author: MAXWELL, J.,

text:
    Delisa Dale MILLER, Appellant v. Ryan E. MILLS, Appellee.
    No. 2009-CA-01895-COA.
    Court of Appeals of Mississippi.
    May 3, 2011.

      Mark W. Prewitt, Vicksburg, attorney for appellant.
    Vicki Vining Baker, attorney for appel-lee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Delisa Miller challenges the enrollment in the Warren County Chancery Court of a child-visitation order obtained in Madison Parish, Louisiana, by her children’s father, Ryan Mills. Miller claims she was living in Mississippi at the time Ryan filed his petition for visitation and that the Louisiana court did not properly notify her of the hearing.

¶ 2. Child-visitation determinations, in both Louisiana and Mississippi, are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA). Both the Warren County Chancery Court and the Louisiana court found Delisa was properly notified of the Louisiana proceeding. But neither court, in issuing or enforcing the Louisiana visitation order, addressed the UC-CJEA’s jurisdictional requirements.

¶ 3. Because the record does not support Louisiana being the children’s “home state” (or any other ground for UCCJEA jurisdiction), the Warren County Chancery Court erred by denying Delisa’s motion to contest registration. We reverse the chancery court’s judgment and render void the registration of Ryan’s custody order in Mississippi.

BACKGROUND

¶ 4. Delisa and Ryan began living together in Madison Parish, Louisiana, in 2005. They had two children together, a son born in July 2007 and a daughter born in September 2008. According to Delisa, she and the children moved to Vicksburg, Mississippi, on January 31, 2008. But Ryan’s child-custody petition alleges that Delisa and the children moved to Mississippi in December 2008, when Ryan went to prison.

¶ 5. After his release, on July 14, 2009, Ryan filed a petition in Madison Parish, Louisiana, to establish parentage, to obtain custody, and for visitation. In his petition, Ryan acknowledged Delisa was living in Mississippi. But he claimed Delisa was still “domiciled” in Madison Parish. On July 17, Ryan’s attorney via certified mail sent a copy of the petition to Delisa’s Mississippi address. Soon after, Ryan’s attorney received a phone call from Delisa, in which his attorney claimed Delisa told her, “This is not going to work.” On July 28, Delisa filed a petition for sole custody in the County Court of Warren County, which referred the matter to the Warren County Youth Court. The youth court dismissed Delisa’a petition on August 13, finding that Louisiana already had jurisdiction.

¶ 6. On August 3, the Louisiana court held a hearing on Ryan’s petition. Delisa did not appear at this hearing. Ryan submitted the receipt showing he sent Delisa a piece of certified mail to her Warren County address. But he had not requested a return receipt from the postal service. Ryan’s attorney testified about what Deli-sa had told her over the phone, implying Delisa meant Ryan’s Louisiana action was futile. Based on this evidence, the Louisiana court determined it had personal jurisdiction over Delisa under Louisiana Revised Statute Annotated section 13:3201 (2006). It entered a judgment granting Ryan temporary visitation. The visitation order recognized that the children were living in Mississippi and authorized Ryan to pick up and return them to Warren County.

■¶ 7. On August 6, Ryan filed in the Warren County Chancery Court a notice of registration of the Louisiana visitation order. On August 14, Delisa filed a motion contesting the registration. A week later, the chancery court held a hearing on Delisa’s motion, during which Delisa argued Ryan had not followed Louisiana statute for serving process out of state.

¶ 8. On October 23, the chancery court entered a final judgment denying Delisa’s motion. Delisa timely appealed.

DISCUSSION

¶ 9. Both Louisiana and Mississippi have adopted the UCCJEA. La.Rev.Stat. Ann. §§ 13:1801 to 1842 (Supp.2011); Miss.Code Ann. §§ 93-27-101 to -402 (Rev.2004 & Supp.2010). The UCCJEA provides the exclusive jurisdictional basis for a state to make an initial child-custody determination. La.Rev.Stat. Ann. § 13:1813(A); Miss.Code Ann. § 93-27-201 (Supp.2010). “ ‘Child custody determination’ means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order.” La.Rev.Stat. Ann. § 13:1802(3); Miss.Code Ann. § 93-27-102(c) (Rev.2004). “‘Child custody proceeding means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.” La.Rev.Stat. Ann. § 13:1802(4); Miss.Code Ann. § 93-27-102(d) (Rev.2004). Therefore, Ryan’s filing of a petition to establish parentage, custody, and visitation initiated a “child custody proceeding.” And the resulting temporary visitation order was a “child-custody determination” requiring UC-CJEA jurisdiction.

¶ 10. The UCCJEA imposes a duty on Mississippi courts to enforce Louisiana’s (or any other state’s) child-custody determination if Louisiana “exercised jurisdiction in substantial conformity with [the UCCJEA] or the determination was made under factual circumstances meeting the jurisdictional standards of [the UC-CJEA].” Miss.Code Ann. § 93-27-303(1) (Rev.2004); accord. La.Rev.Stat. Ann. § 13:1825(A).

¶ 11. Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo. Yeager v. Kittrell, 35 So.3d 1221, 1223 (¶¶ 12, 14) (Miss.Ct.App.2009).

¶ 12. Neither the Warren County Chancery Court nor the Louisiana court addressed the UCCJEA’s jurisdictional standards. UCCJEA jurisdiction requires not only providing sufficient notice to out-of-state parents but also, more important, that Louisiana was the children’s “home state.” La.Rev.Stat. Ann. §§ 13:1808(A), 13:1813(A)(1); Miss.Code Ann. §§ 93-27-108(1) (Rev.2004), 93-27-201(1). While the record supports a finding that Delisa was sufficiently notified, it does not support a finding that Louisiana was the children’s “home state” or that another basis for jurisdiction applied. Because we find Louisiana lacked jurisdiction to issue the visitation order, we reverse the chancery court’s judgment and render void the registration of the order.

I. UCCJEA Notice

¶ 13. The exercise of UCCJEA jurisdiction is dependent on giving “notice and an opportunity to be heard” to all interested persons, including parents and custodians. La.Rev.Stat. Ann. §§ 13:1808, 13:1817; Miss.Code Ann. §§ 93-27-108 (Rev.2004), 93-27-205 (Rev.2004). A parent can prevent the enforcement of a foreign custody order in Mississippi if she can show lack of “notice in accordance with UCCJEA standards.” Miss.Code Ann. § 93-27-305(4)(c) (Rev.2004); accord. La. Rev.Stat. Ann. § 13:1827(D)(3).

¶ 14. The Louisiana court proceeded to make a child-custody determination because it found it had “personal jurisdiction” over Delisa under Louisiana’s “long-arm” statute. La.Rev.Stat. Ann. § 13:3201. But compliance with the “long-arm” statute cannot confer UCCJEA jurisdiction. La.Rev.Stat. Ann. § 13:1813(B) (expressly stating the UCCJEA provides the exclusive jurisdictional basis over child-custody determinations); Miss.Code Ann. § 93-27-201(2) (same). See Rando v. Rando, 722 So.2d 1165, 1166 (La.Ct.App.1999) (contrasting child support, which requires jurisdiction over the person, with child custody, which requires jurisdiction over the status); Anderson v. Anderson, 718 So.2d 582, 585 (La.Ct.App.1998) (citing Martinez v. Reed, 490 So.2d 303, 306 (La.Ct.App.1986)) (applying UCCJEA predecessor and finding there is no prerequisite of personal jurisdiction in a UCCJA proceeding).

¶ 15. Instead, the UCCJEA provides:

A. Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice shall be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
B. Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.
C. Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

La.Rev.Stat. Ann. section 13:1808 (emphasis added); accord. Miss.Code Ann. § 93-27-108.

¶ 16. Based on the plain language of this statute, while it is mandatory to provide notice to an out-of-state parent “in a manner reasonably calculated to give actual notice,” it is possible to provide such notice without complying with Louisiana’s “long-arm” statute. See Martinez, 490 So.2d at 307 (finding, because out-of-state parents actually notified, there was reasonably calculated notice despite claim of failure to comply with “long-arm” procedures). In other words, the UCCJEA recognizes that following the procedures in Louisiana Revised Statute Annotated sections 13:3204 (2006) and 13:3205 (Supp. 2011) gives reasonably calculated notice, which confers jurisdiction. But the procedures of sections 13:3204 and 13:3205 are not the exclusive method for providing notice in compliance with the UCCJEA.

¶ 17. Ryan failed to comply strictly with section 13:3205 because he did not file a return receipt with his proof of mailed service and did not wait thirty days before setting a hearing. La.Rev.Stat. Ann. § 13:3205(1). But, contrary to Deli-sa’s argument, strict compliance with sections 13:3204 and 3205 was not required. La.Rev.Stat. Ann. § 13:1808(B) (permitting — but not requiring — proof of service be made by complying with Louisiana’s law). Instead, the question is whether Ryan provided Delisa with notice reasonably calculated to provide her actual notice of the August 3 hearing. La.Rev.Stat. Ann. § 13:1808(A).

¶ 18. The record contains the following evidence concerning notice: (1) a copy of the certified mail receipt showing a piece of certified mail was sent to Delisa’s Vicksburg address on July 17, 2009; (2) the representations to the Louisiana court by Ryan’s attorney (a) that she mailed Delisa a copy of the petition and order for Delisa to appear on August 3 and (b) that Delisa called her and claimed the Louisiana action was “not going to work”; and (3) the fact Delisa filed a petition in Mississippi on July 23, 2009, requesting sole custody of the children. We find this evidence sufficient to support a finding that Delisa received actual notice of the Louisiana proceeding and was provided an opportunity to be heard before the Louisiana court. La.Rev.Stat. Ann. § 13:1808; accord. Miss.Code Ann. § 93-27-108.

II. UCCJEA Jurisdiction

¶ 19. If all that was required to exercise jurisdiction was notice to an out-of-state party, our inquiry would end there. But just as the Louisiana court’s finding that it had “personal jurisdiction” over Delisa was irrelevant to finding proper UCCJEA notice, it is also irrelevant to finding UC-CJEA jurisdiction.

¶ 20. Because Ryan’s petition to establish parentage, custody, and visitation was an “initial child custody determination,” Louisiana could only have jurisdiction if:

(1) [Louisiana] is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state....
(2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(3) All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under R.S. 13:1819 or 1820; or
(4) No court of any other state would have jurisdiction under the criteria specified in Paragraph (1), (2), or (3) of this Subsection.

La.Rev.Stat. Ann. § 13:1813(A); accord. Miss.Code Ann. § 93-27-201(1). The UC-CJEA defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” La.Rev.Stat. Ann. § 13:1802(7)(a); Miss.Code Ann. § 93-27-102(g) (Rev. 2004).

¶ 21. Neither court made factual findings about the children’s home state. And there are conflicting assertions by Ryan and Delisa, both of which weigh against Louisiana having home-state jurisdiction. At the Warren County Chancery Court hearing, Delisa’s attorney claimed Delisa and the children moved to Mississippi on January 31, 2008. Ryan informed the Louisiana court that Delisa moved to Mississippi in December 2008. From these assertions and our review of the record, the evidence shows the children had lived in Mississippi for more than six consecutive months before Ryan commenced his July 14, 2009 child-custody proceeding. See Bridges v. Bridges, 910 So.2d 1156, 1159 (¶ 12) (Miss.Ct.App.2005) (finding mother and child’s residence in Arkansas for over six months gave Arkansas, and not Mississippi, jurisdiction). And there is nothing in the record supporting Louisiana’s exercise of jurisdiction based on another provision in section 13:1318(A)(2)-(4). Because of this, we hold the resulting temporary visitation order is unenforceable in Mississippi. See Harry v. Harry, 856 So.2d 748, 752 (¶ 15) (Miss.Ct.App.2003) (“Jurisdiction over the subject matter of a proceeding cannot be conferred by consent or waiver.”) (citing Marshall v. State, 662 So.2d 566, 576 (Miss.1995)).

¶ 22. The UCCJEA only mandates enforcement of Louisiana visitation orders if Louisiana “exercised jurisdiction in substantial conformity with [the UCCJEA] or the determination was made under factual circumstances meeting the jurisdictional standards of [the UCCJEA].” Miss.Code Ann. § 93-27-303(1); accord. La.Rev. Stat. Ann. § 13:1825(A). Similarly, the related federal Parental Kidnapping Protection Act (PKPA) only requires enforcement of another state’s child-custody order if it was “made consistently with the provisions of [the PKPA].” 28 U.S.C. § 1738A(a) (2006). And “[a] child custody or visitation determination made by a court of a State is consistent with the provisions of [the PKPA] only if—(1) such court has jurisdiction under the law of such State....” 28 U.S.C. § 1738A(c)(1) (2006).

¶ 23. We are mindful of the general rule that a “judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) (applying United States Constitution article 4, section 1). Here, Louisiana made no finding that it was the children’s home state. And our review shows the Louisiana court failed to even address UC-CJEA jurisdiction, let alone “fully and fairly litigate[ ] and finally decide[ ]” if it had jurisdiction to issue an initial child-custody determination. Id.; cf. In re L.S., 226 P.3d 1227, 1234 (Colo.Ct.App.2009) (enforcing a Nebraska custody order based on Nebraska’s finding it had “home state” jurisdiction, even though that factual finding proved to be erroneous). Because the Louisiana court did not base its finding of jurisdiction on a ground allowed by the UCCJEA, we find the Louisiana order is not entitled to recognition under the Full Faith and Credit Clause.

CONCLUSION

¶ 24. The statutory mandate for Mississippi to enforce another state’s child-visitation order is based on the exercise of jurisdiction by that state under the UC-CJEA. The record does not support Louisiana’s exercise of jurisdiction under the UCCJEA. Because the resulting visitation order is unenforceable in Mississippi, we reverse the Warren County Chancery Court’s judgment denying Delisa’s motion to contest registration and render the resulting registration of the visitation order void.

¶ 25. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . The record does not indicate the reason for Ryan's incarceration.

      . Delisa did not appeal the youth court order dismissing her petition for custody.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Jackie D. WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01062-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.

      Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MYERS, J.,

for the Court:

¶ 1. A Lincoln County jury convicted Jackie Williams of aggravated assault in the shooting of his friend, Dontrey Walker, during an argument. The circuit court sentenced Williams to twenty years in the custody of the Mississippi Department of Corrections and ordered him to pay a $10,000 fine and restitution for the victim’s medical bills. Williams’s term of imprisonment was ordered to be served consecutively to another sentence in an unrelated matter.

¶ 2. On appeal, Williams contends that the jury’s verdict is against the overwhelming weight of the evidence, which he argues supports his theory that the shooting was in self-defense. We find that the record presents only a conflict in the evidence, so we affirm.

FACTS

¶ 3. Williams and Walker were good friends. Both acknowledged that over the year before the shooting, they had spent nearly every day together. At the time of. trial, Walker was nineteen years of age, and Williams was twenty-seven. Both were residents of Brookhaven, Mississippi.

¶4. Walker and Williams’s friendship was strained by an incident at a local convenience store. What happened is not clear from the record, but it was generally agreed that Walker had a confrontation with a group of men. Williams was there but had not joined in on Walker’s side.

¶ 5. According to Walker, on the night of May 27, 2009, the day after the incident at the convenience store, he and Williams were at Walker’s grandmother’s house, where Walker resided. Williams was angry because someone had told him that Walker planned to rob him in retaliation. They began arguing, and Anthony “Ant” Watts, Walker’s cousin, told them to leave because they were disturbing Watts’s mother, who also lived there. Walker attempted to leave, but Williams engaged him in a way that made Walker believe he wanted to work out their differences. The two walked to an adjacent lot, which was vacant, where they resumed arguing. At some point, Williams became silent and placed his hand in his pocket in a manner that caused Walker to ask, “Are you gonna shoot me, or what?” Walker testified that he knew Williams carried a 9mm pistol. Williams remained silent and maintained a hostile posture before backing off a short distance and firing. Walker was hit twice, in the face and chest; he turned and fled toward his grandmother’s house.

¶ 6. Williams testified in his own defense, and his account was different than Walker’s. Williams claimed that he had been outside Walker’s grandmother’s home with Watts, when Walker approached. Walker drew a 9mm pistol, which Williams knew him to carry, and robbed Williams of $700 he had recently received as a tax refund. Walker then turned and continued down the street. Williams pursued and physically engaged Walker when he attempted to draw the gun again. Williams was able to take the gun and shoot Walker with it, which caused Walker to disengage and flee. Williams then went home.

¶7. Several other witnesses also testified. Watts more or less corroborated Walker’s account of the lead up to the shooting; he confirmed that before the shooting, Walker and Williams had been in the home arguing and that he had asked them to leave. Watts also said that, immediately before the shooting, he was standing outside and saw Walker walking down the street with Williams following behind him. Shots were fired, which caused Watts to duck behind a wall. Watts stated that he did not see the shooting itself, only what occurred a short time before it happened.

¶ 8. Captain Bobby Bell of the Brookha-ven Police Department testified that he was near the scene of the shooting when he heard four gunshots in rapid succession. Captain Bell was able to identify the street where the shooting had occurred; he called for assistance and went there himself, where he found Walker sitting in a chair near the sidewalk, covered in blood. Walker had been shot in the mouth and the chest, but he was able to tell Bell that Williams had shot him. That night, Bell called Williams on his cell phone and told Williams that he needed to speak with him. Williams said he would get back with Bell and ended the call. Williams then turned off his cell phone, and Captain Bell was unable to make contact with him again. Williams was ultimately apprehended about two months later in Franklinton, Louisiana.

¶ 9. At the scene of the shooting, the authorities found four shell casings. Three were Winchester brand, from 9mm Luger cartridges, and the other was from a .380 automatic. The presence of the .380 shell casing was never explained, nor were the weapon or weapons connected to the shooting recovered.

DISCUSSION

¶ 10. On appeal, Williams contends that his conviction is against the overwhelming weight of the evidence. The Mississippi Supreme Court has detailed how our appellate courts must review the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice-However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather ... [the reviewing] court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). The supreme court also warned that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 11. Williams’s argument on appeal centers around his contention that the shooting resulted from a physical fight between the two men. Williams asserts that Walker admitted he had attacked Williams before being shot, but the record does not support Williams’s claim. Instead, Walker testified that he had attempted to distract Williams so he could “knock him down” and “get away,” but only after Williams had made a threatening gesture by placing his hand in a pocket. Walker did not say what he did to distract Williams, but he was clear that the attempt failed and that there was no physical contact between the two before Williams shot him. Walker was explicitly asked on both direct and cross-examination whether the argument became physical and whether he did anything to Williams before the shooting— each time Walker denied that he had.

¶ 12. Of course, the fact that the two men were arguing before the shooting does not make it self-defense. But even if the jury had believed the two were physically fighting before the shooting, the reasonableness of the use of deadly force by Williams would remain a jury question. As this Court stated in Carter v. State, 858 So.2d 212, 215 (¶¶ 7-8) (Miss.Ct.App.2003):

Self-defense, in order to constitute a successful defense to a criminal prosecution of this nature [manslaughter], requires that the defendant act in response to an urgent actual threat or on a reasonable belief that such threat is actual and imminent. Wadford v. State, 385 So.2d 951, 955 (Miss.1980). Because the assessments of the level and imminence of the threat to the defendant’s physical well-being and the appropriateness of the defendant’s level of response to the perceived danger require interpretation and analysis of the peculiar set of facts presented in a particular case, it is well settled that the reasonableness of the defendant’s actions is normally a matter for the jury sitting as finders of fact. Meshell v. State, 506 So.2d 989, 991-92 (Miss.1987). While it may be true, as an abstract proposition, that there could be a case where the evidence of the gravity of the threat and the reasonableness of the defendant’s reaction to it was so persuasive that no reasonable juror could disregard that evidence, we do not conclude this to be that case. Rather, the case appears to have been vigorously tried on the issue of self-defense, the jury was properly instructed on the law, and, insofar as the record shows, resolved this issue by concluding that Carter, beyond any reasonable doubt, was not acting in necessary self-defense when he purposely fired three gunshots at close range into his victim, causing his death.

¶ 13. That being said, we find nothing but a conflict in the evidence as to the events leading up to the shooting. The jury simply did not accept Williams’s account, and that was its decision to make: “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). Conflicts in the evidence are for the jury to resolve. Whittington v. State, 377 So.2d 927, 929 (Miss.1979). Consequently, we cannot say that the jury’s verdict is against the overwhelming weight of the evidence. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $10,000 FINE AND RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . It is not clear from Williams’s testimony whether Watts was present when Walker approached.


author: IRVING, P.J.,

text:
    Tony JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00311-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.

      Cheryl Ann Webster, Clarksdale, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
   IRVING, P.J.,

for the Court:

¶ 1. On February 4, 2010, Tony Jones was convicted of aggravated assault. The Coahoma County Circuit Court sentenced Jones to ten years, with four years suspended, in the custody of the Mississippi Department of Corrections. On February 9, 2010, Jones filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Jones appeals and argues that the circuit court erred in refusing to admit Stanley Flagg’s police statement into evidence and in refusing to instruct the jury on the lesser-included offense of simple assault.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On January 17, 2009, Flagg and his band played at the Civic Auditorium in Clarksdale, Mississippi. After leaving the stage, Flagg was struck on the side of his head by Jimmy Blue. As Flagg attempted to get up, Jones struck him in the face. Flagg sustained several fractures to his face, which required the insertion of five plates and twenty-two screws. Additionally, Flagg’s jaw was wired shut for two weeks.

¶4. Flagg filed a complaint with the Clarksdale Police Department, and Sergeant Jason Sims was assigned the case. Sergeant Sims interviewed Flagg, who stated that he had been assaulted by Blue and a man who he initially identified as Tony Pittman. Sergeant Sims then showed Flagg two photographic lineups. Flagg could not identify his attacker from the first lineup, which included Pittman. However, when shown the second lineup, Flagg identified Jones as the second person who had struck him at the auditorium.

¶ 5. Flagg also submitted a typed statement to the police in which he explained that Blue had hit him in the face. However, during the trial, Flagg testified that Blue had hit him on the side of the head. Flagg was cross-examined regarding his inconsistent statements. Flagg explained that his mother had typed his police statement and that the statement erroneously identified Blue as the person who had struck Flagg in the face. Jones attempted to introduce Flagg’s typed police statement as extrinsic evidence of Flagg’s prior inconsistent statement, but the circuit court refused to admit the statement.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Exclusion of Police Statement

¶ 7. Jones argues that the circuit court erred in refusing to admit Flagg’s police statement into evidence. The standard of review applied to a circuit court’s decision to admit or deny evidence is abuse of discretion. Newell v. State, 49 So.3d 66, 71 (¶ 9) (Miss.2010). However, an appellate court “will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party.” Id. (quoting Mingo v. State, 944 So.2d 18, 28 (¶ 27) (Miss.2006)).

¶8. Jones contends that Flagg’s police statement should have been admitted under Rule 613(b) of the Mississippi Rules of Evidence as evidence of a prior inconsistent statement. Under Rule 613(b), “[e]x-trinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.”

¶ 9. However, the Mississippi Supreme Court has held that “when a witness admits making a prior out-of-court inconsistent statement, which has been reduced to writing, the statement should not be introduced into evidence.” Brown v. State, 682 So.2d 340, 345 (Miss.1996) (citing Moffett v. State, 456 So.2d 714, 719 (Miss.1984)). On cross-examination, Flagg admitted that his police statement erroneously identified Blue, instead of Jones, as the person who had hit him in the face; therefore, the circuit court properly excluded the statement from evidence. Despite its refusal to admit extrinsic evidence of Flagg’s prior inconsistent statement, the circuit court did allow Jones to cross-examine Flagg regarding the statement for impeachment purposes. Therefore, we do not find that Jones was prejudiced or adversely affected by the circuit court’s exclusion of Flagg’s police statement. This issue is without merit.

¶ 10. Jones also contends that Flagg’s police statement was admissible under Rule 801(d)(1)(C) of the Mississippi Rules of Evidence as a statement of identification. However, Jones failed to make this argument or otherwise raise this issue before the circuit court. Because he failed to make this argument at trial, he has waived this issue on appeal, as new issues cannot be raised for the first time on appeal. Smith v. State, 986 So.2d 290, 296 (¶ 16) (Miss.2008).

2. Jury Instruction

¶ 11. Jones argues that the circuit court erred in refusing his request for a jury instruction on the lesser-included offense of simple assault. Jones contends that without his simple-assault instruction, the jury was not allowed to determine whether Flagg’s injuries were serious and whether a fist was a means likely to produce serious bodily harm.

¶ 12. “A defendant is entitled to have jury instructions given which present his theory of the case.” White v. State, 842 So.2d 565, 575 (¶ 30) (Miss.2003) (citing Smith v. State, 802 So.2d 82, 88 (¶ 20) (Miss.2001)). However, a “court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (citing Smith, 802 So.2d at 88 (¶ 20)). “[A] lesser-included[-]offense instruction is authorized if a rational or reasonable jury could find the defendant not guilty of the principal offense in the indictment, but guilty of the lesser-included offense.” Id. (citing Pleasant v. State, 701 So.2d 799, 804 (Miss.1997) (overruled on other grounds)).

¶ 13. Jones was convicted of aggravated assault under Mississippi Code Annotated section 97-3-7(2)(b) (Supp.2010), which defines aggravated assault as attempting to cause or purposely or knowingly causing bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.... ” The lesser-included offense of simple assault is defined in section 97-3-7(l)(a), which states: “A person is guilty of simple assault if he attempts to cause or purposely, knowingly[,] or recklessly causes bodily injury to another....”

¶ 14. This Court has stated that “the issue of whether there was sufficient evidence to give a simple[-]assault instruction hinges on whether there was any evidence from which a jury could find that [the victim’s] injuries were anything less than serious bodily injuries.” Ames v. State, 17 So.3d 130, 137-38 (¶ 31) (Miss.Ct.App. 2009). Flagg testified that as a result of Jones’s assault, he sustained multiple fractures to his face, which required the insertion of five plates and twenty-two screws. Flagg also suffered a broken jaw that required his jaw to be wired shut for two weeks. Based on Flagg’s uncontested testimony regarding the extent of his injuries and the extensive treatment required to repair those injuries, we find that Flagg’s injuries were serious, and a reasonable jury could not have found Jones guilty of the lesser-included offense; therefore, there was no evidentiary basis justifying an instruction on simple assault. This issue is without merit.

¶ 15. Furthermore, we find that even without a simple-assault instruction, the jury was allowed to determine whether a fist constituted a “means likely to produce death or serious bodily harm.” The circuit court granted jury instruction S-2, which states:

If you find from the evidence in this case beyond a reasonable doubt that:
(1) on or about January 17, 2009, in Coahoma County, Mississippi,]
(2) the Defendant, TONY JONES, did individually or while aiding and abetting and/or acting in concert with Jimmy Jamal Blue, unlawfully, willfully, and feloniously and purposefully or knowingly, cause bodily injury to Stanley Flagg,
(3) by hitting Stanley Flagg in the face with his fist, and
(4) that his fist was a means likely to produce serious bodily harm.
Then you shall find the Defendant, TONY JONES, guilty of [ajggravated [ajssault.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the
Defendant, TONY JONES, not guilty. (Emphasis added).

¶ 16. It is clear from the above instruction that had the jury not believed that Jones’s fist, as used in the attack on Flaggs, was a means likely to produce, and did produce, serious bodily harm, it would have found Jones not guilty of aggravated assault. This issue is without merit.

¶ 17. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RUSSELL, J., NOT PARTICIPATING.


text:
    Troy Anthony WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-00333-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.

      Jeanine M. Carafello, M. Judith Barnett, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, Attorney for Appel-lee.
   IRVING, P.J.,

for the Court:

¶ 1. On January 10, 2007, Troy Anthony Williams pleaded guilty to two counts of sexual battery. Following his plea, the Jackson County Circuit Court sentenced Williams to two twenty-year sentences, with ten years of each suspended, to be served concurrently in the custody of the Mississippi Department of Corrections. On January 8, 2010, Williams filed a motion for post-conviction relief (PCR), which the circuit court denied. Feeling aggrieved, Williams appeals and asserts that: (1) the circuit court lacked jurisdiction; (2) his guilty plea was invalid; and (3) he received ineffective assistance of counsel.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On June 6, 2004, Williams admitted to his wife, Amy Jones, that he had sexually abused her eight-year-old daughter, Laura. Amy reported the abuse to the police and took Laura to the emergency room. Nurse Jennie Jackson interviewed both Amy and Laura. Amy stated that Williams had admitted to inserting his finger into Laura’s vagina, performing oral sex on Laura, and “humping” Laura. Laura told Nurse Jackson that Williams had inserted his finger into her vagina “many times.” Dr. Ronald Rosenquist performed a physical examination of Laura, but he found no vaginal or rectal trauma.

¶ 4. On June 7, 2004, the police interviewed Williams. During the interview, Williams admitted that he had touched Laura on her “privates”; however, he denied having sexual intercourse with her.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. When reviewing a circuit court’s denial of a PCR motion, factual findings will not be disturbed unless they are clearly erroneous. Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008). However, questions of law are reviewed de novo. Id.

1. Jurisdiction

¶ 7. Williams argues that the circuit court lacked jurisdiction because there was no proof that the acts of sexual battery occurred in Jackson County, Mississippi. According to Williams, he and his family, including Laura, lived in Pennsylvania from 2001 to 2003; therefore, any criminal acts that occurred during that period fell outside of the circuit court’s jurisdictional limits.

¶ 8. Based on our review of the record, we find sufficient evidence that the acts occurred in Jackson County. During Williams’s plea colloquy, he stated under oath that the acts occurred between 2002 and 2004 in Jackson County. Williams’s sworn statements in open court comport with the indictment, which states that the acts of sexual battery occurred “in Jackson County, Mississippi, on or about 2002 to 2004.” Williams has presented no evidence, other than his own affidavit, that the acts did not occur in Jackson County. The Mississippi Supreme Court has stated that “[s]olemn declarations in open court carry a strong presumption of verity.” Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002) (quoting Baker v. State, 358 So.2d 401, 403 (Miss.1978)). Additionally, this Court has held that “[w]hen a defendant makes sworn statements under oath at a plea hearing, and later contradicts those statements with a self-serving affidavit, very little weight should be accorded the affidavit.” Williams v. State, 923 So.2d 242, 245 (¶9) (Miss.Ct.App.2006) (citing Templeton v. State, 725 So.2d 764, 767-68 (¶¶ 11-12) (Miss.1998)). Therefore, we give very little weight to Williams’s self-serving affidavit that he was living in Pennsylvania from 2001-2003, because that assertion is contradicted by his previous sworn testimony at the plea hearing. Williams has failed to explain the inconsistency between his sworn statements at the plea hearing and his affidavit, and he has provided no other evidence that the circuit court lacked jurisdiction. Accordingly, this issue is without merit.

2. Guilty Plea

¶ 9. Williams contends that his guilty plea was invalid because the circuit court failed to make a determination that a sufficient factual basis existed for his plea, to inform him of the elements of the charges against him, and to accept his guilty plea and adjudicate him guilty.

a. Factual Basis for Plea

¶ 10. Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court provides that “[bjefore the [circuit] court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” Our supreme court has further explained that “[t]he factual-basis component of the rule requires that, ‘before it may accept the plea, the circuit court have before it, inter alia, substantial evidence that the accused did commit the legally defined offense to which he is offering the plea.’ ” Burrough v. State, 9 So.3d 368, 373 (¶ 14) (Miss.2009) (quoting Corley v. State, 585 So.2d 765, 767 (Miss.1991)).

¶ 11. At the plea hearing, the State explained that if the case went to trial, it would put forth “evidence, including the child’s testimony, as well as other corroborating evidence, that in fact there was digital penetration and that he did in fact insert his penis as well.” Furthermore, Williams admitted under oath that he had “touched [his] stepdaughter in an inappropriate way on her body.”

¶ 12. Finally, the circuit court read Williams’s indictment in open court. The indictment set forth the charges against Williams and listed the elements of sexual battery. This Court has held that “if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for the plea.” Lewis v. State, 48 So.3d 583, 587 (¶8) (Miss.Ct.App.2010) (quoting Drake v. State, 823 So.2d 593, 594 (¶ 6) (Miss.Ct.App.2002)). After reading the indictment, the circuit court asked Williams if he had read the indictment, if he understood it, and if he had discussed the charges with his attorney. Williams answered in the affirmative. Based on our review of the record, we find that there was a sufficient factual basis for Williams’s plea. This issue is without merit.

b. Instruction on Elements of Charge

¶ 13. Williams contends that his plea was involuntary because he was not properly instructed regarding the elements of the crime of sexual battery. “A plea is voluntary if the defendant knows what the elements are of the charge against him[,] including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991).

¶ 14. At the plea hearing, the circuit court explained to Williams that he had been charged with two counts of sexual battery. The circuit court asked Williams whether he understood the nature of the charges and whether he had had an opportunity to discuss them with his attorney. Williams answered in the affirmative. Then, as mentioned above, the circuit court read Williams’s indictment, which listed the elements of sexual battery. The circuit court asked Williams whether he had read and understood the indictment, and he indicated that he had.

¶ 15. The circuit court explained that by pleading guilty, Williams would waive his right to a trial by jury, right to confront adverse witnesses, and right to protection against self-incrimination. The circuit court asked Williams whether he understood that he was waiving these rights by pleading guilty, and he indicated that he did. The circuit court also explained the maximum and minimum sentences associated with sexual battery, and Williams stated that he understood the possible sentences.

¶ 16. Based on our review of the plea colloquy, it is clear that Williams understood the nature and the elements of the charge of sexual battery, the possible sentence, and the constitutional rights that he was waiving by pleading guilty. Therefore, we find that Williams’s plea was voluntary. This issue is without merit,

c. Acceptance of Guilty Plea

¶ 17. Williams asserts that his guilty plea is invalid because the circuit court failed to accept his guilty plea and adjudicate him guilty. In support of his assignment of error, Williams cites Rule 11.01 of the Uniform Rules of Circuit and County Court, which states in pertinent part: “A defendant is adjudged guilty when the defendant has been found guilty by a verdict of the jury, found guilty by the court sitting as the trier of fact, on the acceptance of a plea of guilty, or on acceptance of a plea of nolo contendere.” In its sentencing order the circuit court stated the following:

[T]he [c]ourt after first advising the defendant of the legal and constitutional rights applicable in the premises, and satisfied that the defendant understood those legal and constitutional rights, and further being satisfied that the defendant knowingly, freely, voluntarily, and intelligently entered a plea of guilty herein, with full understanding of the nature of the crime charged, the maximum punishment for such crime, and otherwise understood the consequences of the guilty plea, did accept the defendant’s guilty plea.

(Emphasis added). It is clear from the record that the circuit court accepted Williams’s guilty plea and adjudicated him guilty. As such, this issue is without merit.

3. Ineffective Assistance of Counsel

¶ 18. Williams argues that he received ineffective assistance of counsel because his attorney failed to inform him of the elements of sexual battery, to inform him that the State lacked sufficient evidence to prove that he had committed sexual battery, and to keep him informed regarding the status of his case.

¶ 19. To succeed in a challenge to the effectiveness of counsel, Williams must prove that his attorney was deficient and that this deficiency prejudiced him. Doss v. State, 19 So.3d 690, 694-95 (¶ 7) (Miss.2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Both prongs must be pleaded with specific detail. Coleman v. State, 749 So.2d 1003, 1012 (¶27) (Miss. 1999). In the context of PCR cases, specificity requires more than a party’s own affidavit or mere assertions made within his brief. Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 20. Williams has failed to produce any evidence, other than his own affidavit, in support of his claim of ineffective assistance of counsel. Therefore, he has failed to meet the standards in Strickland, and Vielee. Furthermore, during his plea colloquy, Williams stated under oath that he was fully satisfied with his attorney’s services. This issue is without merit.

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

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

      . To protect the privacy of the minor victim and her family, the names of the victim and her mother have been changed.


author: BARNES, J., for the Court:

text:
    Karl WEEDEN, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2010-CC-00729-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.
    Karl Weeden, appellant, pro se.
    Albert B. White, Leanne Franklin Brady, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J., for the Court:

¶ 1. Karl Weeden was discharged from his employment with Tunica County, Mississippi, on July 21, 2008. Weeden sought unemployment benefits, which were denied by a claims examiner due to Weeden’s misconduct during his employment. Wee-den appealed, and an Administrative Law Judge (ALJ) affirmed the decision of the claims examiner. Weeden then filed an appeal to the Mississippi Department of Employment Security (MDES) Board of Review, which dismissed the appeal as untimely. Aggrieved, Weeden appeals to this Court, arguing that he committed no misconduct during his employment with Tunica County. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Weeden was employed with Tunica County, Mississippi, for six and a half years until he was discharged on July 21, 2008. Weeden filed an initial claim for unemployment benefits on August 20, 2008. A claims examiner determined that Weeden was disqualified from receiving benefits due to several instances of misconduct connected with his work.

¶ 8. On November 21, 2008, Weeden appealed. A hearing before the ALJ was held on February 25, 2009, at which Wee-den and an employer representative were present. The ALJ found that Weeden was disqualified from receiving benefits due to misconduct connected with his work. The decision was mailed to both parties on March 5, 2009. The decision informed Weeden that any appeal must be filed by March 19, 2009. Weeden filed no appeal until October 12, 2009, after which a notice was mailed to Weeden informing him that the MDES Board of Review had dismissed his appeal as untimely.

ANALYSIS

¶ 4. Weeden appeals to this Court, arguing that the ALJ’s findings of fact were incorrect and that there was no misconduct on his part during his employment with Tunica County. Weeden’s appeal to this Court, however, is from the Board of Review’s dismissal of his appeal. The Board of Review found that Weeden’s appeal was untimely. The only issue properly before this Court, therefore, is whether or not the Board of Review erred in finding that Weeden’s appeal of the ALJ’s decision was untimely.

¶ 5. Mississippi Code Annotated section 71-5-581 (Supp.2010) provides that, in considering appeals by any parties aggrieved by a decision of the Board of Review, an appellate court must consider the record made before the Board of Review. Absent fraud, this Court must accept the findings of fact by the Board of Review and uphold its decision if supported by substantial evidence. Id; see also Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992) (“The principle is well settled that an Order of the Board of Review on the facts is conclusive on the lower court, if supported by substantial evidence and if absent fraud.”) (citing Ray v. Bivens, 562 So.2d 119, 121 (Miss.1990)). The jurisdiction of this Court “over an MDES claim” is limited to “questions of law.” Henry v. Miss. Dep’t of Employment Sec., 49 So.3d 1159, 1161 (¶7) (Miss.Ct.App. 2010) (citing Miss.Code Ann. § 71-5-531).

¶ 6. Mississippi Code Annotated section 71-5-519 (Supp.2010) provides that, unless an appeal is filed within fourteen days of a decision by the MDES, the decision becomes final. In Wilkerson v. Mississippi Employment Security Commission, 630 So.2d 1000, 1002 (Miss.1994), the Mississippi Supreme Court held that, absent a claim that notification was not sent to the claimant’s correct address, the time limit to file an appeal begins on the date that notification is mailed. The court in Wilkerson also held that an appeal filed one day late was barred as untimely. Id.

¶ 7. The record reflects that the ALJ issued his decision on March 5, 2009. The decision included notice that the ALJ’s decision would become final on March 19, 2009, and that Weeden must file any appeal by that date. The record further reflects that Weeden filed his appeal to the Board of Review on October 12, 2009. The Board of Review found the appeal untimely and dismissed it.

¶8. There is no indication of fraud or error on the part of the Board of Review. Weeden has raised no claim that notification of the ALJ’s decision was not mailed to his correct address. At no time has Weeden alleged any cause preventing him from filing his appeal within the fourteen-day time limit. Weeden filed his appeal more than seven months after the ALJ’s decision, exceeding the fourteen days provided for filing an appeal. As a result, the Board of Review’s decision is based on substantial evidence. This issue is without merit.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED.

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


author: LYONS, Justice.

text:
    Ex parte Lee M. COLLIER. (In re Lee M. Collier v. State of Alabama).
    1091327.
    Supreme Court of Alabama.
    Dec. 3, 2010.

      Lee M. Collier, pro se.
    Troy King, atty. gen., and William D. Little, asst. atty. gen., for respondent.
   LYONS, Justice.

Lee M. Collier filed in the trial court a motion pursuant to Rule 29, Ala. R.Crim. P., that he entitled “Motion to Correct Clerical Error in Calculation of Credit Toward Sentence for Time Spent Incarcerated Pending Trial.” The trial court summarily denied the motion without requiring a response from the State. Collier appealed. The Court of Criminal Appeals treated Collier’s motion as a petition for a writ of habeas corpus, and it affirmed the judgment of the trial court on the basis that Collier did not verify his petition and therefore did not properly commence his action. Collier v. State (No. CR-09-0657, May 21, 2010), — So.3d-(Ala.Crim. App.2010) (table). Collier then petitioned this Court for certiorari review. We granted Collier’s petition to review two issues: (1) whether a motion to correct a clerical error in the calculation of pretrial-incarceration credit should be treated as a petition for a writ of habeas corpus, and, if so, (2) whether the Court of Criminal Appeals’ conclusion that Collier’s petition was defective because it was not verified conflicts with Smith v. State, 918 So.2d 141, 154 (Ala.Crim.App.2005). We affirm.

Collier alleged in his motion that he was entitled to 231 days’ credit in each of 6 cases based upon his incarceration before he pleaded guilty to and was convicted of first-degree burglary, first-degree receiving stolen property, breaking and entering a vehicle, attempted theft of property, third-degree burglary, and first-degree theft of property. Collier signed his motion but did not verify under oath that the statements in it were true to the best of his knowledge, information, and belief.

Citing Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996), and Swicegood v. State, 646 So.2d 158 (Ala.Crim.App. 1993), the Court of Criminal Appeals, in an unpublished memorandum, treated Collier’s motion as a petition for a writ of habeas corpus because, it said, “a writ of habeas corpus is the proper method by which to review whether the State has properly calculated an inmate’s jail credit.” The Court of Criminal Appeals pointed out that § 15-21-4, Ala.Code 1975, provides that a petition for a writ of habeas corpus “ ‘must be verified by the oath of the appellant to the effect that the statements therein contained are true to the best of his knowledge, information and belief.’” The court held:

“ ‘The failure to verify a petition for writ of habeas corpus is not a “nicety of pleading” that can be disregarded.’ Pruitt v. State, 509 So.2d 258, 259 (Ala. Crim.App.1987)- Because Collier did not verify his petition, he did not properly commence his action, and there was no evidence before the circuit court.”

We first address whether a motion to correct a clerical error in the calculation of pretrial-incarceration credit should be treated as a motion pursuant to Rule 29, Ala. R.Crim. P., or as a petition for a writ of habeas corpus. This issue presents a material question of first impression requiring decision by this Court.

Rule 29 states:

“Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court.”

Collier argues that the Court of Criminal Appeals relied upon outdated law when it treated his Rule 29 motion as a petition for a writ of habeas corpus. Collier acknowledges that Boutwell v. State, 488 So.2d 38 (Ala.Crim.App.1986), and its progeny hold that the proper way for an inmate to challenge the calculation of his or her pretrial-incarceration credit is by a petition for a writ of habeas corpus, but, he argues, those cases no longer apply because they were decided before Rule 29, Ala. R.Crim. P., was adopted. With the adoption of Rule 29, Collier argues, this Court established a procedure by which a defendant claiming that a clerical error occurred in the trial court could seek to have that error corrected. Collier argues that §§ 15-21-1 through -34, Ala.Code 1975, dealing with habeas corpus petitions apply only if this Court has not adopted a different procedure. Collier maintains that the adoption of Rule 29 by this Court displaced the use of a habeas corpus petition to correct errors made by the trial court in calculating a sentence and that a motion pursuant to Rule 29, rather than a petition for a writ of habeas corpus, is the proper avenue for an inmate to challenge the sentencing court’s calculation of the time spent incarcerated pending trial.

In response, the State maintains that a petition for a writ of habeas corpus continues to be the proper avenue for a defendant who questions his or her pretrial-incarceration credit.

“It is well established that a petition for writ of habeas corpus is the proper procedure to determine whether the appellant has been credited with the correct amount of actual time spent incarcerated pending trial for the offense for which he was eventually sentenced. See, e.g., Hardy v. State, 534 So.2d 328 (Ala.Cr.App.1988); Smith v. State, 504 So.2d 1224 (Ala.Cr.App.1987); Boutwell v. State, 488 So.2d 33 (Ala.Cr.App.1986).”

Taunton v. State, 562 So.2d 614, 614 (Ala. Crim.App.1989). That holding has been consistently reaffirmed by the Court of Criminal Appeals. See, e.g., Sundberg v. Thomas, 13 So.3d 43 (Ala.Crim.App.2009); Culbreth v. State, 966 So.2d 912 (Ala.Crim. App.2007); and Ware v. State, 807 So.2d 594 (Ala.Crim.App.2001). Neither this Court nor the Court of Criminal Appeals has considered the specific question Collier raises — whether a motion under Rule 29 has superseded a petition for a writ of habeas corpus as the proper vehicle for challenging the calculation of pretrial-incarceration credit.

Credit for incarceration before trial is authorized by § 15-18-5, Ala.Code 1975, which provides:

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.”

The State explains this process in its brief:

“The case at bar illustrates what actually happens in this credit calculation. The form sentencing orders here (there are several convictions) simply state that the defendant is to ‘be credited with all of his actual time spent incarcerated in the Jefferson County jail pending trial of this cause unless he was serving time on another offense.’ There is no mention in the orders of the actual number of days for which credit is given. The actual credit of jail time, calculated by the clerk under the statute, is shown in the printed case action summary.”

State’s brief, p. 8 (record citations omitted).

This Court has held that the function of Rule 29 is to allow for the correction of strictly clerical errors or, put another way, for the correction of the record to reflect, but not to change, what was originally intended. Ex parte Bailey, 778 So.2d 163, 165 (Ala.2000) (“A trial court may correct a judgment or order in a manner to speak the truth only, not to change what the trial court originally intended and pronounced. See H. Maddox, Alabama Rules of Criminal Procedure, § 29.1, p. 888 (3d ed.1999).”). Rule 29 was taken from Rule 60(a), Ala. R. Civ. P. See Committee Comments to Rule 29, Ala. R.Crim. P.

The State argues that a motion under Rule 29 is an inappropriate vehicle for correcting alleged errors in the computation of credit for pretrial incarceration for two reasons. First, the State says, the type of clerical errors contemplated by Rule 29 does not include many of the errors that can arise in the calculation of pretrial-incarceration credit:

“Rule 29 covers only mistakes in recording what was intended. Under Section 15-18-5 the recording is by the circuit clerk, who then certifies this number to the Department of Corrections for application to the particular sentence. The only mistakes in credit that would come within Rule 29 would be where the circuit clerk calculated the credit but recorded the wrong number by mistake, or the Department of Corrections received a certification showing the correct number but was incorrect in entering that number into its record.”

State’s brief, p. 9. Second, the State says, many errors in calculating pretrial-incarceration credit that would be subject to correction under Rule 29 could be made by persons whose mistakes are not subject to correction by applying Rule 29. This Court has held that Rule 29 covers errors made not only by a clerk, but also by others, including a lawyer or a judge. Bailey, 778 So.2d at 166. However, the State says, Rule 29 does not apply to records other than judicial-system records. The number of days of pretrial-incarceration credit to which a defendant is entitled is certified by the circuit clerk or the district clerk for the Department of Corrections’ use in its custody of the defendant, and, if an error occurs in the records of the Department of Corrections, Rule 29 would not be available to correct it.

Collier relies on then Justice Maddox’s dissent in Taunton v. State, 562 So.2d 615 (Ala.1990), to support his argument. In Taunton, Collier says, the question before the Court was whether a habeas corpus petition was the proper method for a petitioner to challenge his pretrial-incarceration credit in light of the newly adopted Temporary Rule 20 (now Rule 32), Ala. R.Crim. P. Justice Maddox stated that because the petition in Taunton was filed after the effective date of Temporary Rule 20, the temporary rule should govern instead of Boutwell and its progeny. Justice Maddox stated that the statutory procedure for habeas corpus relief should apply only if this Court has not adopted a contrary procedure, quoting § 15-1-1, Ala. Code 1975: “ ‘Any provisions of this title shall apply only if the procedural subject matter is not governed by rules of practice and procedure adopted by the supreme court of Alabama.’” 562 So.2d at 618 (Maddox, J., dissenting). The State argues that using Rule 29 as a means to challenge pretrial-incarceration credit would reduce the scope of the relief available to a defendant by reducing the types of errors about which a defendant could complain. The writ of habeas corpus is constitutional in origin, see Art. 1, § 17, Ala. Const. 1901; therefore, the State argues, this Court has no authority to limit its scope.

We agree with the State that Rule 29 did not supersede the use of a petition for a writ of habeas corpus to challenge pretrial-incarceration credit. It is clear from Collier’s motion that he does not challenge an improper recording of the credit to which he claims he is entitled but, instead, challenges the actual calculation of the number of days recorded on the forms. Collier pleaded guilty to and was convicted of six charges. He was sentenced to 20 years’ imprisonment on each charge, with 5 years to be served and the remaining 15 years of each suspended. The case-action-summary sheets regarding Collier’s various charges reflect that he was given 126 days’ credit for the time spent incarcerated for the first 3 charges, 64 days’ credit for the next 2 charges, and 62 days’ credit for the final charge. His motion states:

“Collier argues that the time credited to his sentences for time spent incarcerated pending trial has been improperly calculated. Collier was arrested on these eases on June 8, 2006, and he was sentenced on January 23, 2007. Thus, Collier was incarcerated pending trial for these offenses for a total of 231 days.”

(Emphasis added.) Collier does not allege that the number of days arrived at as a result of the calculation was thereafter incorrectly recorded. Because he is not seeking the correction of a true clerical error, Rule 29 does not apply, and the Court of Criminal Appeals properly treated his motion as a petition for a writ of habeas corpus.

We next address Collier’s argument that the Court of Criminal Appeals’ conclusion that his petition was defective because it was not verified conflicts with Smith v. State, supra, in which the Court of Criminal Appeals held that proper verification of a Rule 32, Ala. R.Crim. P., petition is not a jurisdictional prerequisite to the filing of the petition and that the lack of verification does not deprive a circuit court of subject-matter jurisdiction of a Rule 32 petition. In deciding Smith, the Court of Criminal Appeals considered caselaw holding that the verification requirement for a petition for a writ of habe-as corpus is not a jurisdictional prerequisite to the filing of that petition. The Smith court stated:

“Although § 15-21-4, Ala.Code 1975, provides that a petition for a writ of habeas corpus ‘must be verified by the oath of the applicant to the effect that the statements therein contained are true to the best of his knowledge, information and belief,’ this mandatory verification requirement has not been interpreted to be a jurisdictional prerequisite. Instead, it is well established in Alabama that the failure to verify a habeas corpus petition constitutes a pleading defect that warrants dismissal of the petition for failure to state a proper claim for relief. See the cases collected at 29 Ala. Digest 2d Habeas Corpus § 673 (2002). This Court has held that niceties of pleading are not favored in statutory habeas proceedings; however, under our case-law, the failure to verify a habeas corpus petition is not considered a mere nicety of pleading that should be disregarded. Instead, a habeas corpus petition that is not properly verified is subject to be dismissed, without prejudice to refile, and that dismissal is subject to affirmance on appeal. In short, an unverified petition for a writ of ha-beas corpus, although considered to be insufficiently pleaded, is not treated as jurisdictionally defective.”

918 So.2d at 146 (emphasis added). We agree with the conclusion as to the absence of a jurisdictional defect as expressed in Smith. Although Collier’s failure to verify his petition does not mandate its dismissal on jurisdictional grounds, it was subject to dismissal on the basis that it was not sufficiently pleaded.

Finally, Collier contends that the State waived the issue of verification, in that it did not object in the trial court to his failure to verify the petition for a writ of habeas corpus. Therefore, Collier argues, the trial court improperly dismissed his petition and the Court of Criminal Appeals improperly affirmed the judgment of dismissal.

The State argues that cases from the Court of Criminal Appeals and from this Court clearly hold that verification of a habeas corpus petition is not considered a “nicety of pleading” and that an unverified habeas corpus petition is properly dismissed by the trial court on the basis that it is inadequately pleaded even if the State does not object. See, e.g., Gibson v. State, 44 Ala. 17 (1870) (a petitioner for a writ of habeas corpus must verify that the allegations in the petition are true to the best of his or her knowledge, information, and belief); Roberts v. State, 516 So.2d 936 (Ala. Crim.App.1987) (a petition for writ of habeas corpus that was not properly verified was properly dismissed); and Martin v. State, 449 So.2d 801, 801 (Ala.Crim.App. 1984) (“Although the State’s motion to dismiss failed to allege any grounds which would support the dismissal of Martin’s petition, a dismissal was warranted because the petition was not properly verified.”). To the extent that the foregoing cases support the view that the absence of verification is a basis for dismissal even when the State does not object, they are inconsistent with Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006), in which this Court held that “[sjubject-matter jurisdiction concerns a court’s power to decide certain types of cases” and that, in deciding whether a trial court has subject-matter jurisdiction over a case, “we ask only whether the trial court had the constitutional and statutory authority to try the offense with which [the defendant] was charged.” Therefore, cases approving sua sponte dismissal for failure to verify are no longer controlling in light of Seymour and Collins, and they are hereby overruled to that extent. As a result, failure to verify a petition for a writ of habeas corpus is a defect that clearly can be waived.

The State maintains that it did not waive the verification requirement in this case. Collier filed his motion on December 29, 2009, and the trial court dismissed the motion on January 5, 2010. The State maintains that it had no opportunity to waive the verification requirement in the trial court before the trial court dismissed Collier’s Rule 29 motion. We agree that the State cannot waive an issue to which it never had a chance to respond in the trial court. The State raised Collier’s failure to verify the habeas corpus petition in its brief to the Court of Criminal Appeals; therefore, it raised the issue at its first opportunity. We conclude that the State did not waive Collier’s failure to verify his habeas corpus petition. The Court of Criminal Appeals’ judgment affirming the judgment of the trial court after the State had objected to lack of verification at its first opportunity in its brief before that court does not conflict with Smith, and it is due to be affirmed.

AFFIRMED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . Ex parte Collins, [Ms. 1091310, November 24, 2010] — So.3d - (Ala.2010), holds that the verification requirement in § 6-6-640(a), Ala.Code 1975, for petitions for mandamus, prohibition, certiorari, and other remedial writs is a procedural, not a jurisdictional, requirement. The trial court dismissed the petition for a writ of certiorari Collins had filed challenging his custody classification by the Department of Corrections. The Court of Criminal Appeals affirmed the judgment of dismissal, noting sua sponte that the petition was not verified. This Court reversed the Court of Criminal Appeals’ judgment. We held that a petitioner’s failure to verify a petition for a writ of certiorari does not limit the power of the trial court to adjudicate the petition and that, if the respondent does not properly raise the verification requirement in the trial court, it can be waived.

      . Collins, see supra note 1, provides no support for Collier’s argument in this case. We hold in this case that a failure to verify a petition for a writ of habeas corpus is not a jurisdictional requirement, but is a matter of inadequate pleading that can be waived. However, in Collins, unlike the instant case, the State had the opportunity to object in the trial court and failed to do so.


author: PITTMAN, Judge.

text:
    MED-CALL, INC., d/b/a Med-Call Ambulance v. Wesley Hal LIVINGSTON.
    2090520.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.

      Paula McCreless Bassham, Decatur, for appellant.
    Charles J. Kelley of Holt, Mussleman, Kelley & Morgan, Florence, for appellee.
   PITTMAN, Judge.

Med-Call, Inc. (“Med-Call”), an Alabama corporation that does business under the name “Med-Call Ambulance,” appeals from an order of the Lauderdale Circuit Court declining to grant relief from a default judgment that court had entered against Med-Call in an action filed by Wesley Hal Livingston. We reverse.

The principal question presented in this appeal is whether the trial court ever obtained personal jurisdiction over Med-Call. The record reveals that after counsel for Livingston had filed a one-count complaint in September 2008 seeking damages and attorney fees from Med-Call stemming from an alleged worthless check, and after counsel for Livingston had experienced difficulty in effecting service of process, both personally and via certified mail, upon Med-Call’s registered agent, David Child-ers, at several addresses, counsel retained the services of a process server, Paul Ivey. After Childers’s wife, who was separated from Childers at the time, had informed Ivey that Childers was living at a particular residence with another woman, Jaime Kaiser, Ivey gave the summons and complaint and the address of that residence to another process server, Jason Booth. On the evening of November 5, 2008, Booth went to that residence and knocked on the front door. When Kaiser answered the door, Booth asked her if Childers was present, but Kaiser responded that Child-ers was showering and would not be able to come to the door. Booth informed Kaiser that he “had some important paper work” and that he was “not authorized to leave it with” Kaiser unless she lived in the residence with Childers. When Kaiser stated that she did live with Childers, Booth asked for her name, noted it, directed her to “make sure that Mr. Childers receives this,” and informed her that if Childers had “any questions, he [could] contact the attorney’s name and number listed on the paper.” Booth thereafter completed the return-on-service portion of the clerk’s copy of the summons form and noted in the blanks thereon that he had “personally delivered a copy of the summons and complaint to David Child-ers/Jaime Kaiser in Morgan County, Alabama on (Date) 11/5/08 7:47 p.m.” LThat A06 return on service was recorded on the electronic case-action-summary sheet on December 8, 2008.

In March 2009, Livingston moved for the entry of a default judgment, supported by the affidavits of his counsel and an attorney who testified to the appropriateness of a 15% fee award in the case. On April 3, 2009, the trial court granted that motion and entered a default judgment against Med-Call for $80,500. After Livingston had attempted to execute upon that judgment, however, an attorney appeared in the ease for Med-Call and filed a motion on July 9, 2009, requesting that the default judgment be set aside and that all collection efforts be quashed. Because the motion was filed more than 30 days after the entry of the default judgment, that motion was cognizable under Alabama law as a motion seeking relief from the default judgment under Rule 60(b), Ala. R. Civ. P. Ex parte King, 776 So.2d 31, 35 (Ala.2000); see also Allied Prods. Corp. v. Thomas, 954 So.2d 588, 589 (Ala.Civ.App.2006). In that motion, Med-Call asserted, among other things, that Med-Call had not been properly served and that Med-Call had a meritorious defense because, Med-Call averred, the claim asserted by Livingston mirrored one that had previously been submitted to arbitration. Med-Call filed in support of its motion affidavits given by Childers and Kaiser in which each denied having received the summons and complaint.

In response to Med-Call’s motion, Livingston filed a response in opposition in which he contended, among other things, that Med-Call had been properly served because the summons and complaint had been left with Kaiser. In support of his position, Livingston filed affidavits given by Childers’s estranged wife and by Livingston’s counsel and counsel’s legal assistant; Livingston also filed a second affidavit given by Kaiser in which she admitted having not read her first affidavit and admitted having been given legal papers by a process server in November 2008 while she had been living with Childers. The trial court held a hearing on Med-Call’s motion, at which Booth testified, and thereafter denied Med-Call’s motion. Med-Call’s timely appeal from the denial of its motion was transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6).

To the extent that Med-Call’s motion asserted that it had not been properly served, its motion raised a challenge to the trial court’s personal jurisdiction, thereby impugning the validity of the trial court’s judgment in the manner authorized under Rule 60(b)(4), Ala. R. Civ. P.:

“One of the requisites of personal jurisdiction over a defendant is ‘perfected service of process giving notice to the defendant of the suit being brought.’ ‘When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.’ A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void.”

Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993) (citations omitted). Thus, because Med-Call has renewed in this court its contention that it was not properly served, thereby attacking the validity of that judgment, we must address the jurisdictional issue as a threshold matter before assessing the correctness of that judgment under the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). See Allied Prods., 954 So.2d at 593 n. 7. Our review is de novo. See id. at 591.

Did Livingston, under the principles recognized in Horizons 2000, “ ‘prove that service of process was performed correctly and legally’ ”? We answer that question in the negative. Rule 4(c)(6), Ala. R. Civ. P., governs service upon domestic and foreign corporations, and since August 2004 it has specified that service upon a corporation is to be accomplished “by serving an officer, ... a managing or general agent, or any agent authorized by appointment or by law to receive service of process.” Although Rule 4(c)(6) formerly permitted certified-mail service upon corporations “at any of their usual places of business,” the August 1, 2004, amendment to Rule 4 eliminated that provision, and “[n]ow personal or certified mail service must be directed to the registered or appointed agent or to a specific person, such as an ‘officer’ ” of the corporation. Committee Comments to Amendment to Rule 4 Effective August 1, 2004 (emphasis added). In other words, Med-Call could only have been served by providing a summons and a copy of the complaint to one of the persons specified in Rule 4(c)(6). Because the record does not reflect that Kaiser, the sole person to whom Booth may have provided a summons and a copy of the complaint in this action, was an officer or an agent of Med-Call, Booth’s service of process upon her was ineffective as to Med-Call.

Livingston, however, argues that because Rule 4(c)(6) allows service of a corporation by serving an agent authorized by law to receive service of process, and because Childers was undisputedly such an agent, Livingston could accomplish service of process by reference to subsection (c)(1) of Rule 4. That subsection provides that service may be accomplished upon an individual “by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” Suggesting that subsection (c)(1) should be read in pari materia with subsection (c)(6), Livingston posits that Kaiser was a person “of suitable age and discretion” who cohabited with Childers; that Booth’s service upon her was, therefore, effective service upon Childers; and that effective service upon Childers amounts to effective service upon Med-Call.

Although we have no quarrel with the general proposition that provisions of court rules are susceptible to canons of construction similar to those used in construing statutes and that rules dealing with the same subject matter are therefore to be read together in a manner promoting a harmonious plan in the same way that statutes are, see Burlington Northern R.R. Co. v. Whitt, 611 So.2d 219, 222 (Ala.1992), it follows that we should likewise presume that “a difference in wording, especially in provisions within similar [rules], reflects a difference in meaning.” Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 488 (Ala.2007). Here, the rule governing service specifies that process will be issued by the clerk “for service upon each defendant,” i.e., “any party upon whom service of summons or other process is sought.” Rule 4(a)(1) and (a)(4), Ala. R. Civ. P. (emphases added). In this case, although a summons and a copy of a complaint naming Childers as an individual party defendant might well have been properly served upon Kaiser, and have been effective service upon Childers in his individual capacity, pursuant to Rule 4(c)(1), there is no indication in the text of Rule 4(c)(6) that the more liberal provisions allowing for service upon individuals can be utilized as a means of service of process upon a corporation. To affirm the trial court’s judgment, we would, in effect, hold that a corporation is no different from an individual for service of process, a proposition that the existence of the many subdivisions of Rule 4(c) implicitly rejects; we would, moreover, disregard the fundamental principle that “strict compliance with the rules regarding service of process is required,” in contravention of Ex parte Pate, 673 So.2d 427, 429 (Ala.1995).

In light of the facts and authorities we have discussed, we conclude that the trial court erred in denying Med-Call’s motion challenging the propriety of the default judgment entered against it. The trial court’s order denying relief from the default judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Although various documents filed by the patties use two different spellings for this person’s first name — "Jaime” and "Jamie”— both of her affidavits were signed “Jaime Kaiser,” indicating that that spelling is correct.

      . Although Livingston cites Ala.Code 1975, § 10-2B-5.04, as controlling, that statute simply indicates the legality of service upon a corporation's registered agent while noting, in subsection (c), that that statute "does not prescribe the only means, or necessarily the required means, of serving a corporation.”