text:
    David Tykure CARTER a/k/a David Carter, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00458-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      David Tykure Carter, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. David Carter appeals the Copiah County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Carter filed his PCR motion only three months after entering a plea of guilty to murder. Finding no error, we affirm the trial court’s dismissal of Carter’s PCR motion.

FACTS

¶2. On September 28, 2011, a Copiah County grand jury indicted Carter for capital murder under Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006). On November 9, 2011, Carter entered a voluntary guilty plea to the lesser charge of murder under section 97-3-19. The trial court sentenced Carter to serve “[t]he remainder of his natural life” in the custody of the Mississippi Department of Corrections (MDOC) under Mississippi Code Annotated section 97-3-21 (Rev.2006).

¶ 3. Three months later, on February 23, 2012, Carter filed a “Petition for Writ of Habeas Corpus/Motion to Vacate Conviction/Sentence,” claiming that his “contract” was defective; that he involuntarily entered his guilty plea; that his sentence was illegal; and that his trial lawyer was ineffective.

¶ 4. The trial court summarily dismissed Carter’s motion after determining that “it plainly appears from the face of the petition, and the prior proceedings in this cause, that [Carter] is not entitled to any relief, and as such there is no need for an evidentiary hearing of this matter.” Carter now appeals.

STANDARD OF REVIEW

¶ 5. Mississippi Code Annotated section 99-39-11(2) (Supp.2012) establishes this Court’s standard of review when reviewing a trial court’s summary dismissal of a PCR motion: “If it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified.” Pursuant to this section, the Mississippi Supreme Court has held that “a trial court may summarily dismiss a petition for PCR, without having held an evidentiary hearing, when it is clear that the petitioner is not entitled to relief under the [Uniform Post-Conviction Collateral Relief Act].” State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). “This Court has established that dismissal of a PCR motion is proper where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. at 924 (quoting Turner v. State, 590 So.2d 871, 874 (Miss.1991)).

DISCUSSION

¶ 6. In his PCR motion, Carter argues that his “contract,” which the State’s brief interprets as his indictment and/or plea agreement, was void; that his plea of guilty was involuntary; that his sentence was illegal and exceeded that authorized by law; and that he received ineffective assistance of counsel. The burden of proof rests on Carter to show by a preponderance of the evidence that he is entitled to the requested post-conviction relief. See Miss.Code Ann. § 99-39-23(7); Bilbo v. State, 881 So.2d 966, 968 (¶7) (Miss.Ct.App.2004). Carter provides no evidentiary support for the arguments raised in his PCR motion other than his own assertions. Further, Carter bases his argument that his sentence is illegal on old statutory law regarding life imprisonment set forth in Mississippi Code Annotated sections 97-3-21, 99-19-81, and 99-19-83.

¶ 7. Carter argues that his guilty plea is not valid because “it was not knowing, voluntary, or intelligent.” Carter asserts that he pled guilty to murder and agreed to a life sentence, with the eligibility for parole after ten years, but the trial court sentenced him to serve “his natural life” in the custody of the MDOC. Carter pled guilty to murder less than capital under section 97-3-19, and upon acceptance of his plea, the trial court sentenced him to life imprisonment under section 97-3-21.

¶ 8. Carter’s assertions conflict with his own sworn acknowledgments before the trial court during his plea colloquy. Upon review of the record, we observe that Carter’s petition to enter his guilty plea, which he signed, reflects that he can read and write, and that he possessed the mental competency to enter his guilty plea. The petition reflects that Carter acknowledged and understood the possible maximum punishment the trial court could impose for his crime was life imprisonment. Additionally, during the plea-qualification hearing, the prosecutor stated that the maximum and minimum penalty for the charge of murder under section 97-3-19(2)(e) “would be life in prison.”

¶ 9. Carter claims that a sentence of “natural life,” as imposed by the trial court, is not the same as a sentence of “imprisonment for life” as dictated by Mississippi Code Annotated section 97-3-21. The State, however, argues that “natural life” is the same sentence as “imprisonment for life,” and submits that Carter’s argument pertains to mere semantics.

¶ 10. Carter admits in his brief that he was informed that the maximum sentence he could receive was life imprisonment, but he claims that “there was no way he could have known he was taking a plea to natural life.” Carter submits that the plea agreement failed to reflect the possible sentence of serving his “natural life.” Citing old statutory law, Carter asserts that he cannot receive a sentence of life imprisonment without parole unless he is adjudicated a habitual offender. However, the record shows that the trial court did not sentence Carter to life imprisonment without parole, but, rather, to his natural life in prison. Since he pled guilty to the crime of murder under section 97-3-19, Carter is not eligible for parole; however, he can petition the trial court for conditional release at the age of sixty-five. See Miss. Code Ann. § 47-5-lS9(l)(a) (Rev.2011). During the plea colloquy and in his plea petition, Carter confirmed that he understood and possessed awareness that no one could assure parole or any type of early release.

¶ 11. Carter also asserts that his lawyer exhibited a “lack of interest” in representing Carter. This Court reviews claims of ineffective assistance of counsel by using the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, Carter must prove by a preponderance of the evidence that (1) his “counsel’s performance was deficient,” and (2) that the deficiency did, in fact, prejudice his defense. Id. The Mississippi Supreme Court has explained that “[a] defendant who pleads guilty to a crime is ‘prejudiced’ by his counsel’s erroneous advice if he would have insisted on going to trial if he had been correctly informed.” Reeder v. State, 783 So.2d 711, 718 (¶ 28) (Miss.2001) (quoting Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992)).

¶ 12. In reviewing whether the first prong of Strickland concerning counsel’s performance has been satisfied, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires that Carter prove prejudice by showing that there was a reasonable probability that, but for counsel’s errors, the trial court’s result would have been different. Id. at 694, 104 S.Ct. 2052. We examine the totality of the circumstances to determine whether the prongs of this test are met. Id. at 695, 104 S.Ct. 2052.

¶ 13. At his sentencing hearing, Carter acknowledged on the record that he had “no problem with [his] lawyer,” and he also acknowledged in his guilty-plea petition that he was fully satisfied with the advice and help his lawyer provided. Further, our review of the plea hearing transcript reveals that Carter was advised, on the record, of the minimum and maximum sentence he could receive was life. See Moreno v. State, 967 So.2d 701, 704 (¶ 5) (Miss.Ct.App.2007). Carter’s assertion that he received ineffective assistance of counsel fails. Accordingly, we affirm the trial court’s dismissal of Carter’s PCR motion.

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

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

      . See Miss.Code Ann. § 97-3-19; § 97-3-21.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Stevie LOTT, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00340-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Stevie Lott, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Stevie Lott, appearing pro se, appeals the Circuit Court of Jones County’s order clarifying his sentence after his post-release supervision was revoked. Treating Lott’s motion as one for post-conviction relief, we find no error and affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In January 2001, a Jones County jury convicted Lott of two counts of aggravated assault. The trial court sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years to serve, and fifteen years suspended, with five of those years on post-release supervision.

¶ 3. On October 3, 2008, Officer Jason Cook filed a petition to have Lott’s post-release supervision revoked because Lott left the state of Mississippi and did not pay certain court-ordered fees. On March 24, 2009, a revocation hearing was held. Officer Cook testified that Lott had not reported to his field officer since June 11, 2008, and had failed to pay a $1,500 community-service fee or participate in the circuit court’s community-service program.

¶ 4. Lott denied the accusations, stating that after approximately six years of imprisonment, he was released and began serving his post-release supervision. Lott explained he requested a transfer of his supervision to Minnesota, where he had more family and friends. He waited six months for permission to transfer to Minnesota, reporting to his field officer in Mississippi during this time. He then decided to leave the state before he had permission to do so. He traveled to Minnesota and reported to a field officer, who told him his transfer had been denied. Additionally, Lott claimed participation in the community-service program was not in his sentencing order, and Officer Cook had waived his probation fees.

¶ 5. The trial court found Lott left Mississippi in violation of the terms of his post-release supervision. Thus, the trial court revoked Lott’s post-release supervision and required him to serve the remainder of his original sentence in the full-time custody of the MDOC.

¶ 6. In March 2011, Lott filed a motion to show cause for why his post-release supervision was revoked. The trial court denied the motion, explaining that Lott left Mississippi in violation of the terms of his post-release supervision. In December 2011, Lott moved to clarify his sentence, claiming that his sentence was ambiguous because at the revocation hearing, the trial judge merely required him “to serve the sentence.”

¶ 7. On January 27, 2012, the trial court entered an order in response, stating Lott was to serve the remaining time of his original twenty-year sentence in the full-time custody of the MDOC. In its order, the trial court did not state specifically that it considered Lott’s motion as one for post-conviction relief; however, the subject matter of Lott’s claims is consistent with post-conviction proceedings. Under Mississippi Code Annotated section 99-39-5(l)(h) (Supp.2012), one ground for post-conviction relief is that the petitioner’s “sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody.” On March 1, 2012, Lott filed an untimely notice of appeal of the trial court’s order. Lott’s arguments on appeal include that his post-release supervision was improperly revoked.

STANDARD OF REVIEW

¶ 8. In reviewing a trial court’s denial of a motion for post-conviction relief, the appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Presley v. State, 48 So.3d 526, 528-29 (¶ 10) (Miss.2010) (quoting Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Questions of law, however, are reviewed de novo. Id. at 529.

ANALYSIS

I. Jurisdiction

¶ 9. Lott’s notice of appeal, was not filed in the trial court within thirty days of entry of the trial court’s judgment. Appellate rules require that the notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). The trial court denied Lott’s motion to clarify his sentence on January 27, 2012. Lott’s notice of appeal was stamped “filed” by the circuit court clerk on March 2, 2012, but is otherwise without a date. Generally, an appeal shall be dismissed unless the notice of appeal is timely filed pursuant to Mississippi Rule of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1). However, post-conviction relief petitions are governed by Mississippi Rule of Appellate Procedure 2(c), which allows this Court to suspend the requirements of the appellate rules in the interest of justice. Specifically, this Court may suspend Rule 4(a) to allow an out-of-time appeal in criminal cases and “civil” post-conviction relief actions. See M.R.A.P. 4 cmt.

¶ 10. We must determine whether appellate jurisdiction exists. The prison-mailbox rule states that in pro se post-conviction relief proceedings, the prisoner’s motion is considered delivered for filing when the prisoner gives the documents to prison officials for mailing. Sykes v. State, 757 So.2d 997, 1000-01 (¶ 14) (Miss.2000). The State bears the burden of proving the prisoner’s notice of appeal was untimely filed. Melton v. State, 930 So.2d 452, 455 (¶ 8) (Miss.Ct.App.2006).

¶ 11. There is no indication in the record when Lott delivered his documents to prison officials for mailing. Since his notice of appeal was received by the trial court only five days late, it is possible that the documents were delivered to prison authorities within the time frame allowed by Rule 4(a). The State has admitted that under the prison-mailbox rule, the appeal was probably timely noticed. Therefore, we exercise our discretion under Rule 2(c) to suspend the thirty-day requirement to the extent Lott’s filing may have been untimely. Accordingly, we find jurisdiction proper and address Lott’s appeal on the merits.

2. Revocation

¶ 12. As the State notes, Lott’s arguments about the revocation of his post-release supervision appear to “evolve.” Lott’s initial motion in March 2011 was to “show cause” as to why his “probation” was revoked. He also argues he was in compliance with the conditions of his “probation,” implying an improper revocation. In Lott’s motion to clarify his sentence, filed in December 2011, Lott explained why he traveled to Minnesota, also claiming his sentence was ambiguously described by the trial court judge at the revocation hearing, and that the revocation was improper. In his brief before this Court, Lott argues that at no time did the trial court inform him of how his post-release supervision could be revoked and his suspended sentence imposed. Interestingly, Lott also denies that he violated the conditions of which he was unaware. Finally, Lott claims the trial court only revoked his post-release supervision, but did not impose the suspended sentence. We find no merit to these arguments.

¶ 13. Post-release supervision is an alternative to probation for convicted felons. Ivory v. State, 999 So.2d 420, 427 (¶ 17) (Miss.Ct.App.2008) (citing Carter v. State, 754 So.2d 1207, 1208 (¶4) (Miss.2000)). A court may impose a term of post-release supervision to follow a term of incarceration, provided the two terms do not exceed the maximum sentence for the crime. Miss.Code Ann. § 47-7-34(1) (Rev.2011). “The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish.” Miss.Code Ann. § 47-7-34(2). “At any time during the period of probation the court ... may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the probationer to be arrested.” Miss.Code Ann. § 47-7-37 (Rev.2011). After the probationer is arrested,

the court ... shall cause the probationer to be brought before it and may ... revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.

Id.

¶ 14. As stated earlier, due to the subject matter of his motion for clarification, it is proper to convert Lott’s pleading into a motion for post-conviction relief, to the extent he is claiming his conditional release was improperly revoked. See Miss.Code Ann. § 99-39-5(l)(h). Here, after Lott had served his six years in prison, he began serving his five years of post-release supervision. During this time, Lott violated the terms of his post-release supervision, and it was properly revoked under section 47-7-37. The judge then ordered Lott to serve the remainder of his twenty-year sentence in the custody of the MDOC.

¶ 15. It is apparent that the trial court was entitled to revoke Lott’s post-release supervision and impose his sentence based on the evidence presented at the revocation hearing by Officer Cook. At this hearing, Lott was told exactly what terms he had violated: failing to report to his field officer; failing to pay court costs, restitution, community-service fees, and fines; and failing to participate in the community-service program. While Lott claims that he was unaware he had to participate in a community service program, Lott admitted that he left Mississippi and went to Minnesota without permission to do so.

¶ 16. Lott’s sentence was not ambiguous. Nor was it necessary at the revocation hearing for the trial judge to reiterate verbally Lott’s entire sentence into the record; the order entered on January 27, 2012 states Lott is to serve “the remaining time of his original twenty (20) year sentence in the full-time custody” of the MDOC. Additionally, it is clear from the record and Lott’s pleadings that he knew the conditions of his post-release supervision, with the exception of the community service. However, the findings of other violations, such as not reporting to his field officer and paying certain fines, are sufficient to justify the revocation. Accordingly, the trial court did not err in denying post-conviction relief to Lott.

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

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

      . The original sentencing order is not a part of the record before us.

      . The trial court's order of January 2012 explains that Lott’s post-release supervision had been revoked on May 22, 2007 as well, and he was thus required to serve an additional year of his original twenty-year sentence in the full-time custody of the MDOC.

      . Lott claims that he discussed this topic with officials at MDOC, and they recommended he file this motion to clarify his sentence.

      . Lott refers to the following exchange at the March 24, 2009 revocation hearing:
      THE COURT: All right. The Court finds [Lott] left the State without permission of his probation officers whereby violating his post-release supervision. What do you recommend?
      OFFICER COOK: I recommend that he complete his sentence, Your Honor, due to the fact that he may leave the State again.
      THE COURT: All right. The Court revokes his post-release supervision and requires him to serve the sentence.

      . Additionally, while Lott filed his motion past the three-year statute of limitations for post-conviction relief petitions, petitions alleging an illegal sentence are not subject to this deadline. See Miss.Code Ann. § 99-39-5(2) (Supp.2012); Jackson v. State, 965 So.2d 686, 690 (¶ 11) (Miss.2007).

      . However, "an inmate who is uncertain about the operation of his sentence and desires clarity should pursue the administrative review procedures” of the MDOC, and not the court. Burns v. State, 933 So.2d 329, 331 (¶ 9) (Miss.Ct.App.2006); see also Miss.Code Ann. §§ 47-5-801 to-807 (Rev.2004).

      . Other documents in the record associated with Lott’s appeal, such as his designation of the records and affidavit of poverty, are all signed and dated February 23, 2012.

      . Lott's sentence did not appear to include any probation; thus, we assume he means "post-release supervision.”


author: IRVING, P.J.,

text:
    Albert CONLEY, Jr., Appellant v. CITY OF JACKSON, Mississippi, Appellee.
    Nos. 2011-WC-01737-COA, 2011-WC-01738-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Michael R. Brown, attorney for appellant.
    Gregory R. Burnett, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On December 17, 2008, Albert Conley filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that he had sustained a compensable injury to his back on January 27, 2004, and on May 1, 2008, while working as a meter reader for the City of Jackson, Mississippi (City). The City admitted that Conley had sustained a compensable injury but denied that he suffered any loss of wage-earning capacity as a result of the injury.

¶ 2. A hearing was held before an administrative judge (AJ), who found that Conley had reached maximum medical improvement (MMI) on November 16, 2009; that Conley suffered a five percent permanent-partial medical-impairment rating; that Conley does not suffer from significant work restrictions related to his work injury; that Conley is still employed by the City and is not fearful of losing his job; that Conley suffered a ten percent loss of wage-earning capacity as a result of his injury; and that Conley’s average weekly wage at the time of the injury was $674.31, with a corresponding compensation rate of $448.87. The City petitioned the Commission for a review of the AJ’s decision. The Commission determined that: (1) Conley had failed to demonstrate that his injury resulted in a permanent loss of wage-earning capacity; and (2) the City’s total payment in temporary disability benefits far exceeded the benefits that Conley was entitled to, and any overpayment would be credited toward any permanent disability benefits due to Conley.

¶ 3. Feeling aggrieved, Conley appeals and argues that the Commission erred in finding that he suffered no loss of wage-earning capacity and in finding that the City’s total payments in temporary disability benefits exceeded the benefits that he was entitled to for his injuries.

¶ 4. Finding no error, we affirm.

FACTS

¶ 5. Conley began working for the City as a meter reader in 1992. Prior to working for the City, Conley worked at Red Arrow Car Wash as a car detailer and at Sack and Save Grocery store as a maintenance worker. Both of his previous jobs required some heavy lifting, repeated bending, and squatting.

¶ 6. On January 27, 2004, Conley, while in the course and scope of his employment •with the City as a meter reader, bent over to read a water meter and felt a “pinch” in his back. After reading that meter and replacing it, he moved on to read the next meter. He bent over to pick up the meter and could not stand back up.

¶ 7. Conley described his pain as mainly in his lower back. He testified that his back becomes stiff, which causes pain when he tries to move around. He takes muscle relaxers and anti-inflammatory medications to assist with his pain. Conley testified that he discussed surgery with his doctor and still considers it an option if necessary. After his injury, the City placed Conley on light-duty work.

¶8. Conley’s light-duty work included shredding papers, answering phones, data entry, and mail runs. Conley also testified that sometimes he would “just sit there” until the City gave him work to do. In May 2008, Conley attempted to return to his regular duties as a meter reader. He claimed that he re-injured his back and that the City returned him to light-duty status. At the time of the hearing before the AJ, Conley still worked for the City, but believed that his new position was a clear accommodation for his injury. Conley testified that, although he had searched for other jobs, he would not have taken a job with another employer if offered.

¶ 9. Several doctors examined Conley after his injury. Dr. Bruce S. Senter treated Conley soon after his injury in 2004. Dr. Senter placed Conley at MMI on March 28, 2004, assigned Conley a five percent permanent impairment rating, and released him to return to work without restrictions. Four months later, Dr. Sen-ter re-examined Conley but did not change his opinion.

¶ 10. Dr. Kenneth Fox examined Conley on January 8, 2009. Based on the results from Conley’s functional capacity evaluation, Dr. Fox assigned Conley a five percent permanent whole-person impairment rating. The impairment rating, according to Dr. Fox, is “based upon [one] disk herniation as [Conley’s] subjective pain complaints have consistently been inconsistent with his objective findings, and there was some behavior suggestive of symptom magnification on the functional capacity evaluation.” Dr. Fox opined that, in the future, Conley would need physical therapy twice a month. Additionally, Dr. Fox assigned Conley permanent work restrictions of no repeated lifting greater than twenty pounds, no repeated squatting, and no repeated bending at the waist.

¶ 11. Bruce Brawner, a vocational-rehabilitation consultant, interviewed Conley on August 25, 2010. Brawner’s report was admitted into evidence, and both parties stipulated that Brawner is an expert in the field of vocational rehabilitation and in determining post-injury wage-earning capacity. The report stated that after Conley’s injury, he retained the ability to perform sedentary, light, and some medium-level work. Brawner also noted that Conley had returned to work with the City, and his pay rate had not changed since his injury. However, if Conley were to lose his current job with the City, he would incur a loss of wage-earning “level,” and his average pay would decrease to approximately $850 per week.

¶ 12. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 18. Conley argues that the Commission erred in finding that he had not demonstrated a loss of wage-earning capacity and in finding that he was not entitled to additional temporary disability benefits. Our standard of review in workers’ compensation cases “is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated [the claimant’s] constitutional or statutory rights.” Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 475 (¶ 8) (Miss.2011) (citing Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1250 (¶ 17) (Miss.2010)). “[T]he Commission is the ultimate fact-finder and judge of the credibility of ... witnesses,” and therefore, appellate courts “may not reweigh the evidence [that was] before the Commission.” Id. (citing Short, 36 So.3d at 1251 (¶ 23)). Based on our review of the record, we find that the Commission’s decision was supported by substantial evidence.

I. Loss of Wage-Earning Capacity

¶ 14. The AJ found that Conley had suffered a ten percent loss in wage-earning capacity as a result of his injuries. The Commission reversed the AJ’s finding and held that Conley failed to demonstrate that he had suffered a permanent loss in wage-earning capacity. Conley contends that the Commission’s finding was in error. As the claimant, it was Conley’s responsibility to demonstrate a loss of wage-earning capacity. See Wright v. Univ. of Miss. Med. Ctr., 75 So.3d 78, 81 (¶ 12) (Miss.Ct.App.2011). The Mississippi Supreme Court has stated:

[I]t is a well-settled rule of law that in determining wage-earning capacity in the situation where an injured employee returns to work and receives the same or greater earnings as those prior to his injury, there is created a rebuttable presumption that he has suffered no loss in his wage-earning capacity.

Omnova Solutions, Inc. v. Lipa, 44 So.3d 935, 941 (¶ 17) (Miss.2010) (quoting Agee v. Bay Springs Forest Prods., Inc., 419 So.2d 188, 189 (Miss.1982)). The claimant can rebut the presumption by presenting

evidence ... that the post-injury earnings are unreliable due to: [an] increase in general wage levels since the time of accident, [the] claimant’s own greater maturity and training, longer hours worked by [the] claimant after the accident, payment of wages disproportionate to capacity out of sympathy to [the] claimant, and the temporary and unpredictable character of post-injury earnings. «

Gregg, 64 So.3d at 476 (¶ 12) (quoting Gen. Elec. Co. v. McKinnon, 507 So.2d 363, 365 (Miss.1987)).

¶ 15. It is undisputed that Conley returned to work for the City as a meter reader at his pre-injury wage rate. Thus, the “rebuttable presumption” was that he had not suffered a loss in his wage-earning capacity. Conley failed to offer substantial evidence to rebut this presumption. There was no evidence that the general wage levels had increased since Conley’s injury, no evidence that Conley’s additional training contributed to the wages, and no evidence that Conley was working longer hours. Conley argues, however, that his post-injury wages are out of sympathy and are temporary in nature. He offers no evidence to support his assertions. Conley relies on Brawner’s report to insist that he has suffered a loss in wage-earning capacity. However, Brawner opined that Conley would suffer a loss of wage-earning capacity only “should he [lose] his current light-duty job with the City of Jackson[.]” Because there was no evidence that the City intended to terminate Conley’s employment or that Conley seriously considered seeking employment elsewhere, there was substantial evidence for the Commission to determine that Conley had not suffered a loss of wage-earning capacity. This issue is without merit.

II. Temporary Disability Benefits

¶ 16. The AJ initially found that Conley was entitled to temporary total disability benefits from January 27, 2004, through November 16, 2009. The Commission reversed the AJ’s decision and held that Conley was not entitled to any additional temporary disability benefits from the City. Conley asserts that the Commission’s decision is unsupported by the evidence.

¶ 17. “[B]enefits for temporary total disability are payable when the employee is completely unable to engage in work and is therefore suffering a total, yet temporary, loss of wage[-]earning capacity.” Howard Indus., Inc. v. Robinson, 846 So.2d 245, 253 (¶ 23) (Miss.Ct.App.2002) (citations omitted). Here, Conley informed Brawner that, as a result of his injury, he missed work for approximately two weeks, after which he returned to work for the City full-time. Therefore, Conley is not entitled to temporary total disability benefits throughout the period set by the AJ, because it is undisputed that Conley worked during that period.

¶ 18. After examining Conley’s payroll records, the Commission determined that Conley only lost $681.30 in wages after his first injury and $170.84 in wages after his second injury. The Commission awarded Conley two-thirds of each figure as temporary total disability benefits — totaling $568.12. As the City had paid Conley in excess of $2,000 in temporary disability benefits, substantial evidence supported the Commission’s decision that he was not entitled to further payments. Accordingly, this issue is without merit.

¶ 19. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: PARKER, Justice.

text:
    PEACOCK TIMBER TRANSPORT, INC. v. B.P. HOLDINGS, LLC, et al.
    1110348.
    Supreme Court of Alabama.
    Oct. 19, 2012.
    Rehearing Denied Dec. 7, 2012.
    Arlene M. Richardson of Richardson Legal Center, L.L.C., Highland Home, for appellant.
    Bruce E. Mitchell of The Mitchell Law Firm, Atlanta, GA, for appellee Derek Parrish.
    Jacob A. Fuller and J. Doyle Fuller of Fuller & Copeland, P.C., Montgomery, for appellee William Blount.
   PARKER, Justice.

Peacock Timber Transport, Inc. (“Peacock”), appeals the summary judgment entered by the Montgomery Circuit Court (“the circuit court”) in favor of B.P. Holdings, LLC, William Blount, Derek Parrish, Diamond Homes, LLC, and Sunbelt Environmental, LLC (hereinafter collectively referred to as “the defendants”). We reverse the circuit court’s judgment and remand the case.

Facts and Procedural History

Blount and Parrish are partners in Blount Parrish & Company (“BPC”), an investment firm that specializes in public financing. Parrish’s affidavit testimony indicates that in 1998 Blount formed B.P. Holdings “for the purpose of accepting equity positions in companies which [BPC] represented in financial transactions, primarily bond issuances.” At all times pertinent to this appeal, Blount owned 48% and Parrish owned 30% of B.P. Holdings; the remaining 22% was owned by various employees of BPC. Parrish’s affidavit testimony indicates that Blount was the “managing member” of B.P. Holdings and that in that capacity Blount “was specifically named as custodian of the books and records of the company; assumed sole responsibility for the preparation, and filing of state and federal tax returns; and directly and exclusively managed the business activities of the company in every other manner.”

Parrish’s affidavit testimony indicates that in 2001 Blount formed Diamond Homes to take over unfulfilled contracts that had been entered into by a now bankrupt company, Dencraft Furniture Company; Blount and Parrish owned Diamond Homes in equal portions. In relation to a bond issue closed by BPC, B.P. Holdings had acquired an interest in Dencraft before its bankruptcy. In their efforts to make Diamond Homes succeed, Blount and Parrish had personally guaranteed substantial debt taken on by Dencraft and by Diamond Homes; Diamond Homes eventually “closed down with very few assets, mostly unused raw materials, and several hundred thousand in debt, some of which was guaranteed by [Blount] and/or [Parrish].”

On May 31, 2003, Peacock obtained a judgment in the Pike Circuit Court against B.P. Holdings in the amount of $251,834.37 (“the 2003 judgment”). Peacock had sued B.P. Holdings and Blount, among others, alleging fraud, deceit, theft of property and services, fraudulent suppression, and unjust enrichment based on facts not pertinent to this appeal (“Peacock’s 2003 action”). Although Blount was a defendant in Peacock’s 2003 action and although judgment in that action was entered against B.P. Holdings, the 2003 judgment states that “[s]aid verdict was also returned in favor of ... Blount.” Parrish was not a party to Peacock’s 2003 action.

On July 28, 2003, $1,120,000 was deposited in B.P. Holdings’ account as compensation for work BPC and others had performed on behalf of Jefferson County in closing a bond issue — at that time, B.P. Holdings had not yet satisfied the 2003 judgment. The amount of the fee earned by BPC for the Jefferson County transaction was $500,000 and approximately $600,000 of the $1,120,000 was used to pay other consultants; B.P. Holdings did not earn any portion of the $1,120,000 but, according to Parrish’s affidavit testimony, was used as a conduit to receive the money and to transfer the money to the appropriate parties. Parrish’s affidavit testimony indicates that on July 31, 2003, Blount transferred $500,000 from B.P. Holdings to Diamond Homes (this transfer is the basis of this appeal and will hereinafter be referred to as “the transfer”). On the same day, Diamond Homes executed a promissory note, signed by Blount, for $500,000 in favor of B.P. Holdings. Also on the same day, Diamond Homes issued checks, signed by Blount and Parrish, in the amount of $250,000 to both Colonial Bank and Aliant Bank, creditor banks of Diamond Homes (“Diamond Homes’ creditor banks”). The checks to Diamond Homes’ creditor banks were to satisfy some of Diamond Homes’ debt that had been personally guaranteed by Blount and Parrish.

Blount’s deposition testimony indicates that he was aware of the 2003 judgment at the time of the transfer but that he “believe[d] [that] the judgment [had been] appealed. So [he] [did not] know if that judgment was a live judgment or not.” Parrish’s affidavit testimony indicates that he “had absolutely no knowledge of any judgment then outstanding against B.P. Holdings by Peacock” at the time of the transfer.

On February 25, 2005, Peacock sued B.P. Holdings, Blount, and Parrish seeking to have the transfer set aside as fraudulent pursuant to the Alabama Fraudulent Transfer Act, § 8-9A-1 et seq., Ala.Code 1975 (“the AFTA”), and seeking to pierce the corporate veil of B.P. Holdings. B.P. Holdings, Blount, and Parrish filed an answer on April 21, 2006. On July 3, 2006, Peacock amended its complaint to include Diamond Homes and Sunbelt Environmental as defendants. The defendants filed a response to Peacock’s amended complaint on July 19, 2006.

On November 21, 2007, Peacock filed a motion for a summary judgment. On February 29, 2008, the defendants filed a response to Peacock’s summary-judgment motion. Following a hearing at which the circuit court heard oral arguments on Peacock’s summary-judgment motion, the circuit court denied Peacock’s summary-judgment motion on March 4, 2010.

On October 5, 2011, Parrish filed a motion to dismiss the claims asserted against him. On the same day, Parrish also filed a motion for a summary judgment. In his summary-judgment motion, Parrish argued that Peacock’s claims alleging a violation of the AFTA “should be dismissed as to Parrish” because the AFTA did not provide a remedy against Parrish personally in that he was not a debtor of Peacock. Parrish also argued in his summary-judgment motion that Peacock’s claim seeking to pierce the corporate veil of B.P. Holdings, thereby holding Parrish personally liable for the 2003 judgment, “should ... be dismissed as to Parrish” because “the uncontroverted evidence in this proceeding overwhelmingly establishes that Parrish never managed or controlled B.P. Holdings or any other company named in this action, and was never in a position to do so.” On October 10, 2011, Blount also filed a motion for a summary judgment; Blount argued that Peacock’s claims against him were barred by the doctrines of res judica-ta and collateral estoppel. Blount also argued that Peacock’s fraudulent-transfer claim had been extinguished by § 8-9A-9(5), Ala.Code 1975. Neither Blount nor Parrish argued in their respective motions that Peacock failed to present substantial evidence to support its claim that the transfer was due to be set aside as fraudulent under the AFTA. We note that neither B.P. Holdings nor Diamond Homes filed a motion for a summary judgment.

On October 15, 2011, Peacock filed a response to Blount’s and Parrish’s summary-judgment motions, arguing that its request that B.P. Holdings’ corporate veil be pierced was not a cause of action but a request for an equitable remedy; that the doctrines of res judicata and collateral es-toppel did not bar its claims against Blount; and that its AFTA claims had not been extinguished by § 8-9A-9(5). Concerning the statute-of-limitations issue, Peacock argued that it brought its AFTA action pursuant to § 8-9A-4, Ala. Code 1975, not § 8-9A-5(b), as Blount alleged. Therefore, Peacock argued in its response to Blount’s summary-judgment motion, under § 8-9A-9(2), Ala.Code 1975, Peacock’s action had not been extinguished because Peacock brought its AFTA claim “within six years after the transfer of personal property was made.”

On October 24, 2011, the circuit court held a hearing on the pending summary-judgment motions. After hearing arguments from Peacock, Blount, and Parrish, the circuit court orally granted Blount’s and Parrish’s summary-judgment motions, as follows:

“And my position simply is this: That this money was not an asset of B.P. [Holdings]. There’s no way you can make this money an asset of B.P. [Holdings].
“What happened is that, in the Pike County case, B.P. [Holdings], Blount, and maybe some others were sued. But as it was brought to my attention throughout this litigation, the judgment was against B.P. [Holdings]. Well and in favor of Blount.
‘Well, as you continue to get money in for fees you have earned and if the IRS says this was Blount and Parrish’s personal money and they had to pay taxes on it, then indeed it was not B.P. [Holdings’].
“But B.P. [Holdings] had not had any — there was no relationship where B.P. [Holdings] had earned any money that was coming into B.P. [Holdings] as I understand the assets. And I looked at it more favorably to [Peacock] because I would like for [Peacock’s trial counsel] to go forward.
“But I just can’t find where this is an asset of B.P. [Holdings]. I’m going to treat these arguments as summary judgment. And I enter summary judgment in favor of Blount and Parrish.... ”

On November 3, 2011, the circuit court entered an amended final order “entering summary judgment in favor of all defendants.”

Peacock filed its notice of appeal on December 2, 2011, naming B.P. Holdings, Blount, and Parrish as appellees; B.P. Holdings has not filed a brief on appeal.

Standard of Review
“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion....’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Discussion

As set forth above, the circuit court granted Blount’s and Parrish’s summary-judgment motions based on its conclusion that the AFTA did not apply to the transfer because the $500,000 transferred from B.P. Holdings to Diamond Homes was not the property of B.P. Holdings. Peacock argues on appeal that there is a genuine issue of material fact as to whether the $500,000 transferred from B.P. Holdings to Diamond Homes was the property of B.P. Holdings.

In Thompson Properties v. Birmingham Hide & Tallow Co., 839 So.2d 629, 632 (Ala.2002), we set forth the following concerning the AFTA:
“The [AFTA] ... provides that certain transfers ‘made by a debtor’ may be found void or voidable as to creditors. The purpose of the [AFTA] is to prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach. Under § 8-9A-4(a), Ala.Code 1975, ‘[a] transfer made by a debtor is fraudulent as to a creditor ... if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor.’ ‘Transfer’ is defined at § 8-9A-l(13), Ala.Code 1975, as ‘[e]very mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payments of money, release, lease, and creation of a lien or other encumbrance.’ ‘Debtor’ is defined at § 8-9A-l(6) as ‘[a] person who is liable on a claim.’ ‘Creditor’ is defined at § 8-9A-l(4) as ‘[a] person who has a claim.’ ‘Claim’ is defined at § 8-9A-1(3) as ‘[a] right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, and specifically shall include the nonpayment of child support pursuant to a court order.’ ”

Blount and Parrish argue that the $500,000 transferred from B.P. Holdings to Diamond Homes could not have been the property of B.P. Holdings because B.P. Holdings did not earn the money. Blount and Parrish argue that they earned the $500,000 transferred from B.P. Holdings to Diamond Homes through services provided to Jefferson County by BPC and that Blount and Parrish simply used B.P. Holdings as a conduit through which to direct Blount’s and Parrish’s money. Blount and Parrish essentially argue that because Peacock has presented no substantial evidence indicating that B.P. Holdings earned the $500,000 transferred from B.P. Holdings to Diamond Homes, the $500,000 could not have been the property of B.P. Holdings; thus, Blount and Parrish argue, the AFTA did not apply.

Peacock argues that whether B.P. Holdings earned the $500,000 transferred from B.P. Holdings to Diamond Homes is irrelevant. Peacock argues that the issue is whether the $500,000 transferred from B.P. Holdings to Diamond Homes was the “property” of B.P. Holdings, as the term “property” is defined in the AFTA. Peacock argues that the promissory note executed by Diamond Homes in favor of B.P. Holdings on the day of the transfer in the amount of $500,000 is substantial evidence that the $500,000 transferred from B.P. Holdings to Diamond Homes was the property of B.P. Holdings.

The AFTA defines property as “[b]oth real and personal property, whether tangible or intangible, and any interest in property whether legal or equitable and includes anything that may be the subject of ownership.” § 8-9A-l(ll), Ala.Code 1975. See American National Red Cross v. ASD Specialty Healthcare, Inc., 888 So.2d 464, 465 (Ala.2003) (“If not apparent from the language of the statute itself, the Alabama Comment to § 8-9A-1 of the [AFTA] notes the expansive definition of ‘property,’ which it says was specifically designed ‘to give the term “property” a broad meaning.....’”). Based on the promissory note, we conclude that there is a genuine issue of material fact as to whether the $500,000 transferred from B.P. Holdings to Diamond Homes was the property of B.P. Holdings. As evidenced by the promissory note, B.P. Holdings certainly has an interest in the $500,000. If B.P. Holdings truly held no interest in the $500,000 transferred from it to Diamond Homes, Diamond Homes would not have executed the promissory note in favor of B.P. Holdings. Blount even notes in his appellate brief that “[w]e will concede that on its face it might appear that the funds at issue here were assets of B.P. Holdings.” Blount’s brief, at p. 9. In Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986), we held that “[s]ummary judgment for a defendant is proper when there is no genuine issue of a material fact as to any element of a cause of action.... ” Peacock presented substantial evidence that the $500,000 transferred from B.P. Holdings to Diamond Homes was the property of B.P. Holdings, thereby creating a genuine issue of material fact as to that issue. Accordingly, we reverse the summary judgment.

Blount makes the alternative argument that, even if the AFTA applies, we must enter a judgment in favor of Blount, Parrish, and B.P. Holdings because, he argues, Peacock did not oppose on appeal the statute-of-limitations argument Blount raised below. Blount does not cite the applicable statute of limitations on appeal or make any argument concerning the actual merits of the argument; he argues only that, because Peacock did not address the argument, the defendants are now entitled to a judgment on that unopposed ground.

Below, Blount argued that the applicable statute of limitations barred Peacock’s AFTA claim. Section 8-9A-9, Ala.Code 1975, is the Code section setting forth the applicable statute of limitations governing claims brought under the AFTA. Section 8-9A-9 provides:

“A claim for relief with respect to a fraudulent transfer under this chapter is extinguished unless action is brought:
“(1) Under Section 8-9A-4(a) within 10 years after the transfer of real property was made.
“(2) Under Section 8-9A-4(a) within six years after the transfer of personal property was made.
“(3) Under Section 8-9A-4(e) or 8-9A-5(a), within four years after the transfer was made when the action is brought by a creditor whose claim arose before the transfer was made.
“(4) Under Section 8-9A-4(c), within one year after the transfer was made when the action is brought by a creditor whose claim arose after the transfer was made; or
“(5) Under Section 8-9A-5(b), within one year after the transfer was made.”

In his statute-of-limitations argument raised below, Blount argued that, before Peacock filed its AFTA claim, the claim had been extinguished by § 8-9A-9(5), which requires that an AFTA claim brought pursuant to § 8-9A-5(b) be brought “within one year after the transfer was made.” Peacock argued below that it had not brought its AFTA claim pursuant to § 8-9A-5(b) but pursuant to § 8-9A-4. Section 8-9A-9(2) requires that an AFTA claim brought pursuant to § 8-9A-4(a) be brought “within six years after the transfer of personal property was made”; § 8-9A-9(3) requires that an AFTA claim brought pursuant to § 8-9A-4(c) be brought “within four years after the transfer was made when the action is brought by a creditor whose claim arose before the transfer was made.” Blount has not offered anything on appeal to indicate that Peacock brought its AFTA claim pursuant to § 8-9A-5(b) rather than § 8-9A-4.

Section 8-9A-4 provides:

“(a) A transfer made by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made, if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor.
“(b) In determining actual intent under subsection (a), consideration may be given, among other factors, to whether:
“(1) The transfer was to an insider;
“(2) The debtor retained possession or control of the property transferred after the transfer;
“(3) The transfer was disclosed or concealed;
“(4) Before the transfer was made the debtor had been sued or threatened with suit;
“(5) The transfer was of substantially all the debtor’s assets;
“(6) The debtor absconded;
“(7) The debtor removed or concealed assets;
“(8) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred;
“(9) The debtor was insolvent or became insolvent shortly after the transfer was made;
“(10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and
“(11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
“(c) A transfer made by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made, if the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the debtor:
“(1) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
“(2) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.”

Section 8-9A-5(b) provides:

“A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt and the debtor was insolvent at that time and the insider had reasonable cause to believe that the debtor was insolvent.”

In its complaint, Peacock did not specify which Code section it was asserting its AFTA claim under. However, in filings subsequent to its complaint, which include Peacock’s summary-judgment motion and its response to Blount’s summary-judgment motion, Peacock has consistently maintained that it asserted its AFTA claim against the defendants pursuant to § 8-9A-4, not § 8-9A-5(b). Further, in order for § 8-9A-5(b) to apply, B.P. Holdings would have had to have made the transfer to satisfy an antecedent debt owed to Diamond Homes. Blount has not offered any evidence indicating that the transfer was made to satisfy an antecedent debt B.P. Holdings owed to Diamond Homes; in fact, there is nothing to indicate that B.P. Holdings has ever been a debtor of Diamond Homes. Further, the promissory note indicates that Diamond Homes is a debtor of B.P. Holdings, thereby disproving Blount’s argument that B.P. Holdings is a debtor to Diamond Homes. For all of these reasons, § 8-9A-5(b) does not apply. Therefore, we reject the premise of Blount’s statute-of-limitations argument raised below that Peacock’s AFTA claim was brought pursuant to § 8-9A-5. Our determination that Peacock’s claim is based on § 8-9A-4, not § 8-9A-5, is dis-positive of the statute-of-limitations issue.

We note that Blount and Parrish make several arguments on appeal related to their personal liability. For instance, Parrish argues that “the undisputed evidence shows [that] ... Parrish had no actual intent to defraud an unknown creditor, Peacock.” Parrish’s brief, at p. 19. However, whether Parrish personally intended to defraud Peacock is not determinative. B.P. Holdings is the debtor in this case, not Parrish individually, and the circuit court must determine if B.P. Holdings intended to defraud Peacock in making the transfer. Although Parrish owns B.P. Holdings jointly with Blount and Parrish’s actions as an owner of B.P. Holdings may be relevant to determining that issue, the circuit court will have to look to the entirety of the evidence concerning B.P. Holdings’ allegedly fraudulent intentions concerning the transfer, not just Blount’s or Parrish’s individual intentions.

We also note that Blount argues that Peacock’s claims against him are barred by the doctrines of res judicata and collateral estoppel. However, Peacock’s AFTA action is based on an entirely different set of facts and cause of action than the facts and causes of action that led to Peacock’s obtaining the 2003 judgment. Therefore, Blount’s arguments based on the doctrines of res judicata and collateral estoppel are entirely without merit.

Conclusion

Based on the foregoing, we reverse the summary judgment in favor of the defendants, and we remand the cause for the circuit court to determine whether Peacock is entitled to avoid the transfer under the AFTA and whether the corporate veil of B.P. Holdings should be pierced, thereby holding Blount and Parrish personally liable for the transfer.

REVERSED AND REMANDED.

MALONE, C.J., and BOLIN, SHAW, and WISE, JJ., concur.

      . Peacock transported chicken feed for Alabama Protein Recycling, LLC ("APR”), an entity formed by B.P. Holdings and Jim Mul-lís in 1998. Peacock’s claims arose out of APR’s failure to pay Peacock for services Peacock had performed for APR.

      . Blount’s deposition testimony indicates that he did not initially include the $500,000 as personal income on his 2003 personal-income tax return but that he later amended his tax return to “show it was income to [Parrish] and I.”

      . Peacock alleged below that a transfer of money from B.P. Holdings to Sunbelt Environmental was also fraudulent; however, Peacock makes no argument concerning that transaction on appeal.

      . Section 8-9A-9(5) provides, in pertinent part:
      "A claim for relief with respect to a fraudulent- transfer under this chapter is extinguished unless action is brought:
      "(5) Under Section 8-9A-5(b), [Ala. Code 1975,] within one year after the transfer was made.”


author: THOMAS, Judge.

text:
    Gary D. BRADSHAW, Monica Bradshaw, Robert W. Crumpler, and Betty Crumpler v. ENTERPRISE REALTY, INC., Enterprise Country Club, Inc., et al.
    2101074.
    Court of Civil Appeals of Alabama.
    May 25, 2012.
    Certiorari Denied Dec. 7, 2012 Alabama Supreme Court 1111175.

      Gary D. Bradshaw, Enterprise, for appellants.
    David F. Holmes, Slocumb, for appellee Coral S. Lewis.
   THOMAS, Judge.

Gary D. Bradshaw, Monica Bradshaw, Robert W. Crumpler, and Betty Crumpler filed a declaratory-judgment action in the Coffee Circuit Court naming Enterprise Realty, Inc., and Enterprise Country Club, Inc. (“the country club”), as defendants and requesting the termination or extin-guishment of an ingress/egress easement across the property owned by the Brad-shaws and abutted by property owned by the Crumplers, which is located in the Creek Pointe subdivision (“the subdivision”). Orwin Lews and Coral Sue Lewis, owners of a lot in the subdivision, intervened in the action. Enterprise Realty and the country club each moved to be dismissed from the action, stating that they had no interest in the easement and denying that they were the dominant-estate owners whose interests the easement served. The trial court denied the motions to dismiss, and the Bradshaws and the Crumplers moved for a summary judgment, which the trial court also denied. After a trial, the trial court entered a judgment determining that the subdivision was the dominant estate served by the easement, dismissing Enterprise Realty and the country club as parties, determining that the easement had not been overburdened, and declining to terminate or extinguish the easement. The Bradshaws and the Crumplers appealed the trial court’s judgment to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

The record discloses the following pertinent facts. In 1996, Coffee Developers recorded a plat of the subdivision with the Probate Court of Coffee County. The plat indicated that the subdivision had approximately 100 home lots, named streets, several utility and drainage easements, and a 10-foot-wide ingress/egress easement across Lot 7. The ingress/egress easement across Lot 7 leads to the property owned by Enterprise Realty and upon which the country club operates a country club and golf-course facility.

In 1998, the Lewises purchased Lot 34 in the subdivision. According to Orwin, at the time he purchased Lot 34, no lots abutting the golf course were available for purchase. He explained that he had discussed with Burt Barr, a builder for the subdivision, his desire for access to the golf course. Orwin testified that Barr had explained that the subdivision intended to cater to golfers and that an easement for access to the golf course had been reserved across Lot 7,. which was located near Lot 34. Orwin testified that access to the golf course through the easement was a major consideration in his decision to purchase Lot 34; Coral Sue also testified that the easement had formed part of the basis for their decision to purchase a lot in the subdivision.

Although the easement was not passable for the first few years Orwin owned his home because trees were growing in the easement, Orwin explained that he and others would cross Lot 7 diagonally to access the back of Lot 7, which, at that time, was unimproved, to utilize the rear of the easement. In 2001, Orwin arranged to have the trees blocking the easement cut. He also arranged to have a ramp over the curb installed so the easement could be accessed from the street. At that point, he and others began using the easement for access to the golf course.

The Crumplers own Lot 8, which abuts the easement across Lot 7. They built their home in 2000 and have lived in it since that time. Robert testified that he was aware of the easement when he purchased Lot 8. According to Robert, the easement was not being utilized at the time he purchased Lot 8 and constructed his home. After 2003, however, Robert testified, there had “been a lot of different use” on the easement. Notably, the Crumplers testified that, although Robert was a golfer, he never used the easement to access the golf course but, instead, utilized another route that added less than a minute to the time it took to reach the golf course.

The Crumplers both testified that the use of the easement included not only use by residents of the subdivision but also use by other people from outside the subdivision. They also explained that the easement was not solely utilized by golf carts going to and from the golf course but by bicycles, all-terrain vehicles/four-wheelers (“ATVs”), motorcycles, and even automobiles and trucks. According to the Crum-plers, people on foot, joggers, and people walking their dogs also used the easement. The Crumplers complained that the activity was not confined to the daylight or early evening hours but extended into the nighttime hours, sometimes even so late as to disturb them while they slept. They further testified that the use of the easement caused trash, debris, and dirt to accumulate on their porch and in their back and side yards and that the use of the easement had caused erosion in the easement track that, they said, had caused people to alter their path to cross the Crumplers’ yard, which, in turn, caused damage to or the destruction of their property such as sprinkler heads and outdoor lighting. Finally, the Crumplers complained that some of the people who had used the easement had vandalized their home.

The Bradshaws purchased Lot 7 in 2001 and built a home on the lot in 2002-2003. Both testified that they were aware of the easement when they purchased the lot; in fact, the existence of the easement is contained in their deed. Like the Crumplers, the Bradshaws complained of the use of the easement both day and night and of erosion damage, damage to their driveway and sprinkler heads, an increase in trash and debris along the easement, and the inappropriate use of their backyard as a “short cut” to the easement. In addition, Monica complained that dog walkers allowed dogs to defecate along the path on her property and that people often trespassed in her yard at all hours, citing, as one example, a set of teenagers who she discovered walking in her backyard at 2:30 a.m. Both Gary and Monica testified that, at least five nights per week, the easement was used between 10:00 p.m. and 4:00 a.m., interrupting their “quiet enjoyment” of their property. According to Gary, he had once apprehended a group of teenagers using the easement in the early morning hours; those teenagers had allegedly broken into the country-club clubhouse, stolen liquor, and driven a country-club golf cart into a lake on the golf course. Gary testified that another route to access the golf course was available to the subdivision owners who desired to use the course.

Norris Pfeifer, another resident of the subdivision, testified at the trial. He testified that he had looked at both Lot 7 and Lot 8 when he was looking to purchase a lot in the subdivision. He said that the presence of the easement had resulted in his decision not to purchase either of those lots because he had expected that the use of easement would be an annoyance to the owners of those lots. Pfeifer testified that the subdivision development had been touted as a golfing community and that the easement across Lot 7 was one of the biggest selling points of the subdivision.

David Naumann, who does not reside in the subdivision but owns property abutting the subdivision and the golf course, part of which is located behind Lot 7, testified regarding the use of the easement. He said that he had seen automobiles, motorcycles, trucks, ATVs, bicycles, and skateboards being used on the easement. He indicated that he had presumed that those using the easement in such a manner were not members of the country club. He also noted that the use and misuse of the easement occurred both day and night. According to Naumann, the use of the easement interferes with his quiet enjoyment of his property and poses a threat to his security. Naumann specifically stated that he had no concerns with the drivers of golf carts utilizing the easement.

As noted above, the Bradshaws and the Crumplers desired to terminate or extinguish the easement across the Bradshaws’ property. The trial court refused to do so. In the process, the trial court determined that the dominant-estate owners served by the easement were not Enterprise Realty or the county club but instead were the owners of lots in the subdivision. On appeal, the Bradshaws and the Crumplers take issue with the trial court’s determination as to who are the dominant-estate owners and with the trial court’s failure to extinguish the easement despite what they argue was clear evidence that the easement was overburdened. After a consideration of the law governing easements and a review of the evidence and testimony presented at trial, we affirm the judgment of the trial court.

The Bradshaws and the Crumplers first complain that the trial court erred when it determined that Enterprise Realty and the country club were not the dominant-estate owners served by the easement. The way the Bradshaws and the Crumplers view the evidence, the easement benefited the country club because it allowed access to the golf course across the servient estate, i.e., the Bradshaws’ property. Enterprise Realty and the country club view the evidence quite differently. They argue that they receive no benefit, other than an incidental one, from the easement, which, they say, they never requested or bargained for at any time. We agree with the trial court that the dominant-estate owners in the present case are clearly the owners of lots in the subdivision.

To explain our conclusion, we will first discuss the general law governing appurtenant easements. An easement is a property right. Magna, Inc. v. Catranis, 512 So.2d at 913-14.

“ ‘ “A parcel of land benefited by an easement is described as the dominant estate or the dominant tenement. By definition, an easement appurtenant is created for the advantage of the owner of the dominant estate. When an easement is in gross, no dominant estate exists.”
“ ‘Bruce & Ely, The Law of Easements and Licenses in Land, Para. 2.02 (1988). The purpose of appurtenant easements is to benefit the owner of the dominant tenement. 3 Powell on Real Property, 34-21 (1992).’
“Gowen v. Cote, 875 S.W.2d 637, 641 n. 4 (Mo.Ct.App.1994) (emphasis added).”

Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 269 (Ala.2006). Put another way, “ ‘[a] dominant estate is the one enjoying the easement, and to which it is attached; the servient estate is the one upon which the easement is imposed.’” Walker v. Clifford, 128 Ala. 67, 74, 29 So. 588, 591 (1901) (quoting Tiedeman an Real Prop. § 497). It matters not whether the dominant estate is a single parcel of land or whether, as here, it is a group of subdivided parcels. Weeks, 941 So.2d at 269-70.

Although the country club might benefit in a tangential or incidental way by having those of its members who happen to live in the subdivision entitled to access the golf course by way of the easement, it is the owners of the subdivided parcels in the subdivision that derive the benefit of being able to cross a neighbor’s property to access the golf course instead of having to take a route around the borders of the subdivision. Thus, we cannot agree with the Bradshaws and the Crumplers that the trial court erred in determining that the subdivision was the dominant estate the easement serves to benefit.

Within their argument that the trial court erred in determining that the subdivision was the dominant estate, the Bradshaws and the Crumplers argue briefly that the trial court also erred in concluding that the owners of parcels in the subdivision had the responsibility to maintain the easement. The Bradshaws and the Crumplers complain that the law does not grant the subdivision owners the right to improve or maintain the easement; however, the authority is to the contrary. Although a servient-estate owner ‘“has ... all the rights and benefits of ownership consistent with the easement [and] the right to use the land remains in him, without any express reservation to that effect, so far as such right does not conflict with the purpose and character of the easement,’ ” he has no duty to maintain the easement. Duke v. Pine Crest Homes, Inc., 358 So.2d 148, 151 (Ala.1978) (quoting 25 Am.Jur.2d Easements and Licenses, § 89) (“ ‘A servient owner ordinarily has no duty to do any positive act with respect to the maintenance or repair of an easement, but he is required to refrain from unlawfully interfering with or obstructing it.’ ”). However, the owner of the dominant estate — or the easement holder — has the right to prepare, maintain, and repair the easement to the extent necessary to secure its use for its intended purpose. See Ellard v. Goodall, 203 Ala. 476, 478, 83 So. 568, 571 (1919) (holding that the owner of an easement for ingress and egress to land to cut timber was entitled to “enter the land, construct and repair the way, break up and level the soil, fill up depressions, blast rocks, remove impediments, and supply deficiencies” in order to perfect and enjoy the easement); see also Annotation, Right of Owner of Easement of Way to Make Improvements or Repairs Thereon, 112 A.L.R. 1303, 1303-04 (1938) (“It is a general rule that the owner of an easement of way may prepare, maintain, improve, or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created or acquired, causing neither an undue burden upon the servient estate, nor an unwarranted interference with the rights of common owners or the independent rights of others.”). Thus, we are not convinced that the trial court erred in determining that the duty to maintain and repair the easement rests with the subdivision owners.

We turn now to the argument from the Bradshaws and the Crumplers that the easement is due to be terminated or extinguished on the ground that it has been overburdened. Our supreme court has explained the law regarding allegations that an easement has been overburdened.

“First, ‘the owner of the servient estate [ordinarily] has the burden of proving overburdening because the servient owner has asserted overburdening as a cause of action or as a reply to a special defense of an easement when the purpose of the easement is not in dispute.’ Zhang v. Omnipoint Communications Enters., Inc., 272 Conn. 627, 640 n. 8, 866 A.2d 588, 596 n. 8 (2005). See also Shooting Point, L.L.C. v. Wescoat, 265 Va. 256, 266, 576 S.E.2d 497, 502 (2003); and Logan v. Brodrick, 29 Wash.App. 796, 800, 631 P.2d 429, 432 (1981).
“Second, as a general rule, an increase in traffic over an easement in the process of normal development of the dominant estate, in and of itself, does not overburden a servient estate. Gutcheon v. Becton, 585 A.2d 818, 822 (Me.1991); Downing House Realty v. Hampe, 127 N.H. 92, 497 A.2d 862 (1985); Shooting Point, L.L.C., 265 Va. at 267, 576 S.E.2d at 503; [Jon W.] Bruce & [James W.] Ely [Jr., The Law of Easments and Licenses in Land ], ¶ 8.03[1]; and Restatement (Third) of Property § 4.10 [ (1995) ], comment f (2000). Ordinarily, to support a finding of overburdening, it must be shown that the use has changed in kind, rather than extent. Shooting Point, L.L.C., 265 Va. at 267, 576 S.E.2d at 503 (an increase in traffic over the servient estate ‘demonstrates only an increase in degree of burden, not an imposition of an additional burden, on the servient estate’). See also Blalock v. Conzelman, 751 So.2d 2 (Ala.1999).
“Relevant factors include evidence of an abrupt or ‘abnormal’ change in the development of the dominant estate and resulting use of the easement. Glenn v. Poole, 12 Mass.App. 292, 295, 423 N.E.2d 1030, 1033 (1981) (‘In the law of easements, a mutation is not within the scope of normal development.’). A relevant showing might also be made of burdens such as ‘(1) decreased property value; (2) increased noise and traffic or interference with the servient owner’s peace and enjoyment of the land; and (3) physical damage to the servient estate.’ Burkhart v. Jacob, 976 P.2d 1046 (Okla.1999). See also Smith v. Fulkroad, 305 Pa.Super. 459, 463, 451 A.2d 738, 740 (1982) (a significant increase in ‘dust, dirt and noise’ was a material factor in determining that there had been ‘a marked transformation in the former peaceful enjoyment’ of the property). Moreover, the use of the easement by owners of property other than a subdivision of the dominant tenement— even property acquired by the dominant-tenement owner after creation of the servitude — overburdens the servient estate as a matter of law. Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 516, 757 A.2d 1103, 1113 (2000); Bruce & Ely, ¶ 8.03[2]; see also Watson v. Lazy Six Corp., 608 So.2d 389 (Ala.1992); Loveman v. Lay, 271 Ala. 385, 124 So.2d 93 (1960); and McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 664 N.E.2d 786 (1996).
“Third, unless expressly restricted, the use of an easement appurtenant is not limited to the owners of the dominant estate, but also inures to the benefit of their tenants, ‘servants, agents, or employees in conducting [their] business,’ 28A C.J.S. Easements § 164 (1996), as well as social and business invitees, Gowen v. Cote, 875 S.W.2d 637, 641 (Mo.Ct.App.1994); and Picardi v. Zimmiond, 693 N.W.2d 656, 664 (S.D.2005), which includes use by utility workers and ‘utility company service vehicles.’ ”

Weeks, 941 So.2d at 271-72.

The Bradshaws and the Crum-plers argue that they presented uncontro-verted evidence demonstrating that the easement was overburdened. They point to the evidence they provided indicating that the easement was being used by persons who did not live in the subdivision (i.e., trespassers), that vandalism had resulted from the use of the easement, that their property had sustained damage from use of the easement, that the easement had eroded the land, that dirt, trash, and other debris was thrown upon their land by those using the easement, and that the use of the easement at all hours created noise and disrupted their peaceful enjoyment of their respective properties. As explained in Weeks, those facts bear on the determination whether the use of an easement is overburdening the servient estate.

However, those facts — while burdensome annoyances — cannot be considered in a vacuum. An easement is, by virtue of its existence and use, a burden to the servient estate. “ ‘ “By definition, an easement appurtenant is created for the advantage of the owner of the dominant estate.” ’ ” Weeks, 941 So.2d at 269 (quoting Gowen v. Cote, 875 S.W.2d 637, 641 n. 4 (Mo.Ct.App.1994), quoting in turn Bruce & Ely, The Law of Easements and Licenses in Land, Para. 2.02 (1988))(emphasis omitted). “‘The purpose of appurtenant easements is to benefit the owner of the dominant tenement.’ ” Id. (quoting Gowen, 875 S.W.2d at 641 n. 4). However, although the easement exists to benefit the dominant estate, “the [estate owners] have concurrent rights to the use of the easement, and neither [estate owner] can prevent the other from using the easement in a manner consistent with the purposes for which the easement was created. Thus, the existence of the easement creates mutual rights and obligations.” Blalock v. Conzelman, 751 So.2d 2, 6 (Ala.1999).

“ ‘[T]he landowner may not, without the consent of the easement holder, unreasonably interfere with the latter’s rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome.’ Boss v. Rockland Elec. Co., 95 N.J. 33, 38, 468 A.2d 1055, 1058 (1983). Conversely, the easement holder “‘can not change its character, or materially increase the burden upon the servient estate.” ’ White v. Walsh, 105 Cal.App.2d 828, 832, 234 P.2d 276, 278 (1951) (emphasis added) (quoting Burris v. People’s Ditch Co., 104 Cal. 248, 252, 37 P. 922, 923 (1894)). Indeed, ‘it is elementary law respecting easements that neither the dominant owner nor the ser-vient owner is permitted to materially alter the character of the servitude.’ Gerber v. Appel, 164 S.W.2d 225, 228 (Mo.Ct.App.1942) (emphasis added), quashed in part on other grounds, State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45 (1943).”

Id.

In those Alabama cases actually considering whether an easement has been overburdened, the issue has been whether the dominant-estate owner should be enjoined from using the easement in an overburdening manner. Weeks, 941 So.2d at 271-73 (wherein the servient-estate owner appealed, seeking further limitations on the use of the easement because of alleged overburdening); see also Perdido Place Condo. Owners Ass’n, Inc. v. Bella Luna Condo. Owners Ass’n, Inc., 43 So.3d 1201 (Ala.2009) (wherein the servient-estate owner appealed the trial court’s determination that the use of the easement would not overburden the servient estate and its decision not to “void” the easement). No Alabama case has addressed what the trial court was called on to determine in this case — whether the alleged overburdening of an easement by the dominant-estate owners should result in the termination or extinguishment of the easement. Other jurisdictions have considered the issue and, generally, have decided against the extinguishment or termination of an easement in all but the most egregious cases involving overburdening or misuse of an easement. See, generally, James L. Bu-chwalter, Annotation, What Constitutes, and Remedies for, Misuse of Easement, 111 A.L.R. 5th 313 (2003).

“Misuse of an easement right is not sufficient to constitute a forfeiture, waiver, or abandonment of such right. The right to an easement is not lost by using it in an unauthorized manner or to an unauthorized extent, unless it is impossible to sever the increased burden so as to preserve to the owner of the dominant tenement that to which he is entitled, and impose on the servient tenement only that burden which was originally imposed upon it.”

Penn Bowling Recreation Ctr. v. Hot Shoppes, Inc., 179 F.2d 64, 66 (D.C.Cir.1949); see also Frenning v. Dow, 544 A.2d 145, 146 (R.I.1988) (“Generally courts have not favored extinguishing an easement unless injunctive relief would be ineffective to relieve the servient [estate].”).

“ ‘Use of an easement for an unauthorized purpose, or the excessive use or misuse of it, is not sufficient to cause a forfeiture of the easement, unless the misuse of the easement is willful and substantial and not merely minor or technical.’ 25 Am.Jur.2d Easements & Licenses § 99 (2007). Instead, other remedies may be used where misuse of an easement has occurred.”

Sluyter v. Hale Fireworks P’ship, 370 Ark. 511, 516, 262 S.W.3d 154, 158 (2007).

In addition, the principle that “courts of equity abhor forfeitures,” which Alabama has long recognized, see McDonough v. Saunders, 201 Ala. 321, 325, 78 So. 160, 165 (1917) (“Courts of equity abhor forfeitures, and will never enforce them unless necessary to enforce the law and to do justice between the parties.”), supports the idea that the property right the dominant-estate owner has in the easement should not be extinguished lightly. See Frenning, 544 A.2d at 146; Parolisi v. Beach Terrace Improvement Ass’n, Inc., 463 A.2d 197, 199 (R.I.1983) (noting the principle and affirming the trial court’s decision not to extinguish an easement pursuant to the terms of the grant for misuse and instead ordering that the easement holder adhere to the restrictions in the grant and install a lock on a gate across the easement to prevent unauthorized use of the easement). Likewise, the fact that it appears that most of the misuse of the easement has been perpetrated by trespassers and vandals militates in favor of a decision not to forfeit the dominant-estate owners’ property rights in the easement. See Cleveland v. Clifford, (No. 02CA008071, March 13, 2003) (Ohio Ct.App.2003) (not reported in N.E.2d) (affirming the trial court’s decision not to extinguish an easement for misuse where it was apparent that the dominant-estate owner, the owner of a restaurant, had not violated the easement and had, in fact, discouraged restaurant patrons from violating the easement, to no avail). Both the Parolisi and the Cleveland cases are instructive. Cleveland indicates that a trial court should consider whether the dominant-estate owner has committed the acts amounting to misuse or has attempted to prevent them when determining whether the easement should be extinguished and Parolisi supports the conclusion that the trial court facing questions regarding overburdening or misuse should balance the equities of the parties to preserve their respective property rights. Parolisi, 463 A.2d at 199; Cleveland, supra.

The dominant-estate owner in Cleveland was the owner of a restaurant that had been granted a “drive easement” by the servient-estate owner. The patrons of the restaurant often parked in the area of the drive easement despite the fact that the owner of the restaurant had informed restaurant patrons not to park in that area. Because the restaurant owner had not himself parked in the drive easement, the court noted that he had not intentionally violated the easement. However, the court pointed out that other steps could be taken to prevent misuse of the easement, including posting “No Parking” signs or painting similar markings on the ground or clearly marking parking spaces around the restaurant.

In Parolisi, the dominant-estate owner was the Beach Terrace Improvement Association, which had a beach-access easement across Parolisi’s property. Parolisi, 463 A.2d at 197. The deed conveying the easement contained a restriction requiring that the easement be used for ingress and egress by the Association’s members only; the deed further provided that if the restriction was violated, the Association would deed the easement back to servient-estate owner. Id. at 198. Parolisi objected to the use of the beach access by: nonmembers of the Association like children attending a swim class put on by the town’s recreation department, guests of the Association’s members, shellfíshermen, “boisterous youngsters who made themselves heard at 11 p.m.,” and an unidentified local police officer and his child or children. Id. The Association had, before this action, erected a gate across the easement, posted a sign indicating that the easement was only for the use of Association members, and enacted a rule that the easement could not be used between the hours of 10 p.m. and 6 a.m. Id. at 199. The trial court declined to require that the Association deed the easement back to Parolisi and instead ordered the Association to abide by the restrictions in the deed and to install a lock on the gate and issue keys only to Association members to use when accessing the easement. Id. The appellate court affirmed the trial court’s judgment, noting that by its injunction it had “fashioned ... a model of the proper balancing of the equities.” Id.

Turning back to the present case, even assuming, without deciding, that the use of the easement at all hours, the use of the easement by vehicles other than golf carts, the trash, noise, and associated interference with the use and enjoyment of the servient estate, and the use by trespassers and vandals overburden the servient estate, we are not convinced that the trial court erred in refusing to terminate or extinguish the easement. The evidence did not clearly establish that the misuse of the easement was committed by subdivision owners using the easement for its intended purpose. The Bradshaws and the Crumplers had taken no steps to ameliorate the issues that gave rise to this litigation, like installing fencing or other barriers to prevent access to their properties by unauthorized users or to clearly demarcate the boundaries of the easement or requesting that the subdivision post signs limiting access to the easement to golf carts or subdivision owners or that the subdivision limit the times the easement may be used. In addition, the Bradshaws and the Crumplers actively prevented the improvement of the easement to prevent further erosion. The trial court properly determined that “the [subdivision] owners shall not be denied the benefit and use of the easement because of illegal use of the easement by trespassers, vandals or troublemakers.” Therefore, we affirm its decision to deny the requested extinguishment of the easement.

AFFIRMED.'

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . To the extent the Bradshaws and the Crum-plers rely on the fact that an alternate route to access the golf course exists, we note that, because the easement is not an easement by necessity, the existence of that alternate route is irrelevant and cannot be used to compel a relinquishment of the subdivision owners’ property rights in the easement. Magna, Inc. v. Catranis, 512 So.2d 912, 914 (Ala.1987) (lack of need of entirety of easement irrelevant to determination of whether the servient-estate owner could lease a portion of the easement to another party); see also Ex parte Folsom, 42 So.3d 732, 739 (Ala.2009). As our supreme court has explained:
      "Our respect for property rights will not permit us to dimmish or reduce Magna’s rights simply because neither Magna nor its tenant needs all the property to which it has property rights. Certainly, our federal and state constitutions protect such rights and would prohibit judicial deprivation or diminution of such rights based solely upon a judicial determination of an owner’s lack of need for such property. The implications of a contrary result would be frightening.”

        Magna, 512 So.2d at 914.

      . The Bradshaws, the Crumplers, and the Lewises all agree the easement is an easement appurtenant, which appears to be the case. In any event, because the parties do not argue that the easement is an easement in gross, we will analyze the case under the law governing appurtenant easements.

      . Because we have concluded that the trial court did not err in determining that the subdivision was the dominant estate, we will not discuss the argument advanced by the Bradshaws and the Crumplers in their brief that the doctrine of merger somehow extinguished the easement because Enterprise Realty and the country club admitted that they had no interest in the easement.

      . Notably, the Bradshaws and the Crumplers, in contravention of Rule 28(a)(10), Ala. R.App. P., present no authority for their statements that the trial court’s conclusion is not supported by the law governing easements.