text:
    Eddie BEALS, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00777-COA.
    Court of Appeals of Mississippi.
    May 27, 2014.
    Eddie Beals, appellant, pro se.
    Office of the Attorney General by Anthony Louis Schmidt Jr., James M. Norris, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Eddie Beals appeals the circuit court’s decision that upheld the denial of his parole eligibility. Beals argues that the Mississippi Department of Corrections (MDOC) illegally determined that he would be ineligible for parole on his life sentence. Since the filing of this appeal, the MDOC has changed Beals’s classification status to reflect parole eligibility. Because no controversy exists, we dismiss this appeal as moot.

¶ 2. Around April 1979, Beals was found guilty of rape in Hancock County, Mississippi. The circuit court sentenced Beals to serve a life sentence in the custody of the MDOC. Beals was released on parole in May 2002.

¶ 3. Around July of 2007, Beals violated the conditions of his parole for failure to pay fees and report. The MDOC revoked his parole in August 2009, and he returned to prison. In April 2009, Beals was again released on parole.

¶4. On March 10, 2010, Beals once again violated the conditions of his parole. He was also charged with failure to register as a sex offender. On November 1, 2010, Beals pled guilty to failure to register as a sex offender, and he was sentenced to serve one year in the custody of the MDOC, with four years of post-release supervision, to run consecutively to his 1979 sentence on his rape conviction.

¶ 5. On June 7, 2011, Beals appeared before the parole board. The MDOC informed Beals that he would no longer be eligible for parole on his life sentence for the rape conviction following his latest conviction. Thereafter, Beals filed a petition with the MDOC Administrative Remedies Program (ARP) and requested that he be eligible for parole. The ARP informed Beals that he would be ineligible for parole and cited Beals’s guilty plea to the violent crime of failure to register as a sex offender as the reason.

¶ 6. On April 9, 2013, Beals filed a petition for post-conviction collateral relief (PCCR). The circuit court treated Beals’s PCCR motion as a motion for an order to show cause. On April 12, 2013, the circuit court upheld the decision of the ARP denying Beals’s parole eligibility. It is from this order that Beals has appealed.

¶ 7. Beals argues that he is unlawfully detained, because he was denied a parole-eligibility date for his original life sentence. The MDOC agreed with Beals and changed his classification status to make him eligible for parole. “[C]ases in which an actual controversy existed at trial[,] but the controversy has expired at the time of review, become moot.” J.E.W. v. T.G.S., 935 So.2d 954, 959 (¶ 14) (Miss.2006) (quoting Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466-67 (Miss.1980)). “A case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant.” Fails v. Jefferson Davis Cnty. Pub. Sch. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss.2012) (quoting Gartrell v. Gartrell, 936 So.2d 915, 916 (¶ 8) (Miss.2006)).

¶ 8. Now that the MDOC has changed Beals’s classification status to reflect a parole-eligibility date, there is no controversy for our review. No decision we could reach would be of practical benefit to Beals. See id. Rather, any opinion on the merits would be merely advisory, and “we have no power to issue advisory opinions.” J.E.W., 935 So.2d at 959 (¶ 14) (citation omitted). Accordingly, this appeal is dismissed as moot.

¶ 9. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GREENE COUNTY.

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


source: Caselaw Access Project

author: ROBERTS, J., ISHEE, J.,

license: Public Domain

text:
    Daniel CLACK, Appellant v. CITY OF RIDGELAND, Mississippi, Appellee.
    No. 2013-KM-00453-COA.
    Court of Appeals of Mississippi.
    June 3, 2014.
    Kevin D. Camp, Jared K. Tomlinson, Jackson, attorneys for appellant.
    Boty McDonald, Jackson, attorney for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. For the fourth time in less than a year, this Court is confronted with an appeal of a conviction from the City of Ridge-land in which the City has failed to file an appellate brief. Incident to a de novo bench trial, the County Court of Madison County found Daniel Clack guilty of first-offense driving under the influence (DUI) and careless driving. During a hearing on Clack’s posttrial motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, city prosecutor Boty McDonald admitted that he had unintentionally failed to provide Clack with potentially exculpatory video evidence per Clack’s discovery request. Even so, the county court denied Clack’s posttrial motions. The Madison County Circuit Court affirmed the county court’s judgment. Clack appeals.

¶ 2. As previously mentioned, the City has failed to file an appellate brief. Because the prosecution conceded that it failed to provide evidence that was potentially exculpatory, we cannot confidently affirm the circuit court’s judgment. Accordingly, we reverse the circuit court’s judgment and remand this matter to its active trial docket.

FACTS AND PROCEDURAL HISTORY

¶ 3. At approximately 3 a.m. on June 22, 2008, Officer Daniel Soto of the Ridge-land Police Department saw Clack driving on Pear Orchard Road in Ridgeland, Mississippi. According to Officer Soto, Clack was driving carelessly. Officer Soto stopped Clack. Ultimately, Officer Soto arrested Clack for DUI.

¶ 4. Clack later went before the Ridge-land Municipal Court, where he faced charges for first-offense DUI and careless driving. Clack pled “no contest” to both charges. He then appealed to the county court. Clack filed a motion for discovery. Clack’s eleven-page discovery request was comprehensive. Among many other things, Clack requested that the prosecution disclose “[a]ny information that would tend to exculpate [Clack] to any degree.” During November 2009, Clack received a de novo bench trial before the county court.

¶ 5. The prosecution called Officer Soto as its first and only witness. Officer Soto testified that Clack’s Toyota Tundra pickup truck was “weaving in the roadway.” Officer Soto also testified that Clack stopped in the road “for a matter of seconds.” After Clack turned off of Pear Orchard Road “without using [his] blinker,” Officer Soto stopped him.

¶ 6. According to Officer Soto, he smelled alcohol in Clack’s pickup truck. Clack told Officer Soto that he had consumed three beers earlier that night. Officer Soto told Clack to get out of his pickup truck. Clack complied. Officer Soto then asked Clack whether he was lost. Officer Soto also asked Clack what he was doing in the area. Clack said that he was on his way to visit a friend’s apartment in the area. Officer Soto administered a portable breath test, which returned positive results for the presence of alcohol.

¶ 7. Next, Officer Soto offered Clack a series of field sobriety tests. Officer Soto testified that Clack displayed three of eight possible indicators of impairment when he took the “walk-and-turn” test. And Clack displayed two of four possible indicators of impairment when he took the “stand-on-one-leg” test. Consequently, Officer Soto arrested Clack and drove him to the Ridgeland Police Department. Officer Soto administered the Intoxilyzer 8000 test, which indicated that Clack’s blood-alcohol content was .13 percent.

¶ 8. The prosecution did not present video evidence of Officer Soto’s stop of Clack. During direct examination, Officer Soto testified that his patrol car was not outfitted with video equipment during June 2008. Officer Soto reiterated his testimony during cross-examination. The prosecution rested its case-in-chief after Officer Soto testified.

¶ 9. After Officer Soto left the courtroom, the prosecutor announced that he and Clack’s attorney had reached a stipulation. The prosecutor then stated:

[I]n June ... 2008, Ridgeland patrol cars did have the ability to video stops that were made in the field, including cars that Officer Soto drove. We do not know if the particular car he was in — if the video was operable, but that’s ... because there is no audit trail on this system that will explain when video was running and when it was captured and when it was not.
But, first, [we] stipulate that there was video capability in Ridgeland patrol cars at the time; that the way it was operated is the video automatically— when blue lights were engaged by an officer, including Officer Soto, the video would back up 30 seconds. It would preserve and capture anything that it had seen 30 seconds prior to the blue lights coming on. Then to stop the camera, the officer — in this case, Officer Soto — in the field would have to manually stop the video.
Upon arrival at the police station after the arrest when the patrol car pulled into the sally port, which is, in effect, the garage, any video was automatically uploaded, so there was nothing required to be done by the officer after pushing the stop button in the patrol vehicle at the conclusion of the arrest for the video to be uploaded to the server.
In this case, [Clack’s attorney], on behalf of his client, by traditional discovery demands requested video. The Ridgeland Police Department, after reviewing the files, did not produce any because it said there was none that it saw available. That does not mean that there was never any video, but none was produced, and the police department is incapable of telling the defendant if any was ever created.

¶ 10. After the prosecution announced the stipulation that Officer Soto’s patrol car had been outfitted with video equipment at the time of Clack’s stop, Clack testified in his defense. Clack disagreed with Officer Soto’s version of the events that led to the traffic stop. Clack denied that he stopped his pickup truck in the middle of the road. Clack also denied that he had been weaving while driving. According to Clack, he was not certain where he needed to turn, so he slowed down to read a street sign. Clack testified that he resumed driving normally when he realized that he had not yet reached his turn. Clack admitted that he turned without using his turn signal, but he testified that there were no other cars around him. Clack went on to testify that Officer Soto drove behind him so fast that Clack “had to literally not stop completely until he was under control or else [Officer Soto] would have rear-ended [him].”

¶ 11. According to Clack, he had talked to Officer Soto “[n]umerous times” after his arrest. Clack said that he and Officer Soto had been in the same bar, and they had “a few drinks together.” Clack testified that Officer Soto had said that he was “going to help [him] out -with” the charges he faced. Clack and Officer Soto exchanged phone numbers, and Officer Soto told Clack that he did not need a lawyer. But during a subsequent encounter in a bar, Clack asked Officer Soto about a video recording of the traffic stop. According to Clack, Officer Soto said that Clack’s attorney had watched the video and Clack was “toast.”

¶ 12. During cross-examination, the prosecution asked Clack what his defense was. Clack responded that Officer Soto had “manufactured” his basis for probable cause. Clack again vigorously denied that he was weaving or that he stopped in the street. Clack rested after he testified.

¶ 13. The prosecution called Officer Soto as its only rebuttal witness. Officer Soto denied that he had a conversation with Clack regarding “video related to his case.” Officer Soto did not deny that he had encountered Clack after his arrest. According to Officer Soto, he had “arrested over a thousand people in the last couple of years,” and “ftjhat’s the reason [he doesn’t] go out [to bars] anymore.”

¶ 14. The county court found Clack guilty of careless driving and first-offense DUI. The county court fined Clack a total of $950. Although the county court sentenced Clack to forty-eight hours in the county jail, the county court also suspended that sentence and placed him on unsupervised probation for two years.

¶ 15. Clack filed a motion for a JNOV or, alternatively, for a new trial. The county court heard Clack’s motions during April 2010. During the hearing, the prosecution announced that it had obtained the video from Officer Soto’s patrol car. The county court asked whether the video was “potentially exculpatory.” The prosecutor responded, ‘Tes, sir.” However, approximately one year later, the county court denied Clack’s posttrial motions. The county court judge stated that “[t]he video has not been published or otherwise presented to the [c]ourt.” According to the county court, “there has been no showing that the video in question will probably produce a different result or verdict.” (Emphasis in original).

¶ 16. Clack appealed to the circuit court. Initially, the City failed to file a brief. The circuit court ordered the prosecutor to show cause for his failure to file a brief. Eventually, the circuit court financially sanctioned the prosecutor $500 for his failure to show cause. After being sanctioned, the prosecutor finally complied with the circuit court’s instruction to file a responsive brief. Ultimately, the circuit court affirmed the county court’s judgment. Clack appeals.

STANDARD OF REVIEW

¶ 17. Yet again, the City has failed to file an appellee’s brief. “An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.” Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) (internal citations omitted).

ANALYSIS

¶ 18. Clack argues that Officer Soto did not have reasonable suspicion or probable cause to stop him. According to Clack, Officer Soto manufactured the basis for his stop. Clack also argues that the City violated its Brady obligation when it failed to disclose the video footage from Officer Soto’s patrol car. Our review of Officer Soto’s testimony raises obvious concerns about his veracity and credibility. He testified that his patrol car was not outfitted with video equipment when he stopped Clack. But after Clack was convicted, the prosecution discovered that Officer Soto’s patrol car had been outfitted with video equipment when he stopped Clack, and that the equipment had captured something related to Clack’s stop and arrest. Although it is unclear what the video depicted, the prosecution conceded that it was “potentially exculpatory.” Despite Clack’s request for discovery, the video had not been provided to Clack’s attorney.

¶ 19. Automobile stops must be reasonable. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Generally, a stop is reasonable if a law-enforcement officer has probable cause to believe that a traffic violation has occurred. Id. Officer Soto testified that he stopped Clack because he had been driving carelessly. Clack denied that he had been driving carelessly. As mentioned, the prosecution conceded that the previously undisclosed video footage was “potentially exculpatory.”

¶ 20. The government’s suppression of evidence favorable to the accused violates due process when the evidence is material to his guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. 1194. It is irrelevant whether the prosecution acted in good faith or bad faith. Id. After review, we are unable to confidently find that the video does not qualify as impeachment evidence that would undermine the credibility of an important government witness. Such evidence would fall under the Brady rule. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).

¶ 21. Although the video is not in the record, the City clearly admitted to the county court judge that the video of Officer Soto’s traffic stop was “potentially exculpatory.” Had the City cared enough to file a responsive brief, we might be in a better position to judge the extent of the exculpatory nature of the video of the traffic stop. Unfortunately, the City yet again failed to file a responsive brief.

¶ 22. Because we cannot confidently affirm Clack’s conviction, we reverse the circuit court’s judgment affirming the county court’s decision. Rule 12.03(A) of the Uniform Rules of Circuit and County Court governs circumstances in which a circuit court reviews an appeal from a county court. According to Rule 12.03(A), when a circuit court reviews an appeal from a county court, and the circuit court finds that a new trial is appropriate, “the cause shall be remanded to the docket of the circuit court and a new trial held therein de novo.” Consequently, we remand this matter to the circuit court’s active trial docket.

¶ 23. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., IRVING, P.J., BARNES, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ISHEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. GRIFFIS, P.J., AND CARLTON, J., NOT PARTICIPATING.

ISHEE, J.,

concurring in part and dissenting in part:

¶ 24. While I concur with the majority’s decision to reverse, I must respectfully dissent as to the majority’s decision to remand. The majority correctly notes that the failure of an appellee to file a brief on appeal is equivalent to the appellee admitting to the appellant’s assigned errors. Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000). Likewise, the majority found, and I agree, that Clack was unfairly prejudiced by the prosecution’s failure to furnish potentially exculpatory evidence in the form of video footage from the stop. The prosecution’s failure to produce the video, and Officer Soto’s perjury in the furtherance of concealing the video, severely prejudiced Clack. Such a video could have rendered the stop, and all evidence produced from the stop, improper and inadmissible. Having found this as a sufficient ground to reverse the case, the majority then asserts that a new trial is warranted.

¶ 25. It is here that I diverge from the majority’s opinion. As noted above, since the City failed to respond to Clack’s brief, we are required to view Clack’s remaining assignments of error as admitted by the City. I do not take lightly the City’s repeated failure to file an appellee’s brief, as seen in at least four recent cases. Hence, I assert that in addition to considering the great prejudice placed on Clack by the prosecution’s deliberate concealment of potentially exculpatory evidence and Officer Soto’s perjury, we must also take into account the City’s concessions that Clack’s Sixth Amendment right to confront his accusers was violated and that Officer Soto did not have reasonable suspicion or probable cause to stop Clack. As such, when viewing the totality of the circumstances, I would reverse and render this case instead of remanding it for a new trial.

      . In three recent cases, the City of Ridgeland utterly failed to file an appellee's brief. See Carlson v. City of Ridgeland, 131 So.3d 1220, 1222 (¶ 7) (Miss.Ct.App.2013); Drabicki v. City of Ridgeland, 130 So.3d 113, 118 (¶ 19) (Miss.Ct.App.2013); Lobo v. City of Ridgeland, 135 So.3d 148, 152 (¶ 12) (Miss.Ct.App.2013).

      . During the hearing, the county court never asked to review the video. Similarly, the county court did not ask whether the prosecution was able to present the video on the date of the hearing. The prosecutor conceded that Clack was "entitled ... to review that video that was not produced in discovery as required by Brady [v.] Maryland, [373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)]." In other words, the prosecutor did not contest the exculpatory nature of the video. During the remainder of the hearing, the county court judge asked for information regarding the manner in which the Ridgeland Police Department stored and cataloged video footage from patrol cars, and the means by which the prosecutor could retrieve such a video.

      . Clack’s brief states that Officer Soto’s false testimony "should come to no surprise given the well-publicized perjury lawsuit brought against [Officer] Soto for similar misconduct in the past.” The record presently before us does not contain any reference to previous misconduct on Officer Soto’s part. However, the City did not move to strike Clack’s statement.


author: MAXWELL, J.,

text:
    Howard O’GWIN, Individually and On Behalf of All Wrongful Death Beneficiaries of Mary Virginia O’Gwin, Deceased, Appellant v. ISLE OF CAPRI-NATCHEZ, INC., Appellee.
    No. 2013-CA-00373-COA.
    Court of Appeals of Mississippi.
    June 3, 2014.

      Joseph Preston Durr, W. Brady Kel-lems, Brookhaven, attorneys for appellant.
    Jeffrey Monroe Williams, Jackson, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Mary Virginia O’Gwin died of natural causes. Yet her husband sued Isle of Capri-Natehez, Inc. (IOC), for wrongful death. Mary Virginia was playing slots at IOC’s casino when her heart stopped. Her husband claims the casino breached its legal duty to its critically ill patron by not restarting her heart with a defibrillator or chest compressions within five minutes of her collapse.

¶ 2. The circuit court dismissed this claim on summary judgment. And on appeal, we must affirm. As an owner of property open to the public, IOC, once it learned its patron Mary Virginia was ill and in need of medical assistance, did owe her a duty to render aid. But this duty entailed taking reasonable action to give her first aid and care for her until the emergency medical technicians (EMTs) arrived. This duty did not include performing EMT-level medical-rescue efforts, like using an automated external defibrillator (AED) or performing cardiopulmonary resuscitation (CPR). So evidence that IOC did not provide such medical assistance within minutes of learning Mary Virginia was ill is not evidence the casino breached its duty to render aid. Thus, IOC was entitled to summary judgment on the claim that its negligence caused Mary Virginia’s death.

Background

I. Heart Attack

¶ 3. Sixty-seven-year-old Mary Virginia sat down at a slot machine in IOC’s casino. Minutes later, her heart stopped. She collapsed to the floor. A patron found her and notified employees, who came to her aid. An ambulance was called. And while waiting for an ambulance to arrive, employees tried to revive her through CPR.

¶4. When the EMTs arrived, they shocked Mary Virginia’s heart with an AED. Her heart restarted. But by this point, her brain was fatally injured from lack of oxygen. After Mary Virginia spent a week on artificial life support, her husband, Howard O’Gwin, took the doctors’ painful advice and ceased support. Mary Virginia was pronounced dead. Her death certificate listed the cause of death as cardiopulmonary arrest.

II. Wrongful-Death Suit

¶ 5. Howard, individually and as the representative of Mary Virginia’s wrongful-death beneficiaries, sued IOC. He claimed the casino’s negligence — not the heart attack — caused his wife’s death. He alleged the casino breached its duty to render aid by failing to timely start CPR and/or use an AED, which he insisted would have prevented her brain death and allowed her to survive.

¶ 6. In response to IOC’s motion for summary judgment, Howard submitted an unsigned report by a pathologist who believed Mary Virginia had just a six-minute window from the moment her heart stopped pumping blood to her brain to prevent irreversible brain damage. The pathologist had reviewed IOC security footage. While the video showed casino employees came to Mary Virginia’s aid within two minutes, it did not show employees trying to resuscitate her through CPR or an AED during that critical time frame. Nor did the EMTs arrive in this time window, due to the ten minutes it took from dispatch to when they reached Mary Virginia. The pathologist concluded that Mary Virginia’s brain death resulted from the “prolonged elapse of time between her collapse and the initiation of CPR and use of the AED.”

¶7. The circuit judge granted IOC’s motion for summary judgment. Even accepting the expert opinion, the judge found Howard had failed to establish a negligence claim. IOC had no duty to perform CPR or use an AED during the precious few minutes after Mary Virginia collapsed — particularly when its employees, who are not in the medical profession, had no idea why she collapsed. What is more, the judge found Mary Virginia suffered no injury at the IOC’s hand. What she died from was her heart attack, which IOC did not cause.

¶ 8. Howard timely appealed. On appeal, we review the grant of summary judgment de novo. Bradley v. Kelley Bros. Contractors, Inc., 117 So.3d 331, 336 (¶ 21) (Miss.Ct.App.2013). We view all the evidence in the light most favorable to Howard, the nonmovant, and will affirm only if there are no genuine issues of material fact and IOC is entitled to a judgment as a matter of law. See id.

Discussion

¶ 9. Howard’s claim is one of negligence. And all negligence claims have four essential elements—(1) duty, (2) breach, (3) causation, and (4) injury. Gulledge v. Shaw, 880 So.2d 288, 292-93 (¶ 10) (Miss.2004). This case hinges on duty— specifically the duty to render aid.

¶ 10. The parties present the duty to render aid as either all or nothing. As Howard views it, there exists a duty for business owners to snap into roles of trained EMTs if they catch wind a patron is ailing. But IOC argues there exists no duty at all.

¶ 11. We disagree with both parties and find the actual duty for proprietors is more than rendering no aid whatsoever but far less than providing every potential means of medical assistance. The duty that exists is to take reasonable actions to render first aid and care for the patron until someone else is able to care for her. IOC indisputably fulfilled this duty by coming to Mary Virginia’s aid, calling an ambulance, and waiting with her until the ambulance arrived. For this reason, we affirm the grant of summary judgment in IOC’s favor.

I. Duty to Render Aid

¶ 12. Let us start by emphasizing that, in general, there is no duty to render aid. “[T]he fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 784 (Miss.1997) (emphasis added) (quoting Restatement (2d) of Torts § 314 (1965)).

¶ 13. But a property owner who holds its property open to the public is in a special relationship with those who accept the invitation to come onto the property. And our supreme court has found this specific relationship prompts a specific duty. In Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416-17 (Miss.1988), the supreme court held that a “tavern keeper”—a business that sold alcohol to its patrons—owed its patron, who had been assaulted just outside its door, “an affirmative duty to aid [the injured patron] once [it] learned that she had been injured on [the] premises.” Twenty years later, the supreme court expounded on this duty. Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 369 (¶ 17) (Miss.2008). In Spotlite Skating Rink, the court looked to section 314A of the Restatement (Second) of Torts, which “provides that an owner of land who holds it open to the public is under a duty to take reasonable action ‘to give invitees first aid after the owner knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.’ ” Spotlite Skating Rink, 988 So.2d at 369 (¶ 17) (quoting Restatement (2d) of Torts § 314A(1)(b) (1965)). According to the supreme court, “[t]his standard of care is consistent with [the court’s previous] holding in Gris-ham[.]” Id. (citing Grisham, 519 So.2d at 417).

¶ 14. So from Spotlite Skating Rink we learn four things about the duty to render aid. First, it applies not just to tavern keepers but also to any “proprietor,” or “owner of land who holds it open to the public.” Id. at 869 (¶ 17). Second, it requires only reasonable first aid. Third, it does not begin until the proprietor knows or should know that a patron is ill or injured and in need of assistance. And fourth, it ends when the care of the patron is assumed by someone else. To this last point we would add that the duty to aid would also end when a patron, who is competent to do so, refuses further aid. Estate of White v. Rainbow Casino-Vicksburg P’ship, 910 So.2d 713, 719 (¶ 18) (Miss.Ct.App.2005).

II. Actions Outside the Scope of Duty

¶ 15. Both Spotlite Skating Rink and Grisham involved allegations of no aid by the business owner to the injured patron. Spotlite Skating Rink, 988 So.2d at 370 (¶ 18); Grisham, 519 So.2d at 417 (property owner told assaulted patron it was “too tied up” to help). But here we have aid. Howard is not alleging IOC did nothing to help his wife. Instead, he claims what IOC did was too little, too late. Yet what Howard argues should have been done — and what his expert says is the only thing that could have been done to keep Mary Virginia’s heart attack from damaging her brain — is outside the scope of the duty to render aid.

¶ 16. According to Howard, the aid IOC rendered was unreasonable because it did not include restarting Mary Virginia’s heart by chest compressions or a defibrillator within six minutes of Mary Virginia’s collapse. But as a matter of law, such medical-rescue services are outside the scope of “reasonable ... first aid.” Spotlite Skating Rink, 988 So.2d at 369 (¶ 17). As the comment to section 314A states, “In the case of an ill or injured person, [a property owner] will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained.” Restatement (2d) of Torts § 314A cmt. f. That is what the IOC employees did here. They tried to give Mary Virginia first aid. When they realized the severity of her condition, they called for an ambulance. And they cared for her until the EMTs arrived.

¶ 17. True, they did not perform CPR immediately or use an AED. But they were not under a legal duty to do so. While our supreme court has yet to explore the parameters of “first aid,” we find guidance in the rationale of other jurisdictions that have rejected claims that performing CPR or using an AED falls within reasonable “first aid.” E.g., L.A. Fitness Int'l., LLC v. Mayer, 980 So.2d 550, 559 (Fla.Dist.Ct.App.2008) (holding section 314A’s obligation to give first aid did not impose duty on gym to perform CPR on patron who had suffered heart attack); Salte v. YMCA of Metro. Chicago Found., 351 Ill.App.3d 524, 286 Ill.Dec. 622, 814 N.E.2d 610, 614-15 (2004) (holding gym’s duty to render aid did not include having and using an AED). Cf. also Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209, 213-14 (2001) (holding duty to take reasonable steps to render first aid did not include performing “Heimlich maneuver” on restaurant patron who was choking).

¶ 18. “First aid requires no more assistance than that which can be provided by an untrained person.” L.A. Fitness Int’l, 980 So.2d at 559. By contrast, CPR, though “relatively simple and widely known as a major technique for saving lives, ... nonetheless requires training and re-certification.” Id. So “[ujnlike first responders, for whom performing CPR is routine, non-medical employees certified in CPR remain laymen and should have discretion in deciding when to utilize the procedure.” Id. The same is true for using a debifrillator, which requires medical training to know, first, that an AED is needed and, second, how to properly use it. See Salte, 286 Ill.Dec. 622, 814 N.E.2d at 614-15.

¶ 19. In concluding that Howard’s allegations cannot support a claim for failure to render aid, we find instructive Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173 (3d Cir.1994), involving another heart attack in a casino with very similar facts. In Lundy, the casino had been sued for failing to provide equipment and capable medical personnel to intubate a heart-attack victim before paramedics arrived. In affirming the grant of summary judgment to the casino, the United States Court of Appeals for the Third Circuit held that “[pjerforming an intubation goes far beyond any ‘first aid’ contemplated by [section] 314A.” Id. at 1179. As the Third Circuit saw it, “Clearly, the duty recognized in [section] 314A does not extend to providing all medical care that the [property owner] could reasonably foresee might be needed by a patron.” Id. See also Salte, 286 Ill.Dec. 622, 814 N.E.2d at 615 (holding that section 314A does “not require [the] defendant to provide, or to be prepared to provide, all medical care that it could reasonably foresee might be needed by a patron”).

¶ 20. In our case, what Howard is really asserting is that IOC employees failed to quickly diagnose that Mary Virginia’s heart had stopped and further failed to immediately and successfully restart her heart by CPR or a defibrillator. But the duty to render aid does not saddle business owners with a duty to provide all medical services reasonably foreseeable as necessary for a patron. See Lundy, 34 F.3d at 1179; Salte, 286 Ill.Dec. 622, 814 N.E.2d at 615. The duty to render aid is much narrower. Businesses like IOC are only required to give reasonable first aid if they know or have reason to know a patron is ill or injured, and to care for the patron until he or she can be cared for by others, here the paramedics. Spotlite Skating Rink, 988 So.2d at 369 (¶ 17); see also Estate of White, 910 So.2d at 719 (¶ 18) (finding a casino fulfilled the duty stated in section 314A by giving first aid to an injured patron “until she insisted on leaving the casino and effectively surrendered her care to her own discretion and to the judgment of her husband”).

¶ 21. Just as in Estate of White, which also involved a casino patron’s death, we do not “stretch the duty of [IOC], and other landowners and business operators, to include a duty which our supreme court and Legislature have not deemed proper to establish.” Estate of White, 910 So.2d at 719 (¶ 19). Because Howard offered no evidence the casino failed to perform the only relevant duty recognized by our supreme court — the duty to render reasonable first aid — we must affirm summary judgment in IOC’s favor. See Spotlite Skating Rink, 988 So.2d at 369 (¶ 17).

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

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

      . The actual name of the casino operator is IOC-Natchez, Inc., not Isle of Capri-Natchez, Inc.

      . See Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 369 (¶ 17) (Miss.2008) (citing Restatement (2d) of Torts § 314A(1)(b), (3) (1965)).

      . There is a discrepancy in the pathologist’s report about how many minutes lapsed between IOC employees coming to Mary Virginia's aid and calling an ambulance. But the report relied on the ambulance service's records, which showed it took ten minutes from being called to make it to Maty Virginia. So even if the ambulance had been called at the earliest possible moment, in the expert's own estimation, the EMTs would not have arrived in time to prevent Maty Virginia's brain damage.

      . One of the errors Howard asserts on appeal is that the circuit judge improperly ruled the expert pathologist's report was not credible, which suggests the judge struck the report or refused to consider it when ruling on IOC’s motion. But the judge made a point to say that, for purposes of summary judgment, she accepted the expert report, even though unsigned. What the judge did not accept is Howard's legal argument that IOC owed Mary Virginia the duty to perform the medical services the expert said were necessary.
      True enough, the judge went on to question the expert’s opinion on proximate causation, expressing her own disbelief "that the expert can say if they had gotten there sooner that this lady would have survived.” But at that point, the judge had already granted the motion based on Howard's failure to establish IOC had a duty to perform CPR or use an AED. So the judge's weighing in on the expert's credibility when it came to proximate causation and injury did not bear on her ruling. Because we affirm summary judgment based on the same lack of duty, we do not address Howard’s claim that the judge improperly found this portion of the expert's opinion was not credible.

      . For purposes of premises liability, Mississippi divides those injured on another's property into three groups: (1) trespassers, (2) licensees, and (3) business invitees. And Mississippi defines "business invitee” as "a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Corley v. Evans, 835 So.2d 30, 37 (¶ 21) (Miss.2003) (quoting Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978)).
      The Restatement (Second) of Torts further divides business invitees into two categories. The first category "includes persons who are invited to come upon the land for a purpose connected with the business for which the land is held open to the public.” Restatement (2d) of Torts § 332(3) cmt. e(1965). The second category "includes those who come upon land not open to the public[J” Id. (emphasis added).
      By stating that the duty to render aid applies to "[a] possessor of land who holds it open to the public," the Restatement clearly has in mind that only the first category of business invitees — those "invited to come upon the land for a purpose connected with the business for which the land is held open to the public” — are owed the duty to render aid. Restatement (2d) of Torts § 314A(3).


author: JAMES, J.,

text:
    Juquin WILSON a/k/a Jaquin Wilson a/k/a Juquin Markies Wilson, Appellant v. STATE of Mississippi, Appellee.
    NO. 2013-KA-00513-COA.
    Court of Appeals of Mississippi.
    June 3, 2014.
    Office of State Public Defender by George T. Holmes, Mollie Marie McMillin, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Juquin Wilson was indicted on a charge of auto burglary. Wilson was convicted and sentenced to five years in the custody of the Mississippi Department of Corrections. Wilson filed a motion for a new trial, which was denied. Wilson appeals claiming the trial court erred in denying his motion for a new trial, because the verdict is against the weight of the evidence. Finding no error, we affirm.

FACTS

¶2. On November 7, 2012, Lisa Claiborne looked out of the window of her home and noticed a man in her car. The man was bent down, wearing a blue and white jacket and a skull cap. Claiborne later identified the man as Wilson. Claiborne testified that she left her car unlocked, and she saw Wilson looking into her purse.

¶ 3. Claiborne approached her car and struck the window. Startled, Wilson raised his head, and then ran. Claiborne got in her car and pursued Wilson down the street. Wilson looked back twice while running before he ran through shrubbery to escape Claiborne. Claiborne’s neighbor called the police, and Claiborne made a police report. She identified Wilson as the culprit, and he was arrested later that day.

¶ 4. Following a jury trial, Wilson was convicted of auto burglary and sentenced to five years in the custody of the Mississippi Department of Corrections. On March 18, 2013, Wilson filed a motion for a new trial, a motion to set aside his sentence, and a motion for a judgment of acquittal notwithstanding the verdict of the jury (JNOV). The trial court denied all of the motions on March 20, 2013. Wilson appeals.

STANDARD OF REVIEW

¶ 5. The appellate court “review denials of motions for a new trial based on the weight of the evidence, while we review denials of motions for a JNOV based on the sufficiency of the evidence.” Braggs v. State, 121 So.3d 269, 272 (¶ 6) (Miss.Ct.App.2013). “In our review of a denial of a motion for [a] new trial, we accept as true all evidence in favor of the State. We will reverse the denial of a motion for a new trial only if the trial court abused its discretion.” Id. at (¶ 7) (internal citation omitted).

DISCUSSION

¶ 6. Wilson’s sole assignment of error is that the trial court erred when it denied his motion for a new trial, and the verdict is against the overwhelming weight of the evidence. The Court has previously held that “[wjhen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Johnson v. State, 94 So.3d 316, 322 (¶ 16) (Miss.Ct.App.2011). Further, “the evidence should be weighed in the light most favorable to the verdict.” Id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Brown v. State, 130 So.3d 1074, 1082 (¶ 25) (Miss.2013).

¶ 7. Wilson points to several occurrences in the record to bolster his contention that the verdict was against the weight of the evidence. First, Wilson states that Claiborne did not get a good look at the man she saw through her window. Claiborne, however, testified that her car was parked less than ten yards away from the window of her home. Moreover, when Claiborne was in pursuit of the perpetrator, he looked back twice, giving her additional opportunities to see his face.

¶ 8. Next Wilson maintains that by the time Claiborne got in her car to chase the perpetrator, she lost sight of him and assumed that Wilson was the man she caught in her car earlier. Claiborne recognized Wilson from earlier that morning and testified that she knew him from the neighborhood and went to school with his family members. Wilson also states that the man Claiborne saw through her window was wearing a blue and white jacket and a skull cap; whereas when he was apprehended, he was wearing a white shirt and dark pants. However, the trial testimony indicates that Wilson was arrested several hours after the incident. Thus, Wilson had time to change his clothes.

¶ 9. Wilson further contends that his alibi for the burglary is that he was at his grandmother’s house, where he frequently stays overnight. Wilson’s cousin also testified that she saw Wilson there and that he came out of the bedroom at approximately 10 a.m. However, she also testified that she was awake only thirty minutes before, which would leave Wilson unaccounted for at the time the burglary occurred. As a result, we find that the weight of the evidence supports the jury’s verdict. The facts do not support a reversal on these grounds. Therefore, this issue is without merit.

¶ 10. For the above reasons, we affirm the judgment of conviction of auto burglary and sentence of five years.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF AUTO BURGLARY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


author: BARNES, J.,

text:
    Danny BUFKIN, Appellant v. Ronald KING, et al., Appellees.
    No. 2013-CP-00392-COA.
    Court of Appeals of Mississippi.
    June 3, 2014.

      Danny Bufkin, appellant, pro se.
    Office of the Attorney General by Anthony Louis Schmidt Jr., attorney for ap-pellees.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Danny Bufkin was convicted by the Jasper County Circuit Court for possession of precursors with intent to distribute, and he was sentenced as follows:

Bufkin shall be sentenced to serve a term of Twelve (12) years in the direction, supervision and control of the Mississippi Department of Corrections. The defendant is ordered to successfully complete two (2) years in the Intensive Supervision Program as specified by [Mississippi Code Annotated sections] 47-5-1001 through 47-5-1015. Said sentence is conditioned upon the defendant agreeing to and complying with all conditions outlined in this Order and in the Intensive Supervision Agreement as provided by the Mississippi Department of Corrections.
IT IS FURTHER ORDERED AND ADJUDGED that after the defendant is released from the Intensive [Supervision Program of the Mississippi Department of Corrections, the defendant shall be placed on Post-Release Supervision for a period of nine (9) years, five (5) years of which shall be supervised, pursuant to [Mississippi Code Annotated section] 47-7-34 and be subject to the conditions set forth in [Mississippi Code Annotated section] 47-7-35(a)]]).
IT IS FURTHER ORDERED AND ADJUDGED that if the defendant fails to successfully complete the Intensive Supervision Program, the defendant will serve the full twelve (12) year sentence, and said sentence cannot be reduced or suspended[,] and that defendant is required to serve his said sentence without probation or parole.

Bufkin entered the Intensive Supervision Program (ISP) in March 2012. However, one month later, it was determined that Bufkin had violated the terms of the ISP. Specifically, alcohol was found in his home, and he was arrested for driving under the influence (DUI). As a result, the Mississippi Department of Corrections (MDOC) revoked his ISP status, and Bufkin was incarcerated to serve the remainder of his sentence. He is currently an inmate confined at the South Mississippi Correctional Institution in Greene County, Mississippi.

¶ 2. Bufkin appealed his revocation through the MDOC’s Administrative Remedy Program (ARP). The MDOC upheld the revocation, and Bufkin contested the MDOC’s administrative decision with the Greene County Circuit Court on November 2, 2012. A few days later, Bufkin filed a motion for leave to file an amended complaint, requesting an evidentiary hearing and the production of blood tests conducted on Bufkin following his DUI arrest.

¶ 3. On February 4, 2013, Bufkin filed another motion for leave to file an amended complaint, additionally arguing the sentencing court impermissibly provided the MDOC authority to revoke his nine-year “suspended” sentence. On February 12, 2013, the circuit court entered an order upholding the MDOC’s ARP decision; the order did not address the other two issues raised by Bufkin.

¶ 4. Bufkin now appeals the circuit court’s decision regarding the revocation of ISP status, and he reasserts his claim that the MDOC acted outside of its authority in revoking his nine-year suspension and placement on post-release supervision. Finding that the MDOC’s decision to revoke his sentence was not arbitrary or capricious, we affirm in part the Greene County Circuit Court’s order upholding the MDOC’s decision.

¶ 5. Bufkin’s remaining issue regarding the legality of his sentence was not addressed by the circuit court. Since Jasper County, not Greene County, was the sentencing court, Greene County Circuit Court actually has no authority to address the issues relating to Bufkin’s sentence.

¶ 6. However, the State acknowledges:

Even though Bufkin’s Sentencing Order states that no part of the sentence shall be suspended, it can be interpreted that the intent of the circuit court was to suspend nine years of Bufkin’s twelve[-]year sentence. A condition of that suspension and placement on post-release supervision for nine years was for Bufkin to satisfactorily complete the ISP as determined by the circuit court.

Thus, the State admits that “Bufkin’s claim relating to his sentence and return to serve his full term due to revocation of ISP needs further judicial review.” The State asks us to remand the case to Greene County Circuit Court so that it may be transferred to the Jasper County Circuit Court. We do not, however, find that we have the authority to do so.

DISCUSSION

I. Whether Bufkin violated the terms of the ISP.

¶ 7. Bufkin properly pursued an ARP appeal and was unsuccessful before filing his civil complaint in Greene County. See Miss.Code Ann. § 47-5-803 (Rev.2011); Babbitt v. State, 755 So.2d 406, 409-10 (¶¶ 15-16) (Miss.2000). “The decision of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Griffis v. Miss. Dep’t of Corr., 809 So.2d 779, 782 (¶ 8) (Miss.Ct.App.2002) (citation omitted). We find that the decision of the MDOC was supported by substantial evidence. Bufkin was arrested for DUI, and alcohol was found in his home — a clear violation of the terms of the ISP. Furthermore, the MDOC’s decision was not arbitrary and capricious, was not beyond the MDOC’s powers, and did not violated Bufkin’s statutory or constitutional rights. Therefore, the judgment of the circuit court is affirmed in part.

II. Whether the remainder of Buf-kin’s sentence was impermissibly revoked.

¶ 8. Bufkin also asserts that the MDOC exceeded its authority by revoking his “suspended” sentence. To summarize, Bufkiris sentencing order states: (1) Buf-kin is to serve a twelve-year sentence; (2) the first two years are to be served in the ISP; and (3) if Bufkin successfully completes the ISP, he is to be transferred from the ISP to nine years of post-release supervision. Bufkin argues that since the MDOC did not have the authority to revoke his suspended sentence, he should be released to begin his court-ordered post-release supervision once his two years in custody are completed.

¶ 9. The MDOC has exclusive authority to terminate ISP status without the court-required due process considerations. The MDOC has determined that ISP terms were violated, and the consequence is a transfer from home confinement to custody status. The question is, for how long? This is not a case where the MDOC is misinterpreting the language of a sentencing order, and the failure properly to interpret and execute the order is subject to administrative review. The MDOC is applying the literal language of the order.

¶ 10. The views of this Court have been somewhat conflicted on the type of “conditional” sentence imposed in the present case. In Ivory v. State, 999 So.2d 420 (Miss.Ct.App.2009) (en banc), Annie Ivory was sentenced to fifteen years, with one year to be served in the ISP and, upon successful completion of the ISP, the remaining years to be suspended, with four years to be served under post-release supervision. After violating the terms of the ISP, she was remanded into custody to serve the remainder of her sentence. Id. at 423-24 (¶¶ 4-6). Ivory filed a PCR motion, alleging that after one year, she was being unlawfully held in custody. Id. at 424 (¶ 7). We upheld Ivory’s sentence, but only because the ISP term was one year and the sentencing court had retained jurisdiction for one year to suspend the sentence upon successful completion of the ISP. Id. at 431 (¶ 36). The separate opinion in Ivory agreed with the majority’s findings, with one exception. The separate opinion argued that the sentencing order’s provision that Ivory be placed on post-release supervision without further order by the court violated Mississippi Code Annotated section 47-5-1003 (Supp. 2008). Ivory, 999 So.2d at 432 (¶ 40) (Chandler, J., concurring in part, dissenting in part). The statute stated that the ISP cannot be a condition of post-release supervision. However, this statute has since been revised to state that a circuit court cannot impose the ISP during a term of post-release supervision. See Miss.Code Ann. § 47-5-1003(4) (Rev.2011).

¶ 11. This statutory amendment was addressed in Jones v. State, 97 So.3d 1254, 1258 (¶ 11) (Miss.Ct.App.2012), where this Court held that the circuit court could not legally impose this type of conditional sentence and that “the conditional aspect of the circuit court’s sentence [was] a nullity.” We ruled that the prisoner was to serve the revoked ISP term in the custody of the MDOC and then be released to “begin serving the remainder of his post-release supervision.” Id. at (¶ 12). If the defendant thereafter violated his post-release supervision terms, the sentencing court could then decide whether to revoke all or part of his remaining sentence after a “constitutionally mandated due-process hearing.” Id.

¶ 12. In Johnson v. State, 77 So.3d 1152, 1153 (¶ 2) (Miss.Ct.App.2012) (en banc), the trial court sentenced Eldridge Johnson to ten years in the custody of the MDOC, with two years to be served in the ISP and, upon successful completion of the ISP, the remaining eight years to be suspended. The majority interpreted the sentencing order to suspend eight years of the ten-year sentence, with a condition of the suspension to be the satisfactory completion of the ISP as determined by the circuit court. Id. at 1157 (¶ 18). The Court held that at the conclusion of the two-year period (whether served in the ISP or in custody after revocation by the MDOC), the circuit court would have to afford Johnson a revocation hearing to determine whether he had violated a condition of the eight-year suspended portion of his sentence. Id. at (¶ 19). The dissent in Johnson, however, asserted that Johnson was sentenced to ten years, and that due to Johnson’s failure to complete the ISP, his suspended sentence never came into being. Id. at 1158 (¶ 22) (Barnes, J., dissenting). Thus, he was not constitutionally entitled to a revocation hearing, and the sentence was not “impermissibly indeterminate.” Id. at (¶ 21).

¶ 13. In the present case, however, the State has conceded that “it can be interpreted that the intent of the circuit court was to suspend nine years of Bufkin’s twelve[-]year sentence.” The State also notes: “Bufkin did not go before the circuit court for a revocation hearing to determine if he should serve the remainder of his implicitly suspended sentence.” Thus, the State acknowledges that “the issue of Bufkin’s sentence duration requires further judicial review” by the appropriate circuit court.

¶ 14. We cannot, however, reverse and remand this matter to the circuit court “so the circuit court or the State, if it so chooses, may initiate proper proceedings for the revocation of ... [the] suspended sentence,” as we did in Johnson. Id. at 1157 (¶ 19) (majority opinion). In each case discussed, Johnson, Jones, and Ivory, a decision of the sentencing court on a PCR motion was appealed. In Graham v. State, 85 So.3d 847, 850 (¶ 4) (Miss.2012), the Mississippi Supreme Court held that the sentencing court has original and exclusive jurisdiction to consider the legality of a sentence in a PCR proceeding. Buf-kin, on the other hand, is appealing an order of a non-sentencing court, as the case came up through the ARP process and was appealed to the Circuit Court of Greene County, the place of Bufkin’s incarceration.

¶ 15. Both Bufkin and the State have requested that this Court remand this issue to the Greene County Circuit Court, for transfer of the action to the appropriate sentencing court, Jasper County Circuit Court. However, in Chandler v. Mississippi Department of Corrections, 133 So.3d 817, 817 (¶ 1) (Miss.2014) (en banc), the supreme court recently reiterated that only the sentencing court has “exclusive, original jurisdiction to hear and determine” a petitioner’s motion for PCR and that the proper disposition is to vacate the court’s order without prejudice to the petitioner’s “right to file his motion in the proper court.” Therefore, we vacate in part without prejudice. Should Bufkin wish to file a motion for post-conviction relief, asserting that the non-suspended portion of his sentence has expired, or should the State wish to pursue the revocation of Bufkin’s suspended sentence, either may do so in the proper court.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY IS AFFIRMED IN PART, AND VACATED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GREENE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ„ CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J. NOT PARTICIPATING.

      . It is not clear why the court chose nine, rather than ten, years of post-release supervision.

      . This motion became the subject of a motion for a writ of mandamus, which we address separately from this opinion.

      . Graham also concerned the effect of the prisoner’s failure to satisfy the terms of the ISP, which was a condition of his suspended sentence.


author: STUART, Justice. MURDOCK, Justice

text:
    Ex parte DRUMMOND COMPANY, INC., et al. (In re Tom G. Ward, Jr., as administrator of the estate of Roberto Estrada, deceased v. Drummond Company, Inc., et al.). Ex parte Fairchild International, Inc. (In re Tom G. Ward, Jr., as administrator of the estate of Roberto Estrada, deceased v. Drummond Company, Inc., et al.).
    1120580 and 1120707.
    Supreme Court of Alabama.
    Aug. 23, 2013.
    William Anthony Davis III, Philip G. Piggott, and Benjamin T. Presley of Starnes Davis Florie LLP, Birmingham, for petitioners Drummond Company, Inc., Kim A. Burke, and John Y. Jiang.
    John F. DeBuys, Jr., and Edward D. Cotter of Burr & Forman LLP, Birmingham, for petitioner Fairchild International, Inc.
    James C. King, Keith M. McKerell, and Justin L. Jones of King, Wiley & Williams, Jasper, for respondent.
   STUART, Justice.

1120580 — PETITION DENIED. NO OPINION.

1120707 — PETITION DENIED. NO OPINION.

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

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

The primary issue we must confront in this case is whether the question that has been raised as to the plaintiffs ability to bring this action is one of “standing.” I agree with the trial court that it is not. As to this issue, the trial court released a lengthy opinion in support of the order that this Court declines to disturb today. There are portions of the trial court’s opinion with which I agree and that I find particularly well written and meritorious of publication in light of the confusion in recent years in our jurisprudence as to the issue of standing. I write separately to achieve that publication and to comment on the trial court’s conclusions.

The trial court first set out the pertinent facts and procedural history:

“On or about July 12, 2005, Roberto Estrada died from injuries suffered while working as a coal miner for Sunrise Coal Co., LLC, at the NEWCO # 1 mine in Jefferson County, Aabama. On or about April 25, 2007, Thomas G. Ward, Jr., petitioned the Probate Court of Blount County, Aabama to appoint an Administrator Ad Colligendum for the Estate of Roberto Estrada, deceased, pursuant to Ma.Code (1975) § 43-2-47, for the purpose of maintaining a wrongful death action on behalf of the Estate of Roberto Estrada, deceased .... Thereafter, on or about April 26, 2007, the Honorable David Standridge, Judge of Probate for Blount County, entered an Order Appointing Thomas G. Ward, Jr., Administrator Ad Colligendum for the Estate of Roberto Estrada, ordering Mr. Ward to preserve and protect the assets of the Estate, and vesting him “with the actual authority to bring and maintain, for the entire course of his service, adversarial actions if necessary on behalf of the Estate.’....
“On or about July 6, 2007, Mr. Ward, in his capacity as Administrator of the Estate of Roberto Estrada, deceased, filed this action for the wrongful death of Mr. Estrada.... Thereafter, on or about August 14, 2007, more than two years after the death of Mr. Estrada, Plaintiff filed a ‘Supplemental and Additional Pleading’ joining Laura Estrada as party Plaintiff to this matter.... On or about August 31, 2010, Drummond Defendants filed a Motion for Summary Judgment, pursuant to Rule 56, Ala. R. Civ. P., arguing therein, that they were entitled to judgment as a matter of law.”

In their motion for a summary judgment, defendants Drummond Company, Inc., Kim A. Burke, and John Y. Jiang (hereinafter referred to collectively as “the Drummond defendants”) specifically argued that Ala.Code 1975, § 25-5-11, restricted a cause of action for wrongful death to “dependents” of the decedent. They argued that plaintiff Tom G. Ward, Jr., as administrator of the estate of Roberto Estrada, deceased, did not have “standing” to bring the claims described in his complaint, that the trial court therefore lacked jurisdiction over those claims, and that, in turn, the claims asserted by plaintiff Laura Estrada, a “dependent” of Roberto Estrada, could not relate back to the claims filed by Ward. Accordingly, the Drummond defendants contended, because Laura Estrada’s claims were filed more than two years after the death of the decedent, they were time-barred. Defendant Fairchild International, Inc., subsequently adopted the arguments of the Drummond defendants.

Section 25-5-11 specifically provides a cause of action to the dependents of a deceased employee covered by the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. As I stated in my special writing in Ex parte Tyson Foods, Inc., [Ms. 1110931, May 24, 2013] — So.3d - (Ala.2013):

“[0]ur precedents [applying § 25-5-11] appear to stand for the proposition that the right to bring an action against a third-party tortfeasor for the wrongful death of an employee who also is entitled to benefits under the Workers’ Compensation Act resides exclusively with the former dependents of the deceased employee.”

— So.3d at-(Murdock, J., concurring specially). I expressed some doubt as to this proposition, but noted that it had not been called into question by the parties in that case. Id. Neither has it been here.

If we accept the above-referenced “proposition” as our premise for deciding this case, it is clear that, at a minimum, Ward has no cause of action under Alabama law. The question is whether the concept of “standing” comes into play as well. It does not.

Our law — again, as I take it for purposes of these appellate proceedings — does not accept the legal theory that any party other than a dependent has a cause of action for the death of an employee covered by the Workers’ Compensation Act. In this regard, recent precedents of this Court have been clear: “whether [the plaintiff] has seized upon a legal theory our law accepts[ ] is a cause-of-action issue, not a standing issue”; “ ‘the two are conceptually distinct.’ ” Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1220 (Ala.2010) (quoting Angleton v. Pierce, 574 F.Supp. 719, 726 (D.N.J.1983)). See also Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89, 91 n. 2 (Ala.2010) (citing Wyeth, 42 So.3d at 1220, for the proposition that the appellee has “confused standing with failure to state a claim”).

“The legal question of the cognizability of an alleged cause of action under state law goes to the merits of a lawsuit asserting that cause rather than the subject-matter jurisdiction of the court to decide that legal question. See, e.g., Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1219 and 1220 (Ala.2010) (‘[O]ur courts too often have fallen into the trap of treating as an issue of “standing” that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action’....); Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89, 91 n. 2 (Ala.2010) (citing Wyeth, 42 So.3d at 1220, for the proposition that the appel-lee has ‘confused standing with failure to state a claim’); Hamm v. Norfolk Southern Ry., 52 So.3d 484, 499 (Ala.2010) (Lyons, J., concurring specially) (urging this Court to think of standing in ‘justici-ability’ terms); Ex parte McKinney, 87 So.3d 502, 512-13 (Ala.2011) (Murdock, J., dissenting) (citing 13A Charles Alan Wright et al., Federal Practice & Procedure § 3531 (3d ed.2008), for the proposition that ‘[o]ur courts too often have treated as a matter of subject-matter jurisdiction that which does not go to the fundamental authority of the courts to decide a case,’ i.e., the fundamental authority of a court to decide both the legal and the factual issues presented by that case); see also Jerome A. Hoffman, The Malignant Mystique of ‘Standing’, 73 Ala. Lawyer 360 (2012).”

South Alabama Gas Dist. v. Knight, 138 So.3d 971, 979-80 (Ala.2013) (Murdock, J., concurring in the rationale in part and concurring in the result).

As the trial court in the present case well explained:

“To say the least, both the language of and conceptual notions concerning the ‘standing’ doctrine in Alabama jurisprudence have become muddled in relatively recent years. The evolution of the ‘standing’ concept in the corpus juris of the Alabama appellate courts ‘is an excellent illustration of the extent to which uncritical use of words bedevils the law.’
“ ‘A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula indiscriminately used to express different and sometimes contradictory ideas.’
“Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 87 L.Ed. 610 (1943) (Frankfurter, J., concurring); see also O.W. Holmes, Law and Science. Science and Law, 12 Harv. L.Rev. 443, 455 (1899) (‘It is not the first use but the tiresome repetition of inadequate catch words upon which I am observing— phrases which originally were contributions, but which, by their very felicity, delay further analysis for fifty years. That comes from the same source as dislike of novelty, ... a slackening in the eternal pursuit of the more exact.’). The problem, it appears, is brought about — at least in part — by the Alabama appellate courts’ seemingly indiscriminate reliance upon the term ‘standing’ in a variety of contexts throughout the years where, quite frankly, it has no legitimate, healthy part to play. See, e.g., J. Hoffman, The Malignant Mystique of ‘Standing,’ THE ALABAMA LAWYER, Vol. 73, No. 5 at 363; see C. Wright, A. Miller, & E. Cooper, 13A FED. PRAC. & PROC. JURIS § 3531 (3d ed. 2008) (‘The question whether the law recognizes the cause of action stated by a plaintiff is frequently transformed into inappropriate standing terms.’)....
“As Plaintiffs point out, however, ‘[c]onceptual labels carry real and considerable repercussions,’ Letter Brief, dated June 15, 2012, at p. 6, not the least of which being that, ‘[i]mpreeision in labeling a party’s inability to proceed as a standing problem unnecessarily expands the universe of cases lacking in subject-matter jurisdiction.’ Hamm v. Norfolk Southern Ry. Co., 52 So.3d 484, 499 (Ala.2010) (Lyons, J., concurring specially); Ex parte McKinney, 87 So.3d [502] at 512 [ (Ala.2011) ] (Murdock, J., dissenting) (‘Our courts too often have treated as a matter of subject-matter jurisdiction that which does not go to the fundamental authority of the courts to decide a case.’)- Such needless expansion was very recently criticized by the inimitable Professor Hoffman in an article appearing in THE ALABAMA LAWYER, Vol. 73, No. 5 361 (Sept. 2012), entitled, ‘The Malignant Mystique of “Standing ” ’:
“ ‘Lack of statutory authorization best supports analysis as the lack of a claim upon which relief can be granted, that is, a claim under Rule 12(b)(6), [Ala. R. Civ. P.,] not a claim over which the forum court lacks subject matter jurisdiction, that is, not a claim under Rule 12(b)(1). To invoke the word “standing,” with all of its federal constitutional law baggage, creates the risk that this public law proposition will spread to private law contexts where it never belongs, rendering the filing of ill-conceived but not irredeemable private law complaints not merely mistaken acts, reparable by amendment, but void acts, not reparable by amendment. The proposition is dangerous because, by the same kind of casual thinking, the word “standing” unnecessarily invoked in the proposition can be erroneously equated with “real party in interest” or “failure to state a claim.” This simple, though doctrinally unjustified, extension could swallow up Rule 12(b)(6), Rule 17[, Ala. R. Civ. P.,] and the whole law of amendments.’
“While the Court is mindful of the concern to observe the Constitutional limits of its judicial power, the undersigned is equally cautious of allowing the fascination and complexity of standing doctrine to lead this Court to improperly attempt to view and resolve questions of private rights through inappropriate invocation and application of distinctive public-law concepts; at least not under the facts and circumstances presented here. The short of the matter is that the concerns Defendants raise, respectively, in this case, simply do not involve matters that turn on the special justici-ability concerns surrounding public interest litigation; in as much, such concerns are, both legally and practically, more appropriately addressed [in private-rights actions] through the private-law concepts of cause-of-action, real-party-in-interest, capacity, intervention, and like notions. See, e.g., C. Wright, A. Miller & E. Cooper, 13A FED. PRAC. & PROC. JURIS. § 3531 (3d ed. 20008).”

(Emphasis added.)

I agree with the concerns expressed by the trial court and by Professor Hoffman, and with the concerns reflected in the writings of Professors Wright and Miller, regarding the invocation of the concept of standing in private-law cases. The issue before us is not properly viewed as one of standing and does not implicate the subject-matter jurisdiction of the court.

After concluding that the issue before it was not one of standing, the trial court considered whether the issue was one of the “capacity” of the original plaintiff or whether the case should be governed by “real-party-in-interest” practice under Rule 17, Ala. R. Civ. P. The trial court rejected the capacity option with the following analysis:

“ ‘Capacity,’ properly considered, ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate and typically is determined without regard to the particular claim or defense being asserted,’ and ‘should not be confused with the question of whether a party has an enforceable right or interest or is the real party in interest.’ C. Wright & A. Miller, 6A FED. PRAC. & PROC, CIV. § 1559 (3d ed.2008); see, e.g., Board of Educ. of City of Peoria, School Dist. No. 150 v. Illinois Bd. of Educ., 810 F.2d 707, 710 (7th Cir.1987), cert. denied, 484 U.S. 829, 108 S.Ct. 99, 98 L.Ed.2d 60 (1987) (citing Wright & Miller, supra).”

Having rejected “capacity” as the relevant issue, the trial court concluded that the issue presented in this case is a real-party-in-interest issue governed by Rule 17. I believe a serious question exists as to whether the challenge to Ward’s ability to bring his original action falls within the category of cases governed by Rule 17 rather than within the presumably larger group of cases governed simply by the defenses of failure to state a claim and the applicable statute of limitations. See June F. Entman, More Reasons for Abolishing Federal Rule of Civil Procedure 17(a): The Problem of the Proper Plaintiff and Insurance Subrogation, 68 N.C. L.Rev. 893, 897 (1990); 13A Charles Alan Wright et al., Federal Practice and Procedure § 3531 (3d ed.2008); see also Advisory Committee’s Notes to the 1966 Amendment to Rule 17, Fed.R.Civ.P. (noting the original and “modern” purposes of the rule that appear to contemplate the existence of a cause of action in the initial plaintiff). This question, however, is not properly before us. Instead, the mandamus petitions before us are necessarily based only on an argument that Ward lacked “standing” to file the only complaint that was filed in this action before the expiration of the statute of limitations. Because the trial court properly resolved that issue, I concur in the decision of this Court to deny the petitions.

      . The section of Federal Practice and Procedure cited by the trial court explains that "[cjapacity has been defined as a party’s personal right to come into court.” That is, it is concerned with such matters as age and competence in the case of natural persons and with the grant of authority to sue and be sued in the case of public and private corporations. See also Ex parte Tyson Foods, Inc., - So.3d at - (Murdock, J., concurring specially).


author: THOMAS, Judge.

text:
    Kenneth Eugene GRAY v. Jenifer Lee GRAY.
    2120225.
    Court of Civil Appeals of Alabama.
    Aug. 2, 2013.

      Derrick Blythe, Alexander City, for appellant.
    Jenifer Lee Gray, pro se.
   THOMAS, Judge.

Kenneth Eugene Gray (“the father”) and Jenifer Lee Gray (“the mother”) were married in Florida in January 2009. They moved to Alabama in January 2010. On July 25, 2010, the mother left the marital residence and relocated to Michigan; she was pregnant with the parties’ child. The father filed an action in the Tallapoosa Circuit Court (“the Alabama trial court”) seeking a divorce from the mother on September 3, 2010. The mother delivered the parties’ child in Michigan on October 26, 2010.

On June 13, 2011, the mother filed a motion to dismiss the father’s action, alleging, among other things, that the Alabama trial court lacked jurisdiction to make a child-custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Ala.Code 1975, § 30-3B-101 et seq. The mother submitted an affidavit in support of her motion to dismiss; she stated that she had left Alabama in July 2010, that the child had been born in Michigan, and that the child had never been to Alabama. After a hearing on the mother’s motion, the Alabama trial court denied her motion by order dated August 1, 2011. The mother filed a motion seeking reconsideration of the Alabama trial court’s denial of her motion to dismiss, which the Alabama trial court denied in November 2011.

The case proceeded to a trial in November 2012, at which the mother appeared only through counsel. Only the father testified at trial. According to the father, the mother had stolen certain items when she left the marital residence. He also stated that the mother was addicted to narcotic pain medication and opined that she was unfit to rear the parties’ child. Upon questioning by the mother’s counsel, the father admitted that he had sought mental-health treatment during the parties’ marriage and that he had, at one time, taken certain medications as a result; he did not state his diagnosis, and he said that he no longer took the medications. The Alabama trial court entered a judgment on November 19, 2012, in which it divorced the parties, awarded the parties joint legal custody of the child, awarded the mother physical custody of the child, awarded the father certain visitation privileges, and ordered the father to pay child support. The father filed a timely notice of appeal. He challenges the award of physical custody to the mother.

Neither party has raised the issue of this court’s jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of subject-matter jurisdiction ex mero motu. See Williams v. Williams, 70 So.3d 382, 333 (Ala.Civ.App.2009). “[Jurisdiction to make a child custody determination [under the UC-CJEA] is subject matter jurisdiction,” Ala. Code 1975, § 30-3B-201, Official Comment.

The UCCJEA provides the framework for the determination of what state may enter a child-custody determination regarding a child. Section 30-3B-201 provides:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

The UCCJEA defines “home state” in § 30-3B-102(7), which reads in its entirety:

“The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the státe in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.”

The evidence in the record establishes that the parties’ child was born in Michigan and has never resided in Alabama. These facts raise the question whether Alabama is the child’s home state under the UCCJEA. The home-state determination in the present case is complicated by the fact that, at the time of the commencement of the father’s divorce action, the child had not yet been born. The definition of “home state” in the UCCJEA expressly addresses a situation involving a child less than six months of age at the time of the commencement of the action, whose home state would be “the state in which the child lived from birth” with a parent or a person acting as a parent. However, the definition does not clearly indicate how it is to be applied to unborn children, who, at the time of the commencement of the action seeking to determine their custody, have not yet “lived from birth” in any state.

Alabama has yet to consider the application of the UCCJEA to such a situation. The determination of this jurisdictional question requires us to interpret the definition of “home state” contained within the UCCJEA. Thus, we will begin by considering the principles applicable to statutory construction.

“It is this Court’s responsibility to give effect to the legislative intent whenever that intent is manifested. State v. Union Tank Car Co., 281 Ala. 246, 248, 201 So.2d 402, 403 (1967). When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406-07 (Ala.1993).... Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says. Ex parte Shelby County [Health ] Care Auth., 850 So.2d 332 (Ala.2002).”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003). In addition, “ ‘ “ ‘[tjhere is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.’ ” ’ ” Surtees v. VFJ Ventures, Inc., 8 So.3d 950, 970 (Ala.Civ.App.2008) (quoting Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000), quoting in turn other cases).

A fair reading of § 30-3B-102(7) results in the conclusion that an unborn child cannot have a home state. Generally, a state secures the status of “home state” if a child has lived in that state with a parent or a person acting as a parent for a period of six months preceding the commencement of a child-custody proceeding. § 30-3B-102(7). Pursuant to its definition, the term “home state” is expressly applied to children less than six months of age, and the requirement that the child live in a state for at least six months preceding the commencement of a child-custody proceeding is relaxed to make the home state that state “in which the child lived from birth with [a parent or a person acting as a parent].” Id. An unborn child, however, has not “lived from birth” in any state. Thus, we are convinced that the UCCJEA does not provide a basis for jurisdiction over a child-custody proceeding involving an unborn child.

Such a construction comports with the conclusion of three of our sister states that have directly considered the question under their versions of the UCCJEA. See, e.g., Arnold v. Price, 365 S.W.3d 455, 461 (Tex.App.2012) (concluding that a home-state determination could not be made at the commencement of a child-custody proceeding when the child was yet unborn and that the state in which the child was later born would become his home state at the time of his birth); B.B. v. A.B., 31 Misc.3d 608, 916 N.Y.S.2d 920 (Sup.Ct.2011) (determining that the home state of a child born in Minnesota after the mother decided not to return to New York after a visit to her childhood home in Minnesota was Minnesota and not New York, where the mother and father had resided as a married couple); Waltenburg v. Waltenburg, 270 S.W.3d 308, 318 (Tex.App.2008) (deciding under the Texas version of the UCCJEA that the UCCJEA “does not authorize jurisdiction over a child custody claim concerning a child before its birth”); In re Custody of Kalbes, 302 Wis.2d 215, 733 N.W.2d 648 (Ct.App.2007) (determining that Idaho did not have jurisdiction under the UCCJEA of a child who was not born at the time the Idaho action was instituted and who was later born in Wisconsin); see also In re Marriage of Tonnessen, 189 Ariz. 225, 227, 941 P.2d 237, 239 (Ct.App.1997) (determining under the Uniform Child Custody Jurisdiction Act (“UCCJA”) that Arizona was the home state of a child born in Arizona and stating that “[t]he statute does not contemplate the in útero period of time in determining ... home state; it contemplates a postnatal child”); and In re Marriage of Tonnessen, 937 P.2d 863 (Colo.Ct.App.1996) (concluding under the UCCJA that Arizona was the home state of the children born in Arizona after the institution of an action in Colorado).

We find instructive the rationale relied upon by the Texas Court of Appeals in both Arnold and Waltenburg. In Walten-burg, the father had commenced a custody proceeding regarding his unborn child in Arizona before the child was born, and the mother commenced an action in Texas after the child’s birth there. Waltenburg, 270 S.W.3d at 311. When the Texas trial court dismissed the mother’s child-custody proceeding, the mother appealed. Id. at 312. In its consideration of the mother’s appeal, the Texas Court of Appeals rejected the father’s argument that the Arizona court had subject-matter jurisdiction over the custody proceeding filed in Arizona because, the father contended, under the UCCJEA, an unborn child had no “home state,” stating:

“[Rjeading the UCCJEA to authorize jurisdiction over a custody matter concerning an unborn child would defeat the clear purpose underlying the legislature’s enactment of the UCCJEA — to prioritize home-state jurisdiction. See Powell[ v. Stover ], 165 S.W.3d [322,] 325 [ (Tex.2005) ]. Under such a reading, a party could file suit pre-birth under the UCCJEA provision authorizing jurisdiction when ‘no other court has jurisdiction,’ and use the ‘simultaneous proceeding’ provision to control, post-birth, whether the child’s home state can ever exercise that ‘priority’ jurisdiction. We reject this reading of the UCCJEA.”

Waltenburg, 270 S.W.3d at 318.

The holding in Waltenburg was applied and further explained in Arnold, which concerned whether a Texas court had subject-matter jurisdiction over a child-custody proceeding commenced in Texas by a father before the birth of his child despite the fact that the child had since been born to the mother in California. Arnold, 365 S.W.3d at 457. The Arnold court explained that, although a child’s home state is typically determined at the time of the commencement of the child-custody proceeding, a child’s home state may not be determined until his or her birth. Id. at 461. That is, the court stated, “subject matter jurisdiction for a child that had not been born at the time of commencement is determined ‘on the pleadings of the parties and the undisputed evidence as to the date and location of [the child]’s birth.’ ” Id. (quoting Waltenburg, 270 S.W.3d at 315).

Because the father commenced his action in the Alabama trial court before the birth of the parties’ child, we conclude that the determination of the child’s home state was necessarily deferred until its birth. The undisputed evidence before the Alabama trial court is that the child was born in Michigan and that the child has lived since birth with the mother in Michigan. Thus, the child’s home state is Michigan, and the Alabama trial court lacks subject-matter jurisdiction under § 30-3B-201(a)(1) to make an initial child-custody determination regarding the child.

We note that in Arnold the Texas Court of Appeals went further than merely determining that California was the child’s home state and that the Texas trial court could not therefore exercise home-state jurisdiction to make an initial child-custody determination regarding the child. Id. at 461. It also considered whether the Texas trial court could exercise jurisdiction under any other provision of its version of the UCCJEA. Id. at 461-62. We believe that, in order to properly resolve this appeal, we, too, must consider whether the Alabama trial court had any other basis upon which to exercise jurisdiction to make an initial child-custody determination regarding the child.

Section 30-3B-201 (a)(2) provides that an Alabama court has jurisdiction to make an initial child-custody determination when either (1) no other state court has jurisdiction under the home-state provision or (2) the court of the child’s home state has declined to exercise its jurisdiction on the ground that Alabama is a more convenient forum under § 30-3B-207 or on the ground that “a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct” under § 30-2B-208, and (3) when a significant connection exists between the child and at least one parent and Alabama and substantial evidence concerning and relating to the child is available in Alabama. Because we have concluded that Michigan is the child’s home state, another state court has jurisdiction under § 30-3B-201(a)(1). No Michigan court has declined to exercise its jurisdiction. Thus, the Alabama trial court does not have jurisdiction under § 30-3B-201(a)(2).

Similarly, § 30-3B-201(a)(3) requires that any court having jurisdiction under either § 30-3B-201(a)(1) or (2) to have declined to exercise jurisdiction under § 30-3B-207 or § 30-3B-208 before an Alabama court may exercise jurisdiction. As we have mentioned, a Michigan court would have home-state jurisdiction, and no Michigan court has declined to exercise that jurisdiction. As a result, the Alabama trial court does not have jurisdiction under § 30-3B-201(a)(3). The final subsection providing for jurisdiction over an initial child-custody determination, § 30-3B-201(a)(4), permits an Alabama court to exercise jurisdiction if no other state would have jurisdiction under any other subsection of § 30-3B-201(a). Because we have determined that Michigan is the home state of the child, the Alabama trial court could not exercise jurisdiction under § 30-3B-201(a)(4).

The Alabama trial court did not have subject-matter jurisdiction under any provision in the UCCJEA to make an initial child-custody determination regarding the child, and its judgment is therefore void. Fuller v. Fuller, 93 So.3d 961, 966 (Ala.Civ.App.2012). A void judgment will not support an appeal. C.J.L. v. M.W.B., 868 So.2d 451, 454 (Ala.Civ.App.2003). We therefore dismiss the father’s appeal, and we instruct the Alabama trial court to set aside that portion of its divorce judgment containing the child-custody determination regarding the parties’ child.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . This construction of § 30-3B-102(7), resting as it does on the modifying phrase "lived from birth,” does not run afoul of our supreme court’s recent pronouncement in Ex parte Ankrom, [Ms. 1110176, January 11, 2013] - So.3d -, -(Ala.2013), that the term "child” includes both unborn children and living children.

      . Other states have considered the question in the context of the predecessor statute to the UCCJEA, the Uniform Child Custody Jurisdiction Act ("the UCCJA”), which did not prioritize home-state jurisdiction. See, e.g., Stewart v. Vulliet, 888 N.E.2d 761, 765 (Ind.2008) (concluding that an unborn child has no home state under the UCCJA and that, because no state had home-state jurisdiction, the Indiana court could exercise jurisdiction over the custody issue because the unborn child’s parents had resided in Indiana and because information regarding the unborn child’s parents and other family members was available in Indiana); Haywood v. Superior Court of Los Angeles, 77 Cal.App.4th 949, 955-56, 92 Cal.Rptr.2d 182, 186-87 (2000) (determining that, at the time the action was commenced, the unborn child did not have a home state under the UCCJA, but determining that the California court had jurisdiction under the former significant-connection test of the UCCJA); and Gullett v. Gullett, 992 S.W.2d 866, 869-70 (Ky.Ct.App.1999) (determining that an unborn child had no home state under the UCCJA at the commencement of a child-custody proceeding, that Kentucky could therefore exercise jurisdiction because no other state had jurisdiction and it would be in the unborn child's best interest that Kentucky exercise jurisdiction, and that, upon the child's birth in Ohio, Ohio was the child’s home state and would have concurrent jurisdiction over the child’s custody, subject to Kentucky's continuing jurisdiction). Because these cases were based on the language of the UCCJA, we do not find them to be persuasive authority under the UCCJEA.