author: MAXWELL, J.,

text:
    Deon CARTER a/k/a Deon Cortez Carter, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01514-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      Jennie S.H. Pitts, Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. During Deon Carter’s trial for aggravated assault, the Hinds County Circuit Court allowed the State to call an expert witness out of order, after Carter had presented his case. On appeal, Carter claims this variance in the order of proof requires reversal. Because Carter alleges neither an impairment in his ability to respond to the witness nor other resulting prejudice, we find no abuse of circuit judge’s discretion by taking evidence out of order. We affirm Carter’s conviction and sentence.

BACKGROUND FACTS

¶2. This case concerns an aggravated assault, leading to a traumatic brain injury, that started over a pair of shoes. Carter believed Damion Bracey had taken a pair of black Nike Air Force One shoes from Carter. And multiple witnesses testified Carter confronted Bracey about the shoes and punched him in the face, incapacitating Bracey. One witness, Jonathan Thompson, testified that while Bracey was lying on the ground, Carter kicked him “a couple of times” in the head. Several defense witnesses disagreed that Carter kicked Bracey but acknowledged Carter had punched him in face, knocking him unconscious. There was also testimony from defense witnesses that, after Bracey had been knocked down, Bracey’s older brother attempted unsuccessfully to urge Bracey to get up and fight back. And when he failed to fight back, Bracey’s brother purportedly got mad and tackled Bracey. At trial, Bracey’s brother disputed this.

¶ 3. As a result of the assault, Bracey suffered “life threatening” brain injuries from blunt force trauma, requiring surgery to remove a portion of his skull to reduce swelling. Carter was convicted of aggravated assault and sentenced to ten years’ imprisonment, with five years suspended and three years’ post-release supervised probation.

DISCUSSION

¶ 4. On appeal, Carter claims reversible error arose when the circuit judge: (1) allowed the State to call an expert witness out of order, and (2) admitted a photograph of Bracey taken at the hospital and allowed Bracey’s mother to testify about his injuries.

I. Out-of-order Testimony

A. Dr. Parent’s Expert Testimony

¶ 5. Following a recess in the State’s case, the State informed the circuit judge that its last witness, Dr. Andrew Parent, a pediatric neurosurgeon who had operated on Bracey, was unavailable to testify because he was performing surgery. The circuit judge asked defense counsel if she was ready to proceed with her case-in-chief. Defense counsel responded that her “position is that the State needs to rest before the defendant puts on [his] case.” The judge explained she would allow the State to take the witness “out of order.” Carter’s attorney noted her concern but explained: “[Otherwise, the defense is ready to proceed[,] after ... the standard motion ... at the end of the State’s case.” The circuit judge agreed to allow defense counsel to a make a motion “for a directed verdict at that time.”

¶ 6. Before defense counsel proceeded with Carter’s case, the judge explained to the jury:

[T]he State has advised the court that [Dr. Parent] will be their last witness before resting. And in the interest of time the court has decided to proceed forward with the defendant’s case and take this witness out of order. It is not an unusual procedure. Oftentimes, we have to take witnesses that are difficult to get in and out of court out of order. The only thing that I would do in the morning is remind you that this witness is in the State’s case and you are to perceive the witness as if he had actually come in here at 8:00 [on July 27] as a part of the State’s case. But we will move forward at this time without the State having rested its case and suspend their portion of the evidence and testimony until in the morning when the witness is able to give testimony ... You are to presume that we have completed the State’s case in chief except for the one witness!.]

The next day, after Carter had presented his case, but before Dr. Parent testified, Carter’s counsel requested a directed verdict. The circuit judge denied the motion as “premature.” And immediately before Dr. Parent testified, the judge instructed the jury:

[Dr. Parent] would have been called in the State’s case in chief. We are taking him out of order. The court instructs the jury that you are to remember that although the defendant has had witnesses, this witness will be available to you in the State’s case in chief, and you are to take his testimony just as if he had given it as the last witness for the State yesterday.

¶ 7. Dr. Parent testified as an expert in pediatric neurosurgery and detailed the extent and severity of Bracey’s injuries, as well as the surgery he performed on Bra-cey. In Dr. Parent’s opinion, one blow could have potentially caused Bracey’s blood clot, brain swelling, and skull fracture. But he suspected “several blows” had been inflicted. On cross-examination, Dr. Parent explained that he could not say to a reasonable degree of medical certainty how many blows Bracey had received.

¶ 8. After Dr. Parent testified, the State rested its case. Immediately after, Carter rested without calling additional witnesses. He then moved for a directed verdict, which the circuit judge denied.

B. Calling a Witness Out of Order

¶ 9. Because defense counsel preserved the issue of the out-of-order testimony, we will discuss the merits. Though Mississippi courts have not addressed the precise issue before us, the exercise of discretion over the mode and manner of questioning witnesses is founded in Mississippi Rule of Evidence 611. Under Rule 611(a):

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

By ordering the defense to proceed with its case-in-chief, the circuit judge aimed to minimize the “needless consumption of time,” rather than postpone proceedings until Dr. Parent was available to testify for the State. Carter disagrees that such discretion was authorized in these circumstances under Rule 611.

¶ 10. Carter contends the Mississippi Supreme Court’s recent decision in Deviney Construction Co. v. Marble, 60 So.3d 797 (Miss.2011) supports reversal. In Deviney, a civil case, the plaintiff in its casein-chief called two of the defendant corporation’s fact witnesses as adverse witnesses. The circuit judge decided each witness would only be allowed to testify once. The judge overruled Deviney’s objection to this procedure and denied Deviney the opportunity to recall its two fact witnesses during its case-in-chief. Id. at 799-800 (¶ 6). In reversing a verdict in favor of Marble, the supreme court held that when exercising discretion under Rule 611(a), a trial judge cannot “do anything he or she wishes.” Id. at 802 (¶ 13) (quoting Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985)). While trial judges have “broad discretion under Rule 611(a) to manage the pace of a trial by placing ‘reasonable’ limits on the ‘mode and order of interrogating witnesses,’ ” they may not “unduly interfere] with the presentation of either party’s case.” Id. at 803 (¶ 14) (quoting Rule 611(a)).

¶ 11. Unlike Deviney, here the out-of-order testimony was based on an undisputed conflict with Dr. Parent’s surgery schedule. And Carter was not prevented from calling witnesses supporting his defense. Nor does he point to any other prejudice resulting from the circuit judge’s handling of Dr. Parent’s testimony. Thus, we do not find the circuit judge unduly interfered with the presentation of Carter’s case.

1f 12. Other jurisdictions have dealt more closely with the issue before us. The Maryland Court of Appeals has held:

Even if the trial court clearly rules that certain testimony is not rebuttal evidence, the court may nonetheless exercise its discretion to vary the order of proof and admit it as part of the case in chief at the rebuttal stage in order to meet the requirements of a particular case, so long as this action does not impair the ability of the defendant to answer and otherwise receive a fair trial.

Booze v. State, 94 Md.App. 331, 617 A.2d 642, 646 (1993). And the Indiana Court of Appeals has similarly reasoned:

It is within the sound discretion of the trial court to permit a witness to testify during rebuttal regarding a matter which is not in rebuttal but is related to the State’s case in chief, and the irregularity in so doing will not be treated as reversible error unless the defendant was prevented from presenting rebuttal evidence thereto.

Wash v. State, 408 N.E.2d 634, 639 (Ind.Ct.App.1980) (citation omitted). We find these approaches to be sound, particularly in light of our supreme court’s explanation that a trial judge should lean toward reception of evidence, absent prejudice, when exercising his or her discretion in deciding whether evidence offered in rebuttal is more akin to case-in-chief evidence. See Smith v. State, 646 So.2d 538, 543-44 (Miss.1994).

¶ 13. Here, Carter essentially asks us to infer prejudice, then find reversible error, based on the variance in the order of testimony. But there is no allegation that the State withheld Dr. Parent’s testimony to gain an unfair advantage. And Carter offers no specifics as to why the change in line-up impaired his ability to answer Dr. Parent’s testimony. Indeed, after Dr. Parent testified, the defense rested, without making any attempt to respond to or in any way refute Dr. Parent’s testimony.

¶ 14. Though he asserts no actual prejudice, Carter does suggest on appeal that the State’s burden was somehow imper-missibly shifted to him when the judge allowed the State to call Dr. Parent out of order. We find the record does not support this claim. Rather, the circuit judge twice advised the jury that Dr. Parent’s testimony should be considered with the State’s case-in-chief. The circuit judge also properly instructed the jury on the burden of proof before they deliberated. Furthermore, while Carter’s appeal neither challenges the sufficiency nor weight of the evidence, to the extent he implies a directed verdict should have been granted when Carter initially requested it, we disagree. Even absent Dr. Parent’s testimony, we find the State properly survived a directed verdict because it offered sufficient evidence Carter committed an aggravated assault — including eyewitness testimony that Carter punched Bracey in the face, then kicked him in the head “a couple of times.” See Miss.Code. Ann. § 97-3-7(2)(a) (Supp.2011) (“A person is guilty of aggravated assault if he ... attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]”).

¶ 15. Considering the circumstances before us, we find the circuit judge acted within her broad discretion in varying the order of witnesses.

II. Admission of Photograph and Bracey’s Mother’s Testimony

¶ 16. Carter argues the circuit judge erred by admitting, over his objection, a photograph of Bracey, taken by Bracey’s mother while he was recovering from the “craniotomy” procedure performed by Dr. Parent. Carter contends the photograph, which shows Bracey wearing an eye patch and displays that a portion of his skull had been removed, was irrelevant and prejudicial. He also suggests the trial judge should have restricted Bracey’s mother from testifying because she had no direct knowledge about the assault.

¶ 17. A trial court’s admission of photographs is reviewed for an abuse of discretion. Dampier v. State, 978 So.2d 221, 280 (¶ 25) (Miss.2008). “The discretion of the trial judge is almost unlimited regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (quotations and citations omitted). “So long as a photograph has probative value and its introduction serves a meaningful evidentiary purpose, it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory.” Id. (quotations and citations omitted).

¶ 18. Mississippi Rule of Evidence 401 — which is applicable to Carter’s challenge to both the photograph and Bracey’s mother’s testimony — defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Admission is favored “[i]f the evidence has any probative value at all[.]” M.R.E. 401 emt. Mississippi Rule of Evidence 403 allows relevant evidence to “be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis added).

¶ 19. Our inquiry is whether the photographs and Bracey’s mother’s testimony have any meaningful evidentiary purpose. Here, the State was required to prove Bracey suffered “serious bodily injury.” And the circuit judge allowed Bra-cey’s mother to testify about “his physical condition at the scene and his treatment in terms of the severity of his injury.” But she held that “testimony as to anything else about who did it, where it occurred and how it occurred, would be excluded.” Bracey awoke from a coma in the hospital and did not remember the assault. Bra-cey’s mother testified he suffered optic nerve damage and was required to have a portion of his skull removed to relieve brain swelling. The photograph supplemented Dr. Parent’s and Bracey’s mother’s testimony about the seriousness of his injuries. Because we find that the photograph was neither cumulative nor unfairly prejudicial and that Bracey’s mother’s testimony was relevant to the severity of his injuries, we find the circuit court remained within its discretion in admitting both.

¶ 20. THE JUDGMENT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS TO SERVE, FIVE YEARS SUSPENDED, AND THREE YEARS’ POST-RELEASE SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . The State suggests in its brief that Carter waived this issue on appeal because his counsel merely made a “comment” that the State needed to rest before Carter put on his case. But we find the record shows Carter’s counsel, while not literally using the word "objection,” did sufficiently raise the issue before the circuit judge, allowing her the opportunity to rule on the question of the order of testimony. Cf. Austin v. State, 971 So.2d 1286, 1288 (¶ 8) (Miss.Ct.App.2008) (finding that, to preserve a question for appeal, it has to be presented to the trial court, giving the court the “an opportunity of committing error”) (quoting Stringer v. State, 279 So.2d 156, 158 (Miss.1973)).

      . The Smith court explained:
      [W]hen the question is not free from doubt whether the evidence offered in rebuttal is that which belongs to the evidence in chief, or whether it is rebuttal evidence proper, the court should resolve the doubt in favor of the reception in rebuttal where (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebut-tal.

        Smith, 646 So.2d at 543-44.


source: Caselaw Access Project

author: WISE, Justice.

license: Public Domain

text:
    Ex parte Ralph BURNELL. (In re Christi Burr Kelley v. Ralph Burnell et al.).
    1100897.
    Supreme Court of Alabama.
    Feb. 17, 2012.
    Gary L. Willford, Jr., of Webb & Eley, P.C., Montgomery, for petitioner.
    J. Michael Cooper of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for respondent.
   WISE, Justice.

Ralph Burnell petitions this Court for a writ of mandamus directing the Bibb Circuit Court to vacate its February 11, 2011, order denying his motion to dismiss claims the plaintiff, Christi Burr Kelley, filed against him and to enter a judgment of dismissal in his favor. We grant the petition and issue the writ.

Facts and Procedural History

On December 13, 2007, while she was an inmate in the Bibb County jail, Kelley slipped in the shower area, fell, and was injured. Burnell was the warden of the jail at the time of the incident. In her complaint, as amended, Kelley sued Bibb County, the Bibb County jail, the Bibb County Sheriffs Department, Sheriff Keith Hannah, and Burnell, alleging negligence and wantonness and requesting damages “in that amount which the trier of fact may assess.”

The defendants filed a motion to dismiss and a brief in support of the motion. Citing Rule 12(b)(1), Ala. R. Civ. P., they argued, in part: 1) that the trial court did not have jurisdiction to hear the claims against Sheriff Hannah because, as sheriff, he was entitled to State immunity; 2) that the trial court did not have jurisdiction to hear the claims against Burnell because he “is entitled to state immunity because he is an APOST [Alabama Peace Officers’ Standards and Training Commission] certified law enforcement officer and his duties as Warden include the duties of a deputy sheriff’; 3) that the Bibb County jail and sheriffs department are not legal entities that are capable of being sued; and 4) that Bibb County cannot be held liable for damages arising from a slip and fall that occurred in the county jail.

The defendants submitted affidavits from Sheriff Hannah and Burnell in support of their motion to dismiss. In his affidavit, Sheriff Hannah stated, in part:

“I am the duly-elected Sheriff of Bibb County. I was the Sheriff of Bibb County, Alabama, at all times relevant to [Kelley’s] Amended Complaint.
“... Ralph Burnell serves as the Warden of the Bibb County Jail. In this role, he not only supervises the jail and takes care of the day to day operations of the jail for me, he also performs the duties of a road deputy, including patrolling the county, answering calls, writing reports, etc.
“... Warden Burnell was hired as Warden August 10, 2006. He was hired under the expressed condition that he perform regular deputy duties in addition to running the jail.”

In his affidavit, Burnell stated, in part:

“I am the Warden of the Bibb County Jail. I have served in this capacity since August 2007.
“... I am an APOST [Alabama Peace Officers’ Standards and Training Commission] certified peace officer having graduated from the Selma Academy in 2000....
“... I was hired as the Warden of the Bibb County Jail under the expressed condition that I perform duties of the warden in the jail and the regular duties of a deputy.
“... Consequently, as Warden, I do everything a deputy does plus everything a jail administrator does.
"... My job description and duties were as described above at all times relevant to [Kelley’s] Amended Complaint.”

Kelley filed a response in opposition to the defendants’ motion to dismiss. In her response, she alleged, in part:

“In relation to [Kelley’s] claims, Defendant Warden Burnell was acting as Warden of the Bibb County Jail, not as a deputy sheriff, and should not be entitled to deputy sheriff immunity for that reason. The fact that Warden Burnell may also be a Deputy Sheriff, or have any other certifications or positions, is irrelevant to whether Burnell may be sued in his capacity as Warden of the Bibb County Jail.”

Kelley then quoted from this Court’s decision in Ex parte Shelley, 53 So.3d 887 (Ala.2009), and asserted:

“Because Burnell was acting in his capacity as the Warden or jailer at the time, the Court in Ex parte Shelley has clearly indicated that he does not have immunity from a suit for money damages for injuries that are the result of negligence or wantonness in his performance of those duties.”

The trial court granted the motion to dismiss as to Bibb County, the Bibb County jail, the Bibb County Sheriffs Department, and Sheriff Hannah but denied the motion to dismiss as to Burnell. Burnell then filed this petition.

Standard of Review

“ ‘A writ of mandamus is a

“ ‘ “drastic and extraordinary writ that will be issued only when 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 Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘It is well established that mandamus will lie to compel a dismissal of claim that is barred by the doctrine of sovereign immunity.’ Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004). ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness.’ Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.2003).”

Ex parte Donaldson, 80 So.3d 895, 897 (Ala.2011).

Discussion

Burnell argues that he is entitled to State immunity because, he contends, he is being sued for money damages for actions that arose out of his performance of his duties as a deputy sheriff. Therefore, he asserts, the trial court did not have jurisdiction over Kelley’s claims against him and the trial court should have dismissed him as a defendant. We agree.

“Article I, § 14, Const. of Ala.1901, states that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ This constitutional provision ‘has been described as a “nearly impregnable” and “almost invincible” “wall” that provides the State an un-waivable, absolute immunity from suit any in any court.’ Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867 (Ala.2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994)).
“Article V, § 112, Ala. Const.1901, provides in part that ‘[t]he executive department’ of the State of Alabama ‘shall consist of a governor, ... and a sheriff for each county.’ Based on §§ 14 and 112 of the Alabama Constitution, this Court concluded in Parker v. Amerson, 519 So.2d 442, 442-43 (Ala.1987), that, aside from certain recognized exceptions not applicable here, ‘[a] sheriff is an executive officer of the State of Alabama, who is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office.... ’
‘“We have also held that deputy sheriffs are immune from suit to the same extent as sheriffs. “In general, the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the sheriff.” Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (11th Cir.1990), quoted with approval in Drain v. Odom, 631 So.2d 971, 972 (Ala.1994), and Wright v. Bailey, 611 So.2d 300, 303 (Ala.1992). “[Under Alabama law, a] deputy is legally an extension of the sheriff. If the deputy’s acts are generally considered the acts of the sheriff, it is logical that those acts should enjoy the same immunity covering the sheriffs own acts.” Carr, at 1526, quoted with approval in Wright v. Bailey, at 303.’
“Alexander v. Hatfield, 652 So.2d 1142, 1144 (Ala.1994).
“Parker, 519 So.2d at 443. Our decisions have recognized another category of actions against State officials in which the official is not shielded from immunity, i.e., ‘ “valid inverse condemnation actions brought against State officials in their representative capacity.”’ Alabama Dep’t of Transportation v. Harbert Int’l, Inc., 990 So.2d 831, 840 (Ala.2008) (other citations omitted). It does not appear that this Court has ever had occasion to consider whether this latter category would, in an appropriate circumstance, apply to a sheriff.”

Ex parte Shelley, 53 So.3d at 890-91.

“Because sheriffs are constitutional officers and because deputy sheriffs act on behalf of sheriffs as alter egos, a claim for monetary damages made against a deputy sheriff in his or her individual capacity is barred by the doctrine of State immunity whenever the acts that form the basis of the alleged liability were being performed within the line and scope of the deputy sheriffs employment.”

Ex parte Donaldson, 80 So.3d at 899. See also Ex parte Sumter Cnty., 953 So.2d 1235, 1239 (Ala.2006) (holding that “claims against sheriffs and deputy sheriffs are ‘barred by the absolute immunity of Article I, § 14, of the Aabama Constitution of 1901,’ Coleman v. City of Dothan, 598 So.2d 873, 875 (Aa.1992) (quoting White v. Birchfield, 582 So.2d 1085, 1088 (Aa.1991)), when the sheriffs or the deputies were ‘acting within the line and scope of their employment.’ Ex parte Purvis, 689 So.2d 794, 795 (Aa.1996).”).

The amended complaint clearly indicates that Kelley’s injuries occurred while she was incarcerated at the Bibb County jail and that Burnell was the warden of the county jail at that time. Aso, Burnell presented affidavit testimony that he was certified by the Aabama Peace Officers’ Standards and Training Commission as a peace officer; that he had been a law-enforcement officer for approximately 10 years; that he had been hired as the warden of the Bibb County jail on the express condition that he perform the duties of the warden of the jail and that he also perform the regular duties of a deputy sheriff; and that, as warden of the county jail, he does everything a deputy does as well as everything a jail administrator does. Further, Sheriff Hannah presented affidavit testimony that Burnell was the warden of the county jail; that Burnell was hired as the warden on the express condition that he perform regular duties of a deputy sheriff in addition to running the jail; and that, in his role as warden, Burnell not only supervises the jail and its operations, but “also performs the duties of road deputy, including patrolling the county, answering calls, writing reports, etc.” Thus, Burnell and Sheriff Hannah submitted evidence indicating that Burnell was acting as a deputy sheriff at the time Kelley fell and was injured.

Although Kelley admits that Burnell was the warden of the jail at the time she was injured, she attempts to distinguish Bur-nell’s duties as warden of the jail from his duties as a deputy sheriff, and she argues that Burnell’s duties as warden of the jail did not fall within the line and scope of his duties as a deputy sheriff. She also notes that, “in Ex parte Shelley, 53 So.3d 887 (Ala.2009), [this Court] rejected any blanket immunity for Jailers as alter-egos of Sheriffs.” Kelley then asserts:

“The allegations of the Complaint and Amended Complaint in this case clearly indicate that [Kelley’s] claims arise solely from the alleged unreasonably hazardous condition of the shower area floor, which caused [Kelley] to slip and fall. As Warden, Burnell is charged with the duty of ensuring that no unduly hazardous condition exists in the Bibb County Jail and for maintaining the condition of the premises, including the shower area, in a reasonably safe condition. These are all duties attributable to Warden Burnell, not Bibb County, and these are all duties which Warden Bur-nell performs in the line and scope of his employment as Warden of the Bibb County Jail, not as a Deputy Sheriff. Under the factual circumstances of this case, Warden Burnell should not be clothed with constitutional immunity from suit simply because he is also a Deputy Sheriff who performs other unrelated Warden duties which are not within the line and scope of his employment as a Deputy Sheriff. Burnell’s Deputy Sheriff duties, according to his submissions, do not include maintaining the floors of the shower area in the County Jail in a reasonably safe condition. These are duties which are simply not within the line and scope of his duties as a Deputy Sheriff. As this Court noted in Shelley, ‘because the doctrine of sovereign immunity denies [plaintiffs a recovery for injuries from otherwise potentially liable [defendants, this Court must be deliberate about extending the doctrine.’ Shelley, 53 So.3d at 895. In this case, extending state immunity to Warden Burnell under these circumstances would result in the expansion of sovereign immunity to the point where an individual could be deputized as a Deputy Sheriff and then be assigned to perform any and all duties by a County which it might arbitrarily choose to assign, while granting that individual absolute state immunity under the cloak of their position as a Deputy Sheriff, even though their assigned duties may have nothing to do with the duties normally performed by a Deputy Sheriff.”

In Ex parte Shelley, Shelley, a jailer at the Houston County jail, was sued for money damages after he was involved in a motor-vehicle accident while transporting a prisoner. 53 So.3d at 889. Shelley filed a motion to dismiss, asserting that he was entitled to State immunity because he was acting in the line and scope of his employment with the Houston County Sheriffs Office when the accident occurred; the trial court denied the motion, noting that the doctrine of State immunity had not been extended beyond individuals who were either sheriffs or deputy sheriffs. Id. This Court, after noting “that Shelley is neither a sheriff nor a deputy sheriff,” 53 So.3d at 892, stated:

“Shelley’s argument for extending State immunity to cover a jailer employed by a sheriff hinges on this Court’s determination in Hereford v. Jefferson County, 586 So.2d 209 (Ala.1991), that deputy sheriffs are immune from suit to the same extent as sheriffs. Shelley contends that, just like a deputy sheriff, he carries out some of the duties of the sheriff on behalf of the sheriff; he reasons, therefore, that he should be clothed with the immunity that sheriffs possess as executive officers of the State when he is acting in the line and scope of his employment.
“Shelley’s argument, based on the duties he performs for the sheriffs office, misunderstands, however, the nature of § 14 immunity. A sheriff is entitled to State immunity because of his status as a constitutional officer as detailed in Art. V., § 112, Ala. Const.1901. Suits against such officers for actions taken in the line and scope of their employment inherently constitute actions against the State, which is prohibited by § 14. See [Ex parte] Haralson, 853 So.2d [928,] 932 [ (Ala.2003) ] (reiterating that ‘[a] sheriff is an executive officer of this State pursuant to the Alabama Constitution of 1901, Art. V, § 112 [and a]s an executive officer, a sheriff is immune from being sued in the execution of the duties of his office under Art. I, § 14, Alabama Const.1901.’).
“This Court has stated on several occasions, however, that ‘deputy sheriffs are immune to the same extent sheriffs are immune because “ ‘[t]he deputy sheriff is the alter ego of the sheriff.’ ” ’ Haralson, 853 So.2d at 932 (quoting Hereford, 586 So.2d at 210, quoting in turn Mosely v. Kennedy, 245 Ala. [448,] 450, 17 So.2d [536,] 537 [ (1944) ]). An alter ego is, by definition, a second self; the deputy is ‘“legally an extension of the sheriff.” Wright [v. Bailey ], 611 So.2d [300,] 303 [ (Ala.1992) ] (quoting Carr [v. City of Florence ], 916 F.2d [1521,] 1526 [ (11th Cir.1990) ]) (emphasis added).
“In Mosely, this Court cited Rogers v. Carroll, 111 Ala. 610, 20 So. 602 (1896), for the proposition that a deputy sheriff is the alter ego of the sheriff. Rogers explained the nature of the relationship between a sheriff and his deputy, as opposed to others employed by a sheriff to carry out particular tasks:
“ ‘On all the evidence, Reeves was a general deputy of Carroll the sheriff. He was a deputy sheriff, as distinguished from a specially deputized agent of the sheriff for a particular purpose. His powers, generally speaking, were those of the sheriff himself, and his acts were those of the sheriff. He had the same power to receive and to execute all ordinary process as had the sheriff, and his acts or omissions under or in respect of process were the acts or omissions of the sheriff. In legal contemplation, he and the sheriff were one officer, so far as third persons are concerned, as to all questions of civil responsibility. Standing thus in the stead of the sheriff, and being the sheriff for all practical purposes affecting third persons, the public have a right to assume that he has all the powers incident to the office he holds.... ’
“Rogers, 111 Ala. at 613, 20 So. at 602. Thus, because ‘[i]n legal contemplation, [a deputy] and the sheriff [are] one officer, so far as third persons are concerned,’ it is logical that a deputy shares in the immunity afforded to sheriffs. Id. (emphasis added). Compare Wheeler v. George, 39 So.3d 1061, 1093 (Ala.2009) (acknowledging the ‘long-standing precedent treating the deputy as an alter ego of the Sheriff,’ but declining to embrace a more general notion that State officials serving in the executive branch are ‘deputy governors’ for purposes of State immunity as to suits for money damages).
“In contrast, a jailer working for a sheriffs office cannot properly be viewed ‘in legal contemplation’ as ‘an extension of the sheriff or as ‘one officer’ with the sheriff. The Lancaster Court itself acknowledged that ‘jailers may not function as an “extension” of the sheriff to the same degree that deputies do, because a jailer cannot undertake every act that the sheriff could perform!’ Lancaster [v. Monroe County], 116 F.3d [1419,] 1429 [(11th Cir.1997) ]. Moreover, as the Eleventh Circuit explained in Terry v. Cook, 866 F.2d 373, 378 (11th Cir.1989), the positions appointed by a sheriff of clerk, investigator, dispatcher, jailer, and process server ‘traditionally revolve around limited objectives and defined duties and do not require those holding them to function as the alter ego of the sheriff or ensure that the policies and goals of the office are implemented.’ Accordingly, we do not consider a jailer in the position of Shelley to be an alter ego of the sheriff as are deputy sheriffs.
“The doctrine of State immunity under § 14 of the constitution, insofar as it operates to provide absolute immunity to certain State actors with respect to suits against them in their individual capacity for money damages, is a doctrine that is applicable to constitutional officers.... Shelley’s position as a jailer simply does not meet this requirement.
“None of this Court’s cases have extended a sheriffs State immunity to any sheriffs employees other than deputy sheriffs. We decline to extend State immunity beyond that limit in this case.”

Ex parte Shelley, 53 So.3d at 895-97 (footnotes omitted).

This Court’s decision in Ex parte Shelley does not support Kelley’s argument. Unlike the jailer in Ex parte Shelley, Burnell is a deputy sheriff as well as the warden or jailer for the county jail. Also, unlike the jailer in Ex parte Shelley, Burnell has the authority to, and, by the sheriffs admission, is expected to, perform all duties of a deputy and to function as an alter ego or extension of the sheriff. Therefore, the facts in Ex parte Shelley are distinguishable from those in this case.

Kelley does not cite any authority to support the proposition that a deputy sheriff who also acts as a warden or jailer does not have State immunity by virtue of his or her position as a deputy sheriff, and we have found none. Although she would apparently have us conclude otherwise, in Ex parte Shelley, this Court did not hold that a jailer or warden who is also a deputy sheriff is not entitled to State immunity. Likewise, she has not presented any authority for distinguishing between when Burnell is functioning as a warden or jailer and when he is functioning as a deputy sheriff. In either function, Burnell retains his status as a deputy sheriff. Kelley’s purported distinctions notwithstanding, she has not alleged any facts that would tend to show that Burnell was not acting in the line and scope of his employment as a deputy sheriff and as an alter ego of the sheriff when Kelley was injured.

“ ‘[W]hen the parties have not provided sufficient legal or factual justification for this Court’s jurisdiction, this Court is not obligated to embark on its own expedition beyond the parties’ arguments in pursuit of a reason to exercise jurisdiction. The burden of establishing the existence of subject-matter jurisdiction falls on the party invoking that jurisdiction. See, e.g., Ex parte HealthSouth Corp., 974 So.2d 288 (Ala.2007) (setting forth the plaintiffs burden of demonstrating standing to bring an action, an issue of subject-matter jurisdiction); ... Ex parte Ray-El, 911 So.2d 1100, 1104 (Ala.Crim.App.2004) (placing the burden to “ ‘justify the jurisdiction of this court’ ” on the person bringing a habeas petition as a “next friend” (quoting Whitmore v. Arkansas, 495 U.S. 149, 164, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990))); cf. Bush v. Laggo Props., L.L.C., 784 So.2d 1063, 1065 (Ala.Civ.App.2000) (“Once a party challenges the trial court’s jurisdiction, pursuant to Rule 12(b)(1), [Ala. R. Civ. P.,] the burden of establishing jurisdiction is on the plaintiff.” (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir.1980))).’
“Crutcher v. Williams, 12 So.3d 631, 635-36 (Ala.2008).”

Blevins v. Hillwood Office Ctr. Owners’ Ass’n, 51 So.3d 317, 322 (Ala.2010).

Based on the record before this Court, we conclude that Kelley’s claims against Burnell are barred by the doctrine of State immunity because Burnell was acting in the line and scope of his duties as a deputy sheriff at the time Kelley was injured. Therefore, Burnell has established a clear legal right to the dismissal of Kelley’s complaint against him.

Conclusion

For the above-stated reasons, we grant Burnell’s petition for a writ of mandamus and direct the trial court to vacate its order denying Burnell’s motion to dismiss and to enter an order dismissing Burnell as a defendant in this case.

PETITION GRANTED; WRIT ISSUED.

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

      . "Evidentiary matters may be freely submitted on a motion to dismiss that attacks jurisdiction. Committee Comments, Rule 12, Ala. R. Civ. P. (citing Williams v. Minnesota Mining & Mfg. Co., 14 F.R.D. 1 (S.D.Cal.1953)).” Williams v. Skysite Commc’ns Corp., 781 So.2d 241, 245 (Ala.Civ.App.2000).

      "4 Parker explained that § 14 immunity does not shield a sheriff from an action brought
      ‘“(1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.’

      . The legislature amended §§ 14-6-1 and 36-22-3, Ala.Code 1975, effective June 14, 2011. See Act No. 2011-685, Ala. Acts 2011. Section 14-6-1 now provides:
      "The sheriff has the legal custody and charge of the jail in his or her county and all prisoners committed thereto, except in cases otherwise provided by law. The sheriff may employ persons to carry out his or her duty to operate the jail and supervise the inmates housed therein for whose acts he or she is civilly responsible. Persons so employed by the sheriff shall be acting for and under the direction and supervision of the sheriff and shall be entitled to the same immunities and legal protections granted to the sheriff under the general laws and the Constitution of Alabama of 1901, as long as such persons are acting within the line and scope of their duties and are acting in compliance with the law.”
      Section 36-22-3(b) now provides, in part:
      "Any of the duties of the sheriff set out in subsection (a) or as otherwise provided by law may be carried out by deputies, reserve deputies, and persons employed as authorized in Section 14-6-1 as determined appropriate by the sheriff in accordance with state law. Persons undertaking such duties for and under the direction and supervision of the sheriff shall be entitled to the same immunities and legal protections granted to the sheriff under the general laws and the Constitution of Alabama of 1901, as long as he or she is acting within the line and scope of his or her duties and is acting in compliance with the law.”

        The 2011 amendments are not applicable in this case.

      . Kelley did not establish that her claim fell within any of the exceptions to State immunity-

      . Because of our resolution of this issue, we pretermit discussion of the other issues Bur-nell raises in his brief to this Court.


author: BRYAN, Judge. BRYAN, Judge.

text:
    A.J. BROWN v. Emily BROWN.
    2100205.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.
    Opinion on Denial of Rehearing Dec. 16, 2011.
    Certiorari Denied February 10, 2012 Alabama Supreme Court 1110389.

      John F. Porter III, Scottsboro, for appellant.
    Jack Livingston and Daryl R. Eustace of Jack Livingston, P.C., Scottsboro; and L. Jayson Carroll, Rainsville, for appellee.
   BRYAN, Judge.

A. J. Brown (“A.J.”) appeals from a judgment canceling two deeds executed by Robert Barry Brown (“R.B.”) on July 21, 2006, on the ground that they had resulted from A. J.’s exercising undue influence over R.B. We dismiss the appeal in part and affirm the judgment of .the trial court.

R.B. and Emily Brown (“Emily”) married in 1952 and had four children; A.J. is the youngest of those four children. On March 12, 2006, R.B. suffered a stroke. On March 28, 2006, the DeKalb Probate Court appointed A.J. and one of his siblings, Robert Donald Brown, to serve as temporary conservators and guardians for R.B.; however, the last extension of their appointments expired on May 26, 2006, and their appointments were not extended beyond that date. On July 21, 2006, R.B. executed two deeds conveying land to A.J.; one of the deeds was a warranty deed and the other was a quitclaim deed. On July 25, 2006, an attorney was appointed to serve as conservator and guardian for R.B. On August 7, 2006, R.B. executed a deed conveying property to Emily.

On August 29, 2006, Emily sued A.J. and R.B. in the DeKalb Circuit Court. In her complaint, as amended, Emily stated claims seeking the cancellation of the two July 21, 2006, deeds conveying property from R.B. to A.J. and claims seeking damages from A.J. based on various theories. Her claims seeking cancellation of the July 21, 2006, deeds asserted that the deeds were due to be canceled on the grounds (1) that they purported to convey, without her consent, property in which she owned a homestead interest; (2) that they had resulted from A.J.’s exercising undue influence over R.B.; and (3) that they were executed by R.B. when he lacked the requisite mental competency.

R.B., who was represented by his conservator and guardian, and A.J. filed separate answers denying the allegations of Emily’s complaint. In addition, they jointly filed a counterclaim stating a claim seeking the cancellation of the August 7, 2006, deed conveying property from R.B. to Emily and claims seeking damages from Emily based on various theories.

R.B. died on October 12, 2007, and the DeKalb Probate Court appointed a special administrator of his estate. The special administrator moved to substitute R.B.’s estate as a party in this action, and the trial court granted that motion. On March 13, 2008, the special administrator moved for a summary judgment with respect to R.B.’s claim seeking the cancellation of the August 7, 2006, deed conveying property from R.B. to Emily. Although the record does not appear to contain a pleading in which the special administrator asserted a claim seeking the cancellation of the two July 21, 2006, deeds conveying property from R.B. to A.J., the record contains a motion that was filed by the special administrator on April 2, 2008, seeking a summary judgment with respect to such a claim. On May 23, 2008, the trial court entered an order granting the special administrator’s summary-judgment motion with respect to his claim seeking the cancellation of the August 7, 2006, deed on the ground that R.B. was represented by a conservator and guardian on that date and, therefore, lacked the power to execute the August 7, 2006, deed. However, the May 23, 2008, order denied the special administrator’s summary-judgment motion with respect to his claim seeking the cancellation of the two July 21, 2006, deeds because the trial court concluded that R.B. was not represented by a conservator and guardian on the date he executed those deeds and that a genuine issue of material fact existed regarding whether R.B. was mentally competent when he executed those deeds.

Subsequently, Emily was appointed executrix of R.B.’s estate, and his estate was realigned as a plaintiff. A.J. then moved for a judgment on the pleadings with respect to R.B.’s estate on the ground that R.B.’s estate had not pleaded any claims against A.J., and the trial court granted that motion.

On July 2, 2009, the trial court bifurcated the remaining claims for trial. The trial court ordered that Emily’s claims seeking cancellation of the two July 21, 2006, deeds conveying property from R.B. to A.J. would be tried by the trial court sitting without a jury and that, after those claims were adjudicated, all other pending claims would be tried by a jury.

Emily’s claims seeking cancellation of the two July 21, 2006, deeds were tried in a bench trial on February 18 and 19, and April 27 and 28, 2010. In May 2010, Emily and A.J. each filed posttrial briefs. In addition to arguing that he was entitled to prevail on the merits with respect to Emily’s claims seeking cancellation of the July 21, 2006, deeds, A.J. asserted in his post-trial brief that he was entitled to a judgment declaring that Emily had never owned any interest in the property that was the subject of one of the July 21, 2006, deeds, i.e., the quitclaim deed, because, he said, the evidence had established that (1) R.B. and Emily had executed two deeds, one on December 27, 2002, and the other on January 2, 2003, in which they had deeded to A.J. and his son, subject to life estates reserved by R.B. and Emily, the property that was the subject of the July 21, 2006, quitclaim deed and (2) that Emily had never owned an interest in that property and, therefore, could not reserve a life estate in it in the December 27, 2002, and January 2, 2003, deeds. Thus, A.J. argued, upon R.B.’s death on October 12, 2007, his life estate expired and A.J. and his son became the owners of the entire fee-simple interest in the property that was the subject of the July, 21, 2006, quitclaim deed regardless of whether the July 21, 2006, quitclaim deed was valid.

On August 12, 2010, the trial court entered a judgment adjudicating Emily’s claims seeking cancellation of the July 21, 2006, deeds. In pertinent part, the August 12, 2010, judgment states:

“[R.B.] died on October 12, 2007. On March 12, 2006, he suffered a massive stroke that left him severely paralyzed. As a result of the stroke, he was initially hospitalized at Erlanger Medical Center in Chattanooga, Tennessee, later moved to Siskin Rehabilitation Center, and then to Standifer Place Nursing Home in Chattanooga, where he remained, except for a four-day stay with A. J. in May 2006, until September 28, 2006, at which time he returned to his home in DeKalb County, Alabama.
“[R.B.] accumulated substantial land holdings in DeKalb County during his lifetime, some by purchase and some by inheritance from his family. The deeds that the court is asked to set aside conveyed 1285 acres of farm land to A.J. valued at 1.5 to 2 million dollars. Other property remaining in [R.B.’s] name at the time of his death consisted of a cabin, two undeveloped lots, and a tract containing 114 acres. The marital residence located on 69-acre tract was conveyed by [R.B.] to [Emily], prior to his death.
“[R.B.] and [Emily] were married in 1952 and had four children: Cindy Brown Meadows, Robert Donald Brown, Chris Brown, and Arthur James Brown, a/k/a A.J. Over the years, [R.B.] and [Emily] Brown conveyed various tracts of property to their children, and they all lived on family property in close proximity to each other. [R.B.], also known as ‘Bear’ was a big man with a strong personality and was considered head of the Brown family. Ownership of land was important to him, and his use of the land was his and [Emily’s] primary source of income for several years prior to the time of his stroke. This income consisted of selling fishing and hunting rights on the land, selling timber from the land, and receiving payments from the U.S. Department of Agriculture [ (‘the USDA’) ] by placing certain land into its farm and timber programs. [R.B. and Emily] sold a tract of land in 1992 for a substantial sum, using the proceeds to pay off a loan and to build the marital residence.
“The first basis asserted by [Emily] for setting aside the subject conveyances is that the lands conveyed by [R.B.] to A.J. were , part of [R.B. and Emily’s] homestead and could not be conveyed by [R.B.] without her assent. A.J. insists, however, that the homestead is limited to the marital residence and the 69-acre tract upon which it is located, a tract that is separate and apart from and not contiguous to the lands conveyed to him by [R.B.].
“[Emily] maintains that a [‘]homestead[’] is the home where a family resides and any adjoining or appurtenant land used for the family’s comfort and sustenance. She points to the fact that a substantial portion of [R.B. and Emily’s] annual income at the time of [R.B.’s] stroke came from USDA payments, and that the land that produced these payments is a portion of the land that was conveyed by [R.B.] to A.J. on July 21, 2006. Once these conveyances to A.J. occurred, the USDA payments went to him. [Emily] maintains that because the land conveyed to A.J. was used for the family’s sustenance, it is part of the homestead.
“By statute, no conveyance of the homestead by a married person shall be valid without the voluntary signature and assent of the husband or wife. Section 6-10-3, Code of Alabama (1975). In construing the definition of [‘]home-steadf] as used in this statute, the Alabama Supreme Court has generally found it to be limited to property consisting of a home and land not exceeding in value $5,000 and 160 acres in area. See Sims v. Cox, 611 So.2d 339 (Ala.1992).
“Given the fact that the marital residence of [R.B. and Emily] and the 69-acre tract on which it is located far exceeds in value the $5,000 limitation, such residence and acreage being estimated to have a value of no less than $300,000 to $350,000, and the further fact that it is located on a tract separate and apart from the land that was conveyed to A.J., the court finds that the land conveyed to A.J. is not part of the homestead and that the conveyance did not require the signature of [Emily].
“Next, [Emily] contends that the conveyance from [R.B.] to A.J. resulted from undue influence. A.J. denies this allegation.
“The resolution of this issue is guided by' some well established principles of law. The relation of parent and child is per se a confidential one with the law presuming that the parent is the dominant spirit. In such instances, the law further presumes that any transaction between the parent and child is free from undue influence. If, however, it is made to appear to the reasonable satisfaction of the court that the child, and not the parent, is the dominant spirit, then the presumption is reversed and the burden of proof shifts to the child who has benefitted from the transaction to show that the transaction was fair, just, and equitable in every respect and that it was not the result of undue influence. Chandler v. Chandler, 514 So.2d 1307 (Ala.1987); Dillard v. Hovater, 254 Ala. 616, 49 So.2d 151 (1950).
“Undue influence with respect to gifts and conveyances inter vivos may exist without either coercion or fraud. It may result entirely from the confidential relation, without activity in the direction of either coercion or fraud on the part of the beneficiary occupying the position of dominant influence. It is upon the person occupying the position of dominant influence not only to abstain from deceit and duress but to affirmatively guard the interests of the weaker party so that their dealing may be upon a plane of equality and at arm’s length. Chandler v. Chandler, supra.
“A.J. has cited for the court’s consideration the recently decided case of Murphy v. Motherway, [66 So.3d 770 (Ala.Civ.App.2010) ], for the proposition that there must be interference by the allegedly dominant party and such interference must go beyond mere compliance with the voluntary directions of the weaker party. The Murphy case, however deals primarily with a will contest, and it is well established that a different standard applies in a will contest than in an inter vivos. transfer. Chandler v. Chandler, supra. The court finds nothing in Murphy, supra, that changes the well established principles set forth in Chandler, supra.
“In determining whether [R.B.] was the dominant spirit in the transaction between him and A.J. on July 21, 2006, the state of [R.B.’s] physical and mental health becomes a primary consideration.
“[R.B.] was 72 years of age at the time of the transaction. There is evidence that the stroke he suffered on March 12, 2006, was a hemorrhagic stroke that destroyed the thalamus portion of his brain. The severe paralysis that he suffered left him bedridden except on those occasions when he was removed from the bed with a lift. His speech was impaired, and his cognitive function damaged. For some period following the stroke he was incapable of receiving nourishment except through a feeding tube.
“Dr. William H. Coleman, a medical doctor who also holds a masters degree and a PhD in anatomy, testified that injury to the thalamus such as [R.B.] suffered impairs short-term memory, destroys one’s ability to perform executive functions, and affects one’s ability to reason and understand the ramifications of their decisions. Dr. Coleman testified that in his opinion a person who suffered a stroke like the one [R.B.] suffered was not capable of making decisions about property, and that because of the total dependency caused by the stroke, one could be very easily influenced by others.
“A letter from one of [R.B.’s] treating physicians dated April 18, 2006, stated that [R.B.] was unable to manage any financial affairs and that he needed a guardian. A.J. and his brother, Robert Donald Brown, thereafter served for a period as their father’s guardians and conservators, and, in that capacity, transacted business affairs that would normally have been handled by their father. A.J. also transacted some affairs for his father pursuant to a power of attorney. A.J. and his brother also made health decisions for their father at his request.
“There is evidence that [R.B.] was capable at times after the stroke of conversing rationally with family members, caregivers, and attorneys, and that he scored satisfactorily on a ‘mini-mental exam.’ A psychiatrist examined [R.B.] on July 22, 2006, the day after the conveyances were executed, and concluded that he did not have impairment of mental functions on that date. The psychiatrist testified that [R.B.] expressed a desire to make a will or other disposition of some land but made no mention of having made conveyances the day before. The psychiatrist was unaware at the time that [R.B.] had made the conveyances.
“[R.B.’s] cognitive status was not constant. The nurses’ notes at Standifer Place for June 28, 2008, reflect that [R.B.’s] cognitive status and self-sufficiency had deteriorated. Their notes for July 10, 2006, stated that [R.B.] was somewhat confused, and the notes for July 20, 2006, state that he had difficulty finding words and finishing thoughts.
“[Emily] testified that her husband enjoyed playing solitaire prior to the stroke but was incapable of doing so afterward. She testified that he did not like to leave his room at Standifer Place, but on occasions when he did so and she would roll him back to his room, he sometimes would not recognize the room as being his room. One of the sons, Robert [Donald] Brown, testified that one day his father failed to recognize his grandson whom he had been very close to before the stroke. He also testified that his father acted much like a child.
“It is undisputed that following the stroke, [R.B.] became totally dependent on others for all of his needs, and that condition continued until his death. He relied upon others to make his healthcare decisions and to attend to his business affairs. One of the people he relied upon most heavily was A. J.
“Considering the evidence as a whole and particularly [R.B.’s] state of total dependence on others following the stroke, the court is reasonably satisfied by substantial evidence that his dominion in the parent-child relationship had ceased at the time of the conveyances here in question and that, in his relationship with A.J., A.J. had come to occupy the position of dominance.
“It follows from this conclusion that the conveyances to A.J. by his father on July 21, 2006, are presumed to be the product of undue influence and A.J. has the burden of showing that the transaction was fair, just, and equitable in every respect.
“A.J. has offered creditable evidence that his father had expressed his intention for [A.J.] to have the lands that were the subject of the conveyances because [R.B.] believed that A.J. would hold the lands and keep them together for future generations. A.J. testified that, consistent with that expression of intent, his father requested and insisted that he secure the services of an attorney to prepare the deeds.
“A.J. did, in fact, make arrangements for and pay an attorney to prepare the deeds and to come to Standifer Place to oversee their execution by his father.
“Robert [Donald] Brown testified, however, that A.J. ‘hounded’ their father to make deeds, and [Emily] testified that on one occasion when she walked into her husband’s room at Standifer Place, A.J. was bent over [R.B.] telling him what property he should deed to [R.B. and Emily’s] son, Chris.
“Because there is substantial evidence of [R.B.’s] expressed desire for A.J. to have the subject property, the court is not convinced that the conveyances to A.J. resulted from fraud or coercion. The court finds, however, that A.J. has failed to overcome the presumption of undue influence and has failed to show that the conveyances to him were fair, just, and equitable in every respect. Moreover, A.J. has failed to show that, in arranging for the conveyances to be made, he was affirmatively guarding the interests of his father.
“By taking title to the lands and, thereby, becoming the recipient of the USDA payments, A.J. deprived his father and mother of those payments which had been a substantial part of their total income in the recent past. In 2005, the year immediately prior to [R.B.’s] stroke, [R.B. and Emily’s] income tax return reported total taxable income of $13,859, of which $13,265 came from USDA payments. [Emily] testified that her husband had frequently stated that the payments from USDA would be their retirement income. The termination of those payments to [R.B.] and [Emily] after the conveyances to A.J. was inconsistent with such expressions of [R.B.’s] intent. There is also evidence that [R.B.] and [Emily] had discussed devising the subject lands to A.J. at their deaths, a scenario that would have allowed A.J. to eventually own the lands but also allowed [R.B.] and [Emily] to retain the income from them during their lifetimes.
“For the reasons set forth, the court finds that the deeds executed by [R.B.] to A.J. ... on July 21, 2006, were the product of undue influence on the part of A.J. ... and are due be set aside and vacated. It is unnecessary for the court to address the issue of whether [R.B.] was mentally incompetent to execute the deeds.
“Accordingly, it is adjudged and decreed that the deeds executed by R.B. ... to A.J. ... bearing date of July 21, 2006, ... are hereby set aside and vacated.”

After the trial court entered the August 12, 2010, judgment, A.J. filed a posttrial motion asking the trial court to reconsider the August 12, 2010, judgment. He also filed a motion pursuant to Rule 15(b), Ala. R. Civ. P. A.J.’s Rule 15(b) motion alleged that the issue whether Emily had ever owned an interest in the property that was the subject of the July 21, 2006, quitclaim deed had been tried without objection by Emily. The Rule 15(b) motion further alleged that the evidence had established (1) that R.B. and Emily had executed deeds dated December 27, 2002, and January 2, 2003, conveying to A.J. and his son, subject to life estates reserved by R.B. and Emily, the property that was the subject of the July 21, 2006, quitclaim deed and (2) that Emily had never owned an interest in that property and, therefore, could not have reserved a life estate in it. Thus, according to A.J., upon R.B.’s death on October 12, 2007, R.B.’s life estate had expired and A.J. and his son had become the owners of the entire fee-simple interest in that property regardless of whether the July 21, 2006, quitclaim deed was valid. The Rule 15(b) motion asked the trial court (1) to amend the pleadings to state a claim by A. J. seeking a determination that Emily had never owned an interest in that property and (2) to enter an order determining the ownership of that property.

On October 6, 2010, the trial court denied AJ.’s motion to reconsider the August 12, 2010, judgment and his Rule 15(b) motion. Although the August 12, 2010, judgment was not a final judgment because it had disposed of fewer than all the parties’ claims, see Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004) (“A final judgment is one that disposes of all the claims and controversies between the parties.”), and although the trial court had not certified the August 12, 2010, judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., A.J. nonetheless filed a notice of appeal to the supreme court on November 16, 2010. On December 1, 2010, the supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. On January 27, 2011, at the behest of the parties, the trial judge entered an order purporting to certify the August 12, 2010, judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

However, the premature notice of appeal A.J. had filed on November 16, 2010, had divested the trial court of jurisdiction. See Busby v. Lewis, 993 So.2d 31, 34 (Ala.Civ.App.2008). Consequently, the January 27, 2011, order purporting to certify the trial court’s August 12, 2010, judgment as a final judgment pursuant to Rule 54(b) was void. Id. Accordingly, on August 4, 2011, this court remanded the cause to the trial court for seven days so that it could certify its August 12, 2010, judgment as a final judgment pursuant to Rule 54(b). The trial court entered an order certifying the August 12, 2010, judgment as a final judgment on August 9, 2011.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Phil- pot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

A.J. argues that the trial court erred in canceling the July 21, 2006, deeds based on undue influence because, he says, (1) the trial court applied the wrong standard of proof to determine whether A.J. had become the dominant party in his relationship with R.B. and (2) the evidence does not support the trial court’s conclusion that A.J. had become the dominant party in his relationship with R.B.

In Chandler v. Chandler, 514 So.2d 1307, 1308 (Ala.1987), the supreme court held that a plaintiff seeking to cancel an inter vivos transfer of property from a parent to a child based on undue influence meets his or her initial burden of proof by introducing sufficient evidence to reasonably satisfy the trial court that the child had become the dominant party in his or her relationship with the parent:

“The relation of parent and child is per se a confidential one. The law presumes that the parent is the dominant spirit, but this presumption is not conclusive. ‘Where it is made to appear by the proof that the child, and not the parent, is the dominant spirit, then the burden of proof is shifted to the former to establish the fairness of the transaction, and that it was not the result of undue influence.’ Dowe v. Farley, 206 Ala. 421, 422, 90 So. 291, 292 (1921); Tipton v. Tipton, 249 Ala. 537, 539, 32 So.2d 32, 34 (1947). See also, Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960); Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970); Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970)....
“... The party seeking to have the deed set aside need only show to the reasonable satisfaction of the court that the grantee was the dominant party in a confidential relationship with the grant- or, whereupon the burden shifts to the grantee to show that the transaction was ‘fair, just, and equitable in every respect.’ Brothers v. Moore, ... 349 So.2d [1107,] 1109 [ (Ala.1977) ].”

(Emphasis added.)

In Wilson v. Wehunt, 631 So.2d 991, 993 (Ala.1994), the supreme court considered a claim seeking to cancel an inter vivos transfer of property from a parent to a child and discussed the proof necessary to establish that the child has become the dominant party in his or her relationship with the parent:

“It is well settled that one alleging dominance of a child over a parent must prove that ‘time and circumstances have reversed the order of nature, so that the dominion of the parent has not merely ceased, but has been displaced, by subservience to the child.’ Hawthorne v. Jenkins, 182 Ala. 255, 260, 62 So. 505, 506 (1913) (emphasis in original).... Black’s Law Dictionary 486 (6th ed.1990) defines ‘dominate’ as ‘[t]o master, to rule, or to control.’ Thus, for the burden of proof to shift, it is clear that our cases require proof of more than a reversal of the traditional roles of parent as care giver and child as care recipient; they require proof that the parent’s will has become subordinate to the will of the child. It is also clear from our cases that the mere relationship of parent and child alone, even when coupled with some activity on the part of the child in securing the preparation of legal papers for the parent, is not sufficient to prove subservience on the part of the parent, so as to shift to the child the burden of proving an absence of undue influence.”

In the case now before us, Dr. William H. Coleman, a physician who has not only an M.D. degree but also a masters degree and a Ph.D. degree in anatomy, testified as an expert witness. Dr. Coleman testified that R.B. had a massive hemorrhagic stroke on March 12, 2006, that completely destroyed the right lobe of the thalamus of his brain. Dr. Coleman testified that, as a result of the destruction of the right lobe of his thalamus, R.B., after his stroke, would not have been able to balance a checkbook or monitor his finances. According to Dr. Coleman, the destruction of the right lobe of his thalamus deprived R.B. of the ability to take in information, organize it, correlate it, reason based on it, and arrive at an opinion of his own. Dr. Coleman testified that, after his stroke, R.B. had the cognitive ability of a seven- or eight-year-old child and could be easily influenced. Finally, Dr. Coleman testified that the destruction of the right lobe of R.B.’s thalamus could not be reversed and that he could never have regained the cognitive abilities he had lost as a result of his stroke.

The trial court also had before it evidence indicating that R.B. never handled any of his own business affairs after his stroke, that he was bedridden, that he was paralyzed on his left side, and that he was particularly dependent on A.J. The evidence established not only that A.J. had made arrangements for an attorney to prepare the July 26, 2006, deeds and to come to Standifer Place to oversee their execution by R.B. but also that A.J. had made those arrangements without Emily’s knowledge. The evidence before the trial court also established that, on July 9, 2006, A.J. sought the assistance of the nurses at Standifer Place in removing Emily from R.B.’s room.

Although there was also evidence before the trial court that conflicted with some of the evidence described above, the trial court was the sole judge of the facts and of the credibility of witnesses and was entitled to accept the evidence described above and to reject the conflicting evidence. See Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994). The evidence described above was sufficient to reasonably satisfy the trial court that, after R.B.’s stroke, A.J. had become the dominant party in his relationship with R.B. under the principles set forth in Chandler v. Chandler, supra, and Wilson v. Wehunt, supra. Accordingly, we affirm the trial court’s judgment insofar as it canceled the July 21, 2006, deeds based on undue influence.

A.J. also argues that the trial court erred (1) in denying his Rule 15(b) motion asking the trial court to amend the pleadings to conform to the evidence by adding a claim by A.J. seeking a determination that Emily owned no interest in the property that was the subject of the July 21, 2006, quitclaim deed regardless of whether the July 21, 2006, quitclaim deed was valid and (2) in failing to rule on that claim.

Rule 15(b) states:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

(Emphasis added.) See also Rule 54(c), Ala. R. Civ. P. (“every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings”).

“‘Rule 15(b) is not permissive: it provides that issues tried by express or implied consent shall be treated as if raised in the pleadings.’ ” Ammons v. Tesker Mfg. Corp., 853 So.2d 210, 216 (Ala.2002) (quoting Hawk v. Bavarian Motor Works, 342 So.2d 355, 358 (Ala.1977)). “ ‘We also note that a determination “as to whether [an] issue has been tried by express or implied consent under Rule 15(b) is a matter for the trial court’s sound discretion, which will not be altered on appeal absent an abuse [of that discretion].” ’ ” Id. (quoting International Rehab. Assocs., Inc. v. Adams, 613 So.2d 1207, 1214 (Ala.1992), quoting in turn McCollum v. Reeves, 521 So.2d 13, 16 (Ala.1987)).

A. J. argues that evidence that was introduced without objection establishes (1) that, on January 30, 1979, Kraft Land Services, Inc. (“Kraft”), executed a deed conveying to R.B. alone the property described in the July 21, 2006, quitclaim deed and (2) that, on December 27, 2002, and January 2, 2003, R.B. and Emily executed deeds conveying the property that was described in the July 21, 2006, quitclaim deed to A.J. and his son subject to life estates reserved by R.B. and Emily. A.J. argues that the 1979 deed from Kraft established that R.B. acquired title solely in his name to the property that was described in the July 21, 2006, quitclaim deed and, that, therefore, Emily never owned any interest in that property. A. J. further argues that, because Emily did not own an interest in that property, she could not reserve a life estate in that property in the December 27, 2002, and January 3, 2003, deeds. Thus, according to A.J., evidence was admitted without objection that established (1) that, regardless of whether the July 21, 2006, quitclaim deed was valid, Emily never owned an intei*est in any of the property that was described in the July 21, 2006, quitclaim deed and (2) that, therefore, by virtue of the December 27, 2002, and January 2, 2003, deeds, A.J. and his son became the owners of the entire fee-simple interest in the property described in the July 21, 2006, quitclaim deed upon R.B.’s death on October 12, 2007.

The flaw in A.J.’s argument is that, although the 1979 deed executed by Kraft describes some of the property that was described in the July 21, 2006, quitclaim deed, it does not describe all the property that was described in the July 21, 2006, quitclaim deed. The July 21, 2006, quitclaim deed described two tracts of property located in Section 3, Township 5 South, Range 10 East:

“Tract 1 — The North 1/2 of the SW 1/4 of Section 3, Township 5 South, Range 10 East containing 80 acres, more or less.
“Tract 2 — All of that portion of the NW 1/4 of Section 3, Township 5 South, Range 10 [East], lying west of the Norfolk Southern Railroad containing 105 acres, more or less.”

On the other hand, the portion of Section 3, Township 5 South, Range 10 East described in the 1979 deed executed by Kraft is:

“The Northwest 1/2 of the East 1/2 that lies west of Brow Road and all of the North 1/2 of the Northwest 1/4 and all of the SE 1/4 of the NW 1/4 east of Alabama Great Southern Railroad right-of-way; and all of the SW 1/4 of the NW 1/4 lying northwest of Valley Head to Battelle Road; and the NW 1/4 of the SW 1/4 lying West of the Valley Head to Battelle Road;”

Thus, the property described in the July 21, 2006, quitclaim deed included the entire North 1/2 of the SW 1/4 of Section 3, Township 5 South, Range 10 East, i.e., all the NW 1/4 of the SW 1/4 and all the NE 1/4 of the SW 1/4, whereas the 1979 deed executed by Kraft included only a portion the NW 1/4 of the SW 1/4 and none of the NE 1/4 of the SW 1/4. Moreover, it appears that the July 21, 2006, quitclaim deed described portions of the NW 1/4 of Section 3, Township 5 South, Range 10 East that were not included in the 1979 deed executed by Kraft. Thus, although the 1979 deed executed by Kraft indicates that R.B. had acquired title solely in his name to some of the property that was described in the July 21, 2006, quitclaim deed, it does not indicate that he had acquired title solely in his name to all the property that is described in the July 21, 2006, quitclaim deed. Consequently, the evidence upon which A.J. relies was not sufficient to adjudicate in its entirety the claim he sought to add through his Rule 15(b) motion.

The trial that resulted in the August 12, 2010, judgment was the first of two bifurcated trials in this case; the second trial has not been conducted yet. Thus, the trial court’s denial of A.J.’s Rule 15(b) motion does not foreclose his seeking leave to amend his counterclaim to state the claim that was the subject of his Rule 15(b) motion before the second trial. Given the particular procedural posture of this case and the fact that the evidence cited by A. J. was not sufficient to adjudicate in its entirety the claim that was the subject of his Rule 15(b) motion, we decline to hold that the trial court exceeded its discretion in determining that the claim that was the subject of his Rule 15(b) motion was not tried by express or implied consent. See Ammons v. Tesker Mfg. Corp., 853 So.2d at 216 (“ We also note that a determination “as to whether [an] issue has been tried by express or implied consent under Rule 15(b) is a matter for the trial court’s sound discretion, which will not be altered on appeal absent an abuse [of that discretion].” ’ ”).

Finally, A.J. argues that the trial court erred in concluding that, because it had determined that the July 21, 2006, deeds were due to be canceled because they were the product of undue influence, the issue whether R.B. was mentally incompetent when he signed those deeds was moot. However, that ruling was not adverse to A.J. because he was not the party claiming that R.B. was mentally incompetent when he signed the July 21, 2006, deeds. “ ‘A party cannot claim error where no adverse ruling is made against him.’ ” Alcazar Shrine Temple v. Montgomery County Sheriff’s Dep’t, 868 So.2d 1093, 1094 (Ala.2003) (quoting Holloway v. Robertson, 500 So.2d 1056, 1059 (Ala.1986)). Accordingly, we dismiss A.J.’s appeal insofar as he argues that the trial court erred in ruling that the issue whether R.B. was mentally incompetent when he signed the July 21, 2006, deeds was moot. See Alcazar Shrine Temple v. Montgomery County Sheriff’s Dep’t, 868 So.2d at 1094-95. In all other respects, we affirm the judgment of the trial court.

APPEAL DISMISSED IN PART; AFFIRMED.

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

On Application for Rehearing

BRYAN, Judge.

On application for rehearing, A.J. Brown (“A.J.”) argues that, because we affirmed the judgment in favor of Emily Brown (“Emily”) with regard to her undue-influence claim in the present case in the absence of any evidence indicating undue activity on A.J.’s part in procuring the execution of the July 21, 2006, deeds by R.B. Brown (“R.B.”), our decision in the present case conflicts with our decision in Murphy v. Motherway, 66 So.3d 770 (Ala.Civ.App.2010). According to A.J., our decision affirming the trial court’s judgment in the absence of any evidence indicating that A.J. took any undue action to procure the execution of the deeds conflicts with our holding in Murphy v. Motherway because:

“The plaintiff in Murphy v. Motherway challenged both inter vivos and testamentary instruments of conveyance from his mother [sic] to his sister. In upholding the transfers, this Court held as follows:
“‘There was evidence indicating that Louise was involved in the opening of the bank accounts in M.C.’s and Louise’s names with a right of surviv-orship; however, there was no evidence indicating that she was doing anything other than complying with the voluntary directions of M.C. In order to establish the undue-activity element of an undue-influence claim, there must be interference by the allegedly dominant party “and such interference must go beyond mere compliance with the voluntary directions of the testator.” [emphasis added] (66 So.3d [at] 739 [779])’
“Citing Furrow v. Helton, 13 So.3d [350], [359] (Ala.2008) and Hall v. Hall, 502 So.2d 712, 714 (Ala.1987).”

A.J.’s Brief in Support of Application for Rehearing at p. 5.

In Murphy v. Motherway, Joe Murphy (“Joe”) claimed that his sister, Louise Motherway (“Louise”), had procured the execution of a will (“the 2002 will”) by M.C. Murphy (“M.C.”), who was Joe’s and Louise’s father, by undue influence. Joe also claimed that Louise had procured M.C.’s execution of a correction deed (“the 2002 correction deed”) and M.C.’s placement of funds in accounts in his name and Louise’s name with a survivorship clause (“the placement of funds in accounts”) by undue influence. Thus, Joe claimed undue influence with respect to (1) a testamentary transfer of property, i.e., the 2002 will, and (2) two inter vivos transfers of property, i.e., the 2002 correction deed and the placement of funds in accounts.

In order to establish a prima facie case of undue influence with regard to a testamentary transfer of property, the party challenging the transfer must introduce substantial evidence establishing:

“ ‘(1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) that there was undue activity on the pari of the dominant pariy in procuring the execution of the will.’ ”

Furrow v. Helton, 13 So.3d 350, 353-54 (Ala.2008) (quoting Clifton v. Clifton, 529 So.2d 980, 983 (Ala.1988)) (emphasis added).

However, in Chandler v. Chandler, 514 So.2d 1307 (Ala.1987), the supreme court stated:

“This Court in an early case contrasted the standard for showing undue influence in the procurement of testamentary transfers with the standard for showing undue influence in the procurement of inter vivos transfers. In pertinent part, the Court stated:
“ ‘Undue influence with respect to gifts and conveyances inter vivos is a very different matter. It may exist without either coercion or fraud. It may result entirely from the confidential relation, without activity in the direction of either coercion or fraud, on the part of the beneficiary occupying the position of dominant influence. It is upon him not only to abstain from deceit and duress, but to affirmatively guard the interests of the weaker party, so that their dealing may be upon a plane of equality and at arm’s length. To presume undue influence in such a case, therefore, is not to presume fraud or coercion, or any act which is malum in se, but simply the continuance of the influence which naturally inheres in and attaches to the relation itself’
“Bancroft v. Otis, 91 Ala. 279, 290, 8 So. 286, 289 (1890). This statement was quoted in Hutcheson v. Bibb, 142 Ala. 586[, 588], 38 So. 754[, 754] (1904), and has been carried forward from that case. See, e.g., Milliner v. Grant, [253 Ala. 475, 477-78, 45 So.2d 314, 316 (1950) ]; Floyd v. Green, 238 Ala. 42, [46,] 188 So. 867[, 869] (1939).”

514 So.2d at 1308 (emphasis added); accord Nelson v. Buckley, 567 So.2d 855, 856 (Ala.1990); and Beinlich v. Campbell, 567 So.2d 852, 853-54 (Ala.1990).

In Murphy v. Motherway, we affirmed the judgment of the trial court finding that Joe had failed to establish a prima facie case of undue influence not only with respect to the testamentary transfer but also with respect to the inter vivos transfers. Explaining our rationale, we stated:

“There is no dispute that Louise had a confidential relationship with M.C. and was a favored beneficiary under the 2002 will. However, Joe did not introduce substantial evidence indicating that Louise’s influence was dominant and controlling in her relationship with M.C. or that she engaged in undue activity in procuring the execution of the 2002 will, the execution of the 2002 correction deed conveying the Brent home to her alone, or M.C.’s placement of funds in accounts in his name and Louise’s name with a survivorship clause. Our supreme court ‘has consistently held that the fact that a person is a favored beneficiary and is in a confidential relationship with the testator does not alone raise a presumption that the will was executed by undue influence.’ Hall v. Hall, 502 So.2d 712, 714 (Ala.1987). Every witness who knew M.C., including Joe, testified that M.C. was a strong-willed person. No witness testified that he or she saw any sign that Louise had imposed her will on M.C. Aside from the fact that the execution of the 2002 will, the execution of the 2002 correction deed, and the opening of the bank accounts in M.C.’s and Louise’s names with a right of survivorship favored Louise, there is no evidence whatsoever indicating that her influence was dominant in her relationship with M.C., and, as noted previously, the mere fact that the execution of the 2002 will, the execution of the 2002 correction deed, and the opening of the bank accounts in M.C.’s and Louise’s names with a right of sur-vivorship favored Louise does not raise a presumption that they were procured by undue influence. See Hall v. Hall.
“Moreover, there is no evidence indicating that Louise engaged in any undue activity to procure the execution of the 2002 will, the execution of the 2002 correction deed, or the opening of the bank accounts in M.C.’s and Louise’s names with a right of survivorship. M.C. had a prior relationship with Mike Murphy before Mike Murphy prepared the 2002 will and the 2002 correction deed — Mike Murphy had prepared the 1991 will. Louise, on the other hand, had no prior relationship with Mike Murphy. Although Louise accompanied M.C. on some of his visits to Mike Murphy’s office to discuss the 2002 will, she did not accompany him on all the visits. Mike Murphy testified that M.C. stated what terms he wanted in the 2002 will and that he saw no evidence indicating that Louise was imposing her will on M.C. Mike Murphy testified that M.C. had stated that he wanted the 2002 correction deed, that Mike Murphy had advised M.C. to ask Joe to quitclaim his interest in the Brent home instead of executing the correction deed, and that M.C. had not wanted to ask Joe to quitclaim his interest in the Brent home. There is no evidence indicating that Louise was involved in procuring the preparation or execution' of the 2002 correction deed. There was evidence indicating that Louise was involved in the opening of the bank accounts in M.C.’s and Louise’s names with a right of sur-vivorship; however, there was no evidence indicating that she was doing anything other than complying with the voluntary directions of M.C. In order to establish the undue-activity element of an undue-influence claim, there must be interference by the allegedly dominant party ‘ “and such interference must go beyond mere compliance with the voluntary directions of the testator. ” ’ Furrow, 13 So.3d [350] at 359 [ (Ala.2008) ] (quoting Hall, 502 So.2d at 714). Accordingly, we affirm the judgment of the trial court.”

66 So.3d at 778-79 (emphasis added).

With respect to the inter vivos transfers at issue in Murphy v. Motherway, i.e., the execution of the 2002 correction deed and the placement of funds in accounts, the judgment of the trial court was due to be affirmed because, as stated in the excerpt from our opinion quoted above, “Joe did not introduce substantial evidence indicating that Louise’s influence was dominant and controlling in her relationship with M.C.” Id. at 778. See Chandler v. Chandler. With respect to those inter vi-vos transfers, Joe was not required to introduce substantial evidence indicating that Louise had engaged in undue activity in procuring them. Id. Therefore, the language we have emphasized in the quoted excerpt from our opinion in Murphy v. Motherway was dicta. Because the language in Murphy v. Motherway upon which A.J. bases his argument that our decision in the present case conflicts with our decision in Murphy v. Motherway was dicta, we find no merit in that argument.

In our opinion on original submission in the present case, which involves only inter vivos transfers, we recited the evidence that was before the trial court that was sufficient to reasonably satisfy the trial court that the dominance of R.B., as the parent in his relationship with A.J., “ ‘ha[d] not merely ceased, but ha[d] been displaced by subservience to [A.J.].’ ” Wilson v. Wehunt, 631 So.2d 991, 993 (Ala.1994) (quoting Hawthorne v. Jenkins, 182 Ala. 255, 260, 62 So. 505, 506 (1913)). That evidence was sufficient to create a presumption of undue influence with regard to the inter vivos transfers at issue in the present case and to shift the burden to A.J. to prove that those transfers were “ ‘fair, just, and equitable in every respect.’ ” Chandler v. Chandler, 514 So.2d at 1308 (quoting Brothers v. Moore, 349 So.2d 1107, 1109 (Ala.1977)). Emily was not required to introduce evidence indicating that A. J. had engaged in undue activity in procuring the execution of the July 21, 2006, deeds in order to establish a presumption of undue influence in the present case because the present case involves only inter vivos transfers. See Chandler v. Chandler, Nelson v. Buckley, and Beinlich v. Campbell.

APPLICATION OVERRULED.

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

      . This is the second time A.J. and his mother, Emily Brown, have been before this court. R.B., who was A.J.’s father and Emily’s husband, died on October 12, 2007, and Emily filed in the DeKalb Probate Court a petition to probate a will that R.B. had executed in 1957. A.J. filed a contest of the 1957 will in the DeKalb Probate Court. The will contest was later removed to the DeKalb Circuit Court. The DeKalb Circuit Court then entered a summary judgment in favor of Emily, and A.J. appealed. In Brown v. Brown, 21 So.3d 1 (Ala.Civ.App.2009), this court affirmed the summary judgment in favor of Emily.