author: LEE, C.J.,

text:
    Casey RENO, Appellant v. Randy RENO, Appellee.
    No. 2012-CA-00322-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2013.
    Matthew Ryan Macaw, attorney for appellant.
    Phillip M. Whitehead, attorney for ap-pellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This appeal addresses the requirement for a written consent agreement for parties to proceed in obtaining a divorce on the ground of irreconcilable differences under Mississippi Code Annotated section 93-5-2(3) (Supp.2012).

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 21, 2010, Randy Reno filed a complaint for divorce against Casey Reno on the grounds of habitual and excessive use of opium, morphine, or other like drug; habitual cruel and inhuman treatment; and, in the alternative, irreconcilable differences. Casey filed an answer and counterclaim, denying both the habitual and excessive drug use and the cruel and inhuman treatment and asserting irreconcilable differences. Casey also alleged that venue was improper in Tish-omingo County Chancery Court, where Randy had originally filed. On December 17, 2010, the case was transferred to the DeSoto County Chancery Court.

¶ 3. On May 26, 2011, Randy filed an amended complaint for divorce to include adultery along with the grounds he originally asserted. Casey filed her answer, denying the contested grounds for divorce but again admitting that irreconcilable differences existed between the parties.

¶4. On November 16, 2011, a hearing was held in DeSoto County Chancery Court. Before the trial began, the parties informed the chancellor that they wished to proceed on the ground of irreconcilable differences. The chancellor stated from the bench:

In order for the Court to proceed on the ground[ ] of irreconcilable differences, I have to have both of your consentís].... Normally, the consent is reduced to writing[,] ... but there’s ... case law that allows us to take testimony from y’all about your consentí;] then it will be reducefd] to writing in the form of the divorce decree.
If [it is your agreement], and you agree that you are entering into this consent and that you will sign the consent agreement, the divorce decree, once it is presented, then — and you understand that once you enter into this consent, you can’t change your mind. You can’t back out. I’m going to proceed on irreconcilable differences.... And after you tell me that, even if you change your mind and decide, I’m not going to sign it. Well, you’ve already consented, you told me you are going to sign it, so I will sign it whether you sign it or not.

The chancellor then questioned both parties about their consent, and both parties consented to a divorce on the ground of irreconcilable differences. Additionally, both parties consented that they would keep the property currently in their respective possessions. Although the parties gave verbal consent at the hearing, no written consent was ever filed. The only issue submitted to the chancellor was the custody of the children.

¶ 5. After hearing testimony and evidence, the chancellor awarded Randy primary physical custody of the children and awarded Casey visitation. The final judgment of divorce was entered on January 24, 2012, nunc pro tunc to November 16, 2011. No post-trial motions were filed by either party. Casey now appeals, arguing that the divorce is void because the consent was never reduced to writing.

STANDARD OF REVIEW

¶ 6. “This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard .... ” Dupre v. Dupre, 71 So.3d 1226, 1228 (¶ 11) (Miss.Ct.App.2011). However, “[l]egal questions are reviewed de novo.” Id.

DISCUSSION

¶ 7. The sole issue on appeal is if verbal consent to a divorce on the ground of irreconcilable differences, where no written consent agreement was filed, is sufficient to satisfy the consent requirement under section 93-5-2(3).

¶ 8. Section 93-5-2(3) states in relevant part:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.

(Emphasis added).

¶ 9. In Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss.1992), the Mississippi Supreme Court addressed a similar issue. In that case, the parties both sought a divorce on the ground of irreconcilable differences but failed to sign a written consent. The court held that “[t]he parties must do more ... than implicitly consent to a divorce on the ground of irreconcilable differences and raise issues in their pleadings.” Id. at 1177. The parties must ensure that the consent adheres to the statutory requirements, meaning it must:

(1) be in writing and signed personally by both parties;
(2) state “the parties voluntarily consent to permit the court to decide” the specific issues on which they cannot agree; and
(3) state “that the parties understand that the decision of the court shall be a binding and lawful judgment.”

Miss.Code Ann. § 93-5-2(3).

¶ 10. As to the statutory requirements, the Mississippi Supreme Court has firmly stated:

Divorce is a creature of statute; it is not a gift to be bestowed by the chancellor based upon a perception that declining to grant the divorce will not restore the couple to a harmonious relationship. It is a statutory act and the statutes must be strictly followed as they are in derogation of the common law.

Massingill, 594 So.2d at 1178 (quoting Kergosien v. Kergosien, 471 So.2d 1206, 1210 (Miss.1985)).

¶ 11. The chancellor committed manifest error by failing to strictly follow section 93-5-2(3). Because “the chancellor exceeded [her] statutory authority in granting a divorce on the ground of irreconcilable differences, we in effect ‘wipe the slate clean and put the parties back where they were prior to trial.’ ” Massingill, 594 So.2d at 1179 (quoting Haralson v. Haralson, 483 So.2d 378, 380 (Miss.1986)). Therefore, we reverse and remand.

¶ 12. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., AND CARLTON, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Christopher JACKSON a/k/a “Buddy Love”, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00792-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2013.

      George T. Holmes, Jackson, Wilbert Le-von Johnson, attorneys for appellant.
    Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., CARLTON and FAIR, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Christopher Jackson was convicted of armed robbery in the Tunica County Circuit Court and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended. Jackson now appeals his sentence and conviction, arguing that the weight of the evidence presented at trial does not support the verdict. Jackson also makes a claim of ineffective assistance of counsel.

FACTS

¶ 2. On November 10, 2010, Lieutenant James Jones of the Tunica County Sheriffs Department, along with several other narcotics-enforcement officers, hired Murray Smith to make street-level purchases of controlled substances. The officers gave Smith $40 of government money to use to purchase the substances, and they wired him with a body camera. Smith also called the officers on his cell phone and left the connection open so that the officers could hear any conversation he might engage in while attempting to purchase a controlled substance.

¶ 3. While being monitored by Lieutenant Jones and the other officers, Smith encountered Melvin Davis and Timmy Davis, who both indicated to Smith that they would sell Smith $40 worth of crack cocaine. Melvin told Smith he had to obtain the drugs first, and instructed Smith to wait in a nearby park.

¶ 4. Smith waited in the park, and Melvin arrived a few minutes later. He told Smith that Timmy would arrive soon with the cocaine. When Timmy arrived, he failed to produce any drugs. Jackson arrived on the scene shortly after. Within moment of Jackson’s arrival, Melvin pointed a gun at Smith and demanded that Smith give him his wallet, the $40, as well as Smith’s own personal cash and an un-cashed loan check in the amount of $1,000. All of this was captured by the officers on video recording. When the officers saw Melvin with the gun, they immediately arrived on the scene. Melvin, Timmy, and Jackson all ran off as the officers approached. Timmy soon turned himself in. Officers arrested Melvin later that same day, and Jackson was arrested two days later. All three were charged with armed robbery.

¶ 5. At his trial held April 23-24, 2012, Jackson testified in his own defense and claimed that he did not know that Melvin and Timmy were planning to rob Smith. Jackson also testified that he did not provide the gun for the robbery. However, Melvin testified that Timmy and Jackson gave him the gun and told him to rob Smith, and that if Melvin failed to do so, Timmy and Jackson would kill him. Melvin admitted that he held the gun on Smith and demanded the money from him.

¶ 6. Smith also testified and gave details about the robbery. He also testified that Jackson was a “one hundred percent participant” in the robbery. Lieutenant Jones testified that he watched Jackson during the robbery, and he observed Jackson tell Smith to drop his wallet. Lieutenant Jones also testified that after he arrested Jackson, Jackson made a voluntary statement that he provided the gun used in the robbery.

¶ 7. The jury found Jackson guilty of armed robbery, and the trial court sentenced Jackson to a term of twenty years in the custody of the MDOC, with five years suspended, to run consecutively to any and all sentences previously imposed. The court ordered that the suspension of the sentence was to commence after Jackson had served fifteen years in an institution under the supervision and control of the MDOC. Jackson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Jackson now appeals his conviction and sentence, arguing that his guilty verdict was not supported by the weight of the evidence. Jackson contends that although Lieutenant Jones stated that he observed Jackson order Smith to drop his wallet, Smith testified that Jackson never spoke to him during the robbery. Jackson also claim Lieutenant Jones lied when he provided testimony that Jackson admitted to providing the gun used in the robbery.

¶ 8. Additionally, Jackson claims that he received ineffective assistance of counsel during his trial. He argues that his attorney should have asked the trial court to suppress Jackson’s recorded interrogation.

STANDARD OF REVIEW

¶ 9. We review the denial of a post-trial motion seeking a new trial under an abuse of discretion standard. Dilworth v. State, 909 So.2d 731, 736 (¶ 17) (Miss.2005).

DISCUSSION

¶ 10. Jackson argues that the trial court erred by denying his post-trial motion because the verdict was against the overwhelming weight of the evidence. The standard of review for determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. Our supreme court has established that an appellate court will not grant a new trial “unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” McLendon v. State, 945 So.2d 372, 385 (¶ 40) (Miss.2006) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)).

¶ 11. The State contends that three eyewitnesses testified at trial that Jackson was present during, and participated in, the robbery of Smith. Smith identified Jackson at trial, and Smith testified that during the robbery Jackson and Timmy “encircled [him] so that [he] could not back up or get away” while Melvin held the gun on him. Melvin also provided testimony that Jackson threatened to kill him if he did not rob Smith.

¶ 12. The State refutes Jackson’s claims that the verdict was not supported by the weight of the evidence and submits that the three eyewitnesses testified to Jackson’s participation in the crime, which constituted ample evidence to convict Jackson. The jury heard the evidence and determined the weight and credibility of the testimony of Melvin, Smith, and Lieutenant Jones.

¶ 13. In Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999), this Court stated that the jury possesses the responsibility of “weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” (Citation omitted). The Ford Court continued to explain:

The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity. “It is not for this Court to pass upon the credibility of witnesses[,] and where evidence justifies the verdict it must be accepted as having been found worthy of belief.”

Id. (Internal citations omitted). Additionally, the supreme court established that “the testimony of a single witness is sufficient to support a conviction.” Id. (citing Doby v. State, 532 So.2d 584, 590 (Miss.1988)). After reviewing the record, we cannot say that Jackson’s guilty “verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” McLendon, 945 So.2d at 385 (¶ 40).

¶ 14. Jackson also claims that his trial counsel was ineffective for failing to suppress his recorded interview with the police officers. To prove ineffective assistance of counsel, Jackson must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that a counsel’s performance falls within the range of reasonable professional assistance. Id. at 689. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

¶ 15. This Court has recognized that when a claim of ineffective assistance of counsel is raised on direct appeal, rather than in a motion for post-conviction relief, the claim should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate 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). Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 16. The transcript reflects that when the State sought to admit the audio recording into evidence, the prosecutor explained that he only wanted to play a portion of the tape for the jury. Jackson’s counsel, however, stated that playing the tape in its entirety would have evidentiary value by providing exculpatory evidence supporting Jackson’s theory of the case. The audio recording of the interview' reflects that Jackson denied having prior knowledge of the robbery or participating in it, and reveals Jackson calling people in an attempt to locate the gun used in the robbery. However, Jackson claims that the phone calls he made during the interrogation were to people who had no knowledge of the location of the gun. Jackson maintains that he knew nothing about the plan to rob Smith and that he did not provide the gun. He submits that by admitting the recording into evidence, which shows Jackson making phone calls in an attempt to locate the gun, it appeared to the jury that Jackson did indeed have knowledge about the location of the gun. Jackson asserts that he made the phone calls in a vain attempt to help the officers try and find the gun as a result of the officers’ repeated promises of leniency.

¶ 17. The trial transcript suggests that Jackson’s counsel requested admission of the entire audio recording of Jackson’s interrogation with the police officers to be admitted into evidence as part of his trial strategy, instead of allowing the State to admit only a portion of the recording. We utilize an abuse-of-discretion standard when reviewing a trial court’s decision to admit evidence. Palmer v. State, 986 So.2d 328, 331 (¶ 12) (Miss.Ct.App.2007). In considering a claim of ineffective assistance of counsel, an appellate court must “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. In other words, defense counsel is presumed competent.” Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008) (internal citation and quotation marks omitted). The record reflects that defense counsel at trial possessed strategic reasons to seek admission of the entire recording, as opposed to excerpts chosen by the State, and the record supports the admission of the recording as more probative than prejudicial towards Jackson. Regardless of whether Jackson’s counsel should have filed a motion to suppress the recording of the interrogation, we find that any error by the trial court in the admission into evidence of the entire audio recording of Jackson’s interrogation with the police officers, revealing Jackson’s efforts to locate the gun, is harmless. See McGee v. State, 907 So.2d 380, 385 (¶ 18) (Miss.Ct.App.2005). We find the record fails to “affirmatively show ineffectiveness of constitutional dimensions.” Colenburg, 735 So.2d at 1101 (¶ 5). Accordingly, we find this issue lacks merit on direct appeal, without any prejudice to subsequent review on a petition for post-conviction relief.

1118. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED, AND TO PAY $500 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . This action originally included Timmy Davis as a codefendant in the trial, but due to the admission of the audio recording into evidence, the trial court granted the request to sever Timmy from the present case and try him separately.

      . See also M.R.E. 403 (trial judge must perform balancing test to weigh probative or prejudicial value of evidence when determining whether to exclude or admit evidence).


author: GRIFFIS, P.J.,

text:
    Brenda PELTON, Appellant v. Brian PELTON, Appellee.
    No. 2011-CA-01741-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2013.

      Arthur D. Carlisle, Ocean Springs, attorney for appellant.
    Elliot G. Mestayer, Pascagoula, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Brenda and Brian Pelton agreed to a divorce on the ground of irreconcilable differences. They submitted to the chancellor the issues of distribution of the marital home, debts, and personal property; child support; alimony; division of the business assets; contempt for failure to follow a temporary restraining order; and attorney’s fees. Brenda now appeals the chancellor’s awards. We find that the chancellor erred when he failed to apply the Ferguson and Armstrong factors in his division of the property and award of alimony. Therefore, we reverse and remand for further proceedings.

FACTS

¶ 2. Brenda and Brian were married on December 15, 1998. They had one daughter during the marriage. Brenda also had one son from a prior marriage. The parties separated on October 21, 2010, after almost twelve years of marriage.

¶ 3. Brenda works as a legal assistant. Her monthly income is approximately $2,248.37. Brian is the sole owner of Tree Toppers, a tree-cutting and trimming business Brian began during the marriage. Tree Toppers has many assets and liabilities. Brian’s monthly income is difficult to ascertain because it fluctuates with the seasons and results from many cash transactions. Brian approximated his monthly income at $1,503.

¶ 4. During the marriage, they lived in a home purchased by Brian prior to their marriage.

¶ 5. Brenda filed for divorce on January 11, 2011, and Brian counterclaimed for divorce on May 9, 2011. On May 10, 2011, the parties agreed to a divorce based on irreconcilable differences.

¶ 6. The chancellor entered a final judgment after a hearing was conducted in response to Brenda’s motion to reopen the case. The chancellor did not designate the properties in dispute as marital or non-marital assets and did not value the home or Tree Toppers. The chancellor awarded the business to Brian, along with its liabilities, including the equity line of credit on the marital home because the proceeds were used for Tree Toppers. Brenda was awarded $150 a month in periodic alimony for seven years (totaling $12,600) and use of the marital home until the parties’ daughter graduates from high school in five years. The marital home was ordered to be sold within a year of the child’s graduation, with the proceeds to be equally split between the parties. Since Brenda had physical possession of the home, Brenda was ordered to pay all insurance, maintenance, and taxes on the home, as well as the first mortgage.

¶ 7. Both parties filed motions to reconsider and motions for a new trial. On October 18, 2011, the chancellor conducted a consolidated hearing on all four motions. The chancellor granted in part and denied in part Brenda’s motion to reconsider, which resulted in an increase of child support and a change in visitation.

¶ 8. Brenda now appeals the chancellor’s division of property and the adequacy of the periodic-alimony award.

STANDARD OF REVIEW

¶ 9. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002) (quoting Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (¶ 13) (Miss.1999)). “However, the Court will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard.” Owen v. Owen, 928 So.2d 156, 160 (¶ 11) (Miss.2006). A chancellor’s conclusions of law are reviewed de novo. Chesney v. Chesney, 910 So.2d 1057, 1060 (¶ 5) (Miss.2005) (citing Southerland v. Southerland, 875 So.2d 204, 206 (¶ 5) (Miss.2004)). The distribution of marital assets in a divorce will be affirmed if “it is supported by substantial credible evidence.” Bowen v. Bowen, 982 So.2d 385, 393-394 (¶ 32) (Miss.2008) (quoting Owen, 928 So.2d at 160 (¶ 10)).

ANALYSIS

¶ 10. Brenda argues the chancellor: (1) applied an erroneous legal standard in dividing the marital assets; (2) was manifestly wrong and clearly erroneous in dividing the marital assets; (3) erred by failing to first classify the property of the parties as either marital or nonmarital; (4) failed to equitably divide the property of the parties, specifically the business known as Tree Toppers; (5) awarded an inadequate amount of periodic alimony; (6) failed to adequately consider the Ferguson factors in dividing the marital assets of the parties; and (7) committed sufficient cumulative error to require reversal. Issues one, two, three, four, and six, as submitted by Brenda, will be combined for discussion.

I. Equitable Division of Marital Property

¶ 11. Brenda argues the chancellor did not properly divide the marital assets. A chancellor is required to make findings of fact regarding all applicable Ferguson factors. Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 15) (Miss.1999); Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). As such, the supreme court has held that failure to apply the Ferguson factors and absence of an analysis of these factors constitute reversible error. See Lowrey v. Lowrey, 25 So.3d 274, 280 (¶ 7) (Miss.2009).

¶ 12. In Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994), the court outlined the process that a chancellor must follow to apply the Ferguson factors. First, the chancellor should classify the parties’ assets as marital or nonmarital based on Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). Johnson, 650 So.2d at 1287. Next, the chancellor must value and equitably divide the assets. Id. Then, after equitable division and in light of the parties’ nonmarital assets, and only if the marital assets will leave one party in a deficit, the chancellor should consider an award of alimony. Id.

¶ 13. In Gray v. Gray, 909 So.2d 108, 111 (¶ 11) (Miss.Ct.App.2005), we reversed and remanded the chancellor’s division of marital assets when “the chancellor merely announced his judgment, divided the marital property, provided for child support and awarded alimony.” We found the chancellor’s review to be inadequate because precedent required “the chancellor to make specific findings of fact and conclusions of law to support the equitable division of assets.” Id. at 112 (¶ 14).

¶ 14. As in Gray, here the chancellor merely announced his judgment and entered an award. The record does not reflect any evidence that the chancellor conducted a Ferguson analysis in this case. The record contains multiple estimated values of Brian’s income and assets, which complicates our ability to delineate the chancellor’s analysis and basis for the decision. As such, we cannot say the equitable distribution of marital property is supported by substantial credible evidence. We reverse and remand this issue for the chancellor to make specific findings and conclusions of law as to the Ferguson factors and the equitable division of property.

II. Periodic-Alimony Award

¶ 15. Brenda alleges the chancellor awarded an inadequate amount of periodic alimony. The chancellor is required to make specific findings using the Armstrong factors to determine issues of fact and conclusions of law in the grant or denial of alimony. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Failure to apply the Armstrong test constitutes reversible error. Lowrey, 25 So.3d at 280 (¶ 7).

¶ 16. We have reviewed the award of periodic alimony. However, the record does not show the chancellor analyzed the alimony award based on the Annstrong test. The chancellor’s judgment merely orders Brian to pay Brenda $150 per month for seven years. Thus, we must reverse and remand this issue for further findings to support the award of periodic alimony.

CONCLUSION

¶ 17. We hold the chancellor manifestly erred when he failed to complete the Ferguson and Annstrong analyses in the division of marital assets and award of alimony, respectively. We reverse and remand these issues for factual findings consistent with these tests.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


author: JAMES, J.,

text:
    Kay FREEMAN, Appellant v. CLC OF BILOXI, LLC d/b/a Biloxi Community Living Center, Appellee.
    No. 2012-CA-00606-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2013.

      Jenny Tyler Baker, Myles Ethan Sharp, attorneys for appellant.
    Margaret Sams Gratz, John G. Wheeler, attorneys for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Kay Freeman appeals the Harrison County Circuit Court’s order granting summary judgment in favor of CLC of Biloxi d/b/a Biloxi Community Living Center (“CLC”) and granting CLC’s motion to alter or amend a judgment. She raises two issues on appeal: (1) whether the circuit court’s decision to grant CLC’s motion to alter or amend the judgment was an abuse of discretion; and (2) whether the circuit court erred in granting summary judgment in favor of CLC. Upon review, we find no error and affirm the circuit court’s grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. This is a slip-and-fall case. Freeman alleges that on August 24, 2006, she was an invitee on the premises of CLC when she slipped and fell in a puddle of water after housekeeping, Healthcare Services Group Inc. (“HSG”), mopped the floors of the facility. As a result, on May 27, 2008, Freeman filed a complaint against Community Eldercare Services (“CES”) and CLC on the basis of premises liability. On July 9, 2008, CES and CLC filed their answer and affirmative defenses.

¶ 3. On October 27, 2008, Freeman filed a motion for leave to file an amended complaint, seeking to add HSG as a defendant. On November 3, 2008, an agreed order was entered allowing Freeman to amend her complaint to add HSG as a defendant, and Freeman filed her amended complaint adding HSG on November 7, 2008.

¶ 4. On November 25, 2008, CES and CLC filed their answer to the amended complaint, and they stated that “[i]t is admitted that [CLC] and [HSG] were in a contractual relationship in which [HSG] provided certain services at [CLC] in August 2006.” CLC also admitted that it operates its nursing home in Biloxi, and that Freeman was physically present at its facility on August 24, 2006. CLC and CES denied that they were liable.

¶ 5. On January 20, 2009, HSG filed its answer and defenses to the amended complaint after getting an extension of time to file its answer. On July 7, 2009, HSG and Freeman entered into an out-of-court settlement, and a release was executed by Freeman. On July 21, 2009, the circuit court entered an agreed order dismissing HSG with prejudice.

¶ 6. On April 1, 2011, Freeman filed a motion for partial summary judgment against CES, arguing that CES, as a premises owner, is responsible for the negligence of an independent contractor, HSG, that created an unsafe condition on the premises. A hearing was set for May 19, 2011, on this motion.

¶ 7. On April 21, 2011, CES and CLC filed a motion for summary judgment, arguing that they were not liable for the actions of HSG because neither CES nor CLC created the alleged dangerous condition; neither CES nor CLC had actual knowledge of the alleged dangerous condition; and neither CES nor CLC had constructive knowledge of the alleged dangerous condition. They further stated that CES should be dismissed from the case because CES did not own, operate, or control the premises. They also filed an itemization of facts not genuinely disputed to support their motion for summary judgment. On April 28, 2011, Freeman filed a response to CES and CLC’s motion for summary judgment.

¶ 8. On October 13, 2011, the circuit court entered an order denying Freeman’s motion for partial summary judgment; denying CES and CLC’s motion for summary judgment; and dismissing CES with prejudice. On October 21, 2011, CLC filed a motion under Mississippi Rule of Civil Procedure 59(e) to alter or amend the judgment denying its motion for summary judgment. On October 31, 2011, Freeman filed her response to the motion to alter or amend. On December 15, 2011, CLC filed a rebuttal brief in support of its motion to alter or amend. CLC also noted that there were cross-motions for summary judgment on the same issue of law for which there was no disputed issue of fact. Therefore, it sought a ruling on whether CLC could be vicariously liable for the actions of its independent contractor, HSG, in a slip-and-fall case.

¶ 9. On March 8, 2012, a hearing was held on CLC’s motion to alter or amend the order denying summary judgment. On April 2, 2012, the circuit court entered a final judgment of dismissal with prejudice, which reads, in pertinent part:

[T]he [mjotion to [ajlter or [ajmend [jjudgment should be granted pursuant to Rule 59(e), in that there is a need to correct a clear error of law or prevent manifest injustice, that error being that there is no genuine issue of material fact regarding whether [CLC] committed a negligent act to create a dangerous condition on its premises or whether it had actual or constructive knowledge of a dangerous condition on its premises and failed to warn.
[T]he prior ruling of the [c]ourt denying the summary judgment motion of [CLC] should be reversed instead of granted. There is no genuine issue of material fact that the water on which [Freeman] claims to have slipped and fallen was placed there by an employee of [HSG]; that [CLC] is not vicariously liable for the actions of said employee; and that [CLC] had neither actual nor constructive knowledge of said water.

On April 11, 2012, Freeman appealed.

DISCUSSION

I. Whether the circuit court’s decision to grant CLC’s motion to alter or amend the judgment was an abuse of discretion.

¶ 10. “The grant or denial of a Rule 59 motion is within the discretion of the judge, and we will not reverse ... absent an abuse of discretion or if allowing the judgment to stand would result in a miscarriage of justice.” Harrison v. Miss. Transp. Comm’n, 57 So.3d 648, 651 (¶ 11) (Miss.Ct.App.2010) (quoting Journeay v. Berry, 953 So.2d 1145, 1160 (¶ 51) (Miss.Ct.App.2007)). Under Mississippi Rule of Civil Procedure 59(e), a motion to alter or amend “shall be filed not later than ten days after entry of the judgment.” “In order to succeed on a Rule 59(e) motion, the movant must show: (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice.” Harrison, 57 So.3d at 651 (¶ 13). Because the answer to the second question presented is dispositive of the first question presented, we only address the second question presented below.

II. Whether the circuit court erred in granting summary judgment in favor of CLC.

¶ 11. “We review a trial court’s grant of summary judgment de novo.” Haggard v. Wal-Mart Stores, Inc., 75 So.3d 1120, 1124 (¶ 8) (Miss.Ct.App.2011). Summary judgment is proper 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). “The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt.” Haggard, 75 So.3d at 1124 (¶ 8) (quoting Miller v. R.B. Wall Oil Co., 970 So.2d 127, 130 (¶ 5) (Miss.2007)). Additionally, “the facts must be viewed in the light most favorable to the non-moving party.” Id. (quoting Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (¶ 4) (Miss.2008)). “The non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial.” Id.

¶ 12. We use a three-step process in determining premises-liability cases: “First, we must determine whether the injured party was an invitee, [a] licensee, or a trespasser at the time of the injury. Next, we must determine what duty was owed to the injured party by the business owner/operator. Finally, we must determine whether that duty was breached.” Id. at (¶ 9) (quoting Rod v. Home Depot USA, Inc., 931 So.2d 692, 694 (¶ 9) (Miss.Ct.App.2006)).

¶ 13. In Mississippi, “[t]o determine the duty of care owed by an owner or occupier of land to entrants on the property, we classify the entrants based upon common-law distinctions between trespassers, licensees, and invitees.” Wilson v. Baptist Mem’l Hosp.—N. Miss., Inc., 93 So.3d 48, 50 (¶ 6) (Miss.Ct.App.2012). Thus, an entrant will have one of the following possible statuses:

Generally, an invitee is one who enters another’s premises in answer to the express or implied invitation of the owner or possessor for their mutual advantage; a licensee is one who enters upon another’s premises for his or her own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner or possessor; and a trespasser is one who enters upon another’s property without invitation, license, or other right.

Id. at 51 (¶ 8). In the case before us, it is undisputed that Freeman was an invitee because she entered the nursing home “in answer to the express or implied invitation of the owner or possessor for their mutual advantage[.]” Id. Further, this Court has held that “a visitor of a patient in a hospital is a business invitee under Mississippi law.” Id. at 52 (¶ 13).

¶ 14. “A business owner/operator owes to invitees the ‘duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Haggard, 75 So.3d at 1125 (¶ 10). Stated another way:

In Mississippi, an owner, occupant, or person in charge of a premises owes to an invitee or business visitor a duty to exercise ordinary care to keep the premises in a reasonably safe condition or to warn the invitee of dangerous conditions, not readily apparent, which the owner or occupier knows of or should know of in the exercise of reasonable care.

Id. “However, the owner or occupant is not an insurer against all injuries.” Id.

¶ 15. In a slip-and-fall case, the plaintiff must show one of the following to recover:

(1) a negligent act of the defendant caused her injury;
(2) the defendant had actual knowledge of the dangerous condition, but failed to warn the plaintiff; or
(3) the defendant should have known about the dangerous condition, in that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant.

Id. at (¶ 11) (emphasis added). Neither party argues that CLC had actual or constructive knowledge, and there is nothing in the record to show that CLC had actual or constructive knowledge of the water on the floor. Therefore, the only possible theory of recovery for Freeman is that “a negligent act of the defendant caused her injury[.]” Id.

¶ 16. In the case before us, it is undisputed that Freeman slipped and fell in a puddle of water after housekeeping, HSG, mopped the floors of the facility and failed to put out a wet floor sign. As already noted, HSG settled with Freeman out of court, but CLC remained as a defendant. Thus, the question becomes whether CLC can be liable for the actions of its independent contractor, HSG, under the first theory of liability in a slip-and-fall case. In other words, can a premises owner/operator be vicariously liable for the negligence of its independent contractor in a slip-and-fall case where the parties stipulate that the independent contractor created the dangerous condition and the premises owner/operator had no actual or constructive knowledge? The circuit court entered a final judgment of dismissal with prejudice, finding that CLC could not be liable for HSG’s actions:

[T]he [mjotion to [ajlter or [ajmend [the][j]udgment should be granted pursuant to Rule 59(e), in that there is a need to correct a clear error of law or prevent manifest injustice, that error being that there is no genuine issue of material fact regarding whether [CLC] committed a negligent act to create a dangerous condition on its premises or whether it had actual or constructive knowledge of a dangerous condition on its premises and failed to warn.
[T]he prior ruling of the [cjourt denying the summary judgment motion of [CLC] should be reversed instead of [upheld]. There is no genuine issue of material fact that the water on which [Freeman] claims to have slipped and fallen was placed there by an employee of [HSG]; that [CLC] is not vicariously liable for the actions of said employee; and that [CLC] had neither actual nor constructive knowledge of said water.

(Emphasis added).

¶ 17. Freeman argues that CLC can be liable for the actions of its independent contractor because the duty to keep the premises reasonably safe and warn of hidden dangers is a nondelegable duty. CLC, on the other hand, simply argues that it cannot be liable for the actions of HSG because (1) HSG is an independent contractor; (2) HSG caused the water to be on the floor without a wet floor sign; and (3) CLC had no actual or constructive knowledge of the water. According to CLC, if it can be held liable for HSG’s actions, we would essentially be imposing a strict-liability standard against a business owner/operator anytime an independent contractor is negligent.

¶ 18. Both parties cite Chisolm v. Mississippi Department of Transportation, 942 So.2d 136 (Miss.2006), to support their positions. In the Chisolm case, a driver was killed and a passenger was severely-injured when the vehicle flipped at a construction site. Id. at 139 (¶ 2). The driver’s heirs filed suit against the Mississippi Department of Transportation (MDOT) and Great River, who was an independent contractor of the MDOT performing construction work. Id. The trial court granted summary judgment in favor of the MDOT, finding that Great River was an independent contractor and that MDOT was entitled to sovereign immunity. Id. Great River reached an out-of-court settlement agreement with the heirs. Id. at 142 (¶ 11). The Chisolm court noted that “[ujnder the general rule, [an] independent contractor’s principal has no vicarious liability for the torts committed by the independent contractor or its employees in the performance of the contract.” Id. at 141 (¶ 7). Our supreme court then noted that “[e]ven if a contract clearly evinces the parties’ settled intent to create a principal-independent contractor relationship, when a third party is adversely affected, [the appellate court] can look beyond the contract to determine whether public policy requires recharacterization of the relationship to allow the injured party to recover.” Id. at 142 (¶ 10). However, our supreme court noted an important caveat to the public-policy exception: “A necessary condition precedent for the application of this factor, however, is that the party challenging the claimed relationship will be adversely affected, and denied an adequate legal remedy. In the absence of this, the right of the parties to contract as they please is a constitutionally-protected right.” Id. (emphasis added) (quoting Richardson v. APAC-Miss., Inc., 631 So.2d 143, 148 (Miss.1994)). Based on this caveat, our supreme court held as follows:

Application of the “public policy” factor is unwarranted in this case. After the trial courts handed down the orders granting summary judgment in favor of MDOT, the plaintiffs settled all of their claims against Great River and voluntarily dismissed the company. Therefore, the plaintiffs had an adequate remedy available to them and have been compensated. This factor contemplates a situation where the plaintiff cannot get any recovery based on the principle-independent contractor shield. Such is not the case here.

Id. at (¶ 11).

¶ 19. After determining that Chisolm’s heirs did not meet the public-policy exception, our supreme court noted that the “general rule that a principle is not liable for the torts of its independent contractor has two notable exceptions.” Id. at 143 (¶ 16). “The first is that a principle can be held liable for injuries to a third party ‘caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous.” Id. “The second exception applies where the principal has a non-delegable duty.” Id. However, our supreme court declined to consider either of these exceptions because they were not raised on appeal. Id. at 143-44 (¶ 16). Therefore, the court held that the “plaintiffs may not hold MDOT liable for the negligence of its independent contractor, Great River.” Id. at 144 (¶ 17).

¶ 20. In the case before us, it is clear that HSG reached a settlement with Freeman; therefore, the public-policy exception announced in Chisolm does not apply. But unlike Chisolm, the parties in the case before us do raise the nondelegable-duty exception.

¶ 21. Freeman further cites other cases involving independent contractors, but none are slip-and-fall cases. See J.E. Weldon v. Lehmann, 226 Miss. 600, 84 So.2d 796 (1956)(landlord/tenant case involving property damage); D.L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770 (1944) (landlord/tenant case involving damaged fence and loss of cattle). In any event, we find that the general rule that “[an] independent contractor’s principal has no vicarious liability for the torts committed by the independent contractor or its employees in the performance of the contract” applies in this case. Chisolm, 942 So.2d at 141 (¶ 7). Therefore, CLC is not vicariously liable for HSG, its independent contractor, and the circuit court properly granted summary judgment in favor of CLC. Therefore, we affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      . It is also undisputed between the parties that HSG is an independent contractor of CLC.


author: FAIR, J.,

text:
    Amy BUCKLEY a/k/a Amy Gray Buckley, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00907-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2013.

      Amy Buckley, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On August 9, 2008, Amy Buckley, Derrick Rainey, and David Earl Franklin robbed a liquor store at gunpoint in Columbia, Mississippi. All three were indicted by a Marion County grand jury for conspiracy to commit armed robbery under Mississippi Code Annotated section 97-1-1 (Rev.2006), and armed robbery under Mississippi Code Annotated section 97-8-79 (Rev.2006). The first charge was dropped for all three defendants. On April 6, 2009, Buckley pleaded guilty to armed robbery. She was sentenced to twenty-five years, with twenty years to serve and five years of post-release supervision.

¶2. On May 13, 2010, Buckley filed a petition in the Marion County Circuit Court for post-conviction relief. On July 18, 2011, the court ordered the State to file a response. Buckley’s petition was dismissed on May 23, 2012. Buckley now appeals, arguing that her counsel was ineffective and that she received an excessive sentence. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. The trial court may summarily dismiss a PCR petition without an eviden-tiary hearing “[i]f 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.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 4. “When reviewing a [trial] court’s decision to [dismiss] a petition for post conviction relief [an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

1. Ineffective Assistance of Counsel

II5. To succeed on an ineffective-assistance-of-counsel claim, the petitioner must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468 (Miss.1984). “First, the defendant must show that counsel’s performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). When a defendant pleads guilty, she “must show unprofessional errors of substantial gravity.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006). The defendant must show her counsel’s conduct “proximately resulted in [her] guilty plea, and [that] but for counsel’s errors, [she] would not have entered the plea.” Id.

¶ 6. Buckley contends that her counsel’s failure to object to the search warrant in this case constituted ineffective assistance of counsel. This Court has found that a valid guilty plea “waives any evidentiary issue.” Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003) (citing Bishop v. State, 812 So.2d 934, 945 (¶ 39) (Miss.2002)). This waiver includes her constitutional rights against any unreasonable search or seizure. King v. State, 738 So.2d 240, 241 (¶¶ 4-5) (Miss.1999). By pleading guilty, Buckley voluntarily gave up her right to make these constitutional challenges. This claim is without merit.

¶ 7. Moreover, “[i]n cases involving post-conviction collateral relief, ‘where a party offers only [her] affidavit, then [her] ineffective assistance [of counsel] claim is without merit.’ ” Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). In her argument, Buckley offers only her own statements alleging deficiency on the part of her counsel. Also, Buckley’s allegations on appeal completely contradict her statements that she was satisfied at her guilty-plea hearing and in her guilty-plea petition with her attorney’s performance.

¶ 8. Buckley has not shown that her counsel’s performance was deficient, as required under Strickland. Furthermore, she has not shown that her counsel’s allegedly deficient performance “proximately resulted in [her] guilty plea, and [that] but for counsel’s errors, [she] would not have entered the plea.” Cole, 918 So.2d at 894 (¶ 10). We find this issue to be without merit.

2. Excessive Sentence

¶ 9. Buckley was sentenced to twenty-five years, with twenty years to serve and five years of post-release supervision. Both of Buckley’s codefendants were sentenced to serve more time than Buckley. Franklin was given thirty years for armed robbery, and Rainey was given twenty-five years for armed robbery, plus an additional five years for escape.

¶ 10. Our supreme court has stated that it generally will not challenge the discretion of the trial court in sentencing as long as the sentence falls within the statutory maximum sentence allowed. Mosley v. State, 104 So.3d 839, 841 (¶ 10) (Miss.2012) (citation omitted). However, a sentence that leads to an inference of “gross disproportionality” is subject to attack on Eighth Amendment grounds, applying the three-pronged test set forth in Solem v. Helm, 463 U.S. 277, 290-91, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (overruled in part by Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). Mosley, 104 So.3d at 841 (¶ 10).

¶ 11. Buckley’s sentence clearly falls within the statutory limits. In sentencing one convicted of the crime of armed robbery, the judge may impose a sentence ranging from three years to a term that is calculated to be less than life based on the defendant’s life expectancy. Roland v. State, 939 So.2d 810, 812 (¶ 7) (Miss.Ct.App.2006). Additionally, the imposition of a maximum sentence is not precluded merely because the defendant is a first-time felony offender. Oliver v. State, 20 So.3d 16, 20 (¶ 5) (Miss.Ct.App.2009). A judge may also impose different sentences on coconspirators. Collins v. State, 822 So.2d 364, 366 (¶ 6) (Miss.Ct.App.2002).

¶ 12. The trial judge noted in his order dismissing Buckley’s PCR motion that the court was not precluded from giving Buckley a maximum sentence of up to one day short of a life sentence based on a calculation of her life expectancy. However, the court imposed a lighter sentence of twenty-five years with twenty years to serve and five years of post-release supervision. In 2009, Buckley’s alleged life expectancy was 81.6 years. She was 35 years old at the time of sentencing, which means she will be 60 years old at the conclusion of her sentence. This is 21.6 years short of her life expectancy.

¶ 13. The trial court also considered Buckley’s age, her major role in the crime, her providing the weapons and getaway car, and the fact that she was more highly educated than a majority of defendants who come before the court. The trial court stated that these factors, when combined, warranted a sentence as serious as that given to her codefendants. The trial court correctly concluded that Buckley’s sentence was a legal sentence, as it falls well short of the “maximum sentence allowed under the statute — one day less than life.” Miss.Code Ann. § 97-B-79 (Rev.2006). We find no error in the sentence imposed by the trial judge as it was not excessive or disproportionate. This argument is without merit.

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

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


author: BRYAN, Judge.

text:
    Angie INGRAM v. Judge Henry ALLRED.
    2110636.
    Court of Civil Appeals of Alabama.
    Oct. 19, 2012.
    As Modified on Denial of Rehearing Jan. 4, 2013.
    C. Ellis Brazeal III of Jones Walker Waechter Poitevent Carrére & Denegre, LLP, Birmingham, for appellant.
   BRYAN, Judge.

Angie Ingram, the attorney of record for the plaintiff in a civil action (“the underlying action”) in the small-claims division of the Walker District Court (“the district court”), appeals from a judgment finding her in contempt and sentencing her to 60 days in jail. We reverse and remand with instructions.

Ingram’s office is in Jefferson County, but she represents creditors in collection actions throughout the state. During the last several years, she has represented creditors in a number of collection actions in the district court. In May 2011, the district-court judge who had been presiding in those actions (“the trial judge”) ordered Ingram to appear at a show-cause hearing on May 20, 2011. That show-cause hearing related to actions she was handling in general rather than the underlying action in particular. At that show-cause hearing, the trial judge stated, in pertinent part:

“THE COURT: Over the last two- and-a-half years there’s a lot of times that ya’ll either haven’t had anybody here, or you have local attorneys, for whatever reason, and they don’t know what cases they are here on, they don’t know what’s going on with the cases. And then what I do — well, what I started out doing is continuing those because I figured, well, mistakes happen and somebody got mixed up somewhere. As it continued to happen, I dismissed those cases. If there was a good reason why you missed, I would consider reinstating those cases.
“Now what I’m seeing is, nobody shows up. I have people that take off work, people that hire lawyers, they’re here, and nobody is here on your side. I dismiss them and then I get a slew of motions to reinstate, which is further a waste of my time. You know, I’m ruling on everything two or three times because ya’ll can’t be bothered to come up here, and I’m very unhappy about that, Ms. Ingram.”

Ingram explained that she had arranged for a local attorney to appear on several occasions in the district court but that he had proved unreliable and that she would not be relying on him in the future. Ingram also apologized to the trial judge.

The following colloquy then occurred:

“THE COURT: Well, I’m not necessarily—
“MS. INGRAM: And it’s not—
“THE COURT: — casting stones at anybody. And I didn’t bring you over here to throw you in jail or anything like that. I don’t think that’s appropriate. I just want you and I to be on the same page on this.
“MS. INGRAM: I understand.
“THE COURT: If this continues to happen, here’s where I am at. I want you to know so there’s no misunderstanding.
“Particularly, in cases where I have other attorneys that are here and there’s nobody here from your office, I’m going to entertain motions for attorney’s fees on those cases. I’m going to start fining you if I feel like somebody has come here. A lot of these people can ill-afford to miss a day of work anyway. And if they take off work and come up here and there’s nobody up here to prosecute that case, there’s going to be some punitive damages — ”

The transcript of the May 20, 2011, show-cause hearing does not indicate that the trial judge either found Ingram to be in contempt or ordered her not to file a motion to reinstate an action if the action had been dismissed due to her failure to appear at a hearing or docket call. Moreover, the record before us does not contain a written order either finding Ingram in contempt based on acts or omissions that had occurred on or before May 20, 2011, or ordering her not to file a motion to reinstate an action if the action had been dismissed due to her failure to appear at a hearing or docket call.

Subsequent to the May 20, 2011, show-cause hearing, the trial judge set the underlying action on his January 12, 2012, trial docket. On December 23, 2011, Ingram filed an application for the entry of a default against the defendant in the underlying action for failure to answer or otherwise defend, a motion for a default judgment against the defendant, and a supporting affidavit establishing the amount the defendant owed the plaintiff. Ingram did not appear at the trial judge’s January 12, 2012, trial docket; at a show-cause hearing on March 21, 2012, she testified that she had not appeared at the January 12, 2012, trial docket because she believed the underlying action would be disposed of by the trial judge’s granting the motion for a default judgment she had filed on December 23, 2011. On January 23, 2012, the trial judge entered a judgment dismissing the underlying action. That judgment stated: “Neither party appeared in court. Case dismissed for lack of prosecution.”

On January 27, 2012, Ingram filed a motion to reinstate the underlying action on the ground that the application for a default, motion for a default judgment, and supporting affidavit had been filed before the January 12, 2012, trial docket. On February 17, 2012, the trial judge entered an order stating:

“Motion to reinstate filed by [the plaintiff in the underlying action] is hereby set for hearing on March 5, 2012 at 9:00 a.m. The hearing will be held on the issues of reinstatement and also to give plaintiffs counsel an opportunity to show cause why she should not be held in contempt for repeated failure to appear in this court.”

Ingram neither appeared at the March 5, 2012, hearing nor gave the trial judge advance notice that she would not be appearing at that hearing. At the March 21, 2012, show-cause hearing, Ingram testified that she had had matters in four actions in the Jefferson District Court and the Jefferson Circuit Court scheduled for the morning of March 5, 2012, and that she had appeared in those actions that morning. She further testified as follows:

“Q. [By Ingram’s attorney:] Okay. But you are not here to tell the [trial] judge that you didn’t appear in his court [on March 5, 2012,] specifically because you appeared in those cases [in Jefferson County], are you?
“A. No.
“Q. It just happens to be a fact that you had four other eases in another county that you handled that day?
“A. Yes.
“Q. When you saw notice of the show cause hearing on March 5th that was entered by [the trial judge], what was your reaction?
“A. I mean, I saw that he set the motion to reinstate. I already believed that it would just be denied, you know. I just have been at a loss as to figure out what it is that I am not doing in your courtroom, Your Honor. I don’t have this problem anywhere in the rest of the state but here. And I have no idea how to fix it. And I am still sitting here listening today, and I still don’t know how to fix it. I do everything within my power to manage my office, my dockets, and I don’t know what else to do.
“THE COURT: Can I ask what conflict provisions that you took, what steps that you took to notify me that you had other cases set?
“MS. INGRAM: I didn’t. I just — I just shut down. I just didn’t know what else to do. I mean, I have been here. I have tried to do — and I have been respectful to you. The times that I have been here, I have never had a cross word with you.
“THE COURT: We don’t have any problems when you show up. We never have.
“MS. INGRAM: No. I just don’t know how it is, how I have gotten on the wrong side here, and I don’t know. I still don’t know how to fix it, other than just come every month.
“Q. [By Ingram’s attorney:] Okay. So when you saw that that had been set that day, I mean, what you are indicating to me it sounds like is that you felt an overwhelming feeling of sort of helplessness and hopelessness of that situation?
“A. Yes.
“Q. And instead of sort of facing that situation head-on, you kind of turned away from a situation where you felt helpless and hopeless; is that right?
“A. Yes.”

On March 6, 2012, the trial judge issued a writ of attachment that stated:

“It appearing to this Court that Angie Hubbard Ingram, attorney for the Plaintiff, was duly ordered to appear before the Court for a Small Claims Docket on the 5th day of March, 2012, and said Attorney has failed and refused to appear for Court on the 5th day of March, 2012, and it appearing to this Court that the said attorney stands in contempt of this Court, you are therefore Commanded to arrest the said Angie Hubbard Ingram, Instanter, and bring her before this Court to testify in this case and show cause to this Court why she should not be held in Contempt of Court.
“The subject is to be brought before the Court upon her arrest and incarceration in the Walker County Jail.
“It is the FURTHER ORDER OF THE COURT, that the Sheriff shall notify the Court immediately upon apprehension and detention of the subject.
“DONE and ORDERED, this the 6th day of March, 2012.
“BOND AMOUNT: NONE”

(Capitalization in original.)

Also on March 6, 2012, the trial judge had the Walker County Sheriffs Office send a deputy sheriff to Jefferson County to arrest Ingram. At the March 21, 2012, show-cause hearing, the Walker County deputy sheriff testified as follows. He met a Jefferson County deputy sheriff on the afternoon of March 6, 2012, and the two deputies went to Ingram’s office. When the deputies arrived at Ingram’s office on the second floor of a building, the receptionist told the deputies that Ingram was in the yogurt shop downstairs. When the deputies went to the yogurt shop, Ingram was not there, and the deputies asked an employee of the yogurt shop where Ingram was. The yogurt-shop employee telephoned an unidentified person. Upon concluding his telephone call, the yogurt-shop employee told the deputies that Ingram would come down to the yogurt shop in a few minutes. The deputies waited, but Ingram did not appear. The deputies asked the yogurt-shop employee if Ingram was coming down, and the yogurt-shop employee made a telephone call to an unidentified person but told the deputies he did not get an answer. The yogurt-shop employee later made another call to an unidentified person and reported to the deputies that Ingram would not be able to meet with them because she was meeting with a client. The deputies then went back upstairs to Ingram’s office and told the receptionist that the yogurt-shop employee had told them that Ingram was in her office. The receptionist told the deputies that Ingram had left the office for a meeting. The deputies asked to search Ingram’s office to verify that she was not there, and the receptionist allowed them to do so. The deputies did not find Ingram in her office. The deputies then left the building but stopped in the parking lot to have a conversation before getting into their automobiles. While the deputies were conversing in the parking lot, a man who identified himself as Ingram’s husband approached them and asked the deputies if they were looking for Ingram. When they responded in the affirmative, the man either said that Ingram knew the deputies were coming or that she knew the deputies were looking for her, that she was not at her office, and that the deputies would not be able to contact her. The Walker County deputy then called the trial judgé, who told the deputy to tell the man who had identified himself as Ingram’s husband that, if Ingram would come with the deputy, she could get out of jail but, if she did not come with the deputy, the trial judge was going to be gone for a few days and the trial judge did not know when Ingram would get out of jail. The deputy relayed to the man who had identified himself as Ingram’s husband what the trial judge had said. The man who had identified himself as Ingram’s husband then walked off, and the deputies left.

At the March 21, 2012, show-cause hearing, Ingram testified that she had left her office for a meeting before the deputies arrived at her office on March 6, 2012, and that her staff did not know she had left the office. She introduced footage from a security camera at her office corroborating her testimony that she had left her office before the deputies arrived. There was also evidence tending to prove that Ingram did not learn that the deputies had come to her office until after they had left.

Ingram further testified as follows. On March 6, 2012, upon learning that the deputies had come to her office, she called the trial judge’s office; however, the trial judge refused to talk to her, and his secretary relayed a message to her from the trial judge that she should turn herself in at the jail. (The trial judge acknowledged on the record that Ingram had called his office on the afternoon of March 6, 2012, and that he had refused to talk to her.) Ingram then asked a Walker County attorney (“the first Walker County attorney”) to call the .trial judge on her behalf. The first Walker County attorney called the trial judge and thereafter relayed a message to her from the trial judge that she should turn herself in at the jail. Ingram then called a Jefferson County attorney (“the first Jefferson County attorney”) to ask for advice. The first Jefferson County attorney told her that he would contact the trial judge the next day and arrange for them to appear before the trial judge. The first Jefferson County attorney called the trial judge on March 7, 2012.

The first Jefferson County attorney was out of town when this matter was heard on March 21, 2012, and the trial judge refused to admit an affidavit signed by the first Jefferson County attorney. At the March 21, 2012, hearing, the trial judge stated, in pertinent part:

“THE COURT: There is some incorrect statements in that [affidavit] from [the first Jefferson County attorney]. / didn’t tell him that I would get to it next week. My advice to him was that he was representing someone who was in open violation of a Court order, and I asked him if it was his practice to advise his clients to continue to stay in violation of a Court order. And I told him that if he wanted to help his client, he needed to tell her to turn herself in.... ”

(Emphasis added.)

Ingram testified as follows at the March 21, 2012, show-cause hearing:

“Q. [By Ingram’s attorney:] But— well, okay. Let me ask you this question, Angie. Did you speak with [the first Jefferson County attorney] after he spoke with [the trial judge]?
“A. Yes, he called me.
“Q. Okay. And what did he tell you the context of that conversation was?
“A. That [the trial judge] was still insistent that I check myself into the jail.
“Q. Okay.
“A. And that [the trial judge] would deal with me when he got back from his trip.”

(Emphasis added.) Ingram further testified as follows at the March 21, 2012, show-cause hearing. On the advice of the first Jefferson County attorney, she did not turn herself into the jail on March 7, 2012, because she would have had to remain in jail until the trial judge returned from his trip sometime the following week. On March 8, 2012, the first Jefferson County attorney contacted another Walker County attorney (“the second Walker County attorney”) and asked him to contact the trial judge on Ingram’s behalf. The second Walker County attorney said that the trial judge had gone out of town and that he would call the trial judge when he returned on March 14, 2012. On March 8, 2012, the Jefferson County sheriffs office informed Ingram that, after consulting with the Jefferson County District Attorney’s Office, the Jefferson County Sheriffs Office was not going to execute the writ of attachment. Also on March 8, 2012, a Jefferson County district judge called Ingram and told her that he had received an e-mail the trial judge had sent to all the circuit and district judges in the state and that the e-mail stated that Ingram was a fugitive from justice.

On March 9, 2012, the trial judge entered the following order:

“This cause having been set for Hearing on the 5th day of March, 2012, upon Plaintiffs attorney, Angie H. Ingram’s Motion to Reinstate, filed January 27, 2012; said Hearing to be on the issues of reinstatement and also to give Plaintiffs counsel an opportunity to show cause why she should not be held in contempt for repeated failure and refusal to appear in court and for the repeated motions for reinstatement; and said attorney, having failed to appear in court;
“It is therefore the Order, Judgment and Decree of this Court that the Plaintiffs attorney, Angie H. Ingram, is found to be in Contempt of Court for failure to comply with the Court’s Order.
“It is further ordered that Plaintiffs attorney, Angie H. Ingram, report to the Walker County Jail immediately to await Hearing on said contempt charges.”

(Emphasis added.)

At the March 21, 2012, show-cause hearing, Ingram testified as follows. Sometime before March 14, 2012, she learned that the trial judge had told someone that she was now facing 25 days in jail. On March 14, 2012, the second Walker County attorney called and relayed the message that the trial judge still wanted her to turn herself in at the jail. She then called another Jefferson County attorney (“the second Jefferson County attorney”) who advised her that they should go to the trial judge’s courtroom the next day without making any further calls to the trial judge’s office. The next day, March 15, 2012, she and the second Jefferson County attorney went to the trial judge’s courtroom.

After Ingram and the second Jefferson County attorney talked to the trial judge on March 15, 2012, the trial judge, that same day, entered the following order:

“This matter is set for a show cause hearing on Wednesday March 21, at 9:00 A.M. in Courtroom ‘C’ of the Walker County Courthouse. Plaintiffs counsel, Angie Ingram, is ordered to appear and show cause why she should not be held in contempt for repeated and continuous defiance of this Court’s orders to wit:
“1. Repeated and continuous failure to appear for scheduled hearings before this Court.
“2. Repeated filing of frivolous ‘motions to reinstate’ in cases which this Court has previously dismissed for the failure of Plaintiffs counsel to appear.[] This Court specifically instructed counsel that such filings would be considered an act of contempt at an earlier ‘show cause’ hearing held on May 20,2011.[]
“3. Failure to appear for a ‘show cause’ hearing on March 5, 2012 at 9:00 A.M. before this Court.
“4. Providing false information to an officer of the Court (a Walker County deputy) or causing false information to be provided via counsel’s staff when that officer showed up to execute a valid writ of attachment for failure to appear at the aforementioned March 5, 2012 hearing.
“5. Repeated failure to follow the Court’s verbal orders to appear and answer to these charges, choosing instead to have various attorneys contact the Court on her behalf. Mrs. Ingram, a practicing attorney in Alabama, openly ignored the Court’s orders and became a fugitive from justice after becoming aware of a valid writ of attachment issued by this Court on March 6, 2012. Her open defiance continued until March 15, 2012.
“Plaintiffs counsel will be given an opportunity to respond and provide evidence to answer each of these alleged acts of contempt. Each act of contempt is punishable by a maximum of five (5) days in the Walker County Jail.”

Ingram, the second Jefferson County attorney, and a third Jefferson County attorney appeared at the March 21, 2012, show-cause hearing. At the commencement of the hearing, Ingram made an oral motion asking the trial judge to disqualify himself pursuant to Rule 70A(f), Ala. R. Civ. P., on the ground that the trial judge’s own conduct was so related to the alleged contemptuous conduct that the trial judge may have contributed to or may have been otherwise involved in the contemptuous conduct. The trial judge denied that motion and proceeded to receive evidence ore tenus. At the conclusion of the hearing, the trial judge stated:

“THE COURT: All right. I want to go over these grounds. As to the charge of repeating [sic] and continuous failure to appear for scheduled hearings before this Court, I find no contempt on that charge. As to the repeated filing of frivolous motions to reinstate in eases in which this Court has previously dismissed for the failure of plaintiffs counsel to appear, an act that I specifically instructed Ms. Ingram about earlier,[] I find her in contempt, and I sentence her to five days in the Walker County Jail. On the charge of failure to appear for a show cause hearing on March 5th, 2012 at 9:00 a.m., it is undisputed that she failed to appear, I find her in contempt on that, and I sentence her to five days in the Walker County Jail. On the charge of providing false information to an officer of the court, or causing false information to be provided via counsel staff, and recognizing that in Alabama the rules of professional responsibility make us responsible, as attorneys, for our staffs actions, I find Ms. Ingram in contempt, and I sentence her to five days in the Walker County Jail. On the charge of repeated failure to follow the Court’s verbal orders to appear and answer to these charges, choosing instead to have various attorneys contact the Court on her behalf, I find Ms. Ingram guilty of contempt on that for a period of time from March 6th until March 15th, nine days, each day is a continuing act of contempt, and I sentence you to 45 days in the Walker County Jail for that period of nine days of open defiance.... ”

The trial judge did not render a written order memorializing the oral announcement of his judgment finding Ingram in contempt at the conclusion of the March 21, 2012, show-cause hearing. Ingram appealed to this court on April 4, 2012. Because Rule 58(a), Ala. R. Civ. P., does not allow for the oral rendition of a judgment, we remanded the cause to the district court for the rendition and entry of a written judgment of contempt.

On September 24, 2012, the trial judge electronically rendered and electronically entered the following written judgment:

“This matter came before the Court on March 21, 2012, on a ‘show cause’ hearing for Plaintiffs counsel to show why she should not be held in contempt for violating the Court’s prior orders. Testimony was given, ore tenus, and evidence was presented to the Court. After hearing the testimony, observing the credibility and demeanor of the witnesses and examining the evidence, the Court finds as follows:
“1. The Court finds that Counsel has repeatedly filed frivolous ‘motions to reinstate’ in cases for which she neglected to appear "without reasonable excuse or explanation.[] The Court finds that said filings violate the Court’s earlier specific instruction for Counsel to refrain from such action[] The Court finds counsel in Contempt and sentences her to five days (5) in the Walker County Jail.
“2. The Court finds that counsel willfully and intentionally failed to appear for a ‘show cause’ hearing set on March 5, 2012 at 9:00 a.m. The Court finds counsel in contempt and sentences her to five (5) days in the Walker County jail.
“3. The Court finds that counsel willfully and intentionally provided false information or caused false information to be provided via her staff to an officer of the Court (a Walker County Deputy). The Court finds counsel in contempt and sentences her to five (5) days in the Walker County Jail.
“4. The Court finds that counsel failed to respond to a lawful writ of attachment requiring her to turn herself in to the Walker County Jail. Counsel defied the Court’s order to turn herself in and continued to defy the Court’s order for a period of time that extended from March 6, 2012 until March 15, 2012. The Court finds each day that counsel defied the Court’s order to be a separate act of contempt for a total of nine (9) separate acts of contempt. For each act of contempt, the Court sentences counsel to five (5) days in the Walker County Jail for a total of forty-five (45) days.”

Ingram’s notice of appeal became effective on September 24, 2012, the day the trial judge entered the written judgment. See Rule 4(a)(4), Ala. R.App. P. (“A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof.”).

As a threshold matter, we must determine whether we have jurisdiction over this appeal. In pertinent part, § 12-12-71, Ala.Code 1975, provides that, “[e]x-cept as provided in Section 12-12-72 ..., all appeals from final judgments of the district court shall be to the circuit court for trial de novo.” Section 12-12-72(1), Ala.Code 1975, provides that appeals from final judgments of the district court “shall be directly to the appropriate appellate court if: (1) An adequate record or stipulation of facts is available and the right to a jury trial is waived by all parties entitled thereto.” Thus, this court has jurisdiction over Ingram’s appeal if there is an adequate record and Ingram either has no right to a jury trial or, if she is has a right to a jury trial, she has waived that right. The record on appeal contains a transcript of the May 20, 2011, show-cause hearing, the relevant portions of the clerk’s record, the transcript of the March 21, 2012, show-cause hearing, the exhibits that were introduced at the March 21, 2012, show-cause hearing, and the exhibit that was offered but rejected at the March 21, 2012, show-cause hearing. Therefore, we conclude that the record is adequate for appellate review of the contempt judgment.

We must now determine whether Ingram is entitled to a jury trial and, if so, whether she has waived it. The trial judge found Ingram guilty of criminal contempt rather than civil contempt. Charles Mfg. Co. v. United Furniture Workers, 361 So.2d 1033, 1035 (Ala.1978) (“Civil contempt sanctions seek to compel or coerce compliance with orders of the court in the future, while a criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience of orders of the court.”). The maximum sentence for criminal contempt in Alabama is 5 days in jail and a $100 fine. See § 12-11-30(5), Ala.Code 1975 (“The circuit court may punish contempts by fines not exceeding one hundred dollars ($100) and by imprisonment not exceeding five days.”); Ex parte Ivey, 698 So.2d 187, 188 (Ala.1997) (“The maximum sentence the circuit court can impose for criminal contempt is 5 days in jail and a $100 fine.”); and § 12-12-6, Ala. Code 1975 (“In all matters before the district court, the district court shall have and possess power to punish for con-tempts as heretofore or hereafter granted to the circuit court by law, in Section 12-11-30 or otherwise, and by the common law of this state”.). In Ivey, 698 So.2d at 188, the supreme court explained why criminal contempt in Alabama is merely an “offense” and a “violation” rather than a “crime”:

“[U]nder the Alabama Criminal Code, [criminal] contempt is only an ‘offense,’ § 13A-1-2Q), [AJa.Code 1975,] not a ‘crime,’ § 13A-1~2(5)[, Ala.Code 1975], The maximum sentence the circuit court can impose for criminal contempt is 5 days in jail and a $100 fíne. Ala.Code 1975, § 12-11-30(5). An offense that may be punished only for 30 or fewer days in jail is a ‘violation,’ § 13A-l-2(2). Only misdemeanors and felonies (not violations) are crimes. § 13A-l-2(5). Therefore, under our statutes, criminal contempt is a violation, and is merely an offense, not a crime.”

The supreme court has implied that an alleged contemnor does not have a right to a jury trial in a contempt proceeding in Alabama. See Ex parte Evett, 264 Ala. 675, 678-79, 89 So.2d 88, 90-91 (1956). In Evett, 264 Ala. at 678-79, 89 So.2d at 90-91, the supreme court stated:

“Article I, § 6 of the Constitution guarantees a jury trial in all prosecutions by indictment, but the Constitution does not invest the Supreme Court with original jurisdiction in criminal actions. The statutes do not invest the Court of Appeals with original jurisdiction in criminal actions, nor do Probate Courts or Courts of County Commissioners have any criminal jurisdiction whatsoever, yet all have power to punish for contempt. It would be anomalous indeed to hold that a criminal contempt committed against either of those courts should be tried under the criminal code; and even so, to hold that the accused was entitled to a trial by jury. And it would be equally anomalous to hold that the law gives a contemnor of the Circuit Court a right of trial by jury and at the same time, deny it to alleged contemnors of the Appellate or Probate Courts. Clearly, contempt proceedings are not criminal cases within the meaning of the Constitution or statutes of Alabama.”

Subsequent to Evett, the United States Supreme Court held in Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), that the right of trial by jury applies to “serious” criminal contempts that could result in severe punishment; however, in the context of determining whether the Double Jeopardy Clause applies to criminal contempts, the Alabama Supreme Court held in Ivey that a criminal contempt in Alabama is not the sort of “serious” criminal contempt the United States Supreme Court was referring to in Bloom. 698 So.2d at 188-89. Accordingly, we conclude that Ingram does not have a right to trial by jury.

Moreover, even if she does have a right to trial by jury, she has waived it. In pertinent part, § 12-12-71 provides that a party appealing from a judgment of a district court “shall not be entitled to a jury trial in circuit court unless it is demanded in the notice of appeal....” Ingram did not demand a jury trial in her notice of appeal. Consequently, if she does have a right to a jury trial, she has waived it by omitting a demand for a jury trial from her notice of appeal.

Accordingly, because the record is adequate for appellate review and Ingram either does not have a right to a jury trial or, if she does have a right to a jury trial, she has waived it, we conclude that we have jurisdiction over Ingram’s appeal pursuant to §§ 12-12-71 and -72.

Ingram first argues that the trial judge erred in denying her motion for the trial judge to disqualify himself pursuant to Rule 70A(f) because, she says, the trial judge’s own conduct was so related to the alleged contemptuous conduct that the trial judge may have contributed to or may have been otherwise involved in the contemptuous conduct. In pertinent part, Rule 70A(f) provides that “if the judge’s own conduct is so related to the alleged contumacious conduct that the judge may have contributed to or may have been otherwise involved in it, then ... the contempt proceeding shall be referred to another judge.... ” (Emphasis added.)

There is a disputed issue of fact in this contempt proceeding that makes the trial judge a potential witness. On March 6, 2012, the trial judge found Ingram guilty of only one act of criminal contempt, i.e., her disobeying his order to appear at the March 5, 2012, show-cause hearing. That was a finding of criminal contempt rather than civil contempt because the trial judge was attempting to punish Ingram for disobeying his order to appear at the March 5, 2012, hearing rather than to coerce or compel her to appear at the March 5, 2012, hearing — obviously, when the trial judge found her in contempt on March 6, 2012, for failing to appear at the March 5, 2012, hearing, Ingram could not travel back in time and appear at the March 5, 2012, hearing in order to purge herself of the contempt. See Charles Mfg. Co., supra. Thus, between March 6, 2012, and March 21, 2012, the date the trial judge found Ingram in contempt for additional acts, the maximum sentence the trial judge could have imposed on Ingram was 5 days in jail and a $100 fine. See §§ 12-12-6 and 12-11-30(5).

There is evidence tending to prove that the trial judge ordered Ingram to report to jail on March 6, 2012, and to remain there until he returned from his trip and held a hearing, which would have resulted in Ingram’s being in jail for more than the 5-day maximum sentence for a single act of criminal contempt. For example, the Walker County deputy sheriff testified that the trial judge told him to tell the man who had identified himself as Ingram’s husband that the trial judge was going out of town and that the trial judge did not know when Ingram would get out of jail if she did not return to Walker County with the deputy. Ingram testified that the first Jefferson County attorney told her on March 7, 2012, that the trial judge had told the first Jefferson County attorney that Ingram had to report to jail and that the trial judge would deal with her when he returned from his trip. The trial judge’s written March 9, 2012, order directed Ingram to “report to the Walker County Jail immediately to await Hearing on said contempt charges” despite the fact that the trial judge had either already left town or was in the process of doing so. On the other hand, at the March 21, 2012, show-cause hearing the trial judge denied telling the first Jefferson County attorney on March 7, 2012, that the trial judge would deal with Ingram when he returned from his trip. Thus, there is a factual issue that makes the trial judge a potential witness in this contempt proceeding. Accordingly, we conclude that the trial judge erred in denying Ingram’s motion asking the trial judge to disqualify himself pursuant to Rule 70A(f). See Ex parte Segrest, 718 So.2d 1, 7 (Ala.1998) (“[O]ur careful review of the materials before us indicates that the trial judge was involved in the sequence of events that led to the discord below and that he will probably be a witness regarding his out-of-court communications with [the attorney the trial judge had found in contempt]. Thus, referral under Rule 70A(f) is proper.”). Therefore, we reverse the contempt judgment entered by the trial judge and remand the cause with instructions for the presiding circuit-court judge to transfer the contempt proceeding against Ingram to another judge in accordance with Rule 70A(f) and Rule 13, Ala. R. Jud. Admin. See Ex parte Jim Walter Homes, Inc., 776 So.2d 76 (Ala.2000); and C.D.S. v. K.S.S., 978 So.2d 782, 788-91 (Ala.Civ.App.2007). Because we have disposed of the appeal based on Ingram’s first argument, we do not reach her other arguments.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The record contains no information explaining how Ingram could have known before the deputies came to her office on March 6, 2012, that a writ of attachment had been issued on March 6, 2012, or drat a Walker County deputy sheriff had been sent to her office to execute the writ on March 6, 2012.

      . The February 17, 2012, order setting the hearing on March 5, 2012, made no mention of "repeated motions for reinstatement.”

      . As noted supra in note 2, the February 17, 2012, order setting the March 5, 2012, show-cause hearing made no mention of repeated motions to reinstate.

      . As noted previously, the transcript of the May 20, 2011, show-cause hearing contains no indication that the trial judge ordered Ingram not to file motions to reinstate actions that had been dismissed due to her failure to appear at a hearing or docket call. Moreover, the record contains no other order ordering Ingram not to file motions to reinstate actions that had been dismissed due to her failure to appear at a hearing or docket call.

      . See supra note 4.

      . The transcript of the March 21, 2012, show-cause hearing contains no evidence indicating that Ingram had filed any motions to reinstate between the May 20, 2011, show-cause hearing and the March 21, 2012, show-cause hearing other than the motion to reinstate she filed in the underlying action on January 27, 2012.

      .See supra note 4.

      . Because we conclude that the contempt judgment in this case must be reversed because the trial judge erred in denying Ingram's motion asking the trial judge to disqualify himself pursuant to Rule 70A(f), we do not reach the issue whether, because the trial judge found Ingram in criminal contempt rather than civil contempt on March 6, 2012, his failure to specify a definite period of confinement ipso facto rendered his ordering Ingram to report to jail erroneous.