author: BARNES, J.,

text:
    Bridget Marie PARRA, Appellant v. Paul William PARRA, Appellee.
    No. 2010-CA-00339-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.

      Wren Carroll Way, Vicksburg, attorney for appellant.
    Travis T. Vance Jr., attorney for appel-lee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Paul William Parra and Bridget Marie Parra were divorced in 2009, and the Warren County Chancery Court awarded Paul the “permanent care, custody and control” of the couple’s three minor children. Bridget filed a motion for a rehearing, contending that she should have been awarded custody since Paul had not informed the chancellor that he was planning to move their children to California. The chancery court denied Bridget’s motion, and she now appeals. Finding that the chancery court failed to submit any specific findings of fact under Albright v. Albright, 437 So.2d 1003 (Miss.1983), in awarding custody to Paul, we reverse and remand for further proceedings in accordance with this opinion.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Bridget and Paul were married on October 4, 1999. The couple had three children born of the marriage. Two of the children were born in California, but the youngest child was born after the couple moved to Vicksburg, Mississippi, a few years ago. In 2008, Bridget began having an affair with Tommy Breland Jr. When Paul learned of Bridget’s adultery, the Parras separated in December 2008. The couple’s minor children remained with Paul during the separation, while Bridget went to live with Tommy in Sicily Island, Louisiana. Although Bridget initially had regular visits with the children, the children alleged that Tommy was physically abusive; so subsequently, Paul only allowed visitation with Bridget at her mother’s home in Yazoo City, Mississippi.

¶ 3. On January 5, 2009, Paul filed a complaint for divorce on the grounds of habitual cruel and inhuman treatment, adultery, and irreconcilable differences. He also requested physical custody of the children. A hearing on temporary custody was held on January 15, 2009, and Paul was awarded custody, with Bridget having visitation rights. It was also noted in the temporary order that the children were not to have contact with two men, who were Bridget’s cousins and neighbors of Paul, as the chancellor determined that their presence would not be “conducive to the best interest[s] and welfare of such minor children[.]” This was based upon testimony, which alleged that both men may have been previously accused or charged as pedophiles. However, all fault grounds were later withdrawn, and the parties entered into a consent to divorce, which awarded Paul the marital domicile, a 16 x 80 mobile home located in Vicksburg.

¶ 4. A hearing was held on October 15, 2009, to determine the marital distribution of assets, child custody and visitation, and child support. The chancery court granted the Parras a divorce and awarded Paul permanent custody of the couple’s minor children. Bridget was granted reasonable and liberal rights of visitation. Bridget filed a motion for rehearing on October 27, 2009, stating that she should have been awarded custody because Paul failed to reveal to the court that he was planning to move the children to California. On November 2, 2009, Paul replied to Bridget’s motion for rehearing, denying Bridget’s claims that he was moving. Yet, nine days later, on November 11, 2009, Paul and the children moved to California, where Paul’s mother lives.

¶ 5. A hearing on Bridget’s motion was held on January 20, 2010, and Bridget testified that since Paul had left with the children, she had been unable to exercise her visitation rights. Bridget also informed the chancellor that she had recently bought' a five-bedroom home in Vicksburg and that Tommy was living with her. Paul failed to appear at the hearing. The chancery court denied Bridget’s motion, and Bridget timely appeals. Finding that the chancery court failed to provide specific findings for its award of child custody to Paul, we reverse and remand for further proceedings in accordance with this opinion.

STANDARD OF REVIEW

¶ 6. This Court will only reverse a chancellor’s ruling in a child-custody case if the decision is “manifestly wrong, clearly erroneous, or applies] an erroneous legal standard.” Minter v. Minter, 29 So.3d 840, 846 (¶ 25) (Miss.Ct.App.2009) (citing Johnson v. Gray, 859 So.2d 1006, 1012 (¶ 31) (Miss.2003)). If the chancellor’s findings of fact are supported by “substantial, credible evidence,” then they will not be disturbed on appeal. Id.

I. Whether the chancery court committed error by failing to make findings of fact under Albright regarding the award of custody.

¶ 7. Bridget argues that, in awarding custody of the children to Paul, the chancery court failed to address the factors set forth in Albright and failed to submit any reasons why the custodial arrangement would be in the best interests of the children. In Albright, the Mississippi Supreme Court outlined several factors for the court to consider when awarding custody, recognizing that “the polestar consideration is the best interest and welfare of the child.” Phillips v. Phillips, 45 So.3d 684, 693 (¶ 25) (Miss.Ct.App.2010) (citing Albright, 437 So.2d at 1005). These factors are:

(1) the age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary childcare; (4) the employment of the parent and the responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment; and (11) other factors relevant to the parent-child relationship.

Id. Bridget claims that the chancellor’s failure to address these factors and make any findings of fact warrants reversal of the judgment.

¶ 8. Paul contends that since Bridget failed to make a motion or request for such findings under Uniform Chancery Court Rule 4.01 and Mississippi Rule of Civil Procedure 52(a), she waived her right to appeal this issue. Rule 4.01 advises:

In all actions where it is required or requested, pursuant to M.R.C.P. 52, the Chancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the Court Reporter for record and called to the attention of the Chancellor.

UCCR 4.01 (emphasis added). Rule 52(a) states that: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” M.R.C.P. 52 (emphasis added).

¶ 9. However, in Bodne v. King, 835 So.2d 52, 57 (¶ 13) (Miss.2003), the supreme court observed that it is when “findings are not mandated by the nature of the case, procedural rules are applied to determine whether findings should be made.” (Citing Lowery v. Lowery, 657 So.2d 817, 818-19 (Miss.1995)) (emphasis added). The supreme court noted that, for example, a case dealing the division of marital assets is one such area “where specific findings are mandated.” Id.

¶ 10. Similarly, the supreme court has determined that cases involving a determination of child custody also require specific findings. In Hayes v. Rounds, 658 So.2d 863, 866 (Miss.1995), the supreme court reversed a chancery court’s award of custody and remanded, stating that although the chancellor’s conclusions may have evi-dentiary support, “in the absence of specific findings we cannot affirm with confidence that the best result has been reached.” Further, in Powell v. Ayars, 792 So.2d 240, 244 (¶ 10) (Miss.2001), the supreme court held: “Our job as a reviewing [c]ourt is only to evaluate whether the chancellor’s decision was manifestly erroneous based on a proper analysis of each of the applicable Albright factors. This task becomes futile when chancellors fail to consider and discuss each factor when rendering decisions.” In Powell, the chancellor actually discussed two of the Al-bright factors, but the supreme court did not find this sufficient and reversed and remanded for further findings. Powell, 792 So.2d at 244-45 (¶ 11). This Court has complied with this rule, holding that “[i]t is reversible error if the chancellor does not articulate the reasoning behind the finding for each Albright factor.” Norman v. Norman, 962 So.2d 718, 720 (¶ 6) (Miss.Ct. App.2007) (citing Davidson v. Coit, 899 So.2d 904, 911 (¶ 18) (Miss.Ct.App.2005)).

¶ 11. Here, the chancery court merely stated in its judgment:

That Paul William Parra is hereby awarded the permanent care, custody and control of Taylor Nicole Parra, Paul William Parra, III and Landon Joseph Parra subject to the visitation rights of the Bridget Marie Parra. That Bridget Marie Parra is hereby awarded reasonable rights of visitation with the minor children of the parties to include but not be limited to the Court’s standard visitation schedule which is attached hereto and made a part hereof as if copied in full herein.

Although the parties discussed the Al-bright factors during the testimony at the hearing, the chancellor made no reference in her judgment as to what was in the best interests of the children and did not give this Court any indication of what Albright factors were considered in making the custody determination. This omission is all the more important as several of the factors that might have been in Paul’s favor, such as the children’s happiness with their home life and school, were altered within a month of the court’s ruling.

¶ 12. Accordingly, we find no merit to Paul’s claim that Bridget was required to submit a procedural motion or request for findings. By the nature of the case, specific findings were mandated, and procedural rules not applicable. Therefore, we find that the chancellor’s failure to make any findings under Albright in the present case constituted error. We reverse the judgment of the chancery court and remand for further proceedings in accordance with this opinion.

II. Whether Paul’s failure to notify the chancery court of his intention to move with the children to California constituted fraud.

¶ 13. At the January 20, 2010 hearing, Bridget asserted that her motion for rehearing should be considered a Rule 60(b) motion, as Paul perpetrated a fraud upon the court by representing that he needed the marital home in Vicksburg for raising the children when he knew that he would soon be moving to California. See M.R.C.P. 60(b). At the hearing for temporary custody on January 14, 2009, Paul told the chancery court that he wanted his children “living on 211 Whatley Road,” which was the couple’s marital home in Vicksburg. Later, at the hearing to determine permanent custody held on October, 15, 2009, Paul made no mention of moving to California with the children. In fact, he testified that his children liked their school and community. At the hearing, Paul was asked the following:

Q. And do they have a home school community record. Do they like the community they live in?
A. Yes.
Q. Do they have friends in that community?
A. Yes.
Q. And they play and go out with their friends?
A. Yes.
Q. And they have relatives that live in the area?
A. Yes, sir.
Q. And all that is conducive to your children’s environment that they live in for their best interest?
A. Yeah. Oh yeah, they like it.

Paul also stated that his sister was residing with him to help with the children and that she was seeking employment in Mississippi and that he intended for this to continue.

¶ 14. This testimony by Paul suggests that he might have misrepresented his intentions to the chancery court. We find it unlikely that a father would decide to quit his job and uproot his three children from their home, community, and school in a mere three weeks, without some advance planning or thought. Additionally, in his response to Bridget’s motion for rehearing filed on November 2, 2009, he denied that he was planning on moving the children to California. However, nine days later, he and the children were gone.

¶ 15. In Trim v. Trim, 38 So.3d 471, 477 (¶ 15) (Miss.2010), the supreme court noted:

Rule 60(b) provides that the rule does not limit the court’s power to “to set aside a judgment for fraud upon the court.” Miss. R. Civ. P. 60(b). “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ ” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.1989) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978)). Fraud on the court “should ‘embrace only the species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.’ ” Id. (quoting Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n. 8 (5th Cir.1980)). “Fraud vitiates a judgment caused by the active agency of some party to the proceeding, as the court is misled and deceived as to the facts upon which it attempts to administer the law, and mistake is equally efficacious in procuring a wrong.” Brown v. Wesson, 114 Miss. 216, 74 So. 831, 834 (1917).

“The mere non[-]disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Id. at 477-78 (¶ 16) (quoting Kerwit Med. Prods., 616 F.2d at 837).

¶ 16. “To warrant relief pursuant to Rule 60(b)(1), the movant must prove fraud, misrepresentation or other misconduct by clear and convincing evidence.” Hill v. Hill, 942 So.2d 207, 214 (¶ 27) (Miss.Ct.App.2006). In Seghini v. Seghini, 42 So.3d 635, 642 (¶ 25) (Miss.Ct.App. 2010) (internal citations and quotations omitted), this Court held:

Appellate review of a trial court’s ruling upon a Rule 60(b)(1) is limited to abuse of discretion. Among the findings necessary to support granting relief is that, a trial court must find both that a witness intended to misrepresent some fact in order to influence the decision by the finder of fact, and that the finder of fact did rely upon the misrepresentation in its decision.

(Emphasis added).

¶ 17. While, this set of circumstances certainly creates an assumption Paul was not forthcoming about his situation to the chancery court, Bridget must prove Paul committed a fraud upon the court by “clear and convincing evidence.” Clear and convincing evidence “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.” Niebanck v. Block, 35 So.3d 1260, 1264 (¶ 10) (Miss. Ct.App.2010) (quoting Moran v. Fairley, 919 So.2d 969, 975 (¶24) (Miss.Ct.App. 2005)). Paul did not testify at the rehearing, so we do not know what circumstances existed to precipitate the move. Further, as we have already observed, the chancery court did not tell us what it relied upon in its award of custody to Paul. Thus, we do not know if this set of circumstances would have made a difference in the chancellor’s decision. Bridget claims that she heard rumors about Paul moving with the children immediately after the entry of judgment and that Paul called her on his way to California, stating that she would not see her children again. However, we cannot say that this is clear and convincing evidence Paul planned to move when he testified at the original hearing.

¶ 18. Further, Paul’s moving his children to California may not be a ground for a change in custody. It cannot be said, as Bridget claims, that this change “negates” Paul’s testimony that he has a job, can afford to maintain a home, and afford to take care of his children. Moving the children to California to live with him and their grandmother does not necessarily mean that their “home environment was shattered]!]” In Cheek v. Ricker, 431 So.2d 1139, 1144 (Miss.1983), a child-custody modification case, the supreme court held:

One change of a transitory nature has occurred. At the time of the 1978 decree, Pamela was living in Starkville with her son, Chase. In February of 1980[,] Pamela and Chase moved to Houston, Texas. No doubt this created a certain strain on Hollis’s visitation privileges and on Chase’s access to his father’s love. Yet in this day and time many persons must change their residence, sometimes even cross-country, in order to obtain suitable employment, and for other bona fide reasons. Surely, it must be the law that such a change of residence by the person having custody is not a material change in circumstances which would justify a reconsideration of an order for primary custody.

¶ 19. On the other hand, in Pulliam v. Smith, 872 So.2d 790, 794 (¶8) (Miss.Ct. App.2007), this Court affii'med a chancellor’s holding that Donna Pulliam’s decision to move her children “502 miles away from the former marital residence constituted a material change that adversely affected the two children.” In Pulliam, the agreed custody order granted Donna physical custody of the couple’s two children for the nine months of the school term, and it granted the father, Samuel Smith, physical custody during the summer. However, nine days after the entry of the judgment, Donna remarried and sought to move the children to her new home in another state. These plans were not disclosed to the chancery court prior to the entry of the judgment. Id. at 792 (¶ 3). The chancellor found this omission by Donna to be a fraud upon the court and that it raised an issue of her moral fitness. Id. at 795(¶ 8).

¶ 20. While there may not be any merit to Bridget’s assertion that she should be awarded legal and physical custody, the supreme court has stated that “Mississippi law favors maintaining relationships between parents and - their children even though the parent may be non-custodial.” Rogers v. Morin, 791 So.2d 815, 820 (¶ 9) (Miss.2001). Here, the chancery court’s judgment stated that “neither the custodial or non-custodial parent shall do anything that may estrange the child from the other party ... or which may hamper the free and natural development of the child’s love and respect for the other party, being the intention of the parties to encourage and assist in developing a healthy relationship between the child and each parent.” Paul’s moving the children to California has prevented any visitation by Bridget, due to distance and monetary limitations. While Paul’s seemingly deceitful behavior may not be a ground for removing the children from his primary physical custody, it certainly should be a factor that the chancellor addresses on remand in her review of the Albright factors.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Barbara JACKSON a/k/a Barbara Jean Smith Jackson, Appellant v. David J. LOWE and Patricia A. Lowe, Appellees and David J. Lowe and Patricia A. Lowe, Cross-Appellants v. Barbara Jackson a/k/a Barbara Jean Smith Jackson, Cleotha Lindsey, and Greta Lindsey, Cross-Appellees.
    No. 2010-CP-00062-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.

      Barbara Jackson, appellant, pro se.
    Bernard C. Jones Jr., Bolton, Ashley Jones Mosley, C. Brent Jones, Ridgeland, attorneys for appellees.
   MYERS, J.,

for the Court:

¶ 1. David and Patricia Lowe brought a complaint to quiet title to certain real property in Madison County, Mississippi. Named as defendants were Barbara Jackson, who had previously owned the property but lost it in a tax sale, and Cleotha and Greta Lindsey, who purchased the property after the tax sale and sold it to the Lowes. The complaint also sought monetary damages from Jackson and the Lind-seys.

¶ 2. After the case had proceeded for some time, the Lowes brought a motion for summary judgment. They contended that Jackson had failed to answer their requests for admissions within the thirty days allowed by Rule 36 of the Mississippi Rules of Civil Procedure. They further argued that once those alleged facts were deemed admitted, no genuine issue of material fact remained in the suit. The Lind-seys did not contest the Lowes’ ownership of the property.

¶ 3. At the summary judgment hearing, Jackson’s attorney admitted she had not answered the Lowes’ request for admissions. He contended, however, that Jackson should not be penalized because the Lowes had not cooperated with her attempts to schedule depositions. The chancellor, unimpressed with this argument, deemed the proposed admissions to be admitted by Jackson and granted summary judgment to the Lowes on the issue of ownership of the property. The Lowes also asserted that the admissions established that Jackson was liable for $500,000 in monetary damages stemming from various intentional torts, including slander of title and intentional infliction of emotional distress. Jackson never moved to withdraw or amend the admissions concerning monetary damages. Nonetheless, the chancellor refused to grant summary judgment to the Lowes on these issues, against either Jackson or the Lindseys. The chancellor then entered a “final judgment” that did not address whether the Lowes were entitled to damages.

¶4. Jackson appeals from that judgment. She appears pro se, and her contentions on appeal cannot be easily summarized. The Lowes cross-appeal, arguing they should have been awarded monetary damages against Jackson and the Lindseys. We find that because the chancery court’s judgment did not dispose of all of the issues in the case, its judgment was not a true final judgment. An incomplete judgment is interlocutory, and this Court must dismiss the appeal for lack of jurisdiction.

DISCUSSION

¶ 5. Because this issue is jurisdictional, we must address it on our initiative even though none of the parties have raised it on appeal. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006).

¶ 6. “Generally, only final judgments are appealable.” Id. Rule 540b) of the Mississippi Rules of Civil Procedure provides:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

There was no Rule 54(b) certification in this case, nor would one have been appropriate. See Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 899-901 (Miss.1987) (“The rule was adopted to avoid injustice, not to overturn the settle[d] rule against piecemeal appeals .... When there is a judgment dismissing one count of a complaint or counterclaim, a Rule 54(b) finality should never even be considered by the trial court unless the remainder of the case is going to be inordinately delayed, and it would be especially inequitable to require a party to wait until the entire case is tried before permitting him to appeal.”)

¶ 7. ‘Without the entry of a Rule 54(b) certificate, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action, is interlocutory.” M.W.F., 926 So.2d at 900 (¶4). This is true “even if it appears to adjudicate a separable portion of the controversy.” M.R.C.P. 54(b) cmt. An interlocutory order without a Rule 54 certification is only appealable if the Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of Appellate Procedure; this Court has no jurisdiction to hear it otherwise. Lloyd G. Oliphant & Sons Paint Co. v. Logan, 12 So.3d 614, 617 (¶ 9) (Miss.Ct.App.2009).

¶ 8. Here, the chancellor denied the Lowes’ motion for summary judgment on the claims for monetary damages. That decision is not a final adjudication of the claims. We also cannot assume that the final order’s silence amounts to a final decision to deny the claims because there were no motions to dismiss or cross-motions for summary judgment by Jackson or the Lindseys; and, of course, no trial was held on the damages issues. The Lowes’ claims for monetary damages were not before the chancellor for a final decision; they were left hanging after the chancellor denied that part of the Lowes’ motion for summary judgment.

¶ 9. As the chancellor’s “final judgment” did not adjudicate the Lowes’ claims for monetary damages, it is an interlocutory order. We are without jurisdiction to hear the appeals taken from it. Consequently, both the direct appeal and cross-appeal are dismissed, and this case is remanded to the chancery court for further proceedings.

¶ 10. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE CROSS-APPELLANTS.

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

      . There were other named defendants, but they were dismissed from the suit and are not relevant to this appeal.


author: IRVING, P.J.,

text:
    George MARTIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-00401-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.

      Chokwe Lumumba, Jackson, Imhotep Alkebu-Lan, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of George Martin’s petition for post-conviction relief (PCR), which was denied by the Tate County Circuit Court. Feeling aggrieved, Martin appeals and asserts: (1) the circuit court was without jurisdiction to accept his guilty plea; (2) he was illegally sentenced; (3) his motion under Rule 59(e) of the Mississippi Rules of Civil Procedure was improperly denied; and (4) he received ineffective assistance of counsel when he pleaded guilty.

¶ 2. We find no error; therefore, we affirm the circuit court’s judgment.

FACTS

¶ 3. In July 2005, Martin was indicted for burglary, conspiracy to commit burglary, grand larceny, and possession of a firearm by a convicted felon. Each count also alleged Martin’s status as a habitual offender. In 2006, Martin pleaded guilty to burglary. In return, Martin was not convicted as a habitual offender, and the remaining counts of the indictment were remanded to the file.

¶ 4. In March 2008, Martin filed a first PCR petition, which was denied. The denial of that petition was affirmed on appeal by this Court. Martin v. State, 20 So.3d 734 (Miss.Ct.App.2009). On July 27, 2009, Martin filed the present PCR petition. The petition argued that the indictment did not allege felonious intent, that Martin received ineffective assistance of counsel, and that there was an insufficient factual basis for his plea. The circuit court denied the petition in February 2010. Martin challenged that denial by means of a Rule 59(e) motion to alter or amend the judgment. On March 3, 2010, the circuit court denied the motion, noting that Martin’s PCR petition was a successive writ and, thus, subject to the procedural bar found in Mississippi Code Annotated section 99-39-23(6) (Supp.2010). Martin appeals.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jurisdiction

¶ 6. Martin alleges that the circuit court lacked jurisdiction to accept his guilty plea because his indictment did not allege the specific crime on which the burglary was predicated. In relevant part, Martin’s indictment states the following:

COUNT 2
That ... GEORGE MARTIN IV ... on or about the 21st day of JANUARY, in the year of our Lord 2005, in the County and State aforesaid, and within the jurisdiction of this Court, did wilfully, unlawfully[,] and feloniously, break and enter the dwelling house of Jeff Triplett and Laura Triplett, with the intent to commit some crime therein, in direct violation of Section 97-17-23, Mississippi Code 1972 Annotated, as amended!.]
COUNTS
That ... GEORGE MARTIN IV ... on or about the 21st day of JANUARY, in the year of our Lord 2005, in the County and State aforesaid, and within the jurisdiction of this Court, did wilfully, unlawfully!,] and feloniously, take, steal!,] and carry away the personal property of Jeff Triplett and Laura Triplett ... of the total and aggregate value of $500.00 or more in good and lawful money of the United States of America, a more particular description of said property is ... unknown....

During the plea colloquy, the prosecutor stated the following when asked for the factual basis for Martin’s plea:

Your Honor, in Count 2, the State would be prepared to prove ... that George Martin ... did on or about the 21st day of January in 2005[,] break and enter the dwelling house of Jeff and Laura Triplett with the intent to commit larceny therein.
The State would be prepared to prove, Your Honor, that Ms. Triplett came home on that date to find [Martin’s co-defendant] and Mr. Martin in a burgundy[-]eolored SUV at her home. She saw both individuals. She, I believe had a weapon on her person. She told police that the white male passenger in the vehicle had a weapon and had it pointed at her. She pulled out her weapon and discharged it in an attempt to get them to leave the residence. She was able to give police a description of the vehicle as well as a description of the individuals that she had seen and also a list of property that had been taken from the home.
[The codefendant] was ultimately found in the vehicle that matched the description, and when he was stopped in that vehicle, he gave the statement to law[-]enforcement officers that he had just dropped off George in Tate County, that being George Martin. [The code-fendant] also had in the vehicle at that time property that was taken from the Triplett residence.
After [the codefendant] had identified George Martin as the other individual involved, Ms. Triplett was able to identify both individuals as the individuals that she saw at her home on that particular date. Those events occurred in Tate County, and therefore within the jurisdiction of this Court.

Upon questioning by the circuit court, Martin agreed that he could recall the events related by the prosecutor. Martin’s attorney averred to the judge that the State had enough evidence to “get this case before a jury[.]”

¶ 7. On the basis of the above, we find that Martin’s indictment was sufficient. The Mississippi Supreme Court has stated, “so long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient.” Sanderson v. State, 883 So.2d 558, 561 (¶ 9) (Miss.2004) (quoting Farris v. State, 764 So.2d 411, 421 (¶28) (Miss. 2000)). In Sanderson, William Sanderson was charged with conspiracy to commit aggravated assault. Id. at 560 (¶ 7). Sanderson’s conspiracy count failed to allege the name of the victim of the aggravated assault. Id. Our supreme court found that the indictment was sufficient nonetheless, in part because the indictment as a whole put Sanderson on notice as to the identity of his victim, since another count of the indictment identified the victim. Id. at 561 (¶ ¶ 9-10). Ultimately, the supreme court found that Sanderson had “fair and adequate notice of the crimes for which he was tried.” Id. at 561 (¶ 9).

¶ 8. In the present ease, Martin was charged with burglary in Count II of his indictment. That count alleged that Martin broke and entered into the Tripletts’ home with the intent to commit some crime therein; Count III then charged Martin with larceny and listed the items removed from the Tripletts’ home. Read as a whole, we find that Martin had sufficient notice of the elements of burglary. Furthermore, at the time that Martin entered his guilty plea, the prosecutor clearly stated that Martin broke and entered into the Tripletts’ home with the intent to commit larceny therein. Martin never expressed surprise at this statement or attempted to withdraw his guilty plea and proceed to trial. Clearly, Martin understood the elements and nature of his burglary charge.

¶ 9. Since the circuit court had jurisdiction to accept Martin’s guilty plea and his sentence is legal, the circuit court properly denied Martin’s PCR petition as a successive writ. This contention of error is without merit.

2. Illegal Sentence

¶ 10. Martin’s argument that his sentence is illegal is based on the same contention as his jurisdictional claim. As we have already found, Martin’s indictment was sufficient to charge him with burglary and allow him to plead guilty to that charge.

¶ 11. This contention of error is also without merit.

3. Denial of Rule 59(e) Motion

¶ 12. This argument is also based on Martin’s contention that his indictment was insufficient. Accordingly, it is also without merit.

Ip. Ineffective Assistance of Counsel

¶ 13. Martin claims that his attorney was ineffective for not objecting to the indictment. As we have found that the indictment was sufficient, there is no merit to this argument. Martin also appears to claim other grounds for his attorney’s ineffectiveness, such as his attorney’s failure to investigate properly the factual basis for Martin’s plea. Any additional arguments concerning the effectiveness of Martin’s counsel should have been brought in his first PCR petition; those arguments are now barred as a successive writ. Miss. Code Ann. § 99-39-23(6). In fact, this Court already addressed the effectiveness of Martin’s counsel in disposing of his first PCR petition. Martin, 20 So.3d at 737-38 (¶ ¶ 14-21).

¶ 14. This contention of error is without merit.

¶ 15. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


author: SMITH, Justice.

text:
    Ex parte Valentina LUGO DE VEGA et al. (In re Valentina Lugo de Vega et al. v. Tom Shelton et al.). Ex parte Wilson’s Diesel Service, L.L.C., et al. (In re Valentina Lugo de Vega et al. v. Tom Shelton et al.).
    1091491 and 1091495.
    Supreme Court of Alabama.
    Dec. 17, 2010.

      Roger K. Fuston and Michael D. Petway of Fuston, Petway & French, L.L.P., Birmingham, for petitioners/respondents Va-lentina Lugo de Vega, Sylvestre Vega, Jr., Valeria Maria Vega, Jesus Eduardo Vega Lugo, and Matthew Luke Vega Lugo.
    William A. Austill, Joseph E.B. Stewart, and Scott P. Hooker of Austill, Lewis, and Pipkin, P.C., Birmingham, for petitioners Wilson’s Diesel Service, L.L.C., John Wilson, Debco Diesel, Cottondale Diesel Repair, Inc., John Wilson d/b/a Debco Diesel, and John Wilson d/b/a Cottondale Diesel Repair, Inc.
    Thomas Coleman, Jr., of Smith, Spires & Peddy, P.C., Birmingham, for respondents Tom Shelton and James Samuel Shelton.
    Jack Criswell, Birmingham, for respondent Jay Electric Company, Inc.
   SMITH, Justice.

Valentina Lugo de Vega, the widow of Sylvestre Vega, and Sylvestre Vega, Jr., Valeria Maria Vega, Jesus Eduardo Vega Lugo, and Matthew Luke Vega Lugo, the children of Sylvestre Vega (collectively, “the plaintiffs”), petition this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order transferring the plaintiffs’ claims against Tom Shelton, James Shelton, and Jay Electric Company, Inc., to Tuscaloosa County (no. 1091491). Defendants John Wilson and Wilson’s Diesel Service, L.L.C., on their own behalf and also on behalf of defendants Debco Diesel, Cottondale Diesel Repair, Inc., John Wilson d/b/a Debco Diesel, and John Wilson d/b/a Cottondale Diesel Repair, Inc. (collectively, “the Wilson defendants”), also petition this Court for a writ of mandamus directing the Jefferson Circuit Court to transfer the plaintiffs’ claims against them to Tuscaloosa County (no. 1091495). We grant the plaintiffs’ petition and issue the writ, and we deny the Wilson defendants’ petition.

Facts and Procedural History

This action arises from an accident that occurred on August 3, 2007, in which Syl-vestre Vega was fatally electrocuted by a generator for a lighting system at a drilling site. At the time of the accident, Vega was employed as a laborer for Capstone Drilling Company at a methane-gas drilling site in Jefferson County. The principal place of business of Capstone Drilling is in Tuscaloosa County.

As a result of the fatal accident, the plaintiffs, residents of Tuscaloosa County, sued Tom Shelton, a resident of Tuscaloosa County, in the Bessemer Division of the Jefferson Circuit Court on October 5, 2007. In the complaint, the plaintiffs alleged that “Tom Shelton is the owner of Capstone Drilling and has been at all times material herein” and that “[Tom Shelton] is responsible, in whole or in part, for the condition of the generator machine.” Without specifying the identity of Vega’s supervisor at the methane-gas drilling site, the plaintiffs further alleged that “[Vega] was asked by his superior to climb a generator light pole to move the focus of a generator light” and that, “[w]hile climbing the generator light pole, [Vega] came in contact with an energized male plug coming from the generator, which resulted in a fatal electrical current going through his body and resulting in his death.” The complaint contains only one count, “Willfulness,” which states:

“The plaintiff[s] further allege[] that all of the generator lights on the subject generator were wired incorrectly in that the male end of the plugs were energized and the female end of the plugs were non-energized.
“The plaintifffs] further allege[] that at the female end of an electrical plug is a guard on generators, and other electrical machines, to keep someone from being shocked or electrocuted while coming in inadvertent contact with the energized portion of the electrical system.
“The plaintiff[s] further allege[] that the incorrect, or backwards, wiring of the subject generator was the result of the removal, failure to maintain, and/or failure to install proper electrical plugs, where the female end should have been energized and the male end non-energized. In this case, the male plug, in violation of the National Electrical Code, was energized.
“The plaintiff[s] bring[] suit against the Defendant Tom Shelton pursuant to Alabama Code § 25-5-11 for his willful conduct in removing, failing to maintain, and/or failing to install proper guarding on the electrical generator.
“The plaintiff[s] further allege[] that it is the direct and proximate result of the removal, failure to maintain and/or failure to install proper electrical circuitry, and plugs, resulted in plaintiff[s’] decedent, Sylvestre Vega, being fatally electrocuted, when he came in inadvertent contact of the male end of the plug, which was erroneously energized.”

Tom Shelton answered the plaintiffs’ complaint on December 11, 2007, raising various defenses, including the affirmative defense “that venue is improper in this court.”

In February 2008, the plaintiffs filed a first amended complaint to assert claims against Cowin Equipment Company, Inc. The plaintiffs alleged that Cowin Equipment “sold the subject light generator (light plant) which fatally injured Mr. Syl-vestre Vega, to Mr. Vega’s former employer, Capstone Drilling.” The plaintiffs asserted claims against Cowin Equipment under the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”), as well as claims of negligence and wantonness. The trial court dismissed Cowin Equipment as a party to this action in July 2009 pursuant to a “stipulation of pro tanto dismissal” filed by Cowin Equipment.

In April 2008, the plaintiffs filed a second amended complaint to assert claims against Terex Amida Corporation. The plaintiffs alleged that “the Terex Amida Corporation manufactured, designed, sold, and/or marketed the light generator which electrocuted Sylvestre Vega.” The plaintiffs asserted claims against Terex Amida under the AEMLD, as well as claims of negligence and wantonness. The trial court dismissed Terex Amida as a party to the action in August 2009 pursuant to a “stipulation of pro tanto dismissal” filed by Terex Amida.

In May 2008, the trial court entered a scheduling order, setting the discovery deadline for June 1, 2009, the dispositive-motion deadline for July 1, 2009, and the trial date for October 19, 2009.

In August 2008, the plaintiffs filed a third amended complaint to assert claims against James Shelton and Jay Electric Company. The plaintiffs alleged that “[James Shelton] is the owner of Capstone Drilling Company” and that “[he] had electrical work done on his company’s light plant generator which electrocuted Sylvestre Vega.” Like the claim against Tom Shelton, the plaintiffs alleged a willfulness claim against James Shelton “pursuant to Alabama Code § 25-5-11 for the willful conduct in removing, failing to maintain, and/or failing to install proper guarding (the male and female plugs) on the light plant generator.” The plaintiffs also alleged that “Jay Electric Company, Inc., performed electrical work on the light generator,” and they alleged claims of negligence and wantonness against Jay Electric. James Shelton and Jay Electric answered the plaintiffs’ complaint on October 28, 2008, and November 6, 2008, respectively, each raising the affirmative defense “that venue is improper in this court.”

In February 2009, the plaintiffs filed a fourth amended complaint to assert claims against Burgess Equipment Repair, LLC. The plaintiffs alleged that “Burgess Equipment Repair, LLC, did electrical work on the light generator in 2007 and that said work was a result in the failure to maintain and/or failure to install proper electrical circuitry and plugs.” The plaintiffs asserted negligence and wantonness claims against Burgess Equipment Repair based upon its servicing the generator. Burgess Equipment is not a party in the petitions before this Court.

In July 2009, the plaintiffs filed a fifth amended complaint to assert claims against the Wilson defendants. The plaintiffs alleged that the Wilson defendants “did electrical work on the light generator in 2007 and that said work was a result in the failure to maintain and/or failure to install proper electrical circuitry and plugs.” The plaintiffs asserted negligence and wantonness claims against the Wilson defendants based upon the Wilson defendants’ servicing of the generator.

In August 2009, Tom Shelton and James Shelton moved for a summary judgment. From all that appears before this Court, that motion is still pending in the trial court.

The Wilson defendants answered the complaint on September 8, 2009. The Wilson defendants did not specifically assert that venue in Jefferson County was improper. Rather, the Wilson defendants asserted: “The Wilson defendants expressly reserve the right to assert any and all additional defenses, including Rule 12b defenses” and “[t]he Wilson defendants adopt and incorporate herein any and all defenses that may be asserted by any other defendant or defendants which may later be named in this case.”

On September 9, 2009, the day after the Wilson defendants answered the complaint, the trial court entered an amended scheduling order, stating that “amendments to the pleadings must be filed within 90 days of the date of this Order; otherwise, only [by] leave of [the] court,” and setting the discovery deadline for June 1, 2010, and the trial date for August 23, 2010.

On January 5, 2010, nearly four months after answering the complaint, the Wilson defendants moved for a change of venue to Tuscaloosa County under Rule 82(b)(1)(A), Ala. R. Civ. P. The Wilson defendants asserted that venue in Jefferson County was improper because, they argued, venue in Jefferson County was improper as to the only defendant named at the commencement of the action, Tom Shelton. Alternatively, the Wilson defendants argued that, if venue in Jefferson County is proper, the action should be transferred to Tuscaloosa County based on the doctrine of forum non conveniens. Then, on January 22, 2010, the Wilson defendants filed an amended answer to the complaint, without leave of the trial court. In the amended answer, the Wilson defendants specifically “preserve[d] all defenses pursuant to Rule 12(b) of the Alabama Rules of Civil Procedure, including ... improper venue.”

On February 11, 2010, the plaintiffs responded to the Wilson defendants’ motion for a change of venue and moved to strike the amended answer of the Wilson defendants on the ground that it was untimely. See Rule 15(a), Ala. R. Civ. P. (requiring a party to obtain leave of court to amend a pleading less than 42 days before a trial setting). The next day, February 12, 2010, the trial court denied the plaintiffs’ motion to strike the Wilson defendants’ amended answer and ordered the Wilson defendants to reply to the plaintiffs’ response to the motion for a change of venue by February 26, 2010. The Wilson defendants then moved the trial court to stay the briefing on the motion for a change of venue until the deposition of John Wilson occurred. In the motion, the Wilson defendants asserted that “[e]ounsel for plaintiffs expressed a need to depose John Wilson in order to fully respond to the venue issue before this court.” The trial court granted the motion to stay.

On May 28, 2010, the Wilson defendants replied to the plaintiffs’ response to the motion for a change of venue of the action. Then on June 1, 2010, Jay Electric also moved the trial court for a change of venue to Tuscaloosa County. Jay Electric adopted the Wilson defendants’ motion for a change of venue, and it reasserted that venue was improper in Jefferson County because venue was improper there as to the original defendant, Tom Shelton. Two weeks later, on June 15, 2010, Tom Shelton and James Shelton moved to join the motions for a change of venue filed by the Wilson defendants and Jay Electric.

On June 18, 2010, the trial court held a hearing on the motions for a change of venue. After the hearing, the trial court entered an order, stating:

“Defendants John Wilson and Wilson[’s] Diesel Service, L.L.C., motions to transfer are denied as the court finds that said defendants waived their right to transfer by not timely filing a request for the same.
“As to all other defendants, however, the court grants their respective motions to transfer and directs the circuit clerk to transfer their causes to the Circuit Court of Tuscaloosa County, Alabama.”

The plaintiffs have timely petitioned this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order transferring their claims against Tom Shelton, James Shelton, and Jay Electric to Tuscaloosa County. The Wilson defendants have timely petitioned this Court for a writ of mandamus directing the Jefferson Circuit Court to transfer the plaintiffs’ claims against them to Tuscaloosa County. See Rule 21(a)(3), Ala. R.App. P.

Standard, of Review

“A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005).

Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: “The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.” Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). “Our review is limited to only those facts that were before the trial court.” Ex parte Kane, 989 So.2d 509, 511 (Ala.2008).

Analysis

A. The Plaintiffs’ Petition (Case no. 1091191)

The plaintiffs contend that Tom Shelton, James Shelton, and Jay Electric each waived the right to contest venue in Jefferson County as a matter of law because, they say, the motions to change venue under Rule 82(d)(1), Ala. R. Civ. P., “came far too late.” The plaintiffs’ petition, at p. 8. Alabama law is well settled that “the appropriate method to attack improper venue is to appear and make timely motion, and on a failure to do so the improper venue is waived.” Jordan v. Guaranty Pest Control, Inc., 292 Ala. 601, 606, 298 So.2d 244 (1974) (footnote omitted; emphasis added). Here, the plaintiffs note that the motions for a change of venue by the Sheltons and Jay Electric were filed “after the discovery deadline, less than 3 months prior to the trial date, 29 months after Tom Shelton filed his answer, over 19½ months after James Shelton filed his answer, 19 months after Jay [Electric] filed its answer, and nearly a year after the Sheltons filed their motion for summary judgment.” The plaintiffs’ petition, at p. 8.

We first consider whether venue in Jefferson County is proper. In Ex parte Walter Industries, Inc., 879 So.2d 547, 548-49 (Ala.2003), this Court noted:

“ ‘The question of proper venue for an action is determined at the commencement of the action.’ Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999).”

At the commencement of the instant action Tom Shelton was the only named defendant. Therefore, if venue in Jefferson County was improper as to him, “then, upon motion of [a] defendant, the action must be transferred to a court where venue would be proper.” Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). Later amendments to the complaint to add parties or claims, with the exception of substituting the true name of a fictitiously named party, are not considered in determining whether venue is improper at the commencement of the action. See Rule 15(c)(4) (“relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h)”).

Therefore, we must first determine whether venue as to Tom Shelton, the original defendant, is proper in Jefferson County. We look to § 6-3-2, Ala.Code 1975, which governs the proper venue in civil actions against individuals. Section 6-3-2(a)(3) provides that venue in “proceedings of a legal nature against individuals” is proper in either the county in which the defendant resides or “in the county in which the act or omission complained of may have been done or may have occurred.” See also Rule 82(b)(1)(A), Ala. R. Civ. P. Here, it is undisputed that Tom Shelton resides in Tuscaloosa County; therefore, the issue is whether the “act or omission complained of’ in the initial complaint may have occurred in Jefferson County.

As referenced above, the initial complaint contained only one count, willfulness, against Tom Shelton. The plaintiffs specifically alleged that “plaintiffs] bring[] suit against the Defendant Tom Shelton pursuant to Alabama Code § 25-5-11 for his willful conduct in removing, failing to maintain, and/or failing to install proper guarding on the electrical generator.” The complaint does not specify where this alleged wrongful conduct occurred, and the Sheltons and Jay Electric presented the trial court with substantial evidence showing that Tom Shelton did not take any actions in Jefferson County related to the generator and Vega’s death.

In moving for a change of venue, the Sheltons and Jay Electric argued that all the acts or omissions alleged against Tom Shelton occurred in Tuscaloosa County because, they said, “neither James Shelton [n]or Tom Shelton worked on the subject crew” with Vega and that, “while the injury may have occurred [in Jefferson County], all of the acts or omissions made the basis of this case occurred in Tuscaloosa County.” Further, in support of their motion for a change of venue, the Sheltons submitted an affidavit of James Shelton in which he testified that “at the time of [Vega’s] fatal accident of August 3, 2007 ... neither my son, Tom Shelton, nor I were present at the job site.” The plaintiffs have not disputed this contention. Further, in the Sheltons’ motion for a summary judgment, filed more than nine months before the Sheltons moved for a change of venue to Tuscaloosa County, the Sheltons asserted that “Tom Shelton has repeatedly stated that he is not, and has never been, involved in the maintenance of the light plants; neither does he have knowledge of when and how the wires were reversed.”

The plaintiffs have not disputed the assertion that Tom Shelton was not in Jefferson County when the accident occurred. Rather, the plaintiffs took the following position in the trial court:

“Because the generator was used in the course of Capstone Drilling’s business on the day of [Vega’s] death in the Bessemer Division, the wrongful conduct of Tom (and James) Shelton in failing to maintain and install the safety devices on the machine at their Tuscaloosa shop is not the only wrongful act or omission that they have committed. To the contrary, they also wrongfully failed to maintain and install the safety devices on the generator while it was in the Bessemer Division.”

This argument fails because the “acts or omissions complained of’ in the initial complaint are based upon the “willful and intentional” conduct of Tom Shelton, and the trial court had no evidence before it that such conduct occurred in Jefferson County. Under § 6-3-7, “the inquiry is not the location of the injury, but the location of the events or omissions giving rise to the claim.” See Ex parte Suzuki Mobile, Inc., 940 So.2d 1007, 1009-10 (Ala.2006). Because Tom Shelton has demonstrated that he took no action related to the generator in Jefferson County, we conclude that venue in Jefferson County was improper. See Ex parte Children’s Hospital of Alabama, 931 So.2d at 7 n. 6.

Although we have determined that venue is improper in Jefferson County, we must consider whether the Sheltons and Jay Electric waived the defense of improper venue. Because the Sheltons and Jay Electric pleaded improper venue in their respective answers to the complaint, they preserved their right to file a timely motion for a change of venue under Rule 82, Ala. R. Civ. P. See Ex parte Movie Gallery, 31 So.3d 104, 111 (Ala.2009). Specifically, Rule 82(d)(1), Ala. R. Civ. P., states: “When an action is commenced laying venue in the wrong county, the court, on timely motion of any defendant, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.” (Emphasis added.) Rule 82 does not define what constitutes a “timely motion” for a change of venue, but Rule 1(c), Ala. R. Civ. P., provides us with the general instruction that the Alabama Rules of Civil Procedure “shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” This Court has addressed the timeliness of a motion for a change of venue under Rule 82(d)(1), Ala. R. Civ. P., on several occasions, and we turn to those cases for further guidance in determining whether the motions for a change of venue filed by the Sheltons and Jay Electric were timely filed. See Ex parte Starr, 419 So.2d 222, 223 (Ala.1982); Ex parte Movie Gallery, 31 So.3d at 111; and Ex parte Michelin North America, Inc., 56 So.3d 604, 610 (Ala.2010).

In Ex parte Starr, this Court held: “The first time the defendant raised the venue issue came some nine months after the complaint was filed. This is not a timely objection under Alabama Rules of Civil Procedure, Rule 82.” 419 So.2d at 223. In that case, the defendant moved to set aside a default judgment against him on the ground that his “failure to file an answer was due to inadvertence or mistake.” Id. The trial court set aside the default judgment, and the plaintiffs challenged its ruling by a petition for a writ of mandamus to this Court. After this Court denied the plaintiffs’ petition for a writ of mandamus, the defendant moved the trial court to transfer the action under Rule 82. The trial court denied the motion on the basis that it was untimely filed, and the defendant then petitioned this Court for a writ of mandamus directing the trial court to transfer the action. This Court denied the petition, concluding that, “[ujnder these facts, we hold that [the defendant’s] objection to venue comes too late.” 419 So.2d at 223. In explaining its decision, this Court noted that the defendant had “put the plaintiffs to considerable expense, both in terms of time and money, and has sought and received relief from a default judgment” and that “[o]nly after the plaintiffs failed in this Court to have the judgment reinstated did he raise the venue issue.” Id.

In Ex parte Movie Gallery, the plaintiff sued the defendants in Montgomery County, asserting claims of slander and intentional interference with business relationships. For unknown reasons, the plaintiff agreed to extend the defendants’ time in which to answer the complaint. The defendants then answered the complaint, raising the defense of improper venue, and, nearly two months after answering the complaint, the defendants moved for a change of venue. The trial court denied the motion for a change of venue, and the defendants then petitioned this Court for a writ of mandamus directing the trial court to transfer the action. This Court granted the petition and issued the writ, in part, holding: “[The defendants] filed [a] motion for a change of venue 81 days after [the] answer would have been due, absent the agreement, and 55 days after [the] answer was filed pursuant to the agreement. Under the facts as presented to this Court, the motion was not untimely.” Ex parte Movie Gallery, 31 So.3d at 111.

In Ex parte Michelin, the plaintiff filed an AEMLD action against the defendants in Barbour County. The defendants answered the complaint, raising the defense of improper venue. The plaintiff then filed first and second amended complaints, which the defendants answered, each time raising the defense of improper venue. Two and a half months after the defendants answered the plaintiffs second amended complaint, the defendants moved to transfer the action to Autauga County. The trial court denied the motion to transfer the action, and the defendants then petitioned this Court for a writ of mandamus directing the trial court to transfer the action.

In responding to the petition, the plaintiff argued that the defendants’ motion for a change of venue was untimely because, the plaintiff said, the defendants were neither vigilant nor diligent in moving to transfer the action. Specifically, the plaintiff asserted that the defendants had “ ‘waited over seven (7) months before [they] sought to transfer venue under Rule 82 despite knowing that venue was improper when [they were] was first served with the Complaint.’ ” 56 So.3d at 611 (quoting the plaintiffs petition). This Court held that the defendants’ motion for a change of venue was timely. Relying on Ex parte Movie Gallery, this Court held that the passage of two and a half months between the time the defendants answered the second amended complaint and the filing of the motion for a change of venue did not render the motion untimely. In supporting the holding, this Court noted that “[a] defendant may need at least some time to marshal evidence to prove the allegation that venue is improper,” 56 So.3d at 611, and cited 14D Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3829 (2007): “On occasion a party who has raised a proper objection to venue will make use of discovery before pressing for a decision on the venue objection. The service of interrogatories and the taking of depositions is not, in itself, a waiver of the venue defense.” This Court summarized its holding as.follows:

“In short, [the defendants] consistently preserved [the] right to file a timely motion for a change of venue in each of [their] answers to [the plaintiffs] complaint and amended complaints. [The defendants] then engaged in discovery aimed at supporting such a motion. Upon completion of that discovery, [the defendants] filed a motion for a change of venue on the alternative bases of improper venue and forum non conve-niens. [The plaintiff] has conceded in the circuit court and on appeal that venue is improper in Barbour County, and the circuit court noted in its order that there was no evidence indicating that venue was proper in Barbour County at the time the action was filed. Under these circumstances, we conclude that [the defendants’] motion for a change of venue was not untimely and that the circuit court erred in denying [the defendants’] motion on that basis.”

56 So.3d at 612.

Under the facts of this case, we conclude that the motions for a change of venue filed by the Sheltons and Jay Electric were untimely. Simply, venue in Jefferson County was clearly improper as to Tom Shelton at the commencement of the action, and Tom Shelton, James Shelton, and Jay Electric have not demonstrated a reasonable basis for waiting 29 months, 19½ months, and 19 months, respectively, between preserving the right to file a timely motion to transfer the action and filing the motion. Further, the Sheltons have not demonstrated a reasonable basis for waiting nearly nine months after moving for a summary judgment in Jefferson County before moving to transfer the action to Tuscaloosa County. These unreasonable delays in filing the motions to transfer the action constitute a waiver of the improper-venue defense.

We note that the Sheltons and Jay Electric argue that they necessarily waited until the deposition of John Wilson occurred in May 2010 before moving for a change of venue, because, they say, John Wilson was “most critical to the issue of venue.” Shel-tons’ brief, at p. 14. We disagree. As discussed in detail above, venue in Jefferson County was clearly improper at the commencement of this action, and the testimony of John Wilson was unnecessary in demonstrating that venue was improper in Jefferson County. The plaintiffs alleged a claim against Tom Shelton for his alleged acts and omissions related to the generator, and, upon receipt of the complaint, he should have been immediately aware that he had not engaged in any willful conduct related to the generator in Jefferson County and, therefore, that venue in Jefferson County was improper.

Because the motions to transfer the action to Tuscaloosa County filed by the Sheltons and Jay Electric were untimely, the plaintiffs have a clear legal right to an order vacating the trial court’s order granting those motions.

B. The Wilson Defendants (Case no. 109U95)

The Wilson defendants also petition this Court for a writ of mandamus directing the trial court to transfer the plaintiffs’ claims against them to Tuscaloosa County. As referenced above, the trial court denied the Wilson defendants’ motion for a change of venue on the ground that they “waived their right to transfer by not timely filing a request for the same.”

Rule 12(h)(1), Ala. R. Civ. P., states:

“A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g),[] or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.”

Here, the Wilson defendants neither raised the defense of improper venue by motion under Rule 12 nor included the defense of improper venue in their initial answer to the complaint. Instead, in their initial answer, they stated that “[t]he Wilson defendants expressly reserve the right to assert any and all additional defenses, including Rule 12b defenses” and “[t]he Wilson defendants adopt and incorporate herein any and all defenses that may be asserted by any other defendant or defendants which may later be named in this case.” (Emphasis added.) This is not sufficient pleading of a defense of improper venue in a responsive pleading because both assertions are merely reservations of the right to raise any defenses in the future, rather than the assertion of a certain defense. We recognize that the Wilson defendants filed an amended answer that specifically raised the defense of improper venue after they moved for a change of venue and that the trial court denied the plaintiffs’ motion to strike the amended answer, but we hold that the assertion of the defense in the amended answer was not in compliance with Rule 12(h) because the amended answer was not “permitted by Rule 15(a) ... as a matter of course.” The trial court’s scheduling order required leave of court to amend a pleading, and the Wilson defendants did not obtain leave of court before filing the amended answer. Because the Wilson defendants did not preserve the right to file a motion for a change of venue in accordance with Rule 12(h), Ala. R. Civ. P., the Wilson defendants waived the right to move for a change of venue. Accordingly, we hold that the Wilson defendants do not have a clear legal right to a writ of mandamus directing the trial court to transfer the plaintiffs’ claims against them to Tuscaloosa County.

Conclusion

Based on the foregoing, the plaintiffs’ petition for the writ of mandamus is granted, and the Wilson defendants’ petition for the writ of mandamus is denied.

1091491 — PETITION GRANTED; WRIT ISSUED.

1091495 — PETITION DENIED.

COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur.

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

      . Alabama’s forum non conveniens statute, § 6-3-21.1 (a), Ala.Code 1975, provides, in pertinent part:
      "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....”

      . From all that appears, Burgess Equipment Repair did not move the trial court to transfer the plaintiffs’ claims against it to Tuscaloosa County. The plaintiffs include a footnote in their petition stating: "Although the claims against Burgess are still pending, plaintiffs will contest its motion for summary judgment.” The plaintiffs’ petition, at p. 8 n. 10.

      . We note that the plaintiffs did not amend the complaint to substitute the true name of a fictitiously named defendant in accordance with Rule 9(h), Ala. R. Civ. P. To invoke the relation-back principle of Rule 15(c)(4), a plaintiff
      "(1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued.”

        Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala. 1996). Here, the plaintiffs did not state causes of action against fictitiously named parties.

      . As noted, the underlying action was brought in the Bessemer Division of the Jefferson Circuit Court. This Court has advised that, when determining whether venue is proper within the Bessemer Division,
      "the court first asks whether venue is proper in Jefferson County under the applicable venue laws. Ex parte Alabama Mobile Homes, 468 So.2d 156 (Ala. 1985). If it is, the court then determines in which division venue is proper: ‘the Bessemer Division can hear only cases that have "arisen” within the territorial boundaries of that division.’ [Ex parte ] Walter Indus.[, Inc.], 879 So.2d [547] at 551 [ (Ala.2003) ]. If the cause of action did not arise within the territorial boundaries of the Bessemer Cutoff, then venue is in the Birmingham Division.”

        Ex parte Children’s Hosp. of Alabama, 931 So.2d at 7 n. 6. Our conclusion that venue was improper in Jefferson County under the applicable venue laws necessarily pretermits consideration of whether venue was proper in the Bessemer Division.

      . In Ex parte Michelin North America, Inc., 56 So.3d 604 (Ala.2010), this Court held that "Rule 82(d) does not impose a 30-day time limit for filing a motion for a change of venue when venue is improper at the commencement of the action." See Ex parte Movie Gallery, 31 So.3d at 109 (holding that "[njeither subsection (i) nor (ii) [of Rule 82(d)(2)(C), Ala. R. Civ. P.J apply to a motion for a change of venue at the commencement of the action”).

      . We pretermit discussion of the defendants’ arguments related to the doctrine of forum non conveniens because the doctrine of forum non conveniens "has a field of operation only where an action is commenced in a county in which venue is appropriate.” Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala. 1995).

      . Rule 12(g), Ala. R. Civ. P., states:
      "A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.”


author:
WOODALL, Justice. BOLIN, Justice
      MURDOCK, Justice

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Albert MACK III).
    1091312.
    Supreme Court of Alabama.
    Dec. 17, 2010.

      Troy King, atty. gen., and Thomas R. Govan, Jr., asst. atty. gen., for petitioner.
    Térrica Redfield, Southern Center for Human Rights, Atlanta, Georgia; and Samantha L. Southall of Buchanan Ingersoll & Rooney PC, Philadelphia, Pennsylvania, for respondent.
    A. Kelli Wise, presiding judge, and Samuel Henry Welch, Mary Becker Windom, J. Elizabeth Kellum, and James Allen Main, judges, Alabama Court of Criminal Appeals, as respondents.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   WOODALL, Justice.

The Court of Criminal Appeals issued a writ of mandamus in response to a petition filed by Albert Mack III, whose Rule 32, Ala. R.Crim. P., petition is pending in the Tuscaloosa Circuit Court, directing the trial court to ensure that Mack has access to certain demographic information he is seeking. The State of Alabama has sought review of the Court of Criminal Appeals’ decision in this Court by filing a petition for a writ of mandamus directed to the Court of Criminal Appeals. See Rule 21(e)(1), Ala. R.App. P. We deny the State’s petition.

Our consideration of this matter must begin with Ex parte Mack, 894 So.2d 764 (Ala.Crim.App.2003) {“Mack I ”), in which the Court of Criminal Appeals granted, in relevant part, an earlier mandamus petition filed by Mack. Mack filed that petition after the trial court had denied his requests for “the demographic information on the race and gender of grand and petit jurors in Tuscaloosa County from 1978 through 1995.” 894 So.2d at 766. Mack had sought the demographic information in relation to his claim “that his trial counsel’s performance was ineffective because he failed to effectively challenge the under-representation of African-Americans on the grand and petit juries in Tuscaloosa County.” 894 So.2d at 769. The Court of Criminal Appeals held that Mack had shown good cause for obtaining the demographic information, and, insofar as the information was concerned, it granted Mack’s petition.

The judges of the Court of Criminal Appeals have responded to the State’s petition for a writ of mandamus directed to that court. See Rule 21(b), Ala. R.App. P. In their response, the judges assert that “[t]he instructions in [Mack I ] were clear,” but they admit that the opinion “did not identify what agency could or would furnish [the demographic] information to Mack.” Judges’ response, at 7-8.

Until 2010, Mack took no further action to obtain any of the demographic information to which he had sought access, despite the favorable holding in Mack I. Then, on March 4, 2010, the trial court, on Mack’s motion, ordered the circuit clerk to produce the grand and petit jury venire lists from 1978 through 1995. The clerk promptly produced the lists, but only two lists from 1995 contained information regarding the race and gender of the members of the venire.

On April 1, 2010, Mack filed a motion seeking the trial court’s “compliance” with the decision in Mack I. More specifically, the motion requested that the court order “the Alabama Department of Motor Vehicles, the Administrative Office of Courts, the Tuscaloosa District Attorney’s Office, and the Tuscaloosa County Department of Voter Registration ... to produce any records in their custody or control that reflect the race and gender of jury venires between 1978 and 1995 in Tuscaloosa County.” On April 5, the trial court denied that motion on the bases that the circuit clerk had provided Mack everything within her possession and that the additional requests amounted to “nothing more than a fishing expedition.”

On April 6, 2010, Mack’s counsel sent a letter to the trial court explaining why she had reason to believe that the Tuscaloosa County Board of Registrars had demographic information responsive to the earlier request and stating that, with a court order, counsel would be given access to the available records. On April 9, the trial court entered another order denying any further discovery, and Mack filed a second petition for a writ of mandamus in the Court of Criminal Appeals.

On June 9, 2010, the Court of Criminal Appeals granted Mack’s petition. In a brief unpublished order, the court, relying upon the holding in Mack I, directed the trial court “to comply with [the Court of Criminal Appeals’] instructions in Mack [I ] and to ensure that Mack has access to the demographic information concerning the grand and petit jurors in Tuscaloosa County from 1978 through 1995.” Ex parte Mack (No. CR-09-0973, June 9, 2010), — So.3d-(Ala.Crim.App.2010) (table) (“Mack II ”). However, as in Mack I, the Court of Criminal Appeals did not identify which agency could or would furnish the demographic information to Mack. Thus, as the State correctly argues, Mack II “fails to provide any guidance to the circuit court [as to] what specific discovery Mack is entitled.” Petition, at 12. Thus, in deciding whether to issue a writ of mandamus to the Court of Criminal Appeals, we must look to the response to the State’s petition by the judges of that court to determine the breadth of the Court of Criminal Appeals’ order in Mack I.

In their response, the judges mention only that Mack “informed the circuit court that the information he sought was maintained by the Tuscaloosa Voter Registration Office and ... that he could have access to the information if the [trial court] would sign an order to that effect.” Judges’ response, at 5. Then, according to the respondent judges, when the trial court “refused to sign [such an] order for discovery,” Mack filed his petition for a writ of mandamus in the Court of Criminal Appeals. Id. Therefore, we construe the order in Mack II to order discovery only with regard to demographic information available from the Tuscaloosa County Board of Registrars. Our review of the order is de novo. Rule 21(e), Ala. R.App. P. However, “[t]he materials reviewed by this Court in considering a petition for writ of mandamus consist [only] of exhibits provided by the parties....” Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 232 n. 2 (Ala.2004).

In Mack I, the Court of Criminal Appeals clearly held that Mack was entitled to the demographic information about the jury venires in question. However, although the circuit clerk has been able to produce the jury lists Mack requested, only two of the lists reveal information about race or gender. On the other hand, it is undisputed that the board of registrars has in its records voter-registration applications that request, and generally contain, information about the applicant’s gender and race. We see no reason why the trial court should not be required to order that the voter-registration applications in the possession of the board of registrars be made available to Mack for his review. Hopefully, Mack will be able to gather from this review the demographic information he needs without again requesting further discovery from other sources, allowing his long pending Rule 32 petition to move toward a conclusion.

The State’s arguments in support of its petition are not persuasive. First, the State argues that Mack is entitled to no further discovery, “because the circuit court has already attempted to provide ‘demographic information’ by ordering discovery of the jury venire lists of Tuscaloosa County from 1978-1995.” Petition, at 14. Although it is true that the trial court ordered the production of the venire lists, it is equally true that “Mack still needs the demographic information.” Mack’s response, at 15.

Next, the State argues that Mack’s request for further discovery is a “textbook example of a fishing expedition.” Petition, at 20. This is so, according to the State, because there is no evidence indicating that the board of registrars possesses any jury list or other information concerning the identity of veniremembers for the period in question. This argument completely misses the mark. Mack already has the jury lists. He needs the voter-registration applications available from the board of registrars because those applications are likely to reveal the type of demographic information that is missing from all but two of the jury lists. More specifically, if Mack is able to identify the venire-members’ voter-registration applications, he is likely to have available to him information concerning the race and gender of those veniremembers.

Third, the State argues that requiring the board of registrars to produce the available voter-registration applications “would create an overwhelming strain and burden on that agency’s resources.” Petition, at 29. This argument is based on the State’s assumption that “an employee [of the board] would have to manually search each box of paper voter registration applications by hand and compare each application to a list of people who served on juries in Tuscaloosa County from 1978-1995.” Id. However, as previously stated in this opinion, the trial court is required to order only that the voter-registration applications be made available to Mack for his review. The exhibits before this Court in this petition for the writ of mandamus indicate that the board of registrars has already located the boxes containing the voter-registration applications and identified those applications within the scope of Mack’s request.

Finally, we note that the State does not argue that the Court of Criminal Appeals has ordered the production of any confidential information. Indeed, the materials before this Court belie any concern that the voter-registration applications contain confidential information. “Even if Mack [is] able to gain access to voter registration records, such records do not request an applicant’s full Social Security number. (Ex. D., App. 8 at p. 2).” Petition, at 25. The exhibit referenced by the State states, based on information provided by an employee of the board of registrars, that the “applications request [only] the last four digits of the applicant’s Social Security number.”

For these reasons, the State’s petition for a writ of mandamus directed to the Court of Criminal Appeals is denied.

PETITION DENIED.

COBB, C.J., and LYONS, STUART, and PARKER, JJ., concur.

BOLIN, J., concurs specially.

SMITH and MURDOCK, JJ., dissent.

SHAW, J., recuses himself.

BOLIN, Justice

(concurring specially).

I concur specially with the main opinion, but I write separately to address the potential divulgence of voters’ Social Security numbers as the result of any blanket discovery order directed to the Tuscaloosa County Board of Registrars allowing unfettered access to voter-registration applications.

The defendant, Albert Mack III, seeks information concerning the race and gender of members of jury venires in Tuscaloosa County from 1978 to 1995, specifically through the local board of registrars. As the main opinion correctly points out, the State does not argue that the order of the Court of Criminal Appeals makes available for inspection, either inadvertently or not, confidential information from the voter-registration applications. The only mention by the State of the possible disclosure of such information is in its reply brief, which states:

“However, simply because Mack asserts that he is willing to do the searching and copying does not mean that he will actually be granted access by the various agencies to their official files, with potentially confidential information, to sift through and copy.”

(Reply brief, p. 14.)

The State’s only specific mention of voters’ Social Security numbers, as opposed to nonspecific “confidential information,” relates to its argument that Mack’s request for discovery of records of the Department of Motor Vehicles would require the individuals’ Social Security numbers because that is what the Department uses to access information, arguing that such would be “completely impracticable and is nothing but a fishing expedition.” (Petition, p. 25.) This in no way properly addresses a crucial issue — whether unfettered access to voter-registration records would allow the disclosure of voters’ Social Security numbers. Indeed, the State takes at face value a statement from Mack’s counsel, based on a conversation with an employee of the board of registrars, that that board’s voter-registration records list only the last four digits of a voter’s Social Security number. This is true now by virtue of § 17-4-36, Ala.Code 1975, which became effective January 13, 2003. See Act No. 2003-813, Ala. Acts 2003. Act No. 2003-313 changed the duty of each board of registrars from obtaining a voter’s “Social Security number, if such number is known,” to obtaining only the last four digits of that number. A 1977 voter-registration form approved by this Court in accordance with then § 17-4-122 (now § 17-3-52) requested Social Security numbers from registering voters. Because Mack is requesting records from 1978-1995, it is fair to assume that the board of registrars met its duty during this period and, as a consequence, that the majority of its stored application records contain full Social Security numbers.

The State does argue that compliance with the judgment of the Court of Criminal Appeals would create “an extreme burden on the state.” As pertains to the burden on the board of registrars, the State argues:

“Regarding the Tuscaloosa Board of Registrars, specifically, that agency’s records are maintained in the attic of the Tuscaloosa County courthouse. The Board of Registrars’ records are stored in boxes. The records within these boxes are not maintained in a particular order. In order for that agency to comply with a discovery order to provide demographic information, an employee would have to manually search each box of paper voter registration applications by hand and compare each application to a list of people who served on juries in Tuscaloosa County from 1978-1995. The Board of Registrars also does not have a large staff and this process would be both time consuming and labor intensive. Furthermore, as noted above, this exercise could all be a fruitless labor as there is no guarantee that searching through the Board of Registrars records will reveal any person who served on [a] jury from 1978-1995, not to mention demographic information. Certainly, such a task would create an overwhelming strain and burden on that agency’s resources.”

(Petition, pp. 28-29.) Mack counters that he needs only that the information be made available to him and that he will “make arrangements to gather, review, copy or scan the necessary information.” (Emphasis added.)(Respondent’s brief, p. 25.)

Significantly, the State does not argue that the presence of, and possible disclosure of, voters’ Social Security numbers will mandate personal scrutiny by employees of the board of registrars as each individual voter-registration application is examined to see if the applicant matches the name of a venireperson supplied by the lists prepared by the circuit clerk. It is my opinion that this would have been pertinent to the State’s argument that the requested discovery would have been unduly burdensome.

Citizens applying to vote before the effective date of Act No. 2003-313 had a right to rely on their belief that their State government would not make available their Social Security numbers, which were requested by the board of registrars on their voter-registration application. Social Security numbers are private information, the unauthorized release of which can lead to identity theft. See Greidinger v. Davis, 988 F.2d 1344, 1353-54 (4th Cir.1993) (holding that the state’s requirement that a voter supply a Social Security number when registering to vote and then making voter-registration lists containing Social Security numbers available to the public infringed upon the right to vote and that the burden was not narrowly tailored to meet the state’s interest in preventing voter fraud because “armed with one’s [Social Security number], an unscrupulous individ-

ual could obtain a person’s welfare benefits or Social Security benefits, order new checks at a new address on that person’s checking account, obtain credit cards, or even obtain the person’s paycheck.... Succinctly stated, the harm that can be inflicted from the disclosure of [Social Security number] to an unscrupulous individual is alarming and potentially financially ruinous.”). The Kentucky appellate court in Zink v. Commonwealth, 902 S.W.2d 825, 829 (Ky.Ct.App.1994), accurately stated:

“Those nine digits today represent no less than the keys to an information kingdom as it relates to any given individual. Access to a wealth of data compiled by both government agencies and private enterprises such as credit bureaus is obtainable simply upon presentation of the proper social security number.”

The Alabama Legislature exempted voter-registration records from being classified as public records in § 17-3-52, Ala. Code 1975, which states, in pertinent part:

“Except as provided in Section 17-3-53, the applications of persons applying for registration shall not become public records as public records are defined under the laws of the State of Alabama, nor shall the board disclose information contained in such applications and written answers, except with the written consent of the person who filed the answer or pursuant to the order of a court of competent jurisdiction in a proper proceeding.”

Because the State has not shown a clear legal right to mandamus relief in this proceeding, I would suggest that the trial court would still be “a court of competent jurisdiction in a proper proceeding” to protect the confidentiality of the voter-registration applications as they pertain to the sensitive information contained therein, in complying with Mack’s right to discover demographic information as ordered by the Court of Criminal Appeals.

MURDOCK, Justice

(dissenting).

As a threshold matter, I note that the underlying issue for which the discovery is sought in this case is not the direct question whether there was an unconstitutional disparity in the makeup of the jury panels in Tuscaloosa County at the time Albert Mack III was indicted and convicted in 1995. Rather it is whether there was a constitutional disparity and whether this disparity was such that it was known or should have been known to Mack’s trial counsel so that his failure to assert it and to conduct the discovery now being attempted in an effort to find proof of it justifies a conclusion that counsel was not acting as the counsel guaranteed by the Sixth Amendment to the United States Constitution. If the answer to any aspect of the latter query is “no,” this would have been a ground for the Court of Criminal Appeals to have reached a different result in Mack I. I see no discussion of this issue in Mack I; I therefore assume that the State did not explore it at the time of that decision, and I will not do so now.

Nonetheless, under the de novo standard by which we are to review the current petition, I question whether the discovery being ordered by this Court today will provide Mack the information he is seeking concerning the race and gender of veniremembers from 1978 to 1995. In this regard, I first note that, according to the affidavit of Kathie Viselli, the director of the Board of Registrars for Tuscaloosa County, the only voter-registration records from 1978-1995 that have been located are from the years 1980 to 1984. Even if these records were to show a significant disparity in the makeup of Tuscaloosa County jury panels during those years, I question how material this information would be to Mack’s ultimate purpose of showing that his 1995 conviction came at the hands of an improperly constituted jury to which his trial counsel should have objected.

Second, I am not persuaded that the available registration forms, even for this four- or five-year period, contain the information needed. Alabama law during this period did not provide for registration forms requesting that the voter indicate his or her race or gender. See 65 So.3d at 902 n. 3 (Bolin, J., concurring specially and indicating the differences between the current registration statute and the statute in place before the 2003 amendment). In her affidavit, Viselli states that she has worked with the Tuscaloosa Board of Registrars only since 2004. She thereafter states:

“I do not know for sure whether demographic information, such as race and gender, will be contained on the voter registration applications from the years 1980-1984. The voter registration applications request data on race and gender. However, in my experience, in some cases applicants will fail to identify their race or gender or both on the voter registration applications.”

Especially in light of the status of Alabama law during the period 1980 through 1984,1 question whether Viselli’s description in the middle sentence of what is requested on voter-registration applications should be read in relation to the reference in the preceding sentence to the “registration applications from the years 1980-1984” or in relation to the years with which Viselli has “experience,” as referenced in her following sentence, i.e., from 2004 forward.

For similar reasons, and despite some suggestion to the contrary in one of the numerous exhibits attached to the State’s petition,1 am not persuaded that the voter-registration applications Mack seeks do not contain the entire Social Security number of the applicants. The Alabama statute governing this matter during the period in question provided for registration forms requiring the voter to provide his or her entire Social Security number. Again, see 65 So.Sd at 902 n. 3 (Bolin, J., concurring specially and indicating the differences between the current registration statute and the statute in place before the 2003 amendment).

Overarching these doubts is the fact that the voters whose Social Security numbers appear in whole or in part on the voter-registration forms to be produced are not parties to this case. I therefore do not consider myself or other elements of the judiciary bound by the fact that the prose-cutorial arm of the State, insofar as it is a party to this action, does not adequately make an issue of this fact. In his special writing, Justice Bolin correctly observes that “[cjitizens applying to vote before the effective date of Act No. 2003-313 had a right to rely on their belief that their State government would not make available their Social Security number, which were requested by the board of registrars on their voter-registration application.” 65 So.3d at 903 (Bolin, J., concurring specially). The judiciary is a part of that State government.

On the basis of the law and materials presented, and the confidentiality concerns expressed above, I do not believe the relief left in place by this Court’s decision today is justified. I therefore respectfully dissent.

SMITH, J., concurs.

      . The judges never mention in their response the Tuscaloosa District Attorney's Office, the Administrative Office of Courts, or the Department of Public Safety.

      . "Mr. Mack only requests that the information be made available to him. He will make arrangements to gather, review, copy or scan the necessary information.” Mack's response, at 25.

      . Act No. 2003-313 amended § 17-4-36 as follows (the changes are shown by strike-throughs (deletions) and emphasis (additions)):
      "(a) In order to establish the statewide voter file and to ensure its continued accuracy, it shall be the duty of the boards of registrars, on forms or in a manner rule prescribed by the Director-of Voter Registration Secretary of State:

      "(1) To provide said.'director the Secretary of State the name, driver’s license number or non-driver's identification number, if such number is known, the last four digits of the Social Security number, if such number is known, date of birth, address, race, sex, and political subdivision or voting place of each registered voter in their respective counties within one month after a written request from said-direotor the Secretary of State;

      "(2) To provide said-direetor the Secre-taiy of State the name, driver’s license number or non-driver's identification number, if such number is known, the last four digits of the Social Security number, if such number is known, date of birth, address, race, sex, political subdivision or voting place, place of previous registration, if applicable, and date of registration of each newly registered voter as such voter is registered;
      "(3) To provide to said director the Secre-taiy of State the name, driver’s license number or non-driver’s identification number, if such number is known, the last four digits of the Social Security number, if such number is known, date of birth, address, race, sex, political subdivision or voting place, and date of reidentification of every voter who reidentifies, pursuant to Article 7 of this chapter.

        “(b) Where an applicant for voter registration is unable to produce either a driver's license number, a non-driver's identification number, or the last four digits of the Social Security number, the state voter registration list shall assign a unique number which shall serve as the registrant’s voter registration identification number

      ''(b)"Mcmbars of local boards of registrars and members of county commissions who-fail to comply with the provisions of this-article in thoir representative capacities as such registrars and commissioners shall be guilty of-a-Class A misdemeanor and punished-as-pre-scribed by-la-Wv1'

      . The materials before us include an exhibit consisting of a letter from Mack's counsel to the trial judge recounting an April 2010 conversation with Coral Lewis "in the Tuscaloosa County Voter Registration records department.” Counsel (not purporting to quote Lewis) asserts that "Lewis indicated that the voter registration applications request name, address, date of birth, race, sex, drivers' license numbers, and the last four digits of the applicant’s [Sjocial [SJecurity number.” (Petition Exhibit D, App. 8 at p. 2.)