author: JAMES, J.,

text:
    WOODLAND VILLAGE NURSING CENTER, LLC, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY and Kelsey Nobach, Appellees.
    No. 2012-CC-00698-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Rehearing Denied March 4, 2014.

      Thomas L. Musselman, Pascagoula, Jackye C. Bertucci, attorneys for appellant.
    Albert B. White, Madison, Danielle Ka-rie Brewer, Leanne Franklin Brady, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Kelsey Nobach was terminated from her position as an activity aide at Woodland Village Nursing Center LLC for violating its alleged disciplinary policy. Initially Nobach was denied benefits by a Mississippi Department of Employment Security (MDES) claims examiner. No-bach appealed to an administrative law judge (ALJ), who reversed the denial of benefits. Woodland Village appealed to the MDES Board of Review, and the Board of Review affirmed. Woodland Village next appealed to circuit court, which also affirmed. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Nobach was employed as an activity aide at Woodland Village from August 2008 to September 2009. Nobach was terminated when she refused to recite the Rosary with a resident on September 24, 2009. The write-up that resulted was her fifth write-up. Nobach was informed that she was being terminated for receiving a fifth write-up and for her insubordination by refusing to recite the Rosary as scheduled on the activity calendar.

¶ 3. On September 24, 2009, Nobach filed for unemployment benefits with MDES. After an investigation, the MDES claims examiner disqualified Nobach from receiving unemployment-insurance benefits, finding that Nobach was discharged for receiving five write-ups in one year, contrary to the employer’s stated policy. The “Notice of Nonmonetary Determination Decision” was dated October 6, 2009. Nobach appealed on October 21, 2009, one day past the fourteen-day time limit for filing. A telephonic hearing before an ALJ was held on November 25, 2009, to determine the timeliness of Nobach’s appeal. The ALJ ruled that the appeal was timely filed and should be heard on the merits.

¶ 4. Another telephonic hearing was held March 27, 2010, and March 29, 2010, before an ALJ. The ALJ reversed the claims examiner’s denial of benefits, finding that Woodland Village failed to prove that No-bach was aware of the disciplinary policy and finding also that Nobach’s refusal to recite the Rosary did not amount to insubordination under Mississippi law.

¶ 5. Woodland Village appealed the ALJ’s ruling to the Board of Review. Adopting the ALJ’s findings of fact and conclusions of law, the Board of Review affirmed. Woodland Village next appealed to the Circuit Court of Hancock County, which affirmed. Woodland Village now appeals to this Court, raising the following issues: (1) whether Nobach’s appeal was untimely, and (2) whether MDES’s decision was arbitrary and capricious and against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 6. We review the circuit court’s judgment affirming the Board of Review’s decision utilizing an abuse-of-diseretion standard. Miss. Dep’t of Emp’t Sec. v. Clark, 13 So.3d 866, 870 (¶ 8) (Miss.Ct. App.2009) (citing Howell v. Miss. Emp’t Sec. Comm’n, 906 So.2d 766, 769 (¶7) (Miss.Ct.App.2004)). This Court gives great deference to an administrative agency’s findings and decisions and will not reweigh the facts or attempt to substitute our judgment for that of the agency. Gordon v. Miss. Emp’t Sec. Comm’n, 864 So.2d 1013, 1015 (¶ 7) (Miss.Ct.App.2004). An agency’s decision will be overturned only where the decision: “(1) is not supported by substantial evidence; (2) is arbitrary or capricious; (3) is beyond the scope or power granted to the agency; or (4) violates [the claimant’s] constitutional rights.” Id.

DISCUSSION

I. Whether Nobach’s appeal was timely.

¶ 7. Woodland Village first argues that Nobach failed to timely appeal the decision of the claims examiner and failed to show good cause for her late filing. Mississippi Code Annotated section 71-5-517 (Rev. 2012) provides that “[t]he claimant or any party to the initial determination or amended initial determination may file an appeal from such initial determination or amended initial determination within fourteen (14) days after notification thereof, or after the date such notification was sent to his last known address.” Here, the fourteen-day period commenced on October 6, 2009. Thus, the deadline to file an appeal was October 20, 2009. Nobach’s appeal, which was not filed until October 21, 2009, was therefore untimely. A hearing was held on November 25, 2009, before an ALJ, who found good cause for the untimely filing.

¶ 8. We find that Woodland Village has waived the issue of the untimeliness of Nobach’s appeal. The Mississippi Supreme Court has held that “[t]he timeliness of an appeal from a claims examiner’s initial determination to the ALJ is nonju-risdictional, and hence, it is a waivable issue.” Brown v. Miss. Dep’t of Emp’t Sec., 29 So.3d 766, 772 (¶ 17) (Miss.2010). A review of the record reveals that Woodland Village did not raise this issue at the hearing before the ALJ or in its appeal to the Board of Review. This issue was first raised on appeal before the circuit court; therefore, this issue is procedurally barred.

¶9. However, even if this issue were properly before this Court, there is nothing in the record to indicate that the ALJ’s finding was contrary to the regulation providing that the agency has the discretionary authority to consider an untimely filed request. Section 301 of the Unemployment Insurance Benefits Regulations provides that “[t]he Agency has the discretionary authority to consider untimely filed requests made under this regulation if it can be shown there are compelling circumstances which justify a reconsideration!,] such as fraud, misconception of facts or any other reason the Agency deems compelling.” Here, the ALJ determined that the appeal should be heard on the merits, and there is nothing in the record to indicate an abuse of discretion. This issue is without merit.

II. Whether the Board of Review’s decision was arbitrary and capricious and against the overwhelming weight of evidence.

¶ 10. Woodland Village contends that the circuit court erred in affirming the Board of Review’s decision, arguing that Nobach’s failure to follow the activities schedule by refusing to recite the Rosary-constituted insubordination, and that No-bach’s violation of the alleged write-up policy constituted misconduct. We disagree.

A. Nobach’s refusal to recite the Rosary did not constitute insubordination.

Ml. The Mississippi Supreme Court has defined misconduct as:

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee [or] carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer.... Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertence and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion are not considered misconduct within the meaning of the statute.

Gordon, 864 So.2d at 1018 (¶ 19) (quoting Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982)).

¶ 12. “Insubordination may rise to the level of misconduct on certain occasions.” Gammage v. Miss. Dep’t of Emp’t Sec., 113 So.3d 1294, 1297 (¶ 15) (Miss.Ct. App.2013) (citing Young v. Miss. Emp’t Sec. Comm’n, 754 So.2d 464, 466 (¶ 7) (Miss.1999)). Insubordination is defined as “a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.” Id. at (¶ 13) (citing Gordon, 864 So.2d at 1019 (¶ 27)).

¶ 13. As we have stated, this Court gives great deference to an administrative agency’s findings and decisions, and will not reweigh the facts or attempt to substitute our judgment for that of the agency. The Board of Review’s decision, reads, in part, as follows:

Although insubordination may constitute disqualifying misconduct, Mississippi law has defined insubordination which amounts to disqualifying misconduct as a constant and constituting intentional refusal to obey a direct or implied order, reasonable in nature, and given by an with proper authority. [Shannon Eng’g & Constr., Inc. v. Miss. Emp’t Sec. Comm’n, ] 549 So.2d 446 (Miss.1989). Here, the claimant did not engage in a constant and continuing refusal, but rather refused to participate in the [R]o-sary in an isolated incident. Further, the direction came from her co-worker who did not exercise any authority over the claimant. Accordingly, the employer has not shown that the claimant engaged in any disqualifying misconduct by refusing to participate in the Rosary on September 19, 2009.

¶ 14. Woodland Village failed to produce evidence that Nobach refused to obey a reasonable order given by and with proper authority. The Mississippi Supreme Court has held that an isolated incident is not a constant and continuing refusal. Gore v. Miss. Emp’t Sec. Comm’n, 592 So.2d 1008, 1010 (Miss.1992). Here, Woodland Village has failed to demonstrate that Nobach was guilty of “constant or continuing refusal to obey a direct or implied order.” Id. Nobach’s refusal to recite the Rosary was a single isolated event that does not amount to insubordination under Mississippi law.

B. Woodland Village failed to prove that Nobach was aware of the disciplinary policy.

¶ 15. Woodland Village also argues that Nobach’s violation of the its disciplinary policy constituted misconduct. However, the Board of Review found that Woodland Village did not offer any evidence to show that Nobach was aware of this policy or that this policy was in place at the time of Nobach’s discharge.

¶ 16. Mississippi law provides that employees “shall not be found guilty of misconduct for violation of a rule unless: (1) the employee knew or should have known of the rule; (2) the rule was lawful and reasonably related to the job environment and job performance; and (3) the rule is fairly and consistently enforced.” Gammage, 113 So.3d at 1297 (¶ 14) (quoting Captain v. Miss. Emp’t Sec. Comm’n, 817 So.2d 634, 637 (¶19) (Miss.Ct.App. 2002)).

¶ 17. We have held that “[t]he violation of an established policy of the employer can, in and of itself, constitute willful misconduct. To prove willful misconduct by showing such violation of the policy, the employer must prove both the existence of the policy and the violation thereof by the employee.” Clark, 13 So.3d at 871 (¶ 11) (citing Halbert v. City of Columbus, 722 So.2d 522, 527 (¶ 20) (Miss. 1998)).

¶ 18. During the hearing, James Williams, Woodland Village’s director of operations, testified that the alleged writeup policy was verbally communicated to the staff. According to Williams, “the administrator passed [the policy] to the department heads and the department heads [conveyed it to] the staff.” Williams stated that he had no knowledge of whether Nobach was informed of the policy. No-bach testified that she was unaware of the policy. In addition to Nobach’s testimony, Lorrie Ann Norris, a former activities supervisor at Woodland Village, testified that the write-up policy was not implemented until after Nobach was discharged.

¶ 19. A review of the record shows that Woodland Village failed to establish the existence of a disciplinary policy or that Nobach was aware of such a policy. Thus we cannot say that the Board of Review’s decision was arbitrary or capricious, or that it was unsupported by the evidence. For these reasons, we affirm the judgment of the Hancock County Circuit Court.

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

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

      . During the hearing before the ALJ, Nobach stated that her refusal to recite the Rosary was based on her religious beliefs as a practicing Jehovah's Witness. Although the issue of whether a denial of benefits resulting from a termination for refusing to recite the Rosary would constitute a violation of the First Amendment to the United States Constitution, which protects the freedom of religion, was addressed in the brief by the Appellee, it was not addressed in the decisions below nor raised by Woodland Village on appeal. Therefore, adhering to our limited standard of review, we will not address that issue here.

      . Nobach had received four prior written reprimands for the following conduct: tardiness (February 2009 and July 2009), allegedly taking nail polish from a resident (June 2009), and allegedly making a false accusation against another employee (June 2009).


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Cherri R. PORTER, Appellant v. GRAND CASINO OF MISSISSIPPI, INC.-BILOXI, State Farm Fire and Casualty Company, and Max Mullins, Appellees.
    No. 2012-CA-01793-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      James Eldred Renfroe, attorney for appellant.

      Vincent J. Castigliola Jr., Pascagoula, Kasee Sparks Heisterhagen, John Patrick Kavanagh Jr., attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Among its many destructive acts, Hurricane Katrina unmoored a casino barge, carrying it into Cherri R. Porter’s beachfront home. According to Porter, this was a covered event under her all-risk homeowner’s insurance policy, which did not expressly exclude “barges.” When coverage was denied, Porter sued her insurance company and insurance agent. She also sued the casino for negligence. The circuit court found none of Porter’s claims could survive summary judgment. After de novo review, we reach the same conclusion.

¶ 2. Porter’s homeowner’s policy clearly and unambiguously excluded not only loss caused by water but also “loss [that] would not have occurred in the absence of’ water. While Porter claims the “true cause” of the loss of her home was “the barge,” she cannot show that the loss of her home would not have occurred in the absence of water — specifically the storm surge that carried the barge into her home. Thus, her claim that her insurer improperly denied her coverage must fail.

¶ 3. Likewise, her claim that her insurance agent was negligent in procuring her coverage fails. Porter simply has no evidence that she asked her agent to obtain any coverage other than what her homeowner’s policy clearly provided.

¶ 4. She also has no evidence to create a jury issue on her negligence claim that the casino breached its duty to her as its neighbor. While Porter did submit an affidavit by an engineering expert, the expert did not opine that the casino acted unreasonably in light of the foreseeable risks associated with a hurricane. And contrary to Porter’s assertion, the fact that the barge broke free during the hurricane, in and of itself, is not evidence the casino negligently designed and maintained the barge’s mooring system. Because we find Porter failed to establish the essential element of breach, her negligence claim fails as a matter of law.

¶ 5. We thus affirm the circuit court’s grant of summary judgment in favor of all three defendants.

Background Facts and Procedural History

¶ 6. Porter’s home on East Beach Boulevard, Biloxi, Mississippi, was destroyed during Hurricane Katrina. According to Porter, the destruction occurred when the barge operated by Grand Casino of Mississippi, Inc.-Biloxi came loose from its moorings and allided with her home.

¶ 7. Porter made a claim under her “all-risk” homeowner’s insurance policy with State Farm Fire and Casualty Company. But her policy expressly excluded loss caused by wind or water damage — as well as “loss [that] would not have occurred in the absence of [an] excluded event[].” Because any loss caused by the barge would not have occurred in the absence of an excluded event — specifically the flood of storm surge that broke Grand Casino’s barge from its moorings — State Farm denied coverage.

¶8. Porter sued State Farm for bad-faith denial of coverage and negligence in issuing her policy. She included a claim against State Farm agent Max Mullins, alleging Mullins negligently issued her a substandard policy and violated statutory trade practices. Porter also named Grand Casino as a defendant, alleging it had been negligent in its design and maintenance of the barge’s mooring system.

¶ 9. In 2009, State Farm and Mullins succeeded in having the claims against them dismissed on summary judgment. Porter had admitted there was no other explanation for the barge’s movement other than the forces of wind and water. Because the policy clearly and unambiguously excluded loss caused, by water, the trial court found State Farm was entitled to a judgment in its favor. And since Mullins had never made contrary representations to Porter, the trial judge found Mullins was also entitled to a judgment in his favor.

¶ 10. Porter appealed. But because the grant of summary judgment in State Farm’s and Mullins’s favor was not a final judgment, as it left pending the claims against Grand Casino, the Mississippi Supreme Court dismissed the appeal. See M.R.C.P. 54(b) (designating any order that adjudicates the liabilities of fewer than all the parties as nonfinal, subject to revision until all liabilities between all parties are resolved, unless certified as final).

¶ 11. In 2012, Grand Casino was also granted summary judgment in its favor. In dismissing Grand Casino, the circuit court cited a decision by this court addressing a factually similar scenario — a casino barge that was unmoored during Katrina. In that case, we held the duty the casino owed its land-based neighbors “only required that they use reasonable measures and did not require that they take additional measures for the unforeseen.” Bay Point High & Dry, L.L.C. v. New Palace Casino, L.L.C., 46 So.3d 821, 825 (¶ 13) (Miss.Ct.App.2010). The circuit court found Porter could not establish a jury question over whether Grand Casino failed to meet this duty. The undisputed evidence showed the safety measures Grand Casino took were designed to withstand a hurricane equaling in severity the worst hurricane then on record. And the fact that Grand Casino did not anticipate Hurricane Katrina’s record-setting forces is not evidence that Grand Casino breached a duty owed to Porter.

¶ 12. With all claims against all defendants disposed of, both the 2009 and 2012 summary-judgment orders became final and appealable. See M.R.C.P. 54(b). Porter timely appealed both judgments.

Discussion

¶ 13. Grants of summary judgment are reviewed de novo. Bradley v. Kelley Bros. Contractors, Inc., 117 So.3d 331, 336 (¶ 21) (Miss.Ct.App.2013). We perform the exact same analysis as the trial court — “look[ing] at ‘all evidentiary matters’ in the record to see if there is any genuine issue of material fact and if the movant is entitled to a judgment as a matter of law.” Id. (quoting Titan Indem. Co. v. Estes, 825 So.2d 651, 654 (¶ 11) (Miss.2002)). We view the evidence produced at the summary-judgment stage in the light most favorable to Porter, the nonmovant, giving Porter the benefit of any doubt. See id.

¶ 14. As summary-judgment movants, State Farm, Mullins, and Grand Casino each had a burden to persuade the court there were no genuine issues of material fact and each was entitled to a judgment as a matter of law. See Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 88 (¶ 11) (Miss.2013). Porter had a burden too. Because Porter, as the plaintiff, would have borne the burden of proof at trial, she had to produce evidence at the summary-judgment stage establishing a triable fact issue on each element of each claim. See id.

¶ 15. We acknowledge Porter has presented evidence, through an expert opinion, that her home was destroyed when the casino’s barge allided with her house. But like the circuit court, we do not find this evidence, even when viewed in her favor, satisfies her burden of production and saves her from summary judgment being entered against her.

I. No Coverage Under State Farm Policy

¶ 16. Porter’s homeowner’s policy covered all risks unless the risk was specifically excluded. See Coastal Hardware & Rental Co., LLC v. Certain Underwriters at Lloyds, London, 120 So.3d 1017, 1024 (¶29) (Miss.Ct.App.2013) (citing Robi-chaux v. Nationwide Mut. Fire Ins., 81 So.3d 1030, 1039 n. 5 (Miss.2011)) (contrasting an all-risk policy with a named-perils policy). In Porter’s claim for bad-faith denial of coverage, while she bears the burden to prove she had a right to recover under the policy, it is State Farm’s burden as the insurer to prove a policy exclusion applied. See id. (citing Tuepker v. State Farm,Fire & Cas. Co., 507 F.3d 346, 356 (5th Cir.2007)).

¶ 17. To meet this burden, State Farm pointed to its policy language: “We do not insure under any coverage for any loss which would not have occurred in the absence of ... Water Damage, meaning: ... flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body of water, or spray from any of these, whether driven by wind or not[.]” State Farm argued, and the circuit court agreed, Porter’s loss would not have occurred without “storm surge — essentially a massive wall of water[ jpushed ashore by Hurricane Katrina’s winds.” So the policy exclusion applied.

¶ 18. Porter insists State Farm did not meet its burden — and thus was not entitled to summary judgment — because the policy did not exclude the “true cause” of her loss. As she sees it, the “true cause” of the destruction of her home was “the barge.” But based on the undisputed events, the barge in and of itself could not have been the cause.

¶ 19. By definition, a “cause” is “[t]he producer of an effect[.]” And to produce an effect requires force. To take Porter’s argument to its logical conclusion, the barge would have had to have generated its own force to be the “true cause” of the damage, which it obviously did not. So unquestionably, the barge’s allision with Porter’s home could not have occurred without the forces of wind and water.

¶ 20. While her expert avoided mention of storm surge, he did say that the barge “allided” with Porter’s house. “Mide” is a nautical term, used to describe when a moving object traversing across water hits a stationary object. Thus, boats and barges “allide,” while trains, planes, and automobiles “collide.” So by specifically alleging the damage to her home was caused when the barge “allided” with her house, Porter necessarily conceded the barge was carried or propelled by water to get to her house. Because her house was normally situated on dry land, the only explanation of the presence of water in her yard was the storm surge.

¶ 21. Thus, the storm surge and barge became “an indivisible force, occurring at the same time, to cause direct physical damage resulting in loss.” Corban v. United Servs. Auto. Ass’n, 20 So.3d 601, 614 (¶ 36) (Miss.2009). So the barge was not the “true cause,” but instead a “concurrent cause” coupled with the excluded storm surge, which makes the barge also an excluded cause of loss under the clear and unambiguous language of the policy. Cf id. at 614-15 (¶ 37); see also Preis v. Lexington Ins., 508 F.Supp.2d 1061, 1073 (S.D.Ala.2007) (holding damage caused by flood debris excluded under “water damage” exclusion); Ervinwood Marine, Inc. v. Fireman’s Fund Ins., No. 91-L037, 1992 WL 213123, at *3 (Ohio Ct.App. Sept. 4, 1992) (unpublished) (holding damage to docks cause by flood debris excluded because, without excluded event of flooding, damage would not have occurred).

¶ 22. Because Porter’s loss was not covered, her claim for bad-faith denial of coverage against State Farm necessarily fails as a matter of law.

II. No Claim for “Negligent Procurement of Insurance”

¶ 23. As a fail-back claim, Porter suggests the loss of her house by the barge’s allision should have been covered under her all-risk policy with State Farm. And the fact it was not covered proves her insurance agent, Mullins, was negligent.

¶ 24. Mississippi does recognize claims against insurance agents for “negligent procurement of insurance.” Curry v. State Farm Mut. Auto. Ins., 599 F.Supp.2d 734, 738 (S.D.Miss.2009) (citing McKinnon v. Batte, 485 So.2d 295, 297 (Miss.1986); Simpson v. M-P Enters., Inc., 252 So.2d 202, 207 (Miss.1971); Haggans v. State Farm Fire & Cas. Co., 803 So.2d 1249, 1252 (¶ 8) (Miss.Ct.App.2002)). But as the United States District Court for the Southern District of Mississippi has rightly observed, “the cases that recognize this tort involve allegations that the agent either failed altogether to procure coverage or the policy procured by the agent did not provide the coverage requested by the insured.” Id. at 738-39 (citations omitted).

¶ 25. Here, Mullins did not fail to procure coverage. In fact, Mullins was not the agent who had procured the policy in the first place. Instead, he was tasked with maintaining the coverage his predecessor had acquired, which Mullins indisputably did. Porter has offered no evidence Mullins failed to provide any specific additional or variant coverage she requested. To the contrary, she admitted in her deposition that she never requested Mullins provide any coverage other than what she already had. In particular, she did not ask Mullins to obtain coverage for loss caused by storm surge, but instead opted to use a different insurance agent for her separate wind and flood insurance policies.

¶ 26. As the insured, Porter had a duty to read her policy and is imputed with the knowledge that her all-risk policy expressly excluded “coverage for any loss which would not have occurred in the absence of ... Water Damage, meaning: ... flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body of water, or spray from any of these, whether driven by wind or not[.]” See Mladineo v. Schmidt, 52 So.3d 1154, 1161-62 (¶ 26) (Miss.2010) (discussing duty-to-read and imputed-knowledge doctrines). Since Porter never requested Mullins provide such coverage, her claim against him for negligent procurement of insurance fails as a matter of law.

III. No Evidence of Negligence bg Grand Casino

¶27. We now turn to Porter’s claim that Grand Casino’s negligent mooring of its barge proximately caused the destruction of her home.

¶28. This court has previously dealt with a negligence claim against another casino whose barge broke from its moorings during Hurricane Katrina and allided with a structure on neighboring property. Bay Point High & Dry, 46 So.3d at 822-23 (¶ 2). In that case, we affirmed the grant of summary judgment in the casino’s favor, finding the property owner failed to establish a jury question on whether the casino breached a duty owed to its neighbors. Id. at 824-26 (¶¶ 10-16). The circuit court here relied on Bay Point High & Dry to find Porter similarly failed to create a jury question about breach.

¶ 29. But after the circuit court granted summary judgment in this case, the Mississippi Supreme Court handed down another case involving a negligence claim against an unmoored casino barge that allided with a land-based structure. Eli Invs., LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151 (Miss.2013). And in Eli Investments, the supreme court held that the property owner had presented sufficient evidence to establish a jury question on the breach issue. Id. at 155-56 (¶¶ 15-16).

¶ 30. In both the supreme court’s opinion in Eli Investments and ours in Bay Point High & Dry, the duty the casinos owed the neighboring property owners was the same. The casinos “owed a duty to [property] owners in close proximity to take reasonable measures to prevent foreseeable injuries in the event of a hurricane.” Id. at 154 (¶ 11); Bay Point High & Dry, 46 So.3d at 824 (¶ 8). But what distinguishes Eli Investments from our opinion in Bay Point High & Dry is the same thing that distinguishes all unsuccessful motions for summary judgment from successful ones — the plaintiffs ability to establish triable issues on each element of the claim. In Eli Investments, the property owner — through its experts’ affidavits — established a jury issue on whether the casino breached its duty, while in Bay Point High & Dry, the property owner failed to create a question of whether the casino breached its duty. Compare Eli Invs., 118 So.3d at 154-56 (¶¶ 12-16), with Bay Point High & Dry, 46 So.3d at 824-26 (¶¶ 10-16).

¶ 31. Porter tries to align herself with Eli Investments. In that case, to support its motion for summary judgment, the casino had provided an affidavit from its engineering expert, who had inspected the barge’s mooring system after the hurricane. In the expert’s opinion, the barge had been “adequately moored,” complying with the Mississippi Gaming Commission’s gaming-licensure requirement that a barge “be moored ‘to withstand a Category 4 hurricane with 155 mile per hour winds and 15 foot tidal surge’ as a condition of licensure.” Eli Invs., 118 So.3d at 155 (¶ 14) (quoting Miss. Admin. Code 13—1—3:II-B, § 10). And in his estimation, the barge did not break free until the storm surge surpassed fifteen feet. Id.

¶ 32. The property owner countered with an affidavit from its own expert, who “opined that the storm surge caused by Hurricane Katrina was foreseeable to [the casino] in light of prior storm history in the Gulf of Mexico, and that [the casino] failed to consider what would happen if the casino barge encountered a significant storm surge.” Id. at (¶ 13). The property owner’s expert had also inspected the casino barge’s mooring system. And in his opinion, the system’s design was insufficient to hold the barge “if it encountered a significant storm surge, as experienced along the Mississippi Gulf Coast during prior hurricanes.” Id. He further supported his opinion about previous hurricanes with statistics from the National Oceanic and Atmospheric Administration. Id.

¶ 33. The supreme court found the two conflicting affidavits set up a “battle of the experts” on whether the casino breached a duty to neighboring property owners by not taking reasonable steps to secure its barge. And only a jury can decide the winner of such a battle. Id. at (¶ 15).

¶34. Porter argues her expert’s affidavit sets up a similar “battle of the experts,” making summary judgment improper. But even when viewed in the light most favorable to Porter, her expert’s affidavit does not contradict Grand Casino’s evidence that it acted reasonably. Porter’s expert, who never inspected the barge or mooring system after the hurricane, offered no opinion that the magnitude of storm surge that dislodged the barge was reasonably foreseeable. Nor did he opine the barge’s mooring system was unreasonably designed.

¶ 35. Instead, all he said is that he was asked to review the “annual inspections and heavy storm mooring plan” of Grand Casino. And because no such documents were given to him, he had no evidence showing annual inspections had been performed. He also opined that the absence of a heavy-storm mooring plan is a deviation from customary practice. But he did not conclude that the absence of a heavy-storm plan caused or contributed to Porter’s injury.

¶36. Comparing Porter’s affidavit to the one in Eli Investments, the outcome-determinative distinction is that Porter’s affidavit lacks any evidence that Grand Casino failed to take reasonable measures to prevent foreseeable injuries and damages in the event of a hurricane. So unlike Eli Investments, there is no expert-based issue teed up for the jury to decide.

¶ 37. Instead, as the circuit court found, Porter’s claim is squarely in line with the property owner’s insufficient claim in Bay Point High & Dry. Like the casino in that case, Grand Casino put forth specific proof of the reasonable measures it took to design the barge’s mooring system to prevent foreseeable injuries from hurricanes. Grand Casino submitted affidavits from engineers who designed the mooring system. And. they explained that the barge was designed to float up to seventeen feet while remaining moored. This design allowed for two feet more than what the Mississippi Gaming Commission required. It also took into consideration the height of the storm surge of the worst hurricane on record in Mississippi at the time. See Bay Point High & Dry, 46 So.3d at 825 (¶ 12) (finding barge operator met its “duty to take reasonable measures for foreseeable injuries” based on evidence that its mooring system was designed not only to comply with regulation but also “to exceed the effects of the worst hurricane on record in Mississippi at the time”). Furthermore, these experts attested that the system had withstood hurricanes with storm surges below seventeen feet. But as Grand Casino’s meteorological expert explained, the storm surge that dislodged the barge was at the historical height of at least twenty-one feet, and possibly twenty-five feet.

¶ 38. Grand Casino also provided proof of the reasonable measures it took to regularly inspect and maintain its mooring system. Grand Casino submitted an affidavit from its facilities manager, Geoffrey Gol-lotte, who attested he and his team had regularly conducted visual inspections of the mooring system, performing maintenance when needed. While Grand Casino admitted no inspection log was kept, it insisted it utilized daily maintenance logs, which were destroyed by Hurricane Katrina. According to Grand Casino, this is why no maintenance records were given to Porter’s expert.

¶ 39. Porter’s response to this evidence is similar to the property owner’s in Bay Point High & Dry. There, the property owner argued the casino must have failed to take some reasonable measure because its barge broke free while another barge close by did not. Bay Point High & Dry, 46 So.3d at 825 (¶ 13). Porter similarly argues Grand Casino must have failed to adequately design or maintain its mooring system because the barge broke free during what was “only” a “Category 3 hurricane,” and the Mississippi Gaming Commission requires a system be designed to withstand a “Category 4 hurricane.”

¶ 40. We note, however, the Mississippi Gaming Commission’s regulation is “merely ... a condition of licensure.” Eli Invs., 118 So.3d at 155 (¶ 15). It is not “a conclusive standard of care for all casinos in all circumstances.” Id. The standard of care in this circumstance required Grand Casino “to take reasonable measures to prevent foreseeable injuries in the event of a hurricane.” Id. at 154 (¶ 11); Bay Point High & Dry, 46 So.3d at 824 (¶ 8). Hurricane Katrina’s storm category, wind strength, and storm-surge height certainly go to the issue of whether the magnitude of the storm was foreseeable. But to support her assertion, Porter offered absolutely no proof of Hurricane Katrina’s storm category, wind speed, or storm-surge height, let alone evidence that the height of the storm surge that unmoored the barge was foreseeable. Yet Grand Casino did offer proof — specific proof that its barge’s mooring design complied with the Commission’s requirements by taking into consideration the possibility of storm surge within the foreseeable height of fifteen feet, proof that its mooring system had withstood hurricanes with a storm surge of fifteen feet, and proof by its expert that Hurricane Katrina’s storm surge at the location of its barge was higher than twenty feet.

¶ 41. The fact that the barge broke free, in and of itself, is not evidence Grand Casino was negligent. Instead, Porter had the burden of producing sufficient evidence Grand Casino breached its duty to take reasonable measures to prevent foreseeable injuries. But Porter put forth no such evidence. Thus, we agree with the circuit judge that her negligence claim based on the mooring system’s design and maintenance cannot survive summary judgment. See Smith ex. rel Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (¶ 9) (Miss.2007) (holding “summary judgment is mandated where respondent has failed to make a showing sufficient to establish existence of an element essential to that party’s case”).

¶ 42. We affirm.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., NOT PARTICIPATING.

      . In her complaint, Porter had also asserted a claim for trespass. But this claim, in addition to being abandoned by Porter on appeal, clearly warranted dismissal via summary judgment. A trespass to land requires an intentional invasion on the land of another. Thomas v. Harrah's Vicksburg Corp., 734 So.2d 312, 316 (¶¶ 8-10) (Miss.Ct.App.1999). And Porter has never argued the barge’s entrance on her property was intentional. Instead, she has maintained the barge’s movement was the result of negligence.

      . One of Porter's issues on appeal is that the circuit court erroneously applied the "act of God” defense. In Bay Point High & Dry, we found no error in the trial court’s finding that Hurricane Katrina was an "act of God.” Bay Point High & Dry, 46 So.3d at 825-26 (¶¶ 14-15). Grand Casino raised a similar defense in its motion for summary judgment. But the circuit court in this case did not grant summary judgment because Hurricane Katrina was an "act of God.” Instead, the court granted summary judgment because it found there was no material fact dispute on the issue of Grand Casino's alleged breach of duty. Because we agree that summary judgment should be affirmed for this same reason, we do not address Porter’s argument challenging the "act of God” defense.

      .In response to Porter’s motion, the supreme court ordered this appeal be consolidated with Porter’s 2010 dismissed appeal for purposes of the record only.

      . Leonard v. Nationwide Mut. Ins., 499 F.3d 419, 425 (5th Cir.2007).

      . American Heritage Dictionary of the English Language 305 (3d. ed 1992).

      . In 2010, the Mississippi Supreme Court clarified that a Mississippi insurance agent like Mullins "does not have an affirmative duty to advise the insured of coverage needs[J” Mladineo v. Schmidt, 52 So.3d 1154, 1163 (¶ 32) (Miss.2010). This is because "insureds are in a better position to assess their assets and risk of loss, coverage needs are often personal and subjective, and imposing liability on agents for failing to advise insureds regarding the sufficiency of their coverage would remove any burden from the insured to take care of his or her own financial needs.” Id.

      . The elements Porter would have had to prove at trial and, thus, had to establish to survive summary judgment are: (1) the existence of a duty owed to her by the Grand Casino; (2) a breach of that duty; (3) a causal connection between the breach of duty and the alleged injury to her; and (4) injury and damages. Eli Invs., LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151, 154 (¶ 10) (Miss.2013) (citing Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (¶ 30) (Miss.2004)).

      . Grand Casino has pointed out that its barge is permanently moored and, consequently, not in need of a plan to moor itself in the event of a storm.

      . Porter's scant expert opinion can also be distinguished from the opinions produced in Biloxi Yacht Club v. Grand Casinos of Mississippi, Inc.-Biloxi, No. 1:107CV888-LG-RHW, 2009 WL 801635, at *3-4 (S.D.Miss. Mar. 25, 2009) (unpublished). In that case, the property owner submitted expert opinions that the storm surge that dislodged the casino barge had been below the foreseeable height of fifteen feet and the mooring system had not been designed to withstand a foreseeable wind speed. Id.


text:
    Arthur D. DAVIS, Appellant v. Travis T. VANCE, Appellee.
    No. 2013-CA-00033-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Oliver E. Diaz Jr., Jackson, attorney for appellant.
    Michael R. Bonner, Vicksburg, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Arthur Davis suggests he is appealing the grant of summary judgment to his former criminal-defense attorney, Travis Vance. But what Davis is really doing is appealing the denial of his Rule 60(b) motion to reconsider the grant of summary judgment to Vance. Our review of the denial of a Rule 60(b) motion is extremely limited. We are not allowed to inquire into the actual merits of the underlying judgment. Instead, we ask if Rule 60(b) provides relief.

¶ 2. Rule 60(b) applies only to “extraordinary circumstances, for matters collateral to the merits.” And in his Rule 60(b) motion, Davis neither presented “extraordinary circumstances” nor collateral matters. Because Davis’s challenge focused just on the merits of the summary-judgment decision, we find the trial judge did not abuse his discretion in denying Davis’s motion.

¶ 3. Therefore, we must affirm.

Background

¶ 4. In 2006, the Mississippi Highway Patrol pulled over Davis’s Mercedes and found two pounds of marijuana in his car. The Mississippi Bureau of Narcotics (MBN) seized the drugs and filed a notice of civil forfeiture against the Mercedes. In 2007, while Davis was out on bond in the marijuana case, federal authorities arrested him on cocaine charges. This arrest led to Davis’s imprisonment in a federal camp in Florida, where Davis is still jailed.

¶ 5. Also in 2007, Davis hired Vance to defend him against the state charges. Davis paid Vance a $5,000 retainer and deposited with Vance $8,000 in escrow to pay any fines MBN might impose. In June 2008, Vance signed off on an agreed order to forfeit Davis’s Mercedes. This led to the state charges against Vance being dropped without further monetary penalty.

¶ 6. In September 2011, Davis sued Vance for legal malpractice. Davis alleged Vance breached his fiduciary duties when he agreed to forfeit Davis’s Mercedes because Davis had not authorized Vance to do so. Davis also alleged Vance converted the $8,000 Davis had placed in escrow because Vance did not return the money, even though no fines were ever imposed.

¶ 7. Because Davis’s complaint was filed more than three years after the Mercedes had been forfeited and the state charges had been resolved, Vance filed a motion for summary judgment, asserting Davis’s claims were barred by the statute of limitations. See Miss.Code Ann. § 15-1-49(1) (Rev.2012) (“All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.”). The trial judge agreed and granted summary judgment in Vance’s favor.

¶ 8. The judge’s final order dismissing all of Davis’s claims on summary judgment was entered on September 12, 2012. Almost two months later, on November 7, 2012, Davis filed a motion to reconsider. Davis attached to his motion evidence he claimed created a material factual dispute over whether Vance had authority to forfeit his Mercedes. Davis also argued the trial judge miscalculated the statute-of-limitations period, which had been tolled by the discovery rule. See Miss.Code Ann. § 15-1-49(2).

¶ 9. The trial judge denied Davis’s motion to reconsider on December 5, 2012. On December 28, 2012 — within thirty days of the denial of the motion to reconsider but more than three months after the entry of summary judgment — Davis filed a notice of appeal.

Discussion

¶ 10. On appeal, Davis argues his claims against Vance were not barred by the statute of limitations and should have survived summary judgment based on the existence of material factual disputes. But these are arguments that challenge the merits of the grant of summary judgment — an issue we lack jurisdiction to consider.

I. Davis’s Motion to Reconsider
¶ 11. As we have explained: The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file [a motion] for ... relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b).

Woods v. Victory Mktg., LLC, 111 So.3d 1234, 1236 (¶¶ 6-8) (Miss.Ct.App.2013) (internal citations omitted).

¶ 12. Davis’s motion to reconsider was not filed within ten days of the entry of the judgment. Thus, it was not a Rule 59(e) motion to alter or amend the judgment. See M.R.C.P. 59(e). Instead, Davis’s motion fell under Rule 60(b). See M.R.C.P. 60(b). So we are strictly limited to reviewing whether his Rule 60(b) motion was properly denied. See Woods, 111 So.3d at 1236 (¶ 8). We have no jurisdiction to review whether summary, judgment was properly granted. See id.

II. Trial Judge’s Denial of Reconsideration

¶ 13. But as mentioned, we are able to review the propriety of the denial of Davis’s Rule 60(b) motion. And based on this limited review, we find the trial judge did not abuse his discretion when he denied Davis’s motion. See Woods, 111 So.3d at 1237 (¶ 9) (applying a limited abuse-of-discretion standard of review to a denial of a Rule 60(b) motion).

¶ 14. “As our supreme court has emphasized, ‘Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits.’ ” Sims v. State, 102 So.3d 1227, 1230 (¶ 6) (Miss.Ct.App.2012) (quoting Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991)). And here, Davis has shown no extraordinary circumstances entitling him to relief. The documents he attached to his motion to reconsider were not “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” See M.R.C.P. 60(b)(3). Instead, this was evidence he could have presented to the court before the judge’s summary-judgment ruling. See Woods, 111 So.3d at 1237-38 (¶¶ 12-13) (affirming the denial of the Rule 60(b) motion to reconsider because the evidence attached could have been obtained prior to the trial court’s grant of summary judgment). Nor were the matters he raised in his Rule 60(b) motion collateral to the merits. See Bruce, 587 So.2d at 903. Rather, they went to the heart of the trial judge’s decision to grant summary judgment and were required to have been raised in a timely Rule 59(e) motion. See Bruce, 587 So.2d at 903 (“Rule 59(e) motions go to the heart of the matter to those issues predicate to a decision on the merits.”).

¶ 15. In short, by filing a Rule 60(b) motion, Davis was limited to relief based on “extraordinary circumstances,” not relief based on the merits. Bruce, 587 So.2d at 903; see also Woods, 111 So.3d at 1237-38 (¶ 13) (emphasizing that Rule 60(b) motion cannot be used to relitigate the merits of the trial court’s decision). Because Davis did not present evidence that extraordinary circumstances existed, the judge acted within discretion when he denied Davis’s motion. Thus, we must affirm.

¶ 16. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT 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 FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . See M.R.C.P. 60(b).

      . Sims v. State, 102 So.3d 1227, 1230 (¶ 6) (Miss.Ct.App.2012) (quoting Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991)).

      .According to Davis, because of his imprisonment he did not learn until 2010 that his Mercedes had been forfeited and that the $8,000 had not been needed to pay fines.

      . While Davis apparently had asked the trial judge for a thirty-day extension, Rule 59(e) does not permit such a request. See M.R.C.P. 59 cmt. ("A motion to alter or amend must be filed within ten days after the entry of judgment; the court is not permitted to extend this time period.”).


author: MAXWELL, J., CARLTON, J.,

text:
    Currie Glenn DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KM-00167-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by Brad Alan Smith, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Currie Glen Davis was convicted of “possession of beer.” But in Mississippi, possession of beer, in and of itself, is not a crime. What is a crime is possession of beer in a “dry” county — any county that has elected to prohibit the transportation, storage, sale, distribution, receipt, or manufacture of beer. And the State asserts it is this crime for which Davis stands convicted.

¶ 2. But the crime of possession of beer in a dry county has two essential elements — (1) the possession of beer (2) in a county that has elected to prohibit beer. And missing from the evidence presented at trial and the jury instructions is any mention of the second essential element— that Covington County has elected to prohibit the sale of and, consequently, possession of beer. Thus, Davis’s conviction cannot stand because the State failed to prove and instruct the jury on a necessary element of the crime — that the beer possession occurred in a county that has elected to be dry.

¶ 3. Because of these fatal errors, we must reverse and render Davis’s conviction.

Background

¶ 4. On New Year’s Eve 2009, Davis was stopped at a Mississippi Highway Department safety checkpoint on Highway 589 in Covington County. Suspecting Davis of drinking, the state trooper asked Davis to step out of the car. It was then that the trooper noticed “beer in [Davis’s] truck.” Davis was issued two traffic tickets — one for driving under the influence (DUI) and the other for “possession of beer.”

¶ 5. The Covington County Justice Court found Davis guilty of both and fined him $718 for his “conviction of DUI, first offense,” and $266 for his “conviction of possession of beer.” Davis appealed to the Covington County Circuit Court, which tried both charges de novo.

¶ 6. The jury found Davis not guilty of DUI but “guilty of possession of beer.” On the beer-possession charge, the circuit judge sentenced Davis to forty-five days in the county jail, but stated:

On the record. There’s a question in this court’s mind as to whether or not this is, in fact, a dry county. And the only way that question can be answered is by the State Supreme Court.
.Now, I don’t know if that is going to be one of your issues on JNOV or not, but I’m going to sentence the defendant to serve a term of 45 days in the county jail. There will be no fine, and I will allow him to remain out on bond ... pending an appeal, $1,000 bond.
And if the Supreme Court rules this is not a dry county, the case will be moot anyway, and he won’t have to pay a fine or serve any time.

After the circuit court denied Davis’s motion for a judgment notwithstanding the verdict, Davis timely appealed to this court.

Discussion

I. Missing Essential Element

¶7. In Mississippi, possession of beer is legal, “unless, as the result of an election duly and lawfully held for such purpose, the sale of beer is not permitted in the county” where the possession occurred. May v. State, 209 Miss. 579, 585, 47 So.2d 887, 888 (1950) (citing an earlier version of section 67-3-18). See Miss.Code Ann. § 67-3-13(1) (Supp.2013); Dantzler v. State, 542 So.2d 906, 909 (Miss.1989) (interpreting section 67-8-13, as amended in 1958, as clearly making possession of beer illegal “in any county which has at any time since February 26, 1934, elected” to prohibit the sale of beer). So even if Davis possessed beer, as the traffic citation charged, “he was guilty of no offense unless, as a result of an election duly and lawfully held for such purpose, the sale of beer was not permitted in the county alleged.” May, 209 Miss. at 585, 47 So.2d at 888.

¶ 8. In May, a case that dealt with the sale of beer in a dry county, the Mississippi Supreme Court held that “[i]t was essential to the sufficiency of the affidavit that it allege not only the sale of beer, but that as a result of an election duly and lawfully held for such purpose, beer was not permitted to be sold in the county in which the sale occurred.” Id. So, according to May, a violation of section 67-3-13(1) has two essential elements — (1) the transportation, storage, sale, distribution, receipt, manufacture, and/or possession of beer or light wine (2) in a county where the transportation, storage, sale, distribution, receipt, manufacture, and/or possession of beer or light wine is illegal as a result of a local election to prohibit the sale of beer or light wine. See Miss.Code Ann. § 67-3-13(1).

¶ 9. The affidavit in May charged the defendant with selling beer but failed to allege that the county where the beer had been sold had duly elected to make the sale of beer illegal. The supreme court acknowledged “that the proof shows that such an election had been lawfully held in Jefferson Davis County, and that as a result thereof the sale of beer was not permitted in said County[.]” May, 209 Miss. at 585, 47 So.2d at 888. Still, the supreme court reversed the conviction because the affidavit was “insufficient to support a conviction” because it omitted “an essential element of the offense.” Id. Since 1950, May has been repeatedly cited by the supreme court for the principle that an indictment for a statutory offense is void if it does not charge all essential elements of the statutory crime. See, e.g., Thomas v. State, 126 So.3d 877, 879 (¶7) (Miss.2013).

¶ 10. While Davis has not challenged the sufficiency of the charging document, it has not escaped our notice that the traffic ticket merely cited Davis for “possession of beer.” Like May, the ticket omitted the essential element that Coving-ton County had duly and lawfully held an election for the purpose of prohibiting the sale beer and that, as a result of the election, the sale or possession of beer was prohibited in Covington County. See May, 209 Miss. at 585, 47 So.2d at 888; see also Wortham v. State, 219 So.2d 923, 925-26 (Miss.1969) (holding that to properly indict someone for an alcohol-related crime, which is only made a crime by the enactment of a local-option law, the indictment must charge that the local option is in effect).

¶ 11. What Davis does challenge is the sufficiency of the evidence, which contains the same fatal omission as the charging document. Unlike May — in which the supreme court acknowledged there had been proof that the county where the beer sale occurred had elected to be dry — the State presented no evidence at Davis’s trial that Covington County had lawfully held an election that resulted in prohibiting the sale or possession of beer in that county. So the evidence was insufficient to support the conviction of possession of beer in a dry county. Therefore, Davis’s motion for a judgment of acquittal notwithstanding the verdict should have been granted. See Williams v. State, 797 So.2d 372, 375 (¶ 8) (Miss.Ct.App.2001) (“A finding that the evidence is insufficient results in a discharge of the defendant.”).

¶ 12. We also emphasize that the jury was improperly instructed that it could find Davis guilty by merely finding he possessed beer in Covington County. The jury was not instructed on the essential element that Covington County must have prohibited the possession of beer, based on a duly held election to prohibit the sale of beer. And our supreme court has recently been adamant that failure to instruct the jury on every essential element of the offense is plain, reversible error. See Harrell v. State, 134 So.3d 266, 275 (¶ 30) (Miss.2014).

II. No Judicial Notice

¶ 13. The State suggests we are empowered to cure these errors by simply taking judicial notice that Covington County is, in fact, dry. The State relies on State v. Bertrand, 72 Miss. 516, 517, 17 So. 235, 235-36 (1895), in which the supreme court took judicial notice that Perry County had held a local-option election to prohibit liquor. But back in the nineteenth century when Bertrand was handed down, the supreme court was statutorily required to take judicial notice that Perry County was dry. Unlike the present statute, the criminal statute the court was applying in 1895 directed that, “in all prosecutions for selling ... liquors, ... the court shall take judicial notice of whether or not licenses to sell can be lawfully granted in the county, and of the result of local option elections.” Id. at 236 n. 1 (quoting Miss.Code § 1621) (emphasis added).

¶ 14. In contrast, Mississippi Code Annotated section 67-3-13 contains no such directive. And we are not inclined to take judicial notice on our own, given that the circuit judge expressed on the record his uncertainty “as to whether or not [Coving-ton] is, in fact, a dry county.”

¶ 15. Besides, our taking judicial notice of Covington County’s dry status would only cure the deficiency of evidence regarding this essential element of the crime. It would not render harmless the failure to instruct the jury on all essential elements of the crime. See Harrell, 134 So.3d at 275 (¶ 30) (holding that there is “always and in every case reversible error” if an element of a charged criminal offense is omitted from a jury instruction).

¶ 16. Because of these fatal defects, we must reverse Davis’s conviction for “possession of beer” and render a judgment of acquittal in his favor.

¶ 17. THE JUDGMENT OF THE COVINGTON COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COVING-TON COUNTY.

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

CARLTON, J.,

dissenting:

¶ 18. I respectfully dissent from the majority’s opinion. A review of the record in this case reflects that Davis was adequately advised of the charges against him. At trial Davis’s defense to the charge for illegal possession of beer was that the beer belonged not to him but to the passenger in his truck. The circuit court judge instructed the jury that they had to find beyond a reasonable doubt that the offense occurred in Covington County. In this case, Davis raised no objection to the sufficiency of the charge before or during the trial, and he also failed to object to a lack of notice prior to or during his trial. See Tran v. State, 962 So.2d 1237, 1241 (¶ 16) (Miss.2007) (discussing the sufficiency of an indictment and notice to a defendant of the charges against him). Also, the State tried Davis for the offenses originally charged, and this case involved no amendment of the indictment as in Wortham v. State, 219 So.2d 923, 924 (Miss.1969). I would therefore affirm Davis’s conviction and sentence.

      . Miss.Code Ann. § 67-3-13(1) (Supp.2013). Possession of beer by a person under the age of twenty-one is also a crime. Miss.Code Ann. § 67-3-70(1) (Rev.2012). But Davis was more than double the age of majority when he was cited for "possession of beer."

      . May v. State, 209 Miss. 579, 585, 47 So.2d 887, 888 (1950).

      . See Miss.Code Ann. § 67-3-13(1) (providing for maximum penalty of ninety days’ imprisonment and $500 fine).

      . The State cites as proof of the county’s dry status Day v. Board of Supervisors of Covington County, 184 Miss. 611, 185 So. 251 (1939), an opinion which upheld the validity of Covington County's election to prohibit the sale of beer in 1937.


author: MOORE, Chief Justice. MURDOCK, Justice

text:
    SOUTH ALABAMA GAS DISTRICT v. Kerry W. KNIGHT et al.
    1110996.
    Supreme Court of Alabama.
    Aug. 2, 2013.

      Robert W. Poundstone IV, Phil Butler, and William C. McGowin of Bradley Arant Boult Cummings LLP, Montgomery; and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for appellant.
    Wyman 0. Gilmore, Jr., and R. Edwin Lamberth of Gilmore Law Firm, Grove Hill; and J. Jefferson Utsey of Utsey & Utsey, Butler, for appellees.
    R. Bernard Hardwood, Jr., of Rosen Harwood, P.A., Tuscaloosa, for amici curiae Southeast Alabama Gas District, Cull-man-Jefferson Counties Gas District, Marshall County Gas District, and Clark-Mobile Counties Gas District, in support of the appellant.
   MOORE, Chief Justice.

South Alabama Gas District appeals to this Court from an order of the Clarke Circuit Court enjoining it from selling liquified petroleum (“LP”) gas and related appliances outside its member cities. We dismiss the appeal and order the trial court to vacate the injunction.

I. Facts and Procedural History

To facilitate the provision of natural gas to rural areas in Alabama, state law authorizes two or more municipalities to create a “gas district.” § 11-50-390 et seq., Ala.Code 1975. These districts have significant competitive advantages over private providers of natural gas. As a condition for operating outside the cities composing the gas district (known as “member cities”), a gas district must provide notice and a buy-out offer to any preexisting “plant and system” with which it might compete. See § 11-50-266, Ala.Code 1975, made applicable to gas districts by § 11-50-399, Ala.Code 1975. In 1961, the cities of Evergreen and Monroe-ville formed the Conecuh-Monroe Counties Gas District, which in 2001 changed its name to South Alabama Gas District (“SAG”). In 1999, SAG began selling LP gas outside its member cities. SAG, however, did not provide notice and buy-out offers to competitors.

On May 18, 2010, four individual taxpayers and Fletcher Smith Butane Co., Inc., sued SAG, seeking both an injunction and damages for SAG’s alleged violation of § 11-50-266, as made applicable to gas districts by § 11-50-399. The trial court bifurcated the claim for injunctive relief and the damages claim and on October 7, 2011, held a bench trial on the claim for injunctive relief. SAG argued that the notice and buy-out provisions did not apply to it because LP gas is not a “manufactured gas” within the terms of the statute. The trial court found otherwise and enjoined SAG from selling LP gas and related appliances outside its member cities if it did not comply with § 11-50-266. SAG appealed the injunction to this Court.

We first address the claims of the individual taxpayers.

II. The Taxpayer Plaintiffs

In their amended complaint plaintiffs Kerry W. and Christy Knight and Kirklyn and Regina Gwin identify themselves as adult residents of the City of Thomasville and of Clarke County. They allege “standing to bring this claim contesting the legality of South Alabama Gas’ activities because the City of Thomasville and Clarke County are deprived of the tax and other revenue to which they are entitled.” In particular, they claim harm resulting from the tax advantages provided to SAG as a public corporation. See Henson v. HealthSouth Med. Ctr., Inc., 891 So.2d 863, 868 (Ala.2004) (noting that “a taxpayer has standing to challenge a tax abatement conferred upon another taxpayer ... so long as the taxpayer can demonstrate a probable increase in his tax burden from the challenged activity”).

The trial court in its order of April 2, 2012, found that the taxpayers had failed to carry their burden of proving that “tax increases probably resulted from SAG’s tax reduction.” Thus, they “lack[ed] standing to challenge SAG’s appliance sales.” Although the trial court limited its findings to the topic of appliance sales, logically the taxpayers’ failure to prove harm requires dismissal of all their claims.

III. Fletcher Smith Butane Co., Inc.

A. Fletcher Smith’s Admissions

On April 5, 2012, SAG appealed the injunction to this Court. See Rule 4(a)(1)(A), Ala. R.App. In its opening brief SAG argues, among other things, that Fletcher Smith no longer has standing because it has “sold its assets and is no longer engaging in the LP gas business.” SAG’s brief, at 54. As proof, SAG cites Fletcher Smith’s October 10, 2012, response to “Requests for Admissions of Fact,” which is included in the record on appeal. The relevant requests and Fletcher Smith’s responses are as follows:

“1. Admit that Plaintiff Fletcher Smith Butane Co., Inc., a corporation, is no longer in the business of selling or distributing propane gas.
“RESPONSE: ... [Fletcher Smith] states that it is not currently selling or distributing propane gas due to the asset sale described-herein.
“2. Admit that the assets of Fletcher Smith Butane, Co., Inc., have been recently sold and assigned.
“RESPONSE: [Fletcher Smith] admits that it has sold assets to Parden Gas.
“3. Admit that the sales agreement for Fletcher Smith Butane Co., Inc., Usted the assets sold with assigned value to each asset.
“RESPONSE: ... [T]he sales agreement speaks for itself....
“6. Admit that Fletcher Smith Butane Co., Inc., present [sic] has no tangible assets.
“RESPONSE: ... [T]he Company has no current real or personal property-
U
“10. Admit that Fletcher Smith Butane Co., Inc., is not in competition with South Alabama Gas.
“RESPONSE: Denied.”

These admissions raise a question we must examine as to whether the necessary adversity of interests still exists between Fletcher Smith and SAG for this action to continue. “A plaintiff must be so situated that he or she will bring the requisite adverseness to the proceeding. A plaintiff must also have a direct stake in the outcome....” Hamm v. Norfolk Southern Ry., 52 So.3d 484, 500 (Ala.2010) (Lyons, J., concurring specially). If Fletcher Smith, having left the propane business, can no longer benefit from prospective relief against SAG, the injunction is moot. “[W]e must inquire, as a threshold matter ... whether this case involves a justiciable controversy or whether it has been mooted_” Underwood v. Alabama State Bd. of Educ., 39 So.3d 120, 126 (Ala.2009).

Fletcher Smith in its response brief in this Court does not deny the existence of the admissions. It instead attempts to mitigate their effect, stating that “these responses [to requests for admissions] do not state that [Fletcher Smith] is no longer in [the LP gas] business. Instead, the responses state that [Fletcher Smith] is not currently selling LP gas.” Fletcher Smith’s response brief, at 50. Fletcher Smith also refuses to admit that it is no longer in competition with SAG. Id. We do not consider these responses adequate to rebut the allegation of mootness. Although Fletcher Smith did not directly admit that it “is no longer in the business of selling or distributing propane gas,” its response that “it is not currently selling or distributing propane gas due to the asset sale described herein” indicates that it lacks prospective injury from SAG’s sales of propane, i.e., LP gas. Its bare denial that it is not in competition with SAG hardly counterbalances its admissions that it sold its assets to Parden Gas via a sales agreement that left it with “no current real or personal property.”

B. Effect of the Admissions

When an action becomes moot during its pendency, the court lacks power to further adjudicate the matter.

“ ‘The test for mootness is commonly stated as whether the court’s action on the merits would affect the rights of the parties.’ Crawford v. State, 153 S.W.3d 497, 501 (Tex.App.2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993)). ‘A case becomes moot if at any stage there ceases to be an actual controversy between the parties.’ Id. (emphasis added) (citing National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.1999)).”

Chapman v. Gooden, 974 So.2d 972, 983 (Ala.2007) (first emphasis added). See also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (“[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”).

Although Fletcher Smith may have viable legal claims based on SAG’s past actions, it is not entitled to injunctive relief if SAG’s future sales of LP gas can cause it no harm. See American Fed’n of State, Cnty. & Mun. Emps. v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830 (1958) (“To be entitled to claim equitable relief, the complainant must show a controversy which will cause actual harm to him.”). See also O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.”). The trial court’s injunction order indicates that it desired to mitigate the adverse effects upon Fletcher Smith of SAG’s tax advantages and also to require SAG to follow the notice and buy-out provisions of the gas-district statutes. This relief is meaningless if Fletcher Smith is no longer a participant in the LP gas market.

“ ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ ”

King v. Campbell, 988 So.2d 969, 976 (Ala.2007) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)).

C. Mootness on Appeal

Events occurring subsequent to the entry or denial of an injunction in the trial court may properly be considered by this Court to determine whether a cause, justiciable at the time the injunction order is entered, has been rendered moot on appeal. “[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction....” Ex parte Smith, 438 So.2d 766, 768 (Ala.1983). “[J]usticiability is jurisdictional.” Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998). A justiciable controversy is one that “is definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a decree.” Copeland v. Jefferson Cnty., 284 Ala. 558, 561, 226 So.2d 385, 387 (1969). A case lacking ripeness has yet to come into existence; a moot case has died. Between the two lies the realm of justiciability. See 13B Charles Alan Wright et al., Federal Practice and Procedure § 3533 (3d ed. 2008) (“It is not enough that the initial requirements of standing and ripeness have been satisfied; the suit must remain alive throughout the course of litigation, to the moment of final appellate disposition

Fletcher Smith’s admissions, although entered into the record on appeal after the trial court entered its order granting the request for the injunction, are properly before us for consideration of the question of mootness. “[B]eeause mootness is a jurisdictional issue, we may receive facts relevant to that issue; otherwise there would be no way to find out if an appeal has become moot.” Clark v. K-Mart Corp., 979 F.2d 965, 967 (3d Cir.1992). See also Jeffrey C. Dobbins, New Evidence on Appeal, 96 Minn. L.Rev.2016, 2030 (2012) (“[A]llegations that a case is moot on appeal will often require an appellate court to consider what is technically new evidence.”).

1. Cases dismissing appeals for mootness

We have previously dismissed appeals when events occurring subsequent to the entry of the order or judgment being appealed rendered the controversy moot. After granting a petition for a writ of mandamus that provided the same relief sought in a pending appeal, this Court dismissed the appeal, noting that “[a]n action that originally was based upon a justi-ciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.” Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala.2006). This Court thus took notice of a fact occurring six months after entry of the trial court’s judgment to dismiss the appeal as moot. In Woods v. SunTrust Bank, 81 So.3d 357 (Ala.Civ.App.2011), the court held as alternative grounds for dismissing an appeal from the denial of an injunction to prevent a foreclosure that the matter was moot as a result of occurrence of the foreclosure “[ajfter the trial court entered its order.” Id. at 363. The court thus took cognizance of an event occurring subsequent to entry of the order being appealed to hold that the appeal had become moot.

In Employees of Montgomery County v. Marshall, 893 So.2d 326 (Ala.2004), based on a fact first disclosed in a footnote in the appellant’s opening brief, this Court dismissed as moot an appeal from the denial of an injunction. “This Court will dismiss an appeal from the denial of an injunction,” the Court stated, “when an event occurring after the denial of the injunction renders the appeal moot.” 893 So.2d at 330. Similarly, in Masonry Arts, Inc. v. Mobile County Commission, 628 So.2d 334 (Ala.1993), this Court dismissed an appeal as moot based on the award of a contract after the entry of the order being appealed. See also Morrison v. Mullins, 275 Ala. 258, 259, 154 So.2d 16, 18 (1963) (“[I]f an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, ... renders it clearly impossible for the appellate court to grant effectual relief, the appeal will be dismissed.” (emphasis added)). Thus, events occurring subsequent to an order granting or denying an injunction in the trial court may properly be consulted by this Court to determine whether a cause, justiciable at the time of entry or denial of the injunction, has been rendered moot on appeal. The filing of the record on appeal containing Fletcher Smith’s admissions is such an event.

2. Mootness caused by going out of business

Other jurisdictions have dismissed appeals as moot based on facts similar to those in this case. In particular, a plaintiffs action for an injunction becomes moot on appeal when it leaves the business whose alleged injury gave rise to the cause of action. “[A] case on appeal normally is rendered moot when the appellant closes its business and, as a result, no longer has a cognizable interest in the outcome of the dispute.” Munsell v. Department of Agric., 509 F.3d 572, 582 (D.C.Cir.2007). See also City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001) (learning after issuance of writ of certiorari that petitioner “has ceased to operate as an adult business,” the Court dismissed the writ, holding that the case “no longer qualifies for judicial review”); Board of License Comm’rs of Tiverton v. Pastore, 469 U.S. 238, 240, 105 S.Ct. 685, 83 L.Ed.2d 618 (1985) (dismissing writ of certiorari as moot after briefing and oral argument upon learning that liquor lounge had gone out of business, thus “depriving the Court of jurisdiction due to the absence of a continuing case or controversy”); and Lucero v. Trosch, 121 F.3d 591, 596 (11th Cir.1997) (holding that sale of abortion business rendered moot an action for injunction as to former owner).

The same principle applies to a sale of assets. See Young’s Realty v. Brabham, 896 So.2d 581, 583 (Ala.Civ.App.2004) (granting motion to dismiss after appellate briefs had been filed because sale of condominium unit “rendered nonjusticiable” declaratory-judgment action seeking relief against condominium owners’ association); R.M. Inv. Co. v. United States Forest Serv., 511 F.3d 1103 (10th Cir.2007) (upholding district court’s dismissal for mootness when plaintiff sold property the use of which was at issue in case).

3. Assessing whether a live controversy s till exists

Fletcher Smith argues that its admissions that it sold all of its assets, that it has no current real or personal property, and that it is no longer selling LP gas do not mean that it is no longer in the LP gas business or in competition with SAG. However, “a live controversy is not maintained by speculation that claimant might reenter a business that it has left.” Munsell, 509 F.3d at 582. A matter is moot if a court decision will not have “a more-than-speculative chance” of affecting a party’s rights in the future. Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C.Cir.1990). Likewise, a claim for in-junctive relief is moot when the future resumption of business is “ ‘purely a matter of speculation.’ ” JSLG, Inc. v. City of Waco, 504 Fed.Appx. 312, 315 (5th Cir.2012) (unpublished) (quoting Spencer v. Kemna, 523 U.S. 1, 16, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). See also Hall v. Beals, 396 U.S. 45, 49-50, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (noting that “speculative contingencies” are insufficient to avoid mootness). In short, “[m]atters that may or may not occur in the future are not matters in controversy.” Case, 939 So.2d at 884. See also Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 71, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) (“Future positions taken by the parties might bring such issues into controversy, but that possibility is simply too remote from the present controversy to keep this case alive.”). Fletcher Smith cannot maintain its status on appeal as a party for whose benefit the injunction was entered when by its own admissions it can no longer show “sufficient immediacy and reality” of future injury to warrant invocation of the judicial process. O’Shea v. Littleton, 414 U.S. at 497.

IV. Conclusion

Under the reasoning of Henson, 891 So.2d at 868, the taxpayer plaintiffs lack standing. Alternatively, their claims fail on the merits, as the trial court stated in its order. They therefore are not entitled to injunctive relief. Based on its admissions, Fletcher Smith’s claims for prospective relief have become moot. “Because mootness goes to justiciability, this Court will not consider the merits of a claim that is moot.” Town of Elmore v. Town of Coosada, 957 So.2d 1096, 1100 (Ala.2006). The appeal is dismissed as moot, and the Clarke Circuit Court is directed to vacate as moot the injunction entered in this cause.

APPEAL DISMISSED.

STUART, BOLIN, PARKER, MAIN, and WISE, JJ., concur.

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

MURDOCK, J., concurs in the rationale in part and concurs in the result.

MURDOCK, Justice

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

I concur in the result reached by the main opinion and in part of the analysis by which it reaches that result. I write separately for three reasons. First, there are significant substantive questions concerning the statutory regulation of municipal gas districts suggested by this case, and in some instances raised by the parties, that I do not wish to be understood as implicitly addressed by my vote. Secondly, I write to explain the unique nature of this case that I believe makes appropriate the invocation of the concept of standing despite my view that our courts have overused this concept. Finally, although I conclude that the individual taxpayer plaintiffs lack standing, I do not do so based on the same rule of decision upon which the main opinion relies.

I find it necessary to briefly explain my understanding of the limited purpose of and the mechanics of the statutory scheme outlined in Ala.Code 1975, §§ 11-50-266 through -270, as made applicable to gas districts by § 11-50-399, Ala.Code 1975.

Article 12 of Chapter 50, Title 11, Ala. Code 1975, authorizes the creation of and governs the operation of municipal “gas districts.” See Ala.Code 1975, § 11-5-390 et seq. Section 11-50-399 restricts the ability of municipal gas districts to compete with other entities already engaged in the business of manufacturing, distributing, and/or selling natural gas and/or “manufactured gas” by adopting for application to such gas districts certain provisions of Article 8 of Chapter 50:

“All districts incorporated under the provisions of this article shall have all powers and be subject to all limitations with respect to the acquisition of competing gas systems and the duplication of existing privately owned gas systems to the same extent as boards under the provisions of Sections 11-50-266 through 11-50-270.”

The sole function of §§ 11-50-266 through 11-50-270 is to require any municipal gas district that wishes to compete with an existing producer or supplier of manufactured natural gas to pursue a regulatory process by which it gives the existing “owner” the opportunity, before being confronted with such competition, to sell all or part of its business assets to the gas district.

The first step in this process is the giving of notice to the owner that the gas district intends to compete with it. § 11— 50-266, Ala.Code 1975. Thereafter, §§ 11-50-267 through -270 provide for a multistep process by which the parties can attempt to agree upon the terms and conditions of a sale or, failing that, can involve the Alabama Public Service Commission in determining such terms and conditions. If at any point along the way the owner communicates a decision by it not to engage in a sale, the process is at an end, and the gas district is free to begin competing against that owner. (So long as the owner continues to pursue the process, then so too must the gas district as a prerequisite to entering the owner’s market as a competitor.) See §§ 11-50-267, -268, and -270.

Whether the process described above even applies in the present case depends on whether the product at issue in this case, liquified petroleum gas or “LP gas,” is to be considered a “manufactured gas” within the meaning of the aforesaid statutory provisions. A valid question has been raised by the defendant, South Alabama Gas District (“SAG”), as to whether these provisions lend themselves to an affirmative answer to this question. (Section 11-5-396(18), for example, appears to addresses LP gas separately from other provisions in the statute. Also, LP gas is separately regulated by the Alabama LP Gas Board. See Ala.Code 1975, § 9-17-100 et seq.) On the other hand, it appears that SAG may have taken the position before the trial court, at least for purposes of the injunctive relief at issue, that LP gas is to be considered a manufactured gas. Given the grounds upon which this Court decides the appeal before us today, however, it is not necessary for us to decide in this appeal whether LP gas is a manufactured gas within the meaning of these statutes. Nor is it necessary for us to decide whether SAG conceded this issue for purposes of this appeal (or for purposes of any claims that remain pending in the trial court).

It also appears that a question exists as to whether the legislature intended with its enactment of Article 12 of Chapter 50 of Title 11, and the application to municipal gas districts of the procedures outlined in §§ 11-50-266 through -270, to provide existing owners such as Fletcher Smith Butane Co., Inc. (“Fletcher Smith”), with a private right of action in the courts of this state in the event a municipal gas district competes against it without first pursuing the process outlined in §§ 11-50-266 through -270. Even if there exists a private judicial action by the owner of an existing gas business, a more substantial question has been raised in this case as to whether Alabama law recognizes a private cause of action by the individuals who have sued in their capacity as taxpayers in this case. These issues, however, were not presented in the trial court.

The legal question of the cognizability of an alleged cause of action under state law goes to the merits of a lawsuit asserting that cause of action rather than the subject-matter jurisdiction of the court to decide that legal question. See, e.g., Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1219 and 1220 (Ala.2010) (“[0]ur courts too often have fallen into the trap of treating as an issue of ‘standing’ that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action.”; “[WJhether [the plaintiff] has seized upon a legal theory our law accepts is a cause-of-action issue, not a standing issue.”); Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89, 91 n. 2 (Ala.2010) (citing Wyeth, 42 So.3d at 1220, for the proposition that the appel-lee has “confused standing with failure to state a claim”); Hamm v. Norfolk Southern Ry., 52 So.3d 484, 499 (Ala.2010) (Lyons, J., concurring specially) (urging this Court to think of standing in “justicia-bility” terms); Ex parte McKinney, 87 So.3d 502, 512-13 (Ala.2011) (Murdock, J., dissenting) (citing 13A Charles Alan Wright et al., Federal Practice & Procedure § 3531 (3d ed.2008), for the proposition that “[o]ur courts too often have treated as a matter of subject-matter jurisdiction that which does not go to the fundamental authority of the courts to decide a case,” i.e., the fundamental authority of a court to decide both the legal and the factual issues presented by that case); see also Jerome A. Hoffman, The Malignant Mystique of “Standing”, 73 Ala. Lawyer 360 (2012). Such questions, not having been raised in the trial court, provide no basis for vacating the trial court’s order in this case.

Our inability to dispose of this case on the ground that the causes of action alleged are not cognizable under Alabama law leads me to consider the standing issue that is presented in the main opinion as the ground for disposing of the individual taxpayer plaintiffs’ claims against SAG. I wish to explain that I vote to concur in the result reached by this portion of the main opinion despite being of the view that the notion of “standing” recognized by federal courts in relation to “public law” cases, see generally, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), has no place in traditional civil actions. See Hoffman, supra; 6A Charles Alan Wright et al, Federal Practice & Procedure § 1542 (3d ed.2010) (noting the use of standing as a gate-keeping device “[i]n the realm of public law, when governmental action is attacked on the ground that it violates private rights or some constitutional principle”). I share the concern of many that the fascination and complexity of the doctrine of standing has led this and other courts on far too many occasions to view and resolve questions of private rights through the inappropriate invocation and application of distinctive public-law concepts.

Although most of the actions addressed on a daily basis by this and other Alabama courts involve established private causes of action with time-honored elements that, if proven, address the very concerns for which a separate consideration of “standing” is necessary in public-law cases, that is not the case here. Instead, the individual plaintiffs in this case have brought the relatively uncommon public-law case in which the concept of standing appears to be appropriate as a gate-keeping mechanism. Specifically, they have sued, not upon some established private cause of action in their favor, but to address SAG’s failure to fulfill its alleged obligations under a regulatory scheme intended for the protection of private entities (other than the individual plaintiffs themselves) engaged in providing a utility service and, ultimately, for the benefit of the public that relies upon that utility service. The defendant they have sued is a public corporation organized and controlled by municipal governments for the purpose of supplying this service to the public pursuant to authority granted by the legislature. The individual plaintiffs seek injunctive relief against this public corporation on the ground that its activities are prohibited by Alabama constitutional and statutory law. There is sufficient similarity, therefore, between this case and those public-law cases in which federal courts have relied upon the concept of standing to ensure the presence of a justiciable “case.” I therefore see no problem in applying the notion of standing to the claims of the individual plaintiffs.

That said, the individual plaintiffs have not shown that, as a result of the complained-of omissions of the defendant, they have suffered a sufficient present, or threatened, particularized injury to justify a conclusion that they have “standing.”

“The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ”

Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).

Moreover, “the controversy” at issue here is over the enforcement of a regulatory scheme intended for the protection of existing suppliers of certain products and, indirectly, for the public that depends upon a reliable supply of those products. To have standing, a plaintiff “must establish a nexus between [his or her] status and the precise nature of the ... infringement alleged.” Flast v. Cohen, 392 U.S. at 102. I specifically cannot conclude that this nexus requirement is met in the present case.

In support of its conclusion that the individual plaintiffs lack standing, the main opinion relies upon the rule of decision articulated in Henson v. HealthSouth Medical Center, Inc., 891 So.2d 863, 868 (Ala.2004): “ ‘[A] taxpayer has standing to challenge a tax abatement conferred upon another taxpayer ... so long as the taxpayer can demonstrate a probable increase in his tax burden from the challenged activity.’” 138 So.3d at 973. I decline to express any -view as to the correctness generally, or for that matter the practicality, of this standard as a rule of decision.

Moreover, even if the rule of decision articulated in Henson is a correct and workable one insofar as it goes, I question whether it goes far enough. The test in Flast (or at least the test espoused in Flast) is not merely whether a plaintiff can demonstrate a nexus between his or her status and “the challenged activity,” but whether he or she can demonstrate a nexus between his or her status and “the controversy” over that activity. That is, there must be a nexus between the plaintiffs status and the “precise nature of the infringement” at issue. See Flast, 392 U.S. at 102. As explained above, I do not see such a nexus between the individual plaintiffs’ status as taxpayers and the regulatory purposes that their lawsuit, if successful, would vindicate.

      . On April 27, 2012, pursuant to Rule 62(c), Ala. R. Civ. P., the trial court stayed, pending appeal, that "portion of the injunction prohibiting SAG from conducting LP gas sales outside its member cities,” subject to two conditions: “1. SAG must pay into an interest-bearing escrow account 5% of its gross revenues from its sales of LP gas outside its member cities. 2. SAG is prohibited from paying any member city or franchised city any payment from the sale of LP gas pending the outcome of the appeal.”

      . "If a party to an appeal suggests that the controversy has, since the rendering of judgment below, become moot, that party bears the burden of coming forward with the subsequent events that have produced that alleged result.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 98, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993).

      . Ripeness is "[t]he state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.” Black’s Law Dictionary 1442 (9th ed.2009).

      . A mootness analysis "concentrate[s] attention on the peculiar problems of a suit's death, rather than its birth.” 13B Charles Alan Wright et al., Federal Practice and Procedure § 3533.1 (3d ed.2008).

      . Based on the quoted provision, and for ease of discussion, I hereinafter will treat the references to waterworks boards in §§ 11-50-266 through 11-50-270 as references to gas districts.

      . Perhaps a judicial action exists merely to enable a preexisting owner to force a gas district to engage in that process before the gas district is permitted to begin competing against the owner. In this case, the gas district never gave the notice allegedly required by § 11-50-266 to initiate that process. Nonetheless, the owner had actual knowledge of the gas district’s coming into its jurisdiction in 2003 and beginning to compete against it. Despite this fact, the owner did not object to this competition at that time, either through a challenge in the courts or before the Alabama Public Service Commission; instead, the owner allowed seven years to pass before filing the present action in 2010. We are not presented here with an argument that no private right of action is available to the owner based on a defense of waiver or laches.

      . In many cases decided by this and other courts, the concerns raised have not involved matters that turn on the special justiciability concerns surrounding public-interest litigation; instead, such cases, both legally and practically, simply implicate such private-law concepts as cause of action, proof of damage (or some other element of the cause of action), real party in interest, capacity, necessary and indispensable parties, and like notions. As a leading treatise has noted,
      "[i]n its flowering, subsequent withering, eventual revival, and occasionally complex application, the standing concept that there is a need to establish an entitlement to judicial action, separate from proof of the substantive merits of the claim advanced, has been largely a creature of twentieth century decisions of the federal courts. More importantly, it has been very much tied to litigation asserting the illegality of governmental action. The assertion may be that executive or administrative action goes beyond the limits of statutory authorization or constitutional limits, or that a statute exceeds constitutional limits. Claims oí private wrongdoing ordinarily are asserted by persons obviously having the enforceable interest, if anyone has; such problems as arise commonly are handled in terms of defining private causes of action or of identifying the real party in interest.

        "At times — and perhaps with increasing frequency — courts are tempted to move beyond the public-law arena, invoking Article III principles to address questions of private right.... [SJtanding decisions are invoked to address the existence of a cause of action, capacity, intervention, and even the procedural rights of bankrupts. Although such decisions may be aided by reference to standing doctrine, they involve other matters that do not turn on the special justiciability concerns surrounding public-interest litigation."

      13A Charles Alan Wright et al., Federal Practice & Procedure § 3531 (3d ed.2008) (emphasis added). See also, e.g., K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1154 n. 7 (10th Cir.1985):
      “The standing question arises in the realm of public law, when governmental action is attacked on the ground that it violates private rights or some constitutional principle...."....' C. Wright, The Law of Federal Courts 452-53 n. 2 (4th ed.1983) (quoting Kent v. Northern California Regional Office of American Friends Service Committee, 497 F.2d 1325, 1329 (9th Cir.1974)).”
      The use of standing to challenge the cogniz-ability of a cause of action or the proof of one of its elements (e.g., damage), raises the specter of unwarranted and unnecessary collateral challenges to the subject-matter jurisdiction of a court and to the finality and reliability of judgments in private-law actions.

      . We do not have before us individual plaintiffs who seek relief because they are potential competitors or consumers for whose benefit was enacted the regulatory scheme that SAG did not follow.