text:
    Timothy B. SHARP a/k/a Timothy B. Sharpe a/k/a Timothy Sharp a/k/a Timothy R. Sharp Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-02020-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2014.
    Timothy B. Sharp, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Timothy Sharp was granted an evi-dentiary hearing on his successive post-conviction relief (PCR) motion because his sexual battery and fondling victim filed an affidavit recanting her trial testimony. But after reviewing the affidavits and hearing from the victim, the judge found the victim’s affidavit and PCR hearing testimony were not credible. So the judge denied Sharp’s request for a new trial. After review, we cannot say the judge’s determination was clearly erroneous. We thus affirm.

Procedural History

¶2. In 2001, Sharp was convicted of one count of sexual battery and one count of fondling. Sharp was sentenced to thirty years for the sexual-battery conviction, with ten years suspended. He also received five years for the fondling conviction, to run concurrently with the twenty years he had to serve in Mississippi Department of Corrections (MDOC) custody. His convictions and sentences were affirmed by this court on direct appeal in 2004. See Sharp v. State, 862 So.2d 576, 581-82 (¶ 21) (Miss.Ct.App.2004). Sharp later filed a PCR motion, arguing he received ineffective assistance of counsel. The trial court dismissed his motion, and this court affirmed. See Sharp v. State, 979 So.2d 713, 716 (¶ 10) (Miss.Ct.App.2007). Sharp then filed a motion for leave to proceed in the trial court on a claim of newly discovered evidence, which the Mississippi Supreme Court granted in 2013. And Sharp filed a second PCR motion based on the victim’s recanted testimony. After an evidentiary hearing, the circuit judge denied Sharp’s most recent PCR motion. Sharp appealed.

Recanted Testimony

¶ 3. The basis of Sharp’s present PCR motion was that his victim, A.S., recanted her trial testimony. A.S., who was Sharp’s female relative, was ten years of age at the time of the trial. A.S. testified about “two episodes of sexual contact with Sharp: one of which contained all of the necessary elements of the crime of sexual battery and the other of which contained all the necessary elements of a charge of fondling or gratification of lust.” Sharp, 862 So.2d at 578 (¶ 6).

¶ 4. On September 7, 2012, A.S. signed an affidavit, recanting her trial testimony. She claimed that in 2000 she testified falsely against Sharp because she “was scared and didn’t know what to do about [her] family.” She insisted Sharp “did not commit any sexual crime against [her]” and she wanted “him to be released from prison.” A.S. apologized for putting Sharp “through this” and claimed she did so because she “was only 10 at the time and [Sharp] got drunk often and would hit [her] mom and that scared [her].” She maintained he was serving prison time “for something he didn’t do.”

¶ 5. A few months later, on December 12, 2012, A.S. executed yet another affidavit. In this one she recanted her September 2012 affidavit. As she put it, “I wrote a false affidavit [on] 9/7/12[,] stating that [Sharp] never sexually abused me because my brother presured [sic] me to do this.” Her brother’s supposed motivation was that he wanted his father to “be released so he could know him.” A.S. claimed she was indeed “sexually abused.”

¶ 6. Based on A.S.’s September 2012 affidavit, Sharp filed a PCR motion citing newly discovered evidence. At the eviden-tiary hearing, A.S., who was then twenty-two years of age, came up with another version of what happened. She mentioned several times that Sharp never penetrated her with his penis. This was contrary to her trial testimony. A.S. explained she testified differently at trial because she was told Sharp would get out of jail quickly if she did not mention him penetrating her with his penis. And she did not want Sharp to be released and hurt her mother again.

¶ 7. But during the evidentiary hearing when asked if Sharp penetrated her with his fingers, A.S. testified “[m]aybe there were some fingers penetrated” and “the penetration could have occurred from fingers.” A.S. agreed the scarring to her vagina was from the fondling, but things were “blurry” because she “blocked so much out.” When confronted about the September 2012 recanting affidavit, A.S. said it was not true because Sharp did in fact fondle her. Specifically, A.S. testified at the hearing that Sharp rubbed his penis on her buttocks and vagina one morning. But A.S. believed Sharp had served enough time and should be released so she and her brother could have a relationship with him.

¶ 8. A.S.’s mother and brother also testified. A.S.’s mother, Carla Sharp, testified that A.S. told her when she was twelve that Sharp never penetrated her with his penis. But Carla was too afraid to come forward because she feared DHS would take away her daughter again. According to Carla,- about a year and a half before the evidentiary hearing, A.S. reiterated to her, with her younger brother also present, that Sharp never penetrated her with his penis. A.S.’s brother also testified that A.S. told him and their mother that Sharp never penetrated her with his penis. He also admitted he wanted a relationship with his father.

¶ 9. After the hearing, the circuit judge denied Sharp’s PCR motion. He noted there was medical testimony to support A.S.’s trial testimony. And he found her hearing testimony and conflicting affidavits were confusing and differed substantially, so he declined to rely on any of her post-trial explanations. In short, because the circuit judge, did not find any of AS.’s recanted, post-trial testimony credible, he denied Sharp’s PCR motion.

Discussion

¶ 10. On appeal, Sharp claims A.S.’s recanted testimony entitles him to relief. But “experience teaches all courts a healthy skepticism toward recanted testimony.” Woods v. State, 141 So.3d 14, 16 (¶ 10) (Miss.Ct.App.2014) (quoting Yarborough v. State, 514 So.2d 1215, 1220 (Miss.1987)). “The fact that a witness changes [her] testimony after the trial is not alone an adequate ground for granting a new trial.” Id. (quoting Russell v. State, 849 So.2d 95, 107 (¶ 15) (Miss.2003)). Recanted testimony is, however, an adequate ground to grant a petitioner an evidentiary hearing, the purpose of which is for the trial judge to “better evaluate the testimony of the recanting witness.” Id. at 16-17 (¶ 11). And the trial judge, sitting as the trier of fact, is tasked with resolving all credibility issues that arise in a PCR hearing. Id. at 17 (¶ 11) (citing Esco v. State, 102 So.3d 1209, 1214 (¶13) (Miss.Ct.App.2012)); see also Turner v. State, 771 So.2d 973, 976 (¶ 8) (Miss.Ct.App.2000) (because a recanting witness is a self-confessed liar, the trial judge must resolve whether the witness was lying then at trial or lying now at the PCR hearing).

¶ 11. The circuit judge was to resolve when, if ever, A.S. had been truthful about the sexual-abuse allegations. And after sifting the testimony and recantations, the judge determined A.S.’s trial testimony was more credible than her PCR testimony and affidavits. He found AS.’s various claimed motivations suspect. Years after trial, she suggested she said Sharp penetrated her because she feared he would “get back out.” On another occasion, A.S. maintained she wanted her brother to get to know Sharp. And at one point, her emphasis was that she wanted Sharp released because she thought he had served enough time and would not hurt any other little girls.

¶ 12. The circuit judge viewed all of A.S.’s recanted testimony as highly suspect, which was his prerogative to do. Indeed, it is the “right and duty of the court to deny a new trial where it is not satisfied that the recanting testimony is true.” Woods, 141 So.3d at 17 (¶ 13) (quoting Howell v. State, 989 So.2d 372, 384 (¶ 33) (Miss.2008)). Determinations about recanted testimony and whether a guilty verdict should be set aside are within the judge’s sound discretion. And this court “should not” tamper with such decisions unless they are “clearly erroneous.” Id. (citing Peeples v. State, 218 So.2d 436, 439 (Miss.1969)). After review, we cannot say the judge’s credibility assessments were clearly erroneous. Because the judge supported his decision with substantial evidence, we affirm the denial of Sharp’s PCR motion.

¶ 13. THE JUDGMENT OF THE ITAWAMBA COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ITAWAM-BA COUNTY.

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

      . See Miss.Code Ann. § 99-39-27(9) (Supp. 2014).

      . This court in its opinion affirming Sharp's conviction did not specify exactly what A.S. said at trial, and Sharp did not provide a trial transcript in his present PCR appeal. We did previously note that before trial, when the child was being interviewed by the Department of Human Services (DHS), she “reported one incident where she contended Sharp had penetrated her vagina with his penis.” She also reported an incident when she awoke to discover Sharp "rubbing his penis against her buttocks area.” Sharp, 862 So.2d at 577-78 (¶ 2). At the PCR evidentiary hearing, she testified her trial testimony that Sharp penetrated her with his penis was not true.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Landress CHEEKS, Cleotha Williams, L.C. Slaughter, Shoney Harris and The Canton Utilities Commission, Appellants, v. London SMITH, Rodriquez Brown, Eric Gilkey, Andrew Grant, Olivia Harrell, Reuben Myers, Les Penn, Daphne Sims, Arnel Bolden, Mayor and Board of Aldermen of the City of Canton, Mississippi, Appellees.
    No. 2013-CA-01849-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2014.

      Ellis Turnage, Cleveland, attorney for appellant.
    Kimberly Celeste Banks, attorney for appellee.
    Before IRVING, P.J., ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. After the Board of Aldermen for the City of Canton, Mississippi, voted to remove four members of the Canton Utilities Commission, the ousted commissioners took two legal actions in the Madison County Circuit Court. They filed a bill of exceptions, which is the statutory procedure to appeal a municipal board’s decision (Action 1). And they filed a separate complaint against the city, the board, and the mayor for injunctive relief from the very same board decision they had just appealed (Action 2).

¶ 2. But the Mississippi Supreme Court has been crystal clear that parties aggrieved by a municipal board’s decision cannot go outside the statutory bill-of-exceptions procedure and seek independent injunctive relief. Instead, the bill of exceptions provides the “exclusive remedy.” Following this directive, the circuit court dismissed Action 2 — the complaint for in-junctive relief — on the pleadings.

¶ 3. This is the appeal of the dismissal of Action 2 only. This is not an appeal of Action 1, which, to this court’s knowledge, is still pending in circuit court. So the only question before us is whether the circuit court properly dismissed Action 2. And on de novo review, we find the circuit court was eminently correct to order dismissal.

¶ 4. The ex-commissioners cite Cook v. Board of Supervisors of Lowndes County for the proposition that they are entitled to an original action in circuit court because they were denied a meaningful due-process hearing before the board. But Cook dealt with only one action, which the supreme court noted it “could simply treat ... as an appeal.” Cook did not deal with the scenario of two separate, simultaneously filed actions — (1) an appeal of a board action via a bill of exceptions and (2) an original action for injunctive relief from the same board action. And the supreme court opinions that have dealt with two actions have affirmed the dismissal of the separate action for injunctive relief, based on an “adequate remedy at law” provided by the bill-of-exceptions statute.

¶ 5. For this reason,, we too affirm the circuit court’s dismissal of the ex-commissioners’ request for injunctive relief in Action 2.

¶ 6. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . The four removed commissioners are Lan-dress Cheeks, Cleotha Williams, L.C. Slaughter, and Shoney Harris. For simplicity's sake, we refer to these four collectively as the ' ‘ex-commissioners.

      . See Miss.Code Ann. § 11-51-75 (Rev.2012).

      . The ex-commissioners had also sued the board members individually, but later agreed to dismiss the individual board members with prejudice.

      . A-1 Pallet Co. v. City of Jackson, 40 So.3d 563, 568-69 (¶¶ 18-22) (Miss.2010); Falco Lime, Inc. v. Mayor & Aldermen of Vicksburg, 836 So.2d 711, 715-16 (¶ 16) (Miss.2002); Benedict v. City of Hattiesburg, 693 So.2d 377, 380-81 (Miss.1997); Moore v. Sanders, 558 So.2d 1383, 1385 (Miss.1990); Highland Vill. Land Co. v. City of Jackson, 243 Miss. 34, 44-45, 137 So.2d 549, 552 (1962).

      . Falco Lime, Inc., 836 So.2d at 717 (¶ 24) (emphasis added) (quoting Benedict, 693 So.2d at 381).

      . Included in the “exclusive remedy” available in an appeal via a bill of exceptions is the delay of the implementation of the challenged board action until the circuit court makes its ruling. Falco Lime, Inc., 836 So.2d at 716-17 (¶ 20) (citing M.R.C.P. 62) (noting the "correct way” to "delay the implementation of a municipality's order pending the circuit court's ruling on the bill of exceptions .... is by a stay under Rule 62”). So while the circuit court dismissed Action 2 — the complaint for injunctive relief — the court nevertheless considered in Action 1 whether to grant a stay under Rule 62, pending its ruling in that case.

      .For this reason, we do not address any of the other issues raised in the ex-commissioners' brief, as those issues belong in Action 1, which is not before this court on appeal. To be specific, the denial of a stay pending the resolution of the appeal of the board's decision, the validity of the board’s decision, and the circuit court’s standard of review of the board's decision are issues that pertain to the appeal of the board’s decision via the bill of exceptions (Action 1) and, thus, are outside the scope of this appeal (Action 2).

      . All dismissals of actions on the pleadings are reviewed de novo. Tubwell v. Grant, 760 So.2d 687, 690 (¶ 11) (Miss.2000).

      . See Cook v. Bd.. of Supervisors of Lowndes Cnty., 571 So.2d 932, 934 (Miss.1990).

      . Id.

      . A-1 Pallet Co., 40 So.3d at 569 (¶¶ 21-22) (relying on section 11-51-75); Moore, 558 So.2d at 1385 (same).


text:
    Jeremy William RADAU a/k/a Jeremy Radau a/k/a Jeremy W. Radau, Appellant, v. STATE of Mississippi, Appellee.
    No. 2013-KA-01904-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2014.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.

      Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Jeremy Radau was convicted of capital murder after beating a seventy-four-year-old man to death with a baseball bat. While Radau admits killing the elderly man, he disputes he intended to commit a robbery — the underlying felony that elevated the crime to capital murder. But Radau’s girlfriend testified robbery was the motive. And authorities recovered the stolen cash and the baseball bat Radau lifted from the victim’s apartment after killing him with it. After review, we find sufficient evidence supports the capital-murder conviction, and the verdict was not against the weight of the evidence. We affirm.

Facts and Procedural History

¶2. Around 7:30 a.m. on September 19, 2009, Radau and his girlfriend, Megan Kinberger, went to Charles Pickell’s apartment in Biloxi. The couple had been on a binge all night — with Radau drinking heavily and Kinberger drinking and taking Xanax. According to Kinberger, they intended to rob Picked. And Megan had also hoped to get some Xanax pills from him.

¶ 3. Pickell’s neighbor, Bernard Brown, heard the couple pounding on Pickell’s door. When Picked answered the door, Radau told Picked he was friends with his daughter and was there to see if he needed food or money. Picked let Radau and Kinberger in the apartment. Brown was suspicious of the couple, so he called Picked and asked him if he knew them. Pic-kell said he did and that he was fine. But Brown thought the encounter was unusual. So when the couple momentarily left to go to their car before returning to Picked’s apartment, Brown videoed the two. Brown then left for choir practice.

¶ 4. Once inside the apartment, Radau claimed the three began negotiating a price for Kinberger’s cleaning services. Apparently, Kinberger had previously cleaned Pickell’s apartment and bought pills from Picked. Radau testified that he asked Picked how much money he had, and Picked gave him $140 in cash. Radau claimed he told Picked for an extra $100, Picked could have sex with Kinberger. Picked supposedly said he did not have any more money, but he offered to swap Xanax for sex with the girl. Radau claimed Kinberger was okay with this arrangement, but he was not.

¶ 5. The three then began to argue, and Kinberger testified that at some point she left the living room and began rummaging through Picked’s bedroom drawers, looking for something to steal. After she used the bathroom, Kinberger returned to the living room, where she discovered Radau beating Picked “pretty hard” with a baseball bat. Kinberger saw Radau with money in his hand and noticed one of Pickell’s pants pockets was inside out.

¶ 6. Radau’s story was a bit different. He claimed Picked tried to hit him with the baseball bat, which Radau wrestled from him. Radau then purportedly hit Picked with the bat, knocking him into his recliner. Radau testified that “[w]hen [Picked] tried to get back up, I hit him again[.] ... And he tried to get back up again after the third time, so I just hit him again, but this time I just blacked out from there.” As Radau put it, “I just kept hitting him until he stopped moving so he wouldn’t get back up.” Radau claimed Pickell had already given him cash but it was not enough. According to Radau, the situation had “to do with money, pills, [and] prostitution” — not a robbery.

¶7. Kinberger suggested they call for help since Pickell was still alive and making noises. But Radau said they should flee. Radau took Pickell’s baseball bat because he knew it would be evidence. Kinberger testified that Radau counted the stolen cash in the parking lot. The couple then drove to the beach, rented a room at the Motel Six in Gulfport, then snacked on Krispy Kreme donuts.

¶ 8. Later that day, Brown returned from choir practice. Pickell’s sister had been unable to reach Pickell by phone, so she called Brown to check on him. Brown noticed the apartment door was cracked open, which was unusual. After knocking and not getting an answer, he walked in and found Pickell beaten and covered in blood in his recliner. Pickell was not breathing, and Brown called 911.

¶ 9. The next morning, Radau and Kin-berger went to Kinberger’s mother’s house, where they were arrested.

¶ 10. On September 13, 2010, Radau was indicted for capital murder, with robbery as the underlying felony. A jury found him guilty, and the judge sentenced him to life imprisonment. Radau appealed.

Discussion

I. Sufficiency of the Evidence

¶ 11. While Radau admits he killed Pic-kell, he argues the evidence was insufficient to show the killing occurred during a robbery. We disagree.

¶ 12. In considering the legal sufficiency of evidence, we consider all evidence in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). And “[credible evidence consistent with guilt must be accepted as true.” Davis v. State, 130 So.3d 1141, 1150 (¶ 37) (Miss.Ct.App.2013). “We are instructed to give the State the benefit of all favorable inferences reasonably drawn from the evidence.” Id. (citing Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss.Ct.App.2009)). Weight and credibility are matters for the jury to resolve. Id. “Reversal is proper when reasonable and fair-minded jurors could only find the accused not guilty.” Id. Our task is to decide if a reasonable juror could not possibly find the defendant guilty based on the evidence presented. Id.

¶ 13. Our review shows Radau’s jury was properly instructed on capital murder during a robbery. Capital murder is the “killing of a human being without the authority of law by any means or in any manner ... [w]hen done with or ■without any design to effect death, by any person engaged in the commission of the crime of ... robbery[.]” Miss.Code Ann. § 97-3-19(2)(e) (Rev.2014).

¶ 14. To establish robbery, the State had to prove beyond a reasonable doubt that Radau: “(1) feloniously took (2) the personal property of another (3) in his presence or from his person and (4) against his will, (5) by violence to his person or putting such person in fear of some immediate injury to his person.” Batiste v. State, 121 So.3d 808, 842 (¶ 63) (Miss.2013). “The element of felonious intent may be shown by the facts surrounding the crime.” Id. at (¶ 64). When a person is found with a “dead victim’s personal property, the jury reasonably may infer that the defendant had the requisite intent to rob.” Id.

¶ 15. Here, Kinberger testified that she and Radau went to Pickell’s house to rob him. They backed their car into a parking space before approaching the apartment. And once inside, Kinberger looked for something to steal. When she reappeared in the living room, she saw Radau with cash in hand, as he beat Pickell to death with a bat. She also noticed Pickell’s pants pocket was inside-out. Kinberger recalled Radau counting the stolen cash. And law enforcement recovered cash from Radau the next morning. They also found the stolen blood-stained bat. Considering this evidence in the light most favorable to the State, the underlying robbery was clearly proven.

II. Weight of the Evidence

¶ 16. Radau also insists the verdict was against the overwhelming weight of the evidence. His weight-based challenge is identical to his attack on the sufficiency of the evidence. When a weight-of-the-evidence argument is made, we weigh the evidence “in the light most favorable to the verdict.” Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). We will disturb a verdict only in those rare cases where “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. For the same reasons we found the State sufficiently proved robbery, we likewise find the robbery-based capital-murder guilty verdict was by no means against the weight of the evidence. We affirm.

¶ 17. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Radau testified that they did not intend to rob him but only went there to get some Xanax pills.

      . Radau testified that when leaving the apartment he hid the baseball bat in his pants. Authorities retrieved the baseball bat from Radau’s car the next morning. Blood on the bat matched Pickell’s DNA. Blood on Radau’s underwear also matched Pickell's DNA.

      . Kinberger testified Radau had a hundred and some twenties. $342 in cash was recovered from Radau, which was admitted into evidence.

      . Several photographs of the scene were admitted into evidence. One showed Pickell’s bloody body in the recliner. There was blood spatter on the walls, blinds, and ceiling. The cause of death was determined to be massive head injury from multiple blows to the head, laceration of the scalp, and brain damage.

      .Jury Instruction S-2A states:
      If you find from the evidence ... beyond a reasonable doubt that: ... [Radau] did ... willfully, unlawfully, feloniously and with or without deliberate design, ... kill and murder [Pickell], a human being, without authority of law, ... while in the commission of the crime and felony of [r]obbery as defined by [s]ection 97-3-73, ... in that [Radau] did ... willfully, unlawfully and feloniously, with intent to permanently deprive the owner thereof, take, steal, and carry away the personal property of [Pic-kell], from the presence and against the will of the said [Pickell] by violence to his person, then you shall find [Radau] guilty of capital Aurder.


author: GRIFFIS, P.J.,

text:
    Craig Steven BENTRUP a/k/a Craig Bentrup, Appellant, v. Christopher EPPS, Commissioner, Mississippi Department of Corrections, Appellee.
    No. 2012-CP-02032-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2014.

      Craig Steve Bentrup, appellant, pro se.
    Office of the Attorney General by Anthony Louis Schmidt Jr., James M. Norris, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Craig Steven Bentrup filed five grievances with the Administrative Remedy Program (ARP) of the Mississippi Department of Corrections (MDOC). Unsatisfied with the decisions, he appealed to the Rankin County Circuit Court. The circuit court found that Bentrup exhausted his administrative remedies on three claims, reviewed those claims, and affirmed the MDOC actions. The circuit court denied the other two claims because Bentrup did not exhaust all administrative remedies and dismissed them as premature. We find no error and affirm.

FACTS

¶ 2. Bentrup is an inmate incarcerated with MDOC. His five grievances were labeled as ARP I through V. The circuit court affirmed MDOC’s decisions as to ARP I, II, and V. In ARP I, Bentrup alleged that MDOC took his property. In ARP II, Bentrup alleged concerns over MDOC’s haircut procedures. In ARP V, Bentrup asked that a Rule Violation Report (RVR) be expunged from his record.

¶ 3. The circuit court did not review MDOC’s decisions as to ARP III and IV on the grounds that Bentrup had not exhausted his administrative remedies. In ARP III, Bentrup alleged discrimination. In ARP IV, Bentrup claimed that MDOC deprived him of his personal property.

STANDARD OF REVIEW

¶4. This Court applies the same standard of review that the lower courts are bound to follow when considering a decision by a chancery or circuit court regarding an agency action, in this case the MDOC. Clay v. Epps, 19 So.3d 743, 745 (¶ 7) (Miss.Ct.App.2008). We will review the appeal to determine whether the administrative agency’s order “(1) was unsupported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power or the administrative agency to make, or (4) violated some statutory or constitutional right of the aggrieved party.” Id. (citing Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007)).

DISCUSSION

I. ARP I

¶ 5. In ARP I, Bentrup argued that he should be compensated for the loss of his property — legal materials that went missing while being transported from Harrison County to Central Mississippi Correctional Facility (CMCF). When MDOC received Bentrup’s complaint, MDOC began an investigation and asked Bentrup to provide sufficient evidence to substantiate his lost property allegations. Bentrup told MDOC that the property slip was in his permanent case file.

¶ 6. Bentrup also provided MDOC his testimony and the statements of other inmates. Bentrup claimed that he was told by MDOC staff that they knew the location of his legal documents. According to the First Step Response Form, MDOC’s staff informed Bentrup that “someone may bring you -to ID to get the property.”

¶ 7. Bentrup cites Johnson v. King, 85 So.3d 307, 308 (¶ 1) (Miss.Ct.App.2012), to claim that the loss of his legal materials is analogous to the confiscation of an inmate’s drinking mugs. However, in Johnson, it was not necessary for the plaintiff to prove that hé possessed the drinking mug because MDOC confiscated all drinking mugs. Id. at 309 (¶ 2). Here, MDOC did not confiscate Bentrup’s property. As a result, it was necessary for Bentrup to establish that he possessed the particular legal documents that he claimed were lost.

¶ 8. MDOC determined that Bentrup could not physically produce a property slip showing all of the property that he claimed was missing. Instead, MDOC replaced two of the several documents that Bentrup claimed were missing. We find that MDOC’s decision to replace some but not all of Bentrup’s alleged lost property was based on substantial evidence. The decision was not arbitrary and capricious, and was within the scope of MDOC’s authority. Accordingly, we find no merit to this issue.

II. ARP II

¶ 9. In ARP II, Bentrup complained to MDOC about the staff not following proper haircut procedures. Bentrup took statements from inmates and requested that pictures taken post-haircuts be considered by the MDOC as evidence of unsanitary haircut procedures. MDOC decided to close Bentrup’s claim by ensuring him that certain precautions would be taken to correct the issue.

¶ 10. Bentrup admitted that he did not suffer an injury from a haircut. Bentrup claimed that future blood work could show that he contracted a disease by virtue of a prior unsanitary haircut. Thus, Bentrup complains of an -injury that he believes came from the haircut, but he cannot show an injury.

¶ 11. In Crawford Commercial Constructors, Inc. v. Marine Industrial Residential Insulation, Inc., 437 So.2d 15, 16 (Miss.1983), the court held that the injury must have existed at the time the action was filed.

Under our authorities there must be a present, existent actionable title or interest which must be completed at the time the cause of action is filed. A mere inchoate right is not sufficient and neither is a prospective danger of injury. In Georgia Pac. Ry. Co. v. Baird, 76 Miss. 521, 24 So. 195, 196 (1898), this Court addressed the issue in the following words, “It is certainly an undisputa-ble and invariable rule of law that a right of action must be complete when an action therefor is commenced.” See also Brown Brothers & Co. v. The Bank of Mississippi 81 Miss. 454, 459 (1856), wherein it is stated, “we consider it to be the well-settled, general -rule, that the facts which constitute the ground of a suit must exist at the time the suit is instituted.”

Id. (internal citations omitted). Therefore, because Bentrup admittedly suffered no injury at the time that he filed his complaint, we find no merit to this issue.

III. ARP III

¶ 12. In ARP III, Bentrup complained that MDOC staff discriminated against him. The circuit court held that Bentrup had not exhausted his administrative remedies as to this claim. However, we find that Bentrup had indeed exhausted his administrative remedies. The record includes MDOC’s final decision, dated September 20, 2012, which was given to Bentrup on October 9, 2012. Because we find that Bentrup exhausted his administrative remedies, we will review Bentrup’s discrimination claim.

¶ 18. Bentrup alleges that the prison staff told “the gangs that it’s ok to attack an old, white, peon, writ-writer and take his property and/or place contraband on him.” Specifically, he complains of an incident where a cell phone was “planted” on him. Next, he alleged that he was coerced to “take the rap for a black gang member concerning the possession of marijuana.” Then, he complains of being assaulted by inmates early one morning. Lastly, Bentrup believed that the prison staff made him a “target.”

¶ 14. Bentrup did not present any other evidence or case authority to support his claim of discrimination. .In Mack v. State, 943 So.2d 73, 77 (¶ 12) (Miss.Ct.App.2006), an inmate alleged that the Mississippi Parole Board denied his parol because of his race. However, the inmate “provide[d] no specific examples to show that his treatment [was] not equal to the ... treatment received by other inmates. Mack fail[ed] to point out even one incident of a similarly situated inmate receiving the parole that has been denied to Mack.” Id. Also, in Hopson v. Mississippi State Parole Board, 976 So.2d 973, 976-77 (¶ 12) (Miss.Ct.App.2008), this Court held, “[w]hile race is a suspect class entitled to strict scrutiny, [the inmate] has failed to show evidence either in his petition or in the record that established] that he suffered any equal protection violation by the application of the statute based on a suspect classification.”

¶ 15. MDOC concluded that Bentrup failed to show evidence to support the allegations of his complaint, and there is no other evidence in the record that would establish that Bentrup suffered any equal protection violation or unlawful discrimination. We find no merit to this issue.

IV. ARP IV

¶ 16. In ARP IV, Bentrup claims that MDOC deprived him of his allowable personal property. Bentrup provided MDOC with a list of requested items. The circuit court held that Bentrup had not exhausted his administrative remedies and dismissed the claim as premature.

¶ 17. After the circuit court’s ruling, on April 4, 2013, MDOC gave Bentrup his list of requested items. As a result, this claim is now moot. “A case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit or detriment to defendant.” Fails v. Jefferson Davis Cnty. Pub. Sch. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss.2012). Because Bentrup received his list of request items, a judgment on the merits would be of no practical benefit or detriment to Bentrup.

V. ARPV

¶ 18. In ARP V, Bentrup claims that he received an unwarranted RVR on his record after a fight. However, MDOC never processed an RVR on Bentrup’s record concerning that incident. MDOC only-made a note on Bentrup’s file of the event as an “extraordinary occurrence.” As a result, based on the authority cited above, we find this issue to be moot. Since MDOC never processed the RVR, there was no RVR on Bentrup’s record to expunge.

¶ 19. Finding no reversible error in the circuit court’s judgment, we affirm.

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

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


text:
    James HEMPHILL, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY and Delta Distributing Company of Greenwood, Appellees.
    No. 2014-CC-00515-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2014.

      James Hemphill, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellees.
    Before IRVING, P.J., ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. James Hemphill’s employer discharged him for having three consecutive absences without giving notice in violation of the employer’s work policy. Hemphill sought unemployment benefits, claiming he did give notice. But the Mississippi Department of Employment Security. (MDES) Board of Review found the employer’s testimony more credible, and based on its finding that Hemphill’s failure to give notice was misconduct, it denied benefits. Because it was within the Board’s authority to make this credibility determination, we affirm.

Facts and Procedural History

¶2. Hemphill was employed by Delta Distributing Company of Greenwood as a loader from August 18, 2010, to May 8, 2013. Delta’s attendance policy required employees to be discharged if they fail to show up or call into work for three consecutive days. All employees are informed of this policy when hired.

¶ 3. Hemphill was incarcerated from May 3 to May 9. Because Hemphill had three consecutive absences without notification, Delta discharged him on May 8, 2013.

¶ 4. Hemphill then filed for unemployment benefits. A claims examiner interviewed Hemphill and James Hargrove, the owner and vice president of Delta. The claims examiner determined Hemphill was disqualified from receiving benefits because he was discharged for misconduct connected with work.

¶ 5. Hemphill appealed to the administrative law judge (ALJ), who held a telephonic hearing. Both Hemphill and Hargrove testified. Hemphill claimed he did contact his employer while he was jailed. But Hargrove testified that Hemphill did not contact Delta until after he was released from jail and his position had already been filled. The ALJ found Hargrove’s testimony more credible and determined Hemphill failed to contact Delta while in jail. The ALJ also believed Hargrove’s testimony that Delta’s three-day no call/no show policy was designed to protect the company’s efficiency interests and that the policy had been consistency enforced with other employees in the past. Thus, the ALJ determined Hemphill was discharged for misconduct.

¶ 6. Hemphill appealed to the Board of Review, which adopted the ALJ’s findings of fact and opinion and affirmed the denial of benefits. Hemphill then appealed to the circuit court, which also affirmed. Hemp-hill now appeals to this court.

Discussion

¶ 7. In reviewing a decision of the MDES, “the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev. 2011). “[W]here there is substantial evidence, this Court has no authority to reverse the circuit court’s affirmance of the decision of the Board of Review.” Broome v. MESC, 921 So.2d 334, 337 (¶ 12) (Miss.2006) (quoting Richardson v. MESC, 593 So.2d 31, 34 (Miss.1992)). “The [Bjoard’s findings of fact are conclusive if supported by substantial evidence and without fraud.” Id. So we will not “reweigh the facts of the case or insert [our] judgment for that of the agency.” Id.

¶ 8. Hemphill claims he was wrongly denied benefits, although he does not specify why or cite any authority. An individual shall be qualified from receiving benefits if he is “discharged for misconduct connected with work[.]” Miss.Code Ann. § 71-5-513(A)(l)(b) (Supp.2014). The employer bears the burden to prove misconduct. Miss.Code Ann. § 71-5-513(A)(1)(c). Misconduct is “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.” Broome, 921 So.2d at 338 (¶ 14) (quoting Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982)). Misconduct is also “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[.]” Id. “[Misconduct imports conduct that reasonable and fair minded external observers would consider a wanton disregard of the employer’s legitimate interests.” Id. (quoting MESC v. Phillips, 562 So.2d 115, 118 (Miss.1990)).

¶ 9. The Mississippi Supreme Court has held that an employee’s failure to notify his employer of the reason for his absences “can constitute misconduct[] if there is a policy that requires such notice.” Barnett v. MESC, 583 So.2d 193, 196 (Miss.1991). And an employee can be “disqualified from receiving unemployment benefits where the employee violated an employer’s policy or otherwise failed to meet a required condition of employment.” Hunter v. MDES, 120 So.3d 435, 438 (¶8) (Miss.Ct.App.2013).

¶ 10. Delta had a policy that required its employees to give notice if they were going to miss work. If an employee fails to call in or show up for three consecutive days, Delta’s policy mandates termination. Ultimately, the Board of Review, adopting the ALJ’s findings of fact, believed Har-grove’s testimony about Hemphill’s failure to give notice. And it was the Board of Review’s job to make such credibility calls. See id. at (¶ 10) (where the Board of Review is presented with conflicting testimony, it must determine which testimony is more credible). After review, we find substantial evidence supports the Board of Review’s determination that Hemphill committed misconduct by violating Delta’s three-day no call/no show policy. We thus affirm.

¶ 11. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . We note that Hemphill’s failure to cite authority operates as a procedural bar, and this court is under no obligation to consider the merits. Bishop v. MDES, 145 So.3d 1254, 1255 (¶ 4) (Miss.Ct.App.2014).


author: MAIN, Justice. MURDOCK, Justice

text:
    Patricia WORKING et al. v. JEFFERSON COUNTY ELECTION COMMISSION et al.
    1111386.
    Supreme Court of Alabama.
    Dec. 6, 2013.
    Albert L. Jordan and Susan E. McPherson of Wallace Jordan Ratliff & Brandt, L.L.C., Birmingham, for appellants.
    French A. McMillan, asst. Jefferson County atty., Birmingham, for appellees.
   MAIN, Justice.

Patricia Working, Rick Erdemir, and Floyd McGinnis (“the Working plaintiffs”) appeal from a judgment entered by the Jefferson Circuit Court holding that the Jefferson County Election Commission (“the JCEC”), Probate Judge Alan King, Circuit Clerk Anne-Marie Adams, and Jefferson County Sheriff Mike Hale (hereinafter collectively referred to as “the JCEC defendants”) are immune from liability as to the plaintiffs’ attorney fees. We affirm in part and remand the case to the trial court for further proceedings.

This is the third time these parties have been before this Court. See Working v. Jefferson Cnty. Election Comm’n, 2 So.3d 827 (Ala.2008) (“Working I”), and Working v. Jefferson Cnty. Election Comm’n, 72 So.3d 18 (Ala.2011) (“Working II”). The factual background and procedural history of this case were set out in detail in Working I and will not be repeated here. Working II summarized the basis of the action:

“[T]he Working plaintiffs’ action challenged the validity of a special election held on February 5, 2008, for a seat on the Jefferson County Commission. The action sought declaratory and injunctive relief based on state-law and federal constitutional grounds.”

72 So.3d at 19-20.

In Working I, this Court addressed two issues regarding subject-matter jurisdiction before addressing the substantive question presented by the appeal — whether the special election held on February 5 was valid. Working I, 2 So.3d at 831-38. We held, on state-law grounds, that the election was invalid and that Governor Riley’s appointment of George F. Bowman to fill the vacancy on the Jefferson County Commission was lawful. 2 So.3d at 841-42. This Court pretermitted discussion of the grounds the Working plaintiffs had asserted under the United States Constitution. 2 So.3d at 841 n. 11.

On remand to the trial court, the Working plaintiffs, as a “prevailing party” pursuant to 42 U.S.C. § 1988, moved for an award of attorney fees under the common-benefit doctrine. Working II, 72 So.3d at 20. The Working plaintiffs also filed a motion for mediation of the motion for attorney fees pursuant to § 6-6-20, Ala. Code 1975. Id. The trial court did not order mediation. The trial court, however, entered an order denying the motion for an award of attorney fees, and the Working plaintiffs again appealed.

In Working II, this Court addressed the Working plaintiffs’ argument that “the trial court erred in sub silentio denying their motion for mediation,” 72 So.3d at 20, and vacated the trial court’s order denying the motion for an award of attorney fees and remanded the case. The Working plaintiffs argued that, according to § 6-6-20, the trial court did not have the discretion to deny such a motion. This Court held:

“ ‘Although a trial court has discretion as to whether to stay the proceedings during the mediation, the trial court has to order mediation upon request of a party.’ Ex parte Morgan County Comm’n, 6 So.3d 1145, 1147 (Ala.2008) (noting that the trial court had no discretion to deny the motion of a party requesting mediation (emphasis added)). ‘ “Section 6-6-20, Ala.Code 1975, allows one party to require a court to order mediation of a dispute, irrespective of the position of any other party to the dispute.” ’ 6 So.3d at 1147 (quoting Alabama Civil Court Mediation Rules, Comment to Amendment to Rule 2, Effective June 26, 2002 (emphasis added)). See also Mackey v. Mackey, 799 So.2d 203, 207 (Ala.Civ.App.2001) (mediation is mandatory when requested by a party).
“The JCEC contends that it is a State agency and that it is, therefore, immune from liability for attorney fees. However, this argument is made for the first time on appeal. In other words, the immunity argument was never made in the trial court. To be sure, § 6-6-20(g) requires resolution of immunity issues before ordering mediation. However, the statute — on its face — is directed to the ‘trial court.’ In other words, it is the trial court, not this Court, that is directed to first address an immunity defense. To date, no such defense has been presented to the trial court. A party cannot circumvent the statute by arguing immunity in this Court after a demand for mediation has been denied in the trial court without the defense of immunity having been presented there. Thus, any discussion of the immunity issue by this Court would be premature at this time.
“In short, because the trial court was without the discretion to deny the demand for mediation, it prematurely addressed the merits of the motion for attorney fees. Consequently, the order of the trial court is vacated and the case is remanded for further proceedings consistent with § 6-6-20.”

Working II, 72 So.3d at 21.

On the second remand following this Court’s decision in Working II, the trial court directed the parties to file briefs on the immunity available under § 6-6-20, AIa.Code 1975. The Working plaintiffs and the JCEC defendants filed briefs on June 8, 2012. The Working plaintiffs sought attorney fees on both their state-law claims and their federal-law claims.

Subsequently, pursuant to § 6-6-20(g), Ala.Code 1975, the trial court denied the Working plaintiffs’ motion for mediation and motion for attorney fees on the basis that the JCEC defendants were entitled to sovereign immunity and, therefore, were immune from liability for attorney fees. In its order entered in July 2012, the trial court stated:

“This case is again before the Court after an order of remand from the Supreme Court of Alabama issued on April 22, 2011. This case arose from challenges by the plaintiff taxpayers to the attempts to fill a seat on the Jefferson County Commission left vacant when Commissioner Larry Langford was elected Mayor of the City of Birmingham in October 2007. This Court ruled that the vacant seat was to be filled by a special election rather than by gubernatorial appointment. The Supreme Court reversed this Court’s judgment in Working v. Jefferson County Election Commission, 2 So.3d 827 (Ala.2008).
“On remand, at the conclusion of their legal action, the plaintiffs moved for an award of attorney fees and expenses from the defendants, the Jefferson County Election Commission (‘JCEC’) and its members in their official capacities, Probate Judge Alan King, Circuit Clerk Anne-Marie Adams, and Jefferson County Sheriff Mike Hale. This Court denied the plaintiffs’ motion and they again appealed to the Alabama Supreme Court.
“In Working v. Jefferson County Election Commission (‘Working II ’), 72 So.3d 18 (Ala.2011), the Supreme Court issued an opinion on January 14, 2011, but that opinion was withdrawn by the Court in its Order of April 22, 2011.
“The Supreme Court reversed this Court’s denial of the request for an attorney fee award because this Court did not grant the plaintiffs’ demand for mediation on that issue. The case was remanded for further proceedings consistent with Ala.Code 1975, § 6-6-20.
“In its Order of Remand, the Supreme Court [held that the trial court did not have the discretion to deny the motion for arbitration and prematurely addressed the merits of the motion for attorney fees].
“The defendants, the JCEC and its members, oppose the plaintiffs’ demand for mediation. They also oppose the plaintiffs’ motion for attorney fees and expenses on the basis of governmental immunity granted in Article 1, § 14, Alabama Constitution of 1901.
“On remand, this Court has heard and considered arguments of counsel and legal briefs.
“I.
“WAIVER OF IMMUNITY DEFENSE
“As an initial matter, the Court must address the validity of the Working plaintiffs’ argument that the defendants have waived their right to assert an immunity defense. Under Article 1, § 14 of the Alabama Constitution, ‘the state of Alabama shall never be made a defendant in any court of law or equity.’ This principle ‘acts as ' a jurisdictional bar to an action against the State by precluding a court from exercising subject-matter jurisdiction.’ Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003) (citing Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 434 (Ala.2001)).
“While other defenses may be waived, ‘[t]he State of Alabama has absolute immunity from lawsuits, [and] [t]his immunity extends to arms or agencies of the state.’ Ex parte Troy Univ., 961 So.2d 105, 111 (Ala.2006); see also Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004). Although sovereign immunity does not generally ‘extend to counties or county agencies,’ Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000), “when a county ... acts as an agent of the state, it is entitled to share in the state’s absolute immunity.’ Id. In addition, ‘this immunity may not be waived.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); see also Haley, 885 So.2d at 788. Therefore, sovereign immunity becomes a ‘jurisdictional bar’ rather than an affirmative defense. Ex parte Alabama Dep’t of Transp., 985 So.2d 892, 894 (Ala.2007).
“Thus, the plaintiffs’ argument that the defendants waived the defense of sovereign immunity fails. That defense cannot be waived.
“II.
“A CLAIM AGAINST THE STATE?
“Since the immunity defense cannot be waived, the next issue before this Court is whether the Working plaintiffs’ motion for attorney fees and expenses against the defendants is, in fact, a claim against the State which would be precluded by § 14.
“The Court would first note that the original complaint in this case contained this allegation in Paragraph 2: ‘Defendant Jefferson County Election Commission is an agency of the State of Alabama, and it is responsible for canvassing and declaring the result of elections conducted for voters on non-municipal matters.’ Plaintiffs also alleged that the individual members of the JCEC were named ‘solely for the purpose of securing any needed relief in the nature of a writ of mandamus.’ The defendants’ answer admitted the allegations.
“In its January 14, 2011, Order, the Alabama Supreme Court analyzed the JCEC’s immunity pursuant to the [Armory Commission of Alabama v.] Staudt, [388 So.2d 991 (Ala.1980),] test. Although the order was withdrawn and is not binding, this court agrees with the Alabama Supreme Court’s reasoning, and neither the facts nor the law have changed since the opinion was written. Specifically, the Court explained:
“ ‘First, we must examine the character of the powers delegated to the JCEC by the legislature.
“ ‘As noted in Working I, the JCEC is composed of the probate judge, the sheriff, and the clerk of the circuit court of Jefferson County. 2 So.3d at 829; see also Davis v. Reynolds, 592 So.2d 546, 548 n. 2 (Ala.1991) (“In Jefferson County, the ‘board of supervisors’ is commonly known as the Jefferson County Election Commission, and it is composed of the judge of probate, the sheriff, and clerk of the circuit court.”). In 2006, the legislature amended (and renumbered) certain sections of Title 17, Ala.Code 1975, by, among other things, substituting the phrase “canvassing board” for “board of supervisors.” See §§ 17-12-9; 17-12-11; 17-12-16; 17-14-33; 17-14-51; and 17-14-72. Section 17-1-2(6) defines “canvassing board,” in relevant part, as follows: “In all elections except primary elections, the canvassing board consists of the judge of probate, circuit clerk, and sheriff of the county.”
“ ‘The legislature has authorized the creation of canvassing boards such as the JCEC; this is evident from the numerous mandatory duties prescribed to canvassing boards by statute. See, e.g., § 17-12-9 (“The canvassing board must,' as soon as they have ascertained the result of an election, make on forms furnished by the Secretary of State certification stating the exact number of votes cast in the county by voting place for each person voted for and the office for which such person was voted for, and file the certificates with the judge of probate. ...” (emphasis added)); § 17-12-16 (“Immediately after ascertaining the results of an election for county officers, including members of the House of Representatives of the Legislature, the canvassing board must make in writing a public certification of the result, stating the name of each officer elected and the office to which elected.” (emphasis added)); § 17-14-33 (“In all elections for electors for President and Vice President, the canvassing board of each county must within five days after making the statement of the county vote by precincts return the result of the same to the Secretary of State.” (emphasis added)); and § 17-14-72 (“In all elections for representatives in Congress, the canvassing board of each county must, within five days after making the statement of the county vote by precincts, return the result of the same to the Secretary of State.” (emphasis added)).
“ ‘Based on our research and the limited information provided by the parties, it appears that the JCEC acts only when authorized by statute and only in the manner authorized by statute.
“ ‘Second, we must examine the relationship between the JCEC and the State, and lastly, we must examine the nature of the functions performed by the JCEC. We will review these Staudt factors together. •
“ ‘Our examination of the statutes quoted above shows that the primary duties of canvassing boards like the JCEC are to ascertain the results of elections for county, state, and federal offices and to return those results to the official designated under the applicable statute; this Court has previously stated that those duties are “ministerial” in nature. See Ex parte Krages, 689 So.2d 799, 805 (Ala.1997) (“The duty to canvass election returns and certify a winner is ministerial in nature.”...); and Ex parte Pollard, 251 Ala. 309, 313, 37 So.2d 178, 182 (1948) (“[Cjanvassing and tabulating the [election] returns and declaring the result thereof ... [is] a purely ministerial duty.”).
“ ‘A ministerial duty is defined as follows:
“ ‘ “The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specific duty arising from fixed and designed facts, is a ministerial act.”
‘Lucas v. Belcher, 20 Ala.App. 507, 508, 103 So. 909, 911 (1925) (quoting Grider v. Tally, 77 Ala. 422 (1884)).
“ ‘The duties performed by canvassing boards like the JCEC are statutorily mandated and ministerial in nature, i.e., the legislature has not made provisions for canvassing boards to exercise any judgment or discretion in the performance of their duties. After examining, as we must, all the factors in the relationship between JCEC and the State, see Staudt, 388 So.2d at 993 (“All factors in the relationship must be examined to determine whether the suit is against an arm of the state... ”), we conclude that the JCEC’s powers, its function, and its relationship to the State identify the JCEC as an “immediate and strictly governmental agency” of the State for purposes of § 14. See Ex parte Greater Mobile-Washington County Mental Health-Mental Retardation Bd., 940 So.2d [990] at 997 [ (Ala.2006) ].
“ ‘Because the JCEC is a State agency, the trial court was without subject-matter jurisdiction to entertain the Working plaintiffs’ action insofar as it sought an award of attorney fees and expenses against the JCEC based on the Working plaintiffs’ state-law claims. See Lyles, 797 So.2d at 435.’
“Working v. Jefferson County Election Comm’n, (Ala., Jan. 14, 2011). Opinion withdrawn and new opinion substituted. i]
“Given this Court’s agreement with the Alabama Supreme Court’s analysis as to the JCEC’s classification as a state agency, thus qualifying the JCEC for sovereign immunity, the Working plaintiffs’ motion for mandatory mediation is due to be denied under § 6 — 6—20(g). The defendants are immune from liability for plaintiffs’ attorney fees and expenses. As a result of the immunity, this Court lacks subject-matter jurisdiction. See also Board of School Comm’rs v. Weaver, 99 So.3d 1210 (Ala.2012).
“It is Ordered and Adjudged pursuant to the mandate from the Alabama Supreme Court, that the plaintiffs’ Motion for Mandatory Mediation is hereby denied. The defendants, the Jefferson County Election Commission, Probate Judge Alan King, Circuit Clerk Anne-Marie Adams, and Jefferson County Sheriff Mike Hale, are immune from liability for plaintiffs’ attorney fees and expenses. Costs are taxed as paid.”

In its order, the trial court concluded that the JCEC defendants had not waived their immunity defense and that the Working plaintiffs’ motion for attorney fees against the JCEC defendants was precluded by § 14 of the Alabama Constitution as to the Working plaintiffs’ state-law claims. The Working plaintiffs then filed this, their third, appeal.

In its order, the trial court discussed only § 6-6-20 and the claim of immunity under § 14 of the Alabama Constitution as to the Working plaintiffs’ state-law claims; it did not address the Working plaintiffs’ federal-law claims under § 6-6-20. Accordingly, the trial court has not completely complied with this Court’s mandate in Working II. Therefore, we are again compelled to remand this cause with instructions that the trial court enter a new order addressing the Working plaintiffs’ federal-law claims in compliance with § 6-6-20 and this Court’s mandate in Working II.

Based on the foregoing, we affirm the trial court’s judgment on the issue of immunity and state-law claims, but we remand the case with instructions on the issue concerning § 6-6-20 and the federal-law claims. The trial court shall make due return to this Court at the earliest possible time and within 42 days after the date of this opinion.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and STUART, PARKER, SHAW, and BRYAN, JJ., concur.

MURDOCK and WISE, JJ., concur in the result in part and dissent in part.

MURDOCK, Justice

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

Although I agree with the general thrust of the main opinion, I must concur in the result in part and dissent in part. Specifically, I concur in the affirmance of the trial court’s judgment insofar as the trial court refused to order mediation of the claim for attorney fees under state law given the trial court’s correct conclusion that, as to the state-law claims for attorney fees, the defendants enjoy sovereign immunity under Art. I., § 14, of the Alabama Constitution. Where I disagree with the main opinion is in its failure to address the issue of immunity as it relates to the plaintiffs’ claims for attorney fees under federal law.

Specifically, the main opinion remands the case for the trial court to consider the issue of immunity as it relates to the plaintiffs’ federal claims and, depending on the decision the trial court makes in this regard, to then consider whether the plaintiffs’ claims must be submitted to mediation pursuant to § 6-6-20, Ala.Code 1975. I believe this Court should proceed in this present opinion to address that immunity issue and, in so doing, vacate the trial court’s judgment as to this issue and remand the case with a clear mandate to the trial court to order mediation as to the plaintiffs’ claims for attorney fees under federal law.

Admittedly, the approach being followed in the main opinion in the present case appears to comport with the holding of this Court in Working v. Jefferson County Election Commission, 72 So.3d 18 (Ala.2011) (“Working II ”). This fact — i.e., that we once again find ourselves remanding the case for the trial court to address the immunity issue — only serves to highlight what I now believe in retrospect to have been an error in that holding as to the proper procedure to be followed in cases such as this. , ''

Specifically, in Working II, we stated:

“[T]he immunity argument was never made in the trial court. To be sure, § 6-6-20(g) requires resolution of immunity issues before ordering mediation. However, the statute — on its face — is directed to the ‘trial court.’ In other words, it is the trial court, not this Court, that .is directed to first address an immunity defense.”

Working II, 72 So.3d at 21. Based on this rationale, we declined in Working II to address the immunity defense and, instead, remanded the case for the trial court to do so and then, if it found immunity not to be applicable, to order mediation. In retrospect, I believe our reading of the statute was unduly restrictive.

The applicable subsection of the statute does not actually refer to the “trial court” and, in any event, merely prescribes a rule of law that, like any other rule of law, naturally is to be applied in the first instance by the trial court. Nothing about the statute purports to restrict the ability of an appellate court to review and correct trial-court error in the application of the rule, just as it would in any other type of case. To that end, I note that the question of immunity presented here is a pure question of law that can and should be addressed by this Court before remanding the case, at least where, as here, the question was preserved for appellate review in the trial court and properly argued on appeal to this Court.

Accordingly, I now turn, as I believe the Court as a whole should do in this case, to the merits of the defendants’ immunity defense as it relates to the plaintiffs’ claim for attorney fees under federal law, i.e., 42 U.S.C. § 1988. Clearly, this claim, as a matter of law, is not barred by the only immunity defense asserted by the defendants in this case, i.e., immunity under § 14 of the Alabama Constitution. In light of the Supremacy Clause of the United States Constitution, U.S. Const. Art. VI, cl. 2, such state-law immunity is no defense to a federal claim of the nature asserted here. See State Bd. of Educ. v. Waldrop, 840 So.2d 893, 902 (Ala.2002) (Lyons, J., concurring specially) (“Under the Supremacy Clause of the United States Constitution (Art. VI), in tandem with the Fourteenth Amendment, the attorney fees permitted by 42 U.S.C. § 1988 are recoverable, notwithstanding a provision of a state constitution that might otherwise afford immunity to the party against whom the fees are sought.”). I would recognize this pure legal principle and vacate the trial court’s judgment insofar as it failed to order mediation of the plaintiffs’ claims for attorney fees under 42 U.S.C. § 1988 and remand the case with an instruction ordering the trial 'court to in turn order mediation of those claims.

WISE, J., concurs.

      . In Working II, this Court, on rehearing, withdrew its opinion issued on original submission on January 14, 2011, and substituted a new opinion. The trial court quoted extensively from the withdrawn opinion.

      . Section 6-6-20 provides, in pertinent part:
      "(a) For purposes of this section, ‘mediation’ means a process in which a neutral third party assists the parties to a civil action in reaching their own settlement but does not have the authority to force the parties to accept a binding decision.
      "(b) Mediation is mandatory for all parties in the following instances:
      "(1) At any time where all parties agree.
      "(2) Upon motion by any party. The party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed.
      "(3) In the event no party requests mediation, the trial court may, on its own motion, order mediation. The trial court may allocate the costs of mediation, except attorney fees, among the parties.
      "(g) Where a claim of immunity is offered as a defense, the court shall dispose of the immunity issue before any mediation is conducted.”

       Note from the reporter of decisions: On February 21, 2014, on return to remand, the Alabama Supreme Court affirmed, without opinion.

      . It appears to me that this Court must both vacate the trial court’s judgment insofar as it pertains to the plaintiffs’ claims for attorney fees under federal law and remand the case.

      . Section 6-6-20(g), Ala.Code 1975, states merely that "[w]here a claim of immunity is offered as a defense, the court shall dispose of the immunity issue before any mediation is conducted.”

      . In addition and to the extent § 14 immunity is at issue in a case such as this, we may add to the equation the fact that such a question goes to the subject-matter jurisdiction of our courts and therefore can be raised for the first time on appeal. Atkinson v. State, 986 So.2d 408, 411 (Ala.2007) ("The assertion of State immunity challenges the subject-matter jurisdiction of the court; therefore, it may be raised at any time by the parties or by a court ex mero motu.").


author: BOLIN, Justice. PARKER, Justice

text:
    In re THE INCORPORATION OF CARITAS VILLAGE, ALABAMA v. Judge James W. FUHRMEISTER.
    1120471.
    Supreme Court of Alabama.
    Jan. 10, 2014.
    Rehearing Denied April 18, 2014.
    J. Doyle Fuller and Susan G. Copeland of Fuller & Copeland, Montgomery, for appellant.
    Frank C. Ellis, Jr., William R. Justice, and Joshua D. Arnold of Wallace, Ellis, Fowler, Head & Justice, Columbiana, for appellee.
   BOLIN, Justice.

This is an appeal from an order entered by the Shelby Probate Court denying a petition to incorporate Caritas Village located in Shelby County, pursuant to § 11-41-1, Ala.Code 1975. The pivotal issue in this case involves declarations of residency. In order to meet the 300 inhabitants required for incorporation under § 11-41-1, the petitioners included 51 people actually living in Caritas Village along with 296 people who had declared that they have designated Caritas Village as their place of residence pursuant to § 12-13-23, Ala. Code 1975. The issue is whether that is sufficient for purposes of § 11-41-1. We hold that it is not.

Facts and Procedural History

On August 30, 2012, the petitioners filed their petition in the Shelby Probate Court to incorporate Caritas Village, along with numerous affidavits and documents in support of the petition. On October 18, 2012, the probate court concluded that the petition did not comply with § 11-41-1. The probate court determined that 1) the proposed municipality had a population of less than 300; 2) the population of the proposed municipality did not constitute a body of citizens whose residences were contiguous and all of which formed a homogeneous community; 3) the application was not signed by at least 15 percent of the qualified electors residing within the limits of the proposed municipality; 4) there were not 4 qualified electors residing on each quarter of a quarter section of the platted or unplatted lands in the proposed municipality; 5) the application did not contain an accurate plat of the land to be included within the proposed corporate limits; 6) the place of residence by street and number, if available, of those living within the proposed municipality was not included; and 7) the petition did not accurately state the name of the proposed municipality.

On December 17, 2012, the petitioners filed a motion to amend their petition. On January 8, 2013, the probate court entered the following order:

“This matter came before the court on petitioners’ Motion for Leave of Court to Amend the Application and Petition to Incorporate to Cure the Deficiencies in the Application as Identified by the Judge of Probate and Request for a Hearing. The petitioners seek incorporation of a portion of Shelby County, Alabama, as a municipal corporation pursuant to Ala.Code § 11-41-1 et seq. (1975 as amended). By order entered October 18, 2012 (the ‘Prior Order’), this Court found that petitioners’ Application did not comply with Code § 11-41-1. Petitioners seek to amend their Application pursuant to § ll-41-2(b) to cure the deficiencies. Said motion for leave to amend is GRANTED. Petitioners also request a hearing on their Application and said request is DENIED because § ll-41-2(b) does not provide for a hearing at this stage of the proceedings.
“For municipal incorporation, Alabama law requires an area to have ‘a population of not less than 300, constituting a body of citizens whose residences are contiguous to and all of which form a homogeneous settlement or community.’ To reach this population requirement, petitioners filed 205 affidavits that were made pursuant to [§ 12-13-23, Ala.Code 1975] (the ‘Act’). In Exhibit A to the Amended Application, affiant Jason Terrell states that 51 persons reside within the territory subject to the Application and an additional 296 persons have declared their residency within the area by filing affidavits pursuant to the Act. It is the opinion of this Court, and it is so held, that affidavits made pursuant to the Act are not sufficient to establish the population requirement of § 11-41-1. Declaring one’s legal residence is not equivalent to being domiciled in a particular place, being part of a homogeneous settlement or community and thus being part of the area’s population. Petitioners must demonstrate that there are at least 300 people domiciled in the subject area. Petitioners have failed to establish that the subject area satisfies the population requirement of the Code, that all residences of the population are contiguous, and that the subject area is a homogeneous settlement or community.
“Therefore, based on the foregoing as well as the reasons set forth in the Prior Order, the Court FINDS, and it is so ORDERED, ADJUDGED and DECREED, that the Application as amended does not comply with the provisions of Code § 11-41-1 and the Application is due to be, and is hereby, DENIED.”

(Capitalization in original.)

On January 17, 2013, the petitioners timely filed an appeal.

Standard of Review

“‘This court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review.”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005).

Discussion

Section 12-13-23 provides:

“(a) For the purposes of this section, the following words shall have the following meanings:
“(1) Declaration of residence. Any written document which conveys a person’s intention to designate any place within this state as his or her place of residence.
“(2) Person. Whether used in the singular or plural form, a natural person who is a citizen of the United States. When used in reference to the designation of a place of residence, the word ‘person’ shall include any dependent minor child of a person.
“(3) Place or place of residence. A physical location which is capable of habitation and may be described in any way reasonably calculated to locate the same.
“(4) Resident. A lawful citizen of this state for all legal purposes other than registration to vote or qualification for elected office.
“(b) Any person who is absent from this state on military duty, eleemosynary journey, mission assignment, or other similar venture may designate any place within the State of Alabama as his or her residence. Upon filing a notarized declaration of residence with the judge of probate of the county in which the designated place of residence is located, the person and his or her dependent children shall thereafter be considered residents of that designated place for all purposes under the law.
“(c) The judge of probate of the county, upon receipt of a declaration of residency, shall file the same within the public record of his or her office.
“(d) Notwithstanding the foregoing, a declaration of residence filed under this section shall not affect the person’s eligibility to register to vote or qualify for an elected office if that person otherwise meets the requirements of law to register to vote or to qualify for elected office.
“(e) Notwithstanding the foregoing, if a person is previously registered to vote in a district their voting rights shall continue in that district.
“(f) In the event a person has filed a declaration of residence as provided in this section and otherwise meets all requirements of law to register to vote or to qualify for elected office, then that person may also register to vote or qualify for elected office at the place of residence designated pursuant to this section.
“(g) Notwithstanding the foregoing, the filing of a declaration of residence under this section does not establish permanent residency for the person filing the declaration for the purposes of eligibility for the Alabama G.I. and Dependents’ Educational Benefit Act, Sections 31-6-1 through 31-6-17, inclusive.
“(h) Nothing in this section shall be used to change the venue of any pending civil action or for the purpose of forum shopping.
“(i) Notwithstanding the foregoing, the filing of a declaration of residence under this section does not establish permanent residency for the person filing the declaration for the purposes of qualifying for in-state tuition rates at a state-supported institution of higher education, unless the person either filed a personal income tax return with the State of Alabama or would have been required to file a personal income tax return if the person otherwise had a tax liability.”

The petitioners argue that the affidavits, which included declarations of residency pursuant to § 12-13-23, satisfy the population requirement of § 11-41-1. They also argue that the probate court’s conclusions regarding contiguity and homogeneity based on the 296 persons declaring residency in Caritas Village were erroneous.

“The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So.2d 719 (Ala. 1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992).”

Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996). “It is ... well accepted that this Court[, in interpreting a statute,] will give words used in a statute their ‘natural, plain, ordinary, and commonly understood meaning.’ ” Ex parte Etowah Cnty. Bd. of Educ., 584 So.2d 528, 530 (Ala.1991) (quoting Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984)). “ ‘[W]hen a term is not defined in a statute, the commonly accepted definition of the term should be applied.’” Ex parte Gadsden Reg’l Med. Ctr., 904 So.2d 234, 236 (Ala.2004)(quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003)).

Section 11-41-1 provides that an “unincorporated community” with a “population” of “300” “inhabitants” whose “residences” are “contiguous to and all of which form a homogeneous settlement or community” may seek incorporation as a “municipal corporation.” Section 11-41-1 goes on to provide:

“The petition for incorporation shall be submitted by the persons seeking the incorporation referendum to the judge of probate by a verified application, which shall state the proposed name of the municipality, have attached thereto and as a part thereof an accurate plat of the territory proposed to be embraced within the corporate limits, including all subdivisions into lots, blocks, streets, and alleys, within the territory, if any, and have accurate description by metes and bounds of the boundary of the territory. The application shall contain proof of residence and qualifications as electors of petitioners and of persons affected. When determining the ownership of the lands, the person, firm, or corporation assessing the property for taxation shall be accepted by the judge of probate as prima facie the owner thereof. All petitions circulated with respect to any proposed incorporation referendum shall be uniform in character. Each signer of a petition shall sign his or her name and shall have placed on the petition after his or her name his or her place of residence by street and number, if available, and the date on which the signature is affixed. The signatures attached to any petition need not be signed on one page, but each page shall have attached an affidavit by the person circulating the petition stating the number of signers on each page of the petition, that each signature signed on the page is the genuine signature of the person whose name it purports to be, and that the signature was made in the presence of the person circulating the petition.”

In Baker v. Conway, 214 Ala. 356, 108 So. 18 (1926), the Court recognized that “reside,” “resident,” and “residence” may have different meanings in different settings:

“The words ‘reside,’ ‘residence,’ and ‘resident,’ as used in constitutions and statutes, have been often defined and construed by the courts. 7 Words and Phrases, First Series pp. 6147-6166. Their meaning has been variously shaded according to the variant conditions of their application. For some purposes, a merely constructive residence, resting chiefly upon the intention of the citizen, is sufficient to fix or retain his residence at a designated place. For other purposes, an actual residence is intended or required. In some cases it has been held that there must be a union of fact and intention....
“ ‘The word “reside” may, and sometimes does, have different meanings in the same or different articles or sections of a constitution or statute.’ ”

214 Ala. at 356-57, 108 So. at 18 (quoting People v. Owers, 29 Colo. 535, 546, 69 P. 515, 518 (1902)).

In Carey v. City of Haleyville, 230 Ala. 401, 402, 161 So. 496, 498 (1935), the Court addressed a statute authorizing a municipality to issue bonds to construct schoolhouses, stating:

“Municipal corporations are voluntary associations created and built upon the voluntary assent of the community and its citizens (Montgomery v. City of Athens, 229 Ala. 149, 155 So. 551 [ (1934) ]), and a reading of the act ... is persuasive that the Legislature had this in view, and intended a broad authority in matters affecting the health, convenience, and promotion of the general welfare of the inhabitants thereof — all of which were to be sanctioned by the voters before the bonds could be thus issued for these purposes.”

(Emphasis added.) In City of Dothan v. Dale County Commission, 295 Ala. 131, 324 So.2d 772 (1975), the City of Dothan sought to annex territory in an adjoining county. The probate court held that the annexation was void because its irregular shape and its lack of homogeneity with the rest of the city violated the legislative intent behind annexation. This Court, reversing the probate court’s judgment, stated:

“We know of no statutory mandate that the municipal boundaries of all territories sought to be annexed must form a regular shape. Tit. 37, § 135(10) [now codified at § 11-42-2, Ala.Code 1975,] does require that such annexed territory ‘form a homogeneous part of the city or town.’ But, this is not to imply that homogeneity demands regularity of shape of the boundaries of the municipality. ‘Homogeneous’ is defined as ‘of similar kind or nature ... of uniform structure or composition ... consisting of uniform elements (as of people or groups with similar background) ...’ Webster’s Third Neiv International Dictionary, 1966.”

295 Ala. at 135, 324 So.2d at 776 (emphasis added).

City of Fultondale v. City of Birmingham, 507 So.2d 489, 491 (Ala.1987), involved a municipal annexation that included public-road rights-of-way as necessary to create contiguity with existing city limits; in holding the annexation invalid, the Court stated:

“Although Alabama law does not require that municipal boundaries form a regular shape, the legal and popular idea of a municipality in this country is ‘that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants — that is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places.’ 56 Am.Jur.2d Municipal Corporations § 69 at 125 (1971).”

(Emphasis added.)

In Fort Morgan Civic Ass’n v. City of Gulf Shores, 100 So.3d 1042 (Ala.2012), a citizens’ group and a resident of an unincorporated area challenged the recent annexation of the unincorporated area, arguing that the annexation constituted a “long-lasso” annexation and that the annexation was invalid because the State did not own all the annexed property as it had stated in its petition. Justice Murdock concurred in the result and wrote separately regarding, in part, his concerns over the Court’s jurisprudence as to “long-lasso annexations.” Although the present case does not involve a long-lasso annexation, we find Justice Murdock’s discussion helpful in elucidating the nature of a community grounded in residency:

‘“Although Alabama law does not require that municipal boundaries form a regular shape, the legal and popular idea of a municipality in this country is “that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants — that is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places.” 56 Am. Jur.2d Municipal Corporations § 69 at 125 (1971); City of Dothan [v. Dale County Comm’n, 295 Ala. 131, 324 So.2d 772 (1975) ]. The annexations proposed by Fultondale and Trussville do not create a collective body of inhabitants, but, rather, several bodies scattered across an area, a result we feel the legislature did not intend.’
“[City of Fultondale v. City of Birmingham,] 507 So .2d [489] at 491 [ (Ala.1987) ] (emphasis added).
“Clearly, the essential rationale of the City of Fultondale decision is that annexing a long strip of land to reach another ‘community, locality, [or] vicinity,’ one that is not ‘contiguous’ to the existing boundaries of the annexing municipality, is a use of the annexation power that was not intended by the legislature. The rationale of the Court was that a ‘long lasso’ — whether or not consisting solely of a public roadway — is an artifice to achieve the annexation into a municipality of a separate body of inhabitants and landowners who do not share with the existing municipality a community of interest grounded in their place of residency.”

100 So.3d at 1053-54 (Murdock, J., concurring in the result)(some emphasis omitted; some emphasis added).

In the present case, we agree with the probate court’s conclusion that the proposed incorporation was not a “homogeneous settlement or community” as intended under § 11-41-1. None of the 296 declarants physically reside in the area to be incorporated and governed as a municipality so as to be “inhabitants of the unincorporated community which has a population of not less than 300.”

We find the Minnesota Supreme Court’s reasoning in State v. Village of Island Lake, 130 Minn. 100, 153 N.W. 257 (1915), analogous to the present case. In Island Lake, a petition for annexation was signed by 25 persons residing in the area sought to be incorporated as a village.

“The territory so included within the village was sparsely settled, lying south of Red Lake, and is four miles long by three miles wide, containing 7,600 acred of land, only 15 of which was platted into town lots. In December following the incorporation the platted part of the village contained 19 persons, men, women, and children, and its present population is 12, 5 adults and 7 children. It never contained more than eight buildings, only five of which now remain; one thereof being the village jail. The population of the whole territory never exceeded 52 persons, though at the date of the incorporation many laborers were employed at lumber camps within the district; but their presence was temporary, during the logging season, and they had no actual residence therein....
“The contention of the Attorney General was that the incorporation of the village was fraudulently obtained, that it never contained the necessary population, and for that reason should be dissolved. The trial court sustained this contention.
“It is contended by appellants in this court that the laborers in the lumber camps were properly included in determining the ‘resident population,’ and that by including them therein the territory incorporated contained the necessary population of 140. Appellants’ contention should not be sustained. The purpose of the statutes providing for the incorporation of small villages is to further the interests, and for the better protection, of those actually residing and having a fixed abode within the territory incorporated, and not for the benefit of those who may be temporarily sojourning therein. In this particular case there were in fact only 52 actual residents within the territory. The laborers at the lumber camps were there temporarily, during the logging season, and cannot be included to make up the necessary population, for they cannot be considered or treated as residing in the territory within the meaning of the statute. These facts do not appear to have been called to the attention of the board of county commissioners at the time the petition for incorporation was presented, and the act of incorporation without the necessary population was unauthorized and illegal.”

180 Minn, at 101-02, 153 N.W. at 257-58 (emphasis added). Similar to the temporary presence of the loggers in the Minnesota case, the declarants’ statements of intent to declare residency in Caritas Village does not meet the purpose of incorporating small municipalities.

“A municipal corporation is a legal institution, formed by charter from sovereign power, erecting a populous community of prescribed area into a body politic and corporate, with corporate name and continuous succession, and for the purpose and with the authority of subordinate self government improvement and local administration of affairs of state.’ Municipal corporations are thus incorporated cities, towns, and villages created to serve the dual role as agents of the state and local governing entities. Their characteristic feature is the power and right to local self-government.”

1 James D. Cox and Thomas Lee Hazen, Treatise on the Law of Corporations § 1:17 (3d ed. 2012) (footnote omitted).

“There must exist a village, a community of people, a settlement of a town occupying an area small enough that those living therein may be said to have such social contacts as to create a community of public interest and duty requiring, in consideration of the general welfare, an organized agency for the management of their local affairs of a quasi public nature.”

State v. Town of Lake Placid, 109 Fla. 419, 426, 147 So. 468, 471 (1933).

We note that although § 12 — 13—23(b) provides that a declarant is considered a resident of the place designated in the declaration for all purposes under the law, the statute goes on to provide that the declaration will not affect the declarant’s eligibility to register to vote or to qualify for an elected office; if the declarant has been previously registered to vote in another district, his or her voting rights will continue in that other district; the declar-ant may also register to vote or to qualify for elected office at the place of declaration of residency; the declaration does not establish permanency for the purposes of certain educational benefits for members of the armed forces and their family members; the declaration cannot be used to change venue in a civil action; and the declaration does not establish permanent residency for the purpose of receiving instate tuition at state universities unless the declarant has to file an income-tax return in Alabama. One of the purposes of this statute is to allow military personnel and missionaries who are on extended travels out of state to declare residency in Alabama. However, we cannot say that the residency declarations provided for in the statute meet the requirements of § 11-41-1 because the mere declaration of residency does not indicate a body of inhabitants who share with the proposed municipality a community of interest grounded in their place of residency.

We note that the petitioners contend that the legislature intended to include those who declare their residency to be Caritas Village pursuant to § 12-13-23 as part of the 300 inhabitants “whose residences are contiguous to and all of which form a homogeneous settlement or community.” This is so because, they say, § 11-41-3 and § 11-41-5, Ala.Code 1975, provide that only persons who are qualified electors under state law and who have resided within the boundaries of the proposed municipality for three months preceding the election to incorporate may vote in the election. However, before an election can occur, the petition must meet the requirements of § 11-41-1; the inhabitants of an unincorporated community must have a population of 300 citizens who form a homogeneous settlement or community.

Based on the foregoing, we affirm the judgment of the probate court.

AFFIRMED.

STUART, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

PARKER, J., dissents.

MOORE, C.J., recuses himself.

PARKER, Justice

(dissenting).

I respectfully dissent. Section 11-41-1, Ala.Code 1975, provides, in pertinent part:

“When the inhabitants of an unincorporated community, which has a population of not less than 300, constituting a body of citizens whose residences are contiguous to and all of which form a homogeneous settlement or community, desire to become organized as a municipal corporation, they may apply to the judge of probate of the county in which the territory is situated, or the greater portion thereof if it is situated in two or more counties, for an order of incorporation, by a petition in writing signed by not less than 15 percent of the qualified electors residing within the limits of the proposed municipality and by the persons, firms, or corporations owning at least 60 percent of the acreage of the platted or unplatted land of the proposed municipality.”

Given its plain and ordinary meaning, this statutory language provides that a group of at least 300 persons who are inhabitants, i.e., residents, of an unincorporated community may apply to the probate judge in the county in which that territory is located for an order of incorporation. Section 12-13-23, Ala.Code 1975, defines “resident” as follows: “A lawful citizen of this state for all legal purposes other than registration to vote or qualification for elected office.” “ ‘ “ Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect’ ” ’ ” Thomas v. Merritt, [Ms. 1111588, December 6, 2013] — So.3d —, — (Ala. 2013) (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), quoting in turn IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). In this case, the intent of the legislature is obvious in that it unambiguously defined “resident” to include any “lawful citizen of this state for all legal purposes other than registration to vote or qualification for elected office”; thus, there were at least 300 “residents” who petitioned the probate court for an order of incorporation. Because there were at least 300 “residents” seeking an order incorporating Caritas Village, the petition to incorporate was due to be granted. Had the legislature intended that the petitioners must physically reside in the area proposed as Caritas Village to meet the requirements of § 11-41-1, it could have used language similar to the language found in the latter part of § 11-41-1, which requires, in relevant part, that “[t]he inhabitants of any island having ... a population of not less than 300 qualified electors actually residing thereon ... may become organized as a municipal corporation”; however, the legislature chose not to do so. It is well settled that “the legislature knows how to distinguish between ... two terms when it so chooses and ... it has distinguished them in the relevant statutes here.” See, e.g., Belcher v. Kier, 558 So.2d 1039, 1044 (Fla.Dist.Ct.App.1990). Based on the foregoing, I would reverse the order of the Shelby Probate Court denying the petition for incorporation of Caritas Village. Therefore, I must dissent.

      . The constitutionality of § 12-13-23 is not an issue in this case.