text:
    Marlon Lavelle OATIS a/k/a Marlin Oatis a/k/a Marlon Oatis a/k/a Marlon L. Oatis, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01011-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Marlon Lavelle Oatis challenges the weight and sufficiency of the evidence that led to his May 15, 2013 conviction by a jury in the Harrison County Circuit Court. Additionally, Oatis submits that the jury’s general verdict, without designating whether he was guilty of “common law” driving under the influence (DUI) and/or “per se” DUI, is reversible error. For the reasons below, we find the issues raised in Oatis’s appeal to be without merit, and we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2011, Oatis was charged, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007), on two counts: DUI in violation of Mississippi Code Annotated section 63-ll-30(l)(a) (Rev. 2013) and DUI in violation of Mississippi Code Annotated section 63-ll-30(l)(c) (Rev. 2013). His habitual-offender status was based upon three prior felony DUI convictions. Additionally, as a result of his three prior DUI convictions, he was charged under Mississippi Code Annotated section 63-11-30(2)(c) (Rev. 2013), making the two counts in the present case felony DUIs. Oatis’s jury trial began on May 14, 2013, and ended the following day, May 15, 2013. The events leading to his arrest, indictment, and conviction were presented through the following testimony and other evidence at his trial.

¶ 3. According to his testimony at trial, Officer Steven Ramsey was working as a patrolman for the City of Gulfport on June 24, 2010, when he responded to a motor-vehicle accident at 1:20 a.m. Officer Ramsey arrived at the accident scene, where only one car was present. The occupants of the car said the other car involved was a black car driven by a black male, and he had continued driving southbound on 30th Avenue. Officer Ramsey continued driving southbound on 30th Avenue for approximately one block, when he located a black car with damage consistent with being in a recent accident. The black car was parked in a gas-station parking lot with a black male, later identified as Oatis, sitting in the driver’s seat behind the steering wheel. The black car was parked so close to a concrete wall that no one could enter or exit the black car from the passenger side. Officer Ramsey testified that he approached the driver’s side and spoke to Oatis through a half-open window. He described Oatis’s demeanor as stunned and angry. Officer Ramsey also stated that he smelled an intoxicating odor coming from the car, and Oatis told him he had consumed two twenty-four ounce high-gravity beers before driving. According to Officer Ramsey, Oatis could not exit the car because the concrete wall blocked the exit on the passenger side, and the door on the driver’s side could not be opened due to damage from the accident. The fire department was later able to open the driver’s side door, and Oatis was taken to the hospital after complaining about pain.

¶4. Sergeant Brandon Clark of the Gulfport Police Department testified that during his interaction with Oatis, Oatis’s demeanor ranged from calm to angry, irritated, and belligerent. Sergeant Clark also testified that he smelled an intoxicating odor coming from Oatis, as well as Oatis having slurred speech and bloodshot/glassy eyes. Oatis also informed Sergeant Clark that he was the one who had a green light at the intersection. Sergeant Clark did not conduct any field sobriety tests because Oatis complained of pain and was taken to the hospital via ambulance. Sergeant Clark did obtain a warrant to draw Oatis’s blood for analysis, which Nurse Jeanne Torres at Memorial Hospital’s emergency room did draw and turn over to the police department approximately an hour and a half after the accident. Lastly, over Oatis’s objection, Sergeant Clark testified that Oatis was not safe to operate a car based on his level of intoxication.

¶ 5. Next, Mississippi Crime Lab forensic scientist Joe Ellington testified that he completed the crime-lab report and analyzed Oatis’s blood samples using a head space gas chromatograph, and the result was a .20 blood-alcohol content (BAC). He could not testify as to Oatis’s BAC at the time of the accident, only at the time it was drawn. Ellington stated that he did not calibrate the machine before testing because that is not the standard procedure and that he trusted his colleagues’ calibrations. He testified that “[w]e all review the calibration data, and the calibration would not have been approved by a supervisor unless it was ok to run analysis.” Additionally, after every ten vials tested, they run a control sample to monitor whether the instrument is working correctly.

¶ 6. Following the State’s witnesses, Oatis moved for a directed verdict, which the circuit court did not grant. Oatis did not present any evidence or testify on his own behalf. The jury returned a verdict finding Oatis guilty of felony DUI. The circuit court sentenced Oatis to five years in the custody of the Mississippi Department of Corrections (MDOC) to be served day-for-day due to his habitual-offender status, with credit for time served. He was also ordered to complete the MDOC drug and alcohol treatment program.

¶ 7. Oatis filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV). The circuit court overruled Oatis’s motion, and Oatis filed the present appeal. On appeal, he submits that there was insufficient evidence to support the guilty verdict, that the verdict was against the overwhelming weight of the evidence, and that the jury’s general verdict was insufficient because it is “uncertain upon which ground the jury’s decision was based.”

STANDARDS OF REVIEW

¶ 8. “The standard of review for a post-trial motion is abuse of discretion.” Dilworth v. State, 909 So.2d 731, 736 (¶ 17) (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (¶212) (Miss.2003)).

¶ 9. A motion for a new trial is a challenge to the weight of the evidence, and the verdict will only be disturbed when it is so contrary to the weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). When reviewing a challenge to the weight of the evidence, this Court views the evidence in a light most favorable to the verdict. Id.

¶ 10. However, a motion for a JNOV is a challenge to the sufficiency of the evidence, and this Court will view all evidence in the light most favorable to the State. Id. at 843 (¶ 16). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,j it is insufficient to support a conviction.’ ” Ivy v. State, 949 So.2d 748, 751 (¶ 15) (Miss. 2007) (quoting Bush, 895 So.2d at 843 (¶16)).

¶ 11. Lastly, “the basic test with reference to whether or not a verdict is sufficient as to form is whether or not it is an intelligent answer to the issues submitted to the jury and expressed so that the intent of the jury can be understood by the court.” Coles v. State, 756 So.2d 12, 14 (¶ 12) (Miss.Ct.App.2009) (citation omitted).

ANALYSIS

I. Sufficiency of the Evidence

a. Common-Law DUI

¶ 12. Oatis first argues that there was not sufficient evidence to uphold the guilty verdict in regard to Count I of his indictment. Count I of his indictment charged him with violation of section 63-ll-30(l)(a), also referred to as “common-law DUI.” Section 63—11—30(l)(a) provides: “It is unlawful for any person to drive or otherwise operate a vehicle within this state who ... is under the influence of intoxicating liquor[.]” “Common[-]law DUI is proven when ... there is sufficient evidence to show that the defendant operated a motor vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Jefferson v. State, 138 So.3d 263, 266 (¶ 11) (Miss.Ct.App.2014) (quoting Young v. State, 119 So.3d 309, 315 (¶ 19) (Miss. 2013)).

¶ 13. Based on the evidence presented at trial, we find that there was sufficient evidence for a jury to find Oatis guilty of every element of common-law DUI. Officer Ramsey testified that he smelled an intoxicating odor coming for Oatis’s car and that Oatis told him he had consumed two twenty-four-ounce high-gravity beers an hour before driving. Sergeant Clark testified that he also smelled an intoxicating odor from Oatis’s car and that Oatis had slurred speech and bloodshot/glassy eyes. Both Officer Ramsey and Sergeant Clark testified that Oatis acted angrily and belligerently, at one point cursing loudly at them. Assuming Oatis was involved in the wreck, he then fled the scene and parked in a location where he could not get out of the vehicle on the passenger side due to a concrete wall, and he could not exit from the driver’s side due to damage from the wreck. While neither Officer Ramsey nor Sergeant Clark observed Oatis driving the car, Oatis admitted that he had been in a wreck, but he claimed he had the green light. See Holloway v. State, 860 So.2d 1244, 1246-47 (¶ 12) (Miss.Ct.App.2003) (“A person may be arrested, tried, and convicted of operating a motor vehicle while under the influence of an intoxicating liquor even if there is no eyewitness presented who viewed the defendant operating the vehicle, provided there is sufficient evidence.”)

¶ 14. “It [is] within the jury’s province to draw reasonable inferences from the evidence based on their experience and common sense.” Broomfield v. State, 878 So.2d 207, 215 (¶ 30) (Miss.Ct.App.2004). Looking at the evidence presented at trial, a jury could reasonably find that Oatis had been driving his car while under the influence of alcohol.

¶ 15. This issue has no merit. b. PerSe DUI

¶ 16. Oatis next argues that the evidence was insufficient to convict him of violating section 63—11—30(l)(c), which provides: “It is unlawful for any person to drive or otherwise operate a vehicle within this state who ... has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law[.]” According to Oa-tis, the State failed to prove this ground because it failed to show what his BAC was at the time he was driving, as opposed to an hour and a half later when his blood was actually drawn. Oatis also submits that the blood test was not performed on a properly calibrated machine; therefore, the results were insufficient for a jury to find him guilty.

¶ 17. Oatis’s argument that the State failed to prove his BAC was over the legal limit at the time of the accident fails. This Court has stated that “[t]here is no requirement that the State must prove a defendant’s exact BAC at the time of the incident, only that the defendant’s BAC was equal to or above the legal limit.” Ludwig v. State, 122 So.3d 1229, 1234 (¶ 15) (Miss.Ct.App.2013). In Smith v. State, 942 So.2d 308, 314 (¶¶ 13-14) (Miss.Ct.App.2006), this Court held that a delay between the time of an accident and the taking of a blood sample, with no evidence of deliberate delay on the part of an arresting officer, would not render a blood sample inadmissible. This Court further elaborated by saying:

Furthermore, we disagree with Smith’s contention that in order for his BAC to be admissible, the State must prove what his BAC was at the time of the accident. The effect of such a ruling would be to virtually abrogate chapter 11 of the Mississippi Code, the implied consent laws. The repercussions of such a holding would warrant an exclusion from evidence of all blood[-]test results, obtained by virtue of a valid search warrant, based upon the assertion that the delay in acquiring the blood sample precludes the test results from assisting the jury in determining whether or not a defendant’s BAC exceeded the legally permissible minimum level at the time of the accident.

Id. at (¶ 15).

¶ 18. Oatis’s blood sample was taken approximately an hour and a half after the accident. Sergeant Clark testified that he obtained a warrant in order to have the blood sample taken. This action explains the delay between the time of the incident and the time Oatis’s blood was drawn and shows no evidence of a deliberate delay. Based on the evidence presented at trial, a jury had sufficient evidence through Ellington’s testimony that the test results showed Oatis’s BAC to be .20. His argument on this issue is without merit.

¶ 19. Oatis’s next contention is that the State failed to provide evidence that the head space gas chromatograph was properly calibrated. We note that the State did not provide calibration certificates, nor did Ellington testify that he was the person who calibrated the machine. However, Oatis did not object to Ellington’s testimony regarding the test results, and he only objected to Ellington’s report being admitted into evidence because it was cumulative of Ellington’s testimony. Oatis did thoroughly cross-examine Ellington on the machine’s calibration, but the issue was never objected to or raised for the circuit court to decide in a motion in limine, during trial, or in a motion for a new trial.

¶ 20. It is well settled that “[a] defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial[,]” and “[a] trial judge will not be found in error on a matter not presented to him for decision.” McMurtry v. State, 105 So.3d 395, 399 (¶ 13) (Miss.Ct.App.2012) (quoting Jones v. State, 606 So.2d 1051, 1058 (Miss.1992)). It follows that this issue is proeedurally barred.

II. Weight of the Evidence

¶21. While Oatis submits that the verdict was against the weight of the evidence, he presents no meaningful argument or citation to authority in support of this contention as required by Mississippi Rule of Appellate Procedure 28(a)(6). Rule 28(a)(6) provides that an appellant’s brief “shall contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions with citations to authorities, statutes, and parts of the record relied on.” (Emphasis added). Because Oatis’s brief on this issue is found to be lacking, we decline to address this issue, as it is deemed abandoned. See McGhee v. Young, 138 So.3d 259, 261-62 (¶ 9) (Miss. Ct.App.2014); Thompson v. State, 92 So.3d 691, 697 (¶ 13) (Miss.Ct.App.2012).

III. Form of the Jury Verdict

¶ 22. “If a jury has been instructed that it may rely on any one of two or more independent grounds, and one of those grounds is insufficient, a subsequent general verdict of guilty must be set aside because the verdict may have rested exclusively on the insufficient ground.” Phillips v. State, 493 So.2d 350, 355 (Miss. 1986). The jury’s verdict stated: “We, the jury, find the defendant, Marlon Lavelle Oatis, guilty of felony driving under [the] influence.” Since the jury could have convicted Oatis of either common-law DUI or per se DUI, and the evidence was legally sufficient for either crime, the jury’s return of a general verdict is of no significance.

¶ 23. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE, AS A HABITUAL OFFENDER, OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Michael PRENDERGAST, Brett Ladner, Malcolm Cowand and Howard Parker, Appellants/Cross-Appellees v. CITY OF WAVELAND and the Waveland Civil Service Commission, A Subdivision of the City of Waveland, Appellees/Cross-Appellants.
    No. 2013-CA-00555-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      Russell S. Gill, Andrew Austin Clark, Biloxi, attorneys for appellants.
    Gary McKay Yarborough Jr., Bay Saint Louis, attorney for appellees.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This is an appeal of the Hancock County Circuit Court’s decision to dismiss a petition for a writ of mandamus filed by former employees of the City of Waveland, Mississippi. The Waveland Board of Aldermen (the Board) voted to discharge Michael Prendergast, Brett Ladner, Malcolm Cowand, and Howard Parker (Appellants ) from their employment as police officers due to budgetary constraints. They attempted to appeal their discharge to the Waveland Civil Service Commission (the Commission), which is unique in that it was created by way of a municipal ordinance. After the Commission failed to respond to Appellants’ request for prospective hearing dates, they filed a petition for a writ of mandamus in the circuit court. The City moved to dismiss the petition and filed a counterclaim for damages under the Mississippi Litigation Accountability Act.

¶ 2. The circuit court found that Appellants could have appealed the Board’s decision to the circuit court. Because an adequate remedy had been available to Appellants, the circuit court dismissed their petition for a writ of mandamus. And although the parties had not argued the City’s counterclaim during the hearing on its motion to dismiss, the circuit court dismissed it, as well. On appeal, Appellants claim the circuit court erred when it dismissed their petition for a writ of mandamus. The City also appeals the circuit court’s decision to dismiss its counterclaim under the Mississippi Litigation Accountability Act. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ S. On January 4, 2011, the Board met and voted to terminate eleven city employees from five different departments for budgetary reasons. Appellants were among the terminated employees. The Board also voted to have the department heads inform the eleven employees that they had been terminated. The next day, Police Chief James Varnell complied with the Board’s instructions by sending Appellants each a letter informing them of the Board’s decision.

¶ 4. On January 12, 2011, Appellants faxed documents styled “Appeal of Termination” to the Commission. Appellants’ letters stated that they demanded an investigation and hearing “concerning [their] termination by the Waveland Police Department.” The Commission did not respond. On February 23, 2011, Appellants sent a letter to the Commission and requested prospective hearing dates. Again, the Commission did not respond.

¶ 5. On April 18, 2011, Prendergast and Ladner filed a petition for a writ of mandamus in the circuit court. They asked the circuit court to force the Commission to conduct the hearing they had requested. Less than a month later, Cowand and Parker joined Prendergast and Ladner’s petition. However, approximately one year later, Appellants filed a joint stipulation to dismiss their petition for a writ of mandamus.

¶ 6. Approximately three months after Appellants dismissed their first petition for a writ of mandamus, they filed their second petition for a writ of mandamus. Within their second petition, Appellants again requested that the circuit court force the Commission to address their appeal. Appellants also claimed that the City had wrongfully terminated them. They also claimed that by faxing letters to the Commission, they had properly appealed the Board’s decision to terminate them.

f 7. The City moved to dismiss Appellants’ second petition for a writ of mandamus. According to the City, Appellants’ second petition was untimely. Additionally, the City argued that Appellants’ second petition was an improper collateral attack of the Board’s decision. The City also filed a counterclaim for attorney’s fees and costs under the Mississippi Litigation Accountability Act.

¶ 8. On December 6, 2012, the circuit court conducted a hearing on the City’s motion to dismiss Appellants’ second petition for a writ of mandamus. During the hearing, the City argued that Waveland City Ordinance 251, which authorized the creation of the Commission, did not allow appeals to the Commission when a city employee had been terminated for budgetary reasons. The City also argued that Appellants should have appealed the Board’s decision directly to the circuit court by filing a bill of exceptions within ten days of the Board’s decision. According to the City, because Appellants had failed to file a bill of exceptions, they had failed to properly appeal the Board’s decision. Alternatively, the City argued that even if Appellants had a right to appeal to the Commission, they had failed to exhaust their administrative remedies because they had not requested a hearing before the mayor of Waveland.

¶ 9. Appellants argued that they had complied with the obligation to request a hearing before the mayor by verbally asking to talk to him. They also argued that they had not actually been terminated for budgetary reasons. According to Appellants, the Board’s rationale was merely Chief Varnell’s pretext to terminate them for their membership in the “Police Benevolent Association, which is a fraternal order that helps support the police.” Appellants further argued that “[t]hey were [also] targeted for other reasons.” Finally, Appellants argued that they properly appealed to the Commission, and it had jurisdiction to hear their appeal of the Board’s decision.

¶ 10. On March 6, 2013, the circuit court entered an order dismissing Appellants’ second petition for a writ of mandamus. The circuit court reasoned that Ordinance 251 did not allow employees terminated for budgetary reasons to seek a hearing before the Commission. The circuit court went on to hold that Appellants should have filed a bill of exceptions as set forth by Mississippi Code Annotated section 11-51-75 (Rev. 2002). Because Appellants had an adequate remedy available to them by appealing the Board’s decision to the circuit court, it dismissed Appellants’ second petition for a writ of mandamus. Furthermore, although the circuit court had not conducted a hearing on the City’s counterclaim for damages under the Mississippi Litigation Accountability Act, the circuit court dismissed the City’s counterclaim.

ANALYSIS

I. ATTEMPT TO APPEAL TO THE COMMISSION

¶ 11. Appellants argue that the circuit court erred when it dismissed their second petition for a writ of mandamus. They claim that the circuit court should have given them an opportunity to file a bill of exceptions. Appellants also claim that the circuit court erred when it held that they did not have a right to appeal to the Commission after the Board terminated their employment for budgetary reasons.

¶ 12. First and foremost, it is necessary to note that this case does not turn on any application of Mississippi statutory law. Mississippi Code Annotated section 21-31-1 (Rev. 2007) mandates that certain municipalities must have a civil service commission. Similarly, Mississippi Code Annotated section 21-31-3 (Rev. 2007) gives qualified municipalities the authority to adopt a civil service commission. The Commission is unique in that it is not a creature of either statute. Instead, the Commission is the product of Waveland City Ordinance 251 (“the ordinance”), which was authorized by House Bill 1770 of the 1994 Mississippi legislative session. Consequently, neither the provisions nor the procedures set forth in the statutes that pertain to civil service commissions apply to this case. During the hearing on the City’s motion to dismiss, Appellants’ attorney conceded that the ordinance rather than statutory law applied. And section 10 of the ordinance states that it “shall not be construed to invoke the provisions of [s]ections 21-31-1 through 21-31 — 75[,] ... which deal with civil service, nor to invoke the law of any court decisions made pursuant thereto.”

¶ 13. Section 4(1) of the ordinance states that a “covered employee” has the right to appeal to the Commission under certain circumstances. The circumstance that applies to this case involves “[d]is-charges ... but not including layoffs resulting from budgetary decisions, changes in the scope of public services provided by the city, reductions in force and changes in technology, where these factors are unrelated to the performance of a particular employee’s job.” Waveland City Ordinance 251 § 4(l)(a).

¶ 14. The qualifier in section 4(l)(a) creates the following question: How does a discharged employee raise an argument that although the Board’s minutes reflect that his discharge was for budgetary reasons, the Board’s decision was really a pretext to terminate him for factors related to the performance of his job? We find that under such circumstances, an aggrieved employee must appeal the Board’s decision through the mechanism set forth in Mississippi Code Annotated section 11-51-75. The Board’s minutes reflect that Appellants were discharged for budgetary purposes, and “public boards speak only through their minutes and their actions are evidenced solely by entries on their minutes.” Lange v. City of Batesville, 972 So.2d 11,18 (¶ 9) (Miss.Ct.App.2008). Section 11-51-75 provides that “[a]ny person aggrieved by a ... decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal [to the circuit court].... ”

¶ 15. Without reservation, we find it problematic that the Commission simply failed to respond to Appellants’ attempt to appeal the Board’s decision. Likewise, it is problematic that the Commission did not respond to Appellants’ request for prospective hearing dates. The Commission should have addressed the fact that Appellants had filed a clear attempt to appeal the Board’s decision. And we neither sanction nor condone such blatant disregard of Appellants’ grievance, regardless of its perceived merit. At a minimum, the Commission should have addressed the fact that Appellants had attempted to raise an issue before it. Even so, the issue before us is not whether the Commission erred by ignoring Appellants. The issue before us is whether the circuit court erred when it dismissed Appellants’ petition for a writ of mandamus.

¶ 16. The Mississippi Supreme Court has held that a petitioner must prove the following essential elements before a writ of mandamus may issue:

(1) the petitioner must be authorized to bring the suit, (2) there must be a clear right in [the] petitioner to the relief sought, (3) there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel, and (4) there must be no other adequate remedy at law.

Bennett v. Bd. of Sup’rs of Pearl River Cnty., 987 So.2d 984, 986 (¶ 6) (Miss.2008). The circuit court denied Appellants’ petition for a writ of mandamus because they had another adequate remedy at law— they could have appealed the Board’s decision to the circuit court under section 11-51-75. We agree with the circuit court’s reasoning. Precedent also supports the circuit court’s decision. See Bd. of Sup’rs of Rankin Cnty. v. Lee, 147 Miss. 99, 104-OS, 113 So. 194, 195 (1927) (Petitioners for a writ of mandamus “had a plain, adequate, and a reasonably speedy remedy at law ... by appeal” from a decision by a county board of supervisors.). The fact that Appellants failed to timely pursue that adequate remedy is of no moment. See State ex rel. Stanley v. Cook, 146 Ohio St. 348, 66 N.E.2d 207, 218 (1946) (One’s failure to avail himself of a legal remedy in a timely manner does not create an entitlement to “the extraordinary remedy of mandamus.”).

¶ 17. Appellants essentially argue that the circuit court should have held that their appeal to the Commission should be converted to an appeal to the circuit court. To support their argument, Appellants cite Bowling v. Madison County Board of Supervisors, 724 So.2d 431 (Miss.Ct.App. 1998). In Bowling, a property owner “filed a complaint ‘in the nature of a bill of exceptions’ ” in circuit court after a board of supervisors approved a zoning variance for other property in the county. Id. at 433 (¶4). The board of supervisors successfully moved to dismiss the property owner’s complaint because he had failed to timely file a bill of exceptions. Id. at (¶ 6). The circuit court reasoned that it had no jurisdiction because the property owner had failed to appeal and file a bill of exceptions within ten days of the board’s decision. Id. at (¶7). This Court held that the defects in the property owner’s “complaint” “were not on the timeliness or on the issues raised, but on the label, ‘complaint’ instead of ‘appeal,’ and on the absence of a bill of exceptions.” Id. at 441 (¶ 50). We went on to hold that the defects were “matters of form [that] should be amendable.” Id. at 442 (¶ 51). Consequently, this Court reversed the circuit court’s judgment and held that the property owner “must file a bill of exceptions if he wishes to proceed[,] and [he] should promptly prepare and submit one to the county.” Id.

¶ 18. The events in Bowling are distinguishable from the events in the case presently before us. Bowling involved mere formal defects in a document that had been filed in the proper forum. But in this case, we cannot find that an appeal to the Commission is essentially the equivalent of an appeal to the circuit court. Improper jurisdiction is not merely a formal defect. Although Appellants eventually filed a petition for a writ of mandamus in the circuit court, their petition did not request relief that could have been obtained by way of an appeal of the Board’s decision to the circuit court. They simply requested that the circuit court order the Commission to conduct a hearing. Because the defects involved in this case are not mere formalities, we find that Bowling does not apply. There is no merit to this issue.

II. CROSS-APPEAL

¶ 19. On cross-appeal, the City argues that the circuit court erred when it dismissed its request for damages under the Mississippi Litigation Accountability Act. The City notes that it had not scheduled a hearing on its counterclaim, and neither party argued the relative merits of the counterclaim during the hearing on the City’s motion to dismiss Appellants’ petition for a writ of mandamus. According to the City, this Court should reverse the circuit court’s judgment dismissing the counterclaim, and remand it for a hearing on the merits.

¶ 20. The City’s entire argument in its initial brief for this issue is as follows:

[Appellants] did not move to dismiss [the City’s] counterclaim, and it set no hearing to dismiss those claims. Despite [the fact that ... Appellants did] not mov[e] to dismiss or set[ ] a hearing to dismiss [the City’s] claims as is required by Mississippi Rules of Civil Procedure 7 and 12, the [circuit c]ourt dismissed [the City’s] counterclaim without notice or hearing. This dismissal should be reversed for failure of notice and opportunity to be heard, and for violation of [the City’s] right of access to the courts.

(Footnote omitted). The City cited no authority to support its argument. In its reply brief, the City distinguished authority cited by Appellants, but it still did not cite any authority to support its own argument on appeal. Mississippi Rule of Appellate Procedure 28(a)(6) requires that a brief include “citations to the authorities, statutes, and parts of the record relied on.” Likewise, Mississippi caselaw has consistently held that the “[f]ailure to cite any authority is a procedural bar, and [a reviewing court] is under no obligation to consider the assignment [of error].” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005) (citation omitted). It follows that the City’s issue on cross-appeal is procedurally barred.

¶ 21. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . We typically avoid generalizations when referring to parties. However, we make an exception in this case due to the tedious nature of referring to Prendergast, Ladner, Co-wand, and Parker collectively by name.

      . Originally, Prendergast and Ladner had retained one attorney, and Cowand and Parker had retained a different attorney. For reasons that are not discussed in the record, they either fired their original attorneys or allowed them to withdraw. Afterwards, they all retained one attorney to represent them. During the hearing on the City’s motion to dismiss, Appellants' new attorney said that Appellants dismissed their first petition because they had not named the City as a defendant, which he considered to be a "procedural defect.”


author: FAIR, J.,

text:
    Jeffrey HOLMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CA-00484-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      M. Judith Barnett, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Jeffrey Holman was convicted of armed robbery in 2008. His conviction was affirmed on appeal. The Mississippi Supreme Court granted Holman permission to seek post-conviction relief in the trial court, which he did, contending that his trial counsel had colluded with the attorney for one of his accusers. After an evidentiary hearing, the trial court found Holman’s claims factually baseless and denied his PCR petition. We find that the trial court acted within its discretion in resolving conflicting testimony and that its decision is supported by substantial evidence. We affirm.

STANDARD OF REVIEW

¶ 2. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008).

DISCUSSION

¶ 3. Holman was convicted on the theory that he assisted another man, George Dotson Jr., in robbing a convenience store. Holman’s defense was Dotson had forced him to help with the robbery. Dotson pled guilty shortly before Holman’s trial.

¶ 4. Holman’s attorney at trial was Richard Carter III. Carter was a part-time public defender, and Holman’s was the first felony case he had tried. Rosalind Jordan was the other part-time public defender in Attala County; she was more experienced. Jordan represented Dotson, who testified against Holman in the latter’s trial. Holman alleged in his PCR motion that Jordan assisted Carter in the trial and that Carter had relied on her advice, to Holman’s detriment. Holman contended that both Dotson and Jordan had it in for him; allegedly, Dotson had called Holman a snitch and delighted in his prosecution, and a witness claimed to have overheard Jordan say she wanted to see Holman convicted.

¶ 5. At the evidentiary hearing on Holman’s PCR motion, Carter testified that he did not remember speaking to Jordan about Holman’s case. Jordan admitted she was present in the courtroom for some of the trial, but she strenuously denied that she had collaborated with Carter on the case; she admitted only that she may have exchanged pleasantries with him that day in the courtroom.

¶ 6. On the other side of the coin, Holman testified that he personally witnessed Carter taking direction from Jordan about his case during jury selection. Another witness, Hap Anderson, testified that he saw Carter and Jordan speaking and that Carter had told him Jordan helped with the jury selection. The affidavit of a third witness, Mike Hutchinson, was admitted into evidence. Hutchinson, a former sheriff, stated that Carter had declined his offer to help pick the jury. Instead, he observed Carter and Jordan reviewing the jury lists, and there was “no mistaking” that they were collaborating on jury selection.

¶ 7. The trial court considered all of the above evidence and explicitly found that Carter and Jordan’s testimony was more credible. After taking some time to deliberate, the judge announced his ruling from the bench. He accurately summarized the testimony we have recounted above, and then held:

[WJhere there’s a conflict in the testimony, the Court has to resolve [it.] Here, Jordan has no reason to offer any testimony that would not be truthful. [0]n the other hand, this Court believes Holman has every reason in the world to testify in the manner in which he did. The Court will also note that Anderson and Hutchinson, both of those individuals during the trial several years ago, were defense witnesses and offered glowing character assessments of Mr. Holman. In fact, in the affidavit that Mr. Anderson filed, he even stated that he considered Holman to be like one of his own kids. So ... Mrs. Jordan is the only witness who has no interest in the outcome of the proceedings. She’s not aligned in any way or shape or any fashion with anyone involved in this case. So for that reason, the Court finds her testimony to be more credible than that that says otherwise. Mrs. Jordan did not assist or help Mr. Carter in any way during the jury selection in the armed robbery trial. Since she did not help or assist in any way, the Court finds that there would be no conflict of interest since she acted in no capacity as counsel for Mr. Holman. And[,] therefore, he is not entitled to any relief on this issue.

The court also rejected Holman’s ineffective assistance of counsel claim challenging Carter’s overall representation at trial. Although Holman obviously does not agree, he has not directly contested that decision on appeal.

¶8. Holman devotes nearly all of his brief on appeal to attempting to show that he would be entitled to a new trial if the trial court had accepted his version of the facts. However, because the court believed Jordan’s testimony, that question is moot; on appeal, we are required to defer to the trial court’s findings of fact. “[T]he trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility of the witnesses.” Johns v. State, 926 So.2d 188, 194 (¶ 29) (Miss.2006).

¶ 9. The only challenge Holman makes to the trial court’s factual findings is his contention that Jordan’s testimony should be discounted because, when asked why she was so sure about her conduct that day, Jordan stated: “It’s just not something I would have done, considering the fact that my client, Mr. Dotson, was going to be testifying against Mr. Holman.” According to Holman, this is an admission that Jordan did not remember the events and was just testifying as to what she believed she would have done. In context, that does not appear to be what she actually said. Furthermore, a reviewing court “must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” Id. (citation and quotation marks omitted).

¶ 10. After reviewing the record, we conclude that the trial court acted within its discretion as the finder of fact when it favored Jordan and Carter’s testimony over that of Holman and his witnesses. The trial court’s findings are not clearly erroneous and its judgment cannot be disturbed on appeal.

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

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


text:
    Beulah ABRAMS, Appellant v. REPUBLIC FINANCE, LLC, Appellee.
    No. 2013-CA-01271-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      Bennie L. Jones Jr., West Point, attorney for appellant.
    Thomas L. Segrest, Columbus, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Republic Finance sued Beulah Abrams on a delinquent promissory note. The trial court granted summary judgment against Abrams, and she appeals. We affirm.

STANDARD OF REVIEW

¶ 2. “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and examine all the evidentiary matters before it....” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 3. “The evidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401 (¶ 10). “[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Furthermore:

[Wjhen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.

Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

DISCUSSION

¶ 4. This case has a somewhat unusual procedural history that is key to understanding the substantive defects in Abrams’s defense.

¶ 5. Republic Finance filed for summary judgment. In response, Abrams filed an affidavit that stated:

[Abrams] does not understand and has no independent recollection of having entered into or signed the note and/or security agreement — exhibit “A” attached to the Complaint filed by Republic Finance on or about January 27, 2010, and would state affirmatively that the Plaintiff has not shown that she owes the sum of $6,646.83; and she disputes the allegation that she owes $2,215.00 in attorney’s fee[s]. She further disputes the allegation that she owes the total sum of $8,861.83 and all costs.
Moreover, she disputes and denies that an interest rate of 35.75% per an-num should accrue from January 18, 2010 or an interest rate from anytime [sic] herein.

¶ 6. Apparently as a result of Abrams’s affidavit, Republic Finance realized that the note attached to its complaint — although executed by Abrams in favor of Republic Finance — was for a different loan than the one it had described in the complaint and intended to recover upon. With the trial court’s permission, Republic Finance filed an amended complaint with the correct note attached.

¶ 7. Republic Finance then filed a second motion for summary judgment. The motion included an affidavit from Tammy Wooten, Republic Finance’s branch manager in Columbus, Mississippi. Wooten stated that Abrams had executed the note attached to the amended complaint and that she was in default. Also attached was an affidavit from Republic Finance’s attorney, who stated that the note provided for attorney’s fees and that one-third of the amount owed under the note was a reasonable fee.

¶ 8. In response, Abrams submitted the exact same affidavit she had offered in response to the first motion for summary judgment — denying the note attached to the original complaint. At issue at this point was the second promissory note, the one attached to the amended complaint. Thus Abrams’s statement that she did not remember signing a different note cannot create a genuine issue of material fact. The rest of the affidavit consists of conclusory assertions or denials. Abrams also submitted a copy of her answer to the amended complaint and her response to interrogatories in response to the second motion for summary judgment, but those also do not contain relevant, sworn statements of fact on personal knowledge; both consist almost entirely of conclusory assertions of legal theories.

¶ 9. We find that Abrams did not produce evidence sufficient to create a genuine issue of material fact.

¶ 10. For the first time on appeal, Abrams attacks the affidavits submitted by Republic Finance in its motion for summary judgment. She contends that Wooten’s affidavit was insufficient because it was not based on personal knowledge. She further challenges both Wooten’s affidavit and the attorney’s affidavit as defective because they failed to include certified or sworn copies of the promissory note referenced within.

¶ 11. Abrams did not make these objections before the trial court, and they cannot be made for the first time on appeal. “[I]f a party against whom a motion for summary judgment is made wishes to attack one or more of the affidavits upon which the motion is based, he must file in the trial court a motion to strike the affidavit, or the objection is waived.” Karpin-sky v. American Nat’l Ins. Co., 109 So.3d 84, 90 (¶ 20) (Miss.2013) (citation and internal quotation marks omitted).

¶ 12. We do recognize that waiver of the evidentiary objection is not necessarily dispositive. See id. at 90-92 (¶¶ 20-24). Even when evidentiary issues are waived, “upon de novo review, [courts] must still determine whether a party has carried its summary-judgment burden based upon the evidence presented....” Id. at 90-91 (¶ 20) (citation omitted).

¶ 13. Abrams is correct that Mississippi Rule of Civil Procedure 56(c) requires that affidavits be made on personal knowledge. But Wooten’s affidavit states: “I am the Branch Manager of Republic Finance, LLC, Columbus, Mississippi, ... and in such capacity, I have oversight of the accounts of Republic Finance, LLC, and I am competent to make this affidavit.” Although it does not include the magic words “personal knowledge,” the affidavit sufficiently sets out a factual basis for personal knowledge such that, without a timely objection, the issue was settled by the waiver. If it were “clear” Wooten did not have personal knowledge, a different result would obtain; but that is not the case. See Karpinsky, 109 So.3d at 91 (¶ 22).

¶ 14. The promissory note was filed in the record as an attachment to Republic Finance’s amended complaint. It was sufficiently authenticated and “sworn” by Wooten’s affidavit, which incorporated the note by reference.

¶ 15. Even assuming the affidavits were technically deficient because Republic Finance failed attach an extra copy of the promissory note to each of the affidavits, it would not be a substantive defect as in Karpinsky. See id. at 91 n. 27.

¶ 16. We conclude that the trial court properly granted summary judgment to Republic Finance.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. JAMES, J„ CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Apparently some of the proceeds of the second loan were used to satisfy the first promissory note.


text:
    Andre DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00986-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      Andre Davis, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On July 21, 2008, Andre Davis pled guilty to capital murder. Davis was sentenced as an habitual offender to life imprisonment without the possibility of parole pursuant to Mississippi Code Annotated sections 97-3-21 (Rev. 2006) and 99-19-83 (Rev. 2007). Davis retained counsel for his post-conviction-relief (PCR) petition, which was dismissed. Over three years later, Davis filed a pro se motion to vacate the previous order and to be allowed additional time to comply with Mississippi Code Annotated section 99-39-9(3) (Supp.2013). Davis alternatively sought additional time to file another PCR petition. The court denied the motion and stated that Davis did not need the court’s permission to file another petition. We find no abuse of discretion in the circuit court’s decision. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Davis was indicted for capital murder on January 23, 2006. At Davis’s plea hearing, the State said it would seek the death penalty if the case went to trial. Davis’s attorney negotiated an Alford plea to capital murder. After confirming Davis understood his rights, the circuit judge accepted Davis’s Alford plea and sentenced him to life imprisonment without the possibility of parole.

¶ 3. Davis’s counsel filed a PCR petition on July 17, 2009, asserting nearly every ground for relief under Mississippi Code Annotated section 99-39-5 (Supp.2013), including that his plea was involuntary. Davis’s counsel attached a copy of an un-sworn affidavit to the petition. On the last page of the affidavit, there was a handwritten note that said the original affidavit had been mailed to Davis at Hardeman County Correctional Facility in Tennessee. The court did not receive a sworn affidavit from Davis as required by Mississippi Code Annotated section 99-39-9(3). Nevertheless, the court addressed the merits of Davis’s claim. The court dismissed the petition on April 19, 2010. On August 8, 2011, Davis filed a delayed notice of appeal. The circuit court denied Davis’s motion. On February 23, 2012, Davis appealed the court’s decision to the Mississippi Supreme Court. The appeal was summarily dismissed for Davis’s failure to pay the costs of the appeal.

¶ 4. On May 17, 2013, Davis filed a motion with the circuit court to vacate the previous order dismissing his PCR petition and for additional time to comply with section 99-39-9(3) or, alternatively, to renew the time to file another PCR petition. The circuit court judge denied Davis’s motion. Davis appeals.

DISCUSSION

1. Davis’s Motion under Mississippi Rule of Civil Procedure 60(b)

¶ 5. Davis did not appeal the dismissal of his 2010 PCR petition within thirty days. Davis, did, however, attempt to file an out-of-time appeal in August 2011. His request was denied by the circuit court. As a result, nearly three years after his PCR petition had been dismissed, Davis filed the instant motion requesting the judge vacate the order dismissing his PCR petition. “Motions served after ten days of the rendition of a judgment typically are construed as Rule 60(b) motions.” Entergy Miss. Inc. v. Richardson, 134 So.3d 287, 289 (¶ 5) (Miss.2014) (citations omitted). Our review is limited to whether the Rule 60(b) motion was properly denied. Woods v. Victory Mktg., LLC, 111 So.3d 1234, 1236 (¶ 8) (Miss.Ct.App.2013) (citations omitted). A circuit court’s denial of relief pursuant to Rule 60(b) is reviewed under an abuse-of-discretion standard. Beeks v. State, 130 So.3d 163, 165 (¶7) (Miss.Ct.App.2014) (citation omitted).

¶ 6. The rule allows the court to relieve a party from a final judgment when one of the following criteria has been met:

(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
• (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

¶ 7. On appeal, Davis claims his guilty plea was involuntary and that his PCR counsel failed to send him the original affidavit. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So.2d 898, 903-04 (Miss.1991). , Rather, “[R]ule 60(b) is for extraordinary circumstances, for matters collateral to the merits.... ” Bruce, 587 So.2d at 903. Davis’s failure to comply with procedural rules is not an “extraordinary circumstance.” A Rule 60(b) motion is not a substitute for a timely appeal. S. Healthcare Servs., Inc. v. Lloyd’s of London, 110 So.3d 735, 742 (¶ 14) (Miss.2013).

¶ 8. “Rule 60(b) motions should be denied where they are an attempt to relitigate the case.” Pruett v. Malone, 767 So.2d 983, 986 (¶ 14) (Miss.2000) (citation omitted). On appeal, Davis raises arguments that have already been addressed by the circuit court. We find Davis is not entitled to relief from the judgment denying his 2010 PCR petition. Therefore, we affirm the circuit court’s denial of Davis’s motion.

2. Davis’s Alternative Request to File a Second PCR Petition

¶ 9. In his motion, Davis also alternatively requested time to file another petition for post-conviction relief. The circuit judge stated that Davis did not need the court’s permission to do so, and welcomed Davis to submit another petition if he desired. The judge further stated that, if Davis chose to file another PCR petition, he would consider whether Davis’s petition met one of the statutory exceptions to the time-bar or whether it was barred as a successive writ. See Miss.Code Ann. §§ 99-39-5(2) & 99-39-23(6) (Supp.2013). We find no error in the circuit judge’s ruling.

¶ 10. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . Davis was sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections without the possibility of parole. The record is silent as to why Davis was placed in a Tennessee correctional facility.


author: BARNES, J.,

text:
    Tameka GLADNEY, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-00689-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      Tameka Gladney, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. The Mississippi Department of Employment Security (MDES) denied Tameka Gladney unemployment benefits after it determined she voluntarily quit her job without good cause. The circuit court affirmed. We find substantial evidence shows Gladney did not voluntarily quit, but was part of a reduction in force (RIF). Thus, we reverse and render the decision of the circuit court and MDES, and we reinstate Gladney’s unemployment benefits.

FACTS AND PROCEDURAL HISTORY

¶2. Gladney was employed as a full-time teacher’s assistant with the Aberdeen School District. In May 2012, at the end of the school year, the school principal, Angela Irvin, held a meeting and told all the teacher’s assistants she needed to lay off two people. She asked for volunteers. Gladney was the first to volunteer. After a second person volunteered, there was “a little drama” because others had wanted to volunteer. Regardless, Principal Irvin told Gladney and the second volunteer to write a letter by lunchtime stating they would not return the following year due to lack of funds in the school district.

¶ 3. Before writing the letter, Gladney-asked if the pre-kindergarten room where she worked would reopen the next school year. Principal Irvin said no; the room would be closed, and the main teacher for that classroom would not be returning. Gladney also called the school’s conservator, Bob Strebeck, and asked him if writing the letter would make “it look like [she] was walkin’ away from [her] job or [she] was quitting or anything like that.” He said no: “[I]t will not look like you [are] walkin’ away from your job. You can always come back to the district and get a job.” He also stated that he “appreciate^] [her] steppin’ up to the plate' for the district.”

¶4. Gladney submitted her letter on May 16, 2012, stating: “I, Tameka Glad-ney[,] will not be returning back to the Aberdeen School District in the school year of August 2012-2013 due to Lack of Funds in the Aberdeen School District. I will be returning to college in the upcoming year.” (Emphasis in original). The following day, Principal Irvin announced that because “so much drama” had ensued after she asked for volunteers, she would choose the two employees to lay off. Glad-ney was not one of the two employees chosen, but Gladney was not asked or told to withdraw her letter. Her last day of work was May 25, 2012.

¶ 5. On June 8, 2012, Gladney filed for unemployment benefits. Although the school district initially agreed with Glad-ney that she was part of the RIF, it later changed its position and challenged her claim. After review, the MDES claims examiner denied benefits, finding that Gladney had voluntarily quit without good cause. The claims examiner also ordered Gladney to repay the $1,158 in benefits she received before the decision was made. Gladney appealed. The MDES administrative law judge (ALJ) held a telephonic hearing, after which she affirmed the claims examiner’s decision. The MDES Board of Review affirmed the decision as well. Gladney appealed to the Monroe County Circuit Court, which also affirmed the denial of benefits. Gladney now appeals to this Court.

STANDARD OF REVIEW

¶ 6. “The scope of review in an unemployment-compensation case is limited. Absent fraud, the findings of fact of the Board of Review are conclusive if supported by substantial evidence.” Brown v. Miss. Dep’t of Emp’t Sec., 29 So.3d 766, 769 (¶ 7) (Miss.2010). “A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994).

DISCUSSION

¶ 7. Under Mississippi Code Annotated section 71 — 5—513(A)(1)(a) (Supp. 2013), an employee who “le[aves] work voluntarily without good cause” is not entitled to unemployment benefits. Further, an employee who is later found to be ineligible for benefits must repay any unemployment benefits received. Miss.Code Ann. § 71 — 5—19(4)(a)—(b) (Supp.2013). Gladney argues she is entitled to unemployment benefits because she did not leave work voluntarily without good cause, but was part of a RIF. “[T]he question of whether an employee voluntarily quits or was discharged is a question of fact for the [MDES] to determine.” Huckabee v. Miss. Emp’t Sec. Comm’n, 735 So.2d 390, 394 (¶ 14) (Miss.1999).

¶ 8. It is undisputed that Gladney initially agreed to be part of the school district’s RIF. Gladney volunteered for the RIF; she submitted a letter stating she would not return the following school year due to “lack of funds” in the school district; and the school accepted her letter. She was thanked by the school’s conservator for volunteering. Later, however, Principal Irvin announced that she had changed her mind about accepting volunteers and would choose the two employees to lay off. The ALJ found that when Principal Irvin made this announcement, the volunteer option went away. At this point, according to the ALJ, Gladney had two choices: (1) rescind her letter, or (2) not rescind her letter and, in effect, voluntarily quit. The ALJ found that because Gladney did not rescind her letter, it was her intention to voluntarily quit in order to attend college in the fall. The ALJ also found that Gladney quit while other positions were available. Although Gladney’s position would not be renewed and her classroom was closing, the ALJ found Gladney could have possibly worked elsewhere in the school district. Thus, unemployment benefits were denied.

¶ 9. To affirm the MDES’s denial of benefits, we must find its decision was supported by substantial evidence and was not arbitrary or capricious. Bedford Care Ctr. v. Kirk, 935 So.2d 1185, 1138 (¶9) (Miss.Ct.App.2006). “Substantial evidence is that which is relevant and capable of supporting a reasonable conclusion, or is ‘more than an scintilla of evidence.’ ” Id. at (¶ 10) (quoting Gilbreath v. Miss. Emp. Sec. Comm’n, 910 So.2d 682, 686 (¶ 13) (Miss.Ct.App.2005)). “[A] decision that is supported by substantial evidence is not arbitrary and capricious.” Jackson Cnty. Bd. Sup’rs v. Miss. Emp’t Sec. Comm’n, 129 So.3d 178,183 (¶ 14) (Miss.2013). Factual findings are left to the MDES’s discretion, as “[i]t is the role of the agency, in its expertise, to determine the weight of the evidence and the credibility of the witnesses.” Id. at (¶ 15).

¶ 10. Substantial evidence does not support the MDES’s finding that Gladney voluntarily quit her job without good cause. The basic facts of this case are undisputed. After accepting Gladney’s letter, which stated Gladney would not return due to the school district’s lack of funds, the principal changed her mind about taking volunteers. The principal chose the two employees to lay off, and Gladney was not chosen. But the fact remains that when the principal decided not to allow volunteers, she had already accepted Gladney’s letter. We find that once Gladney’s letter was accepted, it was too late for the principal to change her mind without informing Gladney that her letter would thereafter be considered a voluntarily departure if it were not withdrawn. Gladney remained under the impression she was part of the RIF. This understanding was confirmed by the school’s payroll clerk after Gladney filed for unemployment benefits. Glad-ney’s last day of work was May 25, 2012, and she filed for unemployment benefits on June 8, 2012. On June 13, 2012, the payroll clerk responded to a MDES “Request for Information” form, in which the clerk stated the reason for Gladney’s separation was a “RIF”/“lack of work.” The ALJ recognized this in her findings, which state: “The employer’s first response to the request for separation information was that the reason for the job separation was a reduction in force due to a lack of funds. Later the employer asserted that the claimant voluntarily resigned.” Thus, even based on the school’s own understanding at the time Gladney filed for unemployment benefits, Gladney was part of the RIF. It was not until the claim was before the claims examiner that the school asserted Gladney voluntarily quit. The MDES’s finding that Gladney was not part of the RIF is not supported by the evidence.

¶ 11. Aso, the MDES s finding that Gladney chose to quit to return to college is without any basis in the evidence. M-though Gladney wrote in her letter that she would “be returning to college in the upcoming year,” there is no indication in the record that it was Gladney’s intention to quit work to return to college. Gladney stated that she had attended night classes in the past while working and that she could continue to do so. Gladney was adamant that she needed a job and would have continued working at the school if not for the RIF. The MDES’s finding that Gladney voluntarily quit to return to college is not supported by substantial evidence.

¶ 12. Likewise, we cannot find substantial evidence to support the MDES’s finding that Gladney could have worked elsewhere in the school district. Gladney testified she had worked for the school district for seven years and would continue to do so if work was available. Glad-ney was told her pre-kindergarten class was closing, and the classroom’s main teacher was not returning. Gladney asked Principal Irvin if the school would have another pre-kindergarten class in the fall to replace hers. Principal Irvin said no, leading Gladney to believe there would be no employment available for her. The ALJ found that “[ajlthough [Gladney’s] specific classroom closed, the principal did not say that work was not available elsewhere in the district.” (Emphasis added). We cannot find the principal’s nondisclosure amounts to substantial evidence that other positions were available. This is speculation, at best.

¶ 13. We liken the school district’s actions to a “bait and switch,” for which Gladney should not be penalized. Gladney was led to believe she was part of the RIF once she turned in her letter. She was never told her letter was rejected or asked to withdraw the letter. The district, through its payroll clerk, confirmed Glad-ney’s impression that she was still part of the RIF even after the principal’s announcement that she would choose the two employees to lay off. Because there is not substantial evidence to support the MDES’s decision, we reverse and render the denial of unemployment benefits and the order demanding that Gladney repay $1,158. Gladney’s unemployment benefits shall be reinstated.

¶ 14. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. GRIFFIS, P.J., AND CARLTON, J„ DISSENT WITHOUT SEPARATE WRITTEN OPINION.


author: MOORE, Chief Justice. MURDOCK, Justice SHAW, Justice MOORE, Chief Justice. MURDOCK, Justice

text:
    Ex parte TYSON FOODS, INC., et al. (In re Reba Kirkley, as administratrix of the estate of Allen Hayes, deceased v. Tyson Foods, Inc., et al.).
    1110931.
    Supreme Court of Alabama.
    May 24, 2013.
    Special Concurrance Issued on Denial of Rehearing Oct. 4, 2013.

      Carol Ann Smith and David R. Pace of Smith & Pace, P.C., Birmingham; and Alexander M. Smith of Smith & NeSmith, P.C., Oneonta, for petitioners.
    R. Matt Glover of Prince Glover & Hayes, Tuscaloosa; J. Stanton Glasscox of Hayes, Jackson, Weaver & McKinney, LLC, Birmingham; and Brett A. King, Locust Fork, for respondent.
   MOORE, Chief Justice.

Tyson Foods, Inc., Ricky Walker, and Mike Graffino (hereinafter referred to collectively as “the Tyson petitioners”) petition this Court for a writ of mandamus directing the Blount Circuit Court to dismiss Reba Kirkley’s action against them, brought in her capacity as administratrix, i.e., personal representative, of her father’s estate, on the ground that Kirkley lacks standing. Because the Tyson petitioners have not demonstrated a clear legal right to the remedy they seek, we deny the petition.

7. Factual and Procedural History

On April 15, 2008, Allen Hayes died in a workplace accident at the Tyson Foods plant in Blount County. Hayes, who was working as a security guard, was hit by a tractor being operated by an employee of Tyson Foods. His widow Mildred Hayes collected $40,964.19 in workers’ compensation death benefits against the account of DSI Security Services, Allen’s employer at the time of the accident. On June 26, 2008, Kirkley, the personal representative of Allen’s estate and Allen and Mildred’s daughter, filed a wrongful-death action against the Tyson petitioners, who answered and removed the case to federal court. In early March 2011, the federal court remanded the case to state court. Six months later, the Tyson petitioners filed amended answers and a motion to dismiss on the basis that Kirkley lacked standing to bring the wrongful-death action. The trial judge, on Kirkley’s motion, struck the amended answers and denied the motion to dismiss. The Tyson petitioners then sought a writ of mandamus from this Court.

Neither a wrongful-death action nor an action for workers’ compensation death benefits existed at common law. Both are purely statutory causes of action. The statute providing for a wrongful-death action, § 6-5-410(a), Ala.Code 1975, allows only a personal representative of the deceased’s estate to bring such an action. The workers’ compensation statute, by contrast, allows the deceased employee’s personal representative to bring a third-party action only when the covered employee dies without dependents. If dependents survive, the right to sue third parties alleging the wrongful death of the employee lies solely with them. § 25-5-11, Ala.Code 1975; Tucker v. Molden, 761 So.2d 996, 998 (Ala.2000); and Johnson v. Huxford Pole & Timber Co., 983 So.2d 1133, 1138-39 (Ala.Civ.App.2007). Under the workers’ compensation statute, Allen had only one dependent at the time of his death — his wife Mildred. Kirkley, being over the age of 19 and not incapacitated at the time of Allen’s death, did not qualify as a dependent. §§ 25-5-61 and -65, Ala. Code 1975. This “quirk,” as the Tyson petitioners describe it, meant that Kirkley did not qualify to prosecute the wrongful-death action.

In November 2011, the Tyson petitioners for the first time brought this fact to the attention of Kirkley and the trial court in their first amended answers and a companion motion to dismiss. Emphasizing that the wrongful-death statute had a specific two-year statute of limitations, § 6-5-410(d), Ala.Code 1975, the Tyson petitioners argued that the time in which Mildred could be substituted as the plaintiff in the wrongful-death action had expired. Thus, they contended, the trial court had no choice but to dismiss the action for lack of a proper plaintiff.

Kirkley responded that the Tyson petitioners’ request for a dismissal was barred by the doctrine of laches because they did not assert their rights until after the two-year statute of limitations for a wrongful-death action had expired. She also asked the trial court to add Mildred as a plaintiff under Rule 17(a), Ala. R. Civ. P., and to exercise its discretion under Rule 15(a), Ala. R. Civ. P., to strike the amended answers.

On March 7, 2012, the trial court struck the Tyson petitioners’ amended answers, denied their motion to dismiss, and granted Kirkley’s motion to add Mildred as a plaintiff. On April 18, 2012, the Tyson petitioners filed a petition for a writ of mandamus in this Court, seeking an order directing the trial court to dismiss the case. The Tyson petitioners argued that Kirkley lacked standing to prosecute the wrongful-death action and that the motion to add Mildred as a plaintiff came too late.

II. Standard of Review

This Court has previously allowed mandamus review to hear a challenge to standing. See, e.g., Ex parte HealthSouth Corp., 974 So.2d 288 (Ala.2007); Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005). The threshold for granting the petition, however, is high:

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon, 672 So.2d 497, 499 (Ala. 1995).

III. Analysis

A. Clear Legal Right to Order Sought: Standing v. Capacity

The Tyson petitioners’ request for relief implicates a legal question this Court has referred to as “the standing/capacity dichotomy.” Daniel v. O.F. Richter & Sons, Inc., 385 So.2d 1308, 1309 (Ala.1980). If the issue of Kirkley’s right to file a wrongful-death action is one of capacity under Rule 17, Ala. R. Civ. P., as she argues, rather than a question of standing, as the Tyson petitioners insist, then Kirkley may well prevail. Lack of capacity is an affirmative defense that is waived if not raised and is often curable. Lack of standing, however, cannot be waived and can be raised at any time. Sexton v. Bass Comfort Control, Inc., 63 So.3d 656, 664 (Ala.Civ.App.2010).

This Court has previously stated that “the Workers’ Compensation Chapter limits standing to sue to the injured employee himself or herself or his or her dependents .... ” Tucker v. Molden, 761 So.2d at 998 (emphasis added). That statement, however, was dictum, unnecessary to the issue decided in Tucker. No party disputed that the plaintiff in Tucker had standing; nor did Tucker discuss capacity. By contrast, in Alabama Power Co. v. White, 377 So.2d 930 (Ala.1979), this Court expressly held that surviving dependents of a deceased employee have the capacity to bring an action and that a defendant waives the challenge to capacity by not raising it.

“[W]e hold that § 25-5-ll(a)[, Ala.Code 1975,] by the phrase ‘the employee, or his dependents in case of his death, may proceed against the employer’ gives to the dependents CAPACITY to bring suit against the employer under certain circumstances. We hold that dependency is capacity under § 25-5-ll(a) which must be denied by the defendant by specific negative averment.... ”

377 So.2d at 936. As discussed below, other cases are consistent with this holding.

In Board of Water & Sewer Commissioners of the City of Mobile v. McDonald, 56 Ala.App. 426, 322 So.2d 717 (Civ.App. 1975), the plaintiff, facing a motion to dismiss for lack of standing, sought to amend the complaint to join his wife, the actual owner of the property at issue, as a plaintiff. Rule 17(a), Ala. R. Civ. P., states:

“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

Rule 17 allows the substitution or joinder of plaintiffs in the same way that Rule 15, Ala. R. Civ. P., permits the substitution of defendants to relate back to the date of the filing of the original pleading. See Rule 17, Ala. R. Civ. P. (Committee Comments on 1978 Adoption). Noting the admonition in Rule 15 that “amendments are to be allowed ‘freely ... when justice so requires,’ ” McDonald, 56 Ala.App. at 429, 322 So.2d at 720, the Court of Civil Appeals held that “the amendment was properly allowed even if it worked to avoid the statute of limitations.” 56 Ala.App. at 430, 322 So.2d at 720. The court applied the conditions on the relation back of amendments to defendants under Rule 15(c) to the addition of a real party in interest as a plaintiff under Rule 17(a):

“An amendment changing parties plaintiff relates back if the claim of the new party arose out of the same transaction, conduct or occurrence as that set forth in the original pleading, and if the defendant, within the period provided by law for commencing the action against him (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the substituted or joined party would have brought the action against him.”

McDonald, 56 Ala.App. at 430, 322 So.2d at 721. The court then quoted “the sense of the rule” from a leading treatise:

“ ‘As long as defendant is fully apprised of the claim arising from specified conduct and has fully prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense.’ ”

Id. (quoting 6 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1501). Finally, the court applied the relation-back rule to the facts before it, holding that there was “no change in the claim as originally filed,” that the defendant “knew or should have known that there was a mistake in the name of the proper party bringing the original claim” as was evident in the defendant’s own pleading, and that the defendant had suffered no prejudice. 56 Ala.App. at 431, 322 So.2d at 721.

Applying the same reasoning to this case, we conclude that the addition as a plaintiff of Mildred, Allen’s dependent and the real party in interest, created “no change in the claim as originally filed.” As is evident in the amended answers, the Tyson petitioners knew or should have known that a mistake was made “concerning the identity of the proper party.” Accordingly, the Tyson petitioners were not prejudiced in preparing their defense. Thus, notwithstanding the expiration of the wrongful-death statute of limitations, the addition of Mildred as a plaintiff properly related back to the original pleading.

In Blue Star Ready Mix v. Cleveland, 473 So.2d 497, 499 (Ala.1985), this Court quoted the McDonald analysis approvingly at length. In Ex parte Singleton, 475 So.2d 186, 189-90 (Ala.1985), this Court again quoted substantial portions of McDonald, applying its principles to allow the substitution of a real-party appellant. In Holyfield, v. Moates, 565 So.2d 186 (Ala. 1990), a case with many similarities to this one, the circuit court dismissed a wrongful-death action because the personal representative of the deceased was, contrary to law, a nonresident of Alabama, and substitution was attempted after the limitations period had expired. This Court reversed the circuit court’s dismissal, noting that “our holding is mandated by Rule 17(a), [Ala.] R. Civ. P.” 565 So.2d at 189. As authority, this Court quoted a case decided by the United States Court of Appeals for the Eleventh Circuit interpreting and applying the corresponding federal rule:

“ ‘The plain language of [Rule 17, Fed. R.Civ.P.,] clearly provides that when an action is brought by someone other than the real party in interest within the limitations period and the real party in interest joins or ratifies the action after the limitations period has run, the amendment or ratification relates back to the time suit was originally filed and the action need not be dismissed as time barred.’ ”

565 So.2d at 189 (quoting Hess v. Eddy, 689 F.2d 977, 980 (11th Cir.1982)).

The application of the relation-back rule is the same here. Kirkley, although not the real party in interest, brought the action within the limitations period. The addition of Mildred as the real party in interest after the limitations period had run thus “ ‘relates back to the time suit was originally filed and the action need not be dismissed as time barred.’ ” See 1991 Advisory Committee Note to Rule 15, Fed. R.Civ.P. (noting that the goal of relation-back principles is “to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense”).

The trial court properly treated Kirk-ley’s status as a capacity issue and granted a curative motion filed pursuant to Rule 17, Ala. R. Civ. P., stating: “[Kirkley’s] Motion to Add Mildred Hayes as an Additional Real Party in Interest is GRANTED based upon Alabama Rule of Civil Procedure 17(A) and Miller v. Jackson Hospital & Clinic, 776 So.2d 122 (Ala. 2000).” (Capitalization in original.) In Miller, an attorney-in-fact, proceeding under a power of attorney, improperly filed an action in his own name rather than in the name of the real party in interest, i.e., the party who had suffered the injury. 776 So.2d at 125-26. The trial court rejected an amendment to substitute the real party in interest outside the limitations period. 776 So.2d at 123. This Court reversed. The plurality opinion in Miller quoted a case of the United States Court of Appeals for the Second Circuit:

“ ‘ “The substitution of such parties after the applicable statute of limitations may have run is not significant when the change is merely formal and in no way alters the known facts and issues on which the action is based. The courts have freely upheld the filing of an amended complaint under these circumstances.” ’ ”

776 So.2d at 127 (quoting Advanced Mag-netics, Inc. v. Bay front Partners, Inc., 106 F.3d 11, 19 (2d Cir.1997), quoting in turn Staren v. American Nat’l Bank & Trust Co., 529 F.2d 1257, 1263 (7th Cir.1976)).

The plurality opinion in Miller noted that the motion to dismiss ‘“for lack of standing’ ” in Advanced Magnetics was really a claim that the named plaintiff was not the real party in interest. 776 So.2d at 127. As such, “ ‘there plainly should be no dismissal where “substitution of the real party in interest is necessary to avoid injustice.” ’ ” Id. (quoting Advanced Mag-netics, 106 F.3d at 20). The plurality noted that the plaintiff in Miller had filed the complaint under the “mistaken belief’ that he could represent the real party in interest and that the error was not deliberate and did not mislead the defendant in understanding the claim. Id. Accordingly, substitution would be allowed under Rule 17, and the claim would relate back to the date of the original filing, even though the limitations period had run. Id.

The Miller opinion also stated that substitution was valid where a “jural relationship” existed between the party that commenced the action and the real party in interest. 776 So.2d at 126. In this case, Kirkley, as the personal representative of Allen’s estate, had a “jural relationship” with Mildred, a dependent of Allen’s and a beneficiary who would be a recipient of any funds recovered in the wrongful-death action.

“Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly [exceeded] its discretion.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000). Because the trial court’s granting the motion to add Mildred as a plaintiff under Rule 17 was proper, the trial court did not exceed its discretion in adding Mildred as the real party in interest.

B. Trial Court’s Discretion to Strike Amended Answers

The Tyson petitioners did not raise a standing/capacity defense until they filed their first amended answers on November 8, 2011, over three years after the case began. They asserted in those answers “that [Kirkley] does not have standing or capacity to bring this action.” Their original answers, filed July 30, 2008, did not raise the issue of standing or capacity. The trial court was within its discretion to strike the first amended answers on the grounds of undue delay and actual prejudice. As the court stated:

“6. Alabama Rule of Civil Procedure 15 allows the Court discretion to strike Amended Answers, either upon its own motion or by motion of another party, when the proposed amendment would result in actual prejudice to the opposing party or for reasons of undue delay. “7. The [Tyson petitioners] unduly delayed filing their First Amended Answers. The delay of years is inexcusable and would cause actual prejudice on the opposing party.”

The trial court’s reasoning echoes this Court’s standard for upholding the striking of an amendment to a pleading. “The trial court acts within its discretion so long as its disallowance of the amendment to the pleadings is based upon some valid ground, such as actual prejudice or undue delay.” Ex parte Thomas, 628 So.2d 483, 486 (Ala. 1993).

The Tyson petitioners’ motion to dismiss on a limitations ground is prima facie evidence of actual prejudice. The length of the delay in filing the amended answers is also indisputable. The trial court acted well within its discretion in deciding to strike the amended answers and to deny the motion to dismiss. See Thomas, 628 So.2d at 486 (finding that delay of seven to eight months justified court’s refusal to permit amendment to pleadings).

TV. Conclusion

The trial court properly added Mildred as a plaintiff under Rule 17(a), Ala. R. Civ. P., and acted within its discretion under Rule 15(a), Ala. R. Civ. P., in striking the Tyson petitioners’ late and prejudicial amendment of their answers. Because the Tyson petitioners do not have a clear legal right to dismissal of the case on the ground of standing, their petition for a writ of mandamus is denied.

PETITION DENIED.

STUART, PARKER, MAIN, and BRYAN, JJ., concur.

MURDOCK and WISE, JJ., concur specially.

BOLIN and SHAW, JJ., concur in the result.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. In so doing, I note that the main opinion uses both the term “capacity” and the term “real party in interest” in contradistinction to the term “standing.” I believe a question exists as to whether the interchangeable use of the terms “capacity” and “real party in interest” is appropriate. Further exploration of this question can await another day, however, in that the dispositive conclusion for purposes of the present case is that the issue presented is not one of “standing.”

That said, the principal reason I write separately is to address an issue regarding the proper construction of Ala.Code 1975, § 25-5-11. As indicated in the main opinion, our precedents appear to stand for the proposition that the right to bring an action against a third-party tortfeasor for the wrongful death of an employee who also is entitled to benefits under the Workers’ Compensation Act resides exclusively with the former dependents of the deceased employee. I question this understanding of § 25-5-11 and its impact on wrongful-death claims prescribed by Ala.Code 1975, § 6-5-410. Claims under § 6-5-410 are for the benefit of the heirs as determined under our intestacy laws (see §§ 43-8^41 and -42, Ala.Code 1975), and that statute states that the right to file such a claim lies with the personal representative of the decedent’s estate. My concern is rooted in the fact that, given the definition of “dependents” under the Workers’ Compensation Act, see Ala.Code 1975, § 25-5-61 et seq., the “dependent” who has an interest in pursuing a claim for death benefits under the Workers’ Compensation Act may not qualify as an heir under our intestacy laws and therefore may have no interest in pursuing an action under § 6-5-410 for the benefit of those who are heirs. The precedents that apparently contemplate such an unusual, and arguably unworkable, arrangement and the manner in which they have interpreted § 25-5-11 of the Workers’ Compensation Act in order to arrive at this arrangement, however, have not been called into question in the present case.

I, therefore, concur in the main opinion.

WISE, J., concurs.

SHAW, Justice

(concurring in the result).

This case involves an action under Ala. Code 1975, § 25-5-11, a provision of the Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq., seeking damages for the death of an employee. Section 25-5-11(a) states that “the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation under this chapter ... and at the same time, may bring an action against the other party to recover damages for the injury or death.... ” (Emphasis added.) The defendants below, Tyson Foods, Inc., Ricky Walker, and Mike Graffino (hereinafter referred to collectively as “the Tyson petitioners”), filed a motion to dismiss in the trial court, contending that the plaintiff, Reba Kirkley, the administratrix of the deceased employee’s estate, was not a “dependent” under § 25-5-11 and thus lacked “standing” to prosecute the case. The trial court denied the motion to dismiss.

“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Further, “[mjandamus review is available where the petitioner challenges the subject-matter jurisdiction of the trial court based on the plaintiff’s alleged lack of standing to bring the lawsuit.” Ex parte HealthSouth Corp., 974 So.2d 288, 292 (Ala.2007). Thus, the Tyson petitioners requested that this Court issue a writ of mandamus directing the trial court to dismiss the underlying action based on Kirk-ley’s purported lack of subject-matter jurisdiction.

In Alabama Power Co. v. White, 377 So.2d 980 (Ala.1979), this Court explicitly held that the requirement in § 25-5-ll(a) that “dependents” of a deceased employee bring an action under that Code section was an issue of “capacity” that need not be proven if not challenged:

“[Wje hold that § 25-5-ll(a) by the phrase ‘the employee, or his dependents in case of his death, may proceed against the employer’ gives to the dependents CAPACITY to bring suit against the employer under certain circumstances. We hold that dependency is capacity under § 25-5-ll(a) which must be denied by the defendant by specific negative averment....”

377 So.2d at 936. Black’s Law Dictionary has described the “capacity to sue” as “[tjhe legal ability of a particular individual or entity to sue in ... the courts of a forum.” Black’s Law Dictionary 207 (6th ed.1990).

“Standing, on the other hand, turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kour-lis, J., dissenting) (emphasis added). ‘One has standing to bring his complaint into court “if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.” ’ Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974) (emphasis added).”

Property at 2018 Rainbow Drive, 740 So.2d at 1027-28 (citation omitted). “Standing” and “capacity” are two distinct issues: “There is a difference between capacity to sue and standing to sue.” Mobile, Alabama Pensacola, Florida Bldg. & Constr. Trades Council v. Williams, 346 So.2d 964, 966 (Ala.1977) (Faulkner, J., dissenting), cited with approval in Penick v. Most Worshipful Prince Hall Grand Lodge F & AM of Alabama, Inc., 46 So.3d 416, 426 (Ala.2010). As noted in 2018 Rainbow Drive, supra, the lack of standing deprives the trial court of jurisdiction. The lack of capacity in an action under § 25-5-ll(a), however, is an affirmative defense subject to waiver. Alabama Power Co. v. White, supra.

In Tucker v. Molden, 761 So.2d 996 (Ala.2000), which the Tyson petitioners cite, this Court discussed the ability to bring an action under § 25-5-11 in general terms as being a question of “standing”; however, it was undisputed in that case that the person who filed the action was the proper person to do so. The description in Tucker of the plaintiffs ability under § 25-5-11 to pursue the action embraced no legal ruling and was not necessary to the rationale of this Court’s decision, which addressed a different legal issue. Therefore, the discussion regarding standing was simply surplusage and dicta and does not call into question the explicit holding in Alabama Power Co. v. White. Thus, under Alabama Power Co. v. White, Kirkley’s purported lack of capacity to file the action under § 25-5-11 is not a failure of jurisdiction, and the petition is due to be denied.

BOLIN, J., concurs.

On Application for Rehearing

MOORE, Chief Justice.

APPLICATION OVERRULED. NO OPINION.

STUART, BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ„ concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

The application for rehearing is based on an argument that the issue presented in this case is one of standing. The rejection of that argument on original submission was a position with which I agreed and with which I continue to agree. I therefore must concur in overruling the application for rehearing.

That said, I believe a question exists as to whether the issue before us is properly considered to be a real-party-in-interest issue, as the main opinion suggests, entitling the plaintiff to the benefit of the relation-back principle embodied in Rule 15(a), Ala. R. Civ. P., or whether this is a case in which the only party with a cause of action under Alabama law simply missed her statute-of-limitations deadline for commencing an action. The application for rehearing, however, does not explore the circumstances that the real-party-in-interest concept was intended to address.

      . "There was no right to recover for death at common law.” Akins v. Drummond Co., 628 So.2d 591, 592 (Ala. 1993).

      . "When a party desires to raise an issue as to the ... capacity of any party to sue ..., the party desiring to raise the issue shall do so by specific negative averment....” Rule 9(a), Ala. R. Civ. P.

      . See Rule 17(a), Ala. R. Civ. P. (providing that substitution of the real party in interest "shall have the same effect as if the action had been commenced in the name of the real party in interest”).

      . Justice Lyons, attempting to clarify the distinction between lack of capacity (curable) and lack of standing (incurable), noted that "[i]mprecision in labeling a party’s inability to proceed as a standing problem unnecessarily expands the universe of cases lacking in subject-matter jurisdiction.” Hamm v. Norfolk S. Ry„ 52 So.3d 484, 499 (Ala.2010) (Lyons, J., concurring specially). An Alabama law professor recently argued that standing, if casually invoked, may wrongly treat a curable capacity question as an incurable standing issue, thus "rendering the filing of ill-conceived but not irredeemable private law complaints not merely mistaken acts, reparable by amendment, but void acts, not reparable by amendment.” Jerome A. Hoffman, The Malignant Mystique of "Standing," 73 Ala. Law. 360, 362 (2012).

      . The Tyson petitioners also argue that the wrongful-death statute contains its own limitations period and thus is a "statute of creation” not subject to tolling. See § 6-5-410(d), Ala.Code 1975; Cofer v. Ensor, 473 So.2d 984, 991 (Ala.1985). This fact, however, does not affect the capacity analysis. Rule 17(a) does not toll the statute of limitations. "[A]pplication of relation back does not extend the limitation period” but merely allows substitution of a party in a suit otherwise timely filed. Chumney v. U.S. Repeating Arms Co., 196 F.R.D. 419, 427 (M.D.Ala.2000). "[I]f the expiration of the statute of limitations does not bar the correction of an ‘inconsequential pleading error' from relating back, then neither does the expiration of a statute of creation’s limitation period.” Id.

        . ”[0]ur relations to our fellow men are commonly called legal (or jural) relations.” Arthur Corbin, Jural Relations and Their Classification, 30 Yale L.J. 226, 227 (1921).

      . Also, I express no view as to the issue broached in note 5 of the main opinion, i.e., whether the limitations period found in § 6-5-410, Ala.Code 1975, is in the nature of a statute of limitations or a statute of “creation.” 146 So.3d at 1045.

      . Kirkley has since substituted Mildred Hayes, the employee’s widow, as the plaintiff.

      . Other prior appellate decisions have at times used the word "standing” in discussing the ability to maintain an action under § 25-5-11. See Ragsdale v. Altec Indus., Inc., 456 So.2d 54 (Ala. 1984) (using both the terms "standing” and "capacity” to describe the ability to sue under § 25-5-11), and Johnson v. Huxford Pole & Timber Co., 983 So.2d 1133 (Ala.Civ.App.2007) (plurality opinion); however, like Tucker, and unlike Alabama Power Co. v. White, these cases do not analyze or rule on the precise legal nature of a party’s ability to maintain such an action.


author: MAIN, Justice. BOLIN, Justice MAIN, Justice. BOLIN, Justice

text:
    GOLDEN GATE NATIONAL SENIOR CARE, LLC, d/b/a Golden Living Center-Riverchase, LLC, et al. v. Donald ROSER, as the administrator ad litem of the estate of Laura Roser.
    1120016.
    Supreme Court of Alabama.
    June 7, 2013.
    Special Concurrence Issued on Denial of Rehearing Aug. 23, 2013.
    W.H. Albritton IV, James F. Henry, Kevin C. Newsom, and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for appellants.

      Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Jason N. Young of Marks, Balette & Gies-sel, P.C., Houston, Texas, for appellee.
   MAIN, Justice.

AFFIRMED. NO OPINION.

MOORE, C.J., and MURDOCK and BRYAN, JJ., concur.

BOLIN, J., concurs specially.

BOLIN, Justice

(concurring specially).

I continue to adhere to the tenets expressed in my special concurrence in Golden Gate National Senior Care, LLC v. Roser, 94 So.3d 365 (Ala.2012), regarding the inability of an administrator ad litem to initiate a wrongful-death action when the question of the capacity of the administrator to bring such an action is properly and timely presented to the trial court.

On Application for Rehearing

MAIN, Justice.

APPLICATION OVERRULED; NO OPINION.

MOORE, C.J., and MURDOCK and BRYAN, JJ., concur.

BOLIN, J., concurs specially.

BOLIN, Justice

(concurring specially).

I concur to overrule the application for rehearing, although I still adhere to my special writing issued on original submission.