text:
    L.D. FOXWORTH, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00453-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.
    Scott Phillips, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL, and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. L.D. Foxworth was convicted of child molestation and sentenced to fifteen years in the Mississippi Department of Corrections (MDOC). He appealed, but we upheld his conviction in Foxworth v. State, 982 So.2d 453, 454-55 (¶ 1) (Miss.Ct.App.2007). He subsequently filed a motion for post-conviction relief (PCR) after first obtaining the Mississippi Supreme Court’s permission. However, after conducting an evidentiary hearing, the Marion County Circuit Court dismissed Fox-worth’s PCR motion. Aggrieved, Fox-worth appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Foxworth was convicted of child molestation based on evidence that he touched a twelve-year-old girl’s breast and her “private part.” Id. at 455 (¶4). On September 8, 2006, the circuit court sentenced Foxworth to fifteen years in the custody of the MDOC. On November 9, 2010, the supreme court granted Fox-worth’s motion for leave to file a PCR motion.

¶ 3. Foxworth filed his PCR motion approximately one month later. Foxworth claimed that he had new evidence that the victim, Tonya, had recanted her testimony. Foxworth attached Clem Knox’s affidavit to his PCR motion. According to Knox’s affidavit, Tonya had told him and other people that she felt guilty because, contrary to her testimony at Foxworth’s trial, Foxworth had not touched her inappropriately.

¶ 4. The circuit court entered an order directing the State to file an answer to Foxworth’s PCR motion. As of January 26, 2011, the State had not filed an answer. Consequently, Foxworth filed a motion for summary judgment. Two days later, the State filed a motion for additional time to file an answer. The State claimed that it filed its motion for additional time on the same day that it had first received a copy of the circuit court’s order directing the State to file a response. The circuit court granted the State’s motion for additional time.

¶ 5. In its answer, the State noted that Tonya was not the only witness who had testified that Foxworth touched Tonya inappropriately. One of Tonya’s adult male relatives corroborated Tonya’s testimony. Specifically, Tonya’s adult male relative testified that he had seen Foxworth with his hand down Tonya’s shirt. The State also noted that Foxworth had not produced an affidavit from Tonya. Instead, Foxworth had indicated that he would “potentially” call Tonya to testify. Accordingly, the State requested that the circuit court deny Foxworth’s PCR motion.

¶ 6. On March 2, 2011, the circuit court conducted an evidentiary hearing on Fox-worth’s PCR motion. Foxworth was transported to the Marion County courthouse so that he could attend the hearing. Foxworth first called Knox to testify. Knox testified that he heard Tonya tell his daughter that Foxworth had not touched her inappropriately. On cross-examination, Knox was asked whether he had told Tonya that someone would pay to get one of her relatives released from prison if Tonya would recant her testimony against Foxworth. Knox denied that allegation. Knox’s daughter, Allyssa, also testified that Tonya had recanted her trial testimony. Knox’s other daughter, Keyonna, corroborated Allyssa’s testimony. Foxworth rested after Keyonna testified.

¶ 7. On March 4, 2011, the circuit court entered an order dismissing Foxworth’s PCR motion. The circuit court cited Rushing v. State, 873 So.2d 116, 119-20 (¶ 6) (Miss.Ct.App.2003), and noted that this Court had affirmed a denial of a PCR motion where a PCR petitioner chose not to call a victim at the evidentiary hearing to recant her trial testimony. Because Foxworth had not called Tonya to recant her testimony, the circuit court dismissed Foxworth’s PCR motion. Foxworth appeals.

STANDARD OF REVIEW

¶ 8. In reviewing a circuit court’s decision to dismiss a motion for post-conviction relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Evans v. State, 61 So.3d 922, 924 (¶ 7) (Miss.Ct.App.2011). “However, we review questions of law de novo.” Id.

ANALYSIS

I. ADDITIONAL TIME TO ANSWER

¶ 9. Foxworth claims the circuit court erred when it gave the State additional time to file an answer. To support his claim, Foxworth cites American States Ins. Co. v. Rogillio, 10 So.3d 463, 472 (¶ 24) (Miss.2009), for the principle that “the duty to answer must be taken seriously.” However, Foxworth does not address the fact that the. State claimed that it had not received notice of the circuit court’s order directing it to file an answer until the date it moved for additional time. Likewise, Foxworth does not offer any proof that the State actually had received notice of the circuit court’s order prior to the date that the State moved for additional time. Moreover, Foxworth cites no authority for his position that the circuit court committed reversible error when it granted the State’s motion for additional time. Foxworth is obligated to support his contention with authority. See M.R.A.P. 28(a)(6). Under the circumstances, we do not find that the circuit court erred when it granted the State’s motion for additional time to respond to Foxworth’s PCR motion. There is no merit to this issue.

II. SUMMARY JUDGMENT

¶ 10. Foxworth claims the circuit court erred when it did not grant his motion for summary judgment after the State had not obeyed the circuit court’s order to file an answer. Foxworth’s claim under this heading depends on our finding merit to his first issue. However, we have already found that claim is meritless. It follows that this issue is equally meritless.

III.DISMISSAL

¶ 11. Finally, Foxworth claims the circuit court erred when it dismissed his PCR motion. He reiterates the testimony of his witnesses during- the evidentiary hearing. He also claims the circuit court placed undue emphasis on the fact that Tonya had not personally recanted her testimony.

¶ 12. The circuit court correctly stated that it had “the right and duty ... to deny a new trial where it is not satisfied that such recantation testimony is true.” Rushing, 873 So.2d at 119-20 (¶6). Although Foxworth called three witnesses who testified at the PCR evidentiary hearing that they heard Tonya recant her trial testimony, there was no direct evidence from Tonya that she had done so. Furthermore, there was no evidence that Tonya’s adult male' relative had recanted his testimony corroborating Tonya’s testimony. We do not find that the circuit court abused its discretion when it declined to find that Foxworth had met his burden of proof. It follows that we find no merit to this issue.

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

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

      . We use a fictitious name to protect the victim’s identity.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Kirby SHAVERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00876-COA.
    Court of Appeals of Mississippi.
    July 31, 2012.
    Kirby Shavers, appellant, pro se.

      Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Kirby Shavers pleaded guilty in the Rankin County Circuit Court to rape, kidnapping, burglary of a dwelling, grand larceny, and aggravated assault. The trial court sentenced Shavers as follows: seventeen years for rape, fifteen years for kidnapping, twenty-five years for burglary of a dwelling, five years for grand larceny, and twenty years for aggravated assault. The sentences for the rape and burglary convictions were ordered to run concurrently, while the remaining sentences were ordered to run consecutively to each other and to the sentences for rape and burglary.

¶2. Shavers filed a motion for post-conviction relief, asking the trial court to reduce his sentence. The trial court determined Shavers was not entitled to relief and dismissed his motion. Shavers now appeals from that dismissal.

STANDARD OF REVIEW

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

DISCUSSION

¶ 4. Shavers’s arguments on appeal are unclear, but it appears he raises questions concerning double jeopardy, the legality of his sentence, and the permissibility of his multi-count indictment. In regard to any argument concerning a multi-count indictment, we find this issue was waived as a result of Shavers’s guilty plea. See Grissom v. State, 66 So.3d 1280, 1282 (¶ 9) (Miss.Ct.App.2011) (guilty plea constitutes a waiver of all technical or non-jurisdictional defects in an indictment).

¶ 5. In regard to the double-jeopardy claim, Shavers appears to argue he was punished multiple times for the same offense — the burglary charge. However, “separate offenses, though committed under a common nucleus of operative fact, do[] not present a legal impediment to multiple prosecutions under the double jeopardy clause of both the federal and the state constitutions.” Henley v. State, 749 So.2d 246, 249 (¶12) (Miss.Ct.App.2009) (citing Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Lee v. State, 469 So.2d 1225, 1229 (Miss.1985)). This argument is without merit.

¶ 6. In regard to whether Shavers’s sentence was excessive, it is clear from the plea colloquy Shavers was aware of the maximum and minimum sentences for each crime. The trial court acknowledged the effect of these sentences, which meant Shavers, who was approximately fifty years old at the time of the plea hearing, would spend the rest of his life in prison. However, the trial court stated it had imposed the sentences in light of the nature and severity of Shavers’s crimes and his prior criminal history. Each sentence Shavers received was within the statutory limits. Therefore, this argument is without merit.

¶ 7. Shavers also contends he was entitled to a sentence reduction on account of his deteriorating physical health and because he was drunk and/or on drugs at the time he committed the crimes charged. Shavers failed to present such evidence during his guilty plea or during his sentencing hearing; thus, his arguments are waived. See Miss.Code Ann. § 99-39-21(1) (Rev.2007).

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

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


author: PARKER, Justice. BOLIN, Justice

text:
    GOLDEN GATE NATIONAL SENIOR CARE, LLC, et al. v. Donald ROSER, as the administrator ad litem of the estate of Laura Roser.
    1091261.
    Supreme Court of Alabama.
    April 13, 2012.
    W.H. Albritton IV, James F. Henry, and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham; and W. Benjamin Broadwater and D. Brian Murphy of Alford, Clausen & McDonald, LLC, Mobile, for appellants.
    Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Jason N. Young of Marks, Balete & Gies-sel, P.C., Houston, Texas, for appellee.
   PARKER, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

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

BOLIN, MURDOCK, and MAIN, JJ., concur specially.

SHAW, J., dissents.

BOLIN, Justice

(concurring specially).

I agree with this Court’s affirmance of the trial court’s judgment denying the motion to compel arbitration filed by Golden Gate National Senior Care, LLC, and the other appellants. I write specially concerning the aspect of this case that allowed a wrongful-death action to be filed by Donald Roser, as an administrator ad litem of his mother’s estate, against Golden Gate and other defendants for the alleged wrongful death of his mother. Based upon the reasoning below, it is my judgment that such an action may be instituted only by a personal representative, not by an administrator ad litem.

The purpose of Alabama’s -wrongful-death statute is the protection of human life and the prevention of homicides by wrongful act, omission, or negligence of persons or corporations. Mattison v. Kirk, 497 So.2d 120 (Ala.1986). This Court addressed in Hatas v. Partin, 278 Ala. 65, 175 So.2d 759 (1965), the issue whether a foreign administratrix (with no ancillary proceeding in Alabama) could bring a wrongful-death proceeding in Alabama and answered in the affirmative. In so doing, the Court stated:

“The words ‘personal representative’ are broader in some respects, but when used in this statute, they can only mean the executor or administrator of the injured testator or intestate.
“This statute authorizes suit to be brought by the personal representative for a definite legislative purpose — to prevent homicide. In prosecuting such actions, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liability of the decedent. He acts rather as an agent of legslative appointment for the effectuation of the legislative policy .... And the right is vested in the personal representative alone. No one else, under any circumstances except in the case of the death of a minor child, where Tit. 7, § 119 give a preferred right to the father or mother, can maintain the action in any forum. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912 [ (1911) ]. ‘The only right or duty the administrator has is to maintain the suit, and collect the damages and pay them over to the distribu-tees. He is a mere agency and conduit, provided by the statute for bringing the suit, collecting the damages, and passing them over to those entitled thereto.’ Kennedy v. Davis, 171 Ala. 609, 55 So. 104 [ (1911) ].”

278 Ala. at 67-68,175 So.2d at 761.

Later cases, albeit where an administrator ad litem was not appointed, have cited Hatas for the need of a personal representative to bring the action, such as in actions filed by a son alleging the wrongful death of his father, Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), and by the parents of an adult son, Brown v. Mounger, 541 So.2d 463 (Ala.1989).

The case that arguably created the practice of appointing an administrator ad li-tem to file a wrongful-death action is Franks v. Norfolk Southern Railway, 679 So.2d 214 (1996). There, the decedent had died in a train collision, and her brother was appointed to serve as personal representative. The personal representative had personally incurred debt with regard to his deceased sister’s funeral and being reimbursed for this expense was his main concern in serving as the personal representative of her estate. It appeared that the personal representative had no interest in pursuing a wrongful-death action and was serving only his own interests in administering the estate. According to the circuit court’s order, the probate court, without any notice to the personal representative, appointed an administrator ad litem to file the wrongful-death action. This was done not only without notice to the personal representative, but also without any hearing or testimony or other evidence presented to the probate court. The proper remedy would have been a motion to remove the personal representative for failing to carry out the duties of his office, so that a successor personal representative could be appointed. See § 43-2-290(2), Code of Ala.1975 (“An administrator or executor may be removed, and his letters revoked for ... (2) ... the failure to do any act as such executor or administrator, when lawfully required by the judge of probate.”). This Court’s rationale in Franks turned on the fact that the administrator ad litem had been appointed by the probate court, not the circuit court in which the wrongful-death action was pending, and that a challenge to the probate court’s appointment of the administrator ad litem in the circuit court would constitute a collateral attack on the appointment. However, even if an administrator ad litem was properly substituted for the personal representative for the purpose of filing a wrongful-death action, I question the wisdom of this rationale, because the defendant in a wrongful-death action would never have advance notice that a probate court was appointing an administrator ad litem before the wrongful-death action was filed, so as to be notified and enabled to file a timely appeal of that ruling. Also, the personal representative received no notice of the ex parte hearing regarding the appointment of the administrator ad litem and therefore was unable to file an appeal. Justice Houston, in his special writing in Franks, after recognizing that the defendant in a civil action has standing to challenge the capacity of a plaintiff to bring the action, then proceeded to distinguish an administrator ad litem from an administrator de bonis non (a personal representative appointed to collect and administer personal estate assets not administered in a prior probate proceeding) and finished his writing with the following dietionary-based ground for allowing an administrator ad litem to bring the wrongful-death action:

“The defendant predicates a great deal of its argument on the nature of the Alabama wrongful death action. I shall not commence a discussion of this Court’s interpretation of § 6-5-410, [Ala.Code 1975,] because I have filled too many pages of Southern Reporter over too long a time with my protestations. See Tatum v. Schering Corp., 523 So.2d 1042 (Ala.1988) (Houston, J., dissenting), and Smith v. Schulte, 671 So.2d 1334 (Ala.1995) (Houston, J., dissenting). Suffice it to say that, in my opinion, an administrator ad litem is a personal representative. A ‘representative’ is ‘[a] person ... that in some way corresponds to, stands for, replaces, or is equivalent to, another person.’ Black’s Law Dictionary 1302 (6th ed.1991). The adjective ‘personal’ is defined as ‘[appertaining to the person’ belonging to an individual; limited to the person.’ Black’s Law Dictionary 1143 (6th ed.1991). Steve Franks stands for and replaces the deceased Georgia Franks in this action; clearly, he is a personal representative.”

679 So.2d at 219. Neither the main opinion nor the special writing in Franks discussed Rule 9(a), Ala. R. Civ. P., which provides that in order to challenge a party’s capacity to sue, one must raise the challenge by “specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” A general denial of capacity is insufficient to satisfy Rule 9(a). Alabama Power Co. v. White, 377 So.2d 930 (Ala.1979). Further, the defense of lack of capacity can be waived. Id. Athough the defendant in Franks had raised the issue of lack of the plaintiffs capacity to bring the suit as an administrator ad litem in an initial motion to dismiss, its subsequent motion for a summary judgment ignored this issue as did the plaintiffs appeal from the summary judgment; the issue was thereby waived. Rather than focusing on whether the plaintiff in Franks had the capacity to file a wrongful-death action or whether the defendant had waived that defense, Franks simply stands for the proposition that one cannot by filing an action in one court collaterally attack the judgment of another court.

This brings us to Affinity Hospital, LLC v. Williford, 21 So.3d 712 (Ala.2009). In Williford, the mother of a decedent who had committed suicide at Trinity Medical Center petitioned the Jefferson County Probate Court to appoint the county administrator, Doris Williford, as administrator ad litem. The request was made in order to obtain medical records held by Trinity Medical Center for an investigation to determine whether there were grounds to assert a wrongful-death claim. The probate court granted the petition. Thereafter, without any subsequent appointment of Williford as a personal representative of the decedent’s estate by the probate court, Williford, as administrator ad litem, filed a wrongful-death action in the circuit court. Trinity answered and challenged Williford’s authority to file the action as an administrator ad litem. Willi-ford then petitioned the Jefferson County Probate Court for an appointment as personal representative of the decedent’s estate, which petition was granted. The next day, Williford amended her wrongful-death complaint to substitute herself as personal representative for herself as administrator ad litem, more than two years after the decedent’s death. Trinity moved to dismiss the amended complaint, which motion the circuit court denied. However, in a permissive appeal pursuant to Rule 5, Ala. RApp. P., the circuit court certified the controlling question of law as whether the administrator ad litem had the “capacity” to file the wrongful-death action. After discussing Franks and Justice Houston’s special writing in that case, this Court answered the question from the circuit court by correctly stating that Trinity had cited no authority for the proposition that an administrator ad litem lacked the powers of a personal representative for the purpose of prosecuting a wrongful-death action and that nothing in § 43-2-250, Code of Ala.1975, forbids an administrator ad litem from taking such action. The appellant’s failure to find or to cite any previous decision on the issue and the absence of express language in § 43-2-250 forbidding an administrator ad litem from taking such action do not necessarily mean that the law does in fact empower an administrator ad litem to prosecute a wrongful-death action.

Williford further mentions that the definition of “personal representative” in § 43-8-1(24), Code of Ala.1975, includes persons who perform substantially the same function as executors and administrators and that, therefore, administrators ad litem could be included within that definition. However, this is not sufficient to show compliance with the legislative mandate in § 6-5^410, Code of Ala.1975, as to who is to assume the quasi-trustee role in bringing a wrongful-death action. Justice Murdock’s special writing in Ex parte Taylor, 93 So.3d 118 (Ala.2012) (Murdock, J., writing specially), discusses the special role delegated to a personal representative by § 6-5-410 and the proper distribution of proceeds derived from a wrongful-death action, when the probate court has issued an order concerning the distribution of such proceeds:

“[T]he proceeds from the settlement of the wrongful-death claim that arose out of Newman’s death are not a part of Newman’s estate. See, e.g., Steele v. Steele, 623 So.2d 1140, 1141 (Ada.1993) (‘[D]amages awarded pursuant to [§ 6-5-410] ... are not part of the decedent’s estate.’).
“This Court has long recognized that, “ ‘[i]n prosecuting [wrongful-death] actions, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy .... ’
“Hatas v. Partin, 278 Ala. 65, 68, 175 So.2d 759, 761 (1965); see also Steele, 623 So.2d at 1141 (noting that the ‘personal representative ... act[s] as agent by legislative appointment for the effec-tuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages’). ‘Upon a recovery, [the personal representative] acts as a quasi trustee for those who are entitled thereto under the statute of distribution. Such damages are not subject to administration and do not become part of the deceased’s estate.’ United States Fid. & Guar. Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 155, 274 So.2d 615, 621 (1973). Indeed, commenting on an earlier version of Alabama’s wrongful-death statute, this Court noted that the legislature has
“ ‘impose[d] upon the administrator a trust separate and distinct from the administration. The trust is not for the benefit of the estate, but of the widow, children, or next of kin of the deceased. The administrator fills this trust, but he does not do it in the capacity of representative of the estate. It is altogether distinct from the administration, notwithstanding it is filled by the administrator.’
“Hicks v. Barrett, 40 Ala. 291, 293 (1866) (discussing Ala.Code of 1852, § 1938).”

93 So.3d at 119.

It is noteworthy that the predecessor section to § 43-2-250 regarding administrators ad litem was first enacted in 1876, while it was the later Code of 1886 that moved the “Act to Prevent Homicides,” the original wrongful-death statute, from the criminal-law index to the civil-law index, so the legislature was aware of the then relatively new concept in Alabama of administrators ad litem. See generally Ex parte Fontaine Trailer Co., 854 So.2d 71, 83 (Ala.2003) (noting that “‘the Legislature, in enacting new legislation, is presumed to know the existing law’ ” (quoting Blue Cross & Blue Shield of Alabama v. Nielsen, 714 So.2d 293, 297 (Ala.1998))). The legislature could have listed administrators ad litem as proper parties, or alternate parties, to bring a wrongful-death proceeding if it had chosen to do so. See Noonan v. East-West Beltline, Inc., 487 So.2d 237, 239 (Ala.1986) (“It is not proper for a court to read into the statute something which the legislature did not include although it could have easily done so.”).

The requirements for prosecuting a wrongful-death action in Alabama are contained in § 6-5-410, Code of Ala.1975, which provides:

“(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.
“(c) The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.”

(Emphasis added.)

As set forth above in § 6-5-410(a), the legislature designated that a wrongful-death proceeding may be commenced by “[a] personal representative.” No other person was statutorily authorized to bring the action. Wrongful-death actions were unknown to the common law, Waters v. Hipp, 600 So.2d 981 (Ala.1992), and hence the statutes conferring the right to bring such an action must be strictly construed. Johnson v. Brunswick Riverview Club, Inc., 39 So.3d 132 (Ala.2009) (statutory remedies for rights unknown to the common law are to be strictly construed). An administrator ad litem was also unknown to Alabama law prior to the enactment in 1876 of the first statute addressing administrators ad litem. Ex parte Riley, 247 Ala. 242, 23 So.2d 592 (1945). As set out below, the role of an administrator ad li-tem is limited, and an administrator ad litem has never been known to be a substitute for a personal representative.

Administrators ad litem in Alabama are provided for in § 43-2-250, which along with the six related sections that follow it, constitute Article 11 of Title 43, the title of the Code dealing with the administration of estates and the Probate Code. It reads:

“When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein.”

(Emphasis added.) It accordingly is the “duty” of any court to appoint an administrator ad litem when there is a 'proceeding in a court in which the estate of a deceased person must be represented and either there is no administrator or executor or the executor or administrator is interested adversely to the estate. Thus, the need for an administrator ad litem occurs when there is already an existing civil proceeding (“in any proceeding in any court”) that is in need of someone to substitute for a deceased party, who either has no personal representative or has one who is conflicted. See Smith v. Tribble, 485 So.2d 1083 (Ala.1986) (discussing a request to appoint an administrator ad litem when there was an allegation that the executor and the potential defendant had a conflict of interest).

Here, an appointment was made for the very purpose of allowing the institution of a civil action:' a wrongful-death action. As stated earlier, prior to the enactment of the predecessor of § 43-2-250, the office of administrator ad litem was unknown to Alabama law, and the appointment of such an administrator was void. See Ex parte Riley, 247 Ala. at 250, 23 So.2d at 599, in which this Court stated:

“Under the statute three things must concur to justify the appointment: (1) The estate of the deceased person ‘must be represented,’ which means that the interests of the estate require representation. (2) ‘There is no executor or administrator of such estate, or he is interested adversely thereto.’ (3) ‘The facts rendering such appointment necessary shall appear in the record of such case, or shall be made known to the court by the affidavit of any person interested therein.’ ”

(Emphasis added.)

The decedent’s estate is not interested in a wrongful-death action or in any proceeds derived from such an action. Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911) (recognizing that the personal representative is acting only as a trustee for those who are the designated beneficiaries under the Wrongful Death Act). None of the proceeds pass through the estate, which would make them subject to the claims of creditors. The proceeds pass to the decedent’s heirs; this is true whether the administration is testate or intestate.

In conclusion, the strict interpretation of § 43-2-250 admits of two, and only two, circumstances where it is appropriate for a court to appoint an administrator ad litem. The first is when the estate of a deceased person must be represented and there is no executor or administrator of such estate; the second is when the estate of a deceased person must be represented and the executor or administrator is interested adversely to the estate. Neither circumstance is present in this case. For whatever reason, the legislature, having to designate a proper party to institute a wrongful-death action,' chose a “personal representative” to serve as such party. The personal representative may be only a nominal or formal party, but the personal representative commences the action as a statutory trustee for the benefit of designated beneficiaries of the statute — the decedent’s heirs — who are the real parties in interest. Both Pool and Mounger reversed the judgments of trial courts where parties other than a personal representative instituted a wrongful-death action. I submit that an administrator ad litem would not have been a proper party to fill the shoes of a personal representative to bring such action. However, Golden Gate failed to raise the issue of the capacity of an administrator ad litem to bring a wrongful-death action in its answer, and that defense is now waived. See Rule 9(a), Ala. R. Civ. P.; Alabama Power Co. v. White, supra.

MURDOCK and MAIN, JJ„ concur.


author: PER CURIAM. MURDOCK, Justice

text:
    Ex parte SOUTHEAST ALABAMA TIMBER HARVESTING, LLC, and Michael J. Smith. (In re Patricia Gail Webster v. Southeast Alabama Timber Harvesting, LLC, and Michael J. Smith).
    1110349.
    Supreme Court of Alabama.
    April 20, 2012.

      Connie Ray Stockham and Christopher Lee Shaeffer of Stockham, Carroll & Smith, P.C., Birmingham, for petitioners.
    Ted L. Mann of Mann & Potter, P.C., Birmingham; and Keith Thomas, Tuskegee, for respondent.
   PER CURIAM.

Southeast Alabama Timber Harvesting, LLC (“Southeast”), and Michael J. Smith petition this Court for a writ of mandamus directing the Chambers Circuit Court to vacate its order denying their motion to transfer the underlying action to Lee County on the ground of forum non conve-niens and to enter an order granting their motion. We grant the petition and issue the writ.

I. Facts and Procedural History

On February 22, 2011, a vehicle being driven by Patricia Gail Webster on Mar-vyn Parkway in Lee County allegedly collided with timber that had come loose from a tractor-trailer rig owned by Southeast and being driven by its employee, Smith, causing Webster serious injuries. Police officers who work in Lee County responded to the scene of the accident. After the accident, Webster was treated at East Alabama Medical Center in Lee County.

On April 18, 2011, Webster sued Southeast and Smith alleging negligent and/or wanton loading and/or securing load; negligent entrustment; negligent, reckless, and/or wanton violations of the rules of the road; negligent training, hiring, and supervision; and wanton and reckless conduct. Webster filed her action in the Chambers Circuit Court in reliance upon the venue provision of § 6-3-7(a)(2), Ala. Code 1975, providing that a county in which a corporation maintains its principal office in this state is a proper venue for an action against that corporation. Southeast’s principal office is located in Chambers County.

On May 19, 2011, Southeast and Smith filed answers to the complaint in which they asserted improper venue and the doctrine of forum non conveniens as defenses. On July 12, 2011, Southeast and Smith filed a motion for a change of venue in which they contended, based on § 6-3-21.1, Ala.Code 1975, that the case should be transferred to Lee County in the interest of justice and for the convenience of the parties and witnesses. Southeast and Smith filed exhibits in support of their motion, including an affidavit of David Lol-lis, the only known nonparty eyewitness to the accident, who averred that he lives and works in Lee County and that traveling to Chambers County for the trial would be “a significant burden” to him.

On October 18, 2011, Webster filed an opposition to Southeast and Smith’s motion for a change of venue.

On November 10, 2011, following a hearing, the circuit court entered an order denying the motion for a change of venue. Southeast and Smith timely filed a petition for a writ of mandamus seeking a review of the circuit court’s order.

II. Standard of Review

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for -the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

III. Analysis

Section 6-3-21.1 provides when an action must be transferred to another venue under the doctrine of forum non conve-niens:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

§ 6-3-21.1(a), Ala.Code 1975 (emphasis added). “A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.” Ex parte National Sec. Ins. Co., 727 So.2d at 789.

Southeast and Smith contend that both the interest of justice and the convenience of the parties and witnesses dictate the transfer of this case from Chambers County to Lee County. Because Southeast and Smith have demonstrated that the interest of justice requires a transfer of this case, we do not address the convenience of the parties and witnesses.

“The ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, ‘in analyzing the interest-of-justice prong of § 6-8-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth, 982 So.2d 484, 490 (Ala.2007). The petitioners in this case are thus required to demonstrate ‘ “that having the case heard in [Lee] County would more serve the interest of justice” ’ than having the case heard in [Chambers] County. Ex parte First Tennessee Bank, 994 So.2d at 909 (quoting Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006)).”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008).

Southeast and Smith emphasize that the only connection this case has to Chambers County is the fact that Southeast’s principal place of business is located in Chambers County. They cite several automobile-accident cases with procedural facts similar to those in this case in which this Court mandated that the ease should be transferred to the county in which the accident occurred.

For example, in Indiana Mills, Marcy Johnson, the widow of an employee of Sunflower Waste, LLC, sued Sunflower and some of its employees following an accident that caused her husband’s death. Johnson filed the action in Macon County, where one of the defendants resided and where Sunflower did business. Based on the doctrine of forum non conveniens, the defendants filed a motion for a change of venue to Lee County, the situs of the accident. The Macon Circuit Court denied the motion to transfer the ease, and the defendants filed a petition for a writ of mandamus in this Court. In granting the defendants’ petition, this Court explained:

“We agree that this case certainly has a connection with Macon County — as Marcy notes, Connerf, an individual defendant,] resides there and Sunflower conducts business there. Additionally, it is true that none of the parties in this case actually resides in Lee County. However, we nevertheless hold that the overall connection between Macon County and this case is weak and that the connection between the case and Lee County is strong.
“First and foremost, the accident occurred in Lee County. Lee County police and emergency personnel — the Ope-lika Police Department and the Opelika Fire Department — responded to the scene and investigated the accident. Additionally, Gene Manning, the chief deputy coroner of Lee County, investigated James’s death. He testified in an affidavit that all the work he performed in connection with the investigation took place in Lee County. Additionally Danny Cotney, the assistant fire chief of the Opelika Fire Department, testified that the various records and documents generated by the department are located in Lee County.
“On the other hand, the ‘connection’ or ‘nexus’ with Macon County in this case is weak. No party but Conner resides or is located there. Additionally, none of the relevant facts in this case , actually involve Macon County.”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d at 540-1 (footnote omitted).

Similarly, in Ex parte McKenzie Oil Co., 13 So.3d 346 (Ala.2008), Lee Franklin sued Gary Heathcock, the driver of a vehicle that struck the vehicle Franklin was driving, and McKenzie Oil Company, Inc., which operated a convenience store at which Heathcock had purchased alcoholic beverages before the accident. Franklin filed the action in Barbour County, where McKenzie’s corporate headquarters were located. Based on the doctrine of forum non conveniens, the defendants filed a motion for a change of venue to Escambia County, the situs of the accident. The Barbour Circuit Court denied the motion to transfer the case. The defendants then filed a petition for a writ of mandamus in this Court. In granting the defendants’ petition for a writ of mandamus, this Court observed:

“Franklin points out that McKenzie’s corporate headquarters is located in Barbour County; thus, Franklin claims that Barbour County and its citizens have an interest in McKenzie’s ‘well-being’ and a ‘significant interest in whether McKenzie’ has fulfilled its obligations as a vendor of alcoholic beverages.
“We agree that McKenzie has ‘a connection’ with Barbour County by virtue of the location of its corporate headquarters. However, we find this connection to Barbour County to be ‘little’ and the connection with Escambia County to be ‘strong.’ Ex parte National Sec. Ins. Co., [727 So.2d 788 (Ala.1998) ].
“... [W]e note that virtually none of the events or circumstances involved in this case occurred in or relate to Barbour County. Specifically, the accident giving rise to Franklin’s claims and the alleged tortious conduct by both Heath-cock and McKenzie took place in Escam-bia County. Law-enforcement personnel and medical personnel in Escambia County investigated the accident and treated Franklin’s injuries.... Heath-cock resides in Escambia County. For all that appears, all material events in this case, including the accident, occurred in Escambia County.
“Given this small nexus and little connection with the facts of this case to Barbour County and the strong connection with Escambia County, we hold that hearing the case in Escambia County ‘would more serve the interest of justice.’ Ex parte First Tennessee Bank [Nat’l Ass’n, 994 So.2d 906 (Ala.2008) ]. Therefore, McKenzie has demonstrated that the action is due to be transferred to Escambia County under Ala.Code 1975, § 6-3-21.1.”

Ex parte McKenzie Oil Co., 13 So.3d at 349-50.

Like the actions in Indiana Mills and McKenzie Oil, this action was filed in the county of a defendant’s residence or principal place of business — Chambers County — although the accident occurred in another county — Lee County. As this Court has observed: “Although it is not a talisman, the fact that the injury occurred in the proposed transferee county is often assigned considerable weight in an interest-of-justice analysis.” Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573-74 (Ala.2011). Also, as in the cases discussed above, the emergency personnel who responded to the accident in which Webster was injured work in the county to which Southeast and Smith seek to have the action transferred. Further, the only non-party eyewitness to the accident lives and works in Lee County, and Webster was living and working in Lee County at the time of the accident.

Webster has not even discussed, let alone attempted to distinguish, Indiana Mills, McKenzie Oil, or any of the other cases Southeast and Smith cited in support of transferring the ease, in the interest of justice, to Lee County. Instead, Webster simply argues that the interest-of-justice prong of the forum non conveniens statute supports the filing of an action in the home county of a defendant. She cites two cases in support of this proposition — Ex parte Yocum, 963 So.2d 600 (Ala.2007), and Ex parte City of Haleyville, 827 So.2d 778 (Ala.2002), both of which are easily distinguishable.

In Yocum, the plaintiff, a resident of Dallas County, filed her action in Jefferson County, the residence or principal place of business of two of the defendants. Several defendants who resided in Dallas County filed a motion to transfer the action to Dallas County on the basis of the doctrine of forum non conveniens. The Jefferson Circuit Court denied the motion to transfer, and this Court denied the defendants’ subsequent petition for a writ of mandamus. Unlike this case, Yocum involved a contract dispute in which the claims against the Jefferson County defendants included fraud, suppression, conversion, and interference with business relations. This Court concluded that the Jefferson Circuit Court did not exceed its discretion in denying the motion to transfer “[b]e-cause of the nexus between Jefferson County and the alleged participation of the two Jefferson County defendants in the alleged scheme to overcharge Cahaba Timber so as to deflate its profits and hence the amount due [the plaintiff].” Ex parte Yocum, 963 So.2d at 603. Thus, this Court denied the petition for a writ of mandamus seeking a transfer of the case from Jefferson County not simply because two of the defendants resided or had a principal place of business in Jefferson County, but because Jefferson County had a substantial connection to the matters giving rise to the action.

Haleyville involved an action filed in Marion County by a plaintiff who fell at the Downtown Mall of Haleyville, which is located in Winston County. The defendant, the City of Haleyville, filed a motion for a change of venue to Winston County based on § 6-3-11, Ala.Code 1975, the statute that controls venue for civil actions filed against municipalities. Webster argues that in Haleyville “the trial court and this Court did not feel that the interest of justice required that the plaintiff must prosecute her case in the county where she fell rather than her chosen forum.” Webster’s brief, p. 10. In fact, this Court did not address the interest-of-justice factor in Haleyville because the defendant’s motion to transfer the case was not based upon the doctrine of forum non conveniens. The City of Haleyville contended that venue was improper in Marion County, not that Winston County was a more appropriate or more convenient forum. Therefore, Haleyville provides no support for Webster’s position.

This Court has held that the “interest of justice” requires transferring an action to a county with a strong connection to the case as opposed to keeping it in a county with an overall weak connection. Chambers County’s sole connection with the case — that it is the principal place of business of Southeast — is weak in comparison to Lee County’s connection with the case.

TV. Conclusion

Based on the foregoing, we conclude that the circuit court exceeded its discretion in denying Southeast and Smith’s motion for a change of venue based on the doctrine of forum non conveniens. We therefore grant Southeast and Smith’s petition for the writ of mandamus and direct the circuit court, in the interest of justice, to enter an order transferring the case from the Chambers Circuit Court to the Lee Circuit Court.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I respectfully dissent from today’s decision. As I explained in my special writing in Ex parte Wachovia Bank, N.A., 77 So.3d 570 (Ala.2011) (Murdock, J., dissenting):

“With this Court’s recent interpretation of the ‘interest-of-justice’ prong of § 6-3-21.1, I believe we largely have negated the intended field of operation of statutory provisions such as [Ala.Code 1975,] § 6-3-2(a)(3). See also [Ala.Code 1975,] § 6-3-2(a)(2) (providing for actions on contracts brought against an individual to be commenced in the county where the defendant resides if he or she maintains a permanent residence in that county); § 6-3-7(a)(2) (providing that an action may be brought against a corporation in the county of the corporation’s principal office in this state). In effect, we have substituted a new presumption that an action cannot be tried in a county if the only connection between the lawsuit and the county is that the county is the permanent residence of one or more of the defendants. We now call such a connection a ‘weak connection’ and, as a general rule, require the transfer of the tort action to the county where the‘accident’occurred... .[]
“In interpreting and applying the ‘interest-of-justice’ prong in this manner, we have, I believe, given that prong far greater meaning and effect than it has historically been understood by the bench and bar to have. Moreover, we have given it an effect inconsistent with the legislative determination that other statutorily prescribed locations for actions under §§ 6-3-2 and 6-3-7 are generally and presumptively appropriate.”

77 So.3d at 576-77.

Today’s decision perpetuates the above-described misinterpretation of the interest-of-justice prong of the forum non conve-niens statute.

      . At the time of the accident, Webster resided and worked in Lee County. It is not clear from the record whether Webster continued to reside and to work in Lee County when the action was filed.

      . See Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745 (Ala.2010); Ex parte Kane, 989 So.2d 509 (Ala.2008); Ex parte Bama Concrete, 8 So.3d 295 (Ala.2008); and Ex parte Fuller, 955 So.2d 414 (Ala.2006).

      . Ironically, however, in products-liability cases, we do not treat the county where an accident occurred as a county in which "an event ... giving rise to the claim” occurred for purposes of the venue provision found in § 6-3-7(a)(l), Ala.Code 1975. See Ex parte Suzuki Mobile, Inc., 940 So.2d 1007 (Ala.2006); Ex parte Volvo Trucks North America, Inc., 954 So.2d 583 (Ala.2006). I have expressed my disagreement with this proposition. See, e.g., Ex parte Ford Motor Co., 47 So.3d 234, 241 (Ala.2010) (Murdock, J., concurring in the result); Ex parte Thomasville Feed & Seed, Inc., 74 So.3d 940, 944 (Ala.2011) (Murdock, J., concurring in the result).


author: MOORE, Judge. PITTMAN, Judge, BRYAN, Judge,

text:
    Stephen A. BYRD and Cynthia B. Byrd v. MorEQUITY, INC.
    2100734.
    Court of Civil Appeals of Alabama.
    March 16, 2012.
    Kenneth J. Lay, Birmingham, for appellants.
    David A. Elliott and Matthew T. Mitchell of Burr & Forman LLP, Birmingham, for appellee.
   MOORE, Judge.

Stephen A. Byrd and Cynthia B. Byrd appeal from a summary judgment entered by the Mobile Circuit Court (“the trial court”) in an ejectment action filed by MorEquity, Inc. We reverse.

Procedural History

On April 20, 2010, MorEquity filed an action seeking possession of certain real property that was in the possession of the Byrds, who were using it as their residence. MorEquity alleged that it had acquired title to the real property through a foreclosure sale and that the Byrds had unlawfully detained the real property following the termination of their possessory interest in the property and a written demand to vacate the premises. The Byrds filed a pro se answer generally denying the allegations in the complaint and asserting that “we can show that our property was foreclosed on without just cause.”

On June 8, 2010, MorEquity filed a motion for a summary judgment with supporting materials. The Byrds thereafter retained attorneys, who filed an amended answer on the Byrds’ behalf on August 25, 2010. In the amended answer, the Byrds denied that MorEquity had a right to possession of the property, asserting, among other affirmative defenses, that MorEquity had conducted a foreclosure sale -without first acquiring any ownership interest in the mortgage covering the property. The Byrds’ attorneys subsequently filed documents in opposition to MorEquity’s summary-judgment motion, to which Mo-rEquity replied, attaching supplemental materials.

On December 9, 2010, the Byrds moved to strike some of the evidence submitted by MorEquity in support of its motion for a summary judgment. The trial court conducted a hearing on the motions on December 10, 2010. Following the hearing, MorEquity filed a supplemental evidentia-ry submission. On December 17, 2010, the trial court denied the motion to strike and entered a summary judgment in favor of MorEquity. The trial court entered a writ of possession in favor of MorEquity on January 5, 2011. The Byrds filed a timely motion to alter, amend, or vacate the summary judgment, which the trial court denied on March 15, 2011. The trial court stayed enforcement of its judgment on April 6, 2011, and the Byrds appealed on April 22, 2011.

Analysis

The threshold and dispositive issue on appeal is whether MorEquity had standing to prosecute the ejectment action. See Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] — So.3d — (Ala.Civ.App.2011); see also Cadle Co. v. Shabani, 950 So.2d 277, 279 (Ala.2006) (accord). MorEquity filed its action under the authority of § 6-6-280(b), Ala.Code 1975. See EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502 (Ala.2005) (holding that § 6-6-280(b) applied when the complainant alleged that it was entitled to possession of land through foreclosure deed and that the defendant was unlawfully detaining the land); Muller v. Seeds, 919 So.2d 1174 (Ala.2005) (same), overruled on other grounds by Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89 (Ala.2010); and Earnest v. First Fed. Sav. & Loan Ass’n of Alabama, 494 So.2d 80 (Ala.Civ.App.1986) (same). Under § 6-6-280(b), a complaint in an ejectment 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,” and a complaint is sufficient if, among other things, it alleges “that the plaintiff was possessed of the premises or has the legal title thereto.”

Like any other fact essential to recovery, the plaintiff has the burden of proving standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At the summary-judgment stage, a plaintiff asserting standing cannot rest on mere allegations in the complaint, see Dover Historical Soc’y v. City of Dover Planning Comm’n, 838 A.2d 1103 (Del.2003), but must prove standing through specific facts set forth by affidavit or other evidence. Grayson v. AT & T Corp., 15 A.3d 219 (D.C.2011). To prevail on a motion for a summary judgment, the plaintiff must present a prima facie case that there is no genuine issue of material fact and that the plaintiff is entitled to a judgment as a matter of law. Armstrong v. McGee, 579 So.2d 1310, 1312 (Ala.1991). In making a determination whether the plaintiff has satisfied that burden, this court, de novo, reviews the evidence in a light most favorable to the nonmovant, Robinson v. Alabama Cent. Credit Union, 964 So.2d 1225, 1228 (Ala.2007), and “entertains such reasonable inferences as the jury would have been free to draw.” Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000). “ ‘ “The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact.” ’ ” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992) (quoting Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989), quoting in turn Schoen v. Gulledge, 481 So.2d 1094, 1096 (Ala.1985)).

In this case, MorEquity asserts that it had standing to maintain the ejectment action against the Byrds because, it says, it held a foreclosure deed to the property, which it submitted to the trial court. The Byrds maintain, however, that the foreclosure deed is void because it was procured through foreclosure proceedings that were conducted by MorEquity without authority. In Sturdivant, supra, this court held that a foreclosure deed was void, — So.3d at — (quoting § 35-10-9, Ala.Code 1975, which provides that “[a]ll sales of real estate, made under powers contained in mortgages or deeds of trust contrary to the provisions of [statutory law governing the power of sale pursuant to the terms of a mortgage], shall be null and void.... ”), and would not sustain an ejectment action when the evidence showed that the foreclosure proceedings had been initiated by the plaintiff without a valid assignment of the power of sale. Under Sturdivant, the vendee to a void foreclosure deed would not be considered a “real owner of the land” with “legal title thereto” within the meaning of § 6-6-280(b). — So.3d at —.

MorEquity submitted evidence indicating that the Byrds executed a promissory note in favor of Wilmington Finance, Inc., in the principal amount of $85,000 on July 19, 2007. That same date, to secure the note, the Byrds entered into a mortgage covering the subject property. Section 22 of that mortgage provides that, in the event of a default and failure to cure, and after appropriate notices are provided to the Byrds,

“Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law.”

“Lender” is defined in the mortgage solely as Wilmington Finance, Inc.; however, the mortgage provides that Mortgage Electronic Registration Systems, Inc. (“MERS”), is the nominee for Wilmington Finance, Inc., and that MERS is the designated mortgagee with all legal rights of a mortgagee, including “the right ... to foreclose and sell the Property.”

Pursuant to § 35-10-12, Ala.Code 1975,

“[w]here a power to sell lands is given in any mortgage, the power is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured.”

MorEquity submitted evidence indicating that MERS - assigned the mortgage, complete with its power of sale, to MorEquity so that it could execute that power under § 35-10-12. We agree with the Byrds, however, that MorEquity’s evidence is conflicting as to the date of the assignment.

MorEquity attached to the affidavit of Kenneth Seheller, an assistant vice president of MorEquity, a document entitled “ASSIGNMENT OF MORTGAGE ” (capitalization and italics in original), which states:

“FOR VALUE RECEIVED, Mortgage Electronic Registration Systems, Inc. CMERSO as Nominee for WILMINGTON FINANCE, INC., its successors and assigns, hereby assign and transfer to MOREQUITY, INC., 7116 EAGLE CREST BLVD., EVANSVILLE, IN 47715, its successors and assigns, all its right, title and interest in and to a certain MORTGAGE executed by: STEPHEN A. BYRD AND CYNTHIA B. BYRD, in the original principal amount of $85,000.00 and bearing the date of ... 07/19/2007 and recorded on 07/25/2007 in the office of the Recorder of MOBILE County, State of ALABAMA in Instrument Number 2007056302 in BOOK 6227 and PAGE 205.”

(Capitalization and underlining in original.) A notary certified that that document was signed on April 20, 2009. On the other hand, MorEquity attached to the affidavit of Jeff Schutte, its associate director, a document entitled “NOTIFICATION OF SALE, TRANSFER OR ASSIGNMENT OF YOUR MORTGAGE LOAN” (capitalization and bold typeface'in original), indicating that MorEquity had acquired the mortgage via a sale effective December 30, 2009.

The conflict as to the date of assignment materially impacts the standing issue. In Sturdivant, this court held that, in order to conduct a foreclosure sale, a party must have the power to foreclose and sell the property as of the date of the initiation of the foreclosure proceedings, — So.3d at -, which is the date the party “accelerates the maturity date of the indebtedness and publishes notice of a foreclosure sale,” Perry v. Federal Nat’l Mortg. Ass’n, [Ms. 2100235, Dec. 30, 2011] (Ala.Civ.App. 2011), impliedly overruled on other grounds by Ex parte Secretary of Veterans Affairs, 92 So.3d 771 .(Ala.2012). The undisputed evidence in this case shows that the debt had been accelerated as of December 11, 2009, and that the notice of the foreclosure sale was first published on December 15, 2009, which was long after the alleged April 20, 2009, assignment date but over two weeks before the alleged December 30, 2009, assignment date. If the latter date is accurate, MorEquity would not have had authority to initiate the foreclosure proceedings; only Wilmington Finance, Inc., or MERS could have started foreclosure proceedings at that time. Pointedly, two December 11, 2009, letters submitted by MorEquity, notifying the Byrds individually of the acceleration of the debt, and the notices of foreclosure sale published beginning on December 15, 2009, all indicate that Wilmington Finance, Inc., had invoked the foreclosure process, implying that the assignment had not yet occurred by mid-December, as the document attached to Schutte’s affidavit reflects.

MorEquity did not present a prima facie case of standing because its own evidence creates a genuine issue of material fact as to whether it had the power to foreclose and sell the property when the foreclosure proceedings were initiated on December 15, 2009.

The Byrds seek reversal of the summary judgment on numerous other grounds, including the alleged failure of MorEquity to provide notice of default and acceleration of the debt, see Jackson v. Wells Fargo Bank, N.A., 90 So.3d 168, 173 (Ala.2012) (holding that failure of notice of default and acceleration of debt may invalidate foreclosure sale); the alleged failure of MorEquity to prove that it provided contractual notice of the foreclosure sale, see Thompson v. Wachovia Bank, Nat’l Ass’n, 39 So.3d 1153 (Ala.Civ.App.2009), overruled on other grounds by Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89 (Ala. 2010) (genuine issue of material fact existed where borrowers denied receipt of notice of the foreclosure sale and mortgagee failed to submit admissible evidence indicating that it sent required notice), and Kennedy v. Wells Fargo Home Mtg., 853 So.2d 1009 (Ala.Civ.App.2003) (accord); the existence of alleged irregularities in the published notice of the foreclosure sale, see § 35-10-8, Ala.Code 1975 (establishing contents of notice of foreclosure sale); the alleged agreement of MorEquity to forego foreclosure while the Byrds participated in its loss-mitigation program, but see Coleman v. BAC Servicing, [Ms. 2100453, Feb. 3, 2012] (Aa.Civ.App. 2012) (holding that oral agreements to forebear foreclosure are not valid under the Statute of Frauds); the alleged failure of MorEquity to comply with the loss-mitigation regulations of the National Housing Act, 12 U.S.C. § 1701x(c)(5); and MorEquity’s alleged breach of its fiduciary duty by underbidding on the property at the foreclosure sale. See Berry v. Deutsche Bank Nat’l Trust Co., 57 So.3d 142, 147-48 (Ma.Civ.App.2010). Without commenting on the merits of those grounds, we note that they all may be characterized as affirmative defenses to an ejectment action pertaining to the proper exercise of the power of sale or irregularities in the manner of the sale itself, which errors may render a foreclosure deed voidable. See Sturdivant, — So.3d at-(Moore, J., concurring specially). Because we are reversing the trial court’s judgment on a more fundamental issue — a genuine dispute as to the lack of MorEquity’s authority to initiate the foreclosure proceedings, which would render the foreclosure deed void — we pretermit discussion of those issues.

For the foregoing reasons, the summary judgment entered by the trial court in favor of MorEquity is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMAS, J., concurs.

PITTMAN and BRYAN, JJ., concur in the rationale in part and concur in the result, -with writings.

THOMPSON, P.J., concurs in the result, without writing.

PITTMAN, Judge,

concurring in the rationale in part and concurring in the result.

I agree that the summary judgment in favor of MorEquity, Inc., is due to be reversed and the cause remanded because MorEquity failed to establish that there was no factual dispute as to whether it was the assignee of the mortgage before it initiated the foreclosure proceedings against the Byrds. In my judgment, that failure simply means that MorEquity did not make a prima facie showing that it could satisfy one of the elements of its ejectment claim, not that MorEquity failed to demonstrate that it had standing to sue.

I believe that this case and others like it, see, e.g., Ex parte McKinney, 87 So.3d 502 (Ala.2011); Cadle Co. v. Shabani, 950 So.2d 277 (Ala.2006); and Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] — So.3d — (Ala.Civ.App.2011), present questions of an ejectment plaintiffs inability to prove the allegations of its complaint rather than questions of standing. See Ex parte McKinney, 87 So.3d at 512 (Murdock, J., dissenting); and Sturdivant, — So.3d at — (Pittman, J., dissenting).

“As [our supreme court] recently observed: ‘[0]ur courts too often have fallen into the trap of treating as an issue of “standing” that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy [an] element of a cause of action.’ Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1219 (Ala.2010). Compare Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89, 91 n. 2 (Ala.2010) (citing Wyeth as authority for rejecting the appellant’s suggestion that a plaintiffs failure to have made a demand for possession before bringing an ejectment action presented an issue of standing).”

Ex parte McKinney, 87 So.3d at 514 (Murdock, J., dissenting).

Our supreme court has determined that standing “implicates [a trial court’s] subject-matter jurisdiction.” Ex parte Howell Eng’g & Surveying, Inc., 981 So.2d 413, 418 (Ala.2006); see also Hamm v. Norfolk Southern Ry. Co., 52 So.3d 484, 499 (Ala.2010) (Lyons, J., concurring specially) (citing Riley v. Pate, 3 So.3d 835, 838 (Ala.2008), and State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999)). That court has also explained that subject-matter jurisdiction “concerns a court’s power to decide certain types of cases,” Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006), which power is derived from the constitution and statutes of Alabama. Id. Can it seriously be doubted that a circuit court derives its power to decide an ejectment case from § 6-6-280, Ala.Code 1975, rather than from the allegations of the plaintiff who seeks relief pursuant to that statute?

BRYAN, Judge,

concurring in the rationale in part and concurring in the result.

I agree that the summary judgment in favor of MorEquity, Inc. (“MorEquity”), is due to be reversed and the cause remanded because there was evidence establishing a genuine issue of material fact regarding whether MorEquity had been assigned the mortgage before it initiated the foreclosure proceedings. However, I disagree with the main opinion’s conclusion regarding the significance of that disputed factual issue. As indicated by my dissent in Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] — So.3d — (Ala.Civ.App.2011), I am of the opinion that, when an ejectment-action plaintiff bases his or her claim to legal title to the property on a foreclosure deed, evidence tending to prove that the foreclosing party had not been assigned the mortgage before he or she initiated the foreclosure proceedings does not implicate the ejectment-action plaintiffs standing to bring the ejectment action. Rather, such evidence tends to prove an affirmative defense to the ejectment-action plaintiffs claim. See Berry v. Deutsche Bank Nat’l Trust Co., 57 So.3d 142, 149-50 (Ala.Civ.App.2010) (holding that, when an ejectment-action plaintiff bases his or her claim to legal title on a foreclosure deed, evidence tending to prove that the foreclosure sale and resulting foreclosure deed were invalid tends to prove an affirmative defense to the ejectment claim rather than tending to prove that the ejectment-action plaintiff lacked standing to bring the ejectment action). Thus, in the present case, I am of the opinion that the evidence tending to prove that MorEquity had not been assigned the mortgage before it initiated the foreclosure proceedings established the existence of a genuine issue of material fact with respect to Stephen A. Byrd and Cynthia B. Byrd’s affirmative defense asserting that MorEquity was not entitled to prevail on its ejectment claim because, they said, the foreclosure was invalid, but it did not establish a genuine issue of material fact with respect to MorEquity’s standing to bring the ejectment action.

      . The Byrds contend in their brief to this court diat any assignment of the mortgage did not convey the underlying note, which serves as the basis for the power of sale. See Coleman v. BAC Servicing, [Ms. 2100453, Feb. 3, 2012] (Ala.Civ.App.2012) (holding that, under § 35-10-12, Ala.Code 1975, power of sale resides in the party with the right to the money secured by the mortgage, which would be the note holder). [Note from the reporter of decisions: On June 22, 2012, the Alabama Court of Civil Appeals withdrew the February 3, 2012, opinion in Coleman and substituted another one. See Coleman v. BAC Servicing, [Ms. 2100453, June 22, 2012] — So.3d — (Ala.Civ.App.2012).] However, the Byrds did not raise that issue at or before the summary-judgment hearing, instead asserting it for the first time in one sentence in their post-judgment motion. Because a trial court need not consider a legal argument raised for the first time in a postjudgment motion, Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369-70 (Ala.1988), and considering further the sparse nature of the argument below, we decline to address the Byrds’ now fully formed legal argument on appeal.

      . The Byrds raise issues regarding the admissibility of both the alleged April 20, 2009, assignment and Schutte’s affidavit testimony relating to the alleged December 30, 2009, assignment. The Byrds also argue that the trial court erred in considering new evidence regarding the notarization of the alleged April, 20, 2009, assignment submitted by Mo-rEquity after the summary-judgment hearing. Because of our disposition of the standing issue, we find no need to address those issues.

      . Those letters both state:. "Re: Wilmington Finance, Inc. v. Stephen A. Byrd and Cynthia B. Byrd, Husband and Wife.” The letters also state “cc: MorEquity Inc.” MorEquity does not explain why the caption indicates Wilmington Finance, Inc., is pursuing the Byrds for the mortgage debt, but the letter is copied to MorEquity.

      . The notice of foreclosure sale states:
      “Default having been made in the payment of the indebtedness secured by that certain mortgage executed to [MERSJ, acting solely as Nominee for Wilmington Finance Inc. on July 19, 2007, by Stephen A. Byrd and Cynthia B. Byrd, Husband and Wife, and recorded in Book 6227 Page 205; said mortgage transferred and assigned to Wilmington Finance Inc. et seq., in the Office of the Judge of Probate of Mobile County, Alabama, the undersigned, as Mortgagee or Transferee, under and by virtue of the power of sale contained in the said mortgage will sell at public outcry to the highest bidder for cash in front of the main entrance of the Mobile County, Alabama, Courthouse in the City of Mobile, Mobile County, Alabama, on January 14, 2010....”
      The "undersigned” is designated as "Wilmington Finance, Inc., its successors and assigns, Mortgagee or Transferee.” MorEquity is not mentioned.


author: THOMAS, Judge. MOORE, Judge,

text:
    Edward DYESS v. Lajune White DYESS.
    2110020.
    Court of Civil Appeals of Alabama.
    April 13, 2012.

      Steven D. Eversole of Eversole Law, LLC, Birmingham, for appellant.
    William M. Dawson, Birmingham, for appellee.
   THOMAS, Judge.

Edward Dyess appeals from a judgment of the Jefferson Circuit Court determining that he and Lajune White Dyess entered into a common-law marriage, divorcing the parties, and awarding Lajune certain real property. We reverse and remand.

On February 10, 2010, Edward filed a “complaint to sale [sic] and divide” certain real property located in Birmingham (“the real property”). Both parties agree that they lived together in the house constituting some of the real property since the time the real property was purchased. On February 26, 2010, the case was transferred to the domestic-relations division of the Jefferson Circuit Court. In her answer, filed May 25, 2010, Lajune counterclaimed for a divorce, claiming that she and Edward had a marriage relationship by virtue of a common-law marriage.

The trial court conducted a hearing on May 24, 2011, at which it heard ore tenus evidence as to whether the parties had entered into a common-law marriage, and if so, how to divide the marital property. As the party counterclaiming for a divorce, Lajune presented her case first. The trial court heard testimony from various witnesses, including direct and cross-examination of Edward and Lajune. However, at the close of Lajune’s presentation of evidence, she requested that the trial court preclude Edward from presenting any evidence regarding the issue of common-law marriage because he had failed to file an answer to her counterclaim for a divorce. Although Edward informed the court that he had witnesses ready to testify as to that issue, the trial court granted Lajune’s request. The hearing thus concluded at the close of Lajune’s presentation of evidence.'

The trial court entered a judgment on June 1, 2011, determining that a common-law marriage existed and divorcing the parties. The judgment also awarded La-june the real property but made Edward “solely responsible for the debt on this property” and required him to make all the mortgage payments relating to the real property. Each party was allowed to retain all “financial accounts, retirement and pension funds, and all property he [or she] brought into the marriage.”

On June 30, 2011, Edward filed a post-judgment motion to alter, amend, or vacate the judgment, which was amended on July 1, 2011, specifically asserting that the finding of a common-law marriage was in error. Lajune also filed a motion to alter, amend, or vacate on June 30, 2011. The trial court entered an amended order on August 29, 2011, instructing the parties to sell and equally divide a time-share property in Mexico and instructing Edward to give Lajune $5,369.70 toward payment of her attorney fees. The order denied all other requested postjudgment relief.

On appeal, Edward argues (1) that the trial court erred in finding a common-law marriage, (2) that this case was improperly transferred to the domestic-relations division of the Jefferson Circuit Court, (3) that the trial court failed to equitably divide the parties’ property, (4) that the trial court denied him due process of law, and (5) that the trial court considered improper evidence. We first address the issue whether there was sufficient evidence to support the trial court’s finding that Edward and Lajune entered into a common-law marriage relationship.

Our supreme court has held:

“ ‘Courts of this state closely scrutinize claims of common law marriage and require clear and convincing proof thereof.’ Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986), citing Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982). A trial judge’s findings of facts based on ore tenus evidence are presumed correct, and a judgment based on those findings will not be reversed unless they are found to be plainly and palpably wrong. Copeland v. Richardson, 551 So.2d 353, 354 (Ala.1989). The trial court’s judgment must be viewed in light of all the evidence and all logical inferences therefrom, and it ‘will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ Adams v. Boan, 559 So.2d 1084, 1086 (AIa.1990) (citation omitted).”

Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala.1992).

Clear and convincing evidence is

“ ‘[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’
“§ 6 — 11—20[ (b) ](4), Ala.Code 1975.”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002).

“In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer ], 689 So.2d [194,] 195 [ (Ala.Civ.App.1997) ], quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala.Civ.App.1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala.Civ.App.1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).”

Gray v. Bush, 835 So.2d 192, 194 (Ala.Civ.App.2001).

Edward stipulates in his brief to this court that both parties possessed the requisite capacity to marry. We address whether the evidence supported the conclusions that the parties entered into a present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships and that there was public recognition of the relationship as a marriage and the parties publicly assumed marital duties and cohabited with each other.

Edward and Lajune first met in 1996. Later that same year, Edward moved from Wisconsin to Birmingham, at which time he lived with Lajune in a house that she was renting. Edward purchased a house in Birmingham sometime shortly after moving to Birmingham. Lajune lived in this house with Edward until 2002. In 2002, Edward and Lajune purchased the real property, where they lived together until 2010, at which point Edward moved back to Wisconsin.

At trial, Edward testified that he did not consider Lajune to be his wife. He further stated that he had explained to La-june at the beginning of their relationship that he did not intend to get married because of his two previous failed marriages. Edward admitted that he had referred to Lajune as his wife one time in order to purchase a time-share in Mexico. According to his testimony, “they told [him] in order to buy the property down there [he] had to put husband and wife”; therefore, he testified that he had intentionally misrepresented their relationship.

Lajune presented three witnesses who testified to their beliefs that Lajune was married to Edward. Each witness described instances when Lajune was referred to as Edward’s wife and he did not publicly object. However, when asked directly by opposing counsel if Edward had ever introduced her as his wife, Lajune responded, “[s]everal times, ... [he said] this is my significant other.” (Emphasis added.) She further testified that, in 1997, when asked by Edward’s cousin if they were married, she replied, “no, not yet.”

Edward and Lajune both testified that they did not have any joint bank accounts. Both of their names appear on the special warranty deed and the mortgage document for the real property in Birmingham. However, on the special warranty deed they are listed as “Edward L. Dyess, a single man, and Lajune White, a single woman, as joint tenants.... ” (Emphasis added.) Likewise, the mortgage document lists them as “Edward L. Dyess, an un married man, and Lajune White, an unmarried woman.” (Emphasis added.) The mortgage on the real property was paid solely by Edward. Lajune was responsible for paying for the utilities.

Lajune introduced into evidence, over Edward’s objection, a funeral program, a greeting card, and a newspaper article. The program was for Edward’s niece’s funeral and listed surviving family members. Lajune testified that the program lists her as Edward’s wife. Edward and Lajune were included in the program in the following manner: “Edward (LaJune) Dyess of Birmingham, Alabama.” The greeting card reads “for my wife” on the front. Lajune testified that Edward sent her the card for her birthday; however, Edward did not recall sending the card and was unsure if the signature on the card was actually his signature. Finally, Lajune is identified in a newspaper article as Lajune White Dyess, although Lajune testified that she did not know who provided this information to the newspaper.

In support of the trial court’s conclusion that the parties had entered into a common-law marriage, Lajune cites King v. King, 269 Ala. 468, 114 So.2d 145 (1959). That case, however, is easily distinguished from this case. The parties in King were ceremonially married and lived together as husband and wife for approximately six years before Mrs. King discovered a legal impediment to their marriage. 269 Ala. at 470, 114 So.2d at 146. Once the impediment was removed, the Kings lived together for approximately four months. 269 Ala. at 471, 114 So.2d at 147. Mr. King argued that, because they did not have another marriage ceremony after the removal of the legal impediment, the two were never married. Id.

In King, our supreme court held: “It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law presumes a common-law marriage.” Id. (citing Barnett v. Barnett, 262 Ala. 655, 80 So.2d 626 (1955); Hunter v. Lynn, 256 Ala. 501, 55 So.2d 849 (1952); and Hill v. Lindsey, 223 Ala. 550, 137 So. 395 (1931)). In the present case, there was no such legal impediment preventing the parties from marrying. Although Lajune testified at trial that Edward’s cousin, a preacher, “blessed their union,” at no time did Edward and Lajune participate in a marriage ceremony pursuant to a duly issued marriage license. Therefore, the holding in King is not applicable to the present case.

As stated above, the existence of a common-law marriage must be shown by clear and convincing evidence. See Lofton, 611 So.2d at 336. We conclude that the evidence presented by Lajune is insufficient to show by clear and convincing evidence that the parties’ exhibited a present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships or that the parties’ relationship was publicly recognized and that the parties publicly assumed marital duties.

“ ‘It is indispensable that the parties must comport themselves in such a manner as to achieve public recognition of their status as common-law man and wife.’ Bishop v. Bishop, 57 Ala.App. 619, 622, 330 So.2d 443, 445 (Ala.Civ.App.1976).
“We have stated:
“ ‘ “[T]he marriage relationship may be shown in any way that can be known by others, such as living together as man and wife, referring to each other in the presence of others as being in that relation, declaring the relation in various types of documents and transactions, sharing household duties and expenses, and generally engaging in ‘all of the numerous aspects of day-to-day mutual existence of married persons.’ ” ’
“Hall v. Duster, 727 So.2d 834, 837 (Ala.Civ.App.1999) (quoting Bishop v. Bishop, 57 Ala.App. at 621, 330 So.2d at 445). The fact that the parties may have lived together or cohabited, standing alone, is insufficient to show that the parties had entered into a common-law marriage. See Beck v. Beck, 286 Ala. 692, 698, 246 So.2d 420, 426 (1971) (‘[I]n order to constitute a valid common-law marriage, the man and woman, following their mutual consent to live as man and wife, must so live as to gain the recognition of the public that they are living as man and wife rather than in a state of concubinage.’).”

Reese v. Holston, 67 So.3d 109, 112-13 (Ala.Civ.App.2011).

First, the evidence did not show that the parties managed their finances in a way that would be consistent with a marital relationship. The parties maintained separate banking accounts. In fact, Edward recently added his daughter, who has his power of attorney, not Lajune, as a second owner/signer to his checking account. Although both of their names do appear on the deed and the mortgage document relating to the real property, those documents clearly indicate that the parties are single and unmarried, respectively. Further, Edward testified that he consistently filed his income-tax returns as an unmarried individual. Lajune testified that she last filed an income-tax return in either 1999 or 2000, at which time she also filed as an unmarried individual.

Second, there is insufficient evidence to show that the parties’ relationship was publicly recognized as a common-law marriage. Lajune produced witnesses who testified to their beliefs that Edward and Lajune were married. Their beliefs were primarily based upon instances when Edward did not publicly object to inferences by other people that Lajune was his wife. One witness testified that Edward once said to her, “you [are] the one that is keeping my wife away from the house all the time.” However, Lajune also testified that Edward introduced her as his significant other, not as his wife. According to the record, the only instance in which Edward referred to Lajune as his wife was when he purchased the time-share in Mexico. It is undisputed that Lajune did not change her name on her church roll, the utility bills, her retirement account, her widow’s pension, or with the Social Security Administration.

The only other evidence Lajune introduced at trial was documentary evidence including the funeral program, the greeting card, and the newspaper article. However, those documents are insufficient to “ ‘meet the required standard of a persuasive pattern of unambivalent conduct, but rather are too few and isolated.’” Reese, 67 So.3d at 113 (quoting Bishop v. Bishop, 57 Ala.App. 619, 622, 330 So.2d 443, 446 (Ala.Civ.App.1976)).

Because the evidence before the trial court was insufficient to support its determination that the parties had clearly and convincingly entered into a common-law marriage, we reverse the trial court’s judgment insofar as it determined that the parties were married. Consequently, because we hold that the parties were not married, the trial court’s division of property is also due to be reversed. Because we reverse the trial court’s holding that the parties were married and the division of property, we need not address Edward’s remaining issues. We therefore remand the cause with instructions for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, J., concur.

MOORE, J., concurs in the judgment of reversal but dissents as to the rationale and the remand instructions, with writing, which BRYAN, J., joins.

MOORE, Judge,

concurring in the judgment of reversal but dissenting as to the rationale and the remand instructions.

The main opinion concludes that “the evidence before the trial court was insufficient to support its determination that [Edward Dyess and Lajune White Dyess] had clearly and convincingly entered into a common-law marriage,” reverses the trial court’s judgment “insofar as it determined that the parties were married” and divided the parties’ property, and remands the cause with instructions that the trial court enter a judgment consistent with the main opinion. 94 So.3d at 390. I agree that the judgment should be reversed, but I disagree with the main opinion’s basis for reversing and with the remand instructions.

Unlike the main opinion, I conclude that Lajune White Dyess presented sufficient evidence upon which the trial court could have found that she and Edward Dyess were married at common law, see Melton v. Jenkins, 92 So.3d 105, 110 (Ala.Civ.App.2012) (Moore, J., dissenting); however, because I also conclude that the trial court erred in not permitting Edward to present evidence on the issue, I would reverse the trial court’s judgment and remand the cause for the trial court to allow Edward to present his evidence.

The record indicates that the trial court ended its ore tenus hearing at the close of Lajune’s case-in-chief. At that point in the proceedings, Lajune pointed out that Edward had failed to reply to her counterclaim and moved the trial court to bar Edward from presenting any evidence regarding Lajune’s allegation in the counterclaim that they were married at common law. Lajune based her motion on Rule 7, Ala. R. Civ. P., which requires a party to reply to a counterclaim, and on Rule 8(d), Ala. R. Civ. P., which provides that “[a]verments in a pleading to which a responsive pleading is required ... are admitted when not denied in the responsive pleading.” The trial court granted La-june’s motion by terminating the hearing without allowing Edward to present any witnesses or other evidence to support his earlier testimony in Lajune’s case-in-chief that he had never intended to marry La-june and that he had not publicly recognized that they were husband and wife.

The trial court erred to reversal in ending the trial on the grounds asserted by Lajune. In his complaint, Edward asserted that the parties were “unmarried owners” of certain real estate that he wanted equitably partitioned or divided. Lajune answered that complaint by denying that allegation. Based solely on the complaint and the answer, the parties were clearly at issue over their marital status and the equitable division of their property; the failure of Edward to further reply to La-june’s counterclaim did not obviate those controversies.

In Hawk v. Bavarian Motor Works, 342 So.2d 355 (Ala.1977), our supreme court addressed the issue whether,

“in all circumstances, the failure to file a written denial of a pleading to which a response is required, under Rule 8(d), [Ala. R. Civ. P.,] admits the allegations of that pleading where the issues tried are embraced in prior pleadings that were responded to in writing.”

342 So.2d at 356. In Hawk, the defendant filed an answer generally denying the averments in the plaintiffs original complaint alleging that defects in a motorcycle that had been manufactured and distributed by the defendant had caused the plaintiff personal injuries. However, the defendant did not file an answer to an amended complaint in which the plaintiff asserted a new count alleging that the defendant had had notice of the defects. When the case went to trial, the plaintiff seized on the defendant’s failure to file a written answer to the amended complaint as a ground for a directed verdict, now known as a judgment as a matter of law, see Rule 50, Ala. R. Civ. P., on the added count. The trial court denied that motion, and, on appeal, our supreme court affirmed the trial court’s order denying the motion, stating that

“mere failure to file an additional answer to a recast theory of one issue already stated in a previously filed pleading could not reasonably and fairly require strict application of Rule 8(d)[, Ala. R. Civ. P.,] to thwart the just determination of this action.”

342 So.2d at 357. The supreme court reasoned that the amended complaint “states nothing so materially different from what is stated in the original complaint so .that an answer to the original would not sufficiently answer the amendment.” 342 So.2d at 357. See also Manci v. Ball, Koons & Watson, 995 So.2d 161 (Ala.2008) (failure of law firm to reply to amended counterclaim, which only amplified client’s grounds for seeking a judgment declaring that he did not owe law firm fees under a contingency-fee agreement because of law firm’s alleged legal malpractice, did not amount to an admission of those grounds under Rule 8(d) when law firm had previously replied to original counterclaim and denied the material allegations therein).

Based on Hawk and Manci, I conclude that the trial court erred in disallowing Edward to present his case. Lajune’s counterclaim only amplified her reasons for denying the allegations in Edward’s complaint regarding their marital status and the equitable division of their property. The counterclaim did not add a completely new controversy, but only recast the original controversy in the form of a counterclaim for a divorce. Lajune obviously was not misled into believing by the state of the pleadings that Edward had conceded that they were married at common law or that he had admitted that she was entitled to an equitable property division under marital law. In her case-in-chief, Lajune, recognizing the ongoing controversy, presented evidence designed solely to address those issues. On the other hand, Edward was prejudiced by not being allowed to present his own evidence on those issues because of a technicality in failing to file an additional pleading that would have only replicated the allegations in his original complaint.

The rules of civil procedure “shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” Rule 1(c), Ala. R. Civ. P. In strictly applying Rule 8(d), the trial court denied Edward an opportunity to be heard, and its judgment is therefore due to be reversed and the case remanded to allow for a fair trial of the merits.

BRYAN, J., concurs.

      . Mrs. King learned that Mr. King’s previous marriage had not been dissolved.

      . Lajune also cites Barnett v. Barnett, 262 Ala. 655, 80 So.2d 626 (1955). Like in King, the parties in Barnett also overcame a legal impediment to a ceremonial marriage, and, therefore, the holding in Barnett is not applicable to this case.

      . Edward argues on appeal that the trial court erred in admitting those items into evidence, because, he argues, they were not properly authenticated, as required by Rule 901, Ala. R. Evid. Because we conclude that, even considering the funeral program, the greeting card, and the newspaper article, the evidence was insufficient to support the existence of a common-law marriage, the trial court’s error, if any, in admitting those items into evidence was harmless. See Dinmark v. Farrier, 510 So.2d 819, 820-21 (Ala.1987).