author: LEE, C.J.,

text:
    In the Matter of T.E.C. a minor. Christina Ann Pulkinen, Appellant v. Timothy Shane Collum, Appellee.
    No. 2010-CA-00421-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Stephanie L. Mallette, attorney for appellant.
    Preston Davis Rideout Jr., attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Timothy Collum sought custody of the son he shared with Christina Pulkinen. The child was born in Columbus, Mississippi, on September 21, 2006. The couple was never married, but Collum is listed as the child’s father on the birth certificate.

¶ 2. At the beginning of December 2006, Pulkinen took the child and returned to her home in Massachusetts. On December 22, 2006, Collum filed a complaint in the Webster County Chancery Court seeking to establish paternity and gain custody of the child. Later in December 2006, Collum and Pulkinen reunited, and Pulki-nen returned to Mississippi with the child. Collum did not have a summons issued after filing the complaint.

¶ 3. In July 2007, Collum and Pulkinen took the child to Massachusetts to visit family. On the way back to Mississippi, they stopped to spend the night in a hotel. During the night, Pulkinen left with the child and returned to Massachusetts. When Collum awoke and found them gone, he returned to Mississippi.

¶4. On July 20, 2007, Pulkinen was granted a temporary, ex parte abuse-protection order against Collum in Massachusetts. Collum was served with a copy of this order in Mississippi.

¶ 5. On July 25, 2007, Collum supplemented his December 2006 petition for custody and served Pulkinen with a Rule 81 summons on July 31, 2007. On September 5, 2007, a hearing was' held in Starkville, Mississippi. Collum and several of his family members testified. Pulki-nen did not appear or file any responsive pleadings. Since she had failed to respond to the requests for admission, the chancellor deemed all of Collum’s requests admitted, including that all of the Albright factors weighed in his favor. The chancery court granted custody to Collum.

¶ 6. On March 5, 2008, Pulkinen moved to set aside the final judgment by filing a motion under Mississippi Rule of Civil Procedure 60(b). The 60(b) motion was denied on January 27, 2010. In denying the motion, the chancellor found that jurisdiction was proper in Mississippi because the Massachusetts court had vacated its original temporary ex parte order and ordered that the records be destroyed. The chancellor did not specifically address the issue of service of process. On February 5, 2010, Pulkinen filed a motion to amend the judgment to clarify that her Rule 4 argument regarding lack of service of process was denied. M.R.C.P. 4. The chancellor entered an order specifically denying the Rule 4 issue.

¶ 7. Pulkinen now appeals, arguing that the chancellor was without jurisdiction to make a custody determination because Collum failed to have process issued within 120 days of the initial filing of the complaint. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. The standard of review when reviewing a chancellor’s decision is limited. Pratt v. Pratt, 977 So.2d 386, 390 (¶ 10) (Miss.Ct.App.2007). “Upon review of a chancellor’s opinion, when it is supported by substantial evidence and where the chancellor has not abused her discretion, was not manifestly wrong, clearly erroneous, or applied an erroneous legal standard, we will not disturb her opinion.” Id. (citing Townsend v. Townsend, 859 So.2d 370, 371-72 (¶ 7) (Miss.2003)). This Court reviews questions of law de novo. Id.

DISCUSSION

¶ 9. Pulkinen’s sole argument on appeal is that the chancellor should have dismissed this case because Collum failed to have process served within 120 days of the initial filing of the complaint.

¶ 10. Mississippi Rule of Civil Procedure 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

¶ 11. Collum failed to have a summons issued after the initial complaint was filed. However, proper service was made on the complaint entitled “Supplement to Original Petition for Establishment of Paternity and Child Custody.” The reason for the delay was that Collum and Pulkinen had reunited and were attempting to work on their relationship. When their efforts to work out their relationship failed, Collum filed the supplemental petition.

¶ 12. Pulkinen did not appear or object to the lack of service of process on the original complaint. After the final judgment was entered, Pulkinen raised the issue of lack of service of process in a Rule 60(b) motion, and a hearing was held on the motion. At the hearing, Pulkinen stated that she had been advised by legal counsel in Massachusetts that since she had custody in Massachusetts, she did not need to appear or participate in the proceedings in Mississippi. Further, she stated that she feared Collum and went as far as to contact the Mississippi Attorney General’s Office to ask if her safety could be guaranteed if she came to Mississippi, but she was told that she was “on her own” if she decided to come to Mississippi. She determined it was a safety risk for her to come to the hearing.

¶ 13. Pulkinen now argues on appeal that despite her failure to make an appearance at the hearing or respond to the pleadings and discovery, the chancellor should have dismissed the case sua sponte because process had not been timely served. The Mississippi Rules of Civil Procedure authorize the court to enter a default judgment when a party has failed to plead or otherwise defend the allegations against him or her. M.R.C.P. 55(a). A default judgment stands unless it is later deemed to have been void. M.R.C.P. 60(b)(4).

¶ 14. “[Mjotions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial eourt[,] and appellate review is limited to whether that discretion has been abused.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984). We find that the chancellor did not abuse her discretion in denying Pulkinen’s Rule 60(b) motion. Within days of Collum filing the first complaint on December 22, 2006, Collum and Pulkinen had reconciled. Thus, Collum had no need to proceed with service of process. Later, when the two went their separate ways again, Collum proceeded with service of process after filing a supplemental complaint on July 25, 2007, which was served on July 31, 2007. The better action would have been for Collum to file a new complaint. Regardless, we find that the chancellor did not err in finding the Rule 4 issue without merit. Collum properly served process on the second complaint, and Pulkinen failed to respond. We find that this issue is without merit.

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

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . See M.R.C.P. 81.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    In re the ESTATE OF Eloise W. DABNEY, Deceased, and The Estate of Mary Dabney Nicholls, Deceased. Freddie Dabney Hataway, Appellant v. David H. Dabney, Dabney Nicholls Haugh, Kristi Tedder, Wendy Nicholls Wilhoit, Robert Richmond, Matt Richmond, Dana S. Ellis, Douglas Sevier, William M. Bost Jr., The Dabney Company, L.P. and The Dabney Company L.L.C., Appellees.
    No. 2009-CP-01923-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Freddie Dabney Hataway, appellant, pro se).
    David H. Dabney, appellees, pro se.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MYERS, J.,

for the Court:

¶ 1. On November 3, 2009, the Warren County Chancery Court entered an order and opinion, with factual findings and conclusions of law incorporated therein, closing the Estate of Eloise W. Dabney, deceased, and discharging David H. Dabney and Freddie Dabney Hataway as the Estate’s co-executors. Freddie appeals from that order.

¶ 2. Because Freddie has failed to provide this Court with an adequate record of the proceedings in the chancery court and does not make out an apparent case of error in her brief, we affirm the chancery court’s ruling.

DECISION

¶ 3. At the outset, we point out that Freddie’s brother, David, died shortly after Freddie had filed her notice of appeal in this matter. David’s attorney, Marcie Southerland, thereafter filed a motion for stay of appeal with Mississippi Supreme Court so that an executor could be appointed for David’s estate. On July 29, 2010, the supreme court entered an order granting the motion. On October 14, 2010, the supreme court entered another order granting Southerland’s motion for an extension of the stay of appeal; the supreme court dismissed without prejudice a motion for substitution of parties and suggestion of death filed by Freddie which asked that the “Estate of David H. Dabney be substituted for David H. Dabney.” On December 21, 2010, the supreme court entered an order granting Southerland’s motion to withdraw as David’s counsel and to extend the briefing deadline to January 10, 2011. The supreme court thereafter assigned the case to this Court. No appellee’s brief was ever filed in this matter.

¶ 4. Generally, an appellee’s failure to file a brief with the appellate court “is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error.” Taylor v. Kennedy, 914 So.2d 1260, 1261-62 (¶ 2) (Miss.Ct.App.2005) (citing Varvaris v. Perreault, 813 So.2d 750, 752 (¶5) (Miss.Ct.App.2001)). “In order to merit reversal, the appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Id. at 1262 (¶ 3) (citation and quotations omitted).

¶5. In her brief, Freddie asserts the following eleven assignments of error: (1) whether all matters regarding personal property of the Estate were settled at the property distribution ordered by the chancery court in 1996; (2) whether the chancery court’s denial of allegations of missing estate property is manifestly wrong; (3) whether David had a right to the proceeds from the sale of the real property at 1714 Cherry Street, Vicksburg, Mississippi; (4) whether the proceeds of the sale of 1714 Cherry Street should have been released to David; (5) whether the chancery court’s finding that Freddie is entitled to receive $2,143.75 from the sale of Eloise’s Cadillac and that such sum should be paid from the estate, is correct; (6) whether Eloise’s last will and testament provides that David may have use of the sterling silver flatware for as long as he has ownership of the house at 1300 Grove, Vicksburg, Mississippi; (7) whether transfer of title to the cemetery plots by Eloise to David prior to Eloise’s death was unlawful; (8) whether a silver tray reported stolen by David was property of the Estate; (9) whether the Estate’s insurance paid David $6,000 for the loss of the silver tray he had reported stolen; (10) whether the chancery court’s decision to deny all other proposed findings of fact and conclusions of law submitted by the parties and not specifically listed in the chancery court’s order, is error or manifestly wrong; and (11) whether with a gift inter vivos there is an automatic presumption of undue influence even without abuse of the confidential relationship.

¶ 6. We cannot address any one of these issues. According to the limited record before us, numerous hearings were conducted in the chancery court throughout the administration of this estate, and the chancery court based its final findings of fact and conclusions of law on the arguments and the evidence presented at those hearings, which included oral testimony. In contravention of Rule 10(a) of the Mississippi Rules of Appellate Procedure, Freddie failed to include in the record on appeal the transcripts (which the record indicates were made) from those proceedings. Freddie merely incorporated a portion-five pages-of the transcript taken at one of the hearings into her record excerpts.

¶ 7. Our supreme court has stated many times that it is the duty of the appellant to present a sufficient record to support his or her assignments of error. Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (¶ 4) (Miss.2002); Burney v. State, 515 So.2d 1154, 1160 (Miss.1987); Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973); Willenbrock v. Brown, 239 So.2d 922, 925 (Miss.1970). An appellate court “must indulge the presumption that the lower court was correct until the contrary is affirmatively shown, and upon the findings of fact by the chancellor below we must rest with confidence.” Redhead, v. Redhead, 109 Miss. 648, 653, 68 So. 923, 923 (1915).

¶ 8. Freddie’s failure to provide us with an adequate record in this matter is fatal to her appeal, as there is no basis to support any of the assignments of error asserted by her herein. An appellate court “must decide each case by the facts shown in the record, not assertions in the brief.” Randall, 824 So.2d at 1293 (¶ 3) (citations and quotation omitted). Accordingly, we hold each above-stated issue is without merit.

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

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


author: MAXWELL, J.,

text:
    Russell Dale ROSE Jr., Appellant v. Debbie UPSHAW, Appellee.
    No. 2010-CA-00503-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Christopher A. Tabb, Brandon, attorney for appellant.
    Robert Russell Williard, Brandon, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Russell Rose Jr. appeals the Rankin County Chancery Court’s modification of a Louisiana order granting his former mother-in-law, Debbie Upshaw, extensive visitation with her granddaughter, Grace Caroline Rose (Caroline). The original visitation order was the result of a compromise in a heated battle for Caroline’s custody between Rose and Upshaw following the death of Upshaw’s daughter.

¶ 2. After moving to Mississippi with Caroline, Rose registered the Louisiana order in the Rankin County Chancery Court. Upshaw sought to hold Rose in contempt for interference with her visitation with Caroline. Rose responded with a request that Upshaw’s visitation be severely restricted. The chancellor found a continued relationship with her mother’s family to be in Caroline’s best interest. Instead of limiting Upshaw’s visitation, the chancellor modified the visitation schedule around Caroline’s school schedule.

¶ 3. Oúr review is limited to the modification only. The original decision to grant Upshaw extensive visitation is not before us. That decision was made by the Louisiana court, upon Rose and Upshaw’s agreement, and without any appeal. Finding Mississippi obtained jurisdiction not only to enforce but also to modify the Louisiana order, we find no abuse of discretion in the chancellor’s modification. Therefore, we affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

¶ 4. Caroline was ten months old when her mother, Dawn, passed away in June 2006. A legal battle immediately ensued between Dawn’s husband, Rose, and mother, Upshaw, over custody of Caroline. All parties lived in Louisiana at the time. Based on Rose and Upshaw’s agreement, the Louisiana court granted Rose sole custody and permitted him to relocate with Caroline to Mississippi. But it awarded Upshaw five consecutive days per month (sixty days per year) of visitation. This Louisiana judgment, entered January 5, 2007, was to remain in effect “until the child reaches school age, or under further order of this court.”

¶ 5. On October 18, 2007, Rose registered the Louisiana custody order in the Rankin County Chancery Court, in compliance with Mississippi’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Miss.Code Ann. § 93-27-305 (Rev.2004) (procedure for registering child-custody determination from another state). On August 12, 2009, Rose filed a petition in the chancery court to modify the Louisiana visitation order. But before Rose served Upshaw with the petition, Up-shaw filed a motion for contempt. Up-shaw’s August 26, 2009 motion for contempt alleged Rose had denied her the court-ordered visitation. Rose responded with a counterclaim requesting modification of the custody and visitation order. He specifically requested Upshaw’s visitation be restricted to a minimum. Because Caroline was now in preschool, Rose argued Upshaw’s visitation disrupted Caroline’s education. He also complained Up-shaw (1) did not heed instructions about Caroline’s special diet, (2) obsessed over Dawn’s death in front of Caroline, regularly taking her to visit Dawn’s grave, and (3) refused to call her granddaughter “Caroline” as Rose did, instead calling her “Grace.”

¶ 6. On February 26, 2010, the chancery court issued an order finding Rose in contempt and modifying Upshaw’s visitation. Instead of Upshaw having Caroline five consecutive days during the first week of the month, the chancery court awarded her six weeks’ visitation in the summer and alternating holidays, for a total of approximately seventy days per year. He addressed Rose’s other concerns through specific instructions in the modification order.

¶ 7. Rose timely appealed. He challenges the modification only. He does not contest the contempt finding.

LAW AND DISCUSSION

¶ 8. Rose claims the chancellor erred by granting Upshaw relief she did not request and granting grandparent visitation rights commensurate with the rights of a parent, in violation of his due-process rights and contrary to the Louisiana order.

¶ 9. We must begin by emphasizing the chancellor did not grant Upshaw visitation. The Louisiana court did. And it did so upon an agreed order. This order granted Upshaw five consecutive days per month of visitation with Caroline. Rose never appealed this order claiming it violated his due-process rights or Louisiana law. Instead, he asked Mississippi to give the Louisiana order full faith and credit by registering the order in the Rankin County Chancery Court. See U.S. Const, art. IV, § 1 (full faith and credit clause); Reeves Royalty Co. v. ANB Pump Truck Serv., 513 So.2d 595, 598 (Miss.1987) (discussing constitutional requirement Mississippi gives full faith and credit to other states’ judgments). See also Miss.Code Ann. §§ 93-27-805 (registration of another state’s child-custody determination) and 93-27-306(1) (Rev.2004) (enforcement of another state’s child-custody order). Therefore, just as the original grant of extensive visitation to Upshaw was not up for collateral attack before the chancellor, it is not before us on review. Instead, we are solely concerned with the chancellor’s decision to modify the Louisiana visitation order.

I. Procedure

¶ 10. As a preliminary matter, we find no merit in Rose’s argument that Up-shaw could not benefit from the modification because she did not request such relief. Rose cites the general principle that no relief can be given that is outside the scope of the pleadings or the proof. E.g., Barnes v. Barnes, 317 So.2d 387, 388 (Miss.1975) (rev’d on other grounds). But the issue of modification was both pled and proved. Rose raised the issue of modification in his answer and counterclaim to Upshaw’s contempt motion. And both parties presented evidence about how the current visitation schedule was not working. See M.R.C.P. 15(b) (“When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). Thus, the issue of modification was squarely before the chancellor.

¶ 11. Rose essentially argues, since he was the one to plead modification, the chancellor could only modify the visitation order to meet Rose’s specific request that Upshaw’s visitation be restricted. But, procedurally, the chancellor was not limited to granting all-or-nothing relief— either enforcement of the unmodified Louisiana order or restriction of Upshaw’s visitation rights. “On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child.” Haddon v. Haddon, 806 So.2d 1017, 1020(12) (Miss.2000) (citing Harrell v. Harrell, 231 So.2d 793, 797 (Miss.1970)).

¶ 12. The chancellor determined it was in Caroline’s best interest to continue a relationship with her deceased mother’s family. But both parties presented the chancellor with evidence the current visitation schedule was not working. Further, the order itself acknowledged the order would have to be modified when Caroline reached school age. Thus, the chancellor was well within his discretion to grant relief in the form of a modified schedule that both permitted Upshaw’s continued visitation and Rose’s control over Caroline’s education.

II. Subject-Matter Jurisdiction

¶ 13. We note neither party challenges Mississippi’s jurisdiction to modify the Louisiana order. However, because subject-matter jurisdiction cannot be waived, we address how Mississippi obtained jurisdiction to modify the Louisiana order.

¶ 14. Both Mississippi and Louisiana have adopted the UCCJEA. Miss.Code Ann. §§ 93-27-101 to -402 (Rev.2004 & Supp.2010); La.Rev.Stat. Ann. §§ 13: 1801 to 1842 (Supp.2011). With the Louisiana order properly registered in Mississippi, Mississippi courts gained jurisdiction to enforce the Louisiana order. Miss.Code Ann. § 93-27-305, -306(1). But a Mississippi court could not modify the order unless (1) the Mississippi court had jurisdiction to make an initial child-custody determination and (2) either (a) Louisiana determined that it no longer had exclusive jurisdiction or that Mississippi would be the more convenient forum or (b) a Mississippi court determined “neither the child, the child’s parents, nor any person acting as a parent presently does not reside” in Louisiana. Miss.Code Ann. §§ 93-27-203(b) (Rev.2004), 93-27-306(2). See also Miss.Code Ann. § 93-27-202(l)(b) (Supp. 2010) (giving the issuing state “exclusive, continuing jurisdiction over the determination until: ... (b) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent currently do not reside in this state.”).

¶ 15. Because Caroline had been living in Mississippi for over two years prior to the modification, Mississippi was her “home state” at the time of modification. See Miss.Code Ann. § 93-27-102(g) (Rev. 2004) (defining “home state” as the state where the child has been living with a parent for at least six months). “Home state” status is the primary way for a state to obtain initial jurisdiction over a child-custody proceeding. Miss.Code Ann. § 93-27-201(l)(a) (Supp.2010). Thus, part one of the exception allowing modification applies. Miss.Code Ann. § 93-27-203.

¶ 16. The record contains no determination by Louisiana that it no longer had exclusive jurisdiction or that Mississippi would- be the more convenient forum. Miss.Code Ann. § 93-27-203(1). Thus, Mississippi’s jurisdiction depends on whether neither Caroline, nor her father, nor “any person acting as a parent” still lived in Louisiana at the time of modification. Miss.Code Ann. § 93-27-203(b). The Louisiana court granted Rose permission to move to Mississippi with Caroline. And the chancellor specifically determined Rose and Caroline actually moved to Mississippi. See New Mexico ex rel. Children, Youth, and Families Dep’t v. Donna, 139 N.M. 131, 129 P.3d 167, 171 (2006) (rejecting automatic loss of initial state’s UC-CJEA jurisdiction when parents and children move and instead requiring judicial factual determination of loss of jurisdiction). But the chancellor acknowledged that Upshaw remained in Louisiana. The question becomes: did the chancellor fail to recognize Upshaw as a “person acting as a parent” still residing in the state that had continuing jurisdiction over Caroline’s custody? •

¶ 17. The UCCJEA defines “person acting as a parent” as:

[A] person, other than a parent, who:
(i) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
(ii) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

Miss.Code Ann. § 93-27-102(m) (emphasis added). Although the Louisiana judgment awarded Upshaw extensive visitation, it clearly recognized Rose as the “sole custodial parent.” And although the order permitted Upshaw to take Caroline to the doctor, she had to clear all medical decisions with Rose first. Because Upshaw was not awarded legal custody of Caroline, we find she was not “a person acting as a parent.” Therefore, Mississippi obtained jurisdiction to modify the Louisiana order. Miss.Code Ann. § 93-27-203(b).

III. The Visitation-modification Standard

¶ 18. As previously stated, the chancellor was not confronted with determining whether to grant Upshaw visitation, triggering Mississippi’s multi-factor analysis for grandparent visitation. See, e.g., Martin v. Coop, 693 So.2d 912, 916 (Miss.1997) (listing ten non-exclusive factors for deciding whether to grant grandparent visitation under Mississippi statute). The chancellor correctly identified the issue before him as the enforcement and potential modification of the Louisiana order.

¶ 19. Mississippi statute grants the chancellor authority to modify or terminate grandparent visitation “for cause.” Miss.Code Ann. § 93-16-5 (Rev.2004). “Where a chancellor has made a factual finding on the matter of visitation, this Court will not disturb those findings unless there is no credible evidence, he has committed manifest error[,] or he has applied an erroneous legal standard.” Henderson v. Henderson, 952 So.2d 273, 279 (¶ 14) (Miss.Ct.App.2006) (citing Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997)). “The chancellor has broad discretion to determine the specific times for visitation.” H.L.S. v. R.S.R., 949 So.2d 794, 798 (¶ 9) (Miss.Ct.App.2006) (citing Haddon, 806 So.2d at 1020 (¶ 12)).

¶ 20. The chancellor agreed with both parties that the Louisiana visitation schedule was not working. And the Louisiana order had expressly provided that the original visitation schedule would have to be modified when Caroline began school. But the chancellor disagreed with Rose that there was cause to terminate or significantly restrict Upshaw’s visitation. Instead, the chancellor determined it was in Caroline’s best interest to continue a relationship with her deceased mother’s family through Upshaw’s visitation. In modifying Upshaw’s visitation, the chancellor implemented a schedule that allowed Upshaw a similar amount of visitation, while not disrupting Caroline’s education.

¶ 21. Although the chancellor did not find cause to terminate Upshaw’s visitation based on Rose’s additional concerns over Caroline’s medically restricted diet, her visiting Dawn’s grave, and her being called “Grace,” the chancellor did address Rose’s concerns through specific instructions in the modification order. Rose complains these instructions interfere with his due-process rights as the sole custodial parent, citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We find the opposite. The chancellor reiterated that Rose, the sole custodial parent, was “the captain of the ship.” Through his instructions, the chancellor ordered Upshaw to defer to Rose’s paramount right to control Caroline’s physical and emotional environment. Pruitt v. Payne, 14 So.3d 806, 810 (¶ 8) (Miss.Ct.App.2009) (quoting Stacy v. Ross, 798 So.2d 1275, 1280 (¶ 23) (Miss.2001)) (“Parents with custody have a paramount right to control the environment, physical, social, and emotional situations, to which their children are exposed.”). Therefore, we find no abuse of discretion in this aspect of the modification order.

¶ 22. Finding no error in the chancellor’s decisions to modify instead of restrict Upshaw’s visitation, we affirm.

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

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


text:
    Tommy STEWART, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01471-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.
    W. Daniel Hinchcliff, for appellant.
    Office of Attorney General by Lisa Lynn Blount, for Appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   MYERS, J.,

for the Court:

¶ 1. Tommy Stewart appeals from the judgment that convicted and sentenced him for the crimes of aggravated assault and shooting into a dwelling, which was entered by the Lincoln County Circuit Court following a jury trial commenced on July 15, 2010. Stewart is represented on appeal by the Mississippi Office of Indigent Appeals, which asserts that there are no arguable issues supporting Stewart’s appeal. Finding that no issue has been raised before this Court, we affirm Stewart’s convictions and sentences.

FACTS AND PROCEEDINGS

¶ 2. The trial court allowed Stewart to represent himself at trial, with the assistance of court-appointed counsel, after the trial court made an on-the-record determination that Stewart’s decision to do so was made knowingly and intelligently.

¶ 3. Curtis Jackson testified at trial that on October 29, 2008, at approximately 6:30 p.m., he was standing outside his aunt’s apartment, located at 220 Smith Street, Brookhaven, Mississippi. Curtis was there with his sister, Tonja Jackson, who was inside the apartment at the time visiting with their aunt.

¶ 4. While Curtis was waiting on his sister to return, Stewart drove up in a white Ford Explorer and made a comment to Curtis about some money that Curtis’s cousin owed him. Curtis told Stewart that he did not know anything about it.

¶ 5. Stewart drove away and reappeared on foot a few moments later with a pistol in his hand. Stewart pointed the pistol at Curtis and stated, “Somebody gonna pay me.” Stewart fired several rounds from the pistol in Curtis’s direction.

¶ 6. None of the bullets struck Curtis. One of the bullets went through the kitchen window of J.W. Bryant’s apartment, a nearby neighbor of Jackson’s aunt, where it came to rest in a wall located next to Bryant’s refrigerator. Bryant was inside his apartment at the time cooking dinner. Two bullets struck Tonja’s vehicle.

¶ 7. Tonja testified that after she heard the shots, she looked out of her aunt’s window and saw her brother lying on the ground, and she saw another individual running from the scene. Tonja immediately ran outside to check on her brother. Curtis told her that he was all right. The two then got into Tonja’s vehicle and drove to their grandmother’s house, located just around the corner, where Tonja called the police.

¶ 8. On cross-examination, it was revealed that Tonja had seen and spoken to Stewart earlier in the day on October 29, when she made an attempt to “diffuse the situation” that eventually led to the shooting incident later that evening. Tonja testified that she also spoke to Stewart a few times after the October 29 incident, when Stewart came to her house and apologized to her for what had happened and offered to pay for the damage done to Tonja’s vehicle.

¶ 9. A jury found Stewart guilty of Count I, aggravated assault, and Count II, shooting into a dwelling. On Count I, the trial court sentenced Stewart to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years to serve, ten years suspended, and five years of post-release supervision. On Count II, the trial court sentenced Stewart to five years in the custody of the MDOC. The trial court ordered both counts to run consecutively.

DISCUSSION

¶ 10. Stewart’s appellate counsel, W. Daniel Hinchcliff, stated in his brief that in accordance with Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005), he diligently searched the procedural and factual history of the case, but he was unable to find any arguable issue to present to this Court. Counsel informed Stewart accordingly, and he advised Stewart of his right to file a pro se brief. Out of caution, this Court entered an order giving Stewart until February 14, 2011, to file a pro se brief in support of his appeal. The deadline has passed, and Stewart has not filed a brief.

¶ 11. We have reviewed the record in accordance with the dictates set forth in Lindsey. In Lindsey, the Mississippi Supreme Court set forth the procedure “to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client’s case presents any arguable issues on appeal[.]” Id. First, appellate counsel “must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7)[J” Id. Second, counsel must certify in his or her brief that:

there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.

Id. Third, counsel must send a copy of his brief to the defendant, inform the defendant that counsel could not find any arguable issues, and advise the client of the right to file a pro se brief. Id. Fourth, the appellate court will determine, based on its review of the record and any pro se brief filed, if there is any arguable issue. Id. If so, the court will require appellate counsel to submit supplemental briefing on that issue, “regardless of the probability of the defendant’s success on appeal.” Id. Last, “[o]nce briefing is complete, the appellate court must consider the case on its merits and render a decision.” Id.

¶ 12. We find no issue in the record warranting supplemental briefing, and we find no reversible error. Therefore, we affirm Stewart’s convictions and sentences.

¶ 13. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH TEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION; AND COUNT II, SHOOTING INTO A DWELLING, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


author: BARNES, J.,

text:
    Aundre BATTLE, Appellant v. Tony COOPER, Todd Hudson and City of Indianola, Mississippi, Appellees.
    No. 2010-CP-00530-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Aundre Battle, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellees.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. After being stopped by the Indiano-la Police Department for suspicion of dealing illegal narcotics, Aundre Battle resisted arrest and appeared to swallow what police believed to be contraband. Other illegal narcotics were found on the scene, along with a firearm. Battle was taken into custody, and after a more thorough search, Battle again became combative and swallowed something hidden on his person. Battle requested medical attention and was taken to a local hospital, where he was examined and quickly released back into custody.

¶ 2. Battle filed a complaint with the Indianola Police Department, alleging simple assault against two of the arresting officers, Officer Tony Cooper and Officer Todd Hudson. After a hearing on the complaint, the Sunflower County Circuit Court judge found no probable cause existed to issue warrants for the arrest of the two officers for assault. Battle appeals, and the State, in response, has filed - a motion to dismiss the appeal. Finding that Battle’s appeal is not from an appeal-able order and was untimely filed, the State’s motion is granted, and the appeal is dismissed.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On December 17, 2008, Battle was sitting in a black Cadillac outside of a residence at 111 Torino Drive in Indiano-la, Mississippi. Responding to a tip that Battle had been selling illegal narcotics, several officers from the Indianola Police Department arrived at the address and ordered Battle out of the vehicle. Battle complied, but the police noted that his hands were balled into fists, as if he were concealing something. Battle refused to obey orders to unclench his fists. Instead, Battle attempted to flee but was wrestled to the ground by several police officers. While Battle was on the ground, Officer Cooper observed him opening his hand, putting his hand to his mouth, and chewing something. Battle was ordered to spit the item out, but he told the officers that he had swallowed the item. Marijuana was found in Battle’s coat pocket, and crack cocaine and a firearm were found in the vehicle. Battle was taken into custody and transported to the police station. He was arrested for possession of a firearm by a felon, possession of cocaine, possession of marijuana, resisting arrest, open container, and for driving with a suspended driver’s license (first offense).

¶ 4. Once at the police station, Officer Cooper noted Battle was walking oddly, indicating to the officer that Battle might have more contraband hidden on his person. A strip search was conducted, and Battle became aggressive. With his back turned, Battle again appeared to put something in his mouth. Battle continued to resist the officers, who were unable to retrieve the item. Officer Mary Nolden entered the room, asked Battle to stop resisting, and he complied. Battle then admitted that he had swallowed drugs and requested medical attention. He was transported to the hospital.

¶ 5. The hospital report showed that Battle had a “normal bowel gas pattern” but that he refused to confirm to the medical staff whether he had ingested any illegal substances. The report further stated that Battle had no fractures and appeared to have only some minor bruises and abrasions likely “from the altercation.” He was released into police custody with only some over-the-counter pain-relief medication given. Battle went back to the emergency room two days later complaining of eye redness and blurry vision. He was given more pain relievers and eye drops.

¶ 6. On December 22, 2008, Battle filed a complaint with the Indianola Police Department against Officers Cooper and Hudson, alleging that the officers had assaulted him for no reason and refused to provide him with prompt medical attention once in custody. On April 9, 2009, the circuit court conducted a hearing to determine if probable cause existed for the issuance of arrest warrants for the two officers for simple assault pursuant to Mississippi Code Annotated section 99 — 3—28(1) (a) (Rev.2007). Battle testified at the hearing that the officers “just pulled up and started snatching on me and stuff like that, choking on me and stuff.” He also claimed that no drugs were found in his car and that he did not swallow anything. He also stated that he was choked and assaulted again at the police station.

¶7. However, Officer Cooper testified to the above-stated facts — that Battle was suspected of dealing illegal narcotics, that he resisted arrest, and that he swallowed what was believed to be contraband. Officer Merrell Brand corroborated this testimony, and the hospital reports were admitted into evidence. Additionally, evidence was presented that Battle had a lengthy criminal history and had been cited ten times in recent years for resisting arrest. His previous criminal charges included possession of marijuana and cocaine, careless driving, contempt of court, and disorderly conduct.

¶ 8. The circuit court, after reviewing the evidence and hearing testimony, found that “no probable cause exist[ed] for the issuance of a warrant” against Officers Cooper and Hudson. The circuit court’s orders were filed on May 1, 2009. On March 20, 2010, Battle filed a notice of appeal. The State submitted a motion to dismiss for lack of jurisdiction. We grant the State’s motion and dismiss the appeal, as the appeal is not from an appealable order and untimely filed.

ANALYSIS

¶ 9. On appeal, Battle contends that the police lacked probable cause to detain him and that the circuit court erred in finding that no probable cause existed to issue arrest warrants against Officers Cooper and Hudson. The State filed a “Motion to Dismiss Appeal,” claiming that the circuit court’s orders are not appealable, and Battle’s appeal was untimely filed.

II10. We agree that Battle is attempting to appeal from an unappealable order. Battle is not a criminal defendant appealing his judgment of conviction. See McGee v. State, 976 So.2d 954, 956 (¶ 8) (Miss.Ct.App.2008) (A criminal defendant may appeal from a trial court proceeding in two ways — by direct appeal from a conviction or under the Mississippi Uniform Post-Conviction Collateral Relief Act.) (emphasis added). Rather, Battle is appealing the circuit court’s ruling that no probable cause existed to issue arrest warrants against Officers Cooper and Hudson. This Court has consistently held that any “attempt to appeal an unappealable order is a total departure from the orderly administration of justice and cannot and should not be approved.” Id. (quoting Swift v. State, 952 So.2d 1039, 1040 (¶ 4) (Miss.Ct.App.2007)). Therefore, Battle’s appeal is not properly before this Court.

¶ 11. In the event that the order was appealable, Battle failed to submit a timely appeal. Mississippi Rule of Appellate Procedure 4(a) states that a notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” The circuit court’s orders were filed on May 1, 2009; however, Battle’s notice of appeal was not filed until March 30, 2010.

¶ 12. Accordingly, as this Court lacks jurisdiction to consider Battle’s appeal, we grant the State’s motion to dismiss.

¶ 13. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ISHEE, J.,

text:
    Corey PARKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01886-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Corey Parker, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    . Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 1995, Corey Parker was charged in the Jones County Circuit Court with armed robbery. In April 1995, Parker pleaded guilty, and was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). In September 2010, Parker filed a motion in the circuit court to vacate and set aside his sentence. The circuit court properly treated the motion as one for post-conviction relief and summarily denied it on the grounds that it was time-barred and without merit. Aggrieved, Parker now appeals. Finding no error, we affirm.

FACTS

¶2. On April 6, 1995, Parker pleaded guilty in the circuit court to armed robbery under Mississippi Code Annotated section 97-3-79 (Rev.2006). At the time of his arraignment, and now in his brief on appeal, Parker admitted to having robbed three fast-food restaurants with a deadly weapon. The circuit court subsequently sentenced him to twenty years in the custody of the MDOC, with the first ten years to be served without the possibility of parole or probation.

¶3. In September 2010, Parker filed a motion to vacate and set aside his sentence, claiming that his sentence is illegal. The circuit court determined that Parker’s motion was one for post-conviction relief (PCR). Because Parker filed the PCR motion outside of the applicable three-year statute of limitations, the circuit court summarily denied the motion as time-barred. Shortly thereafter, Parker filed this appeal.

¶ 4. Parker does not challenge the legality of his guilty plea of armed robbery under section 97-3-79. Instead, he requests post-conviction relief in the form of vacating or setting aside his allegedly illegal sentence. Parker ultimately asserts that the statutory language in section 97-3-79 is ambiguous. Specifically, he argues that the armed-robbery statute under which he was convicted impliedly references Mississippi Code Annotated section 97-3-75 (Rev.2006), as the proper vehicle to determine his punishment. Section 97-3-75 governs simple robbery, and it provides that the maximum sentence for simple robbery is fifteen years. Conversely, section 97-3-79 governs armed robbery and provides that the maximum sentence for armed robbery is life. Under Parker’s theory, his punishment for armed robbery should have been controlled by the statute for simple robbery, and his twenty-year sentence, therefore, exceeds the maximum sentence by five years. Finding no error, we affirm the circuit court’s judgment.

DISCUSSION

I. Statutory Bar

¶ 5. Mississippi Code Annotated section 99-39-5 (Supp.2010) governs motions for post-conviction relief. Although Parker’s assertion that he received an illegal sentence is a valid ground for requesting post-conviction relief under the statute, the statute further provides that a prisoner has three years within which to request post-conviction relief. After that time, only certain cases are excepted from the procedural bar. Exceptions to the three-year statute of limitations are as follows:

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [the petitioner’s] conviction or sentence or that [the petitioner] has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or [t]hat, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss.Code Ann. § 99 — 39—5(2)(a)(I—ii).

¶ 6. Here, Parker pleaded guilty and was sentenced for the crime of armed robbery in April 1995, and he filed the motion to vacate his sentence in September 2010 — almost fifteen years later. Although Parker’s claim regarding an illegal sentence falls within the purview of PCR motions, he fails to make any allegations which would circumvent the three-year time bar. As such, we affirm the circuit court’s denial of Parker’s motion on the basis that it is statutorily prohibited. Nonetheless, we will address the merits of Parker’s allegation.

II. Illegal Sentence

¶ 7. Parker admits that he committed armed robbery and that he pleaded guilty to armed robbery under Mississippi Code Annotated section 97-3-79. Section 97-3-79 is titled, “Robbery using deadly weapon; punishment,” and states:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

(Emphasis added). The statute clearly mandates that any person convicted of armed robbery under section 97-3-79 shall be sentenced to life by a jury, or if the jury does not hand down a sentence of life, then the trial court may direct a sentence for any term of three years or greater.

¶ 8. However, Parker fixates his argument upon the statutory wording that any person who commits the acts enunciated in section 97-3-79 “shall be guilty of robbery.” Id. In that vein, Parker references section 97-3-75, which is titled, “Robbery, punishment,” and states: “Every person convicted of robbery shall be punished by imprisonment in the penitentiary for a term not more than fifteen years.”

¶ 9. Although Parker correctly points out that section 97-3-79 uses language indicating that a person convicted under the statute is guilty of robbery, he neglects to acknowledge the language immediately thereafter which clarifies the punishment for a person convicted under section 97-3-79. In his brief, Parker admits that he knowingly pleaded guilty to armed robbery under section 97-3-79, not under section 97-3-75. However, Parker attempts to convolute the wording of section 97-3-79 in order to lessen the maximum sentence allotted for armed robbery. His argument fails.

¶ 10. The statute governing armed robbery, section 97-3-79, is explicitly clear in its provisions for those individuals convicted under it — the maximum sentence is life. Parker admits that he committed armed robbery. He admits that his crime is addressed under section 97-3-79. He admits that he entered a valid guilty plea for armed robbery under section 97-3-79. As such, he cannot now argue that the sentencing parameters contained in section 97-3-79 are inapplicable to him. The circuit court properly adhered to section 97-3-79 in Parker’s sentencing. This issue is without merit.

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

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


author: STUART, Justice.

text:
    Jeffery STEELE v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    1091441.
    Supreme Court of Alabama.
    Dec. 3, 2010.
    Rehearing Denied March 11, 2011.

      Kenneth J. Lay, Legal Services Alabama, Inc., -Birmingham; and Rhonda Steadman Hood of Stirling & Hood, Birmingham, for appellant.
    Greggory M. Deitsch, Barry A. Rags-dale, and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham, for appellee.
   STUART, Justice.

The Federal National Mortgage Association (“Fannie Mae”) initiated an ejectment action against Jeffery Steele and his wife, Matilda Steele, in the Jefferson Circuit Court after acquiring title to the Steeles’ house pursuant to a foreclosure deed. The Steeles failed to file an answer to Fannie Mae’s complaint, and the trial court entered a default judgment in favor of Fannie Mae. Jeffery thereafter moved to set aside the default judgment; however, his motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Jeffery now appeals. We affirm.

I.

On May 16, 2005, the Steeles executed a mortgage on their house in Hueytown (“the property”) with NetBank; NetBank thereafter assigned the mortgage to Ever-home Mortgage Company. The Steeles subsequently defaulted on the mortgage, and, on June 30, 2009, Fannie Mae purchased the property from Everhome Mortgage at a foreclosure sale. On that same date, an attorney with Sirote & Permutt, P.C., which apparently represented both Fannie Mae and Everhome Mortgage, sent the Steeles a certified letter demanding possession of the property and informing them, pursuant to § 6-5-251, Ala.Code 1975, that the failure to deliver possession of the property within 10 days would result in the forfeiture of the right of redemption and the filing of an ejectment action against them. The letter, however, erroneously stated that the property had been purchased by Everhome Mortgage at the foreclosure sale instead of by Fannie Mae and purported to make the demand for possession on behalf of Everhome Mortgage.

On September 28, 2009, Fannie Mae filed an ejectment action against the Steeles in the Jefferson Circuit Court. They were served on September 30, 2009; however, after they failed to file an answer within the 30-day period following service as required by Rule 12(a), Ala. R. Civ. P., Fannie Mae moved the trial court to enter a default judgment pursuant to Rule 55, Ala. R. Civ. P. On November 10, 2009, the trial court granted Fannie Mae’s motion and entered a default judgment against the Steeles. On November 24, 2009, Jeffery filed a handwritten motion with the trial court asking it to set aside the default judgment and requesting a hearing. Jeffery subsequently obtained legal counsel, and, on February 3, 2010, he filed a second motion asking the trial court to set aside the default judgment, arguing that Fannie Mae had failed to make a demand for possession before initiating the ejectment action and that it therefore had no right to possession and no right to eject the Steeles from the property. Fannie Mae opposed Jeffery’s motion, arguing that there was no statutory requirement that it make a demand for possession before filing an ejectment action.

The trial court thereafter scheduled a hearing for March 3, 2010, on Jeffery’s motion to set aside the default judgment. However, on February 22, 2010 — before that hearing was held — Jeffery’s original motion to set aside the default judgment, filed on November 24, 2009, was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., because the trial court had failed to rule on it within 90 days. On March 31, 2010, the trial court nevertheless entered an order purporting to deny the motion and, on that same day, Jeffery filed his notice of appeal.

II.

Typically, this Court reviews a trial court’s decision granting or denying a motion to set aside a default judgment to determine whether the trial court, in so deciding, exceeded its discretion. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 603 (Ala.1988). However, this Court has previously determined that the judgment that results from a trial court’s failure to rule on a motion subject to denial by operation of law under Rule 59.1 is not automatically entitled to the same deference that is afforded a judgment arrived at after due deliberation. Edgar v. State, 646 So.2d 683, 686-87 (Ala. 1994); and Perdue v. Gates, 403 So.2d 165 (Ala.1981). Although in this case the trial court entered an order purporting to affirmatively deny Jeffery’s motion to set aside the default judgment entered against him and his wife, that motion had already been denied by operation of law pursuant to Rule 59.1; the order purporting to deny the motion was therefore void, and it is without effect. See Rabb v. Estate of Harris, 953 So.2d 401, 403 (Ala.2006) (“However, [the trial court’s] order was void for lack of jurisdiction because, pursuant to Rule 59.1, Ala. R. Civ. P., [the appellant’s] postjudgment motion had already been denied by operation of law....”). Accordingly, because the trial court took no valid action indicating that the decision to deny Jeffery’s motion was the product of due deliberation, wé review Jeffery’s motion to set aside the default judgment de novo, applying the analysis mandated by Kirtland.

“Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider T) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ Kirtland, 524 So.2d at 605.”

Sampson v. Cansler, 726 So.2d 632, 633 (Ala.1998).

III.

On appeal, Jeffery argues that Fannie Mae was required to serve a written demand for possession upon him before proceeding with its ejectment action and that its failure to do so deprived it of standing; accordingly, he argues, the default judgment entered by the trial couyt is void for lack of subject-matter jurisdiction. Jeffery also argues that the default judgment should be set aside under Kirtland because, he argues, he has a meritorious defense to the ejectment action based on Fannie Mae’s failure to serve him with a demand for possession before filing its ejectment action. He further asserts that Fannie Mae will not be prejudiced if the default judgment is set aside and that the default judgment is not the result of his own culpable conduct. The success of these arguments ultimately hinges on the same issue— whether Fannie Mae was required to serve Jeffery with a written demand for possession before filing the instant ejectment action — and we accordingly focus our analysis on that inquiry.

In support of his argument that Fannie Mae was required to serve him with a demand for possession before initiating an ejectment action, Jeffery cites Jones v. Butler, 286 Ala. 69, 71, 237 So.2d 460, 462 (1970), in which this Court stated:

“We here note that when this, the original mortgage and foreclosure deed, or certified copies of the record thereof, were introduced in evidence, cowpled, with proof of demand for possession, and failure to deliver possession, such introduction made out a prima facie case for appellee in the ejectment trial. Title 62, Sec. 129, Code 1940, Recompiled in 1958; Act No. 327, General Acts 1931, p. 370; Ex.Sess.1933, pp. 122, 183.”

(Emphasis added.) Jones v. Butler therefore, Jeffery argues, indicates that a demand for possession is required, and Jeffery cites subsequent opinions of both this Court and the Court of Civil Appeals that have reaffirmed that principle. See, e.g., Muller v. Seeds, 919 So.2d 1174, 1177 (Ala.2005); Taylor v. Bryars, 602 So.2d 378, 380 (Ala.1992); Thompson v. Wachovia Bank, Nat’l Ass’n, 39 So.3d 1153, 1161-62 (Ala.Civ.App.2009); and Thompson v. First State Bank of Alabama, 503 So.2d 858, 860 (Ala.Civ.App.1987).

Fannie Mae, however, argues that Jones v. Butler is inapplicable to the present case because it brought its ejectment action against the Steeles under the modern ejectment statute, § 6-6-280, Ala.Code 1975, and Jones v. Butler involved an ejectment action brought under § 129, Title 62, Code of Alabama 1940 (Re-comp.1958), which is not the predecessor statute to § 6-6-280 and which has no counterpart in the 1975 Code. Fannie Mae further argues that subsequent opinions of this Court and the Court of Civil Appeals relying on Jones v. Butler after the enactment of § 6-6-280 did so in error and are accordingly due to be overruled. For the reasons that follow, we agree with Fannie Mae.

Actions in ejectment or actions in the nature of an action in ejectment are governed by § 6-6-280, and we are bound to interpret the language of that statute to mean exactly what it says. Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala.1998). Section 6-6-280 provides:

“(a) A plaintiff commencing an action for the recovery of lands or the possession thereof has an election to proceed by an action of ejectment or by an action in the nature of an action of ejectment as is provided in subsection (b) of this section.
“(b) An action for the recovery of land or the possession thereof in the nature of an action in ejectment may be maintained without a statement of any lease or demise to the plaintiff or ouster by a casual or nominal ejector, and the complaint is sufficient if it alleges that the plaintiff was possessed of the premises or has the legal title thereto, properly designating or describing them, and that the defendant entered thereupon and unlawfully withholds and detains the same. This action must be commenced in the name of the real owner of the land or in the name of the person entitled to the possession thereof, though the plaintiff may have obtained his title thereto by a conveyance made by a grantor who was not in possession of the land at the time of the execution of the conveyance thereof. The plaintiff may recover in this action mesne profits and damages for waste or any other injury to the lands, as the plaintiffs interests in the lands entitled him to recover, to be computed up to the time of the verdict.”

This language is clear, and there is no requirement in § 6-6-280 that a party ■with superior title to the land make any demand for possession to an unlawful possessor before initiating an ejectment action. Rather, the statute unambiguously states that a complaint seeking ejectment “is sufficient if it alleges that the plaintiff was possessed of the premises or has the legal title thereto, properly designating or describing them, and that the defendant entered thereupon and unlawfully withholds and detains the same.” In the present case, there is no dispute that the complaint filed by Fannie Mae complied with § 6-6-280 inasmuch as it alleged (1) that Fannie Mae held legal title to the property and (2) that the Steeles were nevertheless unlawfully withholding possession of it. Accordingly, the mere fact that Fannie Mae failed to formally demand possession of the property from the Steeles before initiating the ejectment action does not provide Jeffery with a meritorious defense to that action. The trial court accordingly did not err by failing to grant Jeffery’s motion to set aside the default judgment entered against him.

We note that Jones v. Butler was correctly decided because § 129, Title 62, Code of Alabama 1940 (Recomp.1958), which it was construing, does indicate that a demand for possession should be made before an action for ejectment may be maintained in certain jurisdictions; however, Muller, Taylor, Thompson v. Wachovia Bank, and Thompson v. First State Bank of Alabama, to the extent they relied upon Jones v. Butler for the proposition that such a demand for possession is required even after the enactment of § 6-6-280, which on its face contains no such requirement, were not. We, therefore, overrule those cases in that regard. Thompson v. Wachovia Bank is also overruled to the extent that it relied on § 6-5-251 to conclude that a demand for possession must be made before initiating an ejectment action. 39 So.3d at 1162 (“Based on § 6-5-251 (a) and the quote from Jones v. Butler, we conclude that Wachovia did not have a right to immediate possession of the property until 10 days after it made demand for possession of the property on September 25, 2007, and that its ejectment claim did not accrue until [the parties in possession] failed to deliver possession 10 days after Wachovia made that demand for possession.”). Section 6-5-251 concerns redemption rights, not an action for ejectment, and provides only that a party failing to deliver possession within 10 days after receiving a written demand for possession forfeits his statutory right to redeem the property.

IV.

The trial court entered a default judgment in favor of Fannie Mae and against Jeffery in the ejectment action filed by Fannie Mae. On appeal, Jeffery has argued that the default judgment should have been set aside because Fannie Mae failed to serve him with a formal demand for possession before initiating the ejectment action. However, because the ejectment statute, § 6-6-280, does not require that such a demand be made, the trial court did not err by failing to set aside the default judgment, and the judgment is hereby affirmed.

AFFIRMED.

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

      . Jeffery’s wife Matilda is not a party to this appeal.

      . Although Jeffery has framed this argument in standing terms, Fannie Mae's standing to bring this action has not actually been implicated. See Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1220 (Ala. 2010) (" ‘[The appellee] appears to argue that plaintiffs lack standing because they have no legal right to the relief they seek. [The appel-lee] has confused standing with failure to state a claim. The two are conceptually distinct: when standing is at issue, the court asks whether the plaintiffs are the proper parties to bring the action, whereas failure to state a claim focuses not on the parties but on the existence of a cause of action (i.e., on the merits). Kirby v. Department of HUD, 675
        F.2d 60, 63-64 (3d Cir.1982); Bowman v. Wilson, 672 F.2d 1145, 1151 n. 10 (3d Cir. 1982).'" (quoting Angleton v. Pierce, 574 F.Supp. 719, 726 (D.N.J.1983))).

      . Having concluded that Jeffery has not alleged a meritorious defense, we need not consider whether Fannie Mae would be prejudiced if the default judgment is set aside or whether the entry of the default judgment was the result of Jeffery’s own culpable conduct. See Kirtland, 524 So.2d at 605.


author: WOODALL, Justice.

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. George MARTIN).
    1091450.
    Supreme Court of Alabama.
    Jan. 7, 2011.
    Rehearing Denied March 11, 2011.

      Troy King, atty. gen., and Jon B. Hayden, asst. atty. gen., for petitioner.
    John H. Sharer of Gibson, Dunn & Crutcher LLP, Los Angeles, California; and Bryan A. Stevenson and Aaryn M. Urell, Equal Justice Initiative of Alabama, Montgomery, for respondent.
   WOODALL, Justice.

On May 6, 2010, Mobile Circuit Judge Robert Smith entered an order granting George Martin discovery of the entire investigation file of the Mobile Police Department. The State petitions this Court for a writ of mandamus directing the trial court to vacate that discovery order. See Rule 21(e)(1), Ala. R.App. P. The petition is denied.

The parties have been battling over discovery for several years. Martin filed a Rule 32, Ala. R.Crim. P., petition in 2006 and promptly sought discovery of the prosecution’s files, which, according to the State, are “one and the same” as the Mobile Police Department’s investigation file. Petition, at 3. Hereinafter, we will simply refer to that investigation file as “the file.” After a hearing, the trial court granted the motion and ordered discovery of the file. The State then petitioned the Court of Criminal Appeals for a writ of mandamus.

In a written opinion, the Court of Criminal Appeals granted the State mandamus relief with regard to the discovery of the file. Ex parte State, 4 So.3d 1196 (Ala. Crim.App.2008). Martin based his claim to discovery of the file on allegations “that the State had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose [26 items of] exculpatory evidence.” 4 So.3d at 1200. After a hearing, “[t]he circuit court agreed that some of [these] claims were proeedurally barred or merit-less.” Id. Nevertheless, the trial court granted the discovery motion and ordered production of the file.

The Court of Criminal Appeals concluded that the trial court had not adequately considered the good-cause standard for postconviction discovery addressed in Ex parte Land, 775 So.2d 847 (Ala.2000), or cases of the Court of Criminal Appeals holding “that a petitioner is not entitled to discovery in a Rule 32 proceeding if the discovery relates to issues that are procedurally barred.” 4 So.3d at 1198. Therefore, the Court of Criminal Appeals vacated the discovery order as to the file and directed the trial court to “comply with [these] cases when considering Martin’s discovery motion.” 4 So.3d at 1202.

In September 2008, Martin filed an amended motion seeking discovery of the file. In January 2009, the trial court entered another order granting Martin access to the file. The State again petitioned the Court of Criminal Appeals for a writ of mandamus. In resolving this second petition, the Court of Criminal Appeals did not address the merits of the discovery issue. Instead, in an order issued on September 17, 2009, it held that an intervening appeal by the State of the trial court’s order granting in part Martin’s Rule 32 petition had deprived the trial court of jurisdiction to enter the discovery order, and, for that reason, it declared the order void and directed the trial court to set it aside.

Thereafter, in May 2010, the trial court issued another discovery order regarding the file. The order incorporated the January 2009 order, as well as Martin’s amended discovery motion, and found that Martin had established “good cause” and had pleaded “facially meritorious claims.” The State then filed its third mandamus petition in the Court of Criminal Appeals. On July 13, 2010, the Court of Criminal Appeals, by order, denied the State’s petition. On July 23, the State filed its petition for a writ of mandamus in this Court.

The State’s petition raises two issues. The first is whether the trial “court’s discovery order indicated] that it made an independent review of the claims in Martin’s amended motion for discovery.” Petition, at 9. The second is whether the trial “court abused its discretion in finding that Martin demonstrated good cause for discovery of the ... file.” Petition, at 20. For the reasons discussed below, we conclude that the State is not entitled to review of the trial court’s discovery order by way of a petition for a writ of mandamus.

“ ‘[P]ostconviction proceedings filed pursuant to Rule 32[, Ala. R.Crim. P.,] are civil proceedings.’ State v. Hutcherson, 847 So.2d 378, 383 (Ala.Crim.App.2001).” Ex parte Wright, 860 So.2d 1253, 1254 (Ala.2002). Although the State has only a limited right to appeal in a criminal case, see Ex parte King, 23 So.3d 77, 78-79 (Ala.2009), the State, pursuant to Rule 32.10(a), Ala. R.Crim. P., has the right to appeal to the Court of Criminal Appeals a circuit court’s decision on a Rule 32 petition.

Mandamus is an extraordinary remedy, and “[t]his Court will not issue the writ of mandamus where the petitioner has 1 “full and adequate relief’ ’ by appeal.” Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972), quoting in turn State v. Williams, 69 Ala. 311, 316 (1881)). Further, “this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ocwen, 872 So.2d at 813. Consequently, in seeking review of the trial court’s discovery order by a petition for a writ of mandamus, it would appear that the State “has an affirmative burden to prove” that “trial court clearly exceeded its discretion” and that the State “does not have an adequate remedy by ordinary appeal.” Id.

The State points out that “[t]his Court has held that ‘mandamus [is] the proper avenue for appellate review of [postconviction discovery] orders.’ Ex parte Turner, 2 So.3d 806, 811 (Ala.2008).” Petition, at 11. Although this is true, the State makes no effort to explain why it does not have an adequate remedy by appeal. “The burden rests on the petitioner to demonstrate that its petition presents ... an exceptional case — that is, one in which an appeal is not an adequate remedy.” Ocwen, 872 So.2d at 814 (emphasis added). Thus, if the two-part Ocwen standard applies in a case involving postconviction discovery, the State’s petition must be denied. We hold that that standard does apply in such a case; therefore, we deny the State’s petition.

In prior cases, this Court has not applied the Ocwen standard in addressing mandamus petitions seeking review of discovery orders in Rule 32 proceedings. Land predated Ocwen and has been relied upon in some post-Ocwen cases for the proposition that mandamus is the proper avenue for appellate review of discovery orders in postconviction proceedings. See, e.g., Turner, 2 So.3d at 810-11, and Perkins, 941 So.2d at 245. However, in our post-Ocwen cases, we have never addressed the applicability of Ocwen’s two-prong standard in cases such as this. Our oversight in failing to apply that standard is no excuse for a continued failure to adhere to the principles carefully crafted in Ocwen, in which “ ‘this Court announced that it would no longer review discovery orders pursuant to extraordinary writs,’ ” Ex parte St. Vincent’s Hosp., 991 So.2d 200, 207 (Ala.2008) (quoting Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136-37 (Ala.2003)), except in those exceptional cases in which the petitioner can demonstrate that an appeal will not provide an adequate remedy. We see no reason these principles should not apply to mandamus review of postconviction discovery orders. As already mentioned, trial courts are vested with discretion regarding postconviction discovery requests, and each party has the right to appeal from the trial court’s decision on a Rule 32 petition. To the extent that Land, Turner, Perkins, and any other cases are inconsistent with this opinion, those cases are hereby overruled.

For these reasons, the State’s petition for a writ of mandamus is denied.

PETITION DENIED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . Martin, a former State Trooper, was convicted of the 1995 murder of his wife, made capital because it was done for pecuniary gain. See § 13A-5-40(a)(7), Ala. Code 1975. The trial court, overriding the jury’s recommendation, sentenced Martin to death. Martin’s conviction and sentence were ultimately affirmed on direct appeal. See Martin v. State, 931 So.2d 774 (Ala.Crim.App.2005).

      . Also, the Court of Criminal Appeals stated that "[t]he circuit court may direct Martin to file a new discovery motion given that Martin has filed an amended Rule 32 petition.” 4 So.3d at 1202.

      . "Circuit courts are vested with discretion in deciding whether to grant postconviction discovery requests.” Ex parte Perkins, 941 So.2d 242, 245 (Ala.2006).