligee is not estopped from denying the validity of the June 18, 2003, agreement.

Conclusion

For the above-stated reasons, the trial court’s judgment is reversed, and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, BOLIN, PARKER, SHAW, and WISE, JJ., concur.

WOODALL, J., concurs specially.

MURDOCK, J., concurs in the result.

COBB, C.J., dissents.

WOODALL, Justice

(concurring specially).

I concur fully in the main opinion. I write specially to address an argument made by the Greene County Water and Sewer Authority (“the Authority”) but not discussed in the main opinion.

The Authority argues that “Mayor Olay-iwola surely possessed the apparent authority to act on behalf of the Town of Boligee.” Authority’s brief, at 16. The Authority reasonably construes the trial court’s judgment as containing a conclusion that the mayor possessed the apparent authority to enter into the contract at issue in this case. However, the theory of implied authority is not applicable under the facts of this case.

The right-of-way agreement that is at the center of this dispute is subject to the Statute of Frauds. See Garrison v. Alabama Power Co., 807 So.2d 567, 572 (Ala.Civ.App.2001) (holding that a contract to convey an easement must comply with the Statute of Frauds). “The theories of implied and apparent authority to act for one’s principal are not applicable to a situation that falls within the Statute of Frauds.” Altmayer v. City of Daphne, 613 So.2d 366, 369 (Ala.1993). Instead, “the authority of an agent to bind [her] principal to such an agreement must also be in writing — otherwise, the contract is void.” Id. There is no evidence indicating that the town council, in writing, authorized Mayor Olayiwola to execute the right-of-way agreement. Therefore, the agreement is void.

MURDOCK, Justice

(concurring in the result).

I concur in the result reached by the main opinion, but I respectfully decline to join that opinion, in part because of my disagreement with the statement therein that an ore tenus standard of review is the appropriate standard to apply in this case. The matter of the mayor’s authority to enter into the agreement at issue is decided today as a question of law by this Court. The question of the applicability of the doctrine of estoppel is decided in this case by our application of law to facts. The appropriate standard to apply in deciding both questions is the de novo standard of review, rather than the deferential standard described in the main opinion, a standard normally employed when assessing a trial court’s findings of fact based on evidence received ore tenus.

I also write separately to add a few additional thoughts regarding the question of estoppel. First, I believe it is important to note that the Greene County Water and Sewer Authority is charged with knowledge of the law. This includes the requirement of the law that a contract of the nature of the one at issue here be approved by the Boligee Town Council. Yet, there is no indication that the Authority (or its general contractor) procured an appropriate resolution of the town council as a precondition to accepting Mayor Olayi-wola’s signature on the agreement in question or that it otherwise performed appropriate “due diligence” to determine whether the town council had approved the agreement. To the contrary, for several meetings over a period of over two months before the signing of this agreement, the Authority was attending meetings of the town council and was actively engaged in attempting to persuade the council to give it a different contract (a contract to operate the Boligee water system for the benefit of residents of Boli-gee). The Authority was well aware that it had not engaged in any discussion with the council regarding an agreement to allow it to lay waterlines to serve customers outside the town limits of Boligee. As the main opinion also notes, concerns regarding the lack of the council’s approval were communicated to the Authority on behalf of Boligee.

In those rare instances where the doctrine of estoppel is applied against a municipality, its application requires proof of, among other things, ‘“conduct, language, or silence amounting] to a representation or concealment of a material fact.’ ” Peterson v. City of Abbeville, 1 So.3d 38, 44 (Ala.2008) (quoting City of Foley v. McLeod, 709 So.2d 471, 474 (Ala.1998), citing in turn City of Prattville v. Joyner, 698 So.2d 122, 126 (Ala.1997)). I note that in City of Foley, 709 So.2d at 474, this Court “conclude[d] that the City’s continued acquiescence” to certain activity “amounted to a misrepresentation of a material fact.” I also note that a party seeking to invoke the doctrine of estoppel must show that its reliance on the misrepresentation or concealment at issue was reasonable or justified. 28 Am.Jur.2d Estoppel Waiver § 81 (2000). See also Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976) (quoting 3 Pomeroy, Equity Jurisprudence § 805 (5th ed.1941), for the requirement that the party invoking the doctrine of estoppel must demonstrate that “the truth concerning [the] facts [in issue] must be unknown to the ... party claiming the benefit of the estoppel”). Furthermore, as the main opinion notes, the doctrine of estoppel is applied against a municipality only “1 “when justice and fair play demand it.” ’ ” 77 So.3d at 1172 (quoting Peterson, 1 So.3d at 44).

Given its charged knowledge of the law and its actual knowledge of what was and was not discussed with the Boligee Town Council during the months preceding the commencement of the project at issue, I cannot conclude that the Authority reasonably relied on any acts or omissions of the town council or that justice and fair play demand that the doctrine of estoppel be applied in this case.

COBB, Chief Justice

(dissenting).

I respectfully dissent. As the trial court noted in its order finding that the Town of Boligee was estopped from denying the validity of the agreement executed by its mayor: “[Mjembers of the governing body of Boligee witnessed the construction of the waterline as it progressed through the town limits of Boligee yet took no action .... ” This fact, along with Mayor Olayiwola’s action in executing an agreement, even without the requisite authority, and the actions taken by the Authority in reliance on the apparent agreement to install the waterlines, is sufficient to trigger the principles of estoppel discussed in City of Guntersville v. Alred, 495 So.2d 566 (Ala.1986). See also Alford v. City of Gadsden, 349 So.2d 1132 (Ala.1977). By my reading, neither of those cases required a misrepresentation or concealment of a material fact before the doctrine of estoppel could be applied. In light of the fact that those cases support the trial court’s judgment and are neither overruled nor distinguished by the majority, I must dissent.

      . Booker Forte, Jr., represented Boligee at trial. Forte also apparently served as Boli-gee’s attorney during the events being testified to. A number of questions posed to different witnesses evidenced involvement by Forte in the events and were asked or answered referencing Forte in the first person (e.g., minutes from a town council meeting describing Forte’s recommending that Boli-gee should examine the details of proposals from the Authority and from the City of Eu-taw to decide which would be more beneficial to Boligee; Taylor's testimony that "you” said; the project engineer John Stevens’s testimony regarding "an email to me from you”; and Vincent Atkins’s testimony, as former manager/operator of the Authority, regarding conversations in 2007 and a September 26, 2007, e-mail from Forte to Atkins about the water system and/or waterlines). On at least one instance at trial Boligee objected to a question as privileged discussions between the town council and its attorney, i.e., Forte.

      . The Authority has not raised on appeal any challenge to the trial court's ruling on its ALAA counterclaim.


author: BOLIN, Justice. MURDOCK, Justice

text:
    Willard E. RYALS v. The LATHAN COMPANY, INC.
    1091673.
    Supreme Court of Alabama.
    June 17, 2011.
    Rehearing Denied Aug. 19, 2011.

      Lloyd E. Taylor of Taylor & Taylor, LLC, Robertsdale, for appellant.
    Brian Thomas Pugh of The Pugh Law Firm, L.L.C., Mobile, for appellee.
   BOLIN, Justice.

Willard E. Ryals appeals from the trial court’s order enforcing a creditor’s judgment against him in favor of The Lathan Company, Inc. (“Lathan”). We dismiss the appeal.

Facts and Procedural History

The trial court summarized the facts in its order:

“1. On August 5, 2004, the Lathan Company (herein ‘Lathan’) brought suit against Craig Walker, individually, and as agent for Ryals Construction Co., for breach of a construction sub-contract and for fraud and/or misrepresentation. It was alleged that Walker and Ryals Construction contracted to do work for Lathan on a condominium project in Tuscaloosa and to provide worker’s compensation insurance for the project. La-than alleged that it made an advance payment to the defendants to procure the insurance; the defendants failed to do so; and as a result, Lathan sustained damages.
“2. On August 24, 2004, both Walker and Ryals Construction Co. were served by the Baldwin County Sheriff at 511 N. Highway 59, Summerdale, Alabama, 36580. Service was accepted by a Cristy Hagan, an employee of Ryals Real Estate.
“3. An answer denying the allegations of the complaint on behalf of Walker and Ryals Construction Co. was filed by attorney Lloyd Taylor, Esq. on September 28, 2004.
“4. On July 12, 200[5], this Court entered an order setting the case for trial on January 5, 200[6], and ordered the parties to mediation.
“5. On October 28, 2005, attorney Taylor filed a motion to withdraw as counsel for defendant Craig Walker.
“6. On January 4, 2006, the motion was granted.
“7. No one appeared on behalf of the defendants on the trial date and though not noted on the docket, default was entered on behalf of the plaintiff.
“8. On May 19, 2006, an affidavit in support of a default judgment was filed on behalf of [Lathan] and on May 24, 2006, a judgment was entered on behalf of [Lathan] and against Craig Walker and Ryals Construction Co. in the amount of $422,250.00.
“9. Some two years lapsed and on June 27, 2008, [Lathan] served post-judgment discovery on Ryals Construction Co. at 511 N. Highway 59, Summer-dale, Alabama 36580.
“10. The discovery went unanswered and on August 14, 2008, [Lathan] filed a motion for sanctions for the failure to respond to the discovery sent to Ryals Construction Co. at 511 N. Highway 59, Summerdale, AL 36580.[]
“11. On [September] 2, 2008, appearing through counsel Lloyd Taylor, Ryals Real Estate and Willard E. Ryals filed a motion to strike the motion for sanctions, alleging that Ryals Real Estate and Willard E. Ryals had not been properly joined in the matter and that Ryals Construction Co. had no affiliation with Ryals Real Estate, Inc. or Willard E. Ryals.
“12. The motion to strike was granted on September 16, 2008. At that hearing, the Court ruled that the effort to add Willard Ryals and Ryals Real Estate as parties in a postjudgment sanction motion was procedurally improper.
“13. On September 22, 2008, [La-than] amended its complaint. In the amended complaint, [Lathan] purported to substitute Ryals Real Estate, Inc. as previous fictitious party A, and Willard E. Ryals as fictitious party B. [Lathan], however, did not simply re-allege the allegations of its initial complaint; rather it alleged that it was seeking to hold Ryals Real Estate and Willard Ryals liable as alter egos for the judgment it held against Ryals Construction Co. Thus, [Lathan] filed a new cause of action.[ ]
“14. On October 23, 2008, counsel Lloyd Taylor again filed a notice of appearances for Ryals Construction Co., Willard E. Ryals, and Ryals Real Estate, Inc.
“15. The following day Ryals Real Estate and Willard E. Ryals filed a motion to strike or dismiss [Lathan’s] complaint. This motion was denied on December 17, 2008.
“16. A subsequent motion to reconsider the order denying motion to strike and/or dismiss the complaint was also denied on March 2, 2009.
“17. On April 8, 2009, Willard E. Ryals and Ryals Real Estate filed an answer to the amended complaint, asserting inter alia, that the claim was barred by the statute of limitations, res ■judicata, and issue preclusion. They also denied they had any ownership interest in or control of Ryals Construction Co.”

The trial court conducted a bench trial at which Lathan proceeded on the theory that Willard E. Ryals and Ryals Real Estate, Inc., were the alter egos of, and otherwise asserted control over, Ryals Construction Co. Because of this alter ego relationship, Lathan contended, Willard E. Ryals and Ryals Real Estate were liable for the judgment previously entered against Ryals Construction Co. Willard E. Ryals and Ryals Real Estate, on the other hand, asserted that the amended complaint violated Rule 4(f), Ala. R. Civ. P., the fictitious-party-practice rule, and was barred by the statute of limitations.

After considering the evidence and hearing the testimony, the trial court determined that Lathan’s amended complaint did not technically substitute Willard E. Ryals and Ryals Real Estate for fictitiously named parties in the original complaint, but, rather, that the amended complaint added those defendants to assert a new cause of action, i.e., a claim of alter ego liability for the judgment Lathan already held against Ryals Construction Co. Accordingly, the trial court held that La-than’s complaint was not barred by either Rule 4(f), Ala. R. Civ. P., or the statute of limitations. The trial court concluded from the undisputed evidence that Willard E. Ryals and Ryals Real Estate were alter egos of Ryals Construction Co. Based on this undisputed evidence, the trial court entered an order, finding that Willard E. Ryals and Ryals Real Estate were liable for the judgment previously entered against Ryals Construction Co. on May 24, 2006, in the amount of $422,250, plus post-judgment interest. Willard E. Ryals filed a postjudgment motion, which the trial court denied. Willard E. Ryals then appealed, essentially raising the same issues addressed by the trial court, i.e., whether Lathan’s amended complaint filed on September 22, 2008, is barred by Rule 4(f), Ala. R. Civ. P., and the two-year statute of limitations. However, there is a threshold issue that must be addressed — -whether the trial court had subject-matter jurisdiction. Lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu. Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994).

Analysis

Lathan’s amended complaint filed on September 22, 2008, asserted a claim based on an alter ego theory.

“A claim based on the alter ego theory is not in itself a claim for substantive relief, but rather is procedural. A finding of fact of alter ego, standing alone, creates no cause of action. It merely furnishes a means for a complainant to reach a second corporation or individual upon a cause of action that otherwise would have existed only against the first corporation. An attempt to pierce the corporate veil is a means of imposing liability on an underlying cause of action such as a tort or breach of contract. It has been said that the alter ego doctrine is thus remedial, not defensive, in nature. One who seeks to disregard the corporate veil must show that the corporate form has been abused to the injury of a third party.”

1 Fletcher, Cyclopedia Corporations § 41.10 (1990). The trial court concluded that Lathan’s amended complaint asserted an entirely new action alleging a claim based on an alter ego theory “in essence almost in the nature of a creditor’s bill.”

In Backus v. Watson, 619 So.2d 1342 (Ala.1993), Backus initially sued Carousel Club 90, Inc. (“the club”), seeking damages under the Dram Shop Act for her alleged injuries; she obtained a substantial judgment. Backus later filed another action, naming as defendants the club, Jimmy Watson, and Syble Watson, seeking to set aside an alleged fraudulent transfer of the club’s assets. Backus alleged in the new complaint that the Watsons had used the club as their alter ego. Backus sought to hold the owner of a corporation personally liable under an alter ego theory (i.e., to pierce the corporate veil) for a judgment she had obtained against the club. “Backus’s present action against Watson was based on a cause of action entirely different from the one on which her action against the club was based.... ” 619 So.2d at 1344-45. In short, Backus filed a new complaint alleging the alter ego theory.

Here, Lathan attempted to amend his complaint to add two defendants and to assert a new postjudgment cause of action in the same proceeding. However, the default judgment entered on the original complaint was final. “ ‘A judgment that conclusively determines all of the issues before the court and ascertains and declares the rights of the parties involved is a final judgment.’ ” Pratt Capital, Inc. v. Boyett, 840 So.2d 138, 144 (Ala.2002)(quoting Nichols v. Ingram Plumbing, 710 So.2d 454, 455 (Ala.Civ.App.1998)). “A judgment that declares the rights of the parties and settles the equities is final even though the trial court envisions further proceedings to effectuate the judgment.” Wyers v. Keenon, 762 So.2d 353, 355 (Ala.1999). Otherwise stated, a judgment that is “definitive of the cause in the court below, leaving nothing further to be done, save [its enforcement],” is a final judgment. Ex parte Gilmer, 64 Ala. 234, 235 (1879).

“Claims adjudicated in a previous non-final order become final ... at the time the last party or claim is disposed of.” Oliver v. Townsend, 534 So.2d 1038, 1046 (Ala.1988). A “ ‘ “court cannot, by its subsequent action, divest a [judgment] of its character of finality. A final [judgment] is not rendered interlocutory by the retention of the case on the docket, nor by the subsequent rendition of another [judgment] therein.” ’ ” Boyett, 840 So.2d at 145 (quoting Nichols, 710 So.2d at 456, quoting in turn Mingledorff v. Falkville Downtown Redev. Auth., 641 So.2d 830, 832 (Ala.Civ.App.1994)). Neither can a final judgment “be made nonfinal by the trial court’s calling it nonfinal.” Smith v. Fruehauf Corp., 580 So.2d 570, 572 (Ala.1991).

In Harper v. Brown, Stagner, Richardson, Inc., 845 So.2d 777 (Ala.2002), the plaintiff obtained a judgment against a corporate defendant. Subsequently, the plaintiff moved to amend his complaint to add an individual defendant as a party defendant pursuant to Rule 60(b), Ala. R. Civ. P. The trial court allowed amendment. We reversed, holding that the plaintiffs Rule 60(b) motion did not attack the judgment in his favor against the corporate defendant and sought no relief from that judgment but, instead, sought only to amend its complaint to add an individual as a defendant. In Boyett, supra, the prospective purchaser of property sued his co-purchaser alleging breach of contract, fraud, and conversion after the co-purchaser allegedly acquired the title to property and refused to return the purchase money. After the trial court entered a summary judgment for the prospective purchaser and awarded compensatory and punitive damages, the prospective purchaser filed an amendment to his complaint, adding as a defendant the company of which the co-purchaser’s attorney was president, on the ground that the co-purchaser was fraudulently attempting to transfer the property to the company. The trial court granted the motion and found the transfer fraudulent. This Court held that the original judgment was final and that the co-purchaser could not amend his complaint. More recently, in Faith Properties, LLC v. First Commercial Bank, 988 So.2d 485 (Ala.2008), the bank brought an action against the personal guarantor of a business loan to seize proceeds the guarantor had realized from the sale of the guarantor’s property. The trial court entered a preliminary injunction and subsequently entered a default judgment against the guarantor. The guarantor filed a motion seeking relief from the default judgment. The bank then filed an amended complaint adding the guarantor’s wife and a grantee as defendants and seeking to set aside conveyances the bank alleged were fraudulent. The trial court allowed the amendment and subsequently entered a summary judgment for the bank. This Court held that the trial court lost jurisdiction to entertain an amendment to the bank’s complaint after it denied the motion to set aside the default judgment.

Lathan’s attempt to amend its complaint to substitute Willard E. Ryals and Ryals Real Estate for the fictitiously named parties in the original complaint so that the amended complaint would relate back to its original complaint is also unavailing.

Rule 4(f), Ala. R. Civ. P., provides:

“When there are multiple defendants and the summons ... and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment. After the entry of judgment, if the plaintiff is able to obtain service on a defendant or defendants not previously served (except, however, defendants designated as fictitious parties as allowed by Rule 9(h), who shall be deemed to have been dismissed voluntarily when the case was announced ready for trial against other defendants sued by their true names), the court shall hear and determine the matter as to such defendant or defendants in the same manner as if such defendant or defendants had originally been brought into court, but such defendant or defendants shall be allowed the benefit of any payment or satisfaction that may have been made on the judgment previously entered in the action.”

Lathan did not amend its complaint before trial to substitute a real party for a fictitiously named defendant. Because “[t]he beginning of trial operates as a dismissal of fictitiously named parties,” Ex parte Dyess, 709 So.2d 447, 452 (Ala.1997) (citing Rule 4(f), Ala. R. Civ. P.), Lathan’s attempt to amend its complaint to substitute a real party for a fictitiously named party after the final judgment was rendered was ineffectual.

We recognize that in the present case the trial court purported to treat La-than’s amended complaint filed on September 22, 2008, as a new action. However, the trial court did not charge Lathan a new filing fee, nor did the trial court assign the amended complaint a new case number. The trial court’s attempt to treat Lathan’s amended complaint as a new action was in words only and was not sufficient to commence a new action. See, e.g., § 12-19-70, Ala.Code 1975 (which provides that payment of a filing fee is mandatory).

Conclusion

Lathan could not amend its complaint after a final judgment had been entered, and the amended complaint could not simply be denominated a new action without being treated as one. Accordingly, the trial court did not have jurisdiction to enter its judgment against Willard E. Ryals and Ryals Real Estate, finding that those defendants were liable for the judgment previously entered against Ryals Construction Co. on May 24, 2006, in the amount of $422,250, plus postjudgment interest. A judgment entered by a trial court without subject-matter jurisdiction is void. Ex parte Norfolk Southern Ry., 816 So.2d 469, 472 (Ala.2001). Based on the foregoing, we dismiss the appeal as being from a void judgment.

APPEAL DISMISSED.

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

MURDOCK, J., concurs specially.

WOODALL, J., concurs in the result.

MURDOCK, Justice

(concurring specially).

I fully concur in the main opinion. I write separately to comment on the tension between the trial court’s conclusion, on the one hand, that Lathan’s amended complaint, filed on September 22, 2008, represented “an entirely new cause of action alleging alter ego” and the trial court’s conclusion, on the other hand, that this amended complaint was “in essence almost in the nature of a creditor’s bill.” In Wyers v. Keenon, 762 So.2d 353 (Ala.1999), this Court explained what a creditor’s bill is and is not:

“A creditor’s bill is in the nature of an equitable execution, which is granted on the ground that there is no remedy at law. 21 Am.Jur.2d Creditor’s Bill § 2 (1981). The process of garnishment and a creditor’s bill are, in effect, instituted for the same purpose, namely, to reach money or property in the hands of a third party, due and owing from a judgment debtor to a judgment creditor. 21 C.J.S. Creditor and Debtor § 95 (1990). The general rule is that when a creditor’s bill is brought to reach a debt- or’s assets in the hands of a third person, a judgment entered on the creditor’s bill cannot exceed the value of those assets and a personal judgment cannot be rendered against that third person. 21 Am.Jur.2d Creditor’s Bill § 87 (1981).”

762 So.2d at 355-56 (emphasis added). The amended complaint was an effort to obtain a “personal judgment” against a new defendant and thus was not a “creditor’s bill.”

      . The postjudgment motion for sanctions also sought sanctions against Ryals Real Estate, Inc., and Willard E. Ryals.

      . The amended complaint reads as follows:
      "1) The original complaint filed in this case sated ‘Defendants, A, B, and C, are individuals and/or business entities associated with Craig Walker and/or involved with Craig Walker and/or Ryals Construction Company in performing a contract in Tuscaloosa, Alabama, and whose identities are unknown at this time but will be added by amendment once ascertained. [Lathan] now amends its complaint to name Ryals Real Estate, Inc. (An Alabama corporation) as Defendant 'A' and Willard E. Ryals as Defendant 'B.'
      "2) As a result of intensive research [La-than] has proven that Ryals Real Estate, Inc. and Willard E. Ryals associated with and/or controlled Defendant Ryals Construction Company and Defendant Craig Walker. All defendants operated out of the same small office at 511 North Highway 59, Summerdale, Alabama 36580. The defendants shared staff, office equipment and phone lines.
      "3) [Lathan] received a judgment from this Honorable Court against Defendants Craig Walker and Ryals Construction Company jointly and severally on May 24, 2006. Because Defendants Ryals Real Estate, Inc. and Willard E. Ryals are the alter egos of and exerted control over Defendants Craig Walker and Ryals Construction Company, [Lathan] seeks a judgment of the Court adjudicating Defendants Ryals Real Estate, Inc., and Willard E. Ryals liable for the previously entered judgment plus accrued interest."

      (Emphasis added.)

      . We note that on March 30, 2010, this Court denied, without opinion, Willard E. Ryals’s petition for a writ of mandamus, which raised the same issues now before this Court on appeal. Ex parte Ryals (No. 1090755).


author: PER CURIAM. BRYAN, Judge, THOMPSON, PITTMAN, Judge,

text:
    Ross O’Neal PETTY v. Richard ALLEN, as Commissioner of the Alabama Department of Corrections.
    2080875.
    Court of Civil Appeals of Alabama.
    June 25, 2010.
    Rehearing Denied Feb. 25, 2011.
    Certiorari Denied Aug. 12, 2011

      Ross O’Neal Petty, pro se.
    Kim Thomas, gen. counsel, and Bart Harmon, asst. gen. counsel, Department of Corrections, for appellee.
   PER CURIAM.

In this appeal, transferred to this court by the Alabama Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6), Ross O’Neal Petty (“the inmate”), an incarcerated inmate in the Alabama correctional system, seeks review of a judgment of the Montgomery Circuit Court dismissing his action against the current commissioner of the Alabama Department of Corrections (“DOC”), Richard Allen (“the commissioner”). The inmate alleged in his complaint, which was filed on May 8, 2009, that the commissioner had “exceeded [his] legislative authority by withholding over 25% of the [inmate’s] wages while he was participating in [a] work release program from March of 1995 through August of 1996 and [f]rom March of 2002 through January of 2008,” a practice that, the inmate said, violated subsection (4) of Act No. 307, Ala. Acts 1971; the inmate alleged that that act had been “recompiled” by Section 5 of Act No. 637, Ala. Acts 1976, which is now codified as Ala.Code 1975, § 14-8-37. The inmate sought, in pertinent part, a judgment declaring that the commissioner had violated the law, a ruling that the claimed excess withholdings be returned to the inmate, and an injunction against future "violations of § 14-8-37. The inmate attached to his complaint, among other things, an affidavit testifying to the allegedly improper wage withholdings, which he said occurred on two occasions spanning approximately eight years of his imprisonment, when he was at the “Hamilton work release camp.” However, on May 21, 2009, well before the commissioner was due to respond to the complaint, the trial court dismissed the inmate’s action, opining that the inmate’s action was in the nature of a petition for a writ of certiorari and that the petition was required to be “verified” (see § 6-6-640, Ala.Code 1975). The inmate appealed following the denial of his motion filed pursuant to Rule 59, Ala. R. Civ. P.

On appeal, the inmate contends that his affidavit sufficed as a “verification” of his complaint and that, therefore, the trial court erred in its reasoning; he further contends that the trial court should not have dismissed the action because, he says, the complaint stated a valid claim for a declaratory judgment in setting forth a justiciable controversy as to which he had standing to sue. The commissioner has not attempted to defend the trial court’s rationale for dismissal, but instead invokes the principle that an appellate court will affirm a trial court’s judgment on any valid legal ground, citing Gartman v. Hill, 874 So.2d 555, 558 (Ala.Civ.App.2003). The commissioner argues that the inmate was not entitled to relief in any event because the principal statute upon which he relied, § 14-8-37, did not apply to him. We note that the inmate has not filed a reply brief addressing the commissioner’s arguments.

The commissioner’s argument has considerable facial appeal. Chapter 8 of Title 14 of the Alabama Code, which pertains to temporary-release programs, is divided into three articles. The statute upon which the inmate relies for his invocation of the 25% withholding cap, which is currently codified at Ala.Code 1975, § 14-8-37, is a part of Article 2 of that chapter, which pertains only to a “work release program for county inmates and state inmates in custody of ... count[ies].” Ala. Code 1975, § 14-8-31(a) (emphasis added); see also Ala.Code 1975, § 14-8-30(1) and (2) (defining “county inmate” as a “person convicted of a crime and sentenced to a term of confinement of one year’s duration or less” and a “state inmate” as a “person convicted of a crime and sentenced to a term of confinement of more than one year’s duration”).

However, the Hamilton facility at which the inmate was assigned (according to his affidavit) is not a county facility; rather, it is operated by DOC, an arm of the state. See DOC Admin. Reg. No. 219, § V.B.2.Í. (listing state correctional facilities, including Hamilton); see also Ward v. State, 929 So.2d 1048, 1049 (Ala.Crim.App.2005) (reviewing disciplinary sanctions imposed against work-release inmate stemming from report that “was received at the Hamilton Work Release Center[ ] advising [DOC] that [that inmate] had been fired from his job”). Thus, Article 2 (and, therefore, the 25% withholding cap in § 14-8-37) did not apply to the inmate.

In contrast with Article 2, Article 1 of Chapter 8 of Title 14, which defines inmates subject to its provisions as “person[s] either male or femalef ] convicted of a felony and sentenced to a term of confinement and treatment in a state correctional institution under the jurisdiction of [DOC] ” (Aa.Code 1975, § 14-8-1(4)), clearly did apply to the inmate. See also Givens v. Alabama Dep’t of Corr., 381 F.3d 1064, 1069 (11th Cir.2004) (“So far as inmates of the state are concerned, §§ 14-8-1 to 14-8-10 of the Aabama Code are the only statutory provisions that bear on work release.”). That article provides, in pertinent part, that “[t]he employer of [a state] inmate involved in work release shall pay the inmate’s wages directly to” DOC; that DOC “may adopt regulations concerning the disbursement of any earnings of the inmates involved in work release”; that DOC may itself “withhold from an inmate’s earnings the cost incident to the inmate’s confinement as [DOC] shall deem appropriate and reasonable,” but also that “[i]n no event shall the withheld earnings exceed W percent of the earnings of the inmate”; and that “[a]fter all expenses have been deducted by [DOC], the remainder of the inmate’s earnings shall be credited to his or her account with [DOC].” Aa.Code 1975, § 14-8-6 (emphases added). That portion of Article T reflects a 1992 amendment to increase the permissible DOC withholding level from 25% to 40%. See Act No. 92-688, Aa. Acts 1992, § 1.

That said, however, we are mindful that we are reviewing a judgment of dismissal. The applicable standard of review thus militates strongly in favor of reversal:

“On review of a judgment of dismissal [for failure to state a claim], the judgment is not entitled to a presumption of correctness. The appropriate standard of review is whether the plaintiff could prove any set of circumstances that would entitle the plaintiff to relief. In reviewing a dismissal, [an appellate court] does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. A dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Green v. Nemish, 652 So.2d 243, 244 (Ala.1994) (citations omitted).

In this case, the inmate’s affidavit attached to his complaint states that, from March 1995 through August 1996, DOC “took 32.5% of [his] earnings” and from March 2002 through January 2008 “took 40% of [his] earnings”; he also avers that, after those withholdings were made, DOC “would take out 25% more for fines and restitution.” The main opinion in Alabama Department of Corrections v. Merritt, [Ms. 2081084, June 18, 2010], rejected the propositions that § 14-8-6 allows charging a work-release inmate transportation costs or other employment-related charges once 40% of an inmate’s work-release earnings have been withheld and that the 40% figure contained in the statute refers to an inmate’s net earnings rather than an inmate’s gross earnings. Viewed in a light most favorable to the inmate in this case, the allegations of the inmate’s complaint and attached affidavit, in light of Merritt, would support a judgment declaring that the commissioner exceeded his legislative authority by withholding an excessive amount of the inmate’s wages while he was participating in work-release programs in 1995-1996 and 2002-2008. We stress, however, that our review is limited to the allegations of the inmate’s complaint, which do not clearly exclude the possibility that the commissioner withheld greater than 40% of the inmate’s gross work-release earnings, and it remains to be decided on remand whether the facts will actually support a grant of relief.

Based upon the foregoing facts and authorities, we reverse the judgment of the trial court and remand the cause for further proceedings.

REVERSED AND REMANDED.

BRYAN, THOMAS, and MOORE, JJ., concur specially.

THOMPSON, P.J., and PITTMAN, J., dissent, with writings.

BRYAN, Judge,

concurring specially.

I concur specially, and I concurred in Alabama Department of Corrections v. Merritt, [Ms. 2081084, June 18, 2010], because § 14-8-6, Ala.Code 1975, plainly and unambiguously states that “[i]n no event shall the withheld earnings exceed 40% of the earnings of the inmate.” (Emphasis added.) “When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning—they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). This court’s role “is not to displace the legislature by amending statutes to make them express what we think the legislature should have done.” Siegelman v. Chase Manhattan Bank (USA), N.A., 575 So.2d 1041, 1051 (Ala.1991). I recognize that “[interpretations of an act by the administrative agency charged with its enforcement, though not conclusive, are to be given great weight by the reviewing court.” Hulcher v. Taunton, 388 So.2d 1203, 1206 (Ala.1980). However, “[a] administrative agency cannot usurp legislative powers or contravene a statute.” Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala.1991). In this case, § 14-8-6 clearly provides that the Alabama Department of Corrections (“DOC”) may not withhold more than 40% of a work-release inmate’s wages. DOC has interpreted § 14-8-6 in a manner that conflicts with the plain language of that statute. Notwithstanding creative attempts made by DOC to circumvent the clear language of the statute, I am obligated to apply the statute as the legislature wrote it, regardless of whether I agree with it. To do otherwise would be to substitute my opinion for that of the legislature.

THOMAS and MOORE, JJ., concur.

THOMPSON,

Presiding Judge, dissenting.

For the reasons that I dissented in part in Alabama Department of Corrections v. Merritt, [Ms. 2081084, June 18, 2010], I also dissent from the majority opinion in this case.

PITTMAN, Judge,

dissenting.

Consistent with the reasons why I dissented in part in Alabama Department of Corrections v. Merritt, [Ms. 2081084, June 18, 2010], I respectfully dissent from the main opinion in this case. In my view, there is nothing in AIa.Code 1975, § 14-8-6, that would forbid the Alabama Department of Corrections (“DOC”) from withholding as much as 40% of a state inmate’s work-release earnings for the cost incident to the inmate’s confinement. Further, DOC is expressly authorized by § 14-8-6 to adopt regulations concerning disbursement of work-release earnings; its regulation on the subject, DOC Admin. Reg. No. 410, indicates not only that DOC will withhold 40% of state inmates’ gross earnings from work-release labors, but also that “[w]hen restitution [or] court costs ... have been ordered by the sentencing judge ... the work-release participant may be required to make incremental payments towards ” those sums. DOC Admin. Reg No. 410, § VII.B. (emphasis added). That regulation is consistent with § 14-8-6, which refers to DOC’s power to “withhold” 40% in its discretion attributable to confinement costs, but which also states that DOC is to credit to an inmate’s account only a remainder obtained after all “expenses” have been deducted, a term that may reasonably be construed in the somewhat more expansive manner that DOC has in Admin. Reg. 410. As our Supreme Court has noted, “ ‘ “ ‘courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute.’ ” ’ ” QCC, Inc. v. Hall, 757 So.2d 1115, 1119 (Ala.2000) (quoting NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995), quoting in turn other cases).

In my view, Merritt and the main opinion in this case, by failing to give priority to costs-of-confinement and victim-restitution claims, do not give effect to legislative and administrative intent. For that reason, I cannot join in the main opinion in this case.

      . In actuality, the 1971 and 1976 acts pertain to different categories of inmates and, as we discuss below, have been codified in different articles of the current Alabama Code.

      . Such an affidavit becomes part of the pleading to which it is attached "for all purposes.” Rule 10(c), Ala. R. Civ. P.

      . Although the Alabama Administrative Code does not contain DOC regulations, the pertinent regulation could be found at http://www. doc.state.dl.us/docs/'AdminRegs/AR219.pdf on the date this opinion was released, and we take judicial notice of it because (a) it is of statewide application, and (b) it is readily available to the public. See Ex parte Vizzina, 533 So.2d 658, 660 (Ala.1988); accord State v. Friedkin, 244 Ala. 494, 497, 14 So.2d 363, 365 (1943). A copy of DOC Admin. Reg. No. 219, printed from the Web site listed above, is available in the case file of the Clerk of the Alabama Court of Civil Appeals.