text:
    Sheldon J. PERRYMAN a/k/a “Short Dog” a/k/a “Weasel” a/k/a Sheldon Jerome Perryman, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00212-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.

      Sheldon J. Perryman, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. More than a decade after he pled guilty and was sentenced for five separate felony convictions, Sheldon J. Perryman succeeded in having a successor judge vacate his sentences. But he is now unsatisfied with his new harsher sentences and argues the imposition of a lengthier term of imprisonment triggers a presumption of vindictiveness on this second judge’s part. We disagree and find the mere fact a new judge imposes a more severe sentence than that imposed by the original sentencer does not, itself, give rise to a presumption of judicial vindictiveness. And absent such a presumption, Perryman must show actual vindictiveness on the successor judge’s part, which we find he has failed to do.

¶ 2. However, we have serious concerns with the voluntariness of Perryman’s waiver of counsel at his resentencing. And upon review, we find the trial judge’s failure to advise Perryman of the “dangers and disadvantages” of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), rendered his purported waiver of his Sixth Amendment right to counsel involuntary. We therefore vacate his sentence and remand for resentencing.

Background

¶ 3. After Perryman allegedly shot four different people with a .38 caliber pistol, a Coahoma County grand jury charged him in December 1998 with four counts of aggravated assault and one count of felon in possession of a firearm. This indictment also alleged Perryman was a habitual offender but did not specify which of the two statutory sentencing enhancements applied.

¶ 4. The following month, January 1999, Perryman entered negotiated guilty pleas on each of the five counts. And the circuit judge, the late Honorable Elzy J. Smith, sentenced Perryman under the less severe of the two habitual-offender statutes, Mississippi Code Annotated section 99-19-81 (Rev.2007). Though he faced over eighty years’ imprisonment, Perryman received twenty years on each of the four aggravated-assault counts and three years on the firearm charge, with all sentences running concurrently.

¶ 5. More than twelve years later, on August 5, 2011, Perryman filed a motion to correct and modify his sentence. The reviewing judge, the Honorable Charles E. Webster, who had succeeded Judge Smith, treated Perryman’s filing as a motion for post-conviction relief (PCR). The gist of Perryman’s argument was that the felony convictions supporting his habitual-offender status were not crimes “arising out of separate incidents” as required for enhanced punishment under section 99-19-81.

116. In a thorough and well-reasoned opinion, Judge Webster found that because the two shootings arose from the same incident, the statutory requirements for a habitual-offender sentence under section 99-19-81 were not met when Judge Smith sentenced Perryman. So Judge Webster vacated Perryman’s original sentences and ordered that he be resentenced.

¶ 7. The resentencing occurred on January 17, 2012. That day, while Judge Webster was preparing for the hearing, he realized he had not appointed counsel for Perryman. The judge told Perryman he could either appoint counsel and postpone the hearing, or Perryman could waive counsel and be sentenced that day. Though the judge did not follow the requirements of Uniform Rule of Circuit and County Court 8.05, nor advise Perryman of the perils of self-representation, Perryman informed the court he preferred to proceed without counsel and be sentenced that day. The judge allowed Perryman to be heard without counsel.

¶ 8. Perryman asked that he be sentenced to time served, for the twelve years he had been in custody. But Judge Webster rejected his request and instead sentenced him to twenty years on each of the four aggravated-assault counts and three years on the gun charge. He then ordered the sentences in Counts I and II for aggravated assault to run consecutively, not concurrently, as Judge Smith had previously done. Thus, Perryman’s new sentence was essentially forty years, which was twice the former twenty-year mandatory sentence as a habitual offender.

¶ 9. Perryman now appeals, arguing Judge Webster’s more severe sentence gives rise to a presumption of judicial vindictiveness and that his waiver of his Sixth Amendment right to counsel was not voluntary because he was not advised of the “dangers and disadvantages” of self-representation.

Discussion

¶ 10. We apply a highly deferential standard of review for sentencing matters, leaving the imposition of the sentence to the trial judge’s discretion. Reynolds v. State, 585 So.2d 753, 756 (Miss.1991). Generally, if the sentence does not exceed the statutory maximum, it will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992).

I. Claims of Judicial Vindictiveness of a Successor Judge

¶ 11. While sentences like Perryman’s, which fall within the statutory parameters, typically will not be reversed, Perryman argues the mere fact he received a lengthier sentence after his initial sentence was vacated requires that we presume judicial vindictiveness on the successor judge’s part. As support, he points to North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), where the United States Supreme Court held that a presumption of vindictiveness attaches when a defendant receives a harsher sentence on resentencing by the same judge who imposed the previous sentence. See also Ross v. State, 480 So.2d 1157, 1160-61 (Miss.1985) (adopting Pearce and applying presumption but finding imposition of harsher sentence by judge following new trial and conviction was not violative of United States or Mississippi Constitution).

¶ 12. But this presumption from Pearce is not as absolute as Perryman suggests. Rather, our review shows it has been substantially watered down and even rendered inapplicable in some instances, depending on the particular resentencing. In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Supreme Court found it unnecessary to apply the presumption when the second court in a two-tier trial system imposed a longer sentence. And one year later, in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Supreme Court held Pearce inapplicable where a jury imposed an increased sentence on retrial.

¶ 13. Though Perryman is correct that the Due Process Clause of the Fourteenth Amendment protects against judicial vindictiveness, “[t]he lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (emphasis added). For example, “[t]he presumption of Pearce does not apply in situations where the possibility of vindictiveness is ... speculative, particularly since the presumption may often ‘operate in the absence of any proof of an improper motive and thus block a legitimate response to criminal conduct[.]’ ” Texas v. McCullough, 475 U.S. 134, 139, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).

¶ 14. As to Perryman’s case, we find its posture is somewhat akin to that in McCullough. In that case, it was a trial judge’s decision to grant a defendant’s motion for a new trial, not an appellate court’s reversal, that led to resentencing. And after the defendant was retried and subsequently convicted, the judge sentenced him to fifty years instead of the original twenty-year term that had been set by a jury after the first trial. Id. at 138. Reviewing a similar claim of vindictiveness, the Supreme Court recognized that, “unlike [a] judge who has been reversed,” when a trial judge himself or herself orders a new trial there is “no motivation to engage in self-vindication.” Id. at 139 (quoting Chaffin, 412 U.S. at 27, 93 S.Ct. 1977). Under such circumstances, there is simply “no justifiable concern about institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals.” Id. (quotation marks omitted). So in cases like Perryman’s, the fact that a second sentencer, not an appellate court, granted the requested relief giving rise to the resentencing weighs against applying the presumption.

¶ 15. But the most obvious reason for not applying a presumption of vindictiveness here is that “[t]he presumption is ... inapplicable [where] different sentences assessed the varying sentenees[.]” Id. at 140. This is so because when a different sentencer is involved, “a sentence ‘increase’ cannot truly be said to have taken place.” Id. It is certainly possible in any case where two sentencers are involved, that the second sentencer “will impose punishment more severe” than that of the first. Id. (quoting Colten, 407 U.S. at 117, 92 S.Ct. 1953). “But it no more follows that such a sentence is a vindictive penalty for seeking a new trial than that the first sentencer imposed a lenient penalty.” Id. This common-sense reasoning has not been missed by our own state supreme court, which has also recognized the different dynamic brought about by involvement of a new sentencing judge. See Bush v. State, 667 So.2d 26, 29 (Miss.1996).

A Mississippi’s Approach with Successor Judges

¶ 16. Like our nation’s high court, the Mississippi Supreme Court has also rejected the Pearce presumption in cases of successor judges. When asked to apply the presumption in 1996, our supreme court declined, noting that “[United States] Supreme Court cases have backed away from the ruling in Pearce.” Bush, 667 So.2d at 29. In Bush, a defendant who pled guilty to armed robbery and was sentenced to fifteen years’ imprisonment later sought to set aside his conviction and vacate his sentence before a different judge. Id. The second judge granted the defendant’s motion, vacated his sentence, and set the case for trial. The defendant was then retried, convicted, and resen-tenced, this time by a successor judge. And like Perryman’s case, the sentence imposed by the second judge was more severe — twenty-five years.

¶ 17. Addressing the defendant’s appellate claims of vindictiveness, our supreme court looked to McCullough and similarly reasoned that “[a] judge imposing the second sentence but not the first has no reason to be vindictive concerning the defendant’s attack of the first conviction.” Bush, 667 So.2d at 29. This was particularly true because the judge in Bush who imposed the second sentence had also granted the defendant’s motion to vacate the first sentence on the grounds that he was not properly advised of his rights. Id. According to Justice Pittman, writing for the unanimous court, “It would be preposterous in this situation to assume vindictiveness by [the second judge.]” Id.

B. No Proof of Actual Vindictiveness

¶ 18. We find Bush instructive and tend to agree on these facts with Justice Pittman’s pronouncement, since here we are also faced with a successor judge who set aside a prior sentence. Because Judge Webster did not originally sentence Perry-man, he had “no personal stake in the prior conviction and no motivation to engage in self-vindication.” Chaffin, 412 U.S. at 27, 93 S.Ct. 1977; see also McCullough, 475 U.S. at 138, 106 S.Ct. 976. So the presumption of vindictiveness does not apply here.

¶ 19. Instead, in cases like this one, “[w]here there is no ... reasonable likelihood [of vindictiveness], the burden remains upon the defendant to prove actual vindictiveness[.]” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). And here, we find Perryman fails to meet this burden. Not only was the second sentence well below the statutory maximum terms, but it was also crafted to address the violent nature of Perryman’s admitted criminal acts. Though Perryman had faced over eighty years’ imprisonment, twenty years each on the four subject assault charges and three on the gun count, he was resentenced to forty years — less than half of his potential exposure. And while the second judge acknowledged the two prior aggravated-assault convictions did not subject Perry-man to a habitual-offender sentence, he was still concerned with Perryman’s criminal history, which, as he put it, indicated Perryman had “some violent tendencies.” The judge pointed to the nature of Perry-man’s criminal record and that fact that he had accumulated six separate aggravated-assault convictions, all of which, the record shows, resulted from Perryman shooting people.

¶ 20. From this, we simply cannot say Judge Webster crafted a vindictive sentence. Not only did he state his reasons for the sentence, but he also ordered that Perryman receive credit for time served. And he ordered the Mississippi Department of Corrections “to treat the sentence as if it had been imposed as the original sentence” and to afford Perryman consideration of “any and all parole, good time, earned time, etc.,” to which he would have been entitled if he had not been improperly sentenced as a habitual offender by the first judge. Thus, we find Perryman fails to prove actual vindictiveness.

II. Waiver of Right to Counsel

¶ 21. While Perryman’s vindictiveness claim fails, we are, however, concerned with the voluntariness of his waiver of his Sixth Amendment right to counsel at his resentencing. Perryman, who proceeded pro se at resentencing, argues the circuit judge’s failure to advise him of the “dangers and disadvantages” of self-representation, as required by Faretta, rendered his purported waiver of counsel involuntary.

¶ 22. After Perryman was successful in vacating his original sentence, he remained in custody. And it was not until Perryman had been transferred to Coaho-ma County for resentencing that the judge recognized he was “unrepresented.” The judge “apologize[d]” that it just struck him that Perryman was without counsel. He acknowledged Perryman’s right to counsel but explained that, if he appointed an attorney, he would have to “delay” the re-sentencing. The judge admitted this oversight was his “mistake” and that he had not considered Perryman’s not having a lawyer until he got there. The judge again advised Perryman, “I guess you can have a lawyer if you so desire.” But “that’s your decision.... I can go either way.” In response, Perryman told the judge, “I’d prefer — I’m here. I prefer to go ahead with it.” Perryman was then placed under oath and asserted his preference to be sentenced without counsel. At this point, the judge proceeded with the hearing.

¶ 23. Because Perryman had already served twelve years, he urged the court to sentence him to time served. But as mentioned, the judge was clearly troubled by Perryman’s violent criminal record and rejected this request. So he instead sentenced Perryman to what amounted to forty years’ imprisonment — essentially twice the original sentence that was vacated.

¶ 24. Considering Perryman’s voluntariness argument, we note the United States Supreme Court has held that while a criminal defendant is entitled to counsel at trial, there is an optional right to defend one’s self. Faretta, 422 U.S. at 814-16, 95 S.Ct. 2525. However, a defendant may only relinquish his or her right to counsel “knowingly and intelligently.” Id. at 835, 95 S.Ct. 2525. And to “competently and intelligently ... chose self representation,” a criminal defendant “should be made aware of the dangers and disadvantages of self representation.” Id. (emphasis added). These perils must be discussed, “so that the record will establish” the defendant “knows what he is doing and his choice is made with eyes open.” Id.

A. Patton, Faretta, and Rule 8.05

¶ 25. Though Mississippi has not specifically addressed the requirements for voluntary waivers of counsel at sentencings, it has done so in the context of trials. And in reviewing Sixth Amendment waivers at trial, our supreme court has stiffly applied Faretta. See Patton v. State, 34 So.3d 563, 566 (¶¶ 7-8) (Miss.2010). The supreme court has also leaned heavily on what it deems the “mandatory ” minimum examination requirements of Uniform Rule of Circuit and County Court 8.05 — a rule promulgated by the Mississippi Supreme Court in response to Faretta “to ensure that waivers of the right to counsel are knowingly and intelligently made” and to address the “dangers and disadvantages of self-representation.” Patton, 34 So.3d at 566 (¶ 10) and n. 6 (discussing URCCC 8.05). “When the court learns that a defendant desires to act as his/her own attorney,” Rule 8.05 imposes two mandatory requirements on the court — “the court shall” examine the defendant on record, and the “court shall inform the defendant” of the consequences of waiving the right to an attorney, including the fact that “[t]he right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.” (Emphasis added).

¶ 26. In Patton, the supreme court reversed a false-pretenses conviction obtained against the pro se defendant because the trial judge had failed to “comply with the requirements of Rule 8.05” and since there was no evidence Patton was “warned of the dangers and disadvantages of self-representation.” Patton, 34 So.3d at 568 (¶ 15). Without record evidence of these minimum requirements, the court could not conclude Patton voluntarily waived his Sixth Amendment right to counsel. Id. And the court declined to apply harmless-error analysis, since a violation of the Sixth Amendment, a right “essential to a fair trial,” is a structural violation requiring reversal. Id. at 569 (¶ 17).

B. Waivers at Sentencing

¶ 27. The waiver in Patton occurred at trial, not at sentencing. And our supreme court has never specifically spoken about the required examination of a defendant wishing to waive counsel at this different phase of our criminal process. However, it is quite clear that the right to counsel does extend to sentencings. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); see also United States v. Virgil, 444 F.3d 447, 452-53 (5th Cir.2006) (citations omitted) (“The right to counsel extends to the sentencing stage as forcefully as to the guilt phase.”). Much like this right may be waived at trial, criminal defendants may also waive their Sixth Amendment right to counsel at sentencing and proceed pro se. Virgil, 444 F.3d at 453. But they may only do so if the waiver is knowing and intelligent. Id.

¶ 28. So the question we must now decide is what minimal examination and/or warnings are necessary before a defendant may be deemed to have voluntarily waived his or her right to counsel at sentencing.

i. Sentencing Versus Guilt Phase

¶ 29. In crafting the appropriate inquiry, we first note that the sentencing phase of a criminal proceeding obviously differs from the guilt phase. For this reason, courts have held “the inquiry at sentencing need only be tailored to that proceeding and the consequences that may flow from it.” United States v. Salemo, 61 F.3d 214, 219 (3d Cir.1995); see also Virgil, 444 F.3d at 453 (citation omitted) (directing courts to consider “the stage of the proceedings and the setting in which the waiver is advanced”). And while there are inherent difficulties and complexities at both stages of a trial, the sentencing phase is generally viewed as far less complicated than the guilt phase. As one appellate court has recognized, “Sentencing hearings demand much less specialized knowledge than trials,” since, for instance, evidentiary rules do not apply. United States v. Day, 998 F.2d 622, 626 (8th Cir.1993). So it makes sense that in the context of sentenc-ings, the relevant inquiry into a defendant’s desire to waive counsel “need not be as exhaustive and searching as a similar inquiry before the conclusion of trial.” Id.

¶ 30. Though our review of this issue consists mostly of federal methodology, we recognize that, unlike federal district courts, Mississippi’s trial courts are not required to consult sentencing guidelines, the application of which, at times, is complex, requiring “hypertechnical” analysis by lawyers, as well as trial and appellate judges. United States v. Smith, 997 F.2d 396, 398 (8th Cir.1993) (Gibson, J., concurring).

¶ 31. But while our trial judges need not fret over sentencing guidelines, the fact remains that no matter the jurisdiction, “sentencing is a critical and often times complicated part of the criminal process that contains subtleties which may be beyond the appreciation of the average layperson seeking to represent him/herself.” Salemo, 61 F.3d at 221. Indeed, in recent years, sentencing in both federal and state courts has become more than a mere “exercise in delivering a term of years.” Virgil, 444 F.3d at 456. Now, “it often entails probation, parole conditions, restitution, and other penalties.” Id. In addition to these various complexities, there are also situations where the failure to preserve a sentencing issue could lead to a procedural waiver.

¶ 32. So while sentencing generally demands less specialized knowledge of the nuances of the law, and while the end result, which is greatly within the judge’s discretion, infrequently turns on the advocacy skills of a lawyer, it is still a critical stage of the criminal process. To a criminal defendant, for obvious reasons, the sentencing phase is perhaps the most important moment of the criminal process.

ii. What Inquiry is Sufficient at Sentencings?

¶ 33. With these considerations in mind, and after viewing the practices of our federal courts, we do not find that a rote dialogue and examination, as stringent as that of Rule 8.05, is required of Mississippi trial judges when a defendant seeks to waive counsel at sentencing. But we do find that mere “[p]erfunctory questioning is not sufficient.” Salemo, 61 F.3d at 220 (citing United States v. Welty, 674 F.2d 185, 187 (3d Cir.1982)).

¶ 34. At a minimum, a trial judge must make an inquiry sufficient to satisfy himself or herself that a defendant’s decision to proceed pro se at sentencing is “knowingly and intelligently” made. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. We find the particular inquiry must be specifically tailored to insure a defendant is “made aware of the dangers and disadvantages of self-representation” at sentencing, so that the decision is voluntary and the “choice is made with eyes open.” Id.; see also Virgil, 444 F.3d at 453-55; Salemo, 61 F.3d at 220-21 (finding court’s inquiry concerning waiver of counsel at sentencing must insure defendant is advised of dangers and disadvantages of self-representation); Meyer v. Sargent, 854 F.2d 1110, 1114-15 (8th Cir.1988) (finding that an on-the-record colloquy exploring dangers and disadvantages of self-representation is favored). We find this approach is not only sound, but it also aligns with our supreme court’s strict application of Faretta and its past reliance on federal precedent when assessing Sixth Amendment waivers at trial. See Patton, 34 So.3d at 566-69 (¶¶ 7-20).

¶35. It is obvious the circuit judge here unquestionably sought a valid Sixth Amendment waiver from Perryman. But the fact remains that, in his cursory examination of Perryman, the judge neither expressed the potential perils of self-representation, nor are we able to find such warnings are implied from the record. Because Perryman’s purported waiver was accepted without this minimally required inquiry, we find his sentence cannot stand. We therefore vacate the sentence and remand for resentencing.

¶ 36. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED; THE SENTENCE IS VACATED; AND THIS CASE IS REMANDED FOR RESENTENCING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT.

      . The felon-in-possession charge lists one pri- or aggravated-assault conviction. But the circuit judge’s order granting Perryman’s motion for post-conviction relief (PCR) and vacating his prior sentences mentions a police report describing two prior shooting-based aggravated-assault convictions.

        . Compare Miss.Code Ann. § 99-19-81 (Rev. 2007) (imposing mandatory sentence of maximum prescribed term without eligibility for parole where defendant has two or more pri- or felony convictions arising out of separate incidents) with Miss.Code Ann. § 99-19-83 (Rev.2007) (mandating life sentence, also without eligibility for parole, where defendant has been previously convicted of two or more felonies, one of which is a crime of violence). If applicable to Perryman’s case, section 99-19-81 would have required the imposition of a mandatory twenty years on each aggravated-assault charge, and three years for the gun count, without eligibility for parole, whereas section 99-19-83 would have required the imposition of a life sentence, without eligibility for parole.

      .In full, Rule 8.05 provides:
      When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:
      1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, the state will appoint one free of charge to the defendant to defend or assist the defendant in his/her defense.
      2. The defendant has the right to conduct the defense and that the defendant may elect to conduct the defense and allow whatever role (s)he desires to his/her attorney.
      3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.
      4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.
      5. Other matters as the court deems appropriate.
      After instructing the defendant and ascertaining that the defendant understands these matters, the court will ascertain if the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine if the defendant has exercised his right knowingly and voluntarily, and, if so, make the finding a matter of record. The court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney, but all disputes between the defendant and such attorney shall be resolved in favor of the defendant.

        (Emphasis added).


source: Caselaw Access Project

author: ISHEE, J., CARLTON, J.,

license: Public Domain

text:
    James RATCLIFF a/k/a James Edward Ratcliff a/k/a Eddie Rankin, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01201-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.

      James Ratcliff, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    LEE, C.J., ISHEE, FAIR and JAMES, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2006, James Ratcliff pleaded guilty in the Forrest County Circuit Court to possession of cocaine with intent to distribute. He was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with five years to serve and the remainder of the sentence suspended pending good behavior. Ratcliff later filed pro se motions for post-conviction relief (PCR) in the circuit court on May 22, 2007, and August 3, 2010. The circuit court denied both PCR motions for lack of merit. Ratcliff filed a third pro se PCR motion in the circuit court on December 6, 2011. The circuit court dismissed the PCR motion as being successive-writ barred. Ratcliff now appeals claiming, among other issues, that the circuit court improperly included a banishment clause in his sentencing order. We agree, and reverse and remand this case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 1, 2005, Ratcliff was arrested in Hattiesburg, Mississippi, on the charge of possession of 0.4 grams of cocaine with intent to distribute. In March 2006, Ratcliff was indicted and appointed counsel. Due to Ratcliffs six felony convictions, he was eligible for an enhanced sentence. However, after plea negotiations took place, Ratcliff agreed to execute a petition to enter a guilty plea in exchange for the State’s recommendation that the circuit court not impose the enhanced sentence.

¶ 3. The circuit court accepted the guilty plea in June 2006. The circuit court then sentenced Ratcliff to thirty years in the custody of the MDOC, with five years to serve and the remainder of the sentence suspended pending good behavior — the same sentence that the State had recommended to the court. Due to Ratcliffs twelve convictions, including six felonies, the circuit court included in the sentencing order a banishment clause. The banishment clause required Ratcliff to remain outside and away from Forrest, Perry, and Lamar Counties in Mississippi for the entirety of his suspended sentence.

¶ 4. After two PCR motions were denied on the merits by the circuit court, Ratcliff filed a third PCR motion in 2011. The circuit court dismissed the third PCR motion due to it being barred as a successive writ. Ratcliff appeals, challenging the application of the successive-writ bar with the claim that he is subject to an illegal sentence due to the banishment clause.

DISCUSSION

¶ 5. We will not disturb a circuit court’s dismissal of a PCR motion unless the decision is found to be clearly erroneous. Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss.Ct.App.2013) (citation omitted). Questions of law are reviewed de novo. Id. An issue that has been addressed in a final judgment with specific findings of facts and conclusions of law may not be raised again by a PCR movant. See Ward v. State, 107 So.3d 1068, 1070 (¶ 4) (Miss.Ct.App.2013) (citation omitted). Any motion filed after entry of the final judgment and asserting the same issue is procedurally barred as a successive writ, and the movant must show by a preponderance of the evidence that his claims are not barred in order to proceed. See Williams, 110 So.3d at 843 (¶ 13) (citations omitted).

¶ 6. Nonetheless, there are several exceptions to the successive-writ bar. See Carbin v. State, 942 So.2d 231, 233 (¶ 5) (Miss.Ct.App.2006) (citation omitted). “Errors affecting fundamental constitutional rights are excepted from the procedural bar....” Bell v. State, 95 So.3d 760, 763 (¶ 12) (Miss.Ct.App.2012) (citation omitted). Here, Ratcliff asserts this exception on the allegation that he received an illegal sentence; he argues that the circuit court’s inclusion of a banishment clause is illegal. However, circuit courts have the authority of law to include such clauses under certain circumstances. See Cobb v. State, 437 So.2d 1218, 1220 (Miss.1983). These circumstances include cases where banishment is justified by the defendant’s record as well as the best interests of the public and the defendant. See id.

¶ 7. However, the Mississippi Supreme Court has held that a circuit court’s “reasons for ordering banishment ... must be articulated and supported in the record by a factual basis.... ” Mackey v. State, 37 So.3d 1161, 1167 (¶ 23) (Miss.2010). A circuit court must show factual findings supporting the following factors provided for in McCreary v. State, 582 So.2d 425, 427 (Miss.1991) (citation omitted):

[ T]hat the banishment provision bore a reasonable relationship to the purpose of probation; that the ends of justice and the best interest of the defendant and the public would be served; that public policy was not violated and the rehabilitative purpose of probation was not defeated; and that [the petitioner’s] rights under the First, Fifth[,] and Fourteenth Amendments to the United States Constitution were not violated.

It is not enough for a circuit court to merely recite these factors. See Means v. State, 43 So.3d 438, 446 (¶ 26) (Miss.2010) (citation omitted). Rather, “the judge must articulate, on the record, the reasons for and benefits of the banishment.” Id. This on-the-record explanation must show the correlation between the applicable factors and the defendant’s specific circumstances. See id. at 445 (¶ 24).

¶ 8. Here, the circuit court’s order made no specific factual findings relating the banishment clause to Ratcliffs actions. The circuit court read the McCreary factors into the record but failed to show specifically how they apply to Ratcliff.

¶ 9. The record before us shows that Ratcliff has received twelve convictions, including six felonies and several violent crimes, in the areas from which he was banished. Moreover, his criminal history spans thirty-four years, thereby indicating that past forms of rehabilitation and punishment have not deterred his criminal behavior. Ratcliffs long-standing and colorful criminal history in the area may have given the circuit court just cause to impose banishment restrictions on Ratcliffs suspended sentence. Nonetheless, it is the duty of the circuit judge to enunciate such reasoning. However, since no hearing was held on Rat-cliffs present PCR motion, the circuit court has not had the opportunity to explore the propriety of Ratcliffs banishment under the appropriate legal parameters. Since the circuit court did not meet the legal requirements to impose a banishment, Ratcliffs PCR motion is excepted from the procedural bar. As such, we reverse and remand this case to the circuit court for the court to determine whether Ratcliffs banishment is legally viable.

¶10. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶ 11. I respectfully dissent from the majority’s opinion. I would affirm the circuit court’s decision.

¶ 12. James Ratcliff pled guilty in 2006, and his sentence included a banishment clause specifying the limited area of banishment as the counties in that judicial district: Forrest, Perry, and Lamar Counties in Mississippi. The order also specified the time period for the banishment as the entirety of his suspended sentence. Ratcliff raised no objection to his sentence at the time of sentencing.

¶ 13. In this case, the circuit court considered the factors required to support the banishment provision as provided by Cobb v. State, 437 So.2d 1218, 1220-21 (Miss.1983). See also McCreary v. State, 582 So.2d 425, 427 (Miss.1991). However, the circuit court did not include on-the-record factual findings of its analysis of the correlation of the Cobb factors as required by Mackey v. State, 37 So.3d 1161, 1167 (¶ 23) (Miss.2010). Ratcliff pled guilty in 2006; however, Mackey did not establish the factual-basis requirement until 2010. I respectfully submit that the factual-basis requirement as a procedural safeguard, which was set forth in Mackey, should not be applied retroactively in this particular case since the banishment was limited to a defined geographical area and specified time. Also, Ratcliff pled guilty, raising no objection to his sentence when it was imposed.

¶ 14. In conclusion, Ratcliff has failed to show that he suffered a violation of any constitutionally protected right or that public policy was violated by the limited banishment where the circuit court acknowledged consideration of the Cobb factors.

      . In McCreary v. State, 582 So.2d 425, 427-28 (Miss.1991), the Mississippi Supreme Court established that banishment from the entire state violated public policy. See Miss.Code Ann. § 47-7-35(l)(g) (Rev.2011).

      . See Owens v. Kelley, 681 F.2d 1362, 1370 (11th Cir.1982) (acknowledging condition of probation not invalid because the condition affects a protected constitutional right).

      . See Means v. State, 43 So.3d 438, 444 (¶ 20) (Miss.2010) (recognizing that only recently the supreme court imposed the affirmative duty to analyze the Cobb factors on the record).

      . Compare the facts of this case with Watts v. Brewer, No. 2:09cv122-KS-MTP, 2012 WL 1301261, at *6-8 (S.D.Miss. Mar.16, 2012).


author: MAIN, Justice.

text:
    ALABAMA INSURANCE GUARANTY ASSOCIATION v. MERCY MEDICAL ASSOCIATION and Catholic Health East, Inc.
    1111206.
    Supreme Court of Alabama.
    Feb. 15, 2013.

      Howard K. Glick and Jonathan E. Bel-ing of Simpson, McMahan, Glick & Bur-ford, PLLC, Birmingham, for appellant.
    Tom Burgess and Ethan R. Dettling of Smith, Spires & Peddy, P.C., Birmingham, for appellees.
   MAIN, Justice.

The Alabama Insurance Guaranty Association (“AIGA”) filed an action against Mercy Medical Association, an Alabama nonprofit corporation (“Mercy Medical”), and Catholic Health East, Inc., a Pennsylvania nonprofit corporation (“CHE”), seeking to recover money it had paid on behalf of Mercy Medical and CHE on workers’ compensation claims filed by employees of Mercy Medical as well as a judgment declaring its right to reimbursement of statutory benefits to be paid on the employees’ claims in the future. AIGA, Mercy Medical, and CHE each moved for a summary judgment. The trial court entered a summary judgment in favor of Mercy Medical and CHE, concluding, as a matter of law, that AIGA was not entitled to reimbursement for payments made for claims prior to August 1, 2009 (the effective date of amendments to the act creating the AIGA, § 27-42-1 et seq., Ala.Code 1975 (“the AIGA Act”)), payments made after August 1, 2009, and future payments made on behalf of Mercy Medical and CHE on the employee’s workers’ compensation claim because the AIGA Act as it existed following amendments in 2000 (“the 2000 AIGA Act”) applied, not the AIGA Act as amended in 2009 (“the 2009 AIGA Act”) as urged by AIGA. Specifically, the trial court determined (1) that the 2000 AIGA Act applied because it was in effect at the time of the insolvency of Reliance National Insurance Company (“Reliance”), CHE’s workers’ compensation insurer, and at the time the workers’ compensation judgment was entered against Mercy Medical, (2) that the 2009 AIGA Act did not apply retroactively because the 2009 amendments to the AIGA Act substantively changed the law, and (3) that, under the 2000 AIGA Act, Mercy Medical’s net worth did not exceed $25,000,000, so AIGA could not recover any amounts it had paid on behalf of Mercy Medical. AIGA appealed. For the following reasons, we affirm.

I. Facts and Procedural History

In 1999, Brenda Keao, an employee of Mercy Medical, was injured in a workplace accident. Because Mercy Medical is one of CHE’s Regional Health Corporations (“RHCs”) and because CHE provides its RHCs with insurance services, CHE secured from Reliance workers’ compensation coverage for itself and all of its RHCs. Thus, at the time of Keao’s accident, Mercy Medical had workers’ compensation insurance through Reliance. Reliance was a member insurer of AIGA, which is “a nonprofit unincorporated legal entity,” § 27-42-6, Ala.Code 1975, established under the AIGA Act. The purpose of the AIGA Act is “to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payments and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies and to provide an association to assess the cost of such protection among insurers.” § 27-42-2, Ala.Code 1975.

In October 2001, Reliance was declared insolvent and Keao’s workers’ compensation claim was forwarded to AIGA. AIGA retained defense counsel and defended Mercy Medical in Keao’s workers’ compensation action. In late 2002, the trial court ruled that Mercy Medical had employed Keao and that Keao was entitled to permanent total-disability benefits under the Workers’ Compensation Act. Mercy Medical appealed, and this Court, on certiorari review from the Court of Civil Appeals, held that the receipt of disability benefits did not preclude the payment of workers’ compensation benefits. See Ex parte Keao, 900 So.2d 442 (Ala.2004); Mercy Med. v. Keao, 900 So.2d 443 (Ala.Civ.App.2004).

In November 2009, AIGA filed an action against Mercy Medical and CHE, seeking reimbursement for benefits AIGA had paid on Mercy Medical’s behalf for Keao’s workers’ compensation claim both before and after August 1, 2009, as well as a judgment declaring its right to reimbursement of any statutory benefits to be paid on Keao’s workers’ compensation claim in the future. AIGA based its action on the 2009 AIGA Act, claiming that the 2009 amendments to the AIGA Act applied retroactively. AIGA contended that it was entitled to reimbursement because Mercy Medical and CHE were “high net worth” insureds under the 2009 AIGA Act. See § 27-42-5(7), Ala.Code 1975 (defining “high net worth insured”). Mercy Medical and CHE filed answers denying that either entity was required to reimburse AIGA under the AIGA Act because, they contended, the 2009 AIGA Act did not apply in this case. Instead, Mercy Medical and CHE claimed that the 2000 AIGA Act, as it existed at the time of the Reliance insolvency and at the time the judgment was entered in Keao’s workers’ compensation action, controlled. AIGA, Mercy Medical, and CHE filed summary-judgment motions and briefs in support of their summary-judgment motions. The trial court, after considering the evidentiary submissions and the briefs and after hearing oral arguments, entered a summary judgment in favor of Mercy Medical and CHE. In its summary-judgment order, the trial court determined (1) that the 2000 AIGA Act applied because it was the law in effect at the time of Reliance’s insolvency and at the time the judgment was entered in Keao’s workers’ compensation action, (2) that the 2009 AIGA Act did not apply retroactively because the revisions to the Act were substantive, not remedial, and (3) that AIGA was not entitled to reimbursement because, under the 2000 AIGA Act, Mercy Medical’s net worth did not exceed $25,000,000.

II. Standard of Review

“ ‘[Bjecause the underlying facts are not disputed and this appeal focuses on the application of the law to those facts, there can be no presumption of correctness accorded to the trial court’s ruling.’ Beavers v. County of Walker, 645 So.2d 1365, 1373 (Ala.1994) (citing First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987)). A ruling on a question of law carries no presumption of correctness, and appellate review is de novo. See Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999); Ex parte Graham, 702 So.2d 1215 (Ala.1997).”

Ex parte City of Brundidge, 897 So.2d 1129, 1131 (Ala.2004).

III. Analysis

AIGA essentially presents three arguments on appeal. First, AIGA argues that its right of reimbursement, under both the 2000 AIGA Act and the 2009 AIGA Act, vests upon the payment of benefits to the claimant on behalf of the insured. Alternatively, citing Ex parte Water Works & Sanitary Sewer Board of Montgomery, 93 So.3d 94 (Ala.2012), AIGA argues that the 2009 AIGA Act should apply to all payments of claims occurring after August 1, 2009. Second, AIGA argues that the 2009 AIGA Act applies retroactively because, it argues, the 2009 amendments to the AIGA Act were remedial and simply defined, among the things, “net worth” and “high net worth insured” and provided the methodology for calculating an insured’s net worth. Last, AIGA argues that, under either or both the 2000 AIGA Act and the 2009 AIGA Act, it was entitled to recover money it had paid on behalf of Mercy Medical because Mercy Medical’s net worth exceeded $25,000,000, even under the 2000 AIGA Act. We consider these arguments in turn.

A. Vesting of Right to Reimbursement

AIGA contends that its right to reimbursement from its member insurers vests upon its payment of benefits. Mercy Medical and CHE submit that AIGA’s right to reimbursement vests at the time of the insolvency of the insured. We conclude, based on the plain language of § 27-42-2, which states the purpose behind the AIGA Act, that the right to reimbursement vests at the time of the insured’s insolvency.

Although this Court has not yet considered what law applies to an insurance-guaranty matter such as this, the plain language of the AIGA Act is instructive. Section 27-42-2, Ala.Code 1975, provides: “The purpose of this chapter is to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payments and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies and to provide an association to assess the cost of such protection among insurers.” The clear purpose of the AIGA Act is to protect policyholders, like Mercy Medical, from financial losses resulting from the insolvency of the insurer. Additionally, § 27-42-4, Ala.Code 1975, states: “This chapter shall be liberally construed to effect the purpose under Section 27-42-2 which will constitute an aid and guide to interpretation.” Accordingly, the legislature has directed a liberal construction of the AIGA Act in favor of claimants and insureds or policyholders. Both the 2000 AIGA Act and the 2009 AIGA Act consistently refer to the date of the insurer’s insolvency as the date on which critical determinations are made. The claim against AIGA does not accrue until the insurer is declared insolvent. The date of insolvency triggers AIGA’s obligation to handle the claim and to make all decisions regarding the disposition of a covered claim. Thus, we conclude that the date of the insurer’s insolvency controls in determining when AIGA’s right to reimbursement vests.

To the extent AIGA argues that the 2009 AIGA Act should apply to all payments on claims occurring after August 1, 2009, its argument is misplaced. AIGA cites Ex parte Water Works, supra, for the proposition that each payment on a workers’ compensation claim gives rise to a new statutory right to be considered under the law in effect at the time of the payment. In Ex parte Water Works, supra, this Court, in considering the applicable statute of limitations to AIGA’s reimbursement claims, did not agree with the arguments advanced by AIGA. Instead, this Court, affirming the judgment of the Court of Civil Appeals, applied the AIGA Act in effect on the date AIGA became obligated to make a claims payment in determining that a six-year statute-of-limitations period began to run when a payment was made, regardless of whether AIGA was aware of the insured’s net-worth status at that time.

The parties do not dispute that Reliance was declared insolvent in 2001. The 2000 AIGA Act, therefore, not the 2009 AIGA Act, governs AIGA’s right to reimbursement in this case.

B. Retroactive Application of 2009 AIGA Act

We next consider which AIGA Act applies in regard to net-worth provisions: the 2000 AIGA Act or the 2009 AIGA Act. AIGA contends that the 2009 amendments to the AIGA Act defining “net worth” and “high net worth insured” are remedial changes to the net-worth provisions in the 2000 AIGA Act, in that they simply clarified how an insured’s “net worth” is determined and the methodology for calculating an insured’s “net worth.” Therefore, AIGA argues, the trial court erred in determining that the 2009 amendments to the 2000 AIGA Act defining “net worth” and “high net worth insured” were substantive changes to the 2000 AIGA Act and, therefore, cannot be applied retroactively to consolidate Mercy Medical’s and CHE’s net worth for purposes of determining whether Mercy Medical’s net worth exceeded $25,000,000, thereby giving AIGA the right to recoup statutory benefits paid on Keao’s workers’ compensation claim. Mercy Medical and CHE argue that the 2009 amendments to the 2000 AIGA Act substantively changed the law and should not apply retroactively to allow the consolidation of Mercy Medical’s and CHE’s net worth in determining Mercy Medical’s net worth.

Generally, retrospective application of a statute is not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively. See Kittrell v. Benjamin, 396 So.2d 93, 94 (Ala.1981) (citing City of Brewton v. White’s Auto Store, Inc., 362 So.2d 226, 227 (Ala.1978) (providing that we “indulge every presumption in favor of construing actions of the legislature to have a prospective operation unless the legislature’s intention is otherwise stated in express terms, or [its actions] clearly, explicitly, and unmistakably permit of no other meaning”)). In this case, the 2009 AIGA Act does not expressly address whether the legislature intended that § 27-42-5(7)(defining “high net worth insured”) and (11) (defining “net worth”) have retroactive application. Regardless, whether a statute may be applied retroactively turns on whether the statute affects substantive or procedural rights. Ex parte Burks, 487 So.2d 905, 907 (Ala.1985); Kittrell, 396 So.2d at 95 (a statute can have retroactive application if it affects procedural as opposed to substantive rights). Substantive laws are those that create, enlarge, diminish, or destroy vested rights. See Ex parte Bonner, 676 So.2d 925, 926 (Ala.1995). “Substantive law” is “[t]he part of law that creates, defines, and regulates the rights, duties, and powers of parties,” Black’s Law Dictionary 1567 (9th ed.2009), as opposed to “adjective, procedural, or remedial law,” which is “ favored, by the courts, and [its] retrospective application is not obnoxious to the spirit and policy of the law,’ ” and which is “exemplified by [laws] that ‘ “impair no contract or vested right, [and do not disturb past transactions,] but preserve and enforce the right and heal defects in existing laws prescribing remedies.” ’ ” Ex parte Bonner, 676 So.2d at 926 (quoting Ex parte Burks, 487 So.2d at 907, and Jones v. Casey, 445 So.2d 873, 875 (Ala.1983), quoting in turn Dickson v. Alabama Mach. & Supply Co., 18 Ala.App. 164, 165, 89 So. 843, 844 (1921)).

Under the 2000 AIGA Act, insureds whose net worth exceeded $25,000,000 on December 31 of the year preceding their insurer’s insolvency are either not entitled to statutory benefits under the AIGA Act or are required to reimburse AIGA for statutory benefits expended on behalf of the insured. §§ 27-42-5(4) and 27-42-11(d), Ala.Code 1975, of the 2000 AIGA Act. Section 27-42-ll(d), as it read following the 2000 amendment to the recoupment provision in the AIGA Act, provided:

“(d) The association shall have the right to recover from the following persons the amount of any covered claim paid on behalf of the person:
“(1) An insured whose net worth on December 31 of the year immediately preceding the date the insurer becomes an insolvent insurer exceeds twenty-five million dollars ($25,000,-000) and whose obligations, including obligations under workers’ compensation insurance coverages, to other persons are satisfied in whole or in part by the payments.
“(2) Any person who is an affiliate of the insolvent insurer and whose liability obligations under workers’ compensation insurance coverages, to other persons are satisfied in whole or in part by the payments.”

Under the 2000 AIGA Act, a “covered claim” was defined as:

“(4) COVERED CLAIM.... ‘Covered Claim’ shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as sub-rogation recoveries or otherwise, nor shall ‘covered claim’ include any first party claims by an insured whose net worth exceeds twenty-five million dollars ($25,000,000) on December 31 of the year prior to the year in which the insurer becomes an insolvent insurer; provided that an insured’s net worth on that date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries as calculated on a consolidated basis.”

§ 27-42-5(4), Ala.Code 1975.

Effective August 1, 2009, the legislature substantially revised the 2000 AIGA Act, adding, among other things, provisions to define “affiliate,” “control,” “net worth,” and “high net worth insured” and to clarify the method for calculating an insured’s “net worth.” § 27-42-5(2), (5), (7), and (11), Ala.Code 1975. Under the 2009 AIGA Act, AIGA has “the right to recover from a high net worth insured all amounts paid by [AIGA] to or on behalf of such insured, whether for indemnity, defense, or otherwise,” and “[AIGA] shall have the right to recover from any person who is an affiliate of the insolvent insurer all amounts paid by [AIGA] to or on behalf of such person, whether for indemnity, defense, or otherwise.” § 27-42-ll(e) and (f), Ala.Code 1975. The 2009 AIGA Act defines “affiliate,” “control,” “net worth,” and “high net worth insured” as follows:

“(2) Affiliate. A person who directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with another person on December 31 of the year immediately preceding the date the insurer becomes an insolvent insurer.
“(5) Control. The possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if a person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing, 10 percent or more of the voting securities of any other person. This presumption may be rebutted by a showing that control does not exist in fact.
“(7) High Net Worth Insured. Any insured whose net worth exceeds twenty-five million dollars ($25,000,000) on December 31 of the year prior to the year in which the insurer becomes an insolvent insurer; provided that an insured’s net worth on that date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis.
“(11) Net worth. The total assets of a person, less the total liabilities against those assets as determined in accordance with generally accepted accounting principles. A person’s net worth shall be deemed to include the aggregate net worth of the person and all of its subsidiaries and affiliates as calculated on a consolidated basis.”

§ 27-42-5, Ala.Code 1975.

A plain reading of the 2009 AIGA Act reveals that the new definitions of “affiliate,” “control,” “high net worth insured,” and “net worth” are substantive changes the retroactive application of which would adversely affect and impair the rights of those insured and covered by the AIGA Act, including Mercy Medical. In this case, the definitions of “affiliate,” “control,” “high net worth insured,” and “net worth” in the 2009 AIGA Act significantly narrow the determination of net worth under the 2000 AIGA Act, and in turn narrow the rights of policyholders and insureds under the AIGA Act. In essence, AIGA contends that because the addition in the 2009 AIGA Act of the definitions was intended to “clarify” or “amend” provisions in the 2000 AIGA Act (i.e., by defining “affiliate,” “control,” “high net worth insured,” and “net worth”), this Court should presume that the legislature intended the 2009 AIGA Act to apply retroactively.

Although it is true that procedural or remedial statutes may operate retrospectively even absent a clear legislative intent in favor of retroactivity, see Ex parte Bonner, 676 So.2d at 926, that is not the case with respect to amendments that constitute a substantive change, either by creating new rights or taking away vested rights. Id. That is, if a statute accomplishes a remedial purpose by creating new substantive rights or by imposing new legal burdens, the presumption against retroactivity would still apply. See Ex parte Burks, 487 So.2d at 907.

AIGA’s argument to the contrary, a plain reading of the 2009 AIGA Act reveals that the new definitions of “affiliate,” “control,” “high net worth insured,” and “net worth” are substantive changes because their retroactive application would adversely affect and impair the rights of those covered by the AIGA Act, including Mercy Medical. In this case, the definitions of “affiliate,” “control,” “high net worth insured,” and “net worth” in the 2009 AIGA Act significantly narrow Mercy Medical’s rights by changing the methodology for calculating its net worth. Thus, we conclude that the 2009 AIGA Act does not apply retroactively in this case because the 2009 AIGA Act substantively changed the law.

C. Reimbursement by Mercy Medical and CHE

Last, we consider Mercy Medical’s net worth for purposes of reimbursement under the 2000 AIGA Act. AIGA contends that, even applying the 2000 AIGA Act, CHE’s net worth should be considered in determining Mercy Medical’s net worth. Mercy Medical and CHE respond that, under the plain language of the 2000 AIGA Act, CHE’s net worth should not be considered and AIGA is not entitled to reimbursement from Mercy Medical.

As set out above, the 2000 AIGA Act was the act in effect at the time of Reliance’s insolvency and/or at the time AIGA’s coverage obligations were reduced to a liquidated sum by the judgment in Keao’s workers’ compensation action. Under the plain language of § 27-42-5 and § 27-42-11 of the 2000 AIGA Act, quoted above, Mercy Medical, the insured, had assets of less than $25,000,000. Section 27-42-5 states that an insured’s net worth includes “the net worth of the insured and all of its subsidiaries as calculated on a consolidated basis.” Mercy Medical had no subsidiaries. Thus, Mercy Medical’s net worth, for the purposes of the 2000 AIGA Act, was less than $25,000,000.

Likewise, the 2000 AIGA Act also provides which insureds must reimburse AIGA for claim payments. Section 27-42-11(d)(1) clearly stated that AIGA could recover any amounts it had paid “on behalf of’ an insured whose net worth exceeds $25,000,000 and whose liability obligations are satisfied in whole or in part by the payments. AIGA paid amounts to satisfy Mercy Medical’s legal obligation to Keao, Mercy Medical’s employee. However, because Mercy Medical’s net worth was below $25,000,000, Mercy Medical is not obligated to reimburse AIGA for those payments made by AIGA.

Similarly, under the 2000 AIGA Act, CHE is not obligated to reimburse AIGA either. CHE is not a subsidiary of Mercy Medical. Instead, it is Mercy Medical’s sole member, a legal status very different from that of a subsidiary. Further, the payments made to Keao by AIGA were not made on CHE’s behalf. The payments to Keao were solely the legal responsibility of Mercy Medical, and AIGA’s payments were those it was statutorily obligated to make “on behalf of’ Mercy Medical. Accordingly, we conclude that neither Mercy Medical nor CHE owe reimbursement to AIGA under the 2000 AIGA Act.

IV. Conclusion

For the foregoing reasons, we conclude that the applicable law governing the vesting of AIGA’s right to reimbursement of claims paid is the law in effect on the date of the insurer’s insolvency. We also conclude that the addition of the net-worth definitions in the 2009 AIGA Act are substantive and do not apply retroactively in this case. Finally, we conclude that AIGA is not entitled to reimbursement from Mercy Medical or CHE because, under the 2000 AIGA Act, Mercy Medical’s net worth did not exceed $25,000,000 and the payments were not made on behalf of CHE. Accordingly, we affirm the trial court’s judgment in favor of Mercy Medical and CHE.

AFFIRMED.

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

      . AIGA paid several workers’ compensation claims, which were at issue in the underlying action. However, because AIGA made most of those payments more than six years before AIGA filed the underlying action, and this Court has held in a separate action brought by AIGA that a six-year statute of limitations applied to AIGA’s claims for reimbursement, only the workers' compensation claim related to Brenda Keao was not time-barred. See Ex

        parte Water Works & Sanitary Sewer Bd. of Montgomery, 93 So.3d 94 (Ala.2012).

      . CHE, which provides assistance and support to charitable health organizations such as Mercy Medical, paid the premiums and was named as the insured on the Reliance workers’ compensation insurance policy. Mercy Medical, which operates health-care facilities in Daphne and Mobile, was added to CHE’s policy by endorsement on November 1, 1999. According to the record, Mercy Medical was reorganized in 1997, and CHE became Mercy Medical’s sole member at that time.

      . AIGA also sought reimbursement for other workers' compensation claims that it had paid and that were at issue in this action. However, those payments were made more than six years before AIGA filed the underlying action and are time-barred. See Ex parte Water Works & Sanitary Sewer Bd. of Montgomery, 93 So.3d 94 (Ala.2012) (holding that six-year statute of limitations applied to AIGA's claim for reimbursement). See note 1.

      . Mercy Medical and CHE do not argue that the guaranty-association law that applied to the insurance coverage Mercy Medical had in place at the time of Keao's injury should govern in a case such as this. We therefore do not consider the question here.


author: THOMPSON, Presiding Judge.

text:
    Cheri Denise SPUHL v. Robert SPUHL.
    2111096.
    Court of Civil Appeals of Alabama.
    Jan. 11, 2013.

      Amy S. Creech of Rhodes & Creech, Huntsville, for appellant.
    William P. Burgess, Jr., and Rebekah L. Graham of William P. Burgess, Jr., P.C., Huntsville, for appellee.
   THOMPSON, Presiding Judge.

This is the second time that Cheri Denise Spuhl (“the wife”) and Robert Spuhl (“the husband”) have been before this court in connection with the division of marital property and the award of alimony in their divorce judgment. See Spuhl v. Spuhl, 99 So.3d 339 (Ala.Civ.App.2012). In the earlier opinion, this court found that, based on a comment the trial court had made during a discussion with the parties’ attorneys at the evidentiary hearing, it appeared that the trial court mistakenly believed that it was prohibited from treating military-retirement benefits as a marital asset subject to division and that such benefits could only be considered as a source of periodic alimony. Id. at 341. We reversed the judgment of the trial court as to the property division and the award of alimony and remanded the cause so that the trial court could exercise its discretion in dividing the parties marital assets, including the military-retirement benefits, and in awarding periodic alimony. Id. at 342.

On July 12, 2012, the trial court entered a judgment on remand (“the 2012 judgment”) reaffirming the terms and provisions included in the original divorce judgment dated June 24, 2011 (“the original divorce judgment”). The trial court stated that, at the time it entered the original divorce judgment, it had been mindful that it could “fashion the award [of military-retirement benefits] as either a property award or periodic alimony.” After considering its options and the evidence presented in this case, the trial court said, it entered the original divorce judgment, which “it determined was the fairest and most equitable to both parties.” In explaining its decision to reaffirm the amount of periodic alimony awarded to the wife in the original divorce judgment, the trial court wrote:

“Quite frankly, this court determined that both the [hjusband and the [w]ife submitted an unreasonable and inflated monthly expense budget into evidence in the trial of this case; and had to determine the [wjife’s reasonable and necessary monthly expenses, and therefore, her need for support for herself from the [h]usband; her own ability to earn income with which to meet, at least partially, those reasonable and necessary monthly expenses; and the ability of the [hjusband to contribute to her support, taking into consideration the other significant financial obligations imposed on him in the [judgment], as well as his own reasonable and necessary monthly expenses .... ”

The wife timely appealed from the 2012 judgment, contending that the trial court had abused its discretion in dividing the marital property and in awarding her only $2,250 a month in periodic alimony. She also claims that the trial court applied an incorrect standard in determining the amount of periodic alimony to be awarded.

In our previous opinion, this court set out the evidence contained in the record on appeal as follows:

“The parties married in January 1993. Two children (‘the children’) were born of the marriage. The wife had two other children from a previous marriage; they were adults at the time of this action. At trial, the wife contended that the husband had an affair, which was continuing at the time of the trial, and that the affair was what had caused the breakdown of the marriage. The husband, on the other hand, testified that he had asked the wife for a divorce as early as 2004. The evidence indicated that the parties frequently argued, yelling at each other and calling each other vulgar names. At times, the arguments turned physical. The husband testified to an incident in which he and the wife were arguing and the wife ‘grabbed’ his genitals and then scratched him.
“When the parties married, the husband was in the United States Army. He had been in the army since December 1983. The husband retired from the army as a lieutenant colonel in 2005, and the family moved to Huntsville, where the husband worked as a civilian. At the time the husband filed this action, his gross monthly salary was $8,993.81. From his employer, the husband also earned bonuses, his cellular-telephone phone bill was paid, and, in 2010, he received a $4,800 distribution from his employer’s ‘SAR account.’ In addition, the husband received military-retirement benefits of $3,802 each month, which included a Veterans Affairs’ waiver of $376. The husband’s gross monthly income at the time of the trial was $14,951.14; his average monthly net income was $9,390.
“The wife did not work outside the home during the marriage. She testified that, because of the husband’s deployments, she was often the only person available to care for the children. The wife said that between running the household and her responsibilities as a military spouse, which included assisting other military spouses with any number of difficulties they may encounter, she found it impossible to have a career outside the home. At the time of the trial, the wife worked as a receptionist in a doctor’s office earning $11 hourly. She worked approximately 30 to 32 hours each week.
“The parties did not own any real property at the time of the trial. They testified as to their personal property; the value of their various bank accounts, retirement accounts, and insurance policies; their three vehicles; and their debt.
“After considering the evidence, the trial court entered a judgment dividing the parties’ personal property, their vehicles, and their various insurance policies, bank accounts, and retirement accounts, excluding the husband’s military-retirement benefits. The husband was ordered to pay the wife $2,250 each month in periodic alimony. The trial court stated that the amount of the wife’s periodic alimony was to be equal to 28% of the husband’s gross nondisa-bility military retirement benefits.”

99 So.3d at 340-41.

In this appeal, the wife asserts that the trial court’s failure to divide the husband’s military-retirement benefits as a marital asset resulted in an inequitable division of marital property.

Our standard of review regarding a property division and an award of periodic alimony is well settled.

“When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038.”

Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009).

“The issues of property division and alimony are interrelated, and they must be considered together. Albertson v. Al bertson, 678 So.2d 118 (Ala.Civ.App.199[5]). A property division is not required to be equal, but it must be equitable. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages and health; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, [795 So.2d 729 (Ala.Civ.App.2001) ]; Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or, as here, where the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998); Lutz v. Lutz, supra.

Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002).

In this case, when the value of the husband’s military-retirement benefits is excluded from the calculation, the division of marital property is relatively even. The parties agree that the value of the marital property awarded to the wife is approximately $87,830 and the value of the marital property awarded to the husband is approximately $80,158. The wife’s share of the marital property, excluding the husband’s military-retirement benefits, is approximately 52%, and the husband’s share is approximately 48%. However, the largest marital asset — the military-retirement benefits the husband accrued during the course of the marriage — had a value of approximately $434,500, and it was awarded to the husband in its entirety. When the $434,500 is included in the calculation of the division of marital property, the wife’s share of the total value of marital assets is slightly less than 15%; the husband’s share is slightly more than 85%.

The purpose of a property settlement in a divorce action is to give “each spouse the value of [his or her] interest in the marriage.” Pattillo v. Pattillo, 414 So.2d 915, 917 (Ala.1982). Moreover, we note that, unlike an award of periodic alimony, a division of marital property cannot be modified upon a showing of changed circumstances. See Kahn v. Kahn, 682 So.2d 1377 (Ala.Civ.App.1996).

In Henderson v. Henderson, 800 So.2d 595 (Ala.Civ.App.2000), this court reversed a trial court’s division of marital property, holding that “[i]t is inequitable to deny the wife [who was unemployed and who did not have a retirement plan of her own] a portion of the husband’s retirement benefits after 34 years of marriage.” Id. at 599. In Adams v. Adams, 778 So.2d 825 (Ala.Civ.App.2000), the division of marital property was similar to the division in this case. The trial court had awarded the wife assets of approximately $64,000, or 16% of the marital property, and had awarded the husband assets of approximately $385,000, or 84% of the marital property. Id. at 826. This court reversed the judgment, holding “that the property award to the wife is so disproportionate as to be inequitable and that it constitutes an abuse of discretion.” Id. at 827.

The record in this case indicates that neither party is blameless in causing the breakdown of the marriage — the parties appear to have had an acrimonious relationship even before the husband began the affair he was having at the time of the trial. As to the 18-year marriage itself, the wife did not work outside of the home because of the responsibilities placed on her as a result of the husband’s career. The parties both testified that the wife played an integral role in furthering the husband’s military career. Moreover, the wife said that when the husband was required to be away from home for long periods, she oversaw all that was necessary to keep the household running, and she was the children’s caretaker. We conclude that the trial court’s failure to award the wife any part of the husband’s military-retirement benefits — by far the parties’ largest marital asset — resulted in an inequitable division of marital property. Accordingly, the judgment is due to be reversed.

As has often been said, the award of periodic alimony is considered in conjunction with the division of the marital assets. Henderson v. Henderson, 800 So.2d at 597. Because the award of periodic alimony is considered in conjunction with the division of marital property, we must also reverse the trial court’s award of periodic alimony to the wife so that the trial court can reconsider its award of periodic alimony and marital property together. In doing so, we note that, in the case of military-retirement benefits, “[ajlthough retirement benefits may be divided as property, such benefits are equally available as a source of income from which to pay periodic alimony.” Rose v. Rose, 70 So.3d 429, 432 (Ala.Civ.App.2011). “[T]here is no requirement that military benefits, in the event of a divorce, be treated only as a source of alimony in gross or as marital property subject to equitable division.... ” Id. (emphasis added).

For the reasons set forth above, we reverse the judgment of the trial court and remand this cause for the trial court to equitably divide the marital assets and to reconsider its award of periodic alimony.

The wife’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, and MOORE, JJ., concur.

BRYAN, J., concurs in the result, without writing.

      . The wife acknowledges that only a portion of the husband's military-retirement benefits were accrued during the marriage and subject to division as marital property. The total value of the husband’s military-retirement benefits is more than $750,000.

      . As to debt, the judgment made each party responsible for the debt in his or her name. At the time the original divorce judgment was entered, the wife owed a total of $15,824 and the husband owed a total of $27,124.


author: PER CURIAM. MOORE, Judge,

text:
    Chong FAN v. QUALITEST PHARMACEUTICALS.
    2110601.
    Court of Civil Appeals of Alabama.
    Jan. 11, 2013.

      Chong Fan, pro se.
    David B. Block and Christopher S. Kuff-ner of Maynard, Cooper & Gale, P.C., Huntsville, for appellee.
   PER CURIAM.

Chong Fan appeals from a judgment of the Madison Circuit Court (“the trial court”) dismissing his complaint against Qualitest Pharmaceuticals. We affirm in part and reverse in part.

Facts and Procedural History

On September 22, 2010, Fan filed in the trial court a complaint against Qualitest. The complaint stated:

“Cause: Breach of Constitution, contract, worker protection and torts law
“Issue and requests:
“1. To judge that breach of Constitution on ‘Equal Protection and Rights of aliens’
“2. To judge that breach of Contract on ‘Consequential Damages’
“3. To judge that breach of Worker Protection on ‘Wages and Hours of Work, Discharge for Proper Cause’
“4. To judge that breach of Torts Law on ‘Infliction of Mental Distress’
“5. To judge that damage of USD $500,000
“Facts:
“On Apr. 10th, 2010 Saturday, plaintiff Chong Fan was sick and went to see Dr. Benjamin Favis in AFC (American Family Care). He suggested ‘Please excuse Mr. Fan from work on 04/12/2010’. Chong Fan went to see Dr. Jatinder Sachdev in AFC on 04/13/2010, she suggested ‘Off work 04/13/10 — 04/16/10’. Then plaintiff Chong Fan gave employer the doctor’s note.
“April 19, 2010, Monday, Chong Fan was orally informed to be fired, but without any official termination letters.
“The reasons to fire Chong Fan told by Sr. Director Mr. Jaber Qasem were:
“1. You don’t respect Mr. Fang Zhou because you didn’t agree with you’re [sic] annual review made by Fang Zhou and didn’t sign your name.
“2. You can’t work on the 2nd shift (night shift from 5pm to 5am) on weekend.
“Reasons:
“I am an alien Chinese with Green Card worked in Qualitest Pharmaceuticals, USA, for long time and overtime work, without any overtime paid. Once fired, lack legal protections, lack pleading ways, lack Union. Plead with Court for judge.”

(Bold typeface in original.)

On November 5, 2010, Qualitest filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Qualitest argued that Fan had failed to state facts to support a claim of intentional infliction of emotional distress. Qualitest also argued that the breach-of-contract claim failed because the complaint failed to allege that a contract existed or to allege any other element of that claim and that the claims of “Breach of Constitution and Breach of Worker Protection” were not recognized causes of action under Alabama law. Qualitest also argued that Fan had not met the requirements of notice pleading under Rule 8(a), Ala. R. Civ. P. On August 1, 2011, Fan filed a reply to that motion. A hearing was held on September 9, 2011, after which the trial court entered an order giving Fan 14 days to amend his complaint.

On September 26, 2011, Fan filed a “Reply” in response to the trial court’s order. Fan restated the allegations in his original complaint and added a section entitled “Case Compare and Analysis” in which he compared certain cases to the facts of his case. The first set of cases Fan discussed in his reply were listed under the heading “Breach of Contract.” In that section, Fan stated that he had been wrongfully discharged for seeking workers’ compensation benefits. The second set of cases discussed were listed under the heading “Breach of Worker Protection.” In that section, Fan stated that Qualitest had violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and that he had been discharged for exercising his rights under that act. The third set of cases discussed were listed under the heading “Breach of Constitution.” In that section, Fan stated that he had been “fired” under circumstances for which an employee who was an American national would not have been. The fourth and final set of cases discussed were listed under the heading “Breach of Torts Law.” In that section, Fan stated that he had suffered an intentional infliction of emotional distress due to “work disputes on his annual review and overtime wage” as well as his discharge.

Qualitest renewed its motion to dismiss on October 5, 2011, arguing that Fan’s “reply” was untimely and that Fan had failed to serve the reply on Qualitest. Qualitest again argued that the breaeh-of-contract claim failed because it did not allege that a contract existed or allege any other element of that claim, that the claims of “Breach of Constitution” and “Breach of Worker Protection” were not recognized causes of action under Alabama law, and that Fan had not met the requirements of notice pleading under Rule 8(a), Ala. R. Civ. P. On March 13, 2012, the trial court entered an order stating:

“On September 9, 2011, after a hearing on the Defendant’s Motion to Dismiss, this court entered an Order for [Fan] to file an amended complaint. On September 26, 2011, [Fan] did file an amended complaint. However, [Fan] failed to timely serve [Qualitest] with the Amended Complaint. On October 5, 2011, [Qualitest] filed a Renewed Motion to Dismiss pursuant to Rules 8 and 12(b)(6)[, Ala. R. Civ. P.].
“After reviewing the amended complaint the Court is of the opinion that it is insufficient; therefore, it is hereby ORDERED, ADJUDGED and DECREED that this action is DISMISSED WITH PREJUDICE, costs to be taxed as paid.”

(Capitalization in original.) On March 26, 2012, Fan filed his notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction, and that court subsequently transferred the appeal back to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, Fan argues that the trial court erred in dismissing his complaint. “The standard of review upon appeal from a trial court’s order dismissing a complaint for failure to state a claim upon which relief may be granted is whether, when the allegations of the complaint are viewed most strongly in his favor, the plaintiff could prove any set of circumstances which would entitle him to relief.” Martin v. Harrelson, 532 So.2d 1256, 1256 (Ala.Civ.App.1988). Rule 8(a), Ala. R. Civ. P., provides, in pertinent part: “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.” “Alabama is a ‘notice pleading’ state.” Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.1986). Therefore, even if a complaint is inartfully drawn, so long as the complaint places the defendants on notice of the claim, the complaint is sufficient. Id.

In the present case, Fan’s complaint is sufficient to place Qualitest on notice of the following claims: (1) a claim for overtime benefits under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., (2) a retaliatory-discharge claim for exercising his rights under the Fair Labor Standards Act, and (8) a claim alleging discrimination based on his national origin. Further, Fan’s allegations, “viewed most strongly in his favor ... would entitle him to relief.” Martin, 532 So.2d at 1256.

Fan also claims his employment was terminated for his having filed a workers’ compensation claim. Although “[a] complaint should not be dismissed for failure to state a claim unless it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief under some cognizable theory of law,” Morton v. Prescott, 564 So.2d 913, 916 (Ala.1990), a trial court should seek to determine whether the allegation in the complaint, and the reasonable inferences arising therefrom, give rise to a cognizable legal claim. Morton is illustrative here.

The plaintiff in Morton, Allen F. Morton, sued Dr. Cecil H. Prescott, alleging that Dr. Prescott, who was a psychiatrist, had negligently discharged a patient named Pendarvis Hunter, who then assaulted Morton. Id. at 914. The trial court dismissed Morton’s complaint based on Dr. Prescott’s arguments that the facts alleged in Morton’s complaint had failed to establish that Dr. Prescott had owed Morton a duty or, assuming that such a duty existed, that Dr. Prescott had breached that duty. Id. In its analysis affirming the dismissal of Morton’s complaint, our supreme court first explained that “a plaintiff must plead and prove that the [psychiatrist] knew or should have known that an aggressor might be a danger to a specific individual.” Id. at 916. The court then determined that Morton’s complaint had failed to meet that standard. Id. The supreme court described Morton’s complaint as follows:

“A review of the complaint supports [Dr.] Prescott’s argument that Morton fails to allege that Hunter had made any specific threat to harm Morton. At most the complaint states that Hunter was a violent, dangerous person who posed a danger to the citizens of the community, including Morton. Even assuming that all of these facts and conclusions are true, the allegations are still insufficient to show a legal duty on the part of [Dr.] Prescott to protect Morton from specific harm.”

Id. at 915.

Similarly, Fan’s factual allegations, which he first stated in his original complaint and subsequently restated in his “Reply,” indicate that, in April 2010, Fan had been sick, that Fan had seen two physicians, that those physicians had given Fan “doctor’s notes” excusing Fan from work from April 12, 2010, to April 16, 2010, that Fan had provided the doctors’ notes to Qualitest, and that Qualitest had terminated his employment. Later, in the section of his “Reply” in which Fan provided case comparisons, Fan stated:

“[Fan] was employed by Qualitest Pharmaceutical. [Fan] was sick and miss[ed] a substantial period of work. When [Fan] sought workers’ compensation benefits (to have given [Qualitest] the doctor’s note), [Fan] was fired. [Fan] sued Qualitest for wrongful discharge.”

Although Fan states in that paragraph that he “sought workers’ compensation benefits,” he qualifies that statement when he adds, in a parenthetical, that he gave Qualitest the doctors’ notes. Fan alleges only that he missed work because he was sick, that he provided Qualitest notes excusing his absence from work, and that he was terminated from his employment. Fan does not allege that he was injured at work or that he suffers from an occupational disease; from all that appears in his pleadings, Fan’s illness was totally unrelated to his work. See Alabama Power Co. v. Aldridge, 854 So.2d 554, 571 (Ala.2002) (indicating that to establish a prima facie case of retaliatory discharge, a plaintiff must show, among other things, a work-related injury). Furthermore, Fan does not truly allege that he filed a workers’ compensation claim; the filing of such a claim is an essential element of a retaliatory-discharge claim. See Thomas v. Bakers Indus., a Div. of Sonoco Prod. Co., 737 So.2d 469, 471 (Ala.Civ.App.1999). Thus, the complaint and the “Reply” fail in all respects to plead any set of facts under which Fan could possibly prevail on a retaliatory-discharge claim based on his having filed a workers’ compensation claim against Qualitest. Although this state permits notice pleading, it does not permit pleadings that lack any factual basis upon which a claim could rest to state a cause of action. Thus, we affirm the trial court’s judgment to the extent that it dismissed Fan’s claim alleging retaliation for his having filed a complaint for workers’ compensation benefits.

Finally, Fan’s complaint includes a claim alleging the tort of outrage. He based this claim on a work dispute and the termination of his employment. This court has held, however, that causing an employee to lose his or her job is insufficient to support a tort-of-outrage claim. Thomas v. Williams, 21 So.3d 1234, 1240 (Ala.Civ.App.2008). With regard to the work dispute, Fan has failed to allege any conduct that would rise to the level necessary to support a tort-of-outrage claim. See id. (“Assuming Thomas’s allegations to be true and capable of being supported by the evidence, we cannot say that Williams’s conduct rose to the level at which our courts have allowed recovery for the tort of outrage, i.e., cases involving misconduct in a burial, sexual harassment or assault, or barbaric methods of coercing an insurance settlement.”).

Based on the foregoing, we affirm the trial court’s judgment dismissing Fan’s complaint with regard to his tort-of-outrage claim and his retaliatory-discharge claim based on his having filed a workers’ compensation claim, which was titled as a breach-of-contraet claim. We reverse the judgment in all other respects, and we remand the cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in part and dissents in part, with writing, which THOMPSON, P.J., joins.

MOORE, Judge,

concurring in part and dissenting in part.

I respectfully dissent from that part of the main opinion affirming the trial court’s dismissal of the first count in Chong Fan’s complaint. Fan clearly stated in his complaint that his employment had been terminated for seeking workers’ compensation benefits. Section 25-5-11.1, Ala.Code 1975, provides that “[n]o employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter....” The term “action” means more than the filing of a legal complaint, extending to the making of any claim for workers’ compensation benefits. McClain v. Birmingham Coca-Cola Bottling Co., 578 So.2d 1299 (Ala.1991). The claim does not have to be a meritorious claim based on a covered personal injury. Hutto v. Farmers Exch. Bank, 735 So.2d 1233, 1235 n. 1 (Ala.Civ.App.1999). Hence, Fan has stated a cause of action under § 25-5-11.1 despite his failure to plead that he injured himself at work and despite his failure to plead that he had “filed” a claim for workers’ compensation benefits. I believe that his complaint was sufficient to place Quali-test Pharmaceuticals on notice that Fan was claiming a violation of § 25-5-11.1 and that his allegations, when “viewed most strongly in his favor ... would entitle him to relief.” Martin v. Harrelson, 532 So.2d 1256, 1256 (Ala.Civ.App.1988). I concur in the remainder of the opinion.

THOMPSON, P.J., concurs.

      . Although the heading was "Breach of Contract,” the substance of his claim was actually a retaliatory-discharge claim based on his allegation that he had been discharged for having filed a workers’ compensation claim.