author: CARLTON, J.,

text:
    Denzel CASTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01253-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.
    Office of State Public Defender by George T. Holmes, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On May 30, 2013, a Bolivar County jury convicted Denzel Caston of burglary of an automobile. The trial court sentenced Caston to serve five years in the custody of the Mississippi Department of Corrections (MDOC), with three years suspended. Caston appeals his sentence and conviction, claiming that the trial court erred in denying his motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Finding no error, we affirm the trial court’s judgment.

FACTS

¶ 2. Between the hours of 11:00 and 11:30 p.m. on the evening of May 28, 2012, Charles Harvey heard the alarm in his pickup truck, which he parked in his driveway outside of his house, going off. Harvey and his son, Sherrod, rushed outside of their house to investigate. Harvey observed three men running from the truck, and he and Sherrod discovered that someone broke the driver’s window of the truck and removed the truck radio. Harvey called the sheriffs department and gave a report of the theft to the responding officer.

¶ 3. The following day, Harvey went to the county justice court and gave a written statement about the incident. Harvey stated that he assumed that Elevester Trotter and Denzel Caston were two of the individuals who broke into the truck. Harvey stated that he saw Trotter’s face, and he identified Caston as the second individual because he recognized Caston’s dreadlocks. Harvey admitted that he never saw Caston’s face. Harvey also stated that he found a small hammer-like object on the ground outside of the truck, which he believed the culprits used to break the truck window. Harvey testified that the sherifPs department saw the hammer-like object, but failed to take it with them as evidence.

¶ 4. Officer Michael Williams, an investigator with the Bolivar County Sheriffs Department, investigated the auto burglary. After Harvey signed affidavits in justice court against Trotter and Caston, Officer Williams located both Trotter and Caston and arrested them. Trotter refused to give a statement to Officer Williams, but Caston did provide a statement.

¶ 5. In his statement to Officer Williams, Caston claimed that on the night of May 28, 2012, he and Trotter were at The Barn, a liquor store in Duncan, Mississippi, when Trotter informed Caston that a guy named Sherrod possessed a radio. Trotter suggested to Caston that they should go get the radio. In the statement, Caston admitted that he and Trotter went to Harvey’s house to steal the radio. Caston stated that he acted as a lookout and stood next to the grain silo near the edge of Harvey’s street while Trotter broke into the truck. Caston stated that he failed to hear any glass break, but he did see Trotter inside of the truck. Ca-ston admitted that when the front-door light of Harvey’s house turned on, he and Trotter ran.

¶ 6. Trotter pled guilty to the auto-burglary charge, and testified for the State at Caston’s trial. Trotter testified that on the evening of Monday, May 28, 2012, he was at a convenience store with Caston, discussing how they both needed money. Trotter stated that he and Caston heard that somebody wanted to buy a radio, and Trotter told Caston that he knew where to find one. Trotter stated that he and Ca-ston agreed to go get the radio.

¶ 7. According to Trotter, Caston picked up a small crowbar off of a table at a house along the way to Harvey’s house. Once the men approached Harvey’s house, Trotter testified that Caston took off his shirt, wrapped it around his hand, and used the crowbar to break into Harvey’s truck’s passenger window. Trotter stated that Caston helped him get through the truck window. When Caston saw Harvey coming out of the house, Caston alerted Trotter, and the two fled. According to Trotter, he and Caston threw the stolen radio near some train tracks as they fled, and the two returned the next day to retrieve the radio. Trotter stated that he and Caston sold the radio and split the money.

¶ 8. The jury found Caston guilty of auto burglary, and the trial court sentenced Caston to serve five years in the custody of the MDOC, with three years suspended. Caston filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied. Caston now appeals, claiming that the weight of the evidence presented at trial fails to support the jury’s verdict, and that as a result, the circuit court erred in denying his motion for a new trial.

STANDARD OF REVIEW

¶ 9. In Ross v. State, 954 So.2d 968, 1016 (¶ 127) (Miss.2007) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)), the Mississippi Supreme Court set forth the standard of review for a motion for a new trial as follows:

A motion for new trial challenges the weight of the evidence[;][w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will disturb a verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

This Court will reverse the trial court’s denial of a motion for a new trial only if the trial court abused its discretion. Daniels v. State, 107 So.3d 961, 963 (¶12) (Miss.2013).

DISCUSSION

¶ 10. Caston claims that the jury’s verdict finding him guilty of auto burglary was against the overwhelming weight of the evidence; thus, the trial court erred in denying his motion for a new trial. The grand jury indicted Caston on the charge of burglary of an automobile under Mississippi Code Annotated section 97-17-33(1) (Rev. 2006), which states:

Every person who shall be convicted of breaking and entering, in the day or night, any ... automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

¶ 11. In support of his argument that the jury’s verdict of guilty was against the overwhelming weight of the evidence presented at trial, Caston asserts that the jury heard testimony from his mother, Tammy Caston, and his uncle, Michael Ca-ston, who both testified that Caston was at home on the night of the burglary. Tammy testified that Caston was at home by 9:30 p.m. that night. Tammy and Michael both stated that around 10:00 or 10:30 p.m. that evening, Caston left the house to go to The Barn to pick up several items that Michael requested Caston purchase for him. Michael testified that within five minutes, Caston returned home from the store with a soda, a bag of chips, and a cake for Michael. Michael went to his bedroom at 10:30 p.m. and stayed there for the rest of the night. Tammy testified that after returning from the store, Caston watched television with her for the remainder of the night.

¶ 12. Caston also testified in his own defense, stating that he failed to participate in the auto burglary. Caston claimed that he was with his girlfriend on the night of the burglary. He testified that he only confessed to committing the burglary to Officer Williams because he was frustrated and wanted to make bail. Caston admitted that he lied to Officer Williams about his participation in the crime, and Caston alleged that he only knew the details of the burglary because he had heard the details from someone else.

¶ 13. Regarding jury trials, the Mississippi Supreme Court has held that the jury acts as the sole judge of the credibility of witnesses and the weight and worth of their conflicting testimony. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). The jury possesses “the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory and sincerity.” Jones v. State, 381 So.2d 983, 989 (Miss.1980). Additionally, “[w]hen there is substantial evidence consistent with the verdict, evidence which is of such weight and quality that, keeping the burden of proof of beyond a reasonable doubt in mind, fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the jury’s verdict should be allowed to stand.” Sheffield v. State, 749 So.2d 123,127 (¶ 15) (Miss.1999) (citation omitted).

¶ 14. In the present case, the record reflects that the State introduced sufficient evidence whereby a reasonable jury could have found Caston guilty of the crime charged. Harvey testified that he observed both Trotter and Caston running away from Harvey’s truck on the night of the auto burglary. Harvey admitted that although he did not see Caston’s face, he recognized him by his dreadlocks, explaining that they live in a small community and Caston was known for his dreadlocks. Harvey testified that Caston wore no shirt as he ran from the truck.

¶ 15. Officer Williams testified that he took a statement from Caston, and that Caston confessed to participating in the burglary as a lookout. Trotter also testified for the State, and he identified Caston as participating in the auto burglary. Trotter corroborated Harvey’s testimony, stating that Caston took off his shirt and wrapped it around both his hand and the metal crowbar when breaking the truck window.

¶ 16. In accepting as true the evidence supporting the jury’s verdict, we cannot find that the jury’s guilty verdict is so against the overwhelming weight of the evidence as to sanction an unconscionable injustice. See Carle v. State, 864 So.2d 993, 998 (¶ 18) (Miss.Ct.App.2004). Accordingly, we cannot find that the trial court abused its discretion in denying Ca-ston’s motion for a new trial.

¶ 17. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF AN AUTOMOBILE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Bobby D. HORTON, Jr., Appellant v. Ron KING, Appellee.
    No. 2013-CP-01689-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.

      Bobby D. Horton Jr., appellant, pro se.
    Office of the Attorney General by James M. Norris, Anthony Louis Schmidt Jr., attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Bobby D. Horton Jr. appeals the circuit court’s judgment that dismissed his petition for a writ of habeas corpus.

¶2. In 1986, Horton was convicted in DeSoto County for receiving stolen property. He was sentenced to five years, with four years suspended and one year to serve. Horton was released from this sentence on July 10,1987.

¶ 3. After his release, Horton was arrested and charged with aggravated assault in Panola County. On February 17, 1989, based on the arrest, the DeSoto County Circuit Court revoked his suspended sentence and remanded him to the custody of the Mississippi Department of Corrections (MDOC) for four years.

¶ 4. On April 18,1989, Horton was convicted for the aggravated assault and grand-larceny offenses in Panola County. He was sentenced to twenty years and five years, respectively, to be served consecutively, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007).

¶ 5. While in MDOC custody, on June 19, 2008, Horton was convicted of possession of contraband in a prison facility. He was sentenced to serve four years, which was to run consecutively to the Panola County sentences.

¶ 6. Horton raised several issues through the MDOC’s Administrative Remedy Program (ARP). First, he argued that he was denied eligibility for parole on his Desoto County conviction. As a result, Horton complained that the commencement of his mandatory sentences from Pa-nola County have been delayed. Next, he claimed that his mandatory sentence has been extended beyond the maximum provided by law through the loss of earned time as a result of rules violations and frivolous lawsuits. Finally, Horton claimed that he has been wrongfully denied application of the twenty-five-percent rule in regard to his nonviolent conviction for possession of contraband from Sunflower County. These claims were exhausted on May 22, 2013.

¶ 7. On July 8, 2013, Horton filed his petition for a writ of habeas corpus in the Circuit Court of Greene County. He is currently confined as an inmate at the South Mississippi Correctional Institute in Leakesville, Mississippi. On September 6, 2013, the circuit court dismissed Horton’s petition. It is from this judgment that Horton now appeals.

¶ 8. The standard of review that this Court employs in administrative-agency decisions of the MDOC is that we will not disturb the decision of an administrative agency unless the decision is “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.” Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001).

¶9. In this appeal, Horton challenges the administrative actions of the MDOC regarding his parole eligibility and the time period of his sentences. Specifically, Horton argues that he was wrongly denied his statutory right to appear before the Mississippi Parole Board, and that his mandatory sentence for grand larceny had been erroneously extended beyond the statutory maximum.

¶ 10. The State argues that Horton failed to timely file his appeal with the circuit court after exhausting his remedies under the MDOC’s ARP process. The State also argues that the MDOC’s decision was supported by substantial evidence, not arbitrary or capricious, not beyond the agency’s scope or powers, and not violative of Horton’s constitutional or statutory rights.

¶ 11. “Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure ... may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” Miss.Code Ann. § 47-5-807 (Rev. 2011). This Court has upheld the dismissal of an untimely filed pro se motion from an inmate appealing an administrative decision of the MDOC. Edmond v. Anderson, 820 So.2d 1, 2-3 (¶¶ 7-8) (Miss.Ct.App.2002).

¶ 12. Horton failed to timely file his appeal. Horton completed his administrative-review process on May 22, 2013. He filed the “Petition for Writ of Habeas Corpus” on July 8, 2013. This was beyond the thirty-day statutory deadline in section 47-5-807.

¶ 13. In addition, Horton has provided no evidence that he was restricted from timely filing his appeal by the MDOC. Horton claims that he could not file his petition through the prison law library until he obtained the completed in forma pauperis petition and financial-authorization form. He also claims that he requested an extension of time from the court clerk. However, there is no evidence in the record to support his assertions. As a result, we find that the circuit court’s decision to dismiss the petition as untimely filed was proper.

¶ 14. We also find that the circuit court properly dismissed Horton’s claims related to his parole and illegal sentences. The circuit court held that these claims could only be asserted under the Mississippi Post-Conviction Collateral Relief Act. As such, the claims would have to be addressed by the original sentencing court. Miss.Code Ann. § 99-39-7 (Supp.2014). The court further instructed Horton that the separate claims would have to be made through separate motions within the three different jurisdictions in which Horton was convicted. We agree. This Court has held that “an inmate may contest matter[s] such as [matters related to parole and sentencing] as an original action in circuit court,” even though the inmate had not timely sought judicial review of the denial of his grievance pursuant to the administrative-grievance procedure. Lattimore v. Sparkman, 858 So.2d 936, 938 (¶ 7) (Miss.Ct.App.2003).

¶ 15. Because we find no error, the circuit court’s judgment is affirmed.

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

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


author: MAXWELL, J.,

text:
    Armon RANDALL a/k/a Armon Andre Randall, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CA-01334-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2014.

      Michael W. Crosby, Guliport, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Almost ten years after pleading guilty to capital murder, Armón Randall seeks to vacate his guilty plea and sentence of life without parole. The gist of his motion for post-conviction relief (PCR) is that the predicate robbery, which elevated his charge to capital murder, was insufficiently pled in his indictment. After review, we find his challenge fails for both procedural and substantive reasons.

¶ 2. Procedurally, his motion is both untimely and subsequent to an earlier PCR motion. And substantively, the indictment sufficiently identified robbery as the underlying offense and listed its statutory section. We find this is all that is required to charge capital murder premised on robbery. For these reasons, we affirm.

Facts and Procedural History

¶ 3. In 1998, a jury found Randall guilty of the 1993 capital murder of Eugene Daniels. The murder was a capital offense because it occurred during a robbery. Randall was sentenced to death, but the Mississippi Supreme Court overturned his conviction and remanded the case for a new trial. See Randall v. State, 806 So.2d 185, 235 (¶ 145) (Miss.2001). On May 9, 2002, Randall opted to avoid a possible death sentence, and pled guilty to capital murder. He was sentenced to life without parole.

¶ 4. In July of 2005, Randall filed his first PCR motion. The motion challenged the legality of his sentence. After a hearing, the circuit court denied his motion. And this court affirmed the denial. See Randall v. State, 987 So.2d 453, 455 (¶ 9) (Miss.Ct.App.2008).

¶ 5. In January of 2012, Randall filed a second PCR motion, again arguing his sentence was illegal. His motion also included a new claim—that his capital-murder indictment was defective. On July 8, 2013, the circuit court denied Randall’s motion. Randall appealed.

Discussion

¶ 6. “We review the dismissal of a PCR motion under an abuse-of-discretion standard.” Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss.Ct.App.2013). Reversal is proper only “if the circuit court’s decision was clearly erroneous.” Id. “We review questions of law de novo.” Id.

I.Time-Bar

¶ 7. A defendant’s post-conviction challenge to an indictment after a guilty plea must be filed within three years of entry of the judgment of conviction. But Randall waited almost ten years to challenge his indictment. His guilty plea and judgment of conviction were entered on May 9, 2002, yet he did not seek post-conviction relief until January 11, 2012. So his PCR motion is almost seven years too late and is time-barred.

II. Successive-Writ Bar

¶ 8. We also find Randall’s present PCR motion is barred as a successive writ. An order dismissing or denying a PCR motion is a final judgment that bars a second or successive PCR motion. And here, Randall filed his recent PCR challenge after the circuit judge had already dismissed his first PCR motion on November 3, 2006. Thus, Randall’s PCR attack is also subsequent-writ barred.

III. Defective Indictment

¶ 9. Randall recognizes these procedural snags but argues they should be ignored because his indictment was defective. As he sees it, his guilty plea should be set aside and his life sentence vacated, since the charging document did not list the elements of the underlying offense, robbery—the crime that elevated his murder to capital murder. Since our supreme court has already rejected this argument, we disagree.

¶ 10. Our Constitution mandates that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation!.]” U.S. Const, amend. VI. Thus, a defendant is entitled to “notice and a reasonable description of the charges against him so that he may prepare his defense.” Batiste v. State, 121 So.3d 808, 836 (¶ 42) (Miss.2013) (quoting Goff v. State, 14 So.3d 625, 665 (¶175) (Miss.2009)). Generally, if an indictment tracks the language of a criminal statute, it is sufficient to inform the defendant of the charged crime. Stevens v. State, 808 So.2d 908, 919 (¶ 30) (Miss.2002).

¶ 11. Here, the indictment charged that Randall:

[O]n or about October 28, 1993, did wil-fully, unlawfully, with or without deliberate design, then and there feloniously kill Eugene Daniels, a human being[,] while in the commission of the crime and felony of [r]obbery, as defined by [selection 97-3-73, Miss.Code of 1972 (as amended), contrary to and in violation of [s]ection 97-3-19(2)(e), Miss.Code of 1972, as amended, and against the peace and dignity of the State of Mississippi.

(Emphasis added).

¶ 12. The supreme court has said that “[i]n capital-murder cases, unless the underlying felony is burglary,[] ‘the underlying felony that elevates the crime to capital murder must be identified in the indictment along with the section and subsection of the statute under which the defendant is being charged.” Batiste, 121 So.3d at 836 (¶43) (quoting Goff, 14 So.3d at 665 (¶ 176)). “No further detail is required.” Id. (quoting Goff, 14 So.3d at 665 (¶¶ 175-77)). Because Randall’s indictment identified the underlying felony as robbery and listed the section of the statute under which he was charged, the capital-murder charge was sufficiently pled, and his indictment was not defective. We affirm.

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

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

      . Randall also argues his sentence was illegal. But this court has already decided the legality of Randall’s sentence. See Randall v. State, 987 So.2d 453, 455 (¶ 8) (Miss.Ct.App.2008) (holding that "Randall’s sentence of life without parole, following his plea of guilty, [did] not violate his constitutional right against ex post facto application of the law”). So this issue is successive-writ barred.

      . See Miss.Code Ann. § 97-3-21 (Rev. 2014).

      . See Miss.Code Ann. § 99-39-5(2) (Supp. 2014); see also Jordan v. State, 118 So.3d 656, 658 (¶ 8) (Miss.Ct.App.2013) ("[T]he three-year statute of limitations applies to claims that an indictment was defective.”).

      . Miss.Code Ann. § 99-39-23(6) (Supp.2014).

      . Mississippi's Constitution includes the same notice protections. See Miss. Const, art. 3, § 26 (1890) (“In all criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation.").

      . “Burglary is unlike robbery and all other capital murder predicate felonies in that it requires as an essential element the intent to commit another crime.” Batiste, 121 So.3d at 837 (¶ 46) (quoting Berryhill v. State, 703 So.2d 250, 256 (¶24) (Miss.1997)). Therefore, "capital murder indictments that are predicated on burglary are required to state the underlying offense to the burglary." Id. at 836 n. 6 (quoting Berryhill, 703 So.2d at 255 (¶ 23)).

      . The indictment properly cited Mississippi Code Annotated section 97-3-73 (Rev. 2006), which states: "Every person who shall felo-niously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.”


author: WISE, Justice.

text:
    CITY OF GADSDEN v. Roy HARBIN.
    1120537.
    Supreme Court of Alabama.
    Dec. 13, 2013.
    Rehearing Denied Feb. 14, 2014.

      H. Edgar Howard of Ford, Howard & Cornett, P.C., Gadsden, for appellant.
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden, for appellee.
   WISE, Justice.

The City of Gadsden, the defendant below (“the City”), filed a permissive appeal pursuant to Rule 5, Ala. R.App. P., from a January 15, 2013, order of the Etowah Circuit Court denying the City’s motion for a summary judgment as to Roy Harbin’s breach-of-contract claim against the City. We reverse and remand.

Facts and Procedural History

Harbin started working as a police officer for the City in 1972. It is undisputed that he did not have a written employment contract with the City. In 1972, Harbin also started mandatory participation in the Policemen’s and Firemen’s Retirement Fund of the City of Gadsden (“the PFRF”), which was established by Act No. 226, Ala. Acts 1959. At that time, the PFRF provided, in part, that, after 20 or more years of service, a participant would receive

“[a] retirement benefit equal to 50 per-centum of the current salary being paid to persons holding the same rank as such retirement member held at the time of his retirement.”

In 1975, the PFRF was modified by Act No. 904, Ala. Acts 1975, and the above-quoted “sliding scale provision” was eliminated. The PFRF was again modified in 1980 by Act No. 80-442, Ala. Acts 1980. Finally, in 2002, all the funds in the PFRF were transferred to the Employees’ Retirement System of Alabama (“the ERS”), which then administered the retirement program for the City’s police officers. Harbin retired in 2012 and currently receives pension payments under the ERS.

On January 11, 2007, Harbin sued the City, alleging breach of contract and seeking equitable relief. Afterward, he amended his complaint five times. In the fifth amended complaint, which was filed in 2011, Harbin alleged the following regarding the contract he contends was breached:

“Roy Harbin, age 67, has an employment agreement or contract or a memorandum of understanding with the City of Gadsden as a police officer. Roy Harbin was hired in 1972 and has been a Gadsden police officer 39 years. When Roy Harbin was hired, the City agreed to provide police and firemen a 20 year retirement program provided by statute whereby police and firemen would receive 50% retirement benefits after 20 years of service with a sliding scale. The City also agreed to provide lifetime major medical coverage.”

Harbin also alleged that he paid into the PFRF for 20 years, from 1972 until 1992, and that, therefore, he “became fully eligible for 20 years of retirement benefits in 1992.”

The City answered the complaint and denied Harbin’s allegations. Specifically, it denied that it had ever had an employment contract, an employment agreement, or a memorandum of understanding with Harbin. The City also denied that there had ever been anything called a “City Retirement Plan.”

On November 7, 2012, Harbin filed a motion for a partial summary judgment as to the issues whether he had a contract with the City and whether that contract included a pension. He asserted that, when he was hired in 1972, the City agreed to provide a 20-year retirement program that was provided for by statute by which, after 20 years of service, he would receive 50% retirement benefits calculated on a sliding scale and lifetime major-medical insurance coverage. Harbin also asserted that the “agreement or contract was confirmed and ratified by employee handbooks issued by the City of Gadsden.” In support of the motion, he submitted excerpts from the City’s employee handbooks from 1975, 1981-84, 1984-87, and 1987-91.

On November 27, 2012, the City filed a motion for a summary judgment. Referencing Harbin’s admission in his deposition, it argued that Harbin never had a written employment contract with the City; instead, it argued that the terms of his employment were established by rules promulgated by the City’s Civil Service Board. In support thereof, it attached to its motion a copy of the Civil Service Board Rules, as adopted by the Civil Service Board on May 25,1994.

Noting that Harbin had submitted excerpts from employee handbooks, the City asserted that those handbooks simply referred to the statutory provisions that set forth the terms and conditions of the PFRF. Also, citing this Court’s decision in Board of Trustees of Policemen’s & Firemen’s Retirement Fund of Gadsden v. Cary, 373 So.2d 841, 843 (Ala.1979), the City argued that, because Harbin was hired in 1972 and had not yet vested when the legislature amended • the PFRF in 1975, the legislature had the authority to amend the terms of the PFRF so that Harbin was no longer eligible to receive the benefits that were available under the PFRF that was in place when he was hired.

In Cary, employees of the City filed an action seeking to have their rights declared following the 1975 amendment of the PFRF. This Court held that the benefits of those employees who had retired before the effective date of the 1975 amendment and of those employees who had served for at least 20 years at the time the 1975 amendment became effective and continued to serve could not be reduced and thus were not subject to the modifications in the 1975 amendment. Cary, 373 So.2d at 842-43. However, with regard to employees who had not become eligible for retirement before the effective date of the 1975 amendment, this Court stated:

“[W]e are constrained to hold that their interests had not matured into an unqualified right to receive the benefits set out in the statutory plan. We view the completion of twenty years’ service as a condition precedent to the vesting of an absolute right to receive these benefits. Therefore, absent this vesting, the compensatory scheme, including the retirement plan, was subject to legislative modification. Opinion of the Justices, 249 Ala. 128, 30 So. [2d] 254 (1947); City of Birmingham v. Penuel, 242 Ala. 167, 5 So.2d 723 (1942); State ex rel Highsmith v. Brown Service Funeral Co., 236 Ala. 249, 182 So. 18 (1938); Hard v. State ex rel. Baker, 228 Ala. 517, 154 So. 77 (1934).”

373 So.2d at 843.

On January 11, 2013, Harbin filed a response in opposition to the City’s summary-judgment motion. Although he admitted that the City had never given him a written employment contract, he asserted that the City had assured him and had agreed with him that, if he worked 20 years, he would receive retirement benefits that would include a pension consisting of 50% of his wages, based on a sliding-scale provision that allowed for annual increases, and lifetime family medical benefits. Harbin also asserted that the assurances and agreement were explained and ratified by the chief of police and by the employee handbooks issued by the City. Finally, he asserted:

“The City interprets the Cary case too narrowly claiming that the 20 years must be served before the 1975 legislation. Instead, Cary holds that rights vest after the designated time of service. Vesting of rights implies a binding contract. Therefore, Harbin was eligible for a 20 year pension.”

The trial court conducted a hearing on the summary-judgment motions on January 15, 2013. During the hearing, Harbin asked the court to rule as a matter of law that a contract existed between him and the City and to allow a jury to determine whether there had been a breach of that contract and damage as a result of the breach. Harbin once again conceded that he did not have written contract with the City. Nevertheless, without specifying a basis for such a finding, he asked the trial court to rule as a matter of law that a contract existed and that that contract included a pension.

The City argued that the contract to which Harbin referred was actually an act of the legislature — i.e., the statute that created the PFRF — and that the PFRF was governed by a board of trustees. Citing Cary, it also argued that, in 1975, the legislature made changes to the manner in which retirees would be paid. The City further argued that the legislature controlled and set the terms and conditions of the PFRF and that the City contributed what it was required under the PFRF to contribute. It additionally argued that the fact that the City had employee handbooks that said that its police officers participated in the PFRF “doesn’t change anything” and “just says the officers are a part of this legislative scheme.” Finally, it argued that participating in a pension scheme set up by the legislature is not akin to entering into a contract with the City. Therefore, the City concluded, no contract existed between it and Harbin.

The City noted that litigation had ensued as a result of the 1975 amendment to the PFRF and that the defendant in that litigation was the board of trustees of the PFRF, not the City. See Cary, 373 So.2d at 843. It also argued that, because Harbin had not vested in 1975, the terms of his pension were subject to modification, as determined in Cary.

Harbin disputed the City’s argument that, under this Court’s decision in Cary, the terms of his agreement with the City were changed by the 1975 amendment because he had not yet served 20 years before the legislature adopted the 1975 amendment. Instead, he argued that Cary “says that rights to a contract vest when they’re made and when you complete your contract after twenty years, in this case forty years, then your rights are vested and you’re entitled to the agreement that you made.” Upon questioning by the trial court, Harbin indicated that it was his position that persons who were employed by the City at the time of the change in 1975 were locked into the retirement plan that was in place when they joined if they remained employed and served 20 years, that the plan could not be changed if the employee served 20 years, and that only people who were hired after the effective date of the 1975 amendment were subject to the 1975 amendment.

Despite his previous arguments, during the hearing, Harbin also stated that his breach-of-contract claim was “not based solely on the change of the legislature” and that his case did “not hinge on the fact of whether or not the legislature changed [his] agreement.” He then argued:

“We would say it did not change the agreement. But even if we’re wrong on that, it still doesn’t take away the breach of contract claim. And I think really all the evidence needs to come out to determine whether there’s been a — first of all, is there a contract? We say certainly there’s a contract. But I think all the evidence is going to have to come out and then there’s going to be a motion to throw it out for lack of evidence or lack of damages.”

Thereafter, Harbin also stated: “If I agree to work for you and I work twenty years or forty years, there’s definitely a contract.” Further, when the trial court asked him “what are the four corners of that contract,” Harbin simply stated: “I didn’t ask you to define that.” Finally, Harbin’s counsel acknowledged the following:

“I think there’s a disagreement that there’s even a contract, enforceable contract. ...
“... Because they keep saying there’s no contract, there’s no evidence of a contract. I was trying to eliminate that issue. It was really a simplistic approach.”

After the hearing, the trial court denied Harbin’s motion for a partial summary judgment, denied the City’s motion for a summary judgment, and granted the City’s motion to strike Harbin’s affidavit and evi-dentiary submissions. The City asked the trial court to certify a controlling question of law for an appeal by permission pursuant to Rule 5, Ala. R.App. P. The trial court certified the requested controlling question, and the City filed a petition for permissive appeal in this Court. This Court granted the petition and ordered an answer and briefs.

Question Certified for Interlocutory Appeal

The trial court certified the following as the controlling question of law for this interlocutory appeal:

“Whether [Harbin] can successfully assert a contract claim against the City of Gadsden arising from deficiencies alleged in the ‘Policemen’s and Firemen’s Fund of the City of Gadsden, Alabama’ (PFRF)—
“where the legislature created PFRF and its governing board of trustees, and mandated the terms and conditions of PFRF in Act 226, Acts of Alabama 1959, as amended;
“where the terms of the fund were changed by the legislature subsequently, such latter terms remaining effective until the plan’s demise;
“where the Alabama Supreme Court determined in [Board of Trustees of Policemen’s & Firemen’s Retirement Fund of Gadsden v.] Cary, 373 So.2d 841 (Ala.1979), that certain employees had vested rights under the plan as it existed when [Harbin] was made a member of the plan, and that other member employees did not;
“where the most recent substantive terms affecting [Harbin] were passed by the legislature in 1980;
“where the employer-City paid all monies into the Fund as directed by the Act(s);
“where the City did not, nor has been shown to, possess any authority over the terms and conditions of PFRF.”
Standard of Review
“ ‘ “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), Ala. 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 non-movant. 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. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035,1038-39 (Ala.2004)).”

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

Discussion

The City argues that we should reverse the trial court’s denial of its motion for a summary judgment and render a summary judgment in its favor. Specifically, it contends, as it did in its summary-judgment motion, that Harbin has not established that he had a contract with the City addressing his retirement benefits. First, the City points out that it is undisputed that Harbin did not have a written contract with the City. It also contends that, at most, Harbin appears to rely on the terms and conditions of the PFRF as it existed when he was hired in 1972, which terms, and conditions were created and governed by the legislature. The City notes that, despite this Court’s decision in Cary, Harbin has asserted that changes the legislature made to the PFRF in 1975 and 1980 do not apply to him because he served as a police officer for at least 20 years before retiring. However, it asserts, based on this Court’s decision in Cary, that the legislature had the authority to make the changes it made to the PFRF in 1975; that, as part of those changes, the legislature eliminated the provisions Harbin relies on; and that Harbin continued to participate in the plan and was bound by the changes. Therefore, the City concludes, it was not a party to a contract with Harbin, and the trial court should have entered a summary judgment in its favor.

In his brief to this Court, Harbin admits that he asked the trial court to hold that a contract existed between him and the City “without specifying the precise terms of the contract.” In response to the City’s summary-judgment motion, Harbin did not establish precisely what contract he contended the City had breached. At most, throughout his pleadings in the trial court, Harbin alleged that, because he paid into the PFRF for 20 years from 1972 until 1992, he became fully eligible for 20 years of retirement benefits as they existed when he was hired by the City. Harbin’s argument is based on the assumption that, because he worked for 20 years after he was hired in 1972, he was entitled to the retirement benefits the City offered when he was hired in 1972. However, as the City argued in response to Harbin’s motion for a partial summary judgment, that assumption is erroneous, based on this Court’s decision in Cary. The City argues that, because Harbin had not worked for the City for 20 years at the time the statute governing the PFRF was amended in 1975, his rights had not vested, and the terms of the PFRF that applied to him were subject to modification by the legislature.

Nevertheless, even after the City presented its argument as to Cary, Harbin continued to pursue his argument, asserting:

“The City interprets the Cary case too narrowly claiming that the 20 years must be served before the 1975 legislation. Instead, Cary holds that rights vest after the designated time of service. Vesting of rights implies a binding contract. Therefore, Harbin was eligible for a 20 year pension.”

As set forth above, the holding in Cary was clear. Because Harbin had not retired and was not eligible to retire before the effective date of the 1975 amendment, his rights under the PFRF had not vested and were therefore subject to modification by the 1975 amendment. Nothing in Cary supports Harbin’s arguments to the contrary.

Even during the evidentiary hearing, as set forth in more detail above, Harbin never articulated, even when specifically asked by the trial court, exactly what contract he contends the City breached. At various times, he appeared to rely on oral representations made by the chief of police when he was hired, on the written provisions in the various employee handbooks for City employees, and on the statutes establishing and modifying the PFRF.
“In order to establish a breach-of-contract claim, a plaintiff must show ‘(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.’ Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995) (citations omitted).”

Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (AIa.2001).

“ ‘ “If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production either by submitting affirmative evidence that negates an essential element in the non-movant’s claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim.” ’
“[Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) ] (quoting Justice Houston’s special concurrence in Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989), overruling Berner and adopting Justice Houston’s special concurrence in Berner as the accurate statement of the law) (emphasis omitted).”

Locke v. City of Mobile, 851 So.2d 446, 448 (Ala.2002). In its motion for a summary judgment, the City demonstrated that Harbin had not presented sufficient evidence to establish an essential element of his claim — i.e., that a contract actually existed between him and the City. Therefore, the burden shifted to Harbin to present substantial evidence to establish that there was a genuine issue of material fact as to the existence of a contract between him and the City. Because he did not present substantial evidence to establish such a genuine issue, Harbin did not satisfy his burden. Therefore, the City was entitled to a summary judgment.

Conclusion

For the above-stated reasons, we reverse the trial court’s judgment denying the City’s motion for a summary judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, BOLIN, PARKER, and MAIN, JJ., concur.

MOORE, C.J., recuses himself.

      . The City also filed a response to Harbin's summary-judgment motion. In that response, it referred to its summary-judgment motion and relied on its arguments in that motion to oppose Harbin's motion.

      . In his brief to this Court, Harbin again states that, because he worked and paid into the PFRF from 1972 until 1992, he was "fully eligible for 20 years of retirement benefits in 1992.” However, he also states that his breach-of-contract claim is not related to the statutes that created the pension. Instead, he states: "The essence of Harbin’s complaint is that if an employer provides a pension, an implied condition of the pension is that it be a properly funded pension.” However, as the City has argued, although the legislature established a pension through the PFRF, Harbin has not established that the City had a contract with him to provide him a pension. Also, any argument regarding the underfunding of the pension might be relevant to establish a breach of a contract, but it would not be relevant to establish the existence of a contract.


author: MAIN, Justice. MURDOCK, Justice

text:
    The CITY OF ALABASTER et al. v. SHELBY LAND PARTNERS, LLC, and Alabaster Land Company, LLC.
    1120677.
    Supreme Court of Alabama.
    Jan. 24, 2014.

      James W. Porter II and Richard Warren Kinney of Porter, Porter & Hassinger, P.C., Birmingham, for appellants.

      W. Patton Hahn and Vincent G. Nelan of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellees.
   MAIN, Justice.

This is a zoning case. Shelby Land Partners, LLC (“Shelby Land”), and Alabaster Land Company, LLC (“Alabaster Land”), each own a 50% undivided interest in a 19.4-acre parcel of undeveloped real property located within the municipal limits of the City of Alabaster (“the City”). In 2004, at the request of Shelby Land, the property was zoned as a “community business district,” permitting only commercial uses. In 2009, Shelby Land petitioned the City to rezone the land to permit multifamily residential use in order to pursue the development of a low-income apartment complex for senior citizens on the property. The Alabaster City Council (“the City Council”) denied Shelby Land’s rezoning application. Shelby Land and Alabaster Land then brought this action seeking relief from the denial of the rezoning request. The trial court entered a summary judgment in favor of Shelby Land and Alabaster Land and ordered the City and the City Council to rezone the land to permit multifamily residential development. The City and the members of the City Council, who were sued in their official capacities, appeal. We reverse and remand.

I. Facts & Procedural History

In June 2003, the City adopted a community-renewal plan (“the plan”). The plan called for redevelopment of more than 300 acres of underdeveloped or undeveloped land near the intersection of Highway 31 and Interstate 65 at Exit 238 in Alabaster (“the project area”). The 19.4-acre parcel is within the project area. The plan noted that the older homes, mobile homes, and buildings existing in the project area portrayed an image of decay and blight and expressed concern that the blight might spread to adjoining residential areas. In addition to alleviating the perceived blight, the plan sought to encourage commercial development at the project area “in order to increase employment opportunities, promote a diversified economy and expand the City’s tax base.” The plan further sought to improve the safe and efficient flow of traffic through and near the project area. Although the plan indicated the potential for mixed-use development, including residential use, the plan stated that “it is projected that the entire Project Area is best suited for General Business District development and it is the plan to redevelop the entire Project Area as a General Business District.” An attached “proposed land use map” indicated that the entire project area would be zoned “B-3 General Business.” The City Council approved and adopted the plan on June 16,2003.

In furtherance of the plan, the City entered into a redevelopment agreement with Shelby Land. The City agreed that it would acquire certain properties included within the project area that were not already owned by Shelby Land and convey those properties to Shelby Land. In return, Shelby Land agreed to convey a parcel of land to the City to be used as a site for the construction of City facilities. The City also agreed to construct a road, Alabaster Boulevard, through the project area. The agreement recited the City’s aspiration that the redevelopment project would stimulate residential construction and aid in the development of more desirable neighborhoods in the City. The agreement also required that Shelby Land develop the property in conformity with the plan.

In order to implement the plan, it was necessary that the land encompassed by the project area be rezoned from an agricultural designation to a zoning classification permitting the planned commercial use. In July 2004, Shelby Land applied to the Alabaster Planning Commission (“the planning commission”) to have the entirety of the project area zoned as a B-8 “community business district.” According to Shelby Land, the uniform B-3 zoning classification throughout the project area was selected because, at that time, it was uncertain as to the amount of acreage needed for a planned commercial development. With its application, Shelby Land stated:

“The zoning of the balance of our property to B-3 will allow us to pursue commercial uses consistent with the concept of highest and best use and therefore enable us to maximize the economic potential of the property for us, the City of Alabaster, developers and future property owners. While we have a Master Plan, it is not possible to know what future uses we may have and accordingly we understand it may be necessary to change zoning to lower classifications at a later date.”

The rezoning request went through the City’s standard zoning process, and, after receiving a favorable recommendation from the planning commission, Shelby Land’s request that the entire project area be rezoned as a B-3 community business district was approved by the City Council. Redevelopment of a portion of the project area moved forward, and the developed site now contains a large commercial development known as the Colonial Promenade, which includes a Wal-Mart Super Center; a 14-auditorium movie theater; a Bed, Bath & Beyond home-goods store; a Books-a-Million bookstore; and a number of other retailers and restaurants. The area represents Alabaster’s largest commercial and retail development.

The current commercial development, however, does not encompass the entirety of the project area, and several parcels of property totaling approximately 195 acres remain undeveloped. The undeveloped areas include the 19.4-acre site made the basis of this appeal. That property fronts the eastern side of Alabaster Boulevard. The contiguous parcels also remain undeveloped. The only developed properties fronting Alabaster Boulevard are a restaurant, a hotel, and a church. With the exception of the church constructed at the northern end of Alabaster Boulevard, all properties fronting Alabaster Boulevard remain zoned B-3, and all development within the project area has been commercial.

In November 2009, Shelby Land filed an application for rezoning of the 19.4-acre site. The application sought to rezone the property from a B-3 community business district to a multifamily residential R-6 designation, which allows for multifamily residential uses, such as apartments, condominiums, and assisted-living facilities. The request to rezone the property was made in anticipation of developing a potential apartment community for senior citizens proposed for the 19.4-acre site. The proposed senior apartment complex was to consist of 144 units, which would be limited to residents aged 55 and older. Children were to be excluded from living in the apartments. Along with its application, Shelby Land included the conclusions of a traffic study conducted by a retained consultant. The study indicated that senior apartment communities generate five times less traffic than conventional apartment complexes and thus concluded that the apartment-complex development would have a negligible affect on the public roadways surrounding the proposed development.

On November 24, 2009, the planning commission held a hearing on Shelby Land’s rezoning application. Representatives from Shelby Land and the developer of the proposed apartment complex made a presentation. In the presentation it was noted that, as a senior apartment community, which prohibited children from residing in the complex, the project would have no impact on the City’s schools; that similar senior citizens’ apartments have negligible crime rates; and that seniors drive 25% less than their younger counterparts, thus limiting the effect of the development on area traffic. It was further stated in the presentation that the developers intended to seek financing for the project from the State of Alabama, which required a 80-year land-use restriction limiting the use of the project to senior housing and also required rent controls.

Alabaster’s City planner, Harry Still, submitted a memorandum to the planning commission recommending that the rezoning request be denied. The memorandum stated:

“Shelby Land Partners LLC is requesting to rezone 19.40 acres from B-3 (Community Business District) to R-6 (Multi-Family District).
“The proposed rezoning will take property that has the potential to create jobs for the community and put revenue back into the economy and create more rooftops, something that our community has more than enough of. More residential development in this area will create traffic that will frustrate the intent of Alabaster Boulevard which is to make the Colonial Promenade and the surrounding commercial property a convenient place to do business, not a convenient place to live.
“Staff recommends against down-zoning any property in this area.”

During the hearing, the planning commission expressed concern with regard to the requirement that the apartment complex remain a low-income senior complex for 80 years. One member generally expressed concern in permitting any type of apartment complex at the proposed location. The planning commission indicated that it did not “want to back off the hope of this property being an all-commercial corridor one day.” Accordingly, the planning commission unanimously voted to recommend that the City Council deny the zoning application.

On January 21, 2010, the City Council heard Shelby Land’s rezoning request. The minutes of the council meeting indicate that representatives of Shelby Land and the developer spoke in favor of the rezoning request. Several members of the public spoke against the rezoning. The City Council voted 4-3 to deny the rezoning request.

On February 2, 2010, Shelby Land and Alabaster Land filed this action against the City and the individual members of the City Council in their official capacities. The complaint sought relief from the City Council’s denial of the rezoning request and specifically sought a judgment declaring that the City’s failure to rezone the property constituted a violation of Shelby Land and Alabaster Land’s constitutional rights; an injunction prohibiting the City from preventing Shelby Land and Alabaster Land from developing the property under an R-6 zoning classification; and an order directing the City to approve Shelby Land’s application to rezone the property to an R-6 classification.

On September 20, 2010, the parties filed cross-motions for a summary judgment. Shelby Land and Alabaster Land argued that they were due a summary judgment because the City Council failed to demonstrate that the reason for the denial of the rezoning request was a substantially related to the health, safety, morals, or general welfare of the citizens of the City. Shelby Land and Alabaster Land further argued that the City’s denial of the rezoning application was arbitrary and capricious. The City, on the other hand, argued that it had a “fairly debatable” reason for denying the rezoning application and that, under the highly deferential standard for judicial review of its zoning decisions, it was due a summary judgment.

In support of their respective motions, the parties submitted evidence and affidavits. Shelby Land and Alabaster Land submitted the affidavit of James Jackson, the managing member of Shelby Land, who testified that the City’s redevelopment agreement with the Shelby Land contemplated that the project area would contain mixed uses, including residential. Shelby Land and Alabaster Land also submitted the affidavit of a former member of the City Council, who testified that the City and the developer had always intended the project area to include mixed uses, including multifamily residential. Shelby Land and Alabaster Land also submitted a proposed-use map that was attached to Shelby Land’s 2008 redevelopment agreement with the City. That map indicated a proposed residential use of the 19.4-acre property. Finally, Shelby Land and Alabaster Land submitted an affidavit of an expert real-estate appraiser, who testified that there appeared to be no current demand for commercial use of the 19.4-acre parcel and that the proposed apartment complex would be a good use of the property.

The City submitted affidavits of the four members of the City Council who voted against the rezoning request. Generally, each indicated that he or she was opposed to zoning a relatively small parcel of the community-business-district area as multifamily residential. They also noted the speculative nature of the proposed senior housing complex and questioned the enforceability of the residential age restriction. They noted that without such restrictions they could not be certain that the apartments would not have an adverse impact on traffic and the City’s schools. Each member testified that he or she listened to Shelby Land’s presentation with an open mind and voted in accordance with what he or she thought was in the best interest of the health, safety, and welfare of the citizens of the City. The City also submitted an affidavit of an expert real-estate appraiser, who testified that the highest and best use of the property in question would be the permissible uses allowed under the current B-3 community-business-district zoning classification.

A hearing on the motions for a summary judgment was held, and on October 31, 2012, the trial court entered a summary judgment in favor of Shelby Land and Alabaster Land and denied the City and the City Council members’ cross-motion for a summary judgment. The trial court held:

“8. Under the City of Alabaster’s zoning ordinance, Plaintiffs’ requested change in the Property zoning classification from B-3 to R-6 is a reasonable request which does not contravene the public interest.
“4. The City’s denial of Plaintiffs’ zoning application, which requested a change in the Property zoning from B-3 to R-6, was arbitrary, capricious, unreasonable and had no relationship to the health, safety, morals, or general welfare of the City of Alabaster, and is contrary to law.
“5. The City’s denial of Plaintiffs’ request to change the zoning of the Property is an arbitrary restriction of the use of the Property; improperly deprives Plaintiffs of their reasonable use of the Property without just compensation or due process of law; and is, therefore, a violation of Plaintiffs’ constitutional rights.
“6. Plaintiffs have the legal right to use the Property pursuant to the R-6 zoning classification.
“7. The City, its elected officials and their successors in office are enjoined and restrained from interfering with or preventing Plaintiffs from using or developing the Property under the R-6 zoning classification.
“8. The City, its elected officials and their successors in office are enjoined and restrained from enforcing or attempting to enforce the present B-3 zoning classification against the Property, and the use of the Property can be no more restrictive than that allowed under the R-6 zoning classification.
“9. Defendants shall approve Plaintiffs’ application to rezone the Property from the B-3 zoning classification to the R-6 zoning classification so that the Plaintiffs may reasonably use the Property, subject to Plaintiffs’ compliance with the other orders, ordinances, rules, and regulations of the City of Alabaster regarding the development, construction, maintenance and operation of the Property.”

Following the denial of the their post-judgment motions, the City and the individual members of the City Council appealed.

II. Standard of Review

“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), Ala. R. Civ. P.; Blue Cross & Blue Shield of Ala. 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. Analysis

“Judicial review of municipal decisions regarding zoning ordinances is severely limited.” H.H.B., L.L.C. v. D & F, L.L.C., 843 So.2d 116, 120 (Ala.2002).

“‘It is settled law that the Alabama Legislature has delegated to municipal legislative bodies, such as city councils, the power and authority to enact zoning ordinances. Section 11-52-76, Ala.Code [1975], provides that “[t]he legislative body of such municipality shall provide for the manner in which such [zoning] regulations and restrictions and the boundaries of such districts shall be determined, established and enforced.” The power to amend, supplement, or change zoning ordinances “as may be necessary” from “time to time” is also delegated to municipal legislative bodies. Id. See BP Oil Co. v. Jefferson County, 571 So.2d 1026, 1028 (Ala.1990), citing Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.303 (1926).
“ ‘In Homewood Citizens Association v. City of Homewood, 548 So.2d 142 (Ala.1989), this Court discussed the law applicable to a court’s review of a city’s action in zoning cases, stating that “[w]hen a municipal body acts either to adopt or to amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted.” 548 So.2d at 143. The restrictions on-this Court’s review of the validity of a zoning ordinance have been explained as follows:
“ ‘ “ ‘Zoning is a legislative matter, and, as a general proposition, the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary. In enacting or amending zoning legislation, the local authorities are vested with broad discretion, and, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational and justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination.
“ ‘ “ ‘In accordance with these principles, it has been stated that the courts should not interfere with the exercise of the zoning power and hold a zoning enactment invalid, unless the enactment, in whole or in relation to any particular property, is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or ... plainly contrary to the zoning laws.’ ”
‘“Homewood Citizens Association, 548 So.2d at 143 (quoting 82 Am.Jur.2d Zoning and Planning, 338 (1976)). The Court further stated in Homewood Citizens Association that “[t]he burden is upon the party seeking relief from an ordinance to show that the ordinance was not a fairly debatable issue before the municipal governing body.” 548 So.2d at 144.’ ”

H.H.B., L.L.C., 843 So.2d at 120-21 (quoting American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 131 (Ala.1997)).

In zoning cases, we have noted that there are two applicable rules: the “substantial relationship rule” and the “fairly debatable rule.” We explained the applicability of these two rules in BP Oil Co. v. Jefferson County, 571 So.2d 1026 (Ala.1990):

“ ‘The substantial relationship rule is a substantive law, and may be simply stated as follows: In order for a zoning ordinance or regulation to be valid, it must have some substantial relationship to the promotion of the public health, safety, morals, or general welfare. When correctly applied, this rule is not in any manner modified by the fairly debatable rule. The latter rule, being a rule of procedure or application, may be simply stated as follows: If the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if the application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. Of course, it is always a matter for the court to determine whether a zoning authority acted reasonably or fairly, or whether capriciously or arbitrarily. The fairly debatable rule applies to the application of the ordinance and does not modify the requirement that the ordinance itself and the application therefore must have a reasonable relationship to the health, safety, morals, or general welfare.’ ”

571 So.2d at 1028-29 (quoting Byrd Cos. v. Jefferson Cnty., 445 So.2d 239, 247 (Ala.1983)). We have further described the “fairly debatable” rule as follows:

“ ‘The “fairly debatable” rule concerns the application of a zoning classification to a specific parcel of property. Byrd Companies v. Jefferson County, 445 So.2d 239, 247 (Ala.1983). “ ‘[Iff the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts.’” Id., quoting Davis v. Sails, 318 So.2d 214 (Fla.Dist.Ct.App.1975). Thus, if the zoning ordinance is “subject to controversy or contention” or “open to question or dispute,” it is “fairly debatable” and should not be disturbed by the courts. Aldridge v. Grund, 293 Ala. 333, 343, 302 So.2d 847, 854 (1974); Cudd v. City of Homewood, 284 Ala. 268, 271, 224 So.2d 625, 628 (1969).’ ”

H.H.B., L.L.C., 843 So.2d at 121 (quoting American Petroleum, 708 So.2d at 131).

Shelby Land and Alabaster Land argue that the judgment of the trial court is due to be affirmed because, they say, the City and the City Council members failed to prove that the denial of Shelby Land’s rezoning application bore a substantial relationship to the health, safety, morals, and general welfare of the City. Thus, they argue that the inquiry ends in their favor, and there is no need to analyze whether the City’s denial of their rezoning request was “fairly debatable.” This misstates the inquiry. Rather, when reviewing a city’s denial of rezoning petition, the court must determine whether the existing zoning classification, in this case a B-3 community business district, is substantively valid and bears a reasonable relationship to the promotion of the health, safety, morals, or general welfare of the community before turning to the “fairly debatable” analysis. See Pollard v. Unus Props., LLC, 902 So.2d 18, 30 (Ala.2004) (See, J., concurring specially). In other words, if the existing zoning classification bears a substantial relationship to the health, safety, morals, and general welfare, the “substantial relationship” test is satisfied.

Moreover, the burden of proving a zoning ordinance invalid rests squarely on the party challenging the ordinance. This is because the passage of a zoning ordinance is a legislative act, which is presumed to be valid and reasonable. Pollard, 902 So.2d at 24. Therefore, a property owner challenging the denial of its rezoning petition on the ground that the existing zoning classification is no longer reasonable bears the burden of clearly demonstrating that the existing classification is no longer valid or reasonable. See, e.g., St. Clair Cnty. Home Builders Ass’n v. City of Pell City, 61 So.3d 992, 1008 (Ala.2010) (“It is ... axiomatic that ‘an ordinance enacted by a local governing body “is presumed reasonable and valid, and that the burden is on the one challenging the ordinance to clearly show its invalidity.” ’ ” (quoting Brown v. Board of Educ. of Montgomery, 863 So.2d 73, 75 (Ala.2003))).

In the present case, the evidence was overwhelming, and apparently undisputed, that the 2004 zoning ordinance, which placed the entirety of the project area within a B-3 zoning classification, was reasonable and substantially related to the general welfare of the community. That zoning ordinance, made at the request of Shelby Land, was adopted in accord with the plan previously approved by the City Council in 2003. The plan provided that a purpose of the redevelopment project was “to increase employment opportunities, promote a diversified economy and expand the City’s tax base.” As such, it was determined that “the entire Project Area is best suited for General Business District development and it is the plan to redevelop the entire Project Area as a General Business District,” and the plan reflected that determination. The record before us does not disclose any new factors suggesting that the B-3 classification is no longer substantively valid, other than the fact that a landowner has presented a reasonable alternative multifamily residential use for certain property now within that B-3 classification. The mere fact that a proposed new zoning classification is reasonable, however, does not itself invalidate a likewise reasonable existing zoning classification. The purposes for which the B-3 zoning classification was adopted in 2004 were, and remain, substantially related to the health, safety, morals, and general welfare of the community. Thus, we conclude that the trial court erred in holding the current B-3 zoning of the property had no relationship to the health, safety, morals, or general welfare of the City.

Nor does the evidence support a conclusion that the City’s denial of the rezoning application was arbitrary or capricious. Shelby Land and Alabaster Land’s chief argument in this regard is that there was no evidence before the trial court indicating that the City Council gave the rezoning application a fair debate. Shelby Land and Alabaster Land contend that the trial court was limited to consideration of the minutes of a meeting of the City Council — a one-paragraph entry describing the request to rezone the property, those speaking in favor and against the rezoning request, a notation of a “lengthy discussion,” and a record of the members of the City Council voting for and against the rezoning request. Shelby Land and Alabaster Land argue that a city council “can only speak through its record minutes,” and, therefore, they assert the court cannot consider ex post facto affidavits of the City Council members or the City and the City Council members’ expert to justify the denial of the rezoning application. Thus, Shelby Land and Alabaster Land argue that, because there is no evidence contained in the minutes of the City Council’s meeting of a debate or the grounds for denying Shelby Land’s application to rezone the property, we are left with no choice but to conclude that the denial of the rezoning application was arbitrary. We disagree.

Zoning ordinances are not validated or invalidated based on the quality of the minutes of a council meeting. Rather, they are invalidated because they lack a “fairly debatable” purpose or application. Moreover, courts are free to consider evidence that was not before the governmental body at the time of the decision, so long as it is relevant to the issues considered by the governmental body when making its decisions.

In the present case, Shelby Land’s rezoning request went before the planning commission, which, after hearing a presentation from Shelby Land, unanimously recommended that the petition be denied on the ground that the planning commission did not “want to back off the hope of this property being an all-commercial corridor one day.” Shelby Land’s petition to rezone the property was then heard by the City Council, which considered Shelby Land’s application and presentation, public comments, and the recommendation of the planning commission. The City Council then denied the rezoning application by a 4-3 vote. The testimony submitted to the trial court indicated that the members of the City Council who voted against the rezoning request were concerned with zoning a relatively small parcel of property located in a business district as multifamily residential and questioned the enforceability of the age-limit restrictions of the proposed senior apartment complex. Given the highly deferential standard we must apply, we cannot say that the City’s decision to deny the application to rezone a portion of the City’s largest commercial area for multifamily residential use was not “fairly debatable,” particularly given the expressed desire to maintain the commercial character of the community business district.

“Although the trial court obviously found reasons to disagree with the city council’s decision, it is not the province of the court to substitute its judgment for that of a legislative body vested with the power to make such decisions.” Pollard, 902 So.2d at 29. As we did in Pollard, we find the following language from Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967), applicable:

“While the court is given the power to review the validity vel non of an ordinance or other legislative act, it is not given the power to review the wisdom or unwisdom, or the rightness or wrongness of laws passed by the legislative power delegated to the City Council or the City of Birmingham, or like bodies....
“ ‘Every intendment is to be made in favor of the zoning ordinance and the matter was largely in the legislative discretion of the municipal authorities.... Here, the city Commission is acting in the exercise of a legislative function and with a wide degree of discretion.’ ...
“In the instant case, the City Council of the City of Birmingham, although without recommendation of the Zoning Advisory Committee, in our judgment, acted within constitutional bounds and did not take arbitrary, unreasonable or unlawful action. The Council had a superior opportunity to know and consider varied conflicting interests involved, to balance the burdens and the benefits, and to consider the general welfare of the area involved. There was procedural compliance with the requirement for a public hearing.
“The courts should be slow to set up their own opinions as against those charged with and in position rightfully to perform such duty. The fact that the complainants (appellees) may suffer some financial loss and depreciation in the value of their property is not a test of the constitutionality of the zoning ordinance; nor is it a test to determine if the zoning ordinance is arbitrary, capricious, inequitable and discriminatory....
“The question is whether the reclassification of [the property at issue] is sound and fair. If the question is fairly debatable, the court will not substitute its judgment for that of the City Council ... in exercise of its legislative power....
“The duties of the local authorities ..., charged with zoning property, are evidently arduous and of a delicate character, requiring sensitive insight and perspicuity as to the public health, safety, morals and general welfare incident to zoning. We cannot say that their judgment is always free from error, but before the courts will interfere, it must be made to appear that such an ordinance passes the bounds of reason and assumes the character of a merely arbitrary fiat.
“We think that men may reasonably differ as to the advisability of a zoning change or in a change affecting zoning districts. We are unwilling in the instant case to substitute our opinion for that of the City Council upon whom the responsibility of weighing all factors devolved, and who had access to full information and acted accordingly. We have no reason to say that the City Coun[cil] did not act with enlightened judgment in consideration of the ordinance here under attack.”

281 Ala. at 367, 202 So.2d at 729-30.

Based on the evidence before us and the “severely limited” judicial review of legislative zoning ordinances, we conclude that the trial court erred in entering a summary judgment in favor of Shelby Land and Alabaster Land.

IV. Conclusion

We reverse the judgment of the trial court, and we remand this cause to the trial court for that court to grant the cross-motion for a summary judgment filed by the City and the members of the City Council.

REVERSED AND REMANDED WITH DIRECTIONS.

STUART, BOLIN, and WISE, JJ., concur.

MURDOCK and SHAW, JJ., concur specially.

MOORE, C.J., and PARKER and BRYAN, JJ., concur in the result.

MURDOCK, Justice

(concurring specially).

In discussing the interplay between the so-called “substantial relationship rule” and the “fairly debatable rule,” the main opinion at one juncture states that “the court must determine whether the existing zoning classification ... bears a reasonable relationship to the promotion of the health, safety, morals, or general welfare of the community before turning to the ‘fairly debatable’ analysis.” 148 So.3d at 705. Although I concur in the main opinion, I write separately to state my understanding that the “substantial relationship rule” is the rule that governs the decision of the legislative body and that the Court’s evaluation of that decision as it relates to either an existing classification of property or the legislative body’s decision in response to a request to change that classification is governed by the “fairly debatable rule.” I would state the matter as follows: It is for the Court to assess whether the legislative body has correctly determined whether a “substantial relationship” exists between a given zoning designation and the promotion of the public health, safety, morals, or general welfare, and the Court may not disturb the legislative body’s decision in this regard if that decision is “fairly debatable.”

SHAW, J., concurs.