author: IRVING, P.J.,

text:
    La’Quinta LEWIS a/k/a LaQuinta Lewis, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01649-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.
    Rehearing Denied Oct. 8, 2013.
    Certiorari Denied Feb. 6, 2014.
    George T. Holmes, Jackson, Benjamin A. Súber, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On February 2, 2004, La’Quinta Lewis, representing himself, was convicted by a Walthall County jury of armed robbery and conspiracy to commit armed robbery. The Walthall County Circuit Court sentenced him to life imprisonment for the armed-robbery charge and five years for the conspiracy-to-commit-armed-robbery charge, all in the custody of the Mississippi Department of Corrections. Lewis failed to file a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. On February 9, 2004, Lewis filed a pro se notice of appeal, which the Mississippi Supreme Court subsequently dismissed based on his failure to properly perfect his appeal. On September 17, 2010, Lewis filed a motion to proceed with an out-of-time appeal, which the circuit court granted. The court also appointed counsel to represent Lewis in his appeal. On October 20, 2011, Lewis’s new counsel filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied.

¶2. Feeling aggrieved, Lewis appeals and argues that the circuit court erred in allowing him to represent himself at trial without first ascertaining that he had knowingly and voluntarily waived his right to counsel.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On October 29, 2002, Lewis and two others robbed Bonnie’s Country Store, located in Walthall County, Mississippi. The circuit court declared Lewis indigent and appointed Nelson Estess to serve as his counsel. On November 5, 2003, Lewis announced to the circuit court that he did not want Estess to serve as his attorney. After the court explained to Lewis the consequences of representing himself, Lewis agreed to a hybrid form of representation. However, because members of the jury may have seen Lewis in a prison jumpsuit and restraints, the circuit court rescheduled the opening date for trial to February 5, 2004. After November 5, 2003, no other attorney entered an appearance to represent Lewis.

5. On February 2, 2004, at a pretrial conference, Lewis informed the circuit court that he did not want Estess’s assistance in any form, and he did not want to represent himself. At the conference, Es-tess stated that Lewis felt that Estess was not representing him properly. One week before the conference, Lewis told Estess that he intended to hire his own lawyer. On the Friday before Lewis’s trial began, Lewis informed Estess that he had not hired an attorney, would refuse to appear in court on the date of trial, and would refuse to represent himself. Furthermore, Estess informed the court that Lewis did not think that Estess understood the law and that “Lewis had been in conversation with people in the jail that understood the law and that [Lewis] knew that if he showed up this morning and announced that he did not want [Estess] to represent him and that [Lewis] refused to represent himself, that the [c]ourt would not be able to [have a trial].”

¶ 6. Following this exchange between Estess and the circuit court, Lewis refused to respond to any of the court’s inquiries concerning his representation. Nevertheless, the court appointed Estess to sit beside Lewis and answer his questions during trial. The court determined that, by his silence, Lewis had knowingly and voluntarily waived his right to counsel and his right to be present in the courtroom during trial. However, the court allowed Lewis to remain in the courtroom during trial in case he changed his mind about participating in his trial.

¶ 7. During trial, Lewis refused to participate in jury selection and refused to cross-examine any of the State’s witnesses. Prior to jury selection, Lewis announced, “I have fired Mr. Nelson Estess. I don’t want him as my lawyer. I am not representing myself.” Prior to the conference on jury instructions, the court asked Lewis if he would like Estess to prepare jury instructions. Lewis responded, “I have no lawyer, and I’m not representing myself.” In lieu of a closing argument, Lewis stated, “I’d like to state once again that I do not have no lawyer [sic], I was forced to come to trial, and I do not wish to represent myself[,] but I was forced to come to trial anyway.”

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. Lewis asserts that the circuit court erred in allowing him to proceed pro se without first ascertaining that he had knowingly and voluntarily waived his right to counsel. Specifically, Lewis contends that he never waived his right to counsel, and he never stated that he wanted to proceed pro se. The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution grant a criminal defendant the right to be heard by himself, through counsel, or both. While “[a indigent] defendant has an absolute right to counsel, ... his right to choose counsel is not absolute.” Rinehart v. State, 883 So.2d 573, 576 (¶ 9) (Miss.2004) (quoting Atterberry v. State, 667 So.2d 622, 630 (Miss.1995)). Additionally, a defendant may not use his right to counsel to hinder trial. Fields v. State, 879 So.2d 481, 484 (¶ 13) (Miss.Ct.App.2004).

¶ 10. A defendant may waive his right to counsel. Patton v. State, 34 So.3d 563, 564-65 (¶ 3) (Miss.2010). The waiver, however, “must be knowingly and intelligently made.” Id. at 565 (¶ 3). Before a circuit court determines that a defendant has knowingly and voluntarily waived his right to counsel, the court must, according to Rule 8.05 of the Uniform Rules of Circuit and County Court, proceed as follows:

When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, the state will appoint one free of charge to the defendant to defend or assist the defendant in his/her defense.
2. The defendant has the right to conduct the defense and that the defendant may elect to conduct the defense and allow whatever role (s)he desires to his/ her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.
5. Other matters as, the court deems appropriate.
After instructing the defendant and ascertaining that the defendant understands these matters, the court will ascertain if the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine if the defendant has exercised this right knowingly and voluntarily, and, if so, make the finding a matter of record. The court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney, but all disputes between the defendant and such attorney shall be resolved in favor of the defendant.

¶ 11. Thus, according to the rule, the circuit court was required to advise Lewis, on the record, of his rights and the warnings set forth in the rule. Afterward, the court was required to ascertain if Lewis still wished to proceed pro se, or if he wanted an attorney to assist him in his defense. If Lewis wished to continue pro se, the court was required to determine whether Lewis’s waiver of counsel was knowingly and voluntarily made.

¶ 12. According to the record before us, the circuit court complied with the requirements of Rule 8.05. It is undisputed that on November 5, 2003, the circuit court advised Lewis of his rights according to Rule 8.05. At that time, Lewis accepted the assistance of his court-appointed counsel. The court determined that Lewis had knowingly and voluntarily accepted counsel’s assistance. The circuit court advised Lewis of his rights again on the day of trial. This time, however, Lewis refused to respond to the court’s questions.

¶ 13. Although Lewis may have had some reservations about his court-appointed counsel in November 2003, he made no effort to find and hire alternate counsel before his trial date. Additionally, Lewis’s court-appointed counsel informed the court that Lewis was refusing counsel’s assistance because “[Lewis] knew that if Lewis showed up [on the] morning [of trial] and announced that [Lewis] did not want [Es-tess] to represent him and that he refused to represent himself, the [c]ourt would not be able to try him.” In spite of the court’s warnings that he had been given bad advice, the court allowed Lewis to be present in the courtroom and re-appointed counsel to answer any questions that Lewis may have had during trial. Furthermore, prior to jury selection, the court again warned Lewis according to Rule 8.05 and, again, Lewis refused to respond. The court subsequently determined that Lewis’s statements and actions were for the sole purpose of avoiding trial.

¶ 14. Based on the above, we hold that the circuit court did not err in finding that Lewis waived his right to the assistance of counsel. The record is clear that even after the circuit court apprised Lewis of his rights, he refused to participate in his trial. Lewis purposefully intended to use his absolute right to counsel to avoid going to trial — a course of action that our supreme court has specifically proscribed. Additionally, Lewis’s waiver was knowing and voluntary. He was fully aware of the rights that he would be jeopardizing by proceeding without counsel and in the manner that he chose. Accordingly, this issue is without merit.

¶ 15. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF LIFE; AND COUNT II, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

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


source: Caselaw Access Project

author: IRVING, P.J., CARLTON, J.,

license: Public Domain

text:
    Christopher WEST a/k/a Chris West, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01708-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Oct. 15, 2013.
    Certiorari Denied Feb. 6, 2014.

      David Garner, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. On September 28, 2010, a grand jury in Simpson County, Mississippi, indicted Christopher West for the sale of methamphetamine. Ultimately, a jury convicted West, and Circuit Judge Eddie Bowen sentenced him to thirty years in the custody of the Mississippi Department of Corrections. West filed a motion requesting a judgment notwithstanding the verdict or, in the alternative, a new trial and cited Judge Bowen’s failure to recuse from the case as the basis for his motion. Judge Bowen denied West’s motion. Feeling aggrieved, West appeals and argues that Judge Bowen erred in failing to re-cuse from the case.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. During the beginning of the September 2010 term of court, Judge Bowen served as the Simpson County District Attorney. However, on September 20, 2010, eight days before the grand jury indicted West, Judge Bowen was appointed circuit court judge. On the morning of West’s trial, West filed a motion requesting that Judge Bowen recuse from the case. While Judge Bowen entered an order of recusal in another case in which West was charged with a felony, he denied West’s motion for recusal in the case regarding the sale of methamphetamine.

¶ 4. In a supplemental filing to this Court, Judge Bowen confirmed that, while he did serve as the district attorney prior to West’s indictment, he did not personally receive the case file concerning this charge against West, nor did he have personal knowledge of West’s case. Additionally, Judge Bowen stated that he was not personally aware that the district attorney’s office had received West’s case file, and he did not implement any administrative measures to “preclude knowledge of the case file while [he] was being considered for the judicial appointment for [c]ireuit judge.”

¶ 5. West contends that Judge Bowen should have entered a recusal in this case because he was the district attorney at the time of his arrest for the sale of methamphetamine and had prosecuted cases against him as the district attorney in the past.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Timeliness of Appeal

¶ 7. Although not addressed by either party, we note at the outset that West’s motion for recusal did not meet the requirements of Rule 1.15 of the Uniform Rules of Circuit and County Court, which states in pertinent part:

A motion seeking recusal shall be filed with an affidavit of the party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within 30 days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted. The subject judge shall consider and rule on the motion within 30 days of the filing of the motion, with hearing if necessary. If a hearing is held, it shall be on the record in open court. The denial of a motion to recuse is subject to review by the Supreme Court on motion of the party filing the motion as provided in [Mississippi Rule of Appellate Procedure] 48B.

(Emphasis added). The record is clear that West did not attach an affidavit from himself or his attorney to his motion as required by the rule. Also, West’s motion for recusal was not timely. Although the record is not clear as to when West learned that Judge Bowen would be handling his case, it was public knowledge that Judge Bowen, Simpson County’s then-district attorney, had been appointed circuit judge for the county, which only has one circuit court judge. It is undisputed that this appointment occurred on September 20, 2010 — eight days prior to West’s indictment. Nevertheless, West waited one year and one day to request that Judge Bowen recuse from the case. Therefore, West’s motion was clearly untimely.

¶ 8. West also failed to comply with Rule 48B of the Mississippi Rules of Appellate Procedure, which reads in part:

If a judge of the circuit, chancery[,] or county court shall deny a motion seeking the trial judge’s recusal, or if within 30 days following the filing of the motion for recusal the judge has not ruled, the filing party may within 14 days following the judge’s ruling, or 14 days following the expiration of the 30 days allowed for ruling, seek review of the judge’s action by the Supreme Court. A true copy of any order entered by the subject judge on the question of recusal and transcript of any hearing thereon shall be submitted with the petition in the Supreme Court.

Here, West did not appeal Judge Bowen’s decision not to recuse from the case within the fourteen days permitted by Rule 48B. He did, however, file his notice of appeal within the thirty days required by Rule 4 of the Mississippi Rules of Appellate Procedure. The Mississippi Supreme Court examined the relationship between Rule 4 and 48B in Hathcock v. Southern Farm Bureau Cas. Ins. Co., 912 So.2d 844, 847 (¶¶ 3-4) (Miss.2005), in which the appellant requested that the circuit court judge re-cuse from the case because of the judge’s past representation of the appellee and because the judge’s son worked for the appellee at the time of trial. When the circuit court denied the motion for recusal and granted summary judgment in favor of the appellee, the appellant appealed and argued that the judge should have recused from the case. Id.

¶ 9. In Hathcock, the appellant filed his notice of appeal challenging the denial of his motion to recuse within the thirty days allowed by Rule 4. Hathcock, 912 So.2d at 848 (¶ 6). The appeal did not comply with Rule 48B, in that the appeal was not taken within fourteen days of the circuit court’s denial of the motion to re-cuse. Hathcock, 912 So.2d at 848 (¶ 8). Nevertheless, the supreme court held that

the Court will not indulge the suggestion to read the rules in such a way as to unnecessarily cause conflict between them. Under [Rule] 4, using the language “shall,” requires a party to file notice of appeal within 30 days, while [Rule] 48B, using the language “may,” permits a party to seek review within 14 days. [The] appeal is timely because it was filed in accordance with [Rule] 4.

Hathcock, 912 So.2d at 848 (¶ 8). While it is clear under Hathcock that a party’s failure to comply with the time requirements of Rule 48B will not defeat his right of review of that denial on appeal, Hathcock does not address the consequences of a party’s failure to comply with the requirements of Rule 1.15 of the Uniform Rules of Circuit and County Court and whether that failure will defeat his right to appellate review. Therefore, we do not interpret Hathcock as standing for the proposition that a party who has filed a motion for recusal that does not comply with the requirements of Rule 1.15 may still have the denial of the motion for recusal reviewed on appeal. In light of this uncertainty in our law, we choose to address the merits of West’s appeal.

II. Denial of West’s Motion to Recuse

¶ 10. West’s sole issue on appeal is that Judge Bowen should have recused from this case because Judge Bowen had served as the district attorney during the same court term as when West was indicted. We disagree. “The standard of review to which [appellate courts are] bound on the issue of recusal is manifest error.” Scott v. State, 8 So.3d 855, 859 (¶ 13) (Miss.2008) (citations omitted). In Mississippi, a judge’s “impartiality is presumed, and the presumption must be overcome by the appellant in order for [appellate courts] to find manifest error.” Id. (citing Jones v. State, 740 So.2d 904, 912 (¶32) (Miss.1999)). The Mississippi Supreme Court has stated:

Under Canon 3 of the Code of Judicial Conduct, an appellate court, in deciding whether a judge should have disqualified himself from hearing a case[,] uses an objective standard. A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. The decision to recuse or not to recuse is one left to the sound discretion of the trial judge, so long as he applies the correct legal standards and is consistent in the application.

Tubwell v. Grant, 760 So.2d 687, 689 (¶ 7) (Miss.2000) (internal citations and quotation marks omitted). Additionally, the Code of Judicial Conduct explains that one circumstance in which a judge should re-cuse himself is “when the judge ha[s] a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Patton v. State, 109 So.3d 66, 78 (¶ 35) (Miss.2012) (quoting Code of Judicial Conduct Canon 3(E)(1)(a)).

¶ 11. West has failed to present sufficient evidence to overcome the presumption that Judge Bowen was impartial. The grand jury indicted West near the end of Judge Bowen’s tenure as district attorney, but Judge Bowen had no personal knowledge of, or actual involvement in, West’s case prior to sitting as the judge during trial. Judge Bowen attested to his lack of personal knowledge in his supplemental filing to this Court. Additionally, even in his capacity as the district attorney, Judge Bowen exercised no administrative command over West’s case. In fact, there is no evidence that Judge Bowen, while serving as the district attorney, had even any indirect involvement with West’s case.

¶ 12. Nevertheless, West argues that Judge Bowen should have recused from this case because he had prosecuted cases against West in the past. While it may be true that Judge Bowen prosecuted cases against West while serving as the district attorney, there is no evidence that Judge Bowen, while serving as the district attorney, was as involved with the prosecution of this ease as he may have been with the prosecution of West’s other cases. Furthermore, we have previously stated that “[t]he fact that [a judge] ha[s] ... prosecuted [a defendant] in the past, without more, does not overcome the presumption of impartiality^]” Slade v. State, 42 So.3d 25, 29 (¶ 17) (Miss.Ct.App.2009).

¶ 13. While it may be true, as the dissent suggests, that “due process requires disqualification when a trial judge previously acts in an accusatory role in the case[,]” Dis. Op. at (¶ 13), there are no facts to suggest that Judge Bowen, as district attorney, stood in any posture against West in the prosecution of the case involving the sale of methamphetamine. Moreover, the cases cited by the dissent are factually distinguishable from the case before us. In those cases, there was evidence that the prosecutor-turned-judge had actively participated in the defendant’s prior prosecution. Those kinds of facts, which may have led us to question Judge Bowen’s impartiality, are missing here.

¶ 14. West has pointed to nothing in the record to support his claim that Judge Bowen’s impartiality should be questioned. As such, the circuit court did not err in denying West’s motion for recusal. This issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF CONVICTION OF THE SALE OF METHAMPHETAMINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., BARNES, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND ISHEE, J. JAMES, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 16. I respectfully dissent. I submit that due process requires disqualification when a trial judge previously acts in an accusatory role in the case. Jenkins v. State, 570 So.2d 1191, 1192-93 (Miss.1990); see also Banana v. State, 638 So.2d 1329, 1330-31 (Miss.1994) (finding that because the trial judge was the district attorney when the criminal information was filed, the trial judge was disqualified from serving as a judge in the matter on post-conviction-relief proceedings); Holmes v. State, 966 So.2d 858, 861-62 (¶¶ 10-11) (Miss.Ct.App.2007). With respect to the amount of prior participation as an accuser that triggers disqualification by a trial judge, the supreme court found that a trial judge was disqualified from ruling on a post-trial motion where the trial judge previously served as the district attorney who signed the defendant’s indictment in that case. Moore v. State, 573 So.2d 688, 688-89 (Miss.1990) (addressing the recusal issue under the plain-error doctrine). See also Miss. Const. art. 6, § 165; Miss.Code Ann. § 9-1-11 (Rev.2002).

¶ 17. Since the trial judge in the present ease served in an accusatory role, supreme court precedent requires that the case be reversed and remanded for a new judge to rule on West’s motions and preside over his trial. Based on the foregoing, I dissent.

GRIFFIS, P.J., AND ISHEE, J., JOIN THIS OPINION.

      . The record does not indicate, and West does not reveal, the depth of Judge Bowen’s involvement, if any, in that case. We only know that the indictment in that case was returned on September 7, 2010, while Judge Bowen was still acting as the district attorney.

      . The determination of whether disqualification by a prior accuser is appropriate has been clouded by case law addressing when disqualification is required in cases where a trial judge previously participated as counsel or possesses an interest in the case. See Turner v. State, 573 So.2d 657, 676-78 (Miss.1990); Kirby v. State, 78 Miss. 175, 179, 28 So. 846, 846 (1900). I acknowledge that precedent establishes that “[w]hen a judge is not disqualified under [section] 165 of the Mississippi Constitution, or [Mississippi Code Annotated section] 9-1-11 [ (Rev.2002) ], the propriety of his or her sitting is a question ... to review only in case of manifest abuse of discretion.” Ruffin v. State, 481 So.2d 312, 317 (Miss.1985); see Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986). However, when the constitutional disqualification applies, then due process necessitates automatic disqualification, without deference.

      . Overstreet v. State, 17 So.3d 621, 623 (¶ 6) (Miss.Ct.App.2009) (In cases pertaining to prior participation by the trial judge, appellate courts may determine the recusal issue sua sponte and "possess authority to review the recusal issue ... even if expressly waived in the [trial] court.”); McDonald v. State, 784 So.2d 261, 265 (¶ 13) (Miss.Ct.App.2001).


author: LEE, C.J.,

text:
    Chakakhan DAVIS, Appellant v. OFFICE MAX, Appellee.
    No. 2012-CP-01424-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Nov. 19, 2013.
    Certiorari Denied Feb. 6, 2014.

      Chakakhan Davis, appellant, pro se.
    Robert Elliott Briggs III, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 10, 2011, Chakakhan Davis visited the Office Max store in Vicksburg, Mississippi. When Davis was exiting the store through the automatic sliding doors, the automatic doors came off track, continued to close, and closed on her hand.

¶ 2. On June 14, 2011, Davis brought suit in Warren County Circuit Court against Office Max for negligence, alleging she had sustained serious, permanent injuries and damages as a direct and proximate result of Office Max’s failure to provide reasonably safe premises and to reasonably protect Davis from a known, unsafe, and dangerous condition or a condition Office Max should have known to be unsafe and dangerous.

¶ 3. Davis moved for summary judgment on December 8, 2011. After two supple-mentations by Davis and a response by Office Max, Office Max then moved for summary judgment on March 6, 2012, to which Davis responded and Office Max replied. After a hearing, the trial court denied both Davis’s and Office Max’s respective motions for summary judgment on April 24, 2012, and granted Davis thirty additional days to complete discovery.

¶ 4. Office Max filed a supplemental motion for summary judgment on June 18, 2012. Davis responded. A hearing was held July 26, 2012, and summary judgment was granted in favor of Office Max.

DISCUSSION

¶ 5. Davis now appeals, arguing the trial court erred in (1) granting summary judgment in favor of Office Max, and (2) denying her motion to proceed in forma pau-peris on appeal.

I. SUMMARY JUDGMENT

¶ 6. This Court reviews a trial court’s decision to grant summary judgment under a de novo standard of review. Busby v. Mazzeo, 929 So.2d 369, 372 (¶ 8) (Miss.Ct.App.2006). Under Mississippi Rule of Civil Procedure 56(c), summary judgment should be granted if, viewing the evidence in the light most favorable to the nonmov-ing party, “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

¶ 7. The Mississippi Supreme Court has laid out a three-step analysis for premises liability. Leffler v. Sharp, 891 So.2d 152, 156 (¶ 10) (Miss.2004) (citing Massey v. Tingle, 867 So.2d 235, 239 (¶ 12) (Miss.2004)). The Court must: (1) classify the injured person as an invitee, licensee, or trespasser; (2) determine the duty owed to the injured party; and (3) determine if the business operator breached that duty. Id.

¶ 8. Davis was considered an invitee, because she entered the premises “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)). As an invitee, Office Max owed Davis “the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Rod v. Home Depot USA, Inc., 931 So.2d 692, 694 (¶ 10) (Miss.Ct.App.2006) (internal quotation omitted).

¶ 9. To succeed on a premises-liability claim, Davis must show “(1) a negligent act by [Office Max] caused [her] injury; or, (2) [Office Max] had actual knowledge of a dangerous condition, but failed to warn [her] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Office Max].” Stanley v. Boyd Tunica, Inc., 29 So.3d 95, 97 (¶ 9) (Miss.Ct.App.2010) (citations omitted). In all three types of premises-liability claims, Davis must prove that a dangerous condition existed. Id. (¶ 10). “In other words, [Office Max] cannot be found liable for [Davis’s] injury where no dangerous condition existed].” Id. at 97-98 (¶ 10).

¶ 10. On appeal, Davis claims, as she did at the June 26, 2011 summary-judgment hearing, that the dangerous condition presented by the automatic sliding doors is subject to the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur involves a type of circumstantial evidence. Gray v. BellSouth Telecomm., Inc., 11 So.3d 1269, 1272 (¶ 11) (Miss.Ct.App.2009). Under this doctrine, “negligence can be inferred in certain factual situations.... ” Id. Nonetheless, the Mississippi Supreme Court has warned that it should be applied cautiously. Powell v. Methodist Health Care-Jackson Hosps., 876 So.2d 347, 349 (¶ 7) (Miss.2004). For the doctrine to be applied, Davis must prove that (1) Office Max had “control and management of [the automatic sliding doors] causing [her] injury”; (2) her injury was “in the ordinary course of things [that] would not occur if [Office Max] used proper care”; and (3) her injury was not a result of her own voluntary act. Gray, 11 So.3d at 1272 (¶ 12) (citations omitted).

¶ 11. Although this Court reviews the evidence in the light most favorable to the nonmoving party, who in this case is Davis, “in generating an issue of fact sufficient to avoid an adverse rendering of summary judgment, [Davis] cannot rely solely on [her] pleadings, which simply allege or deny a material fact. [She] must ... by affidavit or otherwise set forth specific facts showing ... genuine issues for trial.” Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990) (internal citations omitted). While it is not disputed that Office Max had control over the automatic sliding doors that injured Davis, Davis offered no proof that the doors would not have malfunctioned had Office Max used proper care. In fact, Davis offered no proof that the doors malfunctioned. Michael Mons-our, then manager of the Vicksburg Office Max, stated that when he responded to the incident, the automatic sliding doors were off their track. When the doors were placed back on their track, they operated without problem and did not require any maintenance.

¶ 12. The New Mexico Supreme Court addressed the issue of the application of res ipsa loquitur to a similar situation in Hisey v. Cashway Supermarkets, Inc., 77 N.M. 638, 426 P.2d 784 (1967), where the plaintiff was injured while exiting through an automatic sliding door. The plaintiff did not offer evidence as to the condition of the door or why or how the door malfunctioned. Rejecting the plaintiffs argument of res ipsa loquitur, the court found that “[t]he fact that the door had been operating properly before the accident and that it thereafter operated normally without any repairs being required clearly fails to sustain an inference that the isolated malfunction would not have occurred but for [the] defendant’s negligence.” Id. at 786.

¶ 13. Because Davis failed to prove the required elements, we find the doctrine of res ipsa loquitur inapplicable. Davis failed to offer any evidence to show that a dangerous condition existed; therefore, she did not “[generate] an issue of fact sufficient to avoid an adverse rendering of summary judgment.” We find that the trial court did not err in granting summary judgment in favor of Office Max.

II. IN FORMA PAUPERIS STATUS

¶ 14. Davis moved to proceed in forma pauperis on appeal. A hearing was scheduled on the matter for August 15, 2012, and Davis was notified by the court administrator. Davis failed to appear and present evidence in support of her motion. And the trial court denied her motion on August 16, 2012.

¶ 15. The Mississippi Supreme Court has stated that “any right to proceed in forma pauperis in [a case] other than a criminal case exists only at the trial level.” Moreno v. State, 637 So.2d 200, 202 (Miss.1994). To state it another way, “while [Mississippi] Code [Annotated] [section] 11-53-17 [ (Rev.2012) ] provides that persons who are truly indigent may proceed in civil actions as paupers[,] this statute authorizes in forma pauperis proceedings in civil cases at the trial level only.” Id. (internal quotations omitted). Therefore, this issue is without merit.

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

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


text:
    ROYER HOMES OF MISSISSIPPI, INC., Appellant v. Alison STEINER, Jack G. Price and Adelman & Steiner, P.A., Appellees.
    No. 2012-CA-00565-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Nov. 5, 2013.
    Certiorari Denied Feb. 6, 2014.
    Steven Russell Cupp, Jaklyn Leigh Wrigley, Gulfport, attorneys for appellant.
    Dorrance Aultman, Hattiesburg, Jack G. Price (pro se), Sarah Beth Windham, Hat-tiesburg, attorneys for appellees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 30, 2003, Royer Homes of Mississippi, Inc. (Royer) was administratively dissolved. On June 9, 2004, Royer filed suit against Alison Steiner, Jack G. Price, and Adelman & Steiner, P.A. (collectively Steiner) in the Forrest County Circuit Court alleging legal malpractice. Steiner had previously represented Royer in an employment-discrimination suit, which resulted in an adverse verdict against Royer.

¶ 2. Steiner filed a motion for summary judgment on October 31, 2011. After hearing oral arguments, the trial court granted Steiner’s motion for summary judgment, finding Royer lacked standing due to its failure to reinstate itself as a corporation within the statutory time frame.

¶ 3. Royer now appeals, asserting the following issues: (1) the trial court erred in finding Royer did not have standing to pursue litigation against Steiner; (2) its failure to reinstate itself as a corporation did not result in its loss of status as a real party in interest or of its capacity to sue; (B) Steiner forfeited their right to assert Royer’s standing as a defense; and (4) the trial court erred by dismissing the suit under Mississippi Rule of Civil Procedure 17(a) for failure to prosecute “in the name of the real party in interest.”

STANDARD OF REVIEW

¶ 4. In reviewing the trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). We review conclusions of law, including statutory interpretation, de novo. J. Criss Builder, Inc. v. White, 35 So.3d 541, 543 (¶ 5) (Miss.Ct.App.2009).

DISCUSSION

¶ 5. The overriding issue in this case is whether Royer lost its capacity to continue the litigation when it failed to reinstate itself as a corporation. The statute in effect at the time Royer was dissolved stated the following: “(c) A corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under Section 79-4-14.05.... ” Miss.Code Ann. § 79-4-14.21. Mississippi Code Annotated section 79-4-14.05 provided that “[dissolution of a corporation does not ... [pjrevent commencement of a proceeding by or against the corporation in its corporate name.... ”

¶ 6. Steiner states Royer had the ability to “commence suit” after it dissolved, but argues Royer only had five years under Mississippi Code Annotated section 79-4-14.22(a) to wind up its affairs or reinstate itself. Section 79-4-14.22(a) stated that “[a] corporation administratively dissolved ... may apply to the Secretary of State for reinstatement within five (5) years after the effective date of dissolution.” However, Steiner offers no authority to support its position that, under the statute, Royer needed to reinstate itself to maintain the lawsuit. The statutes in effect at the time allowed for a dissolved corporation to carry on business necessary to wind up its affairs, including the commencement of a proceeding, if necessary. We do not think the intent of the legislature was to stop a lawsuit that was legally commenced because the lawsuit was not concluded within the five-year time frame enunciated in the statute. We note that the current version of section 79-4-14.22(a) (Supp. 2012) deleted the five-year requirement, and allows the dissolved corporation to “apply ... for reinstatement at any time after the effective date of dissolution.”

¶ 7. We find the trial court’s decision to grant summary judgment in favor of Steiner was premature; thus, we reverse and remand for further proceedings.

118. THE JUDGMENT OF THE FORREST 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 THE APPEL-LEES.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . Unless otherwise noted, all statutes cited in this opinion are the versions in effect at the time of Royer’s dissolution and subsequent suit against Steiner.


author: GRIFFIS, P.J.,

text:
    Stephen E. SEAL a/k/a Bo Seal a/k/a Stephen Seal, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00172-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.
    Rehearing Denied Jan. 7, 2014.

      Stephen E. Seal, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Stephen Seal appeals the denial of his motion for post-conviction collateral relief (PCCR) and his amended motion for PCCR. Seal argues that the trial court erred in the denial of his motions because his constitutional rights were violated by the sentence imposed. We find no error and affirm.

¶ 2. In Seal v. State, 38 So.3d 635, 636-637 (¶ 2) (Miss.Ct.App.2010), we considered the facts presented:

On March 6, 2006, Seal got off work, picked up his friend John Bell, and purchased some marijuana. After smoking the marijuana, Seal and Bell purchased a muzzle-loader rifle and went to Xan Steed’s home. Laurie Thomas was visiting Steed when Seal and Bell arrived. Upon his arrival, Seal took his recently-purchased rifle into the house to show it off. During the course of his visit, while in the bedroom of the house with Bell, Thomas, and Steed, Seal began waving the rifle around making a noise as if he were firing the rifle. Thereafter, Bell handed Seal a pistol, and Seal began to wave the pistol around in the same manner as he had previously done with the rifle. While waving the pistol around, Seal pulled the trigger, and a bullet from the pistol struck Thomas in her forehead. Bell ran from the house. Initially Seal ran after Bell, but he returned to the house. When Seal returned to the house, Steed told him to call 911. Seal and Steed remained at the house with Thomas until emergency assistance arrived. Thomas and her unborn child subsequently died as a result of their injuries.

¶ 3. Seal was charged with two counts of culpable-negligence manslaughter under Mississippi Code Annotated section 97-3-47 (Rev.2006). On January 9, 2008, Seal pled guilty. Seal admitted that he shot and killed Thomas and her unborn child. Seal was sentenced to serve twenty years for each count of manslaughter, and the sentences were ordered to run concurrently-

¶ 4. The trial judge later indicated that she believed that she should have suspended some of Seal’s sentence. However, the trial judge informed the attorneys that because the sentences were imposed during a vacation term, she did not have the authority to amend the sentences.

¶ 5. On January 22, 2008, Seal filed a motion for a reduction of his sentence. The circuit court denied the motion by order dated July 15, 2008. On August 7, 2008, Seal filed a motion requesting that the trial court designate and consider his motion for a reduction of his sentence as a PCCR motion. Seal then filed a notice of appeal on August 14, 2008. On October 31, 2008, the trial judge denied Seal’s August 7 motion.

¶ 6. This Court affirmed the trial judge’s denial of the motion for a reduction of sentence. Id. at 688 (¶ 9). The Court also dismissed the appeal “without prejudice to Seal’s right to pursue a proper motion for post-conviction relief should he choose to do so.” Id.

¶ 7. On June 13, 2011, Seal filed a motion for PCCR. Seal claimed that the circuit court violated his constitutional rights, specifically his rights under the Fifth and Fourteenth Amendments. Seal argued that he was improperly sentenced to a statutory-maximum prison term when the court intended to suspend a portion of his sentence, but found it did not have jurisdiction. The circuit court denied Seal’s motion by order dated March 21, 2012. It is from this order that Seal now appeals.

¶ 8. We will not reverse a trial court’s denial of a PCCR motion unless the trial court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011). When reviewing questions of law, this Court’s standard of review is de novo. Id.

¶ 9. Seal argues that the imposition of his sentence violated his constitutional rights. The State responds with the claim that his motion was time-barred. Indeed, motions for post-conviction collateral relief from a guilty plea must be made within three years after the entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2012). The State is correct. Seal’s judgment of conviction is dated January 9, 2008. His motion was filed on June 13, 2011, more than three years after the judgment. Seal’s motion is proeedurally barred.

¶ 10. Notwithstanding the procedural bar, however, we will discuss the merits of his claim.

¶ 11. Seal’s claim is based on the trial judge’s January 14, 2008 telephonic conference with defense counsel and the district attorney. In this conversation, the trial judge informed the attorneys that she had second thoughts about Seal’s sentence. She stated that she believed that some of the imposed sentence should have been suspended. However, the trial judge also told the attorneys that because the sentences were imposed during a vacation term, she did not have the authority to amend the sentences.

¶ 12. There is no record of the telephone conversation. Yet, twice now, this matter has been presented to the trial judge. Each time, the trial judge has denied the relief requested by Seal.

¶ 13. The trial court has jurisdiction to alter sentences, even those handed down in vacation, when grounds for post-conviction collateral relief exist. Creel v. State, 944 So.2d 891, 894 (¶ 7) (Miss.2006). The burden is on Seal to demonstrate “the actual existence of evidence that, if shown satisfactorily at a hearing, would indicate an entitlement to relief.” Davidson v. State, 850 So.2d 158, 159 (¶ 5) (Miss.Ct.App.2003).

¶ 14. Mississippi Code Annotated section 99-39-5(1) provides that a PCCR motion may be filed when a petitioner claims:

(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That there exists biological evidence secured in relation to the investigation or prosecution attendant to the petitioner’s conviction not tested, or, if previously tested, that can be subjected to additional DNA testing, that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution[;]
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(i) That he is entitled to an out-of-time appeal; or
(j) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.

¶ 15. Seal’s sentences were not illegal. “A trial judge may in his sole discretion impose any sentence that is within the statutory guidelines for a particular crime, and a sentence within the statutory guidelines is usually not reviewable.” Leverette v. State, 812 So.2d 241, 245 (¶ 18) (Miss.Ct.App.2002). Mississippi Code Annotated section 97-3-25 (Rev.2006) provides that the statutory maximum for the crime of manslaughter is twenty years. Mississippi Code Annotated section 97-3-37(1) (Supp.2012) provides that an unborn child is included as a human being for purposes of this statute.

¶ 16. Seal caused the death of two human beings, Thomas and her unborn child. As such, the trial judge was within her discretion to sentence Seal to serve two separate twenty-year sentences.

¶ 17. In Warden v. State, 36 So.3d 493, 495 (¶ 4) (Miss.Ct.App.2010), the defendant argued “that he received a harsher sentence than other first-time offenders in his jurisdiction.” This Court did not grant the defendant relief because, even if the sentence may have been harsh, it was not illegal. Id. at (¶ 8). Thus, we found the sentence did not “fall within the parameters defined by the Legislature in the post-conviction-relief statute.” Id. at 495 (¶ 6).

¶ 18. Like the defendant in Warden, Seal has not presented any argument that falls within the parameters of the PCCR statute. It is clear the trial judge believed the sentences may have been harsh, but they were within the statutory guidelines. Seal’s sentences were not illegal.

¶ 19. Accordingly, we find no error in the trial judge’s decision to deny Seal’s PCCR motion. We affirm.

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

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

      . Manslaughter based on culpable negligence falls under Mississippi Code Annotated section 97-3-37.


author: STUART, Justice. MURDOCK, Justice SHAW, Justice

text:
    Tommy HAND v. HOWELL, SARTO & HOWELL and William P. Roberts II.
    1120133.
    Supreme Court of Alabama.
    May 31, 2013.

      William L. Pfeifer, Jr., Birmingham, for appellant.
    Randall Morgan and Elizabeth Brannen Carter of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee Howell, Sarto & Howell.
    Ronald G. Davenport and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee William P. Roberts II.
   STUART, Justice.

Tommy Hand sued the Prattville law firm of Howell, Sarto & Howell (“the Howell firm”) and William P. Roberts II, an attorney formerly employed by the Howell firm, asserting a claim under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975 (“the ALSLA”), based on them alleged negligent representation of him in an action seeking damages for personal injuries he suffered as a result of an automobile accident. The trial court entered a summary judgment in favor of the Howell firm and Roberts; Hand now appeals. We affirm.

I.

On September 15, 2004, Hand was injured in an automobile accident on interstate highway 1-65 in Montgomery when the truck he was driving was struck in the rear by another vehicle being driven by Julie Bennett. At the time of the accident, Hand was driving a truck for his employer, Hodges Bonded Warehouse, Inc., and Bennett was on-duty and working within the line and scope of her employment with the Montgomery Advertiser. Hand suffered a back injury in the accident and subsequently retained the Howell firm to pursue a personal-injury claim against Bennett stemming from the accident.

Roberts, at the time an associate attorney at the Howell firm, was responsible for doing the initial work on Hand’s personal-injury claim. He was supervised in that work by George Howell, a partner in the Howell firm. On September 11, 2006, Roberts filed a complaint in the Montgomery Circuit Court on behalf of Hand asserting a negligence and/or wantonness claim against Bennett. That complaint did not name the Montgomery Advertiser or its corporate parent, Gannett, Inc., as defendants, notwithstanding the fact that Bennett was on-duty and working for the Montgomery Advertiser at the time of the accident. In a deposition, Roberts would later state that George Howell told him it was unnecessary to add them as parties.

The Howell firm subsequently retained an accountant to calculate the present total value of Hand’s economic loss as a result of the accident; based on the severity of his back injury, that figure was calculated to be $872,500. Settlement negotiations ensued, and Bennett’s personal insurance company ultimately offered up $25,000, the limit of her policy. In approximately June 2007, Roberts learned that an additional $5,000,000 in coverage was available to Bennett under a policy Travelers Insurance (“Travelers”) had issued to Gannett, Inc., and, in February 2008, Roberts offered to settle the case for $1,000,000; that offer was rejected.

In August 2008 Roberts left the Howell firm, and in October 2008 the trial court granted his request to withdraw from Hand’s case. Although George Howell remained as Hand’s attorney of record, his health was poor and he was unable to adequately handle Hand’s case; accordingly, Harold Howell, who appears to have been the only other attorney at the Howell firm at this time, retained Betty Love of Love, Love, & Love in Talladega to work on the case. On the cover sheet of the materials Harold Howell faxed to Love relating to the case, Harold Howell wrote: “I am faxing you the 2 complaints on Tommy Hand. George seems to think this is sufficient. My thoughts are we should have alleged she was an employee of the Montgomery Advertiser acting in the line and scope of her employment.”

In May 2009 Hand’s case went to mediation. Hand was represented by Harold Howell and Love at the mediation and made an initial offer to settle his claim against Bennett for $1,750,000. It appears to be undisputed that all the parties understood that Travelers, which had retained counsel for Bennett, would be funding the vast majority of any settlement; its initial counteroffer was $40,000. After some negotiation that offer was increased to $125,000; however, Hand subsequently refused to accept less than $1,250,000 and walked out of the mediation after Harold Howell and Love pressured him to make a lower counteroffer. In the following days, Harold Howell visited Hand at his residence and Hand’s wife at her workplace in an attempt to get Hand to reengage in settlement talks; however, his efforts were unsuccessful, and, on May 16, 2009, Hand notified the Howell firm via letter that he was terminating their attorney-client relationship based on “continuing pressure on my wife and me to take actions that I do not feel would be in my best interest.” On July 10, 2009, Hand obtained his legal file from the Howell firm.

On July 29, 2009, Hand met with Montgomery attorneys Frank Hawthorne and Randy Myers of the law firm Hawthorne & Myers to discuss his action against Bennett. They informed Hand at that time that the value of his case was diminished because the Montgomery Advertiser had not been named as a defendant and the statute of limitations on his claim barred Hand from adding a new defendant at this late date. They subsequently prepared affidavits in which they swore that the settlement value of a case against the Montgomery Advertiser would have been between $1,000,000 and $1,200,000. Hawthorne and Myers nevertheless agreed to represent Hand, and, following another round of mediation in November 2009, Hand agreed to settle his case for $625,000. Of that sum, $25,000 was paid by Bennett’s personal auto-insurance carrier and $600,000 was paid by Travelers pursuant to the insurance policy held by Gannett.

On January 13, 2010, Hand filed the instant action in the Montgomery Circuit Court alleging that Roberts and the Howell firm had committed legal malpractice by failing to name the Montgomery Advertiser as a defendant in his action against Bennett. The case was subsequently transferred to the Autauga Circuit Court, and, in separate motions, Roberts and the Howell firm moved for a summary judgment on Hand’s claims against them, arguing (1) that Hand’s claims were barred by the statute of limitations applicable to claims brought under the ALSLA; (2) that Hand’s claim for damages was too speculative; and (3) that Hand had released any claims against them in the release he had executed in accordance with his settlement in the action against Bennett.

On May 14, 2012, the trial court conducted a hearing on the pending summary-judgment motions, and, on May 21, 2012, the trial court granted Roberts’s and the Howell firm’s motions and entered a summary judgment in their favor without specifying the basis for that ruling. Hand’s subsequent motion to alter, amend, or vacate the judgment was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., and Hand now appeals.

II.

Hand argues that the trial court erred in entering a summary judgment in favor of Roberts and the Howell firm. We review this argument pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ada. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

The gravamen of Hand’s action is that Roberts and the Howell firm committed legal malpractice when they failed to name the Montgomery Advertiser — which Hand labels “the critical deep-pocket defendant” — as a party in Hand’s action against Bennett. Hand argues that the failure to name the Montgomery Advertiser as a defendant devalued his case to the extent that he had to settle for approximately half of what the case was worth and for an amount significantly less than his actual economic damage, not to mention his pain and suffering. Hand supports his claim that Roberts’s and the Howell firm’s actions constituted legal malpractice with the affidavit testimony of his subsequent attorneys, Hawthorne and Myers, indicating that his claim would have been worth up to $1,200,000 had the Montgomery Advertiser been named as a defendant, as well as Harold Howell’s note to Love indicating that “we should have alleged [Bennett] was an employee of the Montgomery Advertiser acting in the line and scope of her employment.”

However, even though the Montgomery Advertiser was not a named defendant in Hand’s action against Bennett, it was insured under a policy Travelers had issued the Montgomery Advertiser’s corporate parent Gannett, and Bennett was an additional insured under that same policy. Bennett invoked that coverage during the course of Hand’s action against her, and Travelers provided her with counsel and funded the vast majority of the eventual settlement. There is no evidence indicating that any additional insurance coverage would have been available had the Montgomery Advertiser been named as a defendant. Thus, Hand’s claim against Roberts and the Howell firm is essentially dependent on the assertion that a jury would have punished a “deep-pocket defendant” like the Montgomery Advertiser more than an individual like Bennett, and the concomitant assertion that Hand, therefore, would have been able to negotiate a higher settlement if the Montgomery Advertiser was a party based on the likelihood of a higher verdict being returned against the Montgomery Advertiser.

However, even if, as Hand alleges, “every trial lawyer in the country” would agree with that assertion, his argument ultimately fails because we must presume that juries will follow the law, Johnson v. State, 612 So.2d 1288, 1299 (Ala.Crim.App.1992), and it has long been the law in this State that a jury must calculate damages based on the evidence of injury, not the identity of the defendant and his or her presumed wealth. For example, in Barbour County v. Horn, 48 Ala. 566 (1872), this Court reversed a judgment based on a verdict entered in favor of a plaintiff who was injured when he fell off an insecure bridge based on the improper admission of evidence regarding the defendant’s wealth and the trial court’s refusal to give the following requested jury charge: “Neither the fact that Barbour county, with its wealth, is defendant, nor the fact of the poverty or family distress of plaintiff ... can be taken into the account by the jury, in estimating the amount of damages or compensation which the county ought to pay plaintiff for said injuries.” 48 Ala. at 569-70. In doing so, the Court explained:

“Damages, it is said, are intended as a pecuniary compensation to the party wronged for the hurt inflicted; to be great or small, in proportion to the injury itself.... And it is for the disabling effects of the injury, whether past or prospective, that the plaintiff is entitled to compensation.... Then, the jury may consider the expenses of the cure, and if the injury is irremediable, and will necessarily require future treatment and nursing, the probable costs of this, also, may be added; so, likewise, the loss of time up to the verdict, and the probable loss of time in the future, and the pain inflicted upon the body.... These are things of value, capable of pecuniary ad-measurement, and which the plaintiff loses by the injury, or they are burdens imposed upon him by the conduct of the [defendant], against the effects of which he is entitled to indemnity, so far as a pecuniary compensation can afford it. But the wealth of the defendant, or poverty of the plaintiff, has nothing to do with their ascertainment. It was, therefore, improper to admit evidence of the wealth of the defendant in the court below to go to the jury, or to refuse to instruct the jury, when properly requested, that the defendant’s wealth could not be taken into consideration in making up their verdict.”

48 Ala. at 577-78 (emphasis omitted). See also Ex parte Hsu, 707 So.2d 223, 225 (Ala.1997) (“Accordingly, we turn to longstanding Alabama law on the issue of admissibility of evidence of a defendant’s wealth. Under that law, ‘evidence of a defendant’s wealth is highly prejudicial and, therefore, inadmissible [during trial].’ ” (quoting Southern Life & Health Ins. Co. v. Whitman, 358 So.2d 1025, 1026 (Ala.1978))).

Moreover, we have also made it clear that corporations are entitled to the same fair trial an individual would receive. In Chrysler Corp. v. Hassell, 291 Ala. 267, 272-73, 280 So.2d 102, 106 (1973), we explained this principle as follows:

“During closing argument, counsel for appellee stated to the jury:
“ ‘This is what this lawsuit is about. Let me tell you something about this corporation, lady and gentlemen. They keep talking about Mr. Preuitt, Mr. Preuitt, Mr. Preuitt. Jim Preuitt, as an individual, is not being sued. We have got two corporations here in this case. Jim Preuitt Chrysler Corporation and the Chrysler Corporation in Detroit. Think just a minute about what a corporation is, if you will.
“ “You are people, I am people, Mr. Hassell [the plaintiff] is people. You have got blood running through your veins and you have got a heart beating. If you stick your finger, you bleed. One of these days, it may be tomorrow or it may be years from now, but you are every one going to die. I’m going to die and Mr. Hassell is going to die.’

“Here, an objection was overruled and exception noted:

“‘[Attorney for appellee]: And lady and gentlemen, when you die and when I die, we are going to face the same Maker. We are going to answer for what we did on this earth. I’m going to answer for what I did. Let me tell you something, lady and gentlemen. A corporation has no heart, it has got no soul. It has got no fear of Hell and Damnation in the hereafter.
“ ‘[Attorney for Chrysler Corp.]: Your Honor, we object to that, that is highly prejudicial, it is intended for the purpose of making this jury believe that the standard of justice is different for corporations and a person.
“‘[The court]: It is sustained. The court feels that is far afield.’
“This argument was improper, highly prejudicial and was not relevant to any issues in the case. A corporation is entitled to fair and equal treatment if it is a party to litigation. In Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 1 So. 202 [ (1887) ], this court, per Stone, C.J., held that a reference to the defendant as ‘this soulless corporation’ in concluding argument of counsel was ‘objectionable, and the court erred in not arresting that line of argument, when thereto requested.’ ”

See also Boone v. State, 170 Ala. 57, 62, 54 So. 109, 110 (1911) (“The fourteenth amendment provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ That corporations are persons within the meaning of this amendment is no longer open to discussion.”). Thus, it would be improper for a jury to hold the Montgomery Advertiser to a different standard of justice than the standard to which it held Bennett merely because the Montgomery Advertiser is a corporation, and it would likewise be improper for us to assume that a jury would exhibit such prejudice. The amount of any settlement in litigation is presumably based largely on the expected amount of the verdict that might be returned if a claim were to proceed to trial, and, were we to accept Hand’s argument that the Montgomery Advertiser’s inclusion as a defendant in this case would have resulted in a higher settlement, we would effectively be making that assumption of prejudice. We decline to do so.

Although the parties have not identified Alabama caselaw directly on point, the Superior Court of Pennsylvania considered a similar case in Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979). The Schenkel court described the facts before it as follows:

“Briefly stated, these are the facts upon which the instant case is based. On January 9, 1969, appellant was injured in an automobile accident when his vehicle was struck from behind by a car driven by one Charles Salem. Appellant thereafter retained appellee as his attorney to prosecute appellant’s civil action against Salem. When appellee filed this action, he did not join Salem’s employer, Wintz Brothers Construction Company, as defendants. Appellant claims that at the time of the accident, Salem was ‘on the job’ and was within the scope of his employment for Wintz Brothers and that Wintz Brothers should have been joined as defendants. Appellant’s dissatisfaction with appellee’s handling of the personal injury action led appellant to dismiss appellee before trial and retain other counsel to complete the case.”

266 Pa.Super. at 397-98, 405 A.2d at 493. The appellant was awarded $9,500 by a jury in his action against Salem. He thereafter filed a legal-malpractice action against the appellee, alleging that the jury would have awarded him a larger verdict in his personal-injury action if the corporate employer had been joined as a defendant. The Pennsylvania court rejected this argument, stating:

“In appellant’s case, the failure to join the corporate employer should not have affected appellant’s damages. The tort was the same in this case, whether or not the corporate employer was a party to the action. The actual tortfeasor, Salem, was made a defendant; the corporate employer would only arguably be liable under agency principles, not as an independent tortfeasor. Joinder of the corporate employer would simply have increased the number of parties against whom appellant could enforce any judgment he received.”

266 Pa.Super. at 400, 405 A.2d at 494. This rationale applies in the instant case as well. The “tort was the same” whether or not the Montgomery Advertiser was a party to the action, and the settlement Hand agreed to was in fact paid by the Montgomery Advertiser’s insurer; thus, there is no evidence indicating that Hand was prejudiced by the failure to name the Montgomery Advertiser as a defendant. Notably, this is not a case in which the plaintiff was unable to obtain satisfaction of a judgment or to obtain a meaningful settlement based on the judgment-proof status of the defendant; it appears to be undisputed that Bennett was covered by the $5,000,000 Travelers policy held by Gannett and that most of the funds for Hand’s settlement were paid pursuant to that policy. Accordingly, it is mere speculation to assume that either the settlement or any jury verdict would have been higher if the Montgomery Advertiser were a named defendant in Hand’s action against Bennett. This Court has previously stated that it will not speculate as to a jury’s rationale for reaching a verdict; for similar reasons, we will not speculate as to what verdict a jury might have reached in a certain case if that case had not been settled and if the roster of defendants had been augmented. See, e.g., Clayton v. LLB Timber Co., 70 So.3d 283, 288 (Ala.2011) (“We decline to speculate that the jury reached its verdict solely on the basis of evidence indicating that [the appellant] was malingering.”).

IV.

The trial court entered a summary judgment in favor of Roberts and the Howell firm in Hand’s action alleging that they had committed legal malpractice while representing him in his action against Bennett. Because there is no evidence indicating, but only speculation, that Hand would have been able to settle his injury claim for a higher amount if Roberts and the Howell firm had also named the Montgomery Advertiser as a defendant, that judgment is hereby affirmed. All other arguments raised by the parties on appeal are accordingly pretermitted.

AFFIRMED.

MOORE, C.J., and BOLIN and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result.

PARKER, SHAW, and MAIN, JJ., dissent.

MURDOCK, Justice

(concurring in the result).

The pivotal point in the main opinion appears to be the following passage:

“The ‘tort was the same’ whether or not the Montgomery Advertiser was a party to the action, and the settlement [Tommy] Hand agreed to was in fact paid by the Montgomery Advertiser’s insurer; thus, there is no evidence indicating that Hand was prejudiced by the failure to name the Montgomery Advertiser as a defendant.”

131 So.3d at 605. I agree with the first statement included in this passage (before the semicolon), but not the latter statement. As a matter of law, however, I believe we must consider the latter statement to be inapposite.

As the main opinion aptly notes: “[W]e must presume that juries will follow the law, ... and it has long been the law in this State that a jury must calculate damages based on the evidence of injury, not the identity of the defendant and his or her presumed wealth.” 131 So.3d at 603. Here, the plaintiffs actual damage is the same regardless of who is named as a defendant. Further, for all that appears from the record in this ease with respect to the availability of a $5,000,000 liability policy, the named defendant is as fully able to pay a judgment for the plaintiffs actual damages as would be any other defendant. As the main opinion states: “ ‘[T]he failure to join the corporate employer should not have affected appellant’s damages’ ” resulting from a trial. 131 So.3d at 605 (quoting Schenkel v. Monheit, 266 Pa.Super. 396, 400, 405 A.2d 493, 494 (1979) (emphasis added)). In light of the foregoing, even if it would not be (as the main opinion asserts) “mere speculation to assume” that a higher settlement would have been reached if the Montgomery Advertiser had been named as a defendant, we must consider any such difference to be a function of the voluntary choice by the plaintiff, Tommy Hand, to resolve his case through a settlement process rather than proceeding to trial.

In addition, even if it would not be speculation to assume that a higher settlement would have been reached if the Montgomery Advertiser had been named as a defendant, it seems beyond peradventure to me that it would at least be speculation as to how much higher the settlement would have been. Again, however, even if this were not true, it would be improper for the reasons noted above and in the main opinion for this Court to base its decision in a case such as this on the notion that a different settlement was achieved because of the prospect that a different judgment for actual damage would have been awarded in a trial against a different type of defendant, at least where there is no difference shown in the ability of the plaintiff to collect such a judgment.

SHAW, Justice

(dissenting).

I respectfully dissent. The main opinion states that there is no evidence indicating that the plaintiff, Tommy Hand, “was prejudiced by the failure to name the Montgomery Advertiser as a defendant” and that “it is mere speculation to assume that either the settlement or any jury verdict would have been higher if the Montgomery Advertiser were a named defendant in Hand’s action against [Julie] Bennett.” 131 So.3d at 605. I disagree that such assumptions would be “mere speculation,” because the record before us contains substantial evidence to substantiate both.

Although I agree that we cannot assume that a jury would have awarded Hand more damages simply because of the presence of the Montgomery Advertiser as a defendant, as noted in the main opinion there is evidence indicating that Hand’s actual damage amounted to at least $872,500. This evidence, if believed by a jury at trial, would have resulted in a “jury verdict ... higher” than the settlement amount.

Nevertheless, the possibility that the jury would have awarded more damages than the amount achieved in the settlement is of no consequence. Instead, there is evidence here, through the affidavits of Hand’s attorneys, indicating that the settlement value of the case, had the Montgomery Advertiser been named as a party, would have amounted to between $1 and $1.2 million, which is more than the actual settlement amount. I see nothing in the materials before us leading me to call into question those affidavits. I thus believe, contrary to the main opinion, that there was substantial evidence “indicating ... that Hand would have been able to settle his injury claim for a higher amount if ... the Montgomery Advertiser [had also been named] as a defendant.” 131 So.3d at 605. I would thus address the remaining issues purportedly supporting the trial court’s summary judgment but the discussion of which the main opinion says is pretermit-ted.

      . Moreover, although Hand argues that he ultimately received less in his settlement ($625,000) than he suffered in actual damage ($872,500) and that this was a result of counsel’s failure to name the Montgomery Advertiser as a defendant, it bears emphasis that it was ultimately Hand's decision to settle his case and not present evidence of his damage to a jury.


author: BRYAN, Justice.

text:
    Raymond PATTERSON v. JAI MAATADEE, INC., d/b/a R.C. Quick Stop, et al.
    1111451.
    Supreme Court of Alabama.
    June 7, 2013.

      Renee E. Thiry and Richard L. Thiry of Thiry & Caddell, LLP, Mobile, for appellant.
    Stewart L. Howard and Jonathan G. Festa of Stewart Howard, P.C., Mobile, for appellees.
   BRYAN, Justice.

Raymond Patterson, the plaintiff below, appeals from a summary judgment entered in favor of some of the defendants below. We dismiss the appeal as being from a nonfinal judgment.

On August 7, 2007, Patterson visited a gasoline service station/convenience store in Theodore known as “R.C. Quick Stop” or “Mystik” (“the gas station”). At the time, a metal grate covered a drain in the area between the gasoline pumps and State Highway 90, which is adjacent to the gas station. When Patterson stepped on the grate, a section collapsed, and Patterson fell. Unfortunately, the record on appeal is unclear regarding the roles of some of the parties in this case. The record contains evidence indicating that Clifford H. Jackson, Jr., owned the gas station. C-Jack Enterprises, Inc. (“C-Jack”), a company formed by Jackson and his wife, was involved in the operation of the gas station around 1993. However, after 1993 the extent of C-Jack’s involvement with the gas station is unclear. The record contains evidence suggesting that C-Jack may have owned the gas station at some point. The record also indicates that C-Jack was involved in a remediation project of the premises and that C-Jack is involved in the operation of The Garden Hotel, which neighbors the gas station.

In 1995, Jackson leased the gas station to Roger Hau Nguyen. Nguyen is the registered agent for R.C. Spur, Inc., which was involved in the operation of the gas station during the term of Nguyen’s lease. In 2004, Nguyen subleased the gas station to Anil Patel. Patel formed Jai Maatadee, Inc., which was operating the gas station in 2007 when Patterson fell.

Following the accident, Patterson sued Jackson, C-Jack d/b/a The Garden Hotel, Patel, Jai Maatadee, Inc., d/b/a R.C. Quick Stop, R.C. Spur, and “Mystik.” Jackson died while the action was pending, and Jackson’s estate (“the estate”) was substituted as a defendant. Patterson’s complaint, as finally amended, alleged claims of negligence and wantonness based on a premises-liability theory and claims of negligent and wanton failure to warn. Patel and Jai Maatadee moved for a summary judgment, arguing that they owed no duty to Patterson because, they said, the accident did not occur on land controlled by them. According to Patel and Jai Maata-dee, the grate where Patterson fell is actually located on the public right-of-way adjacent to Highway 90, which is owned by the State of Alabama. Patel and Jai Maa-tadee also argued that, even if the grate was on property over which they had control, the grate was an open and obvious hazard and, therefore, they are not liable for any injury caused by the grate.

The estate also moved for a summary judgment. Like Patel and Jai Maatadee, the estate argued that the grate was located on property owned by the State and, in the alternative, that the grate was an open and obvious hazard. The estate further argued that, assuming that the grate was on Jackson’s property, Jackson, as the landlord, owed no duty to Patterson. Rather, the estate argued, if any duty to Patterson existed, Patel, as Jackson’s tenant, owed the duty. C-Jack, the company formed by Jackson and his wife, also moved for a summary judgment, asserting various arguments, including those arguments made by Patel, Jai Maatadee, and the estate in their summary-judgment motions.

Patterson filed responses to the summary-judgment motions, arguing, among other things, that the grate was on property that had been owned by Jackson or C-Jack and that the grate was not an open and obvious hazard. The trial court entered a summary judgment in favor of the estate, Patel, Jai Maatadee, and R.C. Spur, without specifying its reasons; however, the trial court denied C-Jack’s summary-judgment motion. The trial court later vacated the summary judgment against R.C. Spur because R.C. Spur had not moved for a summary judgment.

Patterson appealed to this Court. Because the trial court’s summary judgment did not dispose of the claims against C-Jack, R.C. Spur, and “Mystik,” it was a nonfinal judgment. Thus, the clerk of this Court remanded the case for the trial court (1) to make the summary judgment entered against Patterson final pursuant to Rule 54(b), Ala. R. Civ. P.; or (2) to adjudicate the remaining claims, thus making the summary judgment entered against Patterson final and appealable; or (3) to take no action, in which case the appeal would be dismissed as being from a nonfi-nal judgment. The trial court subsequently entered an order purporting to certify the summary judgment entered against Patterson as final pursuant to Rule 54(b).

Before we consider Patterson’s arguments that the trial court erred in entering the summary judgment in favor of the estate, Patel, and Jai Maatadee, we must determine whether we have jurisdiction to hear this appeal. “[I]t is well settled that this Court may consider, ex mero motu, whether a judgment or order is sufficiently final to support an appeal.” Natures Way Marine, LLC v. Dunhill Entities, LP, 63 So.3d 615, 618 (Ala.2010).

“ ‘Ordinarily, an appeal can be brought only from a final judgment. Ala.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.’ ”

North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344-45 (Ala.2008) (quoting Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001)).

“Rule 54(b) provides, in part:
“ “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’
“This Court recently explained the appropriate standard for reviewing Rule 54(b) certifications, stating:
“ ‘ “If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.” Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007).
“ ‘Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against [the defendant in this case], thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court’s conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding.’
“Centennial Assocs. v. Guthrie, 20 So.3d 1277, 1279 (Ala.2009). Reviewing the trial court’s finding in Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006), that there was no just reason for delay, this Court explained that certifications under Rule 54(b) are disfavored:
“ ‘This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘ “It bears repeating, here, that ‘ “[certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.” ’ State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). ‘ “ ‘Appellate review in a piecemeal fashion is not favored.’ ” ’ Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003)] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis [omitted]).”
‘Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).’
“In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether ‘the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ Schlarb, 955 So.2d at 419-20 (quoting Clarke-Mobile Counties Gas Dist. v.
Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs., 20 So.3d at 1281 (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required ‘resolution of the same issue’ as issue pending on appeal) .... ”

Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala.2010).

In Smith v. Slack Alost Development Services of Alabama, LLC, 32 So.3d 556, 562-63 (Ala.2009), this Court discussed whether the Rule 54(b) certification was appropriate in that case:

“In the instant ease, it is apparent that at least some of the issues presented in the still pending claim against Smith are the same as the issues presented in the appeal now brought by Smith and Smith & Weems Investments. Weems and Smith are business partners accused of breaching the same real-estate contract, and, as Hazel did, Weems and Smith have both argued that Slack Alost never presented them with the original offering statement or the amended offering statement for the Bel Sole condominium development, in violation of § 35-8A-408[, Ala.Code 1975]. In Centennial Associates, Ltd.[ v. Guthrie, 20 So.3d 1277 (Ala.2009) ], we stated that ‘ “[i]t is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.” ’ 20 So.3d at 1281 (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)). Repeated appellate review of the same underlying facts would be a probability in this case, and, in light of this Court’s stated policy disfavoring appellate review in a piecemeal fashion, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004), we accordingly hold that the trial court exceeded its discretion in certifying the judgment entered against Weems as final pursuant to Rule 54(b).”

See also Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008) (“It would ... be contrary to the interests of justice to adjudicate these remaining claims against Gonzales and Elizondo separately from the claims against the other defendants; the common issues are intertwined.”).

Similarly, in this ease, some of the issues presented in the pending claims against R.C. Spur, C-Jack, and Mystik are the same issues presented in the claims decided by the judgment certified as final under Rule 54(b). Patterson has alleged the same claims against all the defendants. Whether the accident occurred on property owned by the State or whether it occurred on property owned or controlled by the defendants is a common issue among those claims. Further, whether the grate was an open and obvious hazard is a common issue among both the pending claims and the certified claims. Because the “claims that remain pending in the trial court present issues that are ‘intertwined’ with the issues presented in the claim[s] certified as final pursuant to Rule 54(b),” see Smith, 32 So.3d at 562, we conclude that the trial court exceeded its discretion in certifying the summary judgment entered in favor of the estate, Patel, and Jai Maatadee as final pursuant to Rule 54(b). Accordingly, the trial court’s Rule 54(b) certification was invalid, and this appeal is from a nonfinal judgment. Therefore, we dismiss the appeal.

APPEAL DISMISSED.

MOORE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.


author: PITTMAN, Judge.

text:
    Harold Keith HUNT v. ESTATE OF HAROLD GUY HUNT et al.
    2110768.
    Court of Civil Appeals of Alabama.
    March 15, 2013.
    Rehearing Denied June 7, 2013.

      Herman Watson, Jr., and Kourtney B. Ikard of Watson McKinney, LLP, Huntsville, for appellant.
    Dan J. Willingham of Fuller, Willing-ham, Fuller & Carter, LLC, Cullman, for appellees.
   PITTMAN, Judge.

Harold Keith Hunt, the surviving son of Harold Guy Hunt, who died testate on January 30, 2009, appeals from a November 21, 2011, order of the Cullman Circuit Court (“the circuit court”) that, among other things, refused to issue him a deed to the real property devised to him in his father’s will until all debts, claims, and costs of administration of the estate had been paid. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. We dismiss the appeal as having been taken from a nonfi-nal judgment.

The administration of the estate was removed from the Cullman County Probate Court to the circuit court, and the circuit court took jurisdiction over the administration of the estate. The circuit court determined that the debts, claims, and costs of the administration of the estate amounted to approximately $50,000; that the personal property of the estate was insufficient to pay those debts, claims, and costs; that Harold Keith Hunt and two of his sisters, Anita Lynn Hunt and Sherrie Hunt Williams, were specific devi-sees of real property under the terms of their father’s will; and, further, that

“each specific devisee shall be obligated to pay the pro rata share that he or she is to receive under the will in order to pay the claims, debts, and costs of administration [of the estate]. If the devi-sees are not able to pay their pro rata share, then his or her respective devise may be sold to satisfy the debts, claims, and costs of administration [in the amount of approximately $50,000].”

Although the circuit court, in its November 21, 2011, order, resolved most of the issues between the testator’s surviving spouse and children, there had been no final settlement of the estate when the appeal was taken, and the circuit court did not direct the entry of a final judgment as to its order. See Rule 54(b), Ala. R. Civ. P.

In Eustace v. Browning, 30 So.3d 445, 449 (Ala.Civ.App.2009), this court stated:

“This court has previously held that, when a circuit court retains jurisdiction ■ over the administration of a decedent’s estate, any order entered before the final settlement of the estate would be a nonfinal judgment unless certified as final pursuant to Rule 54(b), Ala. R. Civ. P. See Montiel v. Estate of Montiel, 976 So.2d 1043, 1044 (Ala.Civ.App.2007).... Generally, ‘a nonfinal judgment will not support an appeal.’ Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007).”

Accordingly, we dismiss the appeal as having been taken from a nonfinal judgment.

APPEAL DISMISSED.

MOORE and DONALDSON, JJ., concur.

THOMPSON, P.J., and THOMAS, J., recuse themselves.