author: MAXWELL, J.,

text:
    Peter D. LOVE a/k/a Peter Demetris Love a/k/a Peter Love, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01861-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      W. Daniel Hinchcliff, George T. Holmes, Jackson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Peter Love shot and killed Trentis Thornton in front of several witnesses. While it is undisputed Trentis was unarmed, Love argued the shooting was justified because Trentis was the aggressor and Love believed Trentis was reaching for a gun. An Attala County jury found Love guilty of murder, rejecting his self-defense claim. On appeal, Love argues the trial judge denied him a meaningful opportunity to present his self-defense theory by allowing defense witnesses to testify Trentis was reaching behind his back, but restricting them from speculating he was going for a gun. We find the judge’s ruling did not violate Love’s right or ability to present a meaningful defense. From the record it is clear that Love was able to meaningfully present his self-defense theory from opening statement through closing argument — even testifying himself that he believed Trentis was reaching for a gun. Thus, we affirm.

¶ 2. We find his remaining challenges to his counsel’s performance more appropriate for post-conviction collateral review, so we dismiss those claims without prejudice.

Facts and Procedural History

¶ 3. On October 27, 2010, Trentis and his wife, Donna, were sitting in their vehicle, outside of a friend’s house, when a Chevrolet Lumina pulled into a driveway directly across the street. Several men, including Love, got out of the Lumina. According to witnesses, Love saw Trentis looking in his direction and shouted at Trentis, “What the f— are you looking at?” Love began crossing the street, and the two men eventually ended up meeting behind Trentis’s truck and out of Donna’s line of sight. During what escalated into an argument, Love shot and killed Trentis, who was unarmed. Love fled the scene, but later turned himself in to the Attala County Sheriffs Department.

¶ 4. After being advised of his constitutional rights, Love signed a Miranda waiver-of-rights form. He initially denied any involvement in the shooting, instead insisting the gunshot had come from a passing car. But after speaking with his mother, Love gave a second, differing story. He admitted shooting Trentis, but claimed he did so in self-defense when Trentis “rushed him” in a threatening manner. He also claimed Trentis had bullied him in the past and had previously threatened him with a gun.

¶ 5. At trial, the State’s pathologist, Dr. Steven A. Bigler, testified that Trentis died from massive brain trauma caused by a single bullet to the right side of his head. Dr. Bigler did not discover any soot or stippling on Trentis’s skin, which in his opinion suggested Trentis had been shot from a distance of greater than a few feet. The State highlighted Dr. Bigler’s testimony against Love’s claim that he shot Tren-tis in self-defense from a few feet.

¶ 6. Love’s attorney pursued a self-defense theory that Trentis was the aggressor and that Love shot him during the altercation because he mistakenly believed Trentis was reaching for a gun. Love’s brother and two other defense witnesses testified that Trentis grabbed Love and was reaching behind his back when Love shot him in the head.

¶ 7. Love testified in his own defense. He described a relationship with Trentis that had always been contentious. He testified that Trentis had previously threatened him on several occasions and that, nine days prior to the shooting, Trentis pointed a gun at him and fired several shots at him. So out of fear, Love claimed he purchased a pistol from someone at a housing project in Durant, Mississippi and began carrying it. Love admitted cursing at Trentis on the day of the shooting and confronting him that day. But he maintained that Trentis had grabbed him by the collar and was in the process of reaching behind his back for a gun when Love, fearing for his life, drew his own gun and opened fire.

¶ 8. The jury rejected Love’s self-defense argument and found him guilty of murder. The trial judge sentenced Love to life imprisonment. He now appeals.

Discussion

¶ 9. On appeal, Love neither challenges the sufficiency nor the weight of the evidence underlying his murder conviction. Instead, he narrowly focuses on the trial judge’s exclusion of a portion of his brother’s and another witness’s testimony, which he claims resulted in the denial of his right to present a meaningful defense. He also argues his trial counsel’s deficient representation prejudiced his defense.

I. Exclusion of Evidence and the Right to Present a Meaningful Defense

¶ 10. Love argues the trial judge denied him a meaningful opportunity to present his self-defense theory by ruling that his brother, Larry Winters, and another defense witness could only testify that they saw Trentis reach behind his back during the skirmish, but were prohibited from giving their “opinion” that he was going for a gun. As the trial judge put it, the witnesses could testify about where Tren-tis’s “hand was” shortly before Love shot him, but could not give their opinion about “what was in [Trentis’s] hand.”

A. Rule 701

¶ 11. While the excluded testimony was based on the witnesses’ speculation about what Trentis was allegedly reaching for, Love argues such testimony should have been admitted as lay-opinion testimony. We agree with Love that there are certain instances where non-expert statements of opinion may be admissible under Rule 701 — if “(a) [the opinion is] rationally based on the perception of the witness [and] (b) [is] helpful to the clear understanding of ... the determination of a fact in issue[.]” M.R.E. 701. And here, though it is arguable the evidence should have been admitted under Rule 701, our supreme court has been quick to emphasize that in making evidentiary rulings our “trial judge[s] enjoy[ ] a great deal of discretion as to the relevancy and admissibility of evidence.” Shaw v. State, 915 So.2d 442, 445 (¶ 8) (Miss.2005).

¶ 12. But further, and perhaps most important, both our evidentiary rules and case law instruct that even if the exclusion was improper, “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]” M.R.E. 103(a); see also Mingo v. State, 944 So.2d 18, 28 (¶ 27) (Miss.2006) (citing Parks v. State, 884 So.2d 738, 742 (¶ 9) (Miss.2004)) (appellate courts will not reverse a trial judge’s evidentiary ruling unless the error adversely affects a party’s substantial right). So even if the exclusion was erroneous, reversal is only proper if Love was denied a meaningful opportunity to present his self-defense argument. Upon review, we find he was not.

B. Love’s Self-defense Argument

¶ 13. Under Mississippi law, “a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court.” Giles v. State, 650 So.2d 846, 849 (Miss.1995) (quoting Hester v. State, 602 So.2d 869, 872 (Miss.1992)). Here, Love pursued a self-defense theory that Trentis was the aggressor and that Love believed Trentis was breaking for a gun when he shot him. Love’s attorney pressed this theory consistently from Love’s opening statement through closing argument. And at Love’s request, the jury was instructed that self-defense was a lawful justification for the murder charge.

¶ 14. Though it is undisputed that Trentis did not possess a weapon when Love shot him, as mentioned, two of Love’s defense witnesses testified that Love was reaching behind his back during their exchange. Even in light of the exclusion, from the context of the questions and responses, the jury was free to infer Tren-tis was going for a gun. Furthermore, one of these witnesses, Love’s brother, said that after the shooting, Love told him, “I had to handle my business. It was going to be me or him. Did you see him? He was fixing to get me.”

¶ 15. When asked if “handle your business” meant to have “to defend myself and shoot somebody in self-defense,” Love’s brother responded: “That’s the way I took it.” A third defense witness testified: “The way they [were] positioned, it looked like Trentis could have had something. But I didn’t see it, because I caught the back glimpse of it. So I actually can’t say, but [Trentis] was positioned sideways like he had something.”

¶ 16. Finally, Love took the stand in his defense. He testified that Trentis was the aggressor and that Trentis had previously threatened him with a pistol and even shot at him a little over a week earlier. In describing Trentis’s alleged actions immediately before he shot Trentis, Love recalled Trentis had “reached and grabbed [him] by the collar[.]” Love claimed Tren-tis then “reached behind his back real quick-” Love testified that when Tren-tis did that, “I thought he was fixing to kill me. I was scared.” The following exchange then occurred:

[Love’s Attorney]: What did you think he was going to kill you with?
[Love]: The gun that he showed me when I was walking down the road.
[Love’s Attorney]: The gun that he shot at you with too.
[Love]: Yes, ma’am.

Thus, not only was the self-defense theory before the jury, but there was also testimony that Trentis was reaching for a gun.

¶ 17. Love’s argument about the effect on his right to present a meaningful defense is similar to one addressed by our supreme court in the context of a “misidentification” defense in Williams v. State, 991 So.2d 593, 597-600 (¶¶ 9-16) (Miss.2008). In Williams, the investigating officer testified that the robbery victim had not mentioned the assailant’s “buck gold teeth.” Id. at 598 (¶ 13). So the defendant sought to display his “gold teeth decorated with carved initials” to the jury to further his misidentification defense, but not be subject to cross-examination. Id. at 597 (¶ 10). The trial judge denied this request, and on appeal Williams argued the erroneous evidentiary ruling denied him an opportunity to present a meaningful defense. Id

¶ 18. But the supreme court pointed out that while the officer stated that the victim had not mentioned the assailant’s gold teeth, the jury was ultimately informed by another witness, and it was vigorously argued by defense counsel during closing argument that Williams had gold teeth. Id at 598-99 (¶¶ 12-14). Because the mis-identification defense was adequately presented, the supreme court found the judge’s ruling “prohibiting Williams from displaying his gold teeth for the jury unless he testified did not violate his right to present a meaningful defense.” Id at 599 (¶ 15).

¶ 19. After reviewing the record here, we reach a similar conclusion. We find Love’s own testimony, as well as that of his defense witnesses, supports that Love was able to meaningfully present his self-defense theory. Thus, we find no reversible error in the trial judge’s evidentia-ry ruling.

II. Ineffective-Assistance-of-Counsel Claim

¶ 20. Love also argues his trial counsel was ineffective for failing to (1) invoke the Weathersby rule at the close of the State’s case-in-chief, (2) conduct a voir dire examination of the State’s pathologist, (3) object to certain forensic testimony from the State’s pathologist about the absence of stippling, (4) object to the testimony of the State’s pathologist that his definition of homicide was “murder,” and (5) object to the State’s questioning of Love about his failure to call a witness equally accessible to both sides.

¶ 21. These allegations concern trial strategy. And we have been instructed to “strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy.” Liddell v. State, 7 So.3d 217, 219-20 (¶ 6) (Miss.2009) (quoting Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008)). While our review shows nothing to overcome this presumption, the record is not as developed as it would be in a post-conviction-relief proceeding. There is also no stipulation “that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999).

¶ 22. Because there are no obvious deficiencies on Love’s counsel’s part and the State has not stipulated the record is adequate to address Love’s claims, we dismiss Love’s ineffective-assistance-of-counsel claim without prejudice.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In 1933, our supreme court held in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933), "that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” A defendant who meets the Weathersby rule is entitled to a directed verdict of acquittal. Fryou v. State, 987 So.2d 461, 467 (¶ 34) (Miss.Ct.App.2008) (citing Green v. State, 631 So.2d 167, 175 (Miss.1994)).


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Bridgette M. SANFORD a/k/a Bridgette Michelle Sanford, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00389-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.
    Rehearing Denied Aug. 27, 2013.
    Bridgette M. Sanford, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The case is before us on a motion for rehearing; the motion is denied, and the original opinion is withdrawn and substituted with this opinion.

¶2. On December 15, 2008, the DeSo-to County Circuit Court revoked Bridgette M. Sanford’s post-release supervision (PRS) based on her commission of new crimes and her failure to pay fines and court costs. On November 24, 2010 Sanford filed a motion for post-conviction relief (PCR), which the circuit court dismissed. Feeling aggrieved, Sanford appeals and raises several issues. However, Sanford’s issues all relate to the central issue of whether the circuit court erred in revoking her PRS.

FACTS

¶ 3. On September 3, 2004, Sanford pleaded guilty to uttering a forgery in Cause No. 2004-666RD. The circuit court sentenced Sanford to eight years to serve and seven years of non-reporting PRS. Sanford later filed a PCR motion, which is not the subject of this appeal, arguing that her sentence was illegal. The circuit court entered an amended sentencing order, reducing the period of PRS from seven years to two years of non-reporting PRS.

¶4. On September 20, 2004, Sanford pleaded guilty to uttering a forgery in Cause Nos. 2004-706RD, 2004-721RD, and 2004-731RD. For each cause number, the circuit court sentenced Sanford to three years of PRS, non-reporting, but it did not impose a period of incarceration. The circuit court ordered the PRS for the conviction in each of these cause numbers to run consecutively to each other and to the sentence imposed in Cause No. 2004-666RD.

¶ 5. Sanford was released from custody on June 28, 2007. On June 24, 2008, Sanford committed new crimes, conspiracy to sell and selling counterfeit instruments. In response, the circuit court revoked Sanford’s two years of PRS in Cause No. 2004-666RD. Additionally, the court revoked Sanford’s PRS in Cause Nos. 2004-706RD, 2004-721RD, and 2004-731RD. The court ordered Sanford to serve three years for Cause No. 2004-706RD, three years for Cause No. 2004-731RD, and one day for Cause No. 2004-721RD. The circuit court ordered the sentences to run consecutively to the sentence in Cause No. 2004-666RD and consecutively to each other, for a total sentence of eight years and one day.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. In her PCR motion, Sanford challenges the revocation of her PRS in Cause Nos. 2004-706RD, 2004-721RD, and 2004-731RD. Mississippi Code Annotated section 99-39-9(2) (Supp.2011) provides that a PCR motion “shall be limited to the assertion of a claim for relief against one ... judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.”

¶ 8. Sanford’s apparent violation of the procedural requirements set forth in section 99-39-9(2) should not be fatal in this case, especially where the issues she raises relate to 2004-706RD, 2004-721RD, and 2004-731RD. Furthermore, in its brief, the State urges this Court to address the merits of Sanford’s PCR motion despite the procedural violation. This Court has previously addressed a PCR motion challenging multiple judgments where: (1) the causes were interrelated; (2) the issues raised concerned both causes; (3) the circuit court entertained the motion and reached the merits of the issues raised; and (4) the State made no issue of the fact that the motion attacked two judgments. See Nichols v. State, 955 So.2d 962, 966 (¶ 10) (Miss.Ct.App.2007). As such, we will address the merits of the claims in Sanford’s PCR motion even though she challenges multiple judgments.

¶ 9. Sanford contends that the circuit court erred in revoking her PRS in Cause Nos. 2004-706RD, 2004-721RD, and 2004-731RD because, at the time that she committed the new crimes, she was still on PRS for Cause No. 2004-666RD and had yet to begin her PRS in Cause Nos. 2004-7Q6RD, 2004-721RD, and 2004-731RD. We agree. In Shinn v. State, 74 So.3d 901, 902 (¶ 2) (Miss.Ct.App.2011), Jimmy Shinn was indicted for multiple counts of uttering a forgery. Shinn agreed to plead guilty to Counts I and II, and the State agreed to dismiss the remaining counts. Id. The circuit court sentenced Shinn to four years of incarceration followed by five years of PRS for Count I. Id. at (¶ 3). The court imposed an identical sentence for Count II and made an oral pronouncement that the sentences were to run consecutively. Id. However, the sentencing orders for Counts I and II were silent as to “whether the sentences were concurrent or consecutive to one another.” Id. During the first year of Shinn’s PRS, he violated the conditions of his PRS. Id. at 903 (¶ 4). In response, the circuit court revoked Shinn’s PRS as to both Counts I and II. Id.

¶ 10. Shinn’s sole issue on appeal related to whether his sentences were to run consecutively or concurrently. Id. at (¶ 6). However, this Court explained that if Shinn’s sentences were ordered to run consecutively, “Shinn could not have been serving his five-year term of PRS on Count II when he violated the conditions of the PRS under Count I.” Id. at 907 (¶ 19). Following Shinn’s release from custody, he began his first five-year term of PRS. Id. “Shinn’s PRS sentence on Count II would not have begun to run until Shinn had completed his five years of PRS on Count I....” Id. Therefore, the circuit court could not “revoke Shinn’s PRS sentence on Count II since he was not serving that portion of his sentence at the time he violated the conditions of the PRS under Count I.” Id.

¶ 11. This is precisely Sanford’s situation. At the time that Sanford’s PRS was revoked, she was serving the two years of PRS for Cause No. 2004-666RD. Since she had not begun the PRS for Cause Nos. 2004-706RD, 2004-721RD, and 2004-731RD, the circuit court erred in revoking her PRS for those cause numbers. Therefore, we reverse and render the revocation of the post-release sentences given to her in Cause Nos. 2004-706RD, 2004-721RD, and 2004-731RD.

¶ 12. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR, and JAMES, JJ., CONCUR.

      . Mississippi Code Annotated 97-21-33 (Rev. 2006) provides:
      Persons convicted of forgery shall be punished by imprisonment in the Penitentiary for a term of not less than two (2) years nor more than ten (10) years, or by a fine of not more than Ten Thousand Dollars ($10,-000.00), or both; provided, however, that when the amount of value involved is less than Five Hundred Dollars ($500.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than six (6) months, or by a fine of not more than One Thousand Dollars ($1,000.00), or both, within the discretion of the court.
      Additionally, Mississippi Code Annotated 47-7-34(1) (Rev.2011) provides, in pertinent part:
      When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.

      (Emphasis added). As the circuit court noted in its order, the maximum penalty for uttering a forgery was fifteen years where the amount involved was $100 or more^ However, in 2003, the Legislature amended section 97-21-33 and reduced the maximum sentence to ten years where the amount involved was $500 or more. Under the amended statute, Sanford's period of incarceration (eight years) plus the period of post-release supervision (seven years) exceeded the maximum sentence allowed for uttering a forgery (ten years).


author: FAIR, J.,

text:
    Alfred HICKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01790-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Alfred Hicks, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Alfred Hicks, while an inmate in custody of the Mississippi Department of Corrections, was indicted for possession of a cell phone in violation of Mississippi Code section 47-5-193. He entered a guilty plea and was sentenced on June 26, 2008.

¶ 2. Hicks waited four years to file a motion for post-conviction relief (PCR) to vacate and set aside his conviction and sentence. Finding his motion untimely and that there existed no exception to the statutory-time bar, the trial court dismissed the motion. Aggrieved, Hicks appeals to this Court. We find no error and affirm the trial court’s judgment.

STANDARD OF REVIEW

¶ 3. When this Court reviews the trial court’s dismissal of a PCR motion, we “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo.” Terry v. State, 755 So.2d 41, 42 (¶ 4) (Miss.Ct.App.1999).

¶ 4. The proper interpretation of statutes is reviewed de novo. Tillis v. State, 43 So.3d 1127, 1131 (¶ 9) (Miss.2010). In statutory interpretation:

The first question is whether the statute is ambiguous. When a statute is unambiguous, this Court applies the plain meaning of the statute and refrains from the use of statutory construction principles. The Court may not enlarge or restrict a statute where the meaning of the statute is clear. In interpreting statutes, this Court’s primary objective is to employ that interpretation which best suits the legislature’s true intent or meaning.

(citations omitted).

DISCUSSION

¶ 5. Hicks had three years from the entry of the judgment of his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp. 2012). Generally, claims made outside of the three-year statute of limitations must raise one of the exceptions found in Mississippi Code Annotated section 99-39-5(2)(a)-(b). “Accordingly, we must look to see whether an exception to these procedural bars applies. The movant bears the burden of showing he has met a statutory exception.” Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss.Ct.App.2012) (citation omitted).

¶ 6. Also, “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). However, mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.App.Ct.2010). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id. (emphasis added).

¶ 7. While admitting that his motion was filed after the time-bar had arisen, Hicks asserts that the statute under which he was convicted is unconstitutionally vague beyond a reasonable doubt and, therefore, the procedural bar does not apply. He limited his motion, as well as this appeal, to the issue of the constitutionality of the statute under which he was convicted.

¶ 8. In Fulgham v. State, 47 So.3d 698 (Miss.2010), our supreme court addressed the constitutionality of an earlier version of Mississippi Code Annotated section 47-5-193 in great depth. The issue in that case was whether the statute was “void for vagueness.” Fulgham, 47 So.3d at 700 (¶ 7). That version of section 47-5-193 criminalized furnishing an inmate with an “unauthorized electronic device.” Id. at 703 (¶ 14). In that case, the electronic devices were a cell phone and charger. Id. at 699 (¶ 2). Fulgham pled guilty and thereafter, in a PCR motion, argued that failure to include that wording in the statute made it impermissibly vague, since the words “cell phone” and “charger” did not appear in the statute. See id. at (¶ 3).

¶ 9. The law governing claims of “void-for-vagueness” unconstitutionality of a statute was set out in detail in three separate opinions in Fulgham and requires no repetition. Moreover, as the opinions recognized, the statute has been amended twice so as to correct any vagueness in its terms. It now includes the terms “cell phone” and “charger.”

¶ 10. When Hicks was indicted and convicted on his guilty plea, the statute, as amended, clearly prohibited an “offender” from possessing a “cell phone.” The statute read:

It is unlawful for any officer or employee of the department, of any county sheriffs department, of any private correctional facility in this state in which offenders are confined, of any municipal or other correctional facility in this state, or for any other person or offender to possess, furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any weapon, deadly weapon, unauthorized electronic device, contraband item, or cell phone or any of its components or accessories.

Miss.Code Ann. § 47-5-193 (Rev.2011) (emphasis added).

¶ 11. Hicks has not shown the statute to be unconstitutionally vague beyond a reasonable doubt. He simply argues it is vague on its face. We find it is not. The judgment of the trial court is, therefore, affirmed.

¶ 12. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: ISHEE, J.,

text:
    The ESTATE OF Elsie LUSTER through its Administrator, Larry GUSMAN, Appellant v. MARDI GRAS CASINO CORP., Appellee.
    No. 2012-CA-01221-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      J. Richard Kanuch, attorney for appellant.

      David W. Stewart, Biloxi, Matthew Jason Sumrall, attorneys for appellee.
    Before IRVING, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This is a personal-injury action arising from a fall that occurred on property owned by Mardi Gras Casino Corp. (Mardi Gras). The original action was filed in the Hancock County Circuit Court in August 1998; however, that action was dismissed by the trial court in May 2009. A second complaint was filed immediately on behalf of the estate of Elsie Luster through its administrator, Larry Gusman. Mardi Gras subsequently filed a motion for summary judgment, which was granted in its favor. Gusman now appeals that decision, arguing the trial court erred by granting summary judgment because genuine issues of material fact existed. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On June 18, 1997, Luster visited Casino Magic, a property owned by Mardi Gras, in Bay Saint Louis, Mississippi. She was visiting the casino with a senior-citizen bus group sponsored by the New Orleans Recreational Department. Upon her arrival at the casino, Luster entered the gaming area. As Luster was exiting the gaming area headed to lunch, she fell on a carpeted area. Luster sustained various injuries. Luster has since passed away; however, there is no suggestion that her death is related to this incident.

¶ 3. On May 14, 2009, a complaint was filed on behalf of the estate of Luster through its administrator, Gusman. The complaint alleged that Luster fell due to a dangerous condition on the property that was not open and obvious. Luster allegedly sustained various mental and bodily injuries. The complaint sought $250,000 in damages.

¶ 4. On July 13, 2011, Mardi Gras sought summary judgment. Mardi Gras argued there was no evidence or testimony to establish that Luster’s fall was due to a dangerous condition on the premises. In fact, in Luster’s own deposition, she had said on multiple occasions that there was nothing to trip on and that she did not know how she fell. Therefore, Mardi Gras asserted no genuine issues of material fact existed.

¶ 5. On December 5, 2012, Gusman filed a memorandum in opposition to the motion for summary judgment. Attached to the memorandum were black-and-white copies of photographs with handwritten notations in the margins allegedly showing the dangerous condition. The photographs also purported to show a sign reading “Please watch your step — Uneven floor.” However, the sign was not present on the day Luster fell. Gusman alleged the photographs were taken and annotated by Luster’s daughter, Dorothy Gusman.

¶ 6. On July 2, 2012, after a hearing on the matter, the trial court granted summary judgment in favor of Mardi Gras. The trial court further declined to admit the photographs as evidence. The trial court found the photographs to be “unsupported by any deposition testimony, affidavit testimony, answers to interrogatories, or admissions in this case.” While Gus-man argued the photographs were admissible under an exception to the hearsay rule, the trial court held they were not properly authenticated. The trial court stated: “There is no indication who took the photographs, when they were taken, or why they were taken.” At the hearing, Gusman requested additional time under Mississippi Rule of Civil Procedure 56(f) to seek affidavits proving the authenticity of the photographs. The trial court found that the parties had sufficient time to conduct discovery, and denied the request.

¶ 7. Gusman now appeals the trial court’s grant of summary judgment. On appeal, Gusman argues that genuine issues of material facts existed as to Mardi Gras’s alleged negligence in allowing for a dangerous condition to exist on its premises. Although Gusman cites the trial court’s grant of summary judgment as his sole issue on appeal, we find Gusman also raises the issue of whether the trial court erred by failing to include the photographs and notations as evidence.

DISCUSSION

I. Summary Judgment

¶ 8. “The standard of review in considering on appeal a trial court’s grant or denial of summary judgment is de novo.” Sutherland v. Estate of Ritter, 959 So.2d 1004, 1007 (¶ 8) (Miss.2007) (citations omitted). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 9. “Under Mississippi law[,j proof of an injury is not the basis for premises liability!;] rather!,] negligence of the business owner must be shown.” Almond v. Flying J Gas Co., 957 So.2d 437, 439 (¶ 7) (Miss.Ct.App.2007) (citation omitted). When considering a premises-liability action, we must first determine the status of the injured party as an invitee, licensee, or trespasser. Thompson v. Chick-Fil-A, Inc., 923 So.2d 1049, 1052 (¶ 8) (Miss.Ct.App.2006) (citation omitted). Here, it is undisputed that Luster was an invitee. As such, Luster must prove: (1) the defendant’s negligence injured her; (2) the defendant had actual knowledge of the dangerous condition and failed to warn her; or (3) the condition existed for a sufficient amount of time so that the defendant should have had knowledge or notice of the condition. Id. at (¶ 9) (citing Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (¶ 8) (Miss.2000)).

¶ 10. In the instant case, there has been no evidence presented to establish that a dangerous condition existed or that Mardi Gras had knowledge of any dangerous condition if one did exist. In fact, Luster’s deposition contradicts the claim that she fell due to conditions on the premises. In her deposition, when asked how she fell, Luster responded: “I don’t know. It felt like maybe my foot may have stuck to the floor, you know, some of them rubber soled, they might have — it might have been from something like that. I don’t know. I really don’t know. All I know is I went down.” She was also asked: “Do you remember whether you tripped or whether your foot stuck to the floor?” She responded: “It wasn’t nothing to trip on, it was just floor. I ain’t saw nothing to fall on.” It is clear that Luster did not witness any defects in the floor. As noted above, proof of an injury is not the basis for premises liability; negligence is. While it is clear that an injury occurred, there is no evidence it was the result of Mardi Gras’s negligence.

II. Photographs/Notations

¶ 11. The photographs that Gus-man attempted to introduce allegedly show a defect in the floor, therefore creating a genuine issue of material fact. However, as noted above, the trial court refused to admit the photographs into evidence. It is well-settled law that we review the admission or suppression of evidence under an abuse-of-discretion standard. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003) (citation omitted). There are two aspects that must be considered: the photographs and the notations written next to the photographs.

¶ 12. With regard to the photographs, the trial court found they were not properly authenticated. Mississippi Rule of Evidence 901(a) states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Although the actual photographer need not testify regarding the photos, there must be some evidence that the pictures accurately reflect the area at the time of the incident. See Ford v. State, 975 So.2d 859, 867-68 (¶ 30) (Miss.2008); Smith v. State, 792 So.2d 343, 348 (¶ 22) (Miss.Ct.App.2001). Here, there was no evidence or testimony as to who took the photographs, when the photographs were taken, or where the photographs were taken. Accordingly, we agree with the trial court that the photographs were not properly authenticated.

¶ 13. With regard to the notations, the trial court found they were hearsay and did not meet any of the hearsay exceptions. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). This includes written assertions. M.R.E. 801(a). The notations were hearsay, as they were out-of-court written statements offered for the truth of the matter asserted.

¶ 14. Per Mississippi Rule of Evidence 802, hearsay is not admissible; however, there are certain exceptions to the hearsay rule. As such, the notations are inadmissible unless they fall under an exception to the hearsay rule. Gusman sought to introduce the statements under the exception to the hearsay rule found in Mississippi Rule of Evidence 804(b)(5), which states:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(5) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

¶ 15. Under Rule 804(b)(5) the declar-ant must be unavailable for the hearsay to be admissible. Gusman argues that Luster is unavailable; therefore, the rule is applicable. However, although the notations are signed “Mrs. Elsie Luster,” the narration is in the third person, and the evidence shows it was written by someone other than Luster. Therefore, the declar-ant of the written statements could have been available to testify, and Rule 804(b)(5) would be inapplicable.

¶ 16. Gusman then moved for relief under Mississippi Rule of Civil Procedure 56(f) for additional time to seek affidavits proving the authenticity of the photographs and notations. Rule 56(f) states: “Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained....” However, the trial court denied the request, citing Gusman’s failure to conduct any discovery since the filing of the complaint or in the eleven months since Mardi Gras filed for summary judgment. We agree with the trial court that Gusman had sufficient time to seek any affidavits needed to oppose summary judgment and failed to do so. This issue is without merit.

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

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

      . The original action was filed on August 26, 1998. In October 2008, after Luster's death, Mardi Gras filed a suggestion of death pursuant to Mississippi Rule of Civil Procedure 25 followed by a motion to dismiss in January 2009. The original action was dismissed in May 2009.


text:
    Angela Janette Lee KEITH, Appellant v. Sean Franklin KEITH, Appellee.
    No. 2012-CA-00186-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    Brandon L. Brooks, Hattiesburg, attorney for appellant.
    Renee M. Porter, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, Angela Janette Lee Keith and Sean Franklin Keith agreed to an irreconcilable-differences divorce. They negotiated the division of their assets and custody of their children, and signed a document reflecting their agreement. After presenting the document to the Forrest County Chancery Court at a hearing and testifying as to the veracity and consequences of the agreement, the court entered an order granting the divorce pursuant to the terms upon which the Keiths had agreed. Angela now appeals the grant of divorce, wanting to renegotiate the nature of the divorce and the terms of the agreement. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Angela and Sean were married on March 2, 1995. They have two children, a son who was born in October 1995 and a daughter who was born in November 1999. On March 30, 2009, Sean filed for divorce on the ground of habitual cruel and inhuman treatment. Angela filed her answer and counter-complaint for divorce citing habitual cruel and inhuman treatment, as well as adultery.

¶ 3. The case was set for trial on July 29, 2010. Approximately one week before the date of trial, Angela filed a motion for contempt. Accordingly, the chancellor agreed to hear the contempt motion on the first day of the trial.

¶ 4. However, on the day of the trial, before the contempt motion could be heard or the trial could begin, the parties entered into negotiations in an effort to settle the divorce amicably. The parties reached an agreed settlement later that day regarding property division and child custody. The agreement was handwritten on a legal pad, signed by both parties, and presented to the chancellor on July 29, 2010.

¶ 5. After reviewing the agreement, the chancellor asked the parties, under oath, if they were satisfied with the agreement they had reached. Both parties answered affirmatively. The chancellor continued with a line of questioning regarding the parties’ understanding of the finality of the settlement, their satisfaction with the settlement, and the consequences of having the court enter the settlement as a final order. The parties indicated that they were both fully aware of the contents of the settlement and the effects the settlement would have once entered as a judgment. As such, the chancery court entered the handwritten settlement document as an exhibit to the hearing, and ordered that the final judgment reflect its contents.

¶ 6. The chancery court next confirmed that Angela and Sean both wanted to withdraw their fault-based divorce grounds and conclude the matter as an irreconcilable-differences divorce. The parties acknowledged that this was their intent. Angela’s attorney also specifically stated to the chancery court that Angela wished to withdraw all fault-based grounds for divorce. As such, the hearing concluded with the parties being granted an irreconcilable-differences divorce, and all property and custody issues being settled per their specifications in the handwritten agreement.

¶ 7. The day after the proceedings were finalized, Angela entered a pro se motion in the case. The document stated that she was under duress when she signed the agreed settlement, and that she objected to the entry of divorce on the ground of irreconcilable differences. She also noted that she intended to retain new counsel.

¶ 8. Meanwhile, Sean’s attorney sent Angela’s attorney the proposed-agreement paperwork reflecting the agreed settlement and entry of an irreconeilable-differ-enees divorce. Sean’s attorney was then told that Angela refused to sign any documents, and would not withdraw her fault-based ground for divorce. In September 2010, Sean’s attorney filed a motion to enter the agreement regarding custody, the property settlement, and the irreconcilable-differences divorce. The motion was noticed for a hearing, which initially took place on December 10, 2010. Sean’s attorney was the only attorney present. After hearing Sean’s arguments, the chancery court entered an order dismissing all contested pleadings, granting the divorce based on irreconcilable differences, and reflecting the settlement as negotiated by the parties on July 29, 2010. The order specifically stated: “ORDERED AND ADJUDGED, this the 10th day of December, A.D., 2010 nunc pro tunc to July 29, 2010,” to reflect the agreement reached on the record the day of the original proceedings.

¶ 9. Angela retained new counsel, and filed a motion to set aside or reconsider the judgment of divorce. A hearing on the motion took place on September 8, 2011. After hearing arguments from both parties’ counsel, the chancellor found that the written agreement executed by both parties on July 29, 2010, met the criteria necessary to be a valid, binding, written agreement. The chancellor affirmed the judgment of divorce and the settlement in an order dated October 3, 2011. Therein, the chancellor also clarified certain aspects of the written agreement regarding child custody and child support. Aggrieved, Angela now appeals. She requests that this Court set aside the judgment of divorce and renegotiate the terms of the settlement.

DISCUSSION

¶ 10. It is well settled that appellate courts are bound by a limited standard of review in domestic-relations matters. See, e.g., Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). The Mississippi Supreme Court has held that a chancellor’s findings of fact, especially in domestic-relations cases such as the instant case, “will generally not be overturned by this Court on appeal unless they are manifestly wrong.” Fancher v. Pell, 831 So.2d 1137, 1140 (¶ 15) (Miss.2002) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)). The chancellor’s findings must have been “manifestly wrong, clearly erroneous[,] or an erroneous legal standard [must have been] applied,” for the findings to be overturned. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss.2000).

¶ 11. The statute governing irreconcilable-differences divorce provides, in pertinent part:

(2) If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.
(5) Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the ground of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.

Miss.Code Ann. § 93-5-2(2), (5) (Supp. 2012). Additionally, we have held that “announcing in open court the settlement of the dispute that is the purpose for that hearing, with a recital of the terms of the settlement into the record, followed by an agreement to end the hearing, reflects an intention to be bound at that time.” Bougard v. Bougard, 991 So.2d 646, 650 (¶ 21) (Miss.Ct.App.2008) (citation omitted).

¶ 12. Here, it is clear that on July 29, 2010, both Angela and Sean agreed to an irreconcilable-differences divorce based on their agreed-upon settlement. They each verbally indicated that they wished to withdraw their fault-based divorce grounds. The parties also submitted their written agreement regarding property division and child-related issues to the chancellor for approval on an irreconcilable-differences divorce. The following dialogue then occurred:

The Court: Mr. and Mrs. Keith, I have just a few questions of you. You each have previously filed proceedings to obtain a divorce or a statement of basis of fault grounds for divorce, and you have now negotiated through your parties, through your attorneys, with each other, and you are in agreement to file a motion to dismiss fault grounds, withdraw fault grounds, and consent for the marriage to be resolved on the basis of irreconcilable differences; is that correct?
Sean: Yes, sir.
Angela: Yes, sir.
The Court: You have negotiated property settlements; and for property[-]settlement agreement, you have executed a written agreement, your handwritten agreement, on this legal pad paper, that sets forth your property settlement agreement?
Angela: Yes, sir.
Sean: Yes, sir.
The Court: And each of you understand what you’ve agreed to with your property settlement and settled all questions of money between your—
Angela: Yes, sir.
Sean: Yes, sir.
The Court: You understand what you’ve agreed to?
Angela: Yes, sir.
Sean: Yes, sir.
The Court: So you’re telling me, and you’re under oath, that this is your agreement? And the [cjourt is authorized to enter it as a part of the court judgment when the proper written papers are presented here by your attorneys?
Sean: Yes, sir.
Angela: Yes, sir.
The Court: Alright. And you understand having done that, you can’t back out?
Angela: Yes, sir.
Sean: Yes, sir.
The Court: It’s written in stone, so to speak. You committed to it. And on the basis of this, when I’m presented with the other paper withdrawing so that I can sign the order withdrawing fault grounds and the final judgment. I will file the judgment for divorce, and it will be filed.
Angela: Yes, sir.
Sean: Yes, sir.
The Court: But you will sign by it now. You can’t back out.
Angela: Yes, sir.
The Court: Alright — on your representations, and I will approve it, and it is approved. And I will sign those documents when they’re presented to me in proper form.

Angela’s attorney at the time then informed the chancellor that Angela wished to withdraw all fault grounds, which the chancellor approved.

¶ 13. As such, Sean and Angela properly executed an irreconcilable-differences divorce. Their property-settlement agreement was executed in writing and signed by both parties, thereby meeting by the requirement of Mississippi Code Annotated section 93-5-2(2). Moreover, the chancellor questioned both parties regarding their desire to enter into an irreconcilable-differences divorce. Both parties acknowledged their desire to enter into the irreconcilable-differences divorce and to abide by the agreed-upon settlement. The chancellor thoroughly discussed the consequences of approving the settlement, including the finality of the approval. Angela acknowledged that she was entering into a binding agreement to divorce Sean pursuant to the terms of the settlement and on the basis of irreconcilable differences. She cannot now renegotiate the nature or the terms of the divorce. This issue is without merit.

¶ 14. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BRYAN, Justice.

text:
    Anthony HAYWOOD and Daniel Hall v. Dorothy “Jean Dot” ALEXANDER.
    1111316.
    Supreme Court of Alabama.
    Feb. 22, 2013.

      Raymond C. Bryan of The Bryan Law Firm LLC, Anniston, for appellants.
   BRYAN, Justice.

Anthony Haywood and Daniel Hall have appealed a judgment of the Clay Circuit Court, dismissing claims against Sheriff Dorothy “Jean Dot” Alexander, which were filed as part of a counterclaim in an action filed against Phillip Eugene Green, Haywood, and Hall by Scott Cotney, an administrator at the Clay County jail (“the jail”). We affirm the judgment in part, reverse it in part, and remand the case for further proceedings.

Facts and Procedural History

In 2010, Cotney sued Green, a former correctional officer at the jail, and Haywood and Hall, former inmates at the jail, alleging defamation, slander, libel, invasion of privacy, negligence, and wantonness. The claims resulted from a report filed by Green, Haywood, and Hall with the Alabama Department of Corrections, claiming that Cotney had used his position as an administrator at the jail to sexually abuse and/or to assault Haywood and Hall while they were incarcerated in the jail.

Haywood and Hall filed a counterclaim against Cotney, pursuant to 42 U.S.C. § 1988, alleging that Cotney had violated Haywood’s and Hall’s rights under the Fourth, Eighth, and Fourteenth Amendments of the United States Constitution. Haywood and Hall also named as counterclaim defendants the Clay County Commission (“the commission”) and Sheriff Alexander, in her official and individual capacities. Haywood and Hall alleged “that Sheriff Alexander ... had knowledge of [Cotney’s] unlawful acts ... and permitted the abuse to occur.” Haywood and Hall’s brief, at 2. Arguing a theory of supervisor liability, Haywood and Hall “made the same claims against her as were made against Cotney in addition to a claim for negligent supervision.” Id.

Cotney denied the allegations in the counterclaim, and the commission and Sheriff Alexander moved the circuit court to dismiss the counterclaim against them, citing Rule 12(b)(6), Ala. R. Civ. P. Haywood and Hall consented to the dismissal of the claims against the commission; those claims were dismissed. After a hearing, the circuit court dismissed the claims against Sheriff Alexander as well, stating simply that the commission and Sheriff Alexander’s motion to dismiss was “well-taken.” The circuit court certified its judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P., and Haywood and Hall appealed.

Issues

Haywood and Hall argue that the circuit court erred in granting Sheriff Alexander’s motion to dismiss the claims against her. Specifically, they argue (1) that their failure to identify Sheriff Alexander as a third-party defendant rather than a counterclaim defendant was not fatal to their complaint; (2) that Haywood and Hall were convicted felons, not pretrial detainees, during the relevant period and therefore had certain rights under the Eighth Amendment, which were violated; (8) that Haywood’s and Hall’s rights pursuant to the Fourth Amendment were violated because they were subject to “numerous acts of unlawful strip searches and bodily invasion perpetrated upon them by Cotney while he was the administrator of the [jail]”; (4) that Sheriff Alexander is not entitled to immunity under the Eleventh Amendment of the United States Constitution on the federal claims against her in her official capacity, or to State immunity pursuant to Article I, § 14, Alabama Constitution 1901, on the state-law claims against her in both her individual and official capacities; and (5) that Sheriff Alexander is not entitled to qualified immunity on the federal claims against her.

Standard of Review

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted).

Analysis

The circuit court did not specify in its judgment of dismissal the reasons it granted Sheriff Alexander’s motion to dismiss. On appeal, Haywood and Hall attack the several grounds presented in the motion, arguing that none of those grounds provided a proper basis for dismissing the claims against Sheriff Alexander.

First, Haywood and Hall note that Sheriff Alexander argued in her motion that “[t]he asserted ‘counterclaims’ [were] not, in fact, counterclaims and [were] instead third party claims that [were] due to be dismissed.” She went on to argue:

“Sheriff Alexander [is] not [a] partfy] to the original lawsuit in this matter. [She is], instead, [a] third partfy] to the initial lawsuit. It is therefore a misnomer to call the claims against [her] ‘Counter Claims,’ because counterclaims under Rule 13 of the Alabama Rules of Civil Procedure are asserted only against the original plaintiff(s).”

However, as Haywood and Hall note, Rule 13(h), Ala. R. Civ. P., provides: “Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20[, Ala. R. Civ. PJ.” Rule 20(a), Ala. R. Civ. P., provides, in pertinent part:

“All persons may be joined in the action as defendants if there is asserted against them jointly, severally, or in the alternative, any right of relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.”

The claims alleged against Sheriff Alexander in the counterclaim based on her supervisory responsibilities for Cotney and for the jail clearly arise out of the same transactions or occurrences as do the claims against Cotney. Thus, pursuant to Rules 13(h) and 20(a), Ala. R. Civ. P., the addition of Sheriff Alexander to the action as a counterclaim defendant and not as a third-party defendant was proper, and Sheriff Alexander was not entitled to have the claims against her dismissed on the basis that it was error to do so. See also Century 21 Paramount Real Estate, Inc. v. Hometown Realty, LLC, 34 So.3d 658, 663 (Ala.2009) (“Rule 13(h) provides that persons other than the original parties to the action may be joined in accordance with Rule 20 as additional defendants in connection with a party’s filing of a counterclaim. Rule 20(a) provides that all persons may be joined in one action as defendants if the claims against them arise out of the same transactions or occurrences.”). Sheriff Alexander has submitted no brief to this Court and thus has made no argument to the contrary.

Haywood and Hall next argue:

“Sheriff Alexander argued in the lower court that the claim against her for violation of civil and constitutional rights under the ... Eighth Amendment to the Constitution of the United States should be dismissed because Hall and Haywood were ‘pre-trial detainees’ and ‘only the Fourteenth Amendment could actually apply’ to their claims.”

Haywood and Hall’s brief, at 25. In her motion to dismiss, Sheriff Alexander argued that, “as pre-trial detainees, only the Fourteenth Amendment could actually apply to these claims, as the Eight[h] Amendment applies only to convicted prisoners,” and cited Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), in support of her argument. The Supreme Court in Bell stated:

“The Court of Appeals properly relied on the Due Process Clause rather than the Eighth Amendment in considering the claims of pretrial detainees. Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be ‘cruel and unusual’ under the Eighth Amendment. The Court recognized this distinction in Ingraham v. Wright, 430 U.S. 651, 671-672, n. 40 (1977): ‘Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. See United States v. Lovett, 328 U.S. 303, 317-318 (1946).... [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.’ ”

Bell, 441 U.S. at 537 n. 16.

However, Haywood alleges that he was abused at the jail from 2008 to 2010; Hall alleges that he was abused after his transfer to the jail in 2008. Haywood was a pretrial detainee in early 2008, but he entered a guilty plea later that year to, among other things, a charge of unlawful possession of a controlled substance. Thus, Haywood was a convicted felon for at least part of the relevant period. See § 13A-12-212(b), Ala.Code 1975 (“Unlawful possession of a controlled substance is a Class C felony.”). Hall pleaded guilty in 2006 to third-degree burglary and, therefore, was a convicted felon during the relevant period. See § 13A-7-7(b), Ala.Code 1975 (“Burglary in the third degree is a Class C felony.”). Therefore, Sheriff Alexander was not entitled to have the Eighth Amendment claims against her dismissed on the basis that Haywood and Hall were pretrial detainees to whom the protections of the Eighth Amendment did not apply.

Sheriff Alexander also argued in the court below that Haywood’s and Hall’s Fourth Amendment claims against her should be dismissed because they had not alleged that she “personally participated in any type of search or seizure of [Hall and Haywood].” Haywood and Hall do not dispute that Sheriff Alexander did not personally participate in the searches they allege violated the Fourth Amendment. They argue, instead:

“Haywood and Hall claim violations of their Fourth Amendment right under the United States Constitution to be free from unlawful search and seizure as they were the victims of numerous acts of unlawful strip searches and bodily invasion perpetrated upon them by Cot-ney while he was the administrator of the [jail]. Sheriff Alexander has legal responsibility and supervisor liability for Cotne/s wrongful conduct as she ‘has the legal custody and charge of the jail in her county and all prisoners committed thereto’ and thus has supervisory responsibility over Cotney.”

Haywood and Hall’s brief, at 26 (emphasis added).

“ ‘ “Supervisor liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and [she] fails to do so. The deprivations that constitute widespread abuse sufficient to notice the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.” ’ ”

Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 403 (Ala.2003) (quoting Braddy v. Florida Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 802 (11th Cir.1998), quoting in turn Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990) (emphasis omitted)).

Haywood and Hall’s counterclaim alleges that Sheriff Alexander

“had knowledge that Hall and Haywood were being subjected to sexual assault on an ongoing and continuous basis while in the custody of [Sheriff Alexander] yet did not take appropriate action. [Sheriff Alexander], despite knowledge of customs and practices of the Clay County jail in the exploitation of its inmates and the opportunity created thereby for abuse, did not take appropriate action to prevent such abuse and did thereby deprive [Haywood and Hall] of their rights against cruel and unusual punishment, invasion of their right to privacy and bodily integrity and due process rights under the Fourth, Eighth and Fourteenth Amendments] to the Constitution of the United States in violation of 42 U.S.C. § 1983.”

Thus, the counterclaim alleges “a causal connection between actions of [Sheriff Alexander (i.e., her failure to address the alleged ‘ongoing and continuous’ sexual assault of Clay County inmates),] and the alleged constitutional deprivation [ (i.e., the violation of Haywood’s and Hall’s Fourth Amendment rights) ].” Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 403. Therefore, pursuant to this Court’s decision in Ex parte Alabama Department of Youth Services, Sheriff Alexander is not entitled to have Haywood’s and Hall’s Fourth Amendment claims against her dismissed on the basis that she cannot be held vicariously liable for the alleged violations.

Haywood and Hall next argue:

“Sheriff Alexander is not entitled to absolute immunity pursuant to the Eleventh Amendment to the Constitution of the United States. Her argument in the [circuit] court that she has absolute immunity against state law claims due to her position as an executive officer of the State of Alabama under Article I, § 14 of the Alabama Constitution of 1901, should fail.”

Haywood and Hall’s brief, at 28.

Sheriff Alexander argued in her brief in support of her motion to dismiss that “[t]he federal claims against [her] in her official capacity are barred by the Eleventh Amendment to the United States Constitution.” She also argued that, “as an executive officer of the State, [she] is immune from suit under Article I, § 14 of the Alabama Constitution of 1901. This section immunizes Sheriff Alexander from all state law claims, even though she is [being] sued in her individual and official capacities.”

With regard to the state-law claims, Sheriff Alexander cited, among other cases, Hereford v. Jefferson County, 586 So.2d 209 (Ala.1991), in which this Court held that a sheriff was entitled to State immunity under § 14 on claims against him in both his individual and official capacities. This Court stated:

“In Parker v. Amerson, 519 So.2d 442 (Ala.1987), the Eleventh Circuit Court of Appeals asked this Court to decide whether a sheriff is an employee of a county for purposes of holding the county vicariously liable. We held that a sheriff is an employee of the state, rather than a county, based on the following constitutional provision: ‘The executive department shall consist of a governor ... and a sheriff for each county.’ Article V, § 112, Alabama Constitution of 1901. As executive officers, sheriffs have sovereign immunity under Article I, § If, of the Alabama Constitution, which reads: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’ The only exceptions to such immunity are for actions brought against a sheriff:
“ ‘(1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the Statute.’ ”

586 So.2d at 210 (quoting Parker, 519 So.2d at 443 (emphasis added)). Haywood and Hall have not argued that any of the exceptions listed in Hereford apply to their claims against Sheriff Alexander. Nor have they cited any authority to support their argument that Sheriff Alexander is not entitled to immunity on the state-law claims against her.

Similarly, Haywood and Hall have not cited any authority for their argument that Sheriff Alexander is not entitled to immunity on the federal claims against her in her official capacity. As the United States Court of Appeals for the Eleventh Circuit has noted, claims against a sheriff in his or her official capacity made pursuant to § 1983 are prohibited by the Eleventh Amendment to the United States Constitution. See Dean v. Barber, 951 F.2d 1210, 1215 n. 5 (11th Cir.1992) (“Dean’s suit, to the extent that it attempts to hold Sheriff Bailey or other members of the Jefferson County Sheriffs Department liable in their official capacity under section 1983, is barred because the sheriffs are employees of the State of Alabama. Dean’s suit against the sheriffs in their official capacity, therefore, is prohibited by the Eleventh Amendment because the State of Alabama is the real party in interest.”).

Haywood and Hall have not demonstrated that the circuit court erred in dismissing the federal claims against Sheriff Alexander in her official capacity or the state-law claims against Sheriff Alexander in her official and individual capacities. Therefore, the circuit court’s judgment is due to be affirmed with regard to those claims.

Haywood and Hall also argue that Sheriff Alexander is not entitled to qualified immunity on the federal claims against her in her individual capacity. This Court has stated:

“ ‘[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’
“Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). ‘Qualified immunity is designed to allow government officials to avoid the expense and disruption of going to trial, and is not merely a defense to liability.’ Hardy v. Town of Hayneville, 50 F.Supp.2d 1176, 1189 (M.D.Ala.1999). ‘An official is entitled to qualified immunity if he is performing discretionary functions and his actions do “ ‘not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”” Hardy, 50 F.Supp.2d at 1189 (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1424 (11th Cir.1997)).
“‘While the defense of qualified immunity is typically addressed at the summary judgment stage of a case, it may be, as it was in this case, raised and considered on a motion to dismiss. See Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.2001). The motion to dismiss will be granted if the “complaint fails to allege the violation of a clearly established constitutional right.” Id. (citing Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.1997)). Whether the complaint alleges such a violation is a question of law that we review de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiffs favor. Id.’”

Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 402-03 (quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir.2002) (emphasis omitted)).

In Ex parte Alabama Department of Youth Services, this Court addressed, among other things, whether the executive director of the Department of Youth Services (“DYS”), J. Walter Wood, Jr., could be liable under a theory of supervisory responsibility for injuries to minor plaintiffs resulting from sexual assaults allegedly committed by DYS employees while the minor plaintiffs were in the custody of DYS.

“The [minor] plaintiffs alleged a claim against Wood under 42 U.S.C. § 1983 for deliberate indifference to their ‘rightfs] to personal safety, security and privacy, guaranteed by the Fourteenth Amendment’ while Wood was ‘acting under color of state law.’ The [minor] plaintiffs alleged that Wood ‘failed to develop, implement or administer procedures or policies reasonably designed to provide protection for the minor Plaintiffs from sexual harassment and abuse’; failed ‘to prevent male employees of DYS from sexually abusing and harassing them’; failed ‘to investigate prior complaints’ against [certain employees]; and failed ‘to protect the Plaintiffs from harm and from further harm after [Wood] received notice of the sexual harassment and abuse and the potential for sexual harassment of them.”

880 So.2d at 397.

Wood moved to dismiss the federal claims against him in his individual capacity “on the ground[] of federal qualified immunity.” Id. After reviewing the relevant law, this Court concluded:

“The [minor] plaintiffs’ complaint alleges Wood’s violation of their clearly established constitutional right to ‘bodily integrity’ pursuant to the Fourteenth Amendment to the United States Constitution. The [minor] plaintiffs’ complaint further alleges that Wood failed ‘to protect the plaintiffs from harm and from further harm after he received notice of the sexual harassment and abuse and the potential for sexual harassment’ ... committed by DYS employees against the plaintiffs. Therefore, Wood has not shown a clear legal right to a dismissal of the [minor] plaintiffs’ § 1983 claim on the ground of federal qualified immunity.”

880 So.2d at 403 (citation and emphasis omitted).

Here, Sheriff Alexander, like Wood, argued that she was entitled to qualified immunity on the federal claims against her in her individual capacity. However, Haywood and Hall’s counterclaim, like the complaint in Ex parte Department of Youth Services, alleged that Sheriff Alexander’s failure to act led to a violation of their constitutional rights. They alleged, among other things:

“35. [Sheriff] Alexander, acting under color of state law within the meaning prescribed by 42 U.S.C. § 1983, [was] deliberately indifferent to the Plaintiffs’ safety in that [she] had knowledge that Hall and Haywood were being subjected to sexual assault on an ongoing and continuous basis while in the custody of [Sheriff Alexander] yet did not take appropriate action. [Sheriff Alexander], despite knowledge of customs and practices of the Clay County jail in the exploitation of its inmates and the opportunity created thereby for abuse, did not take appropriate action to prevent such abuse and did thereby deprive the Plaintiffs of their rights against cruel and unusual punishment, invasion of their right to privacy and bodily integrity and due process rights under the Fourth, Eighth and Fourteenth Amendment to the Constitution of the United States in violation of 42 U.S.C. § 1983.
“38. [Sheriff Alexander] [has] consistently acted with deliberate indifference to the safety needs of inmates in the county jail, including Hall and Haywood, by violating clearly established statutory and/or constitutional rights of which a reasonable person would know and that such violation directly caused [Haywood and Hall] to be subjected to sexual assault and exploitation in violation of their due process rights to be free from cruel and unusual punishment and unlawful invasion of privacy and bodily integrity.”

Thus, Haywood and Hall, like the minor plaintiffs in Ex parte Alabama Department of Youth Services, “[have] allege[d] the violation of a clearly established constitutional right,” 880 So.2d at 402, and, therefore, Sheriff Alexander “has not shown a clear legal right to a dismissal of [Haywood’s and Hall’s] § 1983 claim[s] on the ground of federal qualified immunity.” 880 So.2d at 403.

Similarly, in Ex parte Hale, 6 So.3d 452 (Ala.2008), Emma Jean Jenkins, representing the estate of Belinda Denise Hodge, alleged, among other things, that Sheriff Mike Hale’s failure to adequately train the staff of the Jefferson County jail proximately caused violations of Hodge’s constitutional lights. This Court stated:

“Jenkins was required to plead that Sheriff Hale’s ‘improper “custom or policy ... resulted in deliberate indifference to constitutional rights[.]” ’ Hartley [v. Parnell], 193 F.3d [1263,] 1269 [(11th Cir.1999) ]. In her complaint, Jenkins alleges that ‘[Sheriff Hale] ... had policies and/or customs in place that caused medical treatment to be denied to inmates of the County Jail’ and that ‘the failure of [Sheriff Hale] ... to correct these policies and/or customs ... enabled Sheriffs Deputies, jail personnel and/or medical personnel to deprive Hodge ... of [her] constitutional rights.’ Jenkins’s brief, Exhibit B. Jenkins’s ‘complaint allege[s] the violation of a clearly established constitutional right.’ Ex parte Alabama Department of Youth Services, 880 So.2d at 402. Therefore, at this stage of the proceedings, Sheriff Hale is not entitled to a dismissal of Jenkins’s § 1983 claim against him based on qualified immunity and, thus, is not entitled to mandamus relief on this issue.”

Ex parte Hale, 6 So.3d at 462-63.

Haywood and Hall, like Jenkins, have alleged that

“[Sheriff Alexander], acting with deliberate indifference, among other things, failed to develop and implement adequate policies and procedures and failed to train personnel under [her] supervision, with the foreseeable result that inmates such as Hall and Haywood would be exploited and abused for sexual gratification.”

Haywood and Hall have also alleged that “[t]he sexual abuse, emotional and psychological harm, pain and suffering inflicted upon Haywood and [Hall] is directly attributable to the customs and/or policies of [Sheriff Alexander]” and that Sheriff Alexander

“failed to develop and implement adequate policies and procedures for the protection of and safety of inmates entrusted into [her] custody such as to protect inmates from the abuse alleged herein and failed to train personnel regarding the proper handling of inmates and the requirement of reporting misconduct by correction officers that impacts or jeopardizes inmate safety. These longstanding systematic failures constitute policies and/or customs of [Sheriff Alexander] that made it foreseeable that sexual exploitation and abuse of Hall and Haywood would occur at the hands of [Cotney], thereby depriving Hall and Haywood of their rights against cruel and unusual punishment, invasion of their right to privacy and bodily integrity and due process rights under the Fourth, Eighth and Fourteenth Amendments] to the Constitution of the United States in violation of 42 U.S.C. § 1983.”

Viewing the allegations in the counterclaim “most strongly in [Haywood’s and Hall’s] favor,” Nance, 622 So.2d at 299, we conclude that the counterclaim in this case does, in fact, allege violations of the constitutional rights set forth in the Fourth, Eighth, and Fourteenth Amendments of the United States Constitution. Therefore, “at this stage of the proceedings, Sheriff [Alexander] is not entitled to a dismissal of [the] § 1983 claimfs] against [her] based on qualified immunity.” Ex parte Hale, 6 So.3d at 463.

Finally, Haywood and Hall argue that they were not required to comply with any heightened pleading standards for claims made pursuant to § 1983. Citing GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359 (11th Cir.1998), Sheriff Alexander argued that “[t]he Counterclaim-ants’ claims under § 1983 are also due to be dismissed as those claims fail to meet the heightened pleading standard required for properly pleading such claims.”

However, as Haywood and Hall note, this Court stated in Ex parte Hale that the Court

“ ‘ “may rely on a decision of any federal court, but it is bound by the decisions of the United States Supreme Court.” ’ Because we are not bound by the decisions of the Eleventh Circuit and because Sheriff Hale has not asked us to adopt the ‘heightened pleading standard’ applied by the Eleventh Circuit, we do not address whether this standard is applicable under Alabama law, nor do we apply such a heightened pleading standard in this case.”

6 So.3d at 458 n. 5 (quoting Weems v. Jefferson-Pilot Life Ins. Co., 663 So.2d 905, 913 (Ala.1995), quoting in turn Ex parte Gurganus, 603 So.2d 903, 908 (Ala.1992) (Shores, J., concurring specially) (emphasis omitted)).

Sheriff Alexander has not filed a brief with this Court and has thus not asked this Court to adopt any heightened pleading standards for § 1983 claims. Therefore, we do not apply any such standard in this case, and Sheriff Alexander is not entitled to have the § 1983 claims dismissed on that basis.

Conclusion

Haywood and Hall have not demonstrated any error in the circuit court’s decision to dismiss the federal claims against Sheriff Alexander in her official capacity or the state-law claims against her in both her official and individual capacities. Therefore, the circuit court’s judgment is affirmed insofar as it dismissed those claims. However, for the reasons set forth in this opinion, at this stage of the proceedings Sheriff Alexander is not entitled to a dismissal of the federal claims against her in her individual capacity. Therefore, we reverse the circuit court’s judgment in that regard and remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . No argument was made in either the motion to dismiss or in Haywood and Hall's brief on appeal as to whether "unlawful strip searches and bodily invasion" constitute "illegal searches or seizures” for purposes of the Fourth Amendment. Therefore, we do not address that issue at this time.

      . Haywood and Hall argue that Sheriff Alexander is not entitled to qualified immunity on any of the claims against her. Because we have determined that she is entitled to immunity on the federal claims against her in her official capacity and on all state-law claims against her, our analysis with regard to qualified immunity is limited to the federal claims against Sheriff Alexander in her individual capacity.

      . This opinion does not address the merits of the claims against Sheriff Alexander. Nor does "[o]ur opinion in this case ... address any defense other than [Sheriff Alexander's] claims of immunity ... [or] foreclose a reassertion of the immunity claims by way of a motion for summary judgment after appropriate discovery.” Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 405.


author: STUART, Justice.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY and State Farm Mutual Automobile Insurance Company v. Barbara Walker WOOD, as administratrix of the estate of D.V.G., a minor, deceased, and K.C.T., a minor, by and through Earnest T., his father and next friend.
    1111486.
    Supreme Court of Alabama.
    Feb. 22, 2013.

      Ralph D. Gaines III and Travis I. Keith of Gaines, Gault, Hendrix & Bishop, P.C., Birmingham, for Nationwide Mutual Insurance Company.
    Bert S. Nettles, C. Dennis Hughes, and Maridi Thompson Huggins of Haskell Slaughter Young & Rediker, LLC, Birmingham; and Ronald G. Davenport and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., for State Farm Mutual Automobile Insurance Company.
    Michael Lipscomb of Lipscomb & Lipscomb, Bessemer; and Stan Brobston of Brobston & Brobston, Bessemer, for Barbara Walker Wood, as administratrix of the estate of D.V.G., a minor deceased.
   STUART, Justice.

Nationwide Mutual Fire Insurance Company (“Nationwide”) and State Farm Mutual Automobile Insurance Company (“State Farm”) filed a declaratory-judgment action in the United States District Court for the Northern District of Alabama, Southern Division, seeking, among other things, a determination of the status of a settlement agreement they had reached with D.V.G., a minor, resolving her claims for coverage stemming from injuries she received in an automobile accident, following her death in a subsequent unrelated automobile accident before the Jefferson Circuit Court approved that settlement agreement. The federal district court ultimately concluded that the issue presented involved a question of Alabama law for which there was no clear controlling precedent, and it therefore certified the following question to this Court pursuant to Rule 18, Ala. RApp. P.:

“Under Alabama law, is an insurance company bound to a settlement agreement negotiated on behalf of an injured minor, if that minor dies before the scheduling of a pro ami hearing which was intended by both sides to obtain approval of the settlement?”

We consented to answer the question, and we now answer it in the affirmative.

I.

The federal district court provided the following statement of facts, which was stipulated to by the parties, in the certification order filed with this Court on August 17, 2012:

“On or about March 16, 2011, D.V.G. was an occupant of a vehicle driven by K.C.T. that was involved in a single-vehicle motor vehicle accident in Hoover, Alabama. At the time of the subject accident, the vehicle occupied by D.V.G. and driven by K.C.T. was insured under a policy of insurance issued by [Nationwide]. This Nationwide policy provided for personal injury liability coverage. At the time of the subject accident, D.V.G. also possessed uninsured/under-insured motorist coverage under a policy of insurance issued by [State Farm].
“Stan Brobston, acting as attorney for D.V.G., who was a minor at the time of the subject collision, made insurance claims for personal injury against K.C.T., who submitted the claim under the Nationwide liability policy and for uninsured/underinsured motorist coverage under the State Farm policy, but did not file suit. On or about August 5, 2011, a letter was written to Ralph D. Gaines, III [attorney for Nationwide], and forwarded to Stan Brobston, as counsel for D.V.G., confirming that Nationwide was tendering its bodily injury liability limits of $50,000.00 to D.V.G. On or about September 7, 2011, State Farm informed Stan Brobston, as counsel for D.V.G., that it was tendering its available uninsured/underinsured motorist limits of $50,000.00 to D.V.G. The offers made by Nationwide and State Farm, which totaled $100,000, were accepted by Stan Brobston as the attorney for D.V.G. It was the understanding of all parties that the settlement needed to be submitted to the Circuit Court of Jefferson County for approval.
“On or about September 15, 2011, D.V.G. passed away as the result of injuries sustained in an unrelated motor vehicle accident that occurred on that date. The parties agree that D.V.G.’s death was not related to the alleged injuries sustained in the subject accident on March 16, 2011. As of the date of her death, there had been no complaint filed by or on behalf of D.V.G., asserting claims for personal injury of UM/UIM benefits against K.C.T. and/or State Farm in relation to the automobile accident occurring on March 16, 2011. No pro ami hearing was ever held, and a court never approved the settlement.”

II.

The relevant facts in this case are undisputed. “Because the issues before us involve only the application of law to undisputed facts, our review is de novo.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 810 (Ala.2005) (citing Alfa Mut. Ins. Co. v. Small, 829 So.2d 743, 745 (Ala.2002); and Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).

III.

“Under the Alabama survival statute, § 6-5-462, Ala.Code 1975, an unfiled claim sounding in tort will not survive the death of the person with the claim, Malcolm v. King, 686 So.2d 231 (Ala.1996); Georgia Cas. & Sur. Co. v. White, 582 So.2d 487 (Ala.1991). A claim on a contract, on the other hand, survives in favor of a decedent’s personal representative, regardless of whether the decedent had filed an action before his death, McCulley v. SouthTrust Bank of Baldwin County, 575 So.2d 1106 (Ala. 1991); Benefield v. Aquaslide ‘N’ Dive Corp., 406 So.2d 873 (Ala.1981).”

Brooks v. Hill, 717 So.2d 759, 763 (Ala.1998). Thus, it is undisputed that any potential tort claims D.V.G. held were extinguished when she died; the issue before us is whether she held any contractual claims at her death that are now enforceable by the administratrix of her estate, her mother Barbara Walker Wood. Wood argues that the settlement agreed to by D.V.G.’s attorney Stan Brobston and Nationwide and State Farm is a valid contract that Wood can now enforce. Nationwide and State Farm argue that the settlement agreement was an executory contract that would not be complete and binding until it was approved by the Jefferson Circuit Court following a pro ami hearing. Alternatively, they argue that, even if the settlement agreement was a binding and enforceable contract, the pro ami hearing was a condition precedent to the performance of the contract and that hearing is now impossible as a result of the death of D.V.G.; consequently, they argue, their duty to perform under the contract is discharged.

Based on the stipulated facts, it is apparent that a contract did exist at the time of D.V.G.’s death. Nationwide and State Farm have argued that a minor lacks capacity to contract and cannot enter into a binding settlement of his or her potential claims; however, this argument is incom-píete. As this Court has stated, “ ‘[i]t is well settled by the authorities that infants are not liable on any of their contracts, except for necessaries. With the exception, all other contracts of infants, whether executory or executed, may be avoided or ratified at the election of the infant.’ H & S Homes, L.L.C. v. McDonald, 823 So.2d 627, 630 (Ala.2001) (quoting Harris v. Raughton, 37 Ala.App. 648, 649, 73 So.2d 921, 922 (1954) (emphasis added)). See also Davis v. Turner, 337 So.2d 355, 361 (Ala.Civ.App.1976) (stating that contracts entered into by minors are “not void, but voidable only” and “not totally ineffectual, [but] merely unenforceable if later repudiated”). Thus, at the time the settlement was agreed to, a contract was formed that was binding upon Nationwide and State Farm but voidable at D.V.G.’s election. See also White v. Allied Mut. Ins. Co., 29 Kan.App.2d 797, 802, 31 P.3d 328, 332 (2001) (minor not bound by settlement agreement until court approval was obtained, but other party was “bound not to revoke or attempt to withdraw its offer” prior to the court hearing); Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir.1978) (settlement was voidable at election of minor until approved by the court); and Danes v. Automobile Underwriters, Inc., 159 Ind.App. 505, 511, 307 N.E.2d 902, 906 (1974) (settlement of minor’s claim not void ab initio but voidable until court approval is obtained).

Nationwide and State Farm nevertheless argue that the fact that no hearing was held to allow a court to approve the settlement — a hearing that all parties agree was required to take place — nullifies the agreed-upon settlement and releases them from their obligations under that settlement either because the contract was mutually executory or because the contemplated hearing was a condition precedent to their performance. Either argument is premised on the theory that the hearing and court approval is now impossible because of D.V.G.’s death — if D.V.G. cannot execute her obligation to obtain court approval of the settlement, Nationwide and State Farm argue, then they are likewise excused from fulfilling their obligations of paying her the sums agreed upon in the settlement, and, if obtaining court approval was a condition precedent, their duty to perform under the settlement agreement does not arise until that act is accomplished. See Lemoine Co. of Alabama, L.L.C. v. HLH Constructors, Inc., 62 So.3d 1020, 1025 n. 5 (Ala.2010) (noting that “Black’s Law Dictionary defines ‘condition precedent’ as ‘[a]n act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.’ Black’s Law Dictionary 812 (8th ed.2004).”).

However, although Nationwide’s and State Farm’s arguments are based on sound principles of contract law, they nevertheless ultimately fail because they are based on the unsupported premise that D.V.G.’s death makes it impossible for the settlement agreement to be submitted to the Jefferson Circuit Court for approval. As Wood argues in her brief:

“[Nationwide and State Farm] here take the position that [D.V.G.’s] death prior to a pro ami hearing makes, fortuitously for them, such a hearing impossible. However, no citation is given for such a proposition. All of the evidence necessary for a trial court to make a pro ami determination abides. A hearing to approve the agreement could yet be held but for the refusal on the part of [Nationwide and State Farm] in the instant case.”

Wood’s brief, pp. 6-7. In their briefs, Nationwide and State Farm counter that they have cited Mayo v. Andress, 373 So.2d 620, 625 (Ala.1979), for the proposition that D.V.G.’s death makes a pro ami hearing impossible; however, that citation supports only the general proposition that “the promisor must perform unless the performance is rendered impossible by act of God, by the law, or by the other party.” (Torbert, C.J., concurring specially). Mayo in no way indicates that it would be impossible for a trial court to rule on whether a contract agreeing to settle a minor’s claims was in the minor’s best interest, though the minor is now deceased. For all that appears, the evidence required for such a hearing in this case is still available, even though the now deceased minor is not. It is established law that a decedent’s contract claims survive his or her death, and, because we have held that the settlement agreement was a contract voidable at D.V.G.’s election, we can think of no reason why a trial court could not make a determination of the fairness of that contract even after the minor’s death. For these reasons, we answer the certified question in the affirmative.

IV.

Under Alabama law, an insurance company is bound to a settlement agreement negotiated on behalf of an injured minor, even if that minor dies before the scheduling of the court hearing that all parties agreed was necessary to obtain approval of the settlement agreement. In accordance with the parties’ understanding, such a hearing is still required, and the minor’s death does not render that hearing impossible. We thus answer in the affirmative the question certified to this Court.

QUESTION ANSWERED.

MOORE, C.J., and BOLIN, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

      . There was apparently some argument in the federal district court as to whether the offer and acceptance communicated between attorneys was sufficient to establish a settlement agreement. However, the question as certified assumes the existence of a settlement agreement, and, for purposes of this opinion, we do likewise.

      . Nationwide and State Farm cite Tennessee Coal, Iron & R.R. v. Hayes, 97 Ala. 201, 210, 12 So. 98, 103 (1892), for the proposition that a settlement agreement entered into on behalf of a minor is invalid until it receives court approval. ("[The next friend's] mere consent is nugatory. It is as if it were not and had never been."). However, it is apparent that the Court was speaking only of the next friend's ability to bind the minor, not the other party. See 97 Ala. at 209, 12 So. at 103 ("[The next friend] can not release the cause of action, nor compromise it, nor submit it to an arbitration the result of which will bind the infant.” (emphasis added)).
      Moreover, we note that in this case it is unclear whether Wood was involved in negotiating or approving the settlement. No action had been initiated by Wood on D.V.G.'s behalf at the time of the settlement, and the stipulated facts before us indicate only that Brobston negotiated the settlement "acting as attorney for D.V.G.”

      . Indeed, Wood has asserted that the only reason a hearing has not been held is because Nationwide and State Farm refuse to take part. As the Kansas Court of Appeals held in a similar case, such a refusal is improper:
      "The 'friendly' hearing intended to obtain court approval of the settlement agreement qualified as a condition precedent for the settlement agreement. [The insurer] undertook to arrange the hearing and then refused to go forward with it. This it could not do.
      " ‘ "The rule is clear and well settled, and founded in absolute justice, that a party to a contract cannot prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition. [Citations omitted.] And this is the universal rule. [Citations omitted.]”' [Wallerius
        v. Hare,] 194 Kan. [408,] 412, 399 P.2d 543 [(1965)].”

        White, 29 Kan.App.2d at 803, 31 P.3d at 332.