author: LEE, P.J.,

text:
    Christopher THOMAS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01081-COA.
    Court of Appeals of Mississippi.
    Aug. 4, 2009.

      Leigh Anne Cade, Attorney for Appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, Attorney for Ap-pellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. A jury in the Yazoo County Circuit Court found Christopher Thomas guilty of three counts of armed robbery. Thomas was sentenced to fifteen years on each count with each sentence to be served concurrently in the Mississippi Department of Corrections. Thomas subsequently filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. After a hearing, the trial court denied Thomas’s motion.

¶ 2. Thomas now appeals, asserting the following issues: (1) the indictment was defective; (2) the trial court erred by allowing the indictment to be amended on the day of trial; (3) the trial court erred by allowing the jury to observe him in restraints; (4) the trial court did not make on-the-record findings concerning the State’s reasons for peremptory challenges; (5) prosecutorial misconduct denied him a fair trial; (6) the trial court erred in amending jury instruction^ D-5; (7) the trial court erred in overruling certain objections; (8) the trial court erred in denying his motion for a directed verdict, his motion for a JNOV, and his motion for a new trial; and (9) the cumulative errors denied him a fair trial. Finding no error, we affirm.

FACTS

¶ 3. On January 21, 2006, Thomas and his cousin were at the Game Room in Yazoo City. Several people were at the establishment playing pool and cards. Terry Collins testified that Thomas stood near his table for approximately thirty minutes. Thomas and his cousin left the Game Room. Approximately twenty minutes later, a man entered the establishment with some type of fabric around his face. The man displayed a firearm and demanded money from several patrons. Collins stated that the man entered the establishment and shot a gun in the air. Collins testified that he recognized the man as Thomas from the shoes he was wearing.

¶ 4. The man demanded money from the patrons, ultimately taking $800 from Collins, $500 from Jody Clark, and approximately $100 from Arthur Jones. Clark knew Thomas and recognized him from his voice, his clothes, and his shoes. Jones had also seen Thomas leave the Game Room and testified that he recognized Thomas when he returned by his clothing, shoes, and height. Thomas fled the scene.

¶ 5. Officer Jason Bright of the Yazoo City Police Department responded to the scene. Officer Bright spoke with several patrons, including Jones, Collins, and Clark. Officer Bright observed a bullet casing on the floor and a bullet hole in the ceiling above the pool table. Thomas ultimately turned himself in to the police department.

DISCUSSION

I. DEFECTIVE INDICTMENT

¶ 6. In his first issue on appeal, Thomas contends that the multi-count indictment was fatally defective for failing to recite the justification for a multi-count indictment. We note that Thomas failed to raise this issue at trial and is, therefore, procedurally barred from asserting this issue for the first time on appeal. Patrick v. State, 754 So.2d 1194, 1195-96 (¶ 7) (Miss.2000). However, since the issue affects the substantial rights of Thomas, we will review this issue under the plain-error doctrine. Id.

¶ 7. Mississippi Code Annotated section 99-7-2(1) (Rev.2007) governs mul-ti-count indictments. When two or more offenses may be tried in the same court, they may also be charged in the same indictment if they are based on the same act or transaction or if they are based on separate acts or transactions connected as part of a common scheme or plan. Id. Thomas’s indictment tracks the language of the armed robbery statute. See Miss. Code Ann. § 97-3-79 (Rev.2006). Inclusion of the language found in the multi-count-indictment statute was not necessary for the indictment to be valid. This Court has held that “where an indictment tracks the language of a criminal statute it is sufficient to inform the accused of the charge against him.” Holifield v. State, 852 So.2d 653, 657 (¶ 9) (Miss.Ct.App.2003) (citing Ward v. State, 479 So.2d 713, 715 (Miss.1985)). Thomas’s indictment included the relevant language from the statute as well as the applicable statute number. Furthermore, the evidence clearly showed that these crimes were based on the same act or transaction. We do not find any defect in his indictment. This issue is without merit.

II. AMENDED INDICTMENT

¶ 8. Thomas next argues that the amendment to the indictment was a substantive change and rendered the indictment defective. Count III of the indictment read “Arthur James” and handwritten above James was “A/K/A Jones.” On the day of trial, the State made an oral motion to amend Count III of the indictment to change the name of the victim from Arthur James to Arthur Jones. The prosecutor then asked permission to leave the courtroom and ask the alleged victim whether his last name was James or Jones. The victim responded that his last name was Jones. Thomas objected, arguing that the amendment was untimely and that it would violate his due process rights. The trial court asked Thomas, “Do you have any evidence that there is an Arthur James as opposed to a Jones?” Thomas responded in the negative. The trial court overruled Thomas’s objection and granted the State’s motion to amend the indictment.

¶ 9. Amendments to indictments are allowed if they contain defects of form and not of substance. Ivy v. State, 792 So.2d 319, 321 (¶ 4) (Miss.Ct.App.2001). We have held that “a change of the name of the victim in an indictment goes to form not substance.” Id.; see also Burson v. State, 756 So.2d 830, 834 (¶ 14) (Miss.Ct.App.2000). We cannot find that Thomas’s due process rights were violated by amending the indictment to correct the spelling of Jones’s last name. Thomas claims unfair surprise; however, the witness was outside the courtroom waiting to testify and Thomas was aware that Jones was going to testify. Furthermore, Thomas was unable to show that his defense would be compromised by this amendment.

¶ 10. Thomas also cites to Carter v. State, 965 So.2d 705, 709 (¶ 17) (Miss.Ct.App.2007) for the proposition that the State is required to prove the identity of the victim of an armed robbery. However, the issue in Carter was that the State failed to produce two of the victims listed in the indictment and tried to amend the indictment to omit the reference to the names of these two victims. Id. We find Carter inapplicable to the present case. This issue is without merit.

III. ALLOWING THE JURY TO SEE THOMAS IN RESTRAINTS

¶ 11. In his third issue on appeal, Thomas argues that the trial court erred when it allowed the jury to see him wearing leg restraints. After the trial court granted a recess during voir dire, Thomas’s leg restraints were not removed prior to the entrance of the jury. A bench hearing was conducted, and the following exchange occurred between the trial court, Joseph Hollomon (Thomas’s attorney), and Steven Waldrup (attorney for the State):

THE COURT: I just told them to remove those.
MR. HOLLOMON: You did, Your Hon- or. I will state this, though. He was seated during the entire time the jury came back into this courtroom, and I would be surprised if any of them have seen his feet because he’s been seated ever since he came in here.
THE COURT: Okay. They took [the restraints] off his hands?
MR. HOLLOMON: They did Your Honor.
MR. WALDRUP: He doesn’t have any on his hands. I just noticed he’s got [them] on his ankles.
THE COURT: Make sure you keep him seated, and once the jury’s out, I’ll make sure they take them off.

¶ 12. Thomas contends that the trial court should have immediately taken a recess to remove the leg restraints and questioned the jury as to whether they had seen him in the leg restraints. From the record, it is apparent that Thomas’s attorney did not think the jury had seen the leg restraints. Furthermore, Thomas failed to request a mistrial or any further action. Although it is unclear when the leg restraints were removed, Thomas has failed to show how he was prejudiced in this instance. See Williams v. State, 962 So.2d 129, 131 (¶ 8) (Miss.Ct.App.2007) (defendant has a right to be free of restraints in front of jury but must show prejudice before reversal is warranted). This issue is without merit.

IV. BATSON ISSUE

¶ 18. In his fourth issue on appeal, Thomas argues that the trial court erred in not making an on-the-record factual determination on the merits of the State’s race-neutral reasons for its peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) provides the procedure for trial courts to follow when peremptory challenges are used to remove members of an identified racial group from jury service based upon nothing more than their race. To successfully assert a Batson challenge, the following must occur:

First, the defendant must establish a prima facie case of discrimination in the selection of jury members. The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State.

Thorson v. State, 721 So.2d 590, 593 (¶ 2) (Miss.1998) (internal citations omitted).

¶ 14. This Court gives great deference to the trial court’s finding of whether or not a peremptory challenge was race neutral. Id. at 593 (¶ 4). “[W]e will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence.” Id.

¶ 15. After the State exercised its peremptory challenges, Thomas raised a Bat-son challenge. The trial court found a prima facie case of discrimination and asked the State to provide race-neutral reasons for striking five potential jurors (referred to according to the strike used by the State: Si through S5). The State addressed the Batson challenge as follows:

MR. WALDRUP: The race-neutral reason for SI, Your Honor, is that Ms. Florshene Thomas stated that she was close personal friends with the whole family. I went back and asked her about her last name being Thomas. We got into a conversation about that. Because of her statement about being close friends with the family or knowing the family, that’s our reason for striking her. THE COURT: Court finds a race-neutral reason and will accept Thomas as SI. S2?
MR. WALDRUP: Dedrick Deonne Woodberry. We have two or three cases in our office right now on a Wood-berry ... for selling cocaine to MBN agents, and that’s our basis for the challenge on Woodberry.
THE COURT: Court finds a race-neutral reason for Woodberry and will accept S2. Harris?
MR. WALDRUP: Linda Harris is the one I tried to strike for cause. She knew three of the victims and she knew the defendant as well.
THE COURT: Court finds race-neutral reason for Harris and will accept her as S3. Rodney Jefferson?
MR. WALDRUP: Rodney Jefferson stated in questioning that he had seen [Thomas] around in the community, and during the process of picking the jury, I was informed by the law enforcement officers that he was good friends with the defendant.
THE COURT: Court finds a race-neutral reason for Jefferson and will accept him as S4. S5, Austin.
MR. WALDRUP: Mr. Austin, Your Honor, his wife was first cousin[s] with one of the [victims] involved. He was related — he was related by marriage to the defendant also and said — but he said he could do it.... But it’s because of that relationship that we chose S5.
THE COURT: Court finds a race-neutral reason for Austin and will accept him as S5.

¶ 16. Thomas contends that the trial court did not make an on-the-record determination as to the merits of the State’s race-neutral reasons, and the trial court did not give him an opportunity to rebut the State’s proffered reasons. In regard to whether the trial court allowed Thomas to rebut the State’s reasons, we note that Thomas failed to object during the Batson hearing. Furthermore, although the trial court did not specifically ask Thomas for rebuttal, Thomas had the opportunity to offer rebuttal at any time during the hearing.

¶ 17. Thomas cites to Hatten v. State, 628 So.2d 294, 298 (Miss.1993) in support of his position that the trial court is required to make specific findings as to the merits of the race-neutral reasons given for excluding the potential jurors. Hat-ten requires trial courts to make “an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors.” Id. at 298. However, in Gary v. State, 760 So.2d 743, 748 (¶ 12) (Miss.2000), the supreme court stated the following:

[W]here a trial judge fails to elucidate such a specific explanation for each race neutral reason given, we will not remand the case for that Batson-related purpose alone. This Court is fully capable of balancing the Batson factors in cases such as this one. Continued remand of such cases only wastes the trial court’s limited resources and acts to further delay justice.

See Pruitt v. State, 986 So.2d 940, 946 (¶¶ 20-21) (Miss.2008); Johnson v. State, 875 So.2d 208, 214 (¶ 10) (Miss.2004); Berry v. State, 802 So.2d 1033, 1047 (¶¶ 47-49) (Miss.2001); Newberry v. State, 2007-KA-00875-COA,-So.3d-(¶ 7), 2008 WL 5147118 (Miss.Ct.App. Dec. 9, 2008). Since Thomas offered no rebuttal, the trial court based its decision on the reasons given by the State and found these reasons to be race-neutral. We can find no error on the part of the trial court; thus, this issue is without merit.

¶ 18. We note that the trial court had to conduct another Batson hearing based on Thomas’s improper use of peremptory strikes. The trial court found that one of Thomas’s race-neutral reasons was unacceptable and refused to grant that particular strike.

V. PROSECUTORIAL MISCONDUCT

¶ 19. In his fifth issue on appeal, Thomas cites to five instances of alleged prose-cutorial misconduct that denied him a fair trial. We will address each perceived ei"-ror separately.

A. Comment Concerning Thomas Firing a Weapon

¶ 20. During opening statements, the State was describing the police officer’s attempt to get a description of the person “who did the shooting and robbing.” Thomas objected to any testimony about a shooting. Once Thomas realized that the State was describing Thomas’s actions when he entered the establishment and not implying that he was shooting the patrons, Thomas withdrew his objection. Upon resuming its opening statement, the State reiterated to the jury that Thomas fired a shot into the ceiling and not at the individuals inside. Since Thomas withdrew his objection, we cannot find any error with this statement.

B. Comment Concerning “Exhibiting” During Opening Statement

¶ 21. During opening statements, the State was discussing the elements of armed robbery and stated the following: “Not just robbery, armed robbery. Exhibiting a weapon. See, when you point and wave, you are exhibiting a weapon.” Although Thomas failed to object to this statement, we find no error regardless. The State was merely discussing the elements of armed robbery.

C. Comment on Facts Not in Evidence

¶ 22. During closing statements, the State said the following: “If he had something over his eyes, he couldn’t see so his whole face wasn’t covered, folks. That’s the thing. His whole face wasn’t covered.” Thomas objected, arguing that this statement was contrary to the evidence. The trial court overruled the objection. In general, parties may comment upon any facts introduced into evidence, and may draw whatever deductions and inferences that seem proper from the facts. Bell v. State, 725 So.2d 836, 851 (¶40) (Miss.1998). Although all the witnesses testified that Thomas had some type of fabric tied around his head, we cannot find that this statement concerning Thomas’s eyes was prejudicial. One could easily infer that, in order to commit the crimes as charged, Thomas would not have restricted his eyesight.

D.Comments Regarding a False Statement Made by a Witness

¶ 23. Thomas argues that the State improperly attempted to impeach Rosie Thomas, Thomas’s mother, during Thomas’s testimony. During her testimony Rosie was asked what Thomas was wearing on the night of the armed robbery. Rosie stated that Thomas was wearing a long blue-striped shirt, blue jeans, and black shoes. On cross-examination, Rosie stated that she had gone to bed around 11:35 p.m. on the night of the armed robbery and heard about the alleged armed robbery not long after around 12:10 a.m. The State also elicited information concerning her shift hours as a dispatcher for the police department. When asked about her work schedule, Rosie stated that she believed the armed robbery had occurred on a Saturday night and that she had worked the day shift that Saturday from 6:00 a.m. until 2:00 p.m.

¶ 24. During direct examination, Thomas stated that he returned home to Rosie’s house sometime after 10:30 or 11:00 p.m. and that he thought his mom was in her room. During Thomas’s cross-examination, the State asked Thomas if he was aware that, on the night of the robbery, Rosie clocked in for work at 11:00 p.m. Thomas objected to the State trying to impeach him with Rosie’s testimony. The trial court overruled the objection. However, on appeal, Thomas asserts that the State was attempting to impeach Rosie’s testimony, rather than Thomas’s testimony in violation of Rule 613(b) of the Mississippi Rules of Evidence.

¶ 25. First, we note that Thomas’s contention is waived. “Asserting grounds for an objection on appeal that differs from the ground given for the objection at the trial level does not properly preserve the objection for appellate review.” Woodham v. State, 779 So.2d 158, 161 (¶ 12) (Miss.2001). Second, we note that Rule 613(b) refers to prior inconsistent statements by a witness. We find no evidence in the record of any prior statements made by Rosie that could be used to impeach her testimony.

¶ 26. Thomas also takes issue with a statement made by the State to the trial court regarding a rebuttal witness. However, this conversation occurred at the bench, away from the jury’s ears.

E. Comment During Sentencing Hearing

¶ 27. During the sentencing hearing the State made a comment that the trial court should “take into consideration the fact that he put us through this trial ... [Thomas] should have taken his plea offer.” Thomas responded that it is “unconstitutional for him to be punished for exercising his right to a trial.” The trial court responded, “And I agree with that. I would not consider that as part of his sentencing.” The trial court clearly was not influenced by Thomas’s failure to plead guilty. We can find no prejudice in the State’s comments.

F. Cumulative Error

¶ 28. Thomas argues that the numerous instances of prosecutorial misconduct necessitate a reversal. As we have found no evidence of prosecutorial misconduct, this issue is without merit.

VI. JURY INSTRUCTION D-5

¶ 29. In his sixth issue on appeal, Thomas argues that the trial court erred in amending jury instruction D-5 to strike certain language. The instruction stated the following:

It is a question of fact whether the gun claimed to have been used by Christopher Thomas was a deadly weapon in the manner claimed to have been used. A deadly weapon may be defined as any object, article or means which, when used as a weapon under the existing circumstances is reasonably capable of producing or likely to produce death or serious bodily harm to a human being upon whom the object, article or means is used.

The State objected to the language “in the manner claimed to have been used,” and over an objection by Thomas, the language was removed from the instruction. It is well-settled law that an appellate court does not review jury instructions in isolation; instead, we consider them as a whole to determine if the jury was properly instructed on the law. Milano v. State, 790 So.2d 179, 184 (¶ 14) (Miss.2001). When read as a whole, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Phillipson v. State, 943 So.2d 670, 671 (¶ 5) (Miss.2006).

¶ 30. Thomas cites to Davis v. State, 530 So.2d 694, 700 (Miss.1988) to support his contention that using this particular language in jury instructions has been upheld. We agree with Thomas. However, we find no reversible error because the language in the second paragraph of D-5, “when used as a weapon under the existing circumstances,” adequately conveys the same point as the removed language.

VII. OBJECTIONS MADE BY THOMAS

¶ 31. In his seventh issue on appeal, Thomas argues that the trial court erred in overruling certain objections made during trial. The first challenge occurred during the direct examination of Collins. The State asked Collins if his story of the events that night had changed between the robbery and trial. Thomas made a general objection, which the trial court overruled. The supreme court has stated that objections must be made with specificity in order to be preserved for appeal and that “general objections will not suffice.” Seeling v. State, 844 So.2d 439, 445 (¶ 17) (Miss.2003). Thomas has failed to preserve this issue on appeal.

¶ 32. The next objection occurred during the testimony of Officer Bright. The State asked Officer Bright if there was another suspect during the course of the investigation. Officer Bright responded in the negative. Thomas objected, stating the question called for speculation. Thomas argues that Officer Bright was not the chief investigator on the case and did not have firsthand knowledge of the investigation. However, Officer Bright clarified that there was not another suspect in his part of the investigation. We note that there were no other suspects because Thomas turned himself in on the night of the armed robbery. We cannot find any error by the trial court in overruling this particular objection.

¶ 33. Thomas also refers us to his earlier issue concerning the improper impeachment of Rosie’s testimony through Thomas’s testimony. Finding no error, we decline to review this argument again.

¶ 34. Lastly, Thomas cites to his cross-examination where the State asked him if he had ever owned a firearm. Thomas objected as to relevance, and the trial court sustained the objection. At the same time the trial court ruled on the objection, Thomas answered “thirty-eight.” Thomas claims that the trial court overruled the objection, but the record clearly reflects that the trial court sustained the objection. Since Thomas did not request that the jury be told to disregard the objectionable matter, then there is no error. See Shipp v. State, 749 So.2d 300, 303-04 (¶¶ 16-17) (Miss.Ct.App.1999). This issue is without merit.

VIII. SUFFICIENCY OF THE EVIDENCE

¶ 35. In his eighth issue on appeal, Thomas argues that the trial court erred in failing to grant his motion for a directed verdict and his motion for a JNOV. Thomas argues that the evidence was legally insufficient to support the verdict. Thomas mentions that the verdict was against the overwhelming weight of the evidence, but his brief solely discusses whether the evidence was sufficient.

¶ 36. A motion for a JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’” Id. (citation omitted). If, viewing the evidence in the light most favox*able to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of a motion for a JNOV. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id.

¶ 37. Thomas’s sole contention is that the State failed to prove that he was, in fact, the perpetrator. Thomas relies on the testimony from Collins, Clark, and Jones, who each stated that they did not see the face of the armed robber. However, Collins had known Thomas for ten to fifteen years and testified that he recognized Thomas from the clothes he was wearing. Clark had known Thomas for eight years and recognized him from his voice, his clothes, and his shoes. Jones had also seen Thomas leave the Game Room and testified that he recognized Thomas when he returned by his clothing, shoes, and height. Although there was conflicting testimony as to the exact color of Thomas’s clothes, the jury was responsible for weighing this conflicting evidence, “evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999). From the evidence presented, we find that reasonable, fair-minded jurors could have concluded that Thomas was guilty of armed robbery. This issue is without merit.

IX. CUMULATIVE ERROR

¶ 38. In his final issue on appeal, Thomas argues that the cumulative errors of the trial court mandate reversal for a new trial. Finding each of Thomas’s arguments to be without merit, we consequently do not find any cumulative error that would necessitate a reversal. This issue is without merit.

¶ 39. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT OF CONVICTION OF THREE COUNTS OF ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS FOR EACH COUNT, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ, CONCUR.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Daniel Alan BRADY, Appellant v. Deborah C. BRADY, Appellee.
    No. 2008-CA-00254-COA.
    Court of Appeals of Mississippi.
    Aug. 4, 2009.

      Frank P. Wittmann, Pass Christian, attorney for appellant.
    Blewett W. Thomas, Gulfport, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Daniel Alan Brady (“Daniel”) appeals the chancellor’s judgment of divorce. Daniel argues that the chancellor erred by awarding Deborah Brady (“Deborah”) rehabilitative alimony because: (1) Deborah had returned to the workforce in a job that is comparable to her job prior to the marriage, and (2) the alimony will not end until three years following the sale of the marital home. Finding no error, we affirm.

FACTS

¶ 2. Daniel and Deborah were married on July 24, 2004, and separated on February 28, 2005. No children were born of this marriage. On March 24, 2005, Deborah filed her complaint for divorce alleging adultery or, in the alternative, irreconcilable differences.

¶ 3. Prior to the marriage, Deborah owned a home, which became the marital home, and four acres in Saucier, Mississippi. The property appraised for $225,000 in September 2004. The only debt associated with the home was two years of unpaid property taxes.

¶ 4. On August 3, 2004, Deborah executed a warranty deed conveying a joint tenancy in the property and home to Daniel in order to secure a home equity loan. Both parties testified that neither was capable of acquiring a loan individually due to credit problems; she had no income, and he had no collatei’al. In September 2004, Daniel and Deborah mortgaged the marital home for $100,000. In November 2004, the couple mortgaged the marital home for the second time. The total mortgage on the home was $158,000, and the monthly payment was $1,191.53. The couple used the borrowed money to buy four wheelers, a vehicle, horses, a grandfather clock, and exotic birds. They also paid for some home improvements, medical expenses, debts acquired prior to marriage (largely attributable to Daniel), and vacations. By February 2005, all of the borrowed money had been spent.

¶ 5. In February 2005, Daniel claimed that he was in love with a former girlfriend. Deborah and Daniel both testified that Deborah arranged for the couple to attend marriage counseling and that she begged Daniel to stay. However, Daniel moved to an apartment in Diamondhead, Mississippi and established a relationship with his former girlfriend. Deborah filed for divorce based upon Daniel’s adultery. After Deborah filed for divorce, but prior to trial, the marital home was rendered uninhabitable by Hurricane Katrina.

¶ 6. The chancellor granted Deborah a divorce based on the ground of adultery. The chancellor distributed the marital assets and ordered the sale of the marital home with the proceeds to be used to pay off any remaining portion of the mortgage. Deborah was awarded any remaining equity in the home, as compensation for the loss, and rehabilitative alimony in the amount of $1,500 per month. The alimony was to begin on November 1, 2007, and terminate thirty-six months after the month the real property was sold.

STANDARD OF REVIEW

¶ 7. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).

ANALYSIS

1. Whether the chancellor erred by awarding Deborah rehabilitative periodic alimony when she had returned to the workforce in a job that is comparable to her job prior to the marriage.

¶ 8. Daniel claims that rehabilitative periodic alimony was inappropriate because Deborah has a job that is comparable to her job prior to their marriage. Deborah responds that rehabilitative periodic alimony is necessary because she no longer owns her home debt free and is unable to support herself on her income.

¶ 9. “ ‘Rehabilitative periodic alimony’ is not intended as an equalizer between the parties but is for the purpose of allowing the less able party to start anew without being destitute in the interim.” Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). This Court has affirmed similar awards where the less able party was already employed. In Wesson v. Wesson, 818 So.2d 1272, 1277-78(¶ 10) (Miss.Ct.App.2002), the wife’s rehabilitative periodic alimony award was affirmed even though she continued to work as a teacher’s assistant. In Drumright v. Drumright, 812 So.2d 1021, 1028(¶ 24) (Miss.Ct.App.2001), we found that the amount of the husband’s income along with the disparity between the incomes of the husband and wife justified rehabilitative periodic alimony to the wife so that she might “rehabilitate herself in order to maintain the standard of living sbe has become accustomed to or somewhere near it.”

¶ 10. Upon our review of the record, we find that the chancellor was presented ample evidence about the couple’s financial status before and after the divorce. Deborah left her full-time job shortly before the marriage. She testified that Daniel wanted a stay-at-home wife, but Daniel testified that he left the decision up to her.

¶ 11. Following Hurricane Katrina, Deborah moved to San Antonio, Texas. She currently earns $24,000 a year working for a newspaper and estimates her monthly living expenses at $3,148. Daniel earns $83,949 a year working as a safety engineer for NASA and receives $30,000 a year from a military pension.

¶ 12. Prior to the marriage, Deborah did not have the burden of rent because she owned her home debt free. After her seven-month marriage to Daniel, the home was encumbered by a substantial mortgage. Without rehabilitative periodic alimony, Deborah will become destitute. This is precisely the situation that rehabilitative periodic alimony is designed to protect against.

¶ 13. “Alimony awards are within the chancellor’s discretion, and we may not reverse unless we find the chancellor committed manifest error in his findings of fact and abused his discretion.” Graham v. Graham, 767 So.2d 277, 280(¶ 7) (Miss.Ct.App.2000). Daniel has not presented any evidence of the chancellor’s abuse of discretion, and we have not found any. This issue is without merit.

2. Whether the chancellor erred by awarding Deborah rehabilitative alimony for three years following the sale of the marital home.

¶ 14. Daniel argues that the chancellor erred by conditioning termination of rehabilitative periodic alimony upon the sale of the marital home because rehabilitative alimony is for a fixed period of time, and it is unknown when the house will sell. Deborah argues that the chancellor may terminate rehabilitative periodic alimony upon the occurrence of a specific event.

¶ 15. “Periodic alimony is for an indefinite period vesting as it comes due and modifiable. Rehabilitative periodic alimony is modifiable as well, but is for a fixed period of time vesting as it accrues.” Lauro v. Lauro, 847 So.2d 843, 849(¶ 15) (Miss.2003) (emphasis added).

¶ 16. The chancellor awarded Deborah rehabilitative periodic alimony “in the amount of $1,500 per month, to begin [on] November 1, 2007, and [to terminate] 36 months after the month the real property is sold as directed in this judgment.”

¶ 17. Before we address the merits of the claim, we must address an inconsistency in the chancellor’s opinion. The chancellor provided the parties with an illustration of the termination of the alimony, but in the illustration, the last month of alimony was due six months after the house was sold. Because the chancellor uses thirty-six months multiple times in his opinion, we use it as our fixed time period for consistency in the discussion of this issue. However, we remand for clarification.

¶ 18. The chancellor’s award was unconventional, but it was not an abuse of discretion. The rehabilitative periodic alimony is not for an indefinite period of time as Daniel suggests. It will terminate thirty-six months after the month that the marital home is sold. Daniel argues that Deborah has no incentive to sell the house and will benefit if the house is not sold, because her rehabilitative periodic alimony will terminate once the house is sold. If Deborah is purposely delaying the sale of the house as Daniel suggests, then he is free to bring a motion of contempt against Deborah in chancery court. The record indicates that Deborah is paying the real property taxes and insurance on the property.

¶ 19. The chancellor’s opinion that Daniel profited from his seven-month marriage to Deborah is supported by the record. Daniel left this short marriage without his substantial premarital debt, returned to his previous girlfriend, and threatened to quit his job to avoid paying the mortgage on the marital home. Daniel’s actions left unemployed Deborah without any means to pay the mortgage and, after Hurricane Katrina, homeless with a large amount of debt and no assets.

¶ 20. We find that Daniel’s assertions of error are without merit, and the chancellor’s award of rehabilitative periodic alimony is affirmed; however, we remand so the chancellor may clarify the number of months which Daniel must pay rehabilitative periodic alimony upon the sale of the marital home.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED AND REMANDED FOR CLARIFICATION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    Torsha A. BROWN, Appellant v. HARRAH’S ENTERTAINMENT, INC. d/b/a Horseshoe Casino-Tunica, Appellee.
    No. 2008-CP-01430-COA.
    Court of Appeals of Mississippi.
    Aug. 11, 2009.

      Torsha A. Brown, Appellant, pro se.
    Robert Lewis Moore, Russell B. Jordan, Attorneys for Appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On September 27, 2005, security personnel at the Horseshoe Casino in Tu-nica County, Mississippi detained Torsha A. Brown for failing to provide identification. Brown engaged in a physical struggle with security officers while she was being detained, and the Tunica County Sheriffs Department was notified. Brown was ultimately charged with trespassing and disturbing the peace. Brown’s trespassing charge stemmed from an earlier incident at the same casino, which resulted in Brown’s permanent eviction from the Horseshoe Casino.

¶ 2. Brown pleaded not guilty in the Tunica County Justice Court to both charges. Brown’s trespassing charge was dismissed, but she was found guilty of disturbing the peace. Brown appealed her conviction to the Tunica County Circuit Court. The circuit court reversed Brown’s conviction for disturbing the peace.

¶ 3. On September 21, 2007, Brown filed a complaint against Harrah’s Entertainment, Inc., d/b/a Horseshoe Casino — Tuni-ca (the Casino) alleging false arrest. The Casino ultimately filed a motion for summary judgment, and after a hearing on the matter, the trial court granted the Casino’s motion. The trial court found that there were no genuine issues of material fact and that Brown’s false arrest claim was barred by the one-year statute of limitations for intentional torts. Brown now appeals, asserting the following issues: (1) the trial court failed to consider her claims of negligence; (2) the trial court applied an incorrect standard of law; (3) the trial court abused its discretion by allowing the Casino to withhold or destroy surveillance evidence; (4) the trial court allowed the Casino to violate a court order; (5) the trial court abused its discretion in handling the arguments during the motion hearing; and (6) the trial court erred in hearing different motions simultaneously. Finding that summary judgment was proper, we decline to review Brown’s remaining issues.

STANDARD OF REVIEW

If 4. In reviewing a trial court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547(¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if 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). All of the evidence before the trial court must be examined in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

DISCUSSION

¶ 5. Brown first contends that summary judgment was inappropriate because both negligence and intentional torts were committed against her. Brown does concede, however, that her claim of false arrest is an intentional tort and is subject to a one-year statute of limitations. See Miss. Code Ann. § 15-1-35 (Rev.2003); see also City of Mound Bayou v. Johnson, 562 So.2d 1212, 1218 (Miss.1990) (no difference between intentional tort of malicious arrest, as enumerated in section 15-1-35, and false arrest). Brown’s claim for false arrest arose on September 27, 2005, and her complaint was filed on September 21, 2007, well outside the one-year statute of limitations.

¶ 6. Brown also contends that the Casino employees acted negligently while arresting her. During the hearing on the motion for summary judgment, the trial court noted that all of Brown’s instances of alleged negligence were part of her false arrest claim; thus, the one-year statute of limitations applied. Regardless, Brown has failed to set forth specific facts to establish the existence of each element of negligence — duty, breach of that duty, proximate causation, and damages. See Green v. Dalewood Prop. Owners’ Ass’n, 919 So.2d 1000, 1005(¶ 10) (Miss.Ct.App.2005). Brown’s argument simply consists of allegations of purported negligence, and she has offered no other support by means of affidavits or other such support anticipated by Rule 56 of the Mississippi Rules of Civil Procedure to prove the existence of a genuine issue of material fact.

¶ 7. Finding that summary judgment in favor of the Casino was proper, we decline to review Brown’s remaining issues.

¶ 8. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON and MAXWELL, JJ„ CONCUR.


author: PER CURIAM. BOLIN, Justice SEE, Justice STUART, Justice MURDOCK, Justice

text:
    Ex parte GADSDEN COUNTRY CLUB. (In re Steven P. Hurst v. Gadsden Country Club et al.).
    1071270.
    Supreme Court of Alabama.
    Jan. 16, 2009.

      C. Peter Bolvig and Carleton P. Ketch-am III of Hall, Conerly & Bolvig, P.C., Birmingham, for petitioner.
    Lawrence T. King of King, Horsley & Lyons, LLC, Birmingham, for respondent Steven P. Hurst and on behalf of Judge William A. Millican.
   PER CURIAM.

Steven P. Hurst sued the Gadsden Country Club (“GCC”) in the Etowah Circuit Court, alleging that his employment had been terminated in retaliation for his seeking worker’s compensation benefits after suffering an on-the-job injury, in violation of § 25-5-11.1, Ala.Code 1975. In its answer, GCC denied that Hurst had been terminated for filing a worker’s compensation claim and stated that legitimate grounds existed for Hurst’s termination, unrelated to any worker’s compensation claim. In an answer to an interrogatory, GCC stated that Hurst was fired for leaving work after the accident that resulted in his on-the-job injury without first seeking medical attention, in violation of both his supervisor’s instructions and GCC policy. Hurst thereafter moved the trial court to strike that “affirmative defense,” arguing that it had been rejected in an administrative hearing conducted by the Department of Industrial Relations (“DIR”) on Hurst’s claim for unemployment benefits. The trial court granted Hurst’s motion, and GCC now petitions this Court for mandamus relief, arguing that the trial court exceeded its discretion in striking that defense because, it argues, DIR did not, in fact, reject that defense. We deny the petition.

I.

In its decision on Hurst’s unemployment-compensation claim, DIR described the relevant facts as follows:

“[Hurst] worked for [GCC] from 1999, until June 27, 2007. [Hurst] was injured as he fell going up stairs. The supervisor determined that the fall was serious enough to seek medical treatment. The company policy provides for medical treatment in case of an accident at the discretion of the supervisor. [Hurst] left the work site at 1:00 p.m., at the end of his shift. [Hurst] was in his car and [the] supervisor stopped him and told him that he needed to complete necessary paperwork related to his fall. [Hurst] went in to complete the paperwork but the supervisor could not find the proper forms. [Hurst] told him that while he was looking for the forms he needed to check on his father and he would return in approximately 20 minutes. [Hurst] returned to the work site approximately 40 minutes later and was discharged in accordance with company policy for refusing to get medical treatment and leaving the work site without permission. [Hurst] was aware of the policy as he received a copy at hire and the policy was updated during safety meetings. [Hurst] did not seek medical treatment because he did not feel that he was injured. [Hurst] had surgery already scheduled for July 11, 2007, on the shoulder that he fell on so he did not go to the doctor. [Hurst] denied the allegation that he refused to get medical treatment and that he left the work site without permission.”

DIR denied Hurst’s unemployment-compensation claim. On August 6, 2007, Hurst filed the underlying retaliatory-discharge action against GCC. On December 6, 2007, Hurst amended his complaint to add DIR as a defendant in order to appeal the preliminary decision it had made denying his claim for unemployment benefits. DIR filed an answer stating that Hurst was “not physically able to work” and that he was “disqualified for receipt of unemployment compensation” pursuant to § 25-4-78(3), Ala.Code 1975, the subsection dealing with discharge for misconduct.

On March 17, 2008, Hurst filed two motions — a motion to dismiss DIR as a defendant because it had begun paying Hurst unemployment benefits and a motion to strike GCC’s “affirmative defense” that his employment had been terminated because he left work after his accident without first seeking medical attention. Hurst argued that GCC had offered this same reason for terminating his employment during the DIR proceedings and that it had been rejected by the DIR administrative officer; therefore, he argued, because GCC had not appealed the DIR decision, it could not now seek to relitigate that issue. See, e.g., Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 448 (Ala.1999) (“ ‘To allow a plaintiff to raise the same issues in a subsequent lawsuit after having elected not to appeal from the administrative ruling would frustrate efforts to provide an orderly administration of justice and could encourage one to relitigate issues rather than have those issues finally resolved.’ ” (quoting Ex parte Smith, 683 So.2d 431, 436 (Ala.1996))).

GCC opposed Hurst’s motion to strike, arguing that he was misinterpreting the DIR decision and that the DIR decision, in fact, supported GCC’s position. The trial court, however, agreed with Hurst and granted his motion to strike on May 2, 2008. On June 13, 2008, GCC petitioned this Court for mandamus relief, asking us to direct the trial court to vacate its order prohibiting GCC from asserting as an affirmative defense that Hurst’s employment had been terminated as a result of his leaving work after an accident without first seeking medical attention. We deny the petition.

II.

In Ex parte Buffalo Rock Co., 941 So.2d 273, 277 (Ala.2006), this Court stated:

“ ‘Mandamus is an extraordinary remedy and will be granted only where there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). A trial court’s disallowance of a party’s affirmative defense is reviewable by a petition for a writ of mandamus. See Ex parte Neely Truck Line, Inc., 588 So.2d 484 (Ala.Civ.App.1991).”

In the present case, the parties dispute only whether GCC has a clear legal right to the relief it seeks and whether it has another adequate remedy.

III.

GCC argues that it has a clear legal right to the issuance of a writ of mandamus because the trial court’s disal-lowance of its defense that Hurst was fired for reasons other than Hurst’s filing a claim for worker’s compensation benefits was a disallowance of an affirmative defense. Hurst argues that the writ of mandamus GCC seeks should not be issued because, he argues, GCC has an adequate remedy by way of appeal. Hurst supports this argument by citing Ex parte Sysco Food Seivices of Jackson, LLC, 901 So.2d 671 (Ala.2004), another retaliatory-discharge case, in which this Court considered an employer’s petition for mandamus relief after the trial court had granted a motion in limine filed by a discharged employee barring the employer from introducing any evidence that the employee had been fired for committing dishonest or criminal acts in connection with his work; DIR had previously concluded during administrative hearings on the employee’s claim for unemployment benefits that the employee had not acted dishonestly or criminally. This Court declined to consider the merits of the petition, noting instead that “review of an order granting or denying a motion in limine is by appeal.” 901 So.2d at 674. We further noted that the employer had suggested other reasons for terminating the employee’s employment and that it could still present evidence supporting those other reasons at trial. If, after that trial, the employer still desired to do so, it could then “appeal the propriety of the trial court’s order granting the motion in limine.” 901 So.2d at 676.

GCC argues that Ex parte Sysco is not directly relevant here because it concerned the proper method for seeking review of an order granting a motion in limine, and, in the present case, GCC seeks review of an order striking an affirmative defense. This Court in Ex parte Buffalo Rock, GCC notes, specifically stated that “[a] trial court’s disallowance of a party’s affirmative defense is reviewable by a petition for a writ of mandamus.” 941 So.2d at 277. GCC is correct.

A petition for a writ of mandamus is a proper means to review the order of a trial court disallowing a party’s affirmative defense. Ex parte Buffalo Rock. The question we must now answer is whether GCC’s defense to Hurst’s claim that he was fired solely for seeking worker’s compensation benefits was an affirmative defense. In its answer, GCC denied that Hurst was fired for seeking worker’s compensation benefits and stated that, instead, he was fired for legitimate grounds unrelated to his claim for worker’s compensation benefits. The issue is whether this assertion was an affirmative defense so that this Court can review the trial court’s disallowance of the defense on a petition for a writ of mandamus.

Hurst characterizes GCC’s denial that Hurst was fired in retaliation for seeking worker’s compensation benefits as an affirmative defense. This Court has defined an affirmative defense as “ ‘[a] defendant’s assertion of facts and arguments that, if true, will defeat the plaintiffs or prosecution’s claim, even if all the allegations in the complaint are true.’ ” Lloyd Noland Found., Inc. v. HealthSouth, Inc., 979 So.2d 784, 791 (Ala.2007) (quoting Black’s Law Dictionary 451 (8th ed.2004)). “An affirmative defense is defined as ‘new matter which, assuming the complaint to be true, constitutes a defense to it.’” Bechtel v. Crown Cent. Petroleum Corp., 451 So.2d 793, 795 (Ala.1984) (quoting Black’s Law Dictionary (rev. 5th ed.1979)). “A defendant’s outright denial of the plaintiffs allegations without additional facts” is often referred to as a “negative defense.” Black’s 452 (8th ed.2004). In Ex parte Atmore Community Hospital, 719 So.2d 1190 (Ala.1998), this Court noted the difference between an “affirmative” defense and a “negative” defense as follows: An affirmative defense is distinguishable from a negative defense in that an affirmative defense raises new matters that, assuming the allegations in the complaint to be true, constitute a defense to the action and have the effect of defeating the plaintiffs claims on the merits while a negative defense simply seeks to refute an essential allegation of the plaintiffs complaint. 719 So.2d at 1193 n. 1.

To succeed on a retaliatory-discharge claim under § 25-5-11.1, Ala.Code 1975, a plaintiff must show: “1) an employment relationship; 2) an on-the-job injury; 3) knowledge on the part of the employer of the on-the-job injury; and 4) subsequent termination of employment based solely upon the employee’s on-the-job injury and the filing of a workers’ compensation claim.” Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002). If GCC proves that Hurst was fired for legitimate grounds unrelated to his filing for worker’s compensation benefits, Hurst’s retaliatory-discharge claim will be defeated. However, that does not mean that GCC’s defense that it had cause to fire Hurst was an “affirmative defense.” The defense of “fired for cause” does not raise a new matter in a retaliatory-discharge claim. In contrast to a negative defense, an affirmative defense does not rebut any factual propositions asserted in the plaintiffs complaint but opens the way for the defendant to present evidence establishing an independent reason why the plaintiff may not recover. Because GCC’s defense was not an affirmative defense, GCC does not have a clear legal right to the issuance of a writ of mandamus, and this Court must deny its petition for the writ.

PETITION DENIED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

BOLIN, J., concurs specially.

SEE, J., concurs in part and concurs in the result.

STUART and MURDOCK, JJ., dissent.

BOLIN, Justice

(concurring specially).

I agree with the majority that GCC does not have a clear legal right to a writ of mandamus because GCC’s defense is not an affirmative defense and I am disinclined to expand mandamus review to a defense other than an affirmative defense. However, I write to address whether the administrative officer for the Department of Industrial Relations (“DIR”), in ultimately awarding Hurst unemployment compensation, in fact rejected GCC’s contention that Hurst’s employment was terminated because he left work without seeking medical attention after his accident. The relevant portion of DIR’s decision is as follows:

“Conclusions

“Section 25-4-78(3)(c)[, Ala.Code 1975,] provides for a disqualification if an individual is discharged from [his] most recent bona fide work for misconduct connected with work. ‘Misconduct’ is conduct evincing a deliberate, willful, or wanton disregard of an employer’s interests or of the standards of behavior which the employer has a right to expect of his employees. The preponderance of evidence shows [that Hurst] was discharged for violation of company policy when he refused to seek medical treatment after a fall at work and left the premises without permission. [Hurst] denied the allegation that he refused to seek medical treatment or that he left the premises without permission. The employer bears the burden of proving misconduct indeed occurred. [GCC] has failed to provide sufficient evidence to show that [Hurst] committed misconduct. The evidence does not show a disregard of the employer’s interests!;] thus, no misconduct was committed. Therefore, [Hurst] is not subject to disqualification under this section of law.
“Section 25-4-77(a)(3)[, Ala.Code 1975,] provides that an individual be physically and mentally able to perform work of a character which he is qualified to perform by past training or experience, and he is available for such work. [Hurst] bears the burden of showing that he is meeting the availability requirements. The preponderance of evidence shows [Hurst] has failed to provide medical evidence of his ability to work. Therefore [Hurst] does not meet the availability requirements of this section of law.
“Decision
“The examiner’s determination is modified. The disqualification imposed under Section 25^á-78(3)(c) of the unemployment compensation law is removed and the reduction in the maximum amount of benefits payable is restored. [Hurst] is ineligible for benefits under the provisions of Section 25-4-77(a)(3) of the Law beginning July 15, 2007. This decision of ineligibility continues until [Hurst] adequately demonstrates to the local office that the availability requirements of the law are being satisfied. Upon such a showing [Hurst] may become entitled to benefits.”

(Emphasis added.) When the decision of the DIR administrative officer is read as a whole, it is apparent that the administrative officer did not reject GCC’s contention that Hurst’s employment was terminated because he left work without seeking medical attention after his accident. To the contrary, the decision unambiguously states that “[t]he preponderance of evidence shows [that Hurst] was discharged for violation of company policy when he refused to seek medical treatment after a fall at work and left the premises without permission.”

The confusion in this case apparently stems from the fact that, immediately after stating that Hurst’s employment was terminated because he violated company policy, the DIR administrative officer nevertheless concludes that Hurst’s actions did not rise to the level of “misconduct,” as that term is used in DIR proceedings, because, the officer concluded, in leaving work, Hurst did not “evincfe] a deliberate, willful, or wanton disregard of [his] employer’s interests.” This conclusion is consistent with the principle that every violation of company policy by an employee is not per se misconduct for purposes of § 25-4-78, Ala.Code 1975, a fact this Court has previously recognized in Ex parte Sargent, 634 So.2d 1008, 1010 (Ala.1993).

Importantly, however, the conclusion of the DIR administrative officer that Hurst was not guilty of misconduct was not tantamount to a conclusion that GCC had not terminated Hurst’s employment because he left work after his accident without seeking medical attention; rather, it was merely a conclusion that, even though he had done so, he was not guilty of “misconduct” as that term is used in DIR unemployment-compensation proceedings. Because DIR did not reject GCC’s argument that Hurst’s employment was terminated because he left work after his accident without first seeking medical attention, I believe GCC is entitled to pursue that argument in defending itself from Hurst’s retaliatory-discharge claim.

SEE, Justice

(concurring in part and concurring in the result).

The main opinion concludes that GCC’s defense is not an affirmative defense and that, because it is not, the trial court’s order striking it is not reviewable by a petition for the writ of mandamus. See 14 So.3d at 834 (“Because GCC’s defense was not an affirmative defense, GCC does not have a clear legal right to the issuance of a writ of mandamus, and this Court must deny its petition for the writ.”). I agree that GCC’s defense is not an affirmative defense. I further agree that the petition for the writ of mandamus should be denied. I disagree, however, that this case turns on whether GCC’s defense is an affirmative defense. Therefore, I concur in the rationale in part and concur in the result.

However the parties choose to characterize GCC’s defense, the trial court’s order is, in its practical effect, a ruling on a motion in limine as to the admissibility of evidence. See Petition at Exhibit K (trial court’s order, stating: “Defense is precluded from offering evidence that [Hurst] would be fired for leaving work without permission and refusing medical treatment.”). As a general rule, an appeal, not a petition for the writ of mandamus, is the proper method by which to seek review of an order granting or denying a motion in limine. See Ex parte Sysco Food Servs. of Jackson, LLC, 901 So.2d 671, 674 (Ala.2004) (“Alabama precedent has established that review of an order granting or denying a motion in limine is by appeal.”).

The rule that the review of an order granting or denying a motion in limine is by appeal, however, does not appear to be absolute. In Ex parte Sysco, Sysco argued that mandamus relief was appropriate — -notwithstanding the general rule to the contrary — because, it argued, “the trial court’s order ‘ “effectively preclucl[es] a decision on the merits ... so that ... the outcome has been all but determined, and the petitioner would be merely going through the motion of a trial to obtain an appeal.” ’ ” 901 So.2d at 675 (quoting Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813-14 (Ala.2003)). The Court addressed Sysco’s argument, concluding:

“Therefore, despite Sysco’s contention, the outcome of the trial in the retaliatory-discharge action has not all but been determined; although the trial court’s ruling on the motion in limine prevents Sysco from presenting evidence indicating that [the employee] was discharged for committing a dishonest or criminal act addressed in the unemployment-benefits trial, Sysco may still present evidence of other reasons it had, if any, for discharging [the employee]. Thus, Sys-co is not effectively precluded from a decision on the merits, and if Sysco so desires after the trial in the retaliatory-discharge action, it can appeal the propriety of the trial court’s order granting the motion in limine. Consequently, appeal, not a petition for a writ of mandamus, is the proper forum for review of that order.”

901 So.2d at 675-76. This language indicates that Sysco would have been entitled to a writ of mandamus had it demonstrated that the trial court’s order effectively had all but determined the outcome of the trial and that it therefore would merely be going through the motions of a trial in order to obtain an appeal. Such a result would have been consistent with other decisions of this Court in which a preliminary ruling by the trial court, in effect, deprived a party of its opportunity to defend itself, that is, effectively denied it a meaningful trial. See Ex paite Oowen, 872 So.2d at 813-14 (noting that review by a petition for the writ of mandamus is appropriate in a discovery context “when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal”).

In this case, GCC’s sole argument is that the trial court has wrongly denied its affirmative defense and, thus, that GCC is entitled to the writ of mandamus. It argues that, “GCC has no other adequate remedy at law, since its defense is premised upon the affirmative defense that Hurst was terminated for violation of company policy.” Petition, at 16-17. Thus, GCC argues that the trial court is wrong, but it does not argue that the trial court’s order effectively precludes a decision on the merits such that the outcome of the case has been all but determined, or that GCC will be merely going through the motions of a trial in order to obtain an appeal. GCC does not adopt the analysis of Sysco and argue that its situation is precisely one that this Court had identified as an exception to the general rule that review of a ruling on a motion in limine is not by mandamus. Instead, GCC attempts to distinguish Sysco from this case on the ground that this case, unlike Sysco, involves an affirmative defense. See GCC’s reply brief, at 5.

GCC has not argued that it is entitled to mandamus review because the trial court’s order effectively precludes a decision on the merits such that the outcome has been all but determined and that it will be merely going through the motions of a trial in order to obtain an appeal; neither has GCC demonstrated that this issue may be reviewed by a petition for the writ of mandamus. Therefore, I agree with the main opinion that the petition for the writ of mandamus should be denied.

STUART, Justice

(dissenting).

I agree with Justice Bolin’s analysis in his special concurrence on the issue whether the hearing officer for the Department of Industrial Relations addressed and rejected GCC’s argument that Hurst’s employment was terminated because he left work after his accident without first seeking medical attention and, thus, whether GCC is entitled to pursue this argument below. I, however, would go further and grant the petition for the writ of mandamus. Not permitting the evidence or defense goes to the heart of the matter and almost certainly is outcome-determinative. Therefore, I respectfully dissent.

MURDOCK, Justice

(dissenting).

Like Justice Stuart, I acknowledge the distinction drawn by Justice Bolin in his special concurrence between the issue whether Hurst’s acts constituted “misconduct” for purposes of being disqualified from receiving unemployment benefits under § 25-4-78(3) and the issue whether Hurst’s acts constituted a violation of company policy that would serve as a proper basis for terminating his employment. 14 So.3d at 837 (Bolin, J., concurring specially and citing Ex parte Sargent, 634 So.2d 1008,1010 (Ala.1993)).

In addition, there is the distinction between an administrative adjudication of the issue whether Hurst actually committed improper acts of whatever nature and the issue whether GCC, in good faith, believed that Hurst had committed those acts and whether that belief was the reason it terminated Hurst’s employment. Although Hurst seeks to rely upon this Court’s decision in Ex parte Sysco Food Services of Jackson, LLC, 901 So.2d 671 (Ala.2004), this Court explained in Sysco:

“At [the employee’s] trial on his claim seeking unemployment benefits, the trial court found not only that [the employee] had not committed any dishonest or criminal acts, but also that ‘[the employee] was not terminated for committing any dishonest or criminal act in connection with his work as alleged by the Department [of Industrial Relations] and/or Sysco.’ Consequently, Sysco is precluded from offering any evidence indicating that it terminated [the employee’s] employment based upon its belief that [the employee] had committed a dishonest or criminal act.”

901 So.2d at 675.' Here, in contrast, the administrative agency specifically found, as Justice Bolin explains, that Hurst’s violation of company policy was the reason GCC terminated Hurst’s employment.

Beyond the foregoing, the decision in Sysco was based on the fact that the exclusion of the proffered defense would not mean that the employer would merely be going through the motion of a trial to obtain an appeal because there were other defenses the employer could assert:

“Sysco, ... quoting [Ex parte JOcwen Federal Bank, [FSB, 872 So.2d 810 (Ala.2003),] argues that mandamus relief is appropriate in this case because, it says, the trial court’s order ‘ “effectively precludes] a decision on the merits ... so that ... the outcome has been all but determined, and the petitioner would be merely going through the motion of a trial to obtain an appeal.” ’ Oaven Federal Bank, 872 So.2d at 813-14.
“Because Sysco can present evidence indicating that the termination of [the employee’s] employment was causally related to his poor performance, poor work attendance, or other misconduct arising from the November 20 incident or other incidents that might justify termination, the trial court’s favorable ruling on [the employee’s] motion in limine does not result in Sysco’s ‘merely going through the motions of a trial to obtain an appeal.’ Ocwen Federal Bank, 872 So.2d at 814.”

901 So.2d at 675.

In the present case, however, there do not appear to be other defenses GCC can assert at trial. GCC argues to this Court that its defense is premised on its position that it terminated Hurst’s employment for violating the company policies at issue. GCC also argues that it will be irreparably harmed if it is not allowed to present its defense to Hurst’s retaliatory-discharge claim. I agree. The trial court’s order has “ ‘effectively precluded] a decision on the merits ... so that ... the outcome has been all but determined, and the petitioner would be merely going through the motion of a trial to obtain an appeal.’ ” Sysco, 901 So.2d at 675 (quoting Ocwen Fed. Bank, 872 So.2d at 814). See also Ex parte United States Gypsum Co., 533 So.2d 557 (Ala.1988) (“The probability that the trial court’s error would require U.S. Gypsum to go through a second trial following reversal on appeal following a trial outweighs any prejudice that the plaintiffs face by way of having to defend against the matters raised in the original pre-trial motions.”).

Based on the foregoing, I conclude GCC’s petition for the writ of mandamus should be granted; therefore, I respectfully dissent.

      . Section 25-5-11.1 provides, in relevant part, that "[n]o employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits ...."

      . The order entered by the trial court granting Hurst’s motion to strike stated that it was striking GCC’s "affirmative defense” that Hurst "voluntarily quit." Hurst subsequently filed a motion to clarify, arguing that the trial court had, as a result of a scrivener's error in his motion to strike — which error had been specifically acknowledged at the hearing on the motion — inadvertently stricken an affirmative defense that GCC had not even made (i.e., that Hurst had voluntarily quit his employment with GCC) instead of the intended defense — that Hurst's employment had been terminated because he violated his supervisor’s instructions and GCC policy by leaving work after an accident without first receiving medical attention. On May 7, 2008, the trial court granted the motion to clarify that it was striking GCC’s defense that Hurst was "fired for leaving work without permission and refusing medical treatment.”

      . I dissented from the main opinion in Ex parte Sysco because it appeared to me that Sysco had sufficiently demonstrated that it was entitled to the writ of mandamus. See Ex

        parte Sysco, 901 So.2d at 677 ("However, if Sysco is precluded from offering in this retaliatory-discharge action the evidence that formed the basis of its belief that [Sysco's employee] had deviated from his delivery route without permission, that he had lied to his supervisor about it, and that he had falsi-fled his transportation log — the only reasons it asserts for having discharged [the employee] — the case has been 'all but determined.’ Therefore, pursuant to Ocwen, review by appeal is inadequate and mandamus relief is appropriate.” (See, J., dissenting)).

      . In his dissenting opinion joined by Chief Justice Nabers, Justice See contended in Sys-co that, although "[the employee] established in his unemployment-compensation case that he did not commit the dishonest or criminal acts of which he was accused, and for the purposes of this retaliatory-discharge action that factual finding has been established,” "Sysco may still assert that at the time it discharged [the employee] Sysco believed in good faith that [the employee] had committed those dishonest or criminal acts.” 901 So.2d at 677 (See, J., dissenting) (citing Tyson Foods, Inc. v. McCollum, 881 So.2d 976, 978 (Ala.2003)).

      . In his dissenting opinion in Sysco, Justice See differed with the majority as to whether the employer had any defenses other than those the trial court had effectively excluded from the trial; he reached the same conclusion as the main opinion with respect to the legal principles applicable to such a circumstance:
      "We have held that review by appeal may be inadequate when
      " ‘the trial court’s order either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal.’

        "Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813-14 (Ala.2003).
      "... [I]f Sysco is precluded from offering in this retaliatory-discharge action the evidence that formed the basis of its belief that [the employee] had deviated from his delivery route without permission, that he had lied to his supervisor about it, and that he had falsified his transportation log — the only reasons it asserts for having discharged [the employee] — the case has been 'all but determined.’ Therefore, pursuant to Ocwen, review by appeal is inadequate and mandamus relief is appropriate.”
      901 So.2d at 677 (See, J., dissenting).


author: MURDOCK, Justice.

text:
    Patricia Ann HAMILTON v. EMPLOYEES’ RETIREMENT SYSTEM OF ALABAMA et al.
    1061499.
    Supreme Court of Alabama.
    Jan. 16, 2009.

      Gene T. Moore, Tuscaloosa, for appellant.
    William F. Kelley, Jr., gen. counsel, Retirement Systems of Alabama, for appellee.
   MURDOCK, Justice.

Patricia Ann Hamilton sued the Employees’ Retirement System of Alabama (“the Retirement System”), seeking a declaratory judgment that she was entitled to the retirement benefits of her father, Charles E. Hamilton. Patricia also asserted claims of breach of contract and fraud against the Retirement System.

The Retirement System answered the complaint and, subsequently, moved for a summary judgment. In its motion for a summary judgment, the Retirement System argued that Patricia was not Charles’s designated beneficiary at the time of his death and that, therefore, the Retirement System had correctly paid death benefits to Charles’s designated beneficiary, Mary R. Winston, who, at the time of his death, was Charles’s former wife.

In response, Patricia filed her own motion for a summary judgment and an opposition to the Retirement System’s motion. She argued that Charles had completed forms provided by the Retirement System designating her as his beneficiary effective at the time his retirement benefits were “due and payable” and that Charles’s retirement benefits became “due and payable” at the time of his death. Thus, Patricia argued that she was legally entitled to receive the death benefits that had been paid to Winston.

Patricia subsequently moved the trial court to join Winston as a necessary party to the action; the trial court granted this motion, and Winston was served with a copy of the complaint. In addition to answering the complaint, Winston counterclaimed, seeking a judgment declaring that she was entitled to the death benefits she had received. She subsequently moved the trial court for a summary judgment adopting as her own the arguments and exhibits contained in the summary-judgment motion filed by the Retirement System.

Following a hearing, the trial court entered a summary judgment in favor of the Retirement System and Winston. Patricia appeals following the denial of her post-judgment motion.

Standard of Review

“‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“ ‘An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fu-qua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).’ ”

Ex parte Turner, 840 So.2d 132, 135 (Ala.2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)).

Facts

Charles was employed as a security officer with the Alabama Department of Youth Services. As such, Charles participated in the Teachers’ Retirement System of Alabama. Charles had been married to Winston; they were divorced in August 1999. Following this divorce, Winston remained the designated beneficiary of retirement-system benefits payable in the event of Charles’s death.

On January 5, 2004, Charles completed Form TRSF-10 Application for' Retirement. Charles indicated in section 5 of Form TRSF-10 that he was retiring based on years of service and that his projected retirement date was March 1, 2004. In section 8 of Form TRSF-10, Charles designated Patricia as his beneficiary in the event of his death. Following the place for designating the beneficiary in the event of death, section 8 then provides:

“In the event the designated beneficiary listed above is different from that listed on my active account, I desire the change to be effeetive[:]
_ Upon the duly executed completion of this application filed with the Board of Control.
_ On the date my retirement benefit becomes due and payable.”

Charles checked the box indicating that he desired his beneficiary change to be effective “on the date [his] retirement benefit [became] due and payable.”

On February 21, 2004, several days before his projected retirement date, Charles died of natural causes. On May 27, 2004, Patricia inquired with the Retirement System as to the survivor benefits payable on Charles’s death. Patricia was notified that Winston was Charles’s designated beneficiary at his death and that his survivor benefits were paid to her.

Discussion

The issue presented for this Court’s review is the proper interpretation of the provision marked by Charles on section 8 of Form TRSF-10. The Retirement System argues that the provision on the form for a designation of a new beneficiary to become effective “on the date [the] retirement benefit becomes due and payable” means that the designation of the new beneficiary is to become effective on the employee’s scheduled retirement date. Charles’s retirement date was specified in section 5 of Form TRSF-10 as March 1, 2004. Thus, according to the Retirement System, Charles died before his designation of Patricia as his beneficiary became effective.

Patricia disagrees. Citing § 16-25 — 14(g)(2), Ala.Code 1975, she contends that Charles’s retirement benefits should be considered for purposes of Form TRSF-10 to have become “due and payable” upon his death. Section 16-25-14(g)(2), Ala.Code 1975, provides in part as follows:

“In case of the death of a member eligible for service retirement pursuant to subsection (a) of this section, an allowance shall be paid to the surviving spouse, or to such other person who the member shall have designated, in an amount that would have been payable if the member had retired immediately prior to his death .... ”

Patricia contends that, because the “allowance” described in § 16-25-14(g)(2) became “due and payable” at Charles’s death, Charles’s designation of her as his beneficiary in the Form TRSF-10 also became effective on the date of his death.

We see two problems with Patricia’s reasoning. First, § 16 — 25—14(g)(2) provides for a preretirement death, benefit (which the statute simply refers to as “an allowance”) to the surviving spouse in an amount equal to what the employee’s retirement could have been if the employee had retired before his death. The statute contemplates that the employee will have died before actually retiring, and, by definition, the benefits to be received under the statute will not be “retirement benefits.” It therefore is not accurate to say that Charles’s “retirement benefits” became “due and payable” on the date of his death.

Second, Patricia’s interpretation of section 8 of Form TRSF-10 would have the effect of collapsing what obviously was intended as two separate and different choices in that section into no real choice. It cannot reasonably be concluded that the drafter of the form intended this.

The question whether a contractual term is ambiguous or unambiguous is a question of law for the court to decide. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293 (Ala.1999). An ambiguity exists if the term is “reasonably susceptible to two or more constructions or there is reasonable doubt or confusion as to their meaning.” 747 So.2d at 309.

In this case, it is clear that the form, as witten, was intended to provide two separate and different choices to the employee: Choice one was an immediate change of beneficiary so that benefits would go to that newly designated beneficiary regardless of when the employee might die in relation to his or her scheduled retirement date. Choice two was intended to delay the effective date of the change of beneficiary until the scheduled retirement date.

Patricia’s interpretation causes the second choice in the form to have the same effect as the first choice. Thus, as noted, it collapses the two choices on the form into no real choice. It cannot reasonably be concluded that such a result was intended. We conclude that Patricia’s interpretation of the two choices stated in section 8 of Form TRSF-10 is unreasonable and, concomitantly, that that section is susceptible to only one reasonable interpretation— the interpretation provided by the Retirement System.

As the Retirement System explains in it brief to this Court:

“While [Charles] had submitted a request to change his beneficiary designation to be effective on a future date — the date of his retirement, [Charles] did not live until that date. Therefore, the [Retirement System] must pay the survivor benefits to the person designated at the time of his death. The [Retirement System] must rely on the clear and undisputed records and directives supplied to it by its participants. See Ex parte Employees’ Retirement System of Alabama, 767 So.2d 331 (Ala.2000). In that case, the Supreme Court addressed a challenge to a beneficiary designation stating:
“ When ERS receives a clear and unambiguous election-of-benefits form, we will not require ERS to look beyond the face of the form. This Court has applied this principle in eases involving other documents. This Court has stated that in interpreting a will “[e]xtrinsic evidence is not admissible to vary, contradict or add to the plain and unambiguous language of the will.” Cook v. Morton, 254 Ala. 112, 116, 47 So.2d 471, 474 (1950). This Court often has stated that it will not look beyond the four corners of an instrument unless the instrument contains latent ambiguities. Martin v. First Nat’l Bank of Mobile, 412 So.2d 250, 253 (Ala.1982).’

767 So.2d at 334-35. The Court went on to conclude:

“ ‘[W]e cannot sustain a posthumous challenge to a clear, unambiguous election of retirement benefits. To permit a surprised, disappointed, or disgruntled beneficiary to change an ERS member’s retirement benefits election that is clear on its face, after events have made the election undesirable, would weak havoc on the retirement system.’

767 So.2d at 335. The directives provided to [the Retirement System] by [Charles] were clear. His beneficiary designation was to be changed from [Winston] to Patricia Hamilton on the date of his retirement. Unfortunately, he did not live until that date. Therefore, [the Retirement System] had to pay the preretirement death benefits to [Winston].”

We agree and therefore conclude that the trial did not err in entering a summary judgment in favor of the Retirement System and Winston. That judgment is affirmed.

AFFIRMED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

BOLIN, J., concurs in the result.

      . No party has disputed the propriety of the Employees' Retirement System of Alabama being a named defendant.

      . We also note that Charles received a form entitled “Instructions for Payment Request.” In that form there is a subsection entitled "Death Prior to Retirement.” Under that subsection the following note appears: "The employee’s spouse will receive the benefit specified unless the employee has designated another individual as beneficiary.”

      . Section 16-25-14(g)(2), Ala.Code 1975, does not change the efficacy of the second alternative. The statute provides for benefits to go "to such other person who the member shall have designated." If the employee has designated a new person to be his or her beneficiary, but that designation by its own terms is not to become effective until the scheduled date of the employee’s retirement and the employee dies before that date, the newly designated person will not have been effectively designated as the beneficiary as of the date of the employee's death.


author: PARKER, Justice.

text:
    Ex parte HALE COUNTY BOARD OF EDUCATION. (In re Edgar Lee and Fannie Lee v. Hale County Board of Education et al.)
    1071094.
    Supreme Court of Alabama.
    Jan. 16, 2009.

      Ray Ward and Thomas W. Powe, Jr., of Ray, Oliver & Ward, L.L.C., Tuscaloosa, for petitioner.
    Josh J. Wright and Joshua L. Firth of Hollis, Wright & Harrington, P.C., Birmingham, for respondents.
   PARKER, Justice.

The question presented in this case is whether a county board of education is immune under § 14, Ala. Const.1901, from liability in an action against it alleging breach of an implied contract arising from the sale of an admission ticket to a sports event. The Hale County Board of Education (“the Board”) petitions this Court for a writ of mandamus directing the trial court to grant its motion for a summary judgment on such a claim brought against it by Edgar Lee and his wife, Fannie Lee, on the basis that the Board is immune.

I. Factual and Procedural Posture

On or about January 11, 2005, Edgar attended a basketball game at Akron East High School in Hale County. He purchased a ticket at the door and watched the game from the bleachers. When the game ended, he fell from the bleachers and sustained injuries that required medical attention. On January 4, 2007, the Lees sued the Board asserting various tort claims and a claim alleging breach of an implied contract. On April 1, 2008, the Board moved for a summary judgment, and on April 11, 2008, after a hearing, the trial court granted the motion and entered a summary judgment on all the claims against the Board except the breach-of-implied-contract claim, citing as the basis for retaining that claim Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976). The Board filed this petition for a writ of mandamus from the denial of its motion for a summary judgment on the breach-of-implied-contract claim. We grant the petition and issue the writ.

In their opposition to the Board’s petition for a writ of mandamus, the Lees argue that, although Sim.s stands for the premise that the State is immune from tort liability, that opinion also provides precedent for their position that “county boards of education can be sued for breach of contract on an implied contract wherein the [county board of education] fails to provide safe premises utilized in conducting athletic contests made available to the public.” Answer, at 1-2 (citing Sims, 337 So.2d at 1314).

II. Standard of Review

“ ‘ “While the general rule is that denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: “(1) a clear legal right to the order sought; (2)' an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).’ ”

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006) (quoting Ex parte Nall, 879 So.2d 541, 543 (Ala.2003)).

III. Legal Analysis

The Board claims that it has a clear legal right to the summary judgment. The Board based its motion for a summary judgment on § 14, Ala. Const.1901, which provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” In its brief in support of its summary-judgment motion, the Board provided a history of the evolution of current immunity law, quoting the informative discourse this Court set out in Ex parte Town of Lowndesboro, 950 So.2d 1203, 1205-06 (Ala.2006), explaining that the State of Alabama is immune from suit:

“ ‘In 1875, the Legislature repealed all acts granting the right to sue the State, and the Constitution of 1875 contained a provision, that “The State of Alabama shall never be made defendant in any court of law or equity.” Section 15, Const, of Alabama, 1875. Section 14 of the 1901 Constitution is the same as Section 15 of the 1875 Constitution. The adoption of the 1875 Constitution closed the door to litigants who had claims against the State, and the door has remained closed continuously by subsequent constitutional provisions and court decisions interpreting those provisions.’ ”

(Quoting Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 283 (1971) (footnote omitted).)

The Board cites Board of School Commissioners of Mobile County v. Architects Group, Inc., 752 So.2d 489, 491 (Ala.1999), for the proposition that a county board of education enjoys the same State immunity a State agency enjoys. In that case, this Court held that “ ‘[cjounty boards of education are not agencies of the counties, but local agencies of the state, charged by the legislature with the task of supervising public education within the counties.’ ” (Quoting Hutt v. Etowah County Bd. of Educ., 454 So.2d 973, 974 (Ala.984) (emphasis added).) The Lees, however, argue that Sims unequivocally held “that [the Etowah County Board of Education] is not immune from suit for breach of contract and thus [the Court] reverse[d] the decision of the trial court dismissing the complaints.” Sims, 337 So.2d at 1312.

In response, the Board argued in its brief in support of its motion for a summary judgment:

“The Court’s ruling in Sims is based on the legislature’s apparent determination that an exception to a county board of education’s immunity as provided by § 14 should exist for claims based in contract. That is, the legislature decided to waive a county board of education’s immunity as it applies to claims based upon contracts. See also, Belcher v. Jefferson County Bd. of Ed., 474 So.2d 1063 (Ala.1985), Palmer v. Perry County Bd. of Ed., 496 So.2d 2 (Ala. 1986). The Court’s decisions in these cases overlooked an important factor. Immunity is provided by the Constitution. Because the Constitution prohibits suits against the state and its agencies, the legislature cannot consent to such a suit. Armory Comm’n of Alabama v. Staudt, 388 So.2d 991, 992 (Ala.1980). The Court apparently realized this oversight in Williams v. John C. Calhoun Community College, 646 So.2d 1 (Ala.1994), when it held that a breach of contract action against state officers and employees was prohibited by § 14. Hutchinson v. Board of Trustees of University of Ala., 288 Ala. 20, 24, 256 So.2d 281, 284 (Ala.1971).”

Board’s brief, at 12. The Board asserts that Sims was based on the “legislature’s apparent determination that an exception to a county board of education’s immunity should exist for claims based in contract.” Petition, at 18. However, it was an earlier judicial detemination, based on statutory interpretation, that the right to sue implies a right to be sued that the Court in Sim,s relied on:

“By virtue of Alabama Code, Tit. 52, § 99 [now § 16-8^10, Ala.Code 1975]:

“ ‘The county board of education ... may sue and contract, all contracts to be made after resolutions have been adopted by the board and spread upon its minutes.... ’

“This right to sue carries with it the implied right to be sued, Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920), but only upon such matters as are within the scope of its corporate power. Morgan et al. v. Cherokee County Board of Education, 257 Ala. 201, 58 So.2d 134 (1952). Thus our cases recognize that a county board of education may be sued on its contracts.”

Sims, 337 So.2d at 1313. This exception to a county board of education’s immunity was limited to such matters as were within the scope of the board’s corporate power, but Sims also applied ticket-admission liability under an implied-contract theory directly to boards of education:

“That it is within the scope of the corporate power of a county board of education to authorize athletic contests between schools under their management and others, and to contract, expressly or by implication, with members of the public who wish to view such contests, is clear.
“In Alabama, ... a ticket to a place of public entertainment constitutes a contract between the ’ proprietor and the purchaser of the ticket; whatever contractual duties grow out of that relation, it has been held, must be performed by the proprietor or he must respond in damages for breach of contract. Interstate Amusement Co. v. Martin, 8 Ala. App. 481, 62 So. 404 (1913).”

Sims, 337 So.2d at 1313-14.

It is clear that under a still vital Sims, the trial court’s denial of the Board’s motion for a summary judgment on the Lees’ breach-of-implied-contract claim against it would be proper. Consequently, the Boai*d raises constitutional challenges to those portions of Sim,s that support the denial of its summary-judgment motion. The Board argues that “Sim,s was a departure from established law and is no longer controlling.” Petition, at 17. We agree. Our reasoning is based on the historical precedent on which Sims relied.

In deciding Sims, this Court relied on longstanding precedent: “This right to sue carries with it the implied right to be sued, Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920).” Sims, 337 So.2d at 1313. In Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920), a taxpayer sued the Jefferson County Board of Education, seeking to restrain the board from issuing warrants for the purpose of raising money to erect a school building. The trial court dismissed the suit, and this Court, on appeal, reviewed the issues raised, including one challenging the power of the board of education to issue the warrants. We wrote: “The county board of education is given the right to sue, and the implied, right to be sued .... We are of the opinion ... that this board is in fact a quasi corporation (Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730 [ (1875) ]).” 204 Ala. at 387, 85 So. at 777 (emphasis added).

In Askew v. Hale County, 54 Ala. 639 (1875), an individual sued Hale County, then newly created, for damages he suffered when a bridge he was crossing “careened,” throwing his horses and carriage from it, killing one horse, injuring the other, and damaging the carriage. The trial court dismissed the claims against the county. Although this Court sustained the demurrer on appeal, it wrote:

“It is true the statute declares, ‘every county which has been or may be established in this State, is a body corporate, and with power to sue and be sued in any court of record.’ — R.C. § 897.1[] Counties are necessarily invested with some corporate functions, and as to these, each county is ... a quasi corporation.”

54 Ala. at 643.

In deciding Kimmons, the Court relied on Askew to extend a county’s liability to suit to county boards of education. In so doing, the Court failed to consider that county boards of education are “local agencies of the state” and thus immune from suit under the constitutional bar of § 14. The Kimmons decision has resulted in significant confusion, and we now reassert the absolute constitutional immunity of county boards of education.

“ ‘County boards of education are not agencies of the counties, but local agencies of the state, charged by the legislature with the task of supervising public education within the counties.’ ” Board of Sch. Comm’rs of Mobile County, 752 So.2d at 491 (quoting Hutt, 454 So.2d at 974). “Under Ala. Const.0of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state.” Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000).

“For purposes of § 14 immunity, county boards of education are considered agencies of the State. Louviere v. Mobile County Bd. of Educ., 670 So.2d 873, 877 (Ala.1995) (‘County boards of education, as local agencies of the State, enjoy [§ 14] immunity.’). Thus, this Court has held that county boards of education are immune from tort actions. See Brown v. Covington County Bd. of Educ., 524 So.2d 623, 625 (Ala.1988); Hutt v. Etowah County Bd. of Educ., 454 So.2d 973, 974 (Ala.1984).”

Ex parte Jackson County Bd,. of Educ., 4 So.3d 1099,1102-03 (Ala.2008).

Because county boards of education are local agencies of the State, they are clothed in constitutional immunity from suit, and we overrule Sims and Kimmons, 204 Ala. at 387, 85 So. at 777 (“The county board of education is given the right to sue, and the implied right to be sued .... ”), to the extent that they and their progeny impose an implied “right to be sued” on county boards of education.

IV. Conclusion

The Board has demonstrated that it has absolute immunity from suit under § 14, Ala. Const.1901. Therefore, having no other adequate remedy and having properly invoked the jurisdiction of this Court to examine the reasoning behind the trial court’s refusal to perform its imperative duty, the Board has demonstrated that it has a clear legal right to a writ of mandamus directing the trial court to enter a summary judgment on the Lees’ breach-of-implied-contract claim against it.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and MURDOCK, JJ., concur.

      . The Lees also named as defendants Joseph F. Stegall, Jr., the superintendent of education for the Board; Frederica Jimerson, the principal of the high school; Donald Morrison, the director of maintenance for the Board; Myron Scott, the high school custodian; and various fictitiously named defendants. Scott was later dismissed by the Lees, and motions for a summary judgment were granted by the trial court as to the other individual defendants on April 11, 2008, leaving only the Board as a defendant. Petition, at 13.

      . Alabama Code 1975, § 11-1-2, contains nearly the same wording: "Every county is a body corporate, with power to sue or be sued in any court of record.”