author: MAXWELL, J,

text:
    Larry SMITH a/k/a Larry D. Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00160-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.

      Larry Smith, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   MAXWELL, J,

for the Court:

¶ 1. Larry Smith seeks post-conviction relief (PCR) from his guilty plea to armed robbery. He insists he did not waive indictment for the armed-robbery charge, and that his attorney was constitutionally deficient for allowing him to plead guilty to an unsubstantiated crime. But after review, we find Smith fails in his burden of presenting a sufficient record to support either of these claimed errors. Thus, we affirm the denial of his PCR motion.

Facts and Procedural History

¶2. On March 8, 2011, a grand jury returned an indictment against Smith for the murder of Jeffrey Shepherd, which included an enhancement for using a firearm during the killing. But rather than plead guilty to murder and face life imprisonment, Smith’s attorney was apparently able to negotiate a more favorable package deal, where Smith would plead guilty to manslaughter, accept the gun enhancement, and also plead guilty to an unindict-ed charge of armed robbery.

¶ 3. On November 10, 2011, Smith filed a plea petition, acknowledging his desire to waive indictment and plead guilty to a bill of information charging him with the armed-robbery of Shepherd. The armed-robbery charge came with a “plea offer” that he serve fifteen years for the robbery, with that sentence to run consecutively to his manslaughter sentence. And that same day, the circuit judge accepted his guilty pleas, and sentenced him to serve fifteen years for manslaughter, five years for the firearm enhancement, and fifteen years for armed robbery, all to run consecutively.

¶4. On March 2, 2012, Smith filed a PCR motion, arguing he was never indicted for armed robbery and he received ineffective assistance of counsel. The circuit court denied his PCR motion, and Smith appealed.

Discussion

¶ 5. In reviewing the denial of a PCR motion, “we review the trial court’s findings of fact for clear error and its determinations of law de novo.” Wilkerson v. State, 89 So.3d 610, 613 (¶ 7) (Miss.Ct.App.2011). The burden is on the PCR movant to show he or she is entitled to relief by a preponderance of the evidence. Id. We affirm dismissals or denials of PCR motions when the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Id. at 614 (¶ 7).

I. Waiver of Indictment

¶ 6. This case turns on the evidence or, more precisely, the lack thereof, supporting Smith’s PCR claim. Mississippi law is unmistakably clear that the PCR movant “bears the burden of presenting a record which is sufficient to undergird his assignments of error.” Williams v. State, 522 So.2d 201, 209 (Miss.1988) (citing Peterson v. State, 518 So.2d 632, 638 (Miss.1987)); Winters v. State, 473 So.2d 452, 457 (Miss.1985). But here, Smith has not done so.

¶ 7. Article 3, Section 27 of Mississippi’s Constitution allows the State to proceed against a defendant “by information ... where a defendant represented by counsel by sworn statement waives indictment[.]” Though Smith argues he did not voluntarily waive indictment before pleading guilty to armed robbery, he has not included a plea-hearing transcript to support his involuntary-plea claim, and his recent assertions are contrary to his prior sworn representations.

¶ 8. In denying the PCR motion, the circuit judge noted Smith was advised he was pleading guilty to an information and voluntarily signed a waiver of indictment. And we find Smith’s self-interested and unsupported claims are insufficient to overcome his prior contradictory representations in his plea petition — that he had “been indicted or ... waived indictment ... on a Bill of Information and wish[ed] to enter a plea of guilty” to the cited charge — “armed robbery.” Thus, we find Smith fails to meet his burden of showing the denial of a constitutional right.

II. Ineffective Assistance of Counsel

¶9. Smith next claims his guilty plea was involuntary because his attorney allowed him to plead guilty to an unsubstantiated charge. To prove ineffective assistance of counsel, Smith must show: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden remains with Smith to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). And under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

¶ 10. Smith’s two-fold attack on his attorney is somewhat confusing. First, he is apparently arguing that his attorney should have recognized he was not indicted for armed robbery and that he could not be convicted of the uncharged offense. But as mentioned, Mississippi’s Constitution allows a defendant, who is represented by counsel, to waive formal indictment and to proceed on a bill of information. Miss. Const, art. 8, § 27. So Smith’s failure to designate a sufficient record to disprove his knowing waiver of indictment is fatal not only to his involuntariness claim but also to this portion of his ineffective-assistance-of-counsel claim. Because Smith cannot overcome the presumption that it was reasonable for his attorney to negotiate a sentence far below the life sentence Smith faced had he gone to trial on the murder charge, his first argument rings hollow.

¶ 11. His second challenge is essentially that his lawyer should not have allowed him to plead guilty to an uncharged crime, because its elements could not be met. As Smith sees it, by not citing the specific amount of money Smith allegedly stole at gunpoint from Shepherd, the State missed a required element of armed robbery — a substantive weakness his lawyer should have caught. But “[tjhere is no requirement in the armed robbery statute that the property taken have any particular value.” Woods v. State, 883 So.2d 583, 587 (¶ 10) (Miss.Ct.App.2004) (citing Clay v. State, 811 So.2d 477, 479 (¶ 8) (Miss.Ct.App.2002)). The only requirement is that the personal property not belong to the accused. Id. (citing Miss.Code Ann. § 97-3-79 (Rev.2000)). And in the plea petition, the armed-robbery charge described that Smith unlawfully took “the personal property, currency of an unknoum value, of Jeffery Shepherd from his person by violence to his person through the use of a deadly weapon, a gun.” (Emphasis added). Thus, the property element was sufficiently pled. So the deficiency prong was not met.

III. Unpled Claim

¶ 12. Smith also urges that he suffered from a mental illness and was taking prescription medications at the time of the plea hearing. However, this claim was raised for the first time on appeal. Because Smith failed to raise it in his PCR motion and it was not before the circuit judge, it is procedurally barred from our review. See Bell v. State, 117 So.3d 661, 663 n. 1 (Miss.Ct.App.2013) (citing Hamilton v. State, 44 So.3d 1060, 1065 (¶ 15) (Miss.Ct.App.2010)). Still, aside from this bar, like his other allegations, this claim is also self-serving and unsupported by record evidence. McCray v. State, 107 So.3d 1042, 1046 (¶ 15) (Miss.Ct.App.2012). It also contradicts his sworn representation in his plea petition that he was “mentally competent, and not ... under the influence of any drugs or alcohol,” when requesting the court’s permission to waive indictment and plead guilty to the armed-robbery charge.

¶ 13. For these various reasons, we deny Smith’s PCR motion.

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

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


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Gordon O’Neal WASH a/k/a Gordon Wash, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01765-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.

      Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. During his trial for possession of a weapon by a convicted felon and simple assault on a peace officer, Gordon Wash became dissatisfied with his attorney and decided to represent himself. The trial court allowed him to do so, with the assistance of his court-appointed counsel. Wash was found guilty on Count I, possession of a weapon by a convicted felon, and guilty on Count II, but of the lesser offense of disorderly conduct. Wash now appeals, arguing he is entitled to a new trial because (1) the trial court failed to make an on-the-record determination as to whether he knowingly and intelligently waived his right to counsel; and (2) his counsel, who assisted him during trial, was ineffective. Finding no reversible error, we affirm.

FACTS

¶ 2. On September 2, 2008, Wash and his then-girlfriend Monica Nix got into an argument. Nix decided to leave the house with her two children, one of whom was Wash’s daughter. As Nix got into her car, she “heard a pow,” and saw “a little steam” rising from the hood of her car. Although Nix did not see Wash shoot the car, Wash and his brother were the only other people outside the house with her, and Nix had only argued with Wash. Nix testified that she saw Wash holding a gun while they were inside the residence, and that Wash had been drinking. Once she calmed down, Nix got into her car and went to a friend’s house. Wash followed, and the altercation continued. Nix left the children with the friend, and went to Se-baster’s Store in Hurley, Mississippi. Wash again followed.

¶ 8. Deputy Gene Starr with the Jackson County Sheriffs Department responded to a call regarding potential domestic violence at Sebaster’s Store. As he arrived, a man came out of the store and quickly walked in the opposite direction after seeing Deputy Starr. Deputy Starr testified that “about five seconds later,” a female came out of the store, stating: “That MF just shot at me.” She pointed at Wash, and told Deputy Starr that Wash “had a gun in his pants.” Deputy Starr pursued Wash, who ran toward the woods. Deputy Starr caught up to Wash, and a struggle ensued. Deputy Starr sprayed Wash with pepper spray. He then threatened to use his Taser, at which point Wash surrendered. Deputy Starr did not find a gun on Wash, but a nine-millimeter handgun was found on the ground near Sebaster’s Store. Two .38-caliber bullets were found in Wash’s sock.

¶ 4. Wash was indicted on April 15, 2009, on charges of possession of a weapon by a convicted felon and simple assault on a peace officer. His trial was set to begin on August 18, 2009. When Wash failed to appear on this date, the assistant public defender appointed to represent Wash informed the trial court that Wash had gone “to find him a new lawyer.” A bench warrant was issued for Wash’s arrest, and the trial was rescheduled. Wash failed to appear for trial on September 4, 2009, and again on October 9, 2009. After various delays, Wash appeared in court on October 5, 2010. The trial was delayed again, pending a mental evaluation. Psychologist Dr. Stefan Massong attempted to conduct the evaluation, but Wash refused to participate. Wash explained that the scheduled evaluation “went past [his] trial date,” and it was simply a way for his attorneys to continue “detaining” him. The judge explained that the evaluation was not past his trial date, and the court was detaining him, not his attorneys. Wash insisted that the evaluation was unnecessary and requested a trial date. His request was granted, and his two-day trial began on February 7, 2012, in the Jackson County Circuit Court. Wash represented himself, with the assistance of the court-appointed public defender. He was found guilty of possession of a weapon by a convicted felon and disorderly conduct. He was sentenced to ten years for the possession charge and six months for the disorderly-conduct charge, all in the custody of the Mississippi Department of Corrections. He was also ordered to pay a $1,000 fine on each count. Wash’s post-trial motions were denied, and he now appeals.

ANALYSIS

1. Whether the trial court erred in allowing Wash to represent himself, a. Self-representation

¶ 5. Wash argues the trial court failed to ensure that he “knowingly and voluntarily” entered into self-representation under Uniform Rule of Circuit and County Court 8.05. Wash asserts that an on-the-record examination was especially needed in this case because of the prior order for a mental evaluation, which Wash refused to undergo. Because the right to self-representation is a constitutional guarantee under the Sixth Amendment, our standard of review is de novo. Hearn v. State, 3 So.3d 722, 732 (¶ 25) (Miss.2008).

¶ 6. On the day of trial, Wash appeared in court, represented by public defender Brice Kerr. After Kerr completed his opening statement on Wash’s behalf, Wash asked the trial judge if he could represent himself. The jury was excused from the courtroom, and Wash explained that Kerr had refused to accept his theory of defense. Wash believed he could not be found guilty of being a felon in possession of a firearm since his prior felony was “old” and “nonviolent.” Wash referenced a 1995 felony conviction for drug possession. The judge explained that Wash’s theory was incorrect, as Mississippi Code Annotated section 97-37-5 ' (Supp.2012) makes it unlawful for any convicted felon to possess a weapon. The judge then asked Wash what he wanted to do next. Wash first stated that he wanted another attorney because of Kerr’s unwillingness to present his defense. Wash then argued he had a conflict of interest with Kerr due to a prior matter. The trial court found no merit to Wash’s arguments, noting that Kerr was Wash’s second court-appointed attorney, and that Wash could have hired his own counsel. Wash then moved for a change of venue. As there was no ground to change venue, the motion was denied. Wash then pled “no contest” to the charges. When the trial court explained that a no-contest plea was, in effect, a guilty plea, Wash changed his mind.

¶ 7. Wash continued to insist on self-representation. The judge conceded, and the following exchange occurred:

THE COURT: ... If you want to represent yourself, you have that right. I don’t advise that you do that[,] but you have the right to do that.
WASH: Yes, I want to represent myself.
THE COURT: And Mr. Kerr is going to sit right there with you through the whole trial to make sure you don’t say anything you shouldn’t, to give you advice, if you want to represent yourself. But you have to follow the rules of evidence.
WASH: Yes, ma’am.

¶ 8. Before a trial court allows a defendant to represent himself, the defendant must be competent, and the requirements of Rule 8.05 must be met to determine whether the choice is knowing and voluntary. Rule 8.05 states:

When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, the state will appoint one free of charge to the defendant to defend or assist the defendant in his/her defense.
2. The defendant has the right to conduct the defense and that the defendant may elect to conduct the defense and allow whatever role (s)he desires to his/her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.
5. Other matters as the court deems appropriate.

After instructing the defendant and ascertaining that the defendant understands these matters, the court will ascertain if the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine if the defendant has exercised this right knowingly and voluntarily, and, if so, make the finding a matter of record. The court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney, but all disputes between the defendant and such attorney shall be resolved in favor of the defendant.

¶ 9. We find that Wash did not proceed pro se as contemplated by Rule 8.05; thus, there is no need to determine whether Wash “knowingly and voluntarily” waived his right to counsel. See Hearn, 3 So.3d at 734 (¶ 29). Wash “was never left to his own defense” as a pro se litigant. Id. Rather, Kerr “functionally remained counsel throughout trial in the form of ‘hybrid representation.’ ” Id.

¶ 10. “Hybrid representation consists of ‘the participation by an attorney in the conduct of the trial when the defendant is proceeding pro se.’ ” Id. (quoting Metcalf v. State, 629 So.2d 558, 562 (Miss.1993)). The concept of hybrid representation stems from the Mississippi Constitution, Article 3, Section 26, which states that “[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both .... ” (Emphasis added). We consider the following factors to determine whether pro se or hybrid representation occurred:

The defendant’s accessibility to counsel; whether and how often he consults with counsel up to the point of the request; the stage of trial at which he requests a participatory role in his defense; the magnitude of the role he desires to assume; whether the trial court encourages immediate and constant accessibility of counsel; and the nature and extent of assistance of counsel which has been provided up to the point of the request, including both substantive and procedural aid.

Hearn, 3 So.3d at 734 (¶ 29).

¶ 11. Like the defendant’s court-appointed attorney in Hearn, Kerr was present at Wash’s counsel table throughout the trial, and Wash consulted with him on multiple occasions. See id. at 734 (¶ 30). Kerr filed pretrial motions for Wash, including motions in limine, and he represented Wash at several pretrial hearings. See id. Kerr conducted voir dire examination of the potential jurors. See id. Wash conferred with Kerr about various questions to ask witnesses, and conferred with him before deciding to testify on his own behalf. See id. Kerr examined Wash on the stand. See id. at 735 (¶ 32). Upon the trial court’s suggestion and with Wash’s consent, Kerr divided the time for closing argument with Wash. See id. Kerr proposed all jury instructions for Wash, and objected to multiple instructions offered by the State. See id. He represented Kerr during sentencing, and was instructed by the trial court to explain to Wash the process of filing an appeal. See id. In addition, Kerr made the opening statement at trial. He raised objections throughout trial, as well as conducted the cross-examination of Deputy Starr. And he moved for a directed verdict at the close of the State’s case-in-chief.

¶ 12. Like the defendant in Hearn, Wash “assumed a substantial role in his defense....” Id. at (¶ 31). However, “the totality of the circumstances” must be considered. Id. at (¶ 33). As in Hearn, Kerr “was available throughout the entire trial and participated on several occasions. His role was ‘not merely that of a skilled bystander, but of a substantive litigator.’ ” Id. (quoting Metcalf, 629 So.2d at 565). Since Wash was “never ... fully without the assistance of counsel, [he] cannot now complain about inadequate warnings when he received the best of both worlds — the assistance of counsel while conducting his own defense.” Id,.

¶ 13. Even if no hybrid representation were found, the requirements of Rule 8.05 were met. Wash was informed multiple times by the trial court of his right to an attorney. Wash was told he was required to comply with the rules of evidence during trial. And he was allowed access to his former counsel for advice throughout the trial. While Wash was not specifically told that proceeding pro se usually increases the likelihood of an unfavorable outcome, the trial judge did specifically advise him against self-representation. The trial judge also told Wash: “[The public defenders] that we have [are] good lawyers[,] and they know what they’re doing. I can assure you, they know far more about what they’re doing than you do.” See Jackson v. State, 1 So.3d 921, 925 (¶¶ 7-8) (Miss.Ct.App.2008) (similar warning found sufficient).

¶ 14. Because Wash received substantive assistance from his counsel in the form of hybrid representation, no on-the-record examination was necessary to determine whether he “knowingly and voluntarily” waived the right to counsel. Regardless, the trial court made it sufficiently clear to Wash the requirements and perils of self-representation. This issue is without merit.

b. Competency to Stand Trial

¶ 15. Wash also argues that he was never deemed competent to stand trial since he refused to participate in the court-ordered mental evaluation.

¶ 16. Uniform Rule of Circuit and County Court 9.06 states in part:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with [section] 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial.

¶ 17. Our supreme court has held that “the standard for competence to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.” Hairston v. State, 4 So.3d 403, 405 (¶ 5) (Miss.Ct.App.2009) (quotations omitted). Wash demonstrated during trial that he could consult with his attorney, and that he reasonably understood the proceedings. He was able to question witnesses and conduct cross-examination. When he could not effectively word a question, he asked Kerr for assistance. While Wash’s theory of defense was not properly based on the law, the law was nonetheless explained to him, and he still chose to proceed under that theory. His decision to do so did not make him incompetent.

¶ 18. The defendant in Wheat v. State, 420 So.2d 229, 233 (Miss.1982), also refused to participate in a mental evaluation, but was allowed to stand trial. Defendant Wheat’s counsel initially requested the mental evaluation, but later withdrew the request. Id. The prosecution then requested a mental evaluation. Id. During a hearing, Wheat told the trial court: “I think I’m sane.... If the [c]ourt orders [a mental evaluation,] I’m going to refuse it. I’m ready to go to trial Monday.” Id. The trial court questioned Wheat, and found no need for an evaluation. Id. at 237. The Mississippi Supreme Court found no error in the trial court’s decision to allow Wheat to stand trial. Id. at 238.

¶ 19. After Wash refused to participate in the mental evaluation, no other question was raised regarding his competency, and no objection was made to his ability to stand trial. The mental evaluation was ordered on October 4, 2010, and trial occurred almost a year and a half later on February 7, 2012. The trial judge was able to observe Wash’s behavior, and did not find that he was incompetent at the time of trial. This issue is without merit.

2. Whether Wash received effective assistance of counsel.

¶ 20. Wash next argues that his trial counsel provided ineffective assistance of counsel.

¶ 21. Generally, self-representation will preclude a claim that stand-by counsel rendered ineffective assistance. In Jackson v. State, 943 So.2d 720, 729 (¶ 29) (Miss.Ct.App.2006), the Court held:

“It has been established by the Mississippi Supreme Court that as stand-by counsel, a defense attorney is ‘without authority, discretion or control!,] and the charge that he rendered constitutionally ineffective assistance is without merit.’ ” Scarbough v. State, 893 So.2d 265, 273 (¶ 27) (Miss.Ct.App.2004) (quoting Estelle v. State, 558 So.2d 843, 847 (Miss.1990)). Furthermore, we noted that “Estelle held that[,]where a defendant declines appointed counsel and proceeds to represent himself with appointed counsel only standing by to provide assistance if called upon[,] ... the defendant will not be heard to complain on appeal of ineffective assistance of counsel.” Id. ... As Jackson voluntarily assumed the role of trial counsel, he may not claim that his adviser failed to provide him with adequate representation. Simply put, Jackson may not now benefit on appeal from his own ineptitude at trial. This issue is without merit.

¶22. Here, as discussed above, Wash insisted on self-representation but actually received a hybrid representation at trial. Therefore, we consider this along with the principle that our appellate courts are hesitant to address ineffective-assistance-of-counsel claims on direct appeal. In Jackson v. State, 73 So.3d 1176, 1181 (¶ 20) (Miss.Ct.App.2011), this Court held:

[T]he merits of a claim of ineffective assistance of counsel brought on direct appeal should be addressed only when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the-trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). The supreme court has held:
The question presented is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial, sua sponte on the basis of trial counsel’s performance. “Inadequacy of counsel” refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice. Parham v. State, 229 So.2d 582, 583 (Miss.1969).
Id. at 1102 (¶ 8). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. at 1101 (¶ 5). Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 23. As a result, we conclude that Wash’s ineffective assistance of counsel claim would be more appropriately brought during post-conviction-collateral-relief proceedings. We note that the State has not stipulated that the record is adequate, and we find no obvious deficiencies that imposed a duty upon the circuit court to declare a mistrial. As such, we deny relief on this issue without prejudice so that Wash may, if he desires to do so, present a claim of ineffective assistance of counsel in a motion for post-conviction collateral relief.

¶ 24. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, AND COUNT II, DISORDERLY CONDUCT, AND SENTENCE OF SIX MONTHS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $1,000 FINE ON EACH COUNT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR, and JAMES, JJ., CONCUR. BARNES, J„ CONCURS IN PART AND IN THE RESULT.

      . According to the record, the crime occurred in 1995, and the conviction occurred in 2000.

      . Wash was represented by counsel on all pretrial matters. Assistant public defender Amanda Galle represented him until Wash became dissatisfied with her representation. Kerr then took over as counsel.


author: MAXWELL, J.,

text:
    Richard Ward PETERSON, Appellant/Cross-Appellee v. Josephine C. PETERSON, Appellee/Cross-Appellant.
    No. 2012-CA-00228-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.

      Clifford C. Whitney III, J. Mack Varner, Vicksburg, attorneys for appellant.
    Mel J. Breeden Jr., Jackson, attorney for appellee.
    Before IRVING, P.J, ISHEE, MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Five years after Richard Peterson’s divorce from his wife Josephine, health problems forced his retirement. Because his income had substantially decreased, he sought a reduction of his alimony obligation. And the chancellor granted a modification, reducing his periodic alimony from $2,500 to $1,800 per month. On appeal, Josephine insists any downward modification of alimony was inappropriate because Richard’s retirement was anticipated. However, Richard counters, arguing that not only were his disabling injuries and resulting retirement unforseen, but also the $700 reduction was simply not enough.

¶2. We agree with the chancellor that Richard’s unanticipated, health-based retirement was an after-arising, material change in circumstances. So an alimony modification and reduction was appropriate. But it is not apparent that the chancellor considered Richard’s ability to pay the decreased award, since the unchallenged figures representing each party’s income and expenses show Richard suffers an almost $1,000 monthly deficit after paying alimony. Thus, we must remand for the chancellor to consider Richard’s ability to pay this amount, or any amount of alimony, while maintaining as normal a life as possible with a decent standard of living.

Facts and Procedural History

¶ 3. On July 21, 2005, Richard and Josephine’s thirty-three-year marriage ended in divorce. The chancellor found there were irreconcilable differences between the couple and ordered Richard to pay Josephine $2,500 in monthly periodic alimony. At the time of the 2005 divorce, Richard (then fifty-eight years of age) worked full time as a civilian engineer with the Army Corps of Engineers in Vicksburg, Mississippi. According to Richard, he planned to work until he reached at least age seventy-five. But unexpected health problems forced him to retire at the age of sixty-four. (Richard’s doctor, Dr. Paul Pierce, testified at trial that Richard was totally and permanently disabled.) As a result, on October 19, 2010, Richard petitioned to reduce or terminate his alimony obligation.

¶ 4. On January 3, 2012, the chancellor entered an order decreasing Richard’s monthly alimony obligation from $2,500 to $1,800. Richard appealed, arguing the reduction was not enough. And Josephine cross-appealed, insisting Richard’s retirement was foreseeable, so the alimony obligation should not have been modified, or alternatively, that the reduced obligation should be affirmed.

Standard of Review

¶ 5. An award of “[ajlimony, if allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay.” Gray v. Gray, 562 So.2d 79, 88 (Miss.1990) (emphasis added). “The amount of an alimony award is largely within the discretion of the chancellor^]” Magee v. Magee, 754 So.2d 1275, 1279 (¶ 7) (Miss.Ct.App.1999). Unless the chancellor is in manifest error and abused her discretion, we will not reverse. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993) (citing McEachern v. McEachern, 605 So.2d 809, 814 (Miss.1992); Cherry v. Cherry, 593 So.2d 13,19 (Miss.1991)).

Discussion

I. Chancellor’s Decision to Reduce Alimony Award

¶ 6. Because Josephine’s cross-appeal challenges the chancellor’s initial decision that an unforeseeable material change in circumstances occurred, we address it first.

A. Chancellor’s Ability to Modify

¶ 7. With respect to requests for modification of a previously ordered alimony award, chancellors are vested with general statutory authority to modify divorce decrees and make “new decrees as the case may require.” Miss.Code Ann. § 93-5-23 (Rev.2013). Within this broad authority is the more specific power to increase, decrease, or terminate periodic alimony payments. Hubbard v. Hubbard, 656 So.2d 124, 129 (Miss.1995). When asked to modify periodic alimony awards, chancellors must first determine if an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree. Holcombe v. Holcombe, 813 So.2d 700, 703 (¶ 11) (Miss.2002). If not, modification is not permitted.

¶ 8. However, if a substantial unanticipated change has in fact occurred, the chancellor should then consider the Armstrong factors to determine the appropriate amount of alimony. Holcombe, 813 So.2d at 703 (¶ 12) (citing Armstrong, 618 So.2d at 1280). In evaluating these factors when “deciding whether to modify periodic alimony,” chancellors should “compar[e] the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.” Steiner v. Steiner, 788 So.2d 771, 776 (¶16) (Miss.2001) (citing Anderson v. Anderson, 692 So.2d 65, 72 (Miss.1997); Tilley v. Tilley, 610 So.2d 348, 353-54 (Miss.1992); Armstrong, 618 So.2d at 1280). As with any alimony consideration, the chancellor must consider the wife’s accustomed standard of living, less her own resources, as well as the husband’s ability to pay. Gray, 562 So.2d at 83.

B. Richard’s Unanticipated Retirement

¶ 9. Josephine argues the chancellor erred in finding Richard’s early retirement was unanticipated when they divorced in 2005. While Josephine is correct that the material change “must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement^]” Austin v. Austin, 766 So.2d 86, 90 (¶ 19) (Miss.Ct.App.2000), there is record evidence that Richard intended to work until he was seventy-five but was rendered disabled by a litany of unforseen serious health calamities.

¶ 10. After the divorce, Richard fell and broke his patella and had two knee surgeries. Also mentioned in the record are his multiple joint injuries and his recently developed degenerative arthritis in both hips, both knees, and left shoulder. And since the divorce, Richard has torn a bicep, developed spinal stenosis in his lower back, undergone a total hip replacement, and had rotator-cuff surgery.

¶ 11. The extreme pain he claims he has suffered has inhibited his ability to walk, requiring him to use a cane. Richard’s doctor testified that Richard was severely, permanently, and totally disabled, and that he would not be able to work again. Both Richard and his physician maintained that these health problems occurred after his divorce. From this, the chancellor determined Richard’s post-divorce health problems resulted in his unanticipated early retirement.

¶ 12. We have previously held that a payor’s retirement due to unforeseeable health issues constituted a material change sufficient to modify an alimony award. See Broome v. Broome, 75 So.3d 1132, 1140-41 (¶¶ 26-28) (Miss.Ct.App.2011); Clower v. Clower, 988 So.2d 441, 444-45 (¶ 9) (Miss.Ct.App.2008) (holding that husband’s retirement due to health problems and loss of income constituted a material change in circumstance, justifying a reduction in alimony). Because there is record support that Richard’s later-arising injuries forced his retirement, the chancellor did not abuse her discretion in finding that a material, unanticipated change in Richard’s circumstances had occurred since the divorce.

II. Amount of Modified Alimony Award

¶ 13. We next turn to Richard’s suggestion that the chancellor was wrong to not reduce his alimony by more than $700.

¶ 14. Permanent periodic alimony is “a substitute for the marital-support obligation.” Deborah H. Bell, Mississippi Family Law § 9.02[1] (2005). It arises from the duty of the husband to support his wife. McDonald v. McDonald, 683 So.2d 929, 931 (Miss.1996). “Consistent with Armstrong, a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.” Rogillio v. Rogillio, 57 So.3d 1246, 1250 (¶ 11) (Miss.2011). But “alimony awards in excess [of] a spouse’s ability to pay are ‘per se unreasonable.’ ” Sheffield v. Sheffield, 55 So.3d 1142, 1145 (¶ 9) (Miss.Ct.App.2011) (quoting Yelverton v. Yelverton, 961 So.2d 19, 28 (¶ 18) (Miss.2007)).

¶ 15. Having found a material change, the chancellor correctly moved to the next step and considered the Armstrong factors, comparing the parties’ financial positions at the time of the modification request to their former positions when divorced. See Steiner, 788 So.2d at 776 (¶ 16). But the chancellor did not make any findings about Richard’s ability to pay. And on appeal, Richard suggests that even after the $700 alimony reduction, he still endures a monthly deficit and is unable to pay the reduced award.

¶ 16. From our review, it is obvious the chancellor performed a detailed financial analysis of the parties’ incomes and expenses, health and earning capacities, needs, assets, and tax consequences, as required. However, considering these unchallenged figures, it is not apparent from the record that Richard was financially able to pay the reduced alimony obligation.

A. Comparing Relative Incomes and Expenses

¶ 17. The primary and most tedious of the chancellor’s detailed financial comparisons concerned Richard’s and Josephine’s positions at both the time of divorce and at the time of the requested alimony reduction. The ultimate figures relied on by the chancellor — which neither party disputes — show that even after the reduced alimony award, Richard endures a nearly $1,000 monthly deficit.

1.Josephine’s 2005 Income and Expenses

¶ 18. When the couple divorced in 2005, Josephine worked part-time as a substitute teacher. Her total monthly gross income was $1,050. Josephine’s only deduction was $18.05 for Social Security, making her adjusted gross monthly income $1,031.95. Her monthly expenses were $2,865.22. After the chancellor ordered Richard to pay Josephine $2,500 per month in periodic alimony, she was left with a surplus of $666.78.

2.Richard’s 2005 Income and Expenses

¶ 19. In 2005, Richard was employed and receiving a salary as a civil engineer. He also received medical-disability income from the U.S. Army. Richard’s total monthly gross income was $9,162. After deductions, his adjusted gross income was $6,111. Figuring in his monthly expenses of $2,232.15 and his $2,500 period alimony obligation to Josephine, Richard was left with a surplus of $1,378.85.

3.Josephine’s 2012 Income and Expenses

¶ 20. At the time of the modification proceedings, Josephine rarely worked as a substitute teacher due to cut-backs. Her monthly income consisted of $120 from substitute teaching; $30 from dividends and interest; and $2,407.85 from the civil-service retirement ($2,499.50 was deducted from Richard’s income). Before alimony, Josephine’s total gross monthly income was $2,557.85. With the $2,500 periodic alimony awarded to her in the 2005 divorce, her total gross monthly income was $5,057.85.

¶ 21. The only deduction reported was $300 for federal income taxes. Thus, the chancellor determined that Josephine’s adjusted gross monthly income was $4,757.85, which included the $2,500 in periodic alimony. Josephine’s total monthly expenses were $3,616. Taking Josephine’s adjusted gross monthly income ($4,757.85, which included the $2,500 in periodic alimony), less her monthly expenses ($3,616), Josephine was left with a surplus of $1,141.85. After the chancellor granted a $700 reduction in alimony, Josephine was left with a surplus of $441.85.

J. Richard’s 2012 Income and Expenses

¶ 22. At the time of the 2012 modification hearing, Richard was retired. His monthly income consisted of $7,283.41 in civil service retirement, plus $1,479 in army retirement. So his total monthly gross income was $8,762.41.

¶ 23. There were various deductions for Josephine’s benefit: $201.30 for a life-insurance premium ($110,000 policy), $775 for a life-insurance premium ($496,800 option B policy), $2,499.50 in civil-service retirement ($2,407.85 of which was income to Josephine after Richard retired), $705.84 for the civil service survivor-annuity premium, and $94.41 for the army life-insurance premium. An additional $415.68 was deducted for Richard’s personal health-insurance premium. And Richard’s total monthly deductions were $4,691.73. So Richard’s total adjusted gross monthly income was $4,070.68. And his claimed total monthly expenses were $3,209.

¶ 24. These deduction left Richard with a surplus of $861.68. But after factoring the recently reduced alimony obligation— $1,800 — Richard purportedly found himself with a monthly deficit of $938.32.

B. Richard’s Inability to Pay

¶25. While the chancellor may have indeed considered Richard’s financial ability to pay while suffering the apparent monthly deficit, she made no explicit mention of it. And we cannot determine that the chancellor implicitly considered Richard’s ability to pay, since the unchallenged figures representing each party’s income and expenses show Richard endures an almost $1,000 monthly deficit after paying alimony.

¶ 26. Because “alimony awards in excess [of] a spouse’s ability to pay are ‘per se unreasonable,’ ” Sheffield, 55 So.3d at 1145 (¶ 9), we remand for the chancellor to consider Richard’s ability to pay this amount, or any amount of alimony, while maintaining as normal a life as possible with a decent standard of living. See Brendel v. Brendel, 566 So.2d 1269, 1272 (Miss.1990).

¶ 27. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS REVERSED AND REMANDED ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      .The Armstrong factors are:
      1. The income and expenses of the parties;
      2. The health and earning capacities of the parties;
      3. The needs of each party;
      4. The obligations and assets of each party;
      5. The length of the marriage;
      6. The presence and absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
      7. The age of the parties;
      8. The standard of living of the parties, both during the marriage and at the time of the support determination;
      9. The tax consequences of the spousal support order;
      10. Fault or misconduct;
      11. Wasteful dissipation of assets by either party; or
      12. Any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.

        Armstrong, 618 So.2d at 1280.


author: ISHEE, J.,

text:
    In the Matter of the ESTATE OF Joseph Lucius WHITLEY, Deceased: Elizabeth Marie Whitley, Administrator, Appellant v. Rebecca Lynn Love, Executor of the Estate of Victoria S. Whitley, Deceased, Appellee.
    No. 2012-CA-01159-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Davey L. Tucker, attorney for appellant.
    Paul E. Rogers, Jackson, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2008, Joseph Lucius Whitley passed away. His wife of sixteen months, Victoria S. Whitley, passed away approximately one month later. Prior to her passing, she paid for Joseph’s funeral expenses. She also began administration of his estate. After Victoria’s passing, Joseph’s daughter, Elizabeth Marie Whitley, became administrator of Joseph’s estate. Rebecca Love became executor of Victoria’s estate. Rebecca soon filed a claim against Joseph’s estate for reimbursement of Joseph’s funeral expenses. Elizabeth opposed the claim, asserting that the claim had been untimely filed outside the ninety-day window for creditors to file claims against the estate. The chancery court granted Rebecca’s claim in part and denied the claim in part. The reimbursement of funeral expenses was granted, but the amount claimed by Rebecca was contradicted by the evidence. Accordingly, the chancellor reduced the amount of funeral expenses owed to Rebecca, but ordered that Joseph’s estate reimburse Victoria’s estate for the funeral expenses owed. Elizabeth now appeals, claiming the chancery court erred in granting Victoria’s estate any reimbursement for funeral expenses. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Joseph and Victoria were married for approximately sixteen months prior to Joseph’s passing. After his passing, Victoria made funeral arrangements and paid for Joseph’s funeral. She passed away a month after Joseph died.

¶ 8. Rebecca, as executrix of Victoria’s estate, filed a claim against Joseph’s estate for reimbursement of Joseph’s funeral expenses. Elizabeth, as administratrix of Joseph’s estate, opposed the claim, asserting that it was untimely. Elizabeth’s assertion was based on the ninety-day time limit for creditors to file claims against Joseph’s estate, which had already expired when Rebecca filed the claim.

¶ 4. The Hinds County Chancery Court heard the case, and determined that funeral expenses did not fall within the purview of the ninety-day time limit for creditors because such expenses are deemed to be related to the administration of the estate. Aggrieved, Elizabeth appeals the chancery court’s determination. She claims the chancery court erred in granting Victoria’s estate reimbursement for Joseph’s funeral expenses because the ninety-day time limit had expired and because Victoria and Rebecca acted as officious volunteers and meddlers in the administration of Joseph’s estate. She further challenges the reimbursement of funeral expenses based on a prenuptial agreement executed by Joseph and Victoria.

DISCUSSION

¶ 5. We are limited in our review of a chancellor’s judgment. Howard v. Gunnell, 63 So.3d 589, 597 (¶ 16) (Miss.Ct.App.2011). “We acknowledge that this Court will not disturb a decision of a chancellor absent a finding that he or she is manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Id. (citation and quotation omitted). Nonetheless, we review questions of law de novo. Rousseau v. Rousseau, 910 So.2d 1214, 1217 (¶ 8) (Miss.Ct.App.2005).

¶6. However, it is well settled that an issue not raised and litigated at the trial-court level may not be argued on appeal. Estate of Gibson ex. rel. Gibson v. Magnolia Healthcare, Inc., 91 So.3d 616, 632 (¶ 47) (Miss.2012); Winfield v. Brandon HMA, Inc., 100 So.3d 974, 981 (¶ 24) (Miss.Ct.App.2012). All issues presented to an appellate court must be fully supported by evidence in the record. See Kelly v. Int’l Games Tech., 874 So.2d 977, 981 (¶ 17) (Miss.2004).

¶ 7. Having reviewed the record, it is clear that Elizabeth’s claim regarding the alleged actions of Victoria and Rebecca as officious volunteers or meddlers in the administration of Joseph’s estate is procedurally barred. Likewise, her allegation as to a prenuptial agreement barring Victoria’s estate’s claim to funeral expenses is also procedurally barred. Elizabeth failed to properly present these issues to the chancery court. It follows that she has not provided this Court with a substantial record on which we may review these issues now.

¶ 8. Elizabeth’s assertion that the claim for reimbursement of funeral expenses should be barred as untimely is based upon Mississippi Code Annotated section 91-7-151 (Rev.2004). The statute reads in part:

All claims against the estate of deceased persons, whether due or not, shall be registered, probated[,] and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator.

Id. At first glance, it would appear Elizabeth’s appeal bears merit by virtue of this statute. However, a review of case law interpreting the statute proves otherwise.

¶ 9. The Mississippi Supreme Court established in 1938 that a claim for funeral expenses is not required to be probated because funeral expenses are considered to be part of the cost of the administration of an estate. Tom E. Taylor Undertaking Co. v. Smith’s Estate, 183 Miss. 45, 46, 183 So. 391, 391 (1938). The supreme court noted that the requirement to probate a claim “applies alone to obligations incurred by the decedent in his lifetime.” Id. The case has never been overruled or modified. The holding and the general notion was, in fact, discussed and upheld as recently as 2010 by the United States District Court for the Southern District of Mississippi, and later affirmed by the United States Court of Appeals for the Fifth Circuit in 2012. Bell v. Texaco, Inc., No. 5:09cv192KS-MTP, 2010 WL 1490144, at *1 (S.D.Miss. April 13, 2010); Bell v. Texaco, Inc., 493 Fed.Appx. 587, at 592 (5th Cir.2012).

¶ 10. The law is clear that the ninety-day time limit in which creditors must probate claims against an estate does not apply to claims for reimbursement of funeral expenses. Accordingly, the chancery court did not err in its judgment. This issue is without merit.

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

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


text:
    Channing A. LARRY a/k/a Channing Larry, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00583-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      J. Dudley Williams, Aberdeen, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On August 19, 2009, Channing Larry pleaded guilty in the Lee County Circuit Court to two counts of armed robbery. He was sentenced to thirty years with fifteen years suspended on each count to be served in the custody of the Mississippi Department of CoiTections (MDOC), with the sentences to run concuxrently with each other. Subsequently, Larry filed a motion for post-conviction i-elief (PCR) which was denied. Lairy now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On August 19, 2009, Larry pleaded guilty to two counts of armed robbery. Prior to his plea, Larry had rejected the State’s plea-bargain offer of twenty years, with twelve years suspended and eight years to serve. Lairy claims that his attorney assured him that if he pleaded guilty in open court, he would receive no more than the eight years offex-ed by the State.

¶ 3. On August 25, 2009, Larry was sentenced to thirty years, with fifteen years suspended and five years under post-release supervision for Count I and thirty years with fifteen years suspended on Count II, with the sentences to run concurrently with each other. Larry filed a motion on September 1, 2009 to withdraw his guilty pleas. Larry asserted that his pleas were involuntarily made based on improper inducement by his attorney. The motion was denied.

¶ 4. Larry filed a PCR motion on June 10, 2010, which was denied due to his failure to follow the required form. Subsequently, Larry filed an amended PCR motion again alleging that his guilty pleas were not voluntarily and freely made. On March 22, 2011, the circuit court denied the motion. Aggrieved, Larry appeals.

STANDARD OF REVIEW

¶ 5. A trial court’s denial of a PCR motion will not be disturbed unless the decision was clearly erroneous. Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011)(citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)). Questions of law are reviewed de novo. Id.

DISCUSSION

¶ 6. On appeal, Larry argues that the trial court erred in denying his PCR motion because he did not knowingly and voluntarily enter his guilty pleas. “Solemn declarations made in open court carry a strong presumption of verity.” Jones v. State, 885 So.2d 83, 87 (¶ 8) (Miss.Ct.App.2004). It is well-settled that a guilty plea is valid so long as it was “voluntarily and intelligently made by the criminal defendant before the trial court.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (citing King v. State, 738 So.2d 240, 241 (Miss.1999)). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of that plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)).

¶7. Larry asserts that his guilty plea was not voluntarily made but, rather, was improperly induced by false assurances from his attorney. In support of his argument, Larry presents a personal affidavit and an affidavit of his mother, both of which claim that Larry’s attorney assured him that he would receive no more than the eight years previously offered by the State during plea negotiations. Further, Larry contends that he was not aware that his sentence would be a “day for day” sentence with no eligibility for probation or parole.

¶ 8. The record shows that, prior to the acceptance of his plea, the trial judge thoroughly advised Larry of his rights, the nature of the charges, and the consequences of his guilty pleas. The trial judge specifically stated that, for each count of armed robbery, the minimum sentence was three years and the maximum sentence was any sentence less than the defendant’s life expectancy. Larry affirmatively answered that he understood his rights, the nature of the charges, and the consequences of his pleas.

¶ 9. Even if Larry was informed prior to his plea hearing that he would not receive more than eight years or a “day for day” sentence, such misconceptions were corrected by the trial court at the plea hearing. “A guilty plea is voluntary despite erroneous advice given by counsel if the defendant’s misconception is corrected by the court during the plea eolloquoy.” Id. (citing Loden v. State, 971 So.2d 548, 573 (¶ 60) (Miss.2007)).

¶ 10. Further, the affidavits of Larry and his mother are clearly contradicted by the plea-hearing transcript. “A trial court may disregard the movant’s assertions where they are substantially contradicted by the court record that culminated in the entry of the guilty plea.” Staggs v. State, 960 So.2d 563, 566 (¶ 4) (Miss.Ct.App.2007) (citation omitted). We find that Larry’s guilty pleas were voluntary and the trial court was not clearly erroneous in denying Larry’s PCR motion. This issue is without merit.

lili. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BOLIN, Justice.

text:
    Ex parte Fred G. EAGERTON and Nancy Eagerton. (In re SE Property Holdings, LLC v. Fred G. Eagerton et al.).
    1120394.
    Supreme Court of Alabama.
    May 17, 2013.
    Joshua P. Myrick of Stankoski, L.L.P., Fairhope; and J. Doyle Fuller and Susan G. Copeland of Fuller & Copeland, Montgomery, for petitioners.
    Jonathan M. Lieb of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for respondent.
   BOLIN, Justice.

Fred G. Eagerton and Nancy Eagerton petition this Court for a writ of mandamus directing the Baldwin Circuit Court to enter a judgment as a matter of law in their favor and against SE Property Holdings, LLC, consistent with this Court’s mandate in Eagerton v. Vision Bank, 99 So.3d 299 (Ala.2012) (“Eagerton I”). SE Property Holdings, LLC, is the successor by merger to Vision Bank. We hereinafter refer to Vision Bank and/or SE Property Holdings, LLC, as “the bank.” We grant the petition.

I. Facts and Procedural Histo'ry

The underlying facts of this case are recited in full in Eagerton I:

“Dotson 10s, LLC, is an Alabama limited liability company organized to operate the Rock Creek Tennis Club located at 142 Clubhouse Drive in Fairhope. John W. Dotson, Jr., and Elizabeth E. Dotson (hereinafter sometimes collectively referred to as ‘the Dotsons’) are the sole members of Dotson 10s.
“On December 9, 2007, Dotson 10s executed a ‘Multipurpose Note and Security Agreement’ with the bank in the amount of $550,677.53 (hereinafter referred to as ‘the original loan’); the maturity date of the original loan was December 9, 2010. In conjunction with the original loan, the bank obtained unlimited personal guaranties from both John W. Dotson, Jr., and Elizabeth E. Dotson. The bank also obtained limited personal guaranties from both Fred G. Eagerton and Nancy Eagerton; the Eagertons are Elizabeth Dotson’s parents. The original loan was secured by a mortgage on the real property located at 142 Clubhouse Drive (hereinafter referred to as ‘the first mortgage’).
“On December 11, 2008, Dotson 10s executed a subsequent ‘Multipurpose Note and Security Agreement’ with the bank in the amount of $222,513.56 (hereinafter referred to as ‘the second loan’); this loan is identified by the bank as loan number 302669. The second loan was guaranteed solely by the Dotsons; the Eagertons neither were parties to the transaction involving the second loan, nor did they execute personal guaranties for the repayment of the second loan. The second loan was secured by what is titled a ‘2nd Real Estate Mortgage’ on the same real property located at 142 Clubhouse Drive (hereinafter referred to as ‘the second mortgage’).
“In April 2009, the bank declared the original loan and the second loan in default and accelerated the balances due under both loans; Dotson 10s failed to pay the balances. The bank filed a breach-of-contract action in the Baldwin Circuit Court against Dotson 10s, as the primary obligor of the original loan and the second loan; the Dotsons, as personal guarantors of the original loan and the second loan; and the Eagertons, as personal guarantors of the original loan.
“On May 28, 2009, Dotson 10s filed a petition for reorganization under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Alabama (‘the bankruptcy court’). On August 25, 2009, Dotson 10s filed with the bankruptcy court its proposed Chapter 11 plan of reorganization, which provided, in part, that the original loan and the second loan would be combined (hereinafter referred to as ‘the consolidated loan’) and paid in full. The proposed plan states, in pertinent part:
“ ‘This class consists of the Allowed Secured Claim of Vision Bank, which claim is secured by 6.5 acre parcel where the clubhouse, tennis courts and swimming pool exist. The two notes comprising this claim and totaling approximately $823,4.11 will be combined, and paid at 6% in equal monthly installments of $5,900 beginning 30 days after confirmation. The notes will be paid in full within 240 months.... Vision Bank will retain its lien on the subject property until the debt is paid in full.’
“(Emphasis added.)
“On December 1, 2009, the bankruptcy court conducted a confirmation hearing regarding the proposed reorganization plan; the Dotsons and certain bank representatives were present at that hearing. Before the hearing, the bank representatives negotiated additional terms that were favorable to the bank. On December 10, 2009, the bankruptcy court entered an order confirming the plan of reorganization, as amended. The order states, in pertinent part:
“‘(2) The secured claim of Vision Bank is determined to be $795,908.84 as of December 1, 2009; (3) [Dotson 10s] shall pay the secured claim to Vision Bank in equal monthly payments of $6,172.64 per month beginning January 1, 2010. Interest is calculated at 7% per annum. The debt to Vision Bank shall mature and become fully due and payable on January 1, 2012; (4) [Dotson 10s] shall have no grace period. If any payment is not paid on or before the due date, the automatic stay shall terminate and Vision Bank is authorized to immediately foreclose its mortgage without further order of this Court...
“(Emphasis added.) The bank thereafter assigned a new loan number to the consolidated loan.
“In March 2010, Dotsons 10s defaulted under the bankruptcy plan, and the bankruptcy court entered an order dismissing the bankruptcy action. On May 12, 2010, the bank conducted a foreclosure sale of the real property pursuant to the bankruptcy court’s order set out above. The bank purchased the real property for $600,000 and applied the proceeds entirely to the consolidated loan.
“On July 15, 2010, the Baldwin Circuit Court (hereinafter referred to as ‘the trial court’), in response to a motion for a summary judgment filed by the bank, entered a partial summary judgment in favor of the bank against Dotson 10s but denied the motion as to the Eagertons. The bank, thereafter, filed another motion for a ‘final partial summary judgment’ against the Eagertons, arguing that the Eagertons were responsible under their guaranty contracts for the deficiency remaining on the consolidated loan after allocation of the foreclosure proceeds to that loan. Specifically, the bank argued that because the original loan represented 71.07% of the consolidated loan, the Eagertons should be liable for 71.07% of the balance remaining on the consolidated loan after application of the foreclosure proceeds, as well as 100% of the interest, attorney fees, etc. The Eagertons moved for a summary judgment as well, arguing as a defense a material alteration of their guaranty contracts. On May 24, 2011, the trial court, apparently relying on the bank’s pro rata theory, entered a partial summary judgment in favor of the bank and against the Eagertons in the amount of $208,906.40. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., specifically reserving jurisdiction to determine at a later date the appropriate amount of attorney fees and costs owed to the bank, if any, relating to its collection efforts. The Eagertons appeal.”

99 So.3d at 301-03 (footnotes omitted).

On appeal, the Eagertons argued that the Chapter 11 reorganization of the debts of Dotson 10s, LLC, in the bankruptcy court, i.e., the consolidation of the original loan with the second loan, created a new indebtedness not encompassed by their guaranty contracts. The Eagertons therefore argued that the creation of this new indebtedness, without their knowledge or consent, operated to discharge them from any further obligations under their guaranty contracts. The bank, on the other hand, argued, among other things, that the consolidated loan was a replacement note contemplated by the guaranty contracts and that the Eagertons had waived the material-modification defense.

This Court, in Eagerton I, concluded that the Eagertons’ guaranty contracts were unambiguous; that based on the language in the guaranty contracts the Ea-gertons did not intend to guarantee any indebtedness other than that indebtedness arising out of the original loan and any extensions, renewals, or replacements thereof; and that, once the Eagertons’ original loan was modified pursuant to the Chapter 11 reorganization of Dotson 10s, the Eagertons were at that point discharged from any further obligations under their guaranty contracts:

“In sum, Dotson 10s and the bank negotiated a new loan that not only changed the legal identity of the original loan, but also altered the Eagertons’ original obligation under their guaranty contracts. The Eagertons did not consent to guarantee the second loan, which was combined with the original loan to create the consolidated loan — a new indebtedness. These above-stated alterations occurred without the Eagertons’ knowledge and consent. Accordingly, the Eagertons cannot be held personally liable for a loan that no longer exists, i.e., the original loan, nor can they be held personally liable for a loan that is not an extension, renewal, or replacement of the original loan, as defined by their guaranty contracts.
“Based on the foregoing, the trial court’s summary judgment against the Eagertons in favor of the bank is reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion.”

99 So.3d at 310 (emphasis added).

After this Court remanded the cause to the trial court, the Eagertons filed a renewed motion for a summary judgment. The bank responded in opposition and moved for additional discovery to resolve an alleged factual dispute regarding the Eagertons’ knowledge of and consent to Dotson lOs’s bankruptcy plan. The trial court allowed additional discovery and thereafter conducted an evidentiary hearing. On December 5, 2012, the trial court entered on order denying the Eagertons’ motion for a summary judgment. The Ea-gertons thereafter filed this petition for a writ of mandamus. The dispositive issue for our review is whether the trial court followed the mandate of this Court in Ea-gerton I.

II. Standard of Review and Applicable Law

“ ‘Mandamus is a drastic and extraordinary writ, to be issued 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 Integon Corp., 672 So.2d 497, 499 (Ala.1995).”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003).

“The question of whether a trial court after remand has correctly interpreted and applied an appellate court’s decision is properly reviewable by a petition for a writ of mandamus.” Ex parte United States Fid. & Guar. Co., 585 So.2d 922, 924 (Ala.1991).

In Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983), this Court stated:

“ ‘It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered .... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence....’”

431 So.2d at 155 (quoting 5 Am.Jur.2d Appeal & Error § 991 (1962)).

III. Discussion

The Eagertons emphasize in their petition for a writ of mandamus that the facts that were before this Court on appeal in Eagerton I were largely undisputed and that they were clearly entitled to a summary judgment based upon this Court’s mandate in Eagerton I. We agree. This case was submitted to the trial court on cross-motions for summary judgment. Our reversal of the trial court’s summary judgment in favor of the bank in Eagerton I was not based upon a disputed issue of material fact, i.e., whether the Eagertons had notice of, or consented to, the modification of their guaranty contracts. See Rule 56(c)(c), Ala. R. Civ. P. The Eager-tons pleaded the material-modification defense as an affirmative defense in their answer to the original complaint; they raised the material-modification defense in their motion for a summary judgment; and they raised the material-modification defense on appeal. In none of the proceedings below did the bank ever dispute that the Eagertons did not know of or consent to Dotson lOs’s bankruptcy plan, which modified the Eagertons’ guaranty contracts. Clearly, the Eagertons could not have consented to the modification of their guaranty contracts when they were not present at the confirmation hearing during which time John and Elizabeth Dotson and bank representatives negotiated additional terms that were favorable to the bank. Our resolution of this case in Eagerton I was based upon the interpretation of the Eagertons’ guaranty contracts, which, we held, as a matter of law, were unambiguous. See 38A C.J.S. Guaranty § 97, at 704 (2008) (“A guarantor is discharged if, without his or her consent, the contract of guaranty is materially altered.”). In Eagerton I, this Court specifically held that “although the Eagertons may have waived any defenses they may have had regarding the original indebtedness, the Eagertons did not waive any defenses regarding the consolidated loan, which was created by the bank and the Dotsons without the Eagertons’ consent.” 99 So.3d at 310.

TV. Conclusion

Although this Court, in Eagerton I, did not expressly direct the entry of a summary judgment in favor of the Eager-tons, we nonetheless reversed the summary judgment in favor of the bank after concluding that the Eagertons had been discharged from any further liability under their guaranty contracts. In other words, the Eagertons were entitled to a summary judgment. This Court’s opinion in Eagerton I was an adjudication on the merits, and it became the law of the case. Accordingly, the trial court, on remand, was without jurisdiction to conduct an evi-dentiary hearing to allow additional evidence on an undisputed material fact. See Ex parte Alabama Power Co., supra (holding that when an appellate court’s mandate does not include language expressly mandating a new trial or, in this case, an evidentiary hearing, the trial court must enter a judgment as directed by the mandate). See also Ex parte Queen, 959 So.2d 620, 621 (Ala.2006) (“[A]fter a case is remanded, the trial court may enter ‘ “ ‘[n]o judgment other than that directed or permitted by the reviewing court.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.’”’ [Ex parte Edwards, 727 So.2d 792,] 794 [ (Ala.1998) ] (quoting Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983), quoting in turn 5 Am.Jur.2d Appeal & Error § 991 (1962))).” Accordingly, the Eagertons are entitled to mandamus relief.

For the foregoing reasons, we grant the petition for the writ of mandamus and direct the trial court to vacate its December 5, 2012, order denying the Eagertons’ motion for a summary judgment and to enter a judgment in favor of the Eagertons consistent with this Court’s mandate in both Eagerton I and this opinion.

PETITION GRANTED; WRIT ISSUED.

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


author: WISE, Justice. SHAW,

text:
    MARATHON CONSTRUCTION AND DEMOLITION, LLC, and OAX, LLC v. KING METAL RECYCLING AND PROCESSING CORPORATION.
    1120310 and 1120368.
    Supreme Court of Alabama.
    May 17, 2013.

      Richard J.R. Raleigh, Jr., and Christopher L. Lockwood of Wilmer & Lee, P.A., Huntsville, for appellant.
    Byrd R. Latham of Latham, Moffatt, P.C., Athens; and Benjamin D. Stevenson of Stevenson McKenna & Callanan LLP, Boston, Massachusetts, for appellee.
   WISE, Justice.

Marathon Construction and Demolition, LLC (“Marathon”), and OAX, LLC (“OAX”), the defendants below, appeal from an order entered by the Limestone Circuit Court granting injunctive relief to the plaintiff below, King Metal Recycling and Processing Corporation (“King Metal”). We reverse and remand.

Facts and Procedural History

On August 20, 2012, King Metal sued Marathon and OAX, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, interference with contractual relations, and breach of fiduciary duty/duty of loyalty. King Metal alleged that it had entered into an agreement with Marathon to purchase, demolish, and redevelop the former Delphi Industrial Complex in Limestone County (“the Delphi Project”). King Metal also alleged that OAX was formed by it and Marathon as the entity through which they would complete the Delphi Project.

King Metal alleged that it filed the complaint after becoming concerned that it was being “frozen out” of the Delphi Project. At the same time, King Metal filed an application for a prejudgment attachment of any net profits generated by the Delphi Project, “to identify the nature, amount, and location of these funds, and prevent them from being further disbursed, concealed or disposed of by the defendants.” It also filed a motion for a preliminary injunction

“a) requiring Defendants to identify, describe, and produce statements regarding any account(s) which have contained or contain any proceeds of the Delphi Project; b) freezing any net profits of the Delphi Project which are in the possession or control of the Defendants and/or any financial institution(s) or outside third party(ies) under the direction or control of the Defendants; and c) order that the net proceeds of the Delphi Project not be disbursed in any manner whatsoever, including but not limited to any of the parties of this case or any agents, principles, or affiliated entities thereof, until further order of the Court.”

On August 23, 2012, the trial court entered an order for a writ of seizure in which it ordered that the net proceeds of the Delphi Project be seized. On August 28, 2012, the defendants filed a motion to quash the order for a writ of seizure, arguing, in part, that the writ was the incorrect procedure for the remedy sought and asserting that King Metal should have instead requested a temporary restraining order. King Metal filed a motion in opposition to the defendants’ motion to quash the order for a writ of seizure. The trial court scheduled a hearing on the motions for September 4, 2012.

On October 2, 2012, the trial court entered an order setting aside the order for a writ of seizure and disposing of other issues raised by the parties. That order provided, in relevant part:

“The Defendants’ Motion to Quash this Court’s Order of Seizure or Prejudgment Attachment having been set before this Court on September 4, 2012 and at that time the parties made known to the Court that an agreement had been reached for the ultimate disposition of the issues raised by the motion which was presented for record at that time and after consideration of same it is therefore,
“ORDERED BY THE COURT as follows:
“1. That this Court’s August 23, 2012 Order of Writ of Seizure is set aside;
“2. Defendants shall produce selected electronic and/or hard copy records and documents related to the Delphi Project, sufficient to identify the nature, purpose, payee/payor, and amount of any and all funds received or disbursed, directly or indirectly, by any of the Parties or any other individual(s) or entity(ies) involved in the Delphi Project, as defined in the- Verified Complaint. It shall be understood that ‘nature’ and ‘purpose’ mean notations sufficient to explain what the payment was for. The selected document(s) produced shall show all monies received or disbursed, all transactions consummated, all income or funds received, all disbursements or funds paid, and the nature, amount, and complete activity for all accounts operated or maintained in connection with the Delphi Project;
“7. Defendants have represented and warranted to the Court that presently there are and have been no net profits (defined as excess funds exceeding the total debt and operating expenses of the Delphi Project) from the Delphi Project. From the date of this Order forward, Defendants are enjoined from taking, requesting, distributing, or allowing or directing the disbursement of any net profits from the Delphi Project until further order of the Court or written agreement of the parties....”

(Capitalization original; emphasis added.)

On November 13, 2012, King Metal filed a motion, which it says was filed pursuant to Rule 7, Ala. R. Civ. P., for a minor amendment of the October 2, 2012, order. Paragraph 3 of the order provided:

“The records and documents produced by Defendants pursuant to this Order shall be produced as ‘Attorneys’ and Clients’ Eyes Only.’ Plaintiff [King Metal] and its directors, officers, employees, representatives, agents, and principals shall not be entitled to make or receive any copies of the records and documents produced, and shall not be entitled to make any notes of the records and documents produced. (This restriction does not apply to counsel for Plaintiff [King Metal], who shall be entitled to make and receive copies and make notes; however, those copies and notes shall not be provided to [King Metal] or its directors, officers, principals, employees, representatives, or agents)....”

(Emphasis added.) King Metal asked that the words “or receive” be stricken from the second sentence and that the third sentence be amended accordingly. On November 16, 2012, the trial court granted the motion.

On November 28, 2012, King Metal filed a motion, asking that the defendants be “enjoined from selling, transferring, leasing, or encumbering any portion of the former Delphi site absent further order of the Court or written agreement of the parties.” In support of the motion, it asserted that redevelopment of the property on which the Delphi Project is located was proceeding under the control of the defendants subject to the October 2, 2012, order, with the caveats that there had not been any net profits and that, if there were any net profits, they would be frozen pending further order of the court or agreement of the parties. King Metal also asserted that, in seeking the October 2, 2012, order, it was trying to allow the demolition work to proceed on the Delphi Project, while still protecting the rights of the parties until those respective rights could be resolved, and that every indication at the time was that the defendants intended to take down the buildings on the site and to sell the scrap materials and old equipment for profit. However, it asserted that it had learned that demolition work at the site had slowed or stopped and that it appeared that the defendants were preparing to sell, transfer, or lease some or all the property to third parties.

That same day, the trial court granted King Metal’s motion, stating simply:

“[King Metal’s] motion to enjoin sale, transfer, lease or encumbrance of the Delphi Property filed by King Metal Recycling & Processing Corp. is hereby granted.”

On November 29, 2012, the defendants filed an emergency motion to dissolve the order, and King Metal filed an opposition to that motion. On December 17, 2012, the trial court conducted a hearing and denied the defendants’ motion to dissolve the November 28, 2012, order. These appeals followed. We have consolidated the appeals for the purpose of writing one opinion.

Standard of Review

[1,2] “ ‘We have often stated:

“The decision to grant or to deny a preliminary injunction is within the trial court’s sound discretion. In reviewing an order granting a preliminary injunction, the Court determines whether the trial court exceeded that discretion.” SouthTrust Bank of Alabama, N.A. v. Webb-Stiles Co., 931 So.2d 706, 709 (Ala.2005).
“ ‘A preliminary injunction should be issued only when the party seeking an injunction demonstrates:
“ ‘ “ ‘(1) that without the injunction the [party] would suffer irreparable injury; (2) that the [party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the [party opposing the preliminary injunction] by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the injunction].’ ”
“‘Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003) (quoting Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994)).’ ”

Colbert Cnty. Bd. of Educ. v. James, 83 So.3d 473, 477-78 (Ala.2011) (quoting Holiday Isle, LLC v. Adkins, 12 So.3d 1173, 1175-76 (Ala.2008)).

Discussion

The defendants argue that the trial court erred in entering the preliminary injunction and that the preliminary injunction should be dissolved. Specifically, they contend that it did not comply with the requirements of Rule 65, Ala. R. Civ. P., for entering a preliminary injunction because the trial court issued the injunction without conducting a hearing, without requiring a security bond, and without setting forth the reasons for the injunction and the specific acts to be enjoined. For the reasons set forth below, we agree. However, we must first dispose of an argument raised by King Metal.

King Metal argues that the trial court’s November 28, 2012, order did not constitute a new preliminary injunction and that, therefore, compliance with the requirements of Rule 65 was not necessary. Specifically, King Metal contends that the October 2, 2012, order, which enjoined certain activities of the defendants, was the controlling order and that the November 28, 2012, order was merely a clarification and enforcement of the preliminary-injunction aspect of the October 2, 2012, order rather than a new preliminary injunction. Accordingly, King Metal asserts that its motion was a motion seeking the amendment of an order and was filed pursuant to Rule 7, Ala. R. Civ. P., rather than a motion for a preliminary injunction filed pursuant to Rule 65.

King Metal styled its motion as a “Motion to Enjoin Sale, Transfer, Lease, or Encumbrance of the Delphi Property Absent Court Order,” and it stated, in the first line of the motion, that it was proceeding “[p]ursuant to Rule 7,” Ala. R. Civ. P. However, “ ‘[t]he substance of a motion and not its style determines what kind of motion it is.’ ” Cornelius v. Browning, 85 So.3d 954, 958 n. 2 (Ala.2011) (quoting Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997)). Although King Metal cited Rule 7 in the motion and made references to the October 2, 2012, order, it did not specifically ask the trial court to amend, clarify, or enforce the October 2, 2012, order. In fact, whereas the October 2, 2012, order “enjoined [the defendants] from taking, requesting, distributing, or allowing or directing the disbursement of any net profits from the Delphi Project until further order of the Court or written agreement of the parties,” the November 28, 2012, order granted a motion in which King Metal sought to enjoin the defendants “from selling, transferring, leasing, or encumbering any portion of the former Delphi site absent further order of the Court or written agreement of the parties.” Thus, the November 28, 2012, order, which focused on the disposition of the “former Delphi site,” was much broader than the October 2, 2012, order, which focused solely on the distribution or disbursement of net profits from the Delphi Project. Also, in its November 28, 2012, motion, King Metal did not specifically ask the trial court to clarify or enforce the October 2, 2012, order, and the trial court did not state in the November 28, 2012, order that it was clarifying or enforcing the October 2, 2012, order. Finally, during the hearing on the motion to dissolve the November 28, 2012, order, the trial court stated that it had issued a preliminary injunction and did not give any indication that, by issuing the November 28, 2012, order, it intended merely to clarify or enforce the October 2, 2012, order. Therefore, we conclude that the trial court’s November 28, 2012, order was a new preliminary injunction and that it did not merely clarify or enforce the October 2, 2012, preliminary-injunction order upon which the parties had agreed.

We now address the defendants’ arguments that the trial court did not comply with the requirements set forth in Rule 65, Ala. R. Civ. P., governing injunctions.

First, the defendants contend that the trial court did not comply with the requirements of Rule 65(a)(1), Ala. R. Civ. P., because it issued the injunction within hours after King Metal requested it, without conducting a hearing. Rule 65(a)(1), Ala. R. Civ. P., provides that “[n]o preliminary injunction shall be issued without notice to the adverse party.”

In Blount Recycling, LLC v. City of Cullman, 884 So.2d 850, 855 (Ala.2003), this Court explained:

“As the Court of Civil Appeals recognized in Bamberg v. Bamberg, 441 So.2d 970, 971 (Ala.Civ.App.1983), while Rule 65, Ala. R. Civ. P., ‘does not explicitly require that oral testimony be presented at a preliminary injunction hearing, some type of evidence which substantiates the pleadings is implicitly required by subsection (a)(2) of the rule.’ The Court of Civil Appeals in Bamberg continued, stating: ‘In order to comply with procedural due process, notice and an opportunity to be heard are necessary under Rule 65(a).’ Id.
“In this case it appears that the circuit court did not conduct a hearing on the Commission’s petition for a preliminary injunction; therefore, the Commission did not present any evidence and Blount Recycling was not given an opportunity to be heard. The injunction must be dissolved for failure to comply with Rule 65(a), Ala. R. Civ. P., and the cause remanded.”

Similarly, in this case, it appears that the trial court did not conduct a hearing on King Metal’s motion for a preliminary injunction. Clearly, King Metal, which filed only an unverified motion in support of the preliminary injunction, did not present any evidence, and the defendants were not given an opportunity to be heard in opposition to the motion. See Bamberg v. Bamberg, 441 So.2d 970, 971 (Ala.Civ.App.1983) (noting that “at a preliminary injunction hearing an unverified pleading, without proof of its averments, is insufficient in and of itself upon which to base the issuance of a preliminary injunction”). Therefore, the trial court did not comply with the requirements of Rule 65(a).

Second, the defendants contend that the trial court did not comply with the requirements of Rule 65(c), Ala. R. Civ. P., because it issued the injunction without requiring King Metal to post a security bond before it issued the November 28, 2012, preliminary injunction. Rule 65(c) provides:

“No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Alabama or of an officer or agency thereof, and provided further, in the discretion of the court, no such security may be required in domestic relations cases.”

In Spinks v. Automation Personnel Services, Inc., 49 So.3d 186, 190 (Ala.2010), this Court stated:

“Also, ‘ “there are [other] necessary exceptions to such an absolute holding in all cases under Rule 65(c), such as requiring only a nominal security, or where the litigant is impecunious or the issue is one of overriding public concern.” ’ Anders [ v. Fowler ], 423 So.2d [838,] 840 [ (Ala.1982) ] (quoting Lightsey[ v. Kensington Mortg. & Fin. Corp.], 294 Ala. [281,] 285, 315 So.2d [431,] 434 [ (1975) ], citing in turn Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, Civil § 2954, p. 529).”

King Metal does not argue that any of the exceptions to the requirement of a security bond apply in this case. Instead, it contends that, because the October 2, 2012, order upon which the parties agreed did not require a bond, the November 28, 2012, order, which King Metal argues merely clarified or enforced the October 2, 2012, order, did not require the posting of a bond. Because we have already rejected King Metal’s argument that the November 28, 2012, order was merely a clarification and enforcement of the October 2, 2012, preliminary injunction rather than a new preliminary injunction, we likewise reject its argument that the November 28, 2012, order did not require the posting of a security bond.

“Alabama law ... clearly provides that ‘[i]t is mandatory that security be given under Rule 65(c), “unless the trial court makes a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist.” ’ Anders [ v. Fowler ], 423 So.2d [838,] 840 [ (Ala.1982) ] (quoting Lightsey[ v. Kensington Mortg. & Fin. Corp.], 294 Ala. [281,] 285, 315 So.2d [431,] 434 [ (1975) ]) (emphasis added); see also Chunchula Energy Corp. v. Ciba-Geigy Corp., 503 So.2d 1211, 1215 (Ala.1987) (stating that the provisions of Rule 65(c) are ‘mandatory’). Furthermore, this Court has long recognized the above-stated rule. See Ex parte Miller, 129 Ala. 130, 133, 30 So. 611, 612 (1901) (stating that ‘[t]here can be no injunction ... until the bond has been given’) (quoted with approval in Anders, 423 So.2d at 840, and Lightsey, 294 Ala. at 284, 315 So.2d at 433)....
“Here, the trial court issued a preliminary injunction without requiring APS to give security as mandated by Rule 65(c), Ala. R. Civ. P. Furthermore, the trial court failed to make ‘a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist.’ Anders, 423 So.2d at 840. As noted, ‘there can be no injunction ... until the bond has been given.’ Anders, 423 So.2d at 840 (quoting Ex parte Miller, 129 Ala. at 133, 30 So. at 612, quoted with approval in Lightsey, 294 Ala. at 285, 315 So.2d at 434). Accordingly, ‘[u]nder the clear mandate of Rule 65(c), and the previous decisions of this court, we have no alternative but to reverse and remand.’ Anders, 423 So.2d at 840; see also Chunchula Energy Corp., 503 So.2d at 1215-16 (stating that an injunction issued without the giving of security by the applicant ‘is defective and due to be reversed’).”

Spinks, 49 So.3d at 191. Similarly, because the trial court did not require King Metal to give security and did not make a specific finding that any of the exceptions to the requirement of giving security existed, it did not comply with the requirements of Rule 65(c).

Third, the defendants contend that the trial court did not comply with the requirements of Rule 65(d)(2), Ala. R. Civ. P., because it did not set forth its reasons for issuing the injunction and did not describe the acts to be enjoined. Rule 65(d)(2) provides, in relevant part:

“Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained.... ”

In this case, it is clear that the November 28, 2012, order does not comply with Rule 65(d)(2). The trial court did not set forth any reasons for the issuance of the preliminary-injunction order. See Butler v. Roome, 907 So.2d 432 (Ala.2005). In fact, the order made no reference to whether King Metal had demonstrated the factors set forth in Holiday Isle, supra, necessary to the issuance of a preliminary injunction. Also, the trial court did not describe the act or acts sought to be restrained. At most, it merely referenced King Metal’s motion in support of the order, which is expressly prohibited by Rule 65(d)(2). “Pursuant to Rule 65[ (d)(2) ], it is mandatory that a preliminary-injunction order give reasons for the issuance of the injunction, that it be specific in its terms, and that it describe in reasonable detail the act or acts sought to be restrained.” Monte Sano Research Corp. v. Kratos Defense & Sec. Solutions, Inc., 99 So.3d 855, 863 (Ala.2012). See also D.M.C. Enters., Inc. v. Hope, 100 So.3d 1102, 1108 (Ala.Civ.App.2012) (noting that “[t]he trial court’s one-sentence order granting Hope’s motion [for injunctive relief] does not contain any of the required information”). Because the trial court did not set forth its reasons for issuing the injunction and did not describe the acts to be enjoined in the November 28, 2012, order, its order did not comply with Rule 65(d)(2).

Conclusion

For the above-stated reasons, we conclude that the trial court’s November 28, 2012, order was a new preliminary injunction rather than a clarification or an enforcement of the October 2, 2012, preliminary-injunction order. We also conclude that the trial court exceeded the scope of its discretion in issuing the November 28, 2012, preliminary injunction because it did not comply with the requirements set forth in Rule 65, Ala. R. Civ. P., when it entered the order. Therefore, we reverse the trial court’s November 28, 2012, order and remand this case with instructions that the trial court dissolve the preliminary injunction it issued on November 28, 2012. However, this decision should not be interpreted as precluding King Metal, should it deem it necessary, from asking the trial court to again issue a preliminary injunction, provided that any such injunction complies with Rule 65, Ala. R. Civ. P.

1120310 — REVERSED AND REMANDED.

1120368 — REVERSED AND REMANDED.

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

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

SHAW,

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

I concur in the main opinion except that part of the discussion that addresses the lack of compliance with Rule 65(d)(2), Ala. R. Civ. P., as to which I express no opinion.

      . The record before this Court does not in-elude a transcript of that hearing.

      . The defendants separately appealed both the trial court’s grant of the preliminary injunction and the trial court's refusal to dissolve the preliminary injunction. See Rule 4(a)(l)A, Ala. R.App. P.

      . The defendants make other complaints about the trial court's November 28, 2012, order, including arguments that the trial court did not comply with the requirements set forth in Holiday Isle, supra. Because the trial court’s failure to comply with the requirements of Rule 65 is dispositive, we need not reach the other arguments.

      . King Metal argues that the December 17, 2012, hearing constituted a hearing for the purposes of Rule 65(a). However, it does not cite any authority in support of that proposition. Rather, King Metal merely cites a case that addresses whether a party received sufficient notice of a hearing on a motion for a preliminary injunction. Therefore, it has not complied with Rule 28(a)(10), Ala. R.App. P., and we will not address its argument in this regard.

      . Although Rule 65(b) allows for temporary restraining orders to be entered without notice, the parties do not appear to argue that the November 28, 2012, order was a temporary restraining order.

      . In this regard, we note that the trial court was apparently aware of the fact that it had not complied with Rule 65 when it issued the November 28, 2012, preliminary-injunction order. During the December 17, 2012, hearing on the motion to dissolve the November 28, 2012, preliminary-injunction order, the trial court admitted that it frequently issues injunctions "that don’t comply with Rule 65 because of the immediacy and the need.”