text:
    David A. ROBERTS, Appellant v. Liza Daniella LOPEZ, Appellee.
    No. 2013-CP-00951-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2014.

      David A. Roberts, appellant, pro se.
    Liza Daniella Lopez, appellee, pro se.
    Before IRVING, P.J., MAXWELL and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. David A. Roberts, having had physical custody of his biological son, C.M.R., appeals a judgment of the Jackson County Chancery Court, which modified the custody order from David’s having sole custody to his having joint physical custody with Liza Daniella Lopez, the child’s biological mother. On appeal, David alleges that the chancery court committed eleven errors, some of which overlap. Therefore, for the sake of brevity and clarity, we have recast his issues as follows: (1) the chancery court erred in not dismissing Liza’s amended complaint; (2) the chancery court erred in finding that David committed fraud that justified setting aside the previous custody order(s); (3) David was denied procedural due process as a result of certain rulings of the court; (4) the chancery court erred in failing to make an on-the-record Albright analysis; (5) the chancery court erred in its final custody order; and (6) the chancery court erred in assessing guardian ad litem fees to David. Finding that the chancery court did not err, we affirm.

FACTS

¶ 2. Liza first met David in April 2008, when she went to see him about representing her in a divorce proceeding. David explained to Liza that he was more interested in having a relationship with her than representing her in the divorce proceeding. Liza agreed and employed different counsel to represent her. Eventually, Liza moved in with David. C.M.R. was born on October 15, 2009, and David and Liza continued to live together after C.M.R.’s birth.

¶ 8. David and Liza had a contentious relationship during their time together. In December 2009, Liza became upset with David over his relationship with another woman and intentionally struck the woman’s vehicle with her vehicle in the parking lot of a local restaurant where David and the other woman were dining. Soon after the incident, Liza moved out of the home. The vehicle incident led to a felony charge of aggravated assault against Liza. David represented Liza in this matter, and on January 13, 2010, Liza appeared in Pasca-goula Municipal Court and entered a guilty plea to a reduced charge.

¶4. On February 4, 2010, David filed an emergency petition for a temporary restraining order (TRO) and a complaint for permanent custody, citing the car incident and Liza’s “erratic behavior.” The chancery court issued the TRO granting temporary custody of C.M.R. to David and scheduled a hearing for a permanent restraining order. However, according to Liza, before the permanency hearing could be held, David approached her and offered to give her custody of C.M.R. if she would agree to move back in with him. He advised that he would draft the necessary paperwork to effectuate the change in custody. She agreed and moved back in with David. As promised, David drafted an agreed order setting aside the restraining order and awarding primary physical custody of C.M.R. to Lizá. This agreed order was filed February 12, 2010, just eight days after the TRO had been placed in effect.

¶ 5. In May 2010, Liza moved out of the home again. She explained that she could no longer take the constant abuse from David. Then on June 10, 2010, the parties filed a joint complaint for modification requesting that sole custody of C.M.R. be given to David, with reasonable visitation to Liza. The complaint was sworn to by both Liza and David and stated, without explaining, that a material change in circumstances had occurred that was detrimental to the best interests of C.M.R. However, according to Liza, she did not sign the complaint before the notary, David’s sister, who allegedly attested her signature. On the other hand, David testified that Liza signed the complaint before the notary and agreed to the modification of her own free will. The joint complaint was accompanied by an agreed order changing custody from Liza to David, with reasonable visitation to Liza. The chancery court entered the agreed order as drafted by David.

¶ 6. On August 24, 2011, Liza, alleging fraud committed by David, filed an initial complaint to set aside all orders previously entered in this cause. On October 7, 2011, David was served with the initial complaint, a Mississippi Rule of Civil Procedure 4 summons, and a Mississippi Rule of Civil Procedure 81 summons, which commanded him to appear and defend on November 15, 2011. On October 26, 2011, David filed an answer and affirmative defenses in which he denied the gravamen of Liza’s complaint and asserted that her complaint should be dismissed because it was untimely, as the order that she was seeking to set aside was more than six months old. On November 2, 2011, David filed a motion to dismiss, alleging that Mississippi Rule of Civil Procedure 60 was the proper mechanism for obtaining relief from the June 10, 2010 judgment and that Liza’s complaint was untimely. On November 15, 2011, after all parties appeared in court, the chancellor recused himself; and the Mississippi Supreme Court appointed Judge Hollis McGehee as a special judge to hear the matter. On February 3, 2012, Liza filed a motion to amend, which was granted. She filed her amended complaint on February 10, 2012, which, in addition to seeking to set aside previous court orders, sought, as an alternative, custody modification. A Rule 81 summons on the amended complaint was issued on July 3, 2012, and served on David on July 5, 2012. The summons ordered David to appear on August 24, 2012.

¶ 7. Hearings were held on Liza’s amended complaint' on August 24, 2012, and September 12, 2012. David appeared and participated in the these hearings. On September 20, 2012, the chancery court entered a judgment that granted Liza’s amended complaint and “all prior orders in this cause touching upon the care, custody, and control of C.M.R. are hereby set aside and held for naught, ab initio.” The chancery court appointed a guardian ad litem (GAL), and awarded temporary joint custody to the parties, with specific conditions. On May 9, 2013, after making some modifications to the temporary custody order, the chancery court entered a final judgment awarding the parties joint custody of CM.R. David appeals.

DISCUSSION OF THE ISSUES

¶ 8. At the outset, we note that Liza did not file a brief in response to David’s appeal. In this instance, automatic reversal is not required.

Ordinarily, where a party fails to file a brief on appeal, we take the issues raised by the opposing party as confessed. In matters of child custody and support, however, in the absence of an appellee’s brief, our practice is to make a special effort to review the record for support for affirmance.

Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992) (internal citations omitted). “[Where] the appellant’s brief makes out an apparent case of error, we [are] not [obligated] to look to the record to find a way to avoid the force of the appellant’s argument.” Westinghouse Credit Corp. v. Dep. Guar. Nat’l Bank, 304 So.2d 686, 637 (Miss.1974). Having thoroughly considered David’s issues, we can say with confidence that the judgment should be affirmed. Therefore, we address the merits of the issues that David has presented by utilizing our familiar standard of review: “[T]his Court will not disturb the chancery court’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Andrews v. Williams, 723 So.2d 1175, 1177 (¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198,1203 (Miss.1997)).

I. Failure to Dismiss the Amended Complaint

¶ 9. David asserts that Liza failed to serve him within the 120 days set forth in Mississippi Rule of Civil Procedure 4(h), which states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Notwithstanding the provisions of Rule 4(h), Rule 81(a)(9) provides, in pertinent part:

Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures [:] ... Title 93 of the Mississippi Code of 1972.

(Emphasis added).

¶ 10. Rule 81(d)(2) provides that modification of custody matters “shall be triable 7 days after completion of process in any manner other than by publication....” Rule 81(d)(5) provides in part:

Upon the filing of any action or matter listed in subparagraphs (1) and (2) [of Rule 81(d) ], summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order[,] or rule of court.

David was served with a Rule 81 summons commanding him to appear at the August 24, 2012 hearing. Therefore, it is of no moment that Liza’s initial complaint and amended complaint, which sought to set aside or modify previous custody orders, were filed more than 120 days prior to David being served with the Rule 81 summons. The modification of custody orders that Liza sought was governed by Rule 81(d), not Rule 4(h) as David contends. Moreover, David appeared and participated generally in the August 24, 2012 hearing. So even if process were defective, which it was not, David waived the defect by his appearance and general participation in the hearing. See Isom v. Jernigan, 840 So.2d 104, 107 (¶ 9) (Miss.2003). Thus, this issue is without merit.

¶ 11. Next, David, citing Rule 60(b)(1) of the Mississippi Rules of Civil Procedure, asserts that any motion to set aside a judgment, if based on fraud, misrepresentation, or other misconduct of an adverse party, must be filed within six months after entry of the judgment. Rule 60(b) provides, in pertinent part:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.

¶ 12. David is correct that Rule 60(b)(1) requires that a motion for relief from a judgment obtained as a result of fraud by an adverse party be brought within six months of entry of the judgment. However, a substantial misrepresentation of facts upon which a judgment is based is “a fraud on the court, for which there is no limitation of time restricting the court from affording a remedy.” See Trim, v. Trim, 33 So.3d 471, 473 (¶ 3) (Miss.2010) (holding that “submission of a substantially false [Uniform Chancery Court] Rule 8.05 financial disclosure statement constituted a fraud on the court, and no time limit was applicable to the court’s ability to remedy the fraud by modifying the final judgment of divorce”). Moreover, the totality of David’s actions justifies consideration of Liza’s motion under the broader umbrella of subsection (6) of Rule 60(b): “[A]ny other reason justifying relief from the judgment.” While it is clear that David’s actions perpetrated a fraud upon the court, there is substantial evidence that he also manipulated and intimidated Liza throughout the process of obtaining the orders and judgments that Liza sought to set aside. Therefore, even if Liza were subject to a time limitation in bringing her complaint, we find, on the facts of this case, that equity and justice require that she be given a reasonable time to do so, and that she not be constrained by the six-month time-line for actions seeking to set aside a judgment on the basis of fraud.

¶ 13. In Briney v. United States Fidelity & Guaranty Co., 714 So.2d 962, 967 (¶ 14) (Miss.1998), the Mississippi Supreme Court found that “[w]hat constitutes [a] reasonable time [under Rule 60] ... depend[s] upon the facts in each individual case. [We] consider whether the party opposing the motion has been prejudiced by the delay in seeking relief and whether the moving party has some good reason for his failure to take appropriate action sooner.” Here, David was not prejudiced in any way because he actively participated, vis-a-vis his attorney, throughout the proceedings and Liza certainly had good reasons for failing to act sooner. Accordingly, this argument is without merit.

¶ 14. Finally, David complains that the chancery court committed error by not dismissing Liza’s amended complaint because of her failure to plead fraud with particularity, as required by Rule 9(b) of the Mississippi Rules of Civil Procedure. However, after reviewing Liza’s amended complaint, we find that fraud was pleaded in accordance to Rule 9(b). Specifically, Liza asserted in count one that she “separated from [David] because of not only [the] abuse, but duress, fraud, threats, and physical and mental stress.” Further, the amended complaint stated in paragraph three that through “duress, threats, and physical abuse [by David], [Liza] was forced to sign a so call [sic] AGREED ORDER OF MODIFICATION dated June, 2010.” We find that the pleading satisfies the particularity requirement of Rule 9(b) and effectively put David on notice as to the basis of Liza’s request to set aside the court’s previous rulings regarding custody.

II. Setting Aside Previous Custody Orders

¶ 15. David argues that the chancery court erred in finding fraud on his part. The chancery court stated:

[T]he Court finds that this entire matter and every pleading and order entered herein to date is completely a product of David overreaching [Liza], his “client,” and fraud by David, on the Court and on [Liza].... David’s actions!,] from [the moment he was attracted to Liza], where he intermittently served as [Liza]’s counselor, attorney, and simultaneous[ly] her adversary[,] are reprehensible and not acceptable or sustainable under any view of the facts of this case.

David prepared documents transferring custody of C.M.R. from him to Liza when he found it in his interest to do so and then back to him when he yet again found it in his interest to do so, all in the absence of a factual basis to support the changes. Also, he advised Liza that he would take care of the criminal charges that she faced after she struck his “girlfriend’s” car, only to have her plead guilty to a reduced charge that he would later use to gain a temporary restraining order against her and a transfer of custody of C.M.R. to him. The chancery court believed that David took advantage of Liza “using his legal background and standing to intimidate and stifle [Liza]” and led her to feel vulnerable. The chancery court found that Liza’s testimony was credible and that David’s misconduct warranted setting aside the previous custody agreements. After a review of the record, we find no error in the chancery court’s assessment. This argument is without merit.

¶ 16. David asserts that there was a lack of evidence to grant Liza’s complaint to set aside the previous orders, including the June 10, 2010 agreed custody order. “A chancery court retains power to amend an agreed judgment in a domestic-relations matter to conform to the true facts where one party conceals relevant facts from it and the other party.” Pulliam v. Smith, 872 So.2d 790, 794 (¶ 7) (Miss.Ct.App.2004). “Appellate review of the decision to grant a Rule 60(b) motion is limited to an abuse of discretion.” Pulliam, 872 So.2d at 794 (¶ 7).

The party asserting the motion has the burden of proof of showing: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) the party’s consequent and proximate injury.

Id. Liza testified that she was strong-armed by David into signing documents that represented that she was a willing party to the June 10, 2010 custody arrangement. As stated, the chancery court found the allegations to be serious and credible. We find that the chancery court did not abuse its discretion in setting aside the previous orders, conducting an Al-bright analysis, and awarding joint custody to the parties.

III. Due Process

¶ 17. David makes much of the conditions set by the chancery court in the temporary order — namely, that the chancery court prohibited the parties from utilizing Rule 59 of the Mississippi Rules of Civil Procedure, without a written request of the GAL, to address issues regarding the provisions in the temporary order. The chancery court, here, was in a unique position. It was required to balance the rights of the parties while also allowing time to see if the custody arrangement set forth in the temporary order was in the best interest of C.M.R. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In this case, the parties had filed several motions leading up to the trial and were likely to file many more. Further filings could have delayed or disrupted the stability that the temporary order hoped to create. While we are cognizant of the procedural anomaly, we find the chancery court did not err, and this argument is without merit.

¶ 18. David also believes that he was denied a full hearing during the finalization of the custody arrangement. At the time that the chancery court entered the temporary order, the court stated that it would delay entering a final custody order for six months to see how the custody arrangements, contained in the temporary order, affected C.M.R. After six months, the chancery court met in chambers with the attorneys for the parties and the GAL to discuss whether the temporary custody arrangement had worked for all parties involved. After the discussion in chambers, the parties were allowed to express in open court any other issues that they wanted the chancery court to consider. Thereafter, the court entered a final judgment, incorporating the terms and conditions of the temporary order with a few modifications as requested by the parties. Apparently, David expected that an additional hearing would be held before the chancery court entered its final judgment. However, at the time that the temporary order was entered, the court never stated that it would have another full-blown hearing prior to entering a final judgment. Moreover, David has failed to identify any statute or caselaw that requires a “full” hearing at a final custody determination. As stated, the chancery court met with the parties’ attorneys and the GAL to discuss any necessary modifications of the temporary order. An attorney is an agent of his client. See O.W.O. Invs., Inc. v. Stone Inv. Co., 32 So.3d 439, 447 (1122) (Miss.2010). David’s attorney utilized the opportunity in chambers and asked the chancery court to remove the requirement that the parents meet face-to-face every week. The chancery court agreed. In addition, in open court, David had another opportunity to present issues regarding joint custody and requested that the pick-up/drop-off location for C.M.R. remain the same.

¶ 19. Finally, David argues that the parties did not “agree” on the content of the final order. The proposed order that David submitted to the court and the final order that the court entered do not differ substantially. As noted, there were only a few issues to resolve, as the temporary custody arrangement was working. We also note that Liza did not make any objection to the final custody arrangement and in essence “agreed” to the resolution. This argument is without merit.

IV. Albright Analysis

¶ 20. When a chancery court has applied the correct legal standard to a custody determination, this Court will not disturb the factual findings that are supported by substantial evidence. See Gilliland v. Gilliland, 969 So.2d 56, 71 (¶ 53) (Miss.Ct.App.2001). In this case, the chancery court’s findings were well supported. In the September 13, 2012 judgment, the chancery court, in considering the Albright factors, made substantial findings as to each factor and fashioned a custody arrangement that it deemed in the best interest of C.M.R. The chancery court also noted that David was a “licensed attorney who took full advantage of his position, legally, financially, and otherwise[,] to overreach a dependant, much less worldly and then vulnerable young girl.” The court also found that the June 2010 custody order “and everything that occurred in this case up to now to be the result of highly unethical and inherently unfair actions of [David],” which ultimately resulted in the change of custody from sole to joint. We cannot find any error in the chancery court’s evaluation of the Albright factors. This issue is without merit.

V. Final Custody Award

¶ 21. David complains that he and Liza do not get along and, therefore, joint custody is ill-advised. We disagree. The record supports the award of joint custody. The GAL’s report also supported this decision. While there may be animosity between the parents, the GAL’s report finds that C.M.R. “doesn’t seem to know that there are difficulties, which is a testament to his parents’ efforts to keep their negativity from him.” See generally Phillips v. Phillips, 45 So.3d 684 (Miss.Ct.App.2010). After a thorough review of the record, we find that the chancery court did not err in awarding joint custody. This assignment of error is without merit.

¶22. David also points out that the chancery court failed to included in the final judgment that Liza would be responsible for one-half of the costs of daycare, as stated during its bench ruling. While we agree that the chancery court stated that “the daycare would remain the same and mother and father would share equally in that expense[,]” and failed to include this in his final judgment, David has waived this issue on appeal because he did not bring this matter to the chancery court’s attention. David should have filed a motion pursuant to Rule 59 of Mississippi Rules of Civil Procedure, seeking an amendment of the judgment. David attempts to justify his dereliction by contending that the “injunction” set forth in the temporary custody order was continued in the final order and prohibited him from filing a timely post-trial motion. However, it is clear that the injunction set forth in the temporary order was viable only during the six-month period that the temporary order was in effect. Therefore, as stated, David is procedurally barred from raising this issue on appeal.

¶ 23. Finally, David contends that the chancery court failed to set out a holiday schedule in the final judgment. He cites Fields v. Fields, 830 So.2d 1266 (Miss.Ct.App.2002), to support this assertion. We find that Fields is not at all analogous to the case at hand. In Fields, the father was a noncustodial parent seeking to modify visitation. Id. at 1266-67 (¶¶ 2-4). On the other hand, David has joint custody and, according to the terms of the final judgment, has custody of C.M.R. every other week. On these facts, we cannot find that the chancery court abused its discretion.

VI. Guardian ad Litum Fees

¶ 24. David argues that the chancery court erred in ordering him to pay the GAL’s fees. Rule 13(d) of the Uniform Rules of Youth Court Practice provides:

The guardian ad litem shall be paid a fee in the performance of duties pursuant to section 43-21-121(6) of the Mississippi Code. The court may order financially able parents to pay for the reasonable fees of the guardian ad litem, or a portion thereof, pursuant to section 43-21-619 of the Mississippi Code.

The chancery court was within its discretion to have David pay the remainder of the fee for the GAL’s services. We find this argument without merit.

¶ 25. For the foregoing reasons, having found that the chancery court did not err in the issues presented, we affirm the chancery court’s final judgment.

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

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

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).

      . David has since been disbarred.

      . This title relates to domestic relations.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Terrence CLARK a/k/a Terrance Clark, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2013-CP-01292-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2014.
    Terrence Clark, appellant, pro se.
    Anthony Louis Schmidt Jr., James M. Norris, attorneys for appellee.
    •Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Terrence Clark was denied meritorious earned time by the Mississippi Department of Corrections (MDOC). Clark appealed the decision to the circuit court, which affirmed, and now appeals to this Court. Clark argues that he was denied due process and equal protection of the law. We find no error and affirm.

¶ 2. Terrence Clark is incarcerated with the MDOC. He is currently serving three sentences: a six-year, two-month sentence as a habitual offender for armed robbery, a seven-year sentence as a habitual offender for burglary, and a two-year sentence as a non-habitual offender for possession of contraband in prison. The sentences are to run consecutively.

¶ 3. In February 2012, Clark inquired about receiving meritorious earned time. He was told he was ineligible to receive meritorious earned time as a habitual offender; but he could be eligible for meritorious earned time on his two-year sentence.

¶ 4. Clark filed a grievance with MDOC’s Administrative Remedy Program. He claimed that he should be eligible to receive earned-time credit on his habitual sentences. Clark’s request was denied through both his first and second steps of the program. He then filed with the circuit court a motion to show cause, or in the alternative, a motion for post-conviction collateral relief. This motion sought judicial review of the MDOC decision that found that he was not entitled to earned time. The circuit court affirmed and found that the decision was supported by substantial evidence, was not arbitrary or capricious, was within the scope and power of the MDOC, and did not violate Clark’s rights.

¶ 5. This Court cannot disturb the decision of an administrative agency “unless the decision was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers, or violated the constitutional or statutory rights of the aggrieved party.” Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001)). The standard of review for the trial court’s decision to affirm or deny an administrative agency’s findings and decisions is abuse of discretion. Brandon v. Miss. Emp’t Sec. Comm’n, 768 So.2d 341, 343 (¶ 7) (Miss.2000).

¶ 6. Clark argues that both the MDOC and trial court denied him due process and equal protection of the law when it failed to allow him meritorious earned time. The State responds that Clark’s status as a habitual offender makes him ineligible to receive meritorious earned time.

¶ 7. Mississippi Code Annotated section 47-5-142 (Rev. 2011) provides that any offender shall be eligible, subject to the provisions of that section, to receive meritorious earned time, as distinguished from earned time for good conduct and performance. However, meritorious earned time is subject to the approval by the Commissioner of Corrections. Id. This Court has held that “the awarding of meritorious earned time is within the discretion of the MDOC officials.” Green v. Sparkman, 829 So.2d 1290, 1291 (V 2) (Miss.Ct.App.2002) (citing Miss.Code Ann. § 47-5-142 (Rev. 2000)).

¶ 8. In Smith v. State, 75 So.3d 82, 84 (¶ 5) (Miss.Ct.App.2011), this Court held that the inmate was not entitled to earned time because he was a habitual offender. The Court cited Mississippi Code Annotated section 47-5-139(l)(b) (Rev. 2011), which provides that “an inmate shall not be eligible for earned time allowance if ... [t]he inmate was convicted as a habitual offender under Sections 99-19-81 through 99-19-⅜7[.]” In essence, earned time is a reduction in sentence. Lee v. Kelly, 84 So.3d 1208, 1206 (¶ 13) (Miss.Ct.App.2010).

¶ 9. Of Clark’s three consecutive sentences, he is serving two terms as a habitual offender under section 99-19-81. “As a [sjection 99-19-81 habitual offender, [Clark’s] sentence cannot ‘be reduced or suspended nor shall [he] be eligible for parole or probation.’ ” Williams v. State, 98 So.3d 484, 489 (¶ 17) (Miss.Ct.App. 2012). Further, “any inmate sentenced as a habitual offender is not [to] be eligible for earned-time allowance.” Id. (citing Miss.Code Ann. § 47 — 5—139(l)(b) (Supp. 2007)).

¶ 10. We find no merit to Clark’s issue on appeal. The circuit court was correct to find that as a habitual offender, Clark was not eligible to receive meritorious earned time. MDOC’s decision was supported by substantial evidence, was not arbitrary or capricious, was within the scope and power of the MDOC, and did not violate Clark’s rights. We affirm.

1Í11. THE JUDGMENT OF THE CARROLL COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CARROLL COUNTY.

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


author: MOORE, Chief Justice.

text:
    Deidre W. LEE and Samuel G. McKerall v. Charles HOUSER and Robert C. Holk. Town of Magnolia Springs and Magnolia Springs Planning Commission v. Deidre W. Lee and Samuel G. McKerall.
    1110105 and 1110505.
    Supreme Court of Alabama.
    Dec. 20, 2013.
    Second Application for Rehearing Denied in Case No. 1110505 Feb. 14, 2014.

      Samuel G. McKerall, Gulf Shores; and Daniel G. Blackburn of Blackburn, Connor & Taupeka, Bay Minette, for appellants/cross-appellees Deidre W. Lee and Samuel G. McKerall.
    Andrew J. Rutens and Alicia J. Corley of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellants Town of Magnolia Springs and Magnolia Springs Planning Commission.
    Samuel N. Crosby and J. Bradford Boyd Hicks of Stone Granade & Crosby PC, Bay Minette; and Andrew J. Rutens and Alicia J. Corley of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellees Charles Houser and Robert C. Hoik.
    Aaron G. McLeod and Randall S. He-trick of Adams & Reese LLP, Birmingham, for amicus curiae South Alabama Regional Planning Commission, in support of the appellants Town of Magnolia Springs and Magnolia Springs Planning Commission.
    Lorelei Lein, gen. counsel, Alabama League of Municipalities, for amicus curiae Alabama League of Municipalities, in support of the appellants Town of Magnolia Springs and Magnolia Springs Planning Commission.
   On Application for Rehearing in Case No. 1110505

MOORE, Chief Justice.

The opinion of September 27, 2013, is withdrawn, and the following is substituted therefor.

Deidre W. Lee and Samuel G. McKerall, plaintiffs in the underlying action, appeal a summary judgment entered in favor of Charles Houser and Robert C. Hoik, defendants in the underlying action in the Baldwin Circuit Court (case no. 1110105). The Town of Magnolia Springs and the Magnolia Springs Planning Commission, the remaining defendants in the underlying action, appeal a judgment entered on a jury award of $735,000 to Lee and $300,000 to McKerall (case no. 1110505). For the reasons stated herein, we reverse the judgment entered on the jury award in favor of McKerall and affirm the remaining portion of that judgment, as well as the summary judgment entered in favor of Houser and Hoik.

I. Facts

In 2005, Lee purchased 47 acres of property in Baldwin County with a down payment of $309,000 and secured owner financing for the balance of $328,000. On December 19, 2006, she submitted to the Baldwin County Planning Commission an application for preliminary subdivision-plat approval detailing a 124-lot residential subdivision. Lee spent over $50,000 preparing the subdivision for plat approval, including a $10,100 application fee to Baldwin County. McKerall, Lee’s law partner at the time, was listed on the application as an agent for the developer. Lee and McKerall had developed other projects together. McKerall had development experience in Baldwin County.

The Town of Magnolia Springs incorporated in June 2006, six months before Lee submitted her plat application to the Baldwin County Planning Commission. The first mayor and council for the Town of Magnolia Springs were sworn in 13 days before Lee submitted her application to the Baldwin County Planning Commission.

The Baldwin County Planning Commission and the Town of Magnolia Springs are separate entities. When Lee submitted her application, the Town of Magnolia Springs had no jurisdiction over Lee’s property, and only the Baldwin County Planning Commission had the authority to consider Lee’s application because her property was outside the town limits.

On January 23, 2007, roughly one month after Lee filed her application, the new mayor of Magnolia Springs, Charles Houser, and a new councilman, Robert C. Hoik, informed the Baldwin County Planning Commission that the Town of Magnolia Springs would seek extraterritorial planning jurisdiction extending a mile and a half beyond the limits of the Town of Magnolia Springs. Magnolia Springs did not yet have regulations regarding applications for preliminary subdivision-plat approval.

Lee’s plat application was on the agenda for the February 15, 2007, Baldwin County Planning Commission meeting. On that day, a Baldwin County engineer recommended that the Baldwin County Planning Commission approve Lee’s plat application because it was not deficient in any respects. The Baldwin County Planning Commission had a long-standing practice of approving such applications if they were not deficient. Nevertheless, the Baldwin County Planning Commission tabled Lee’s application. Roughly a week later, the Town of Magnolia Springs established its planning commission.

On February 27, 2007, Mayor Houser informed the Baldwin County Planning Commission that the jurisdiction of Magnolia Springs would extend to include Lee’s property and that Magnolia Springs intended to pass a moratorium on subdivision approvals because “a couple of [the town’s] council members ... have been involved in ... trying to get [Lee’s plat application] delayed.” He also acknowledged that Magnolia Springs had “no rules and regulations” regarding applications for preliminary subdivision-plat approvals.

On March 1, 2007, the Town of Magnolia Springs’ planning commission held its first meeting, at which it adopted a moratorium on subdivisions. On March 12, 2007, the Town of Magnolia Springs and the Baldwin County Planning Commission reached an agreement whereby the Town of Magnolia Springs would have extraterritorial planning jurisdiction extending to include Lee’s property. On March 28, 2007, the Baldwin County Planning Commission informed McKerall that the Town of Magnolia Springs had planning jurisdiction over Lee’s property and that the Town of Magnolia Springs would make a decision regarding Lee’s application. The next day, when Lee delivered her application to the Town of Magnolia Springs, she learned, for the first time, about the subdivision moratorium.

At an April 5, 2007, meeting of the planning commission for Magnolia Springs, Lee objected to the “dormant” status of her application, but the planning commission did not consider her application. On May 3, 2007, the planning commission voted to extend the subdivision moratorium for another 90 days (i.e., until August 28, 2007). On August 23, 2007, the planning commission adopted subdivision regulations; it never approved Lee’s subdivision application.

Two days before the Town of Magnolia Springs finally adopted subdivision regulations, Lee filed the Mimosa Trace Condominium Declaration in the Probate Court of Baldwin County. Lee’s declaration sought to subdivide the property under condominium laws, which would not need the approval of a planning commission.

II. Procedural History

On August 21, 2007, Lee filed in the Baldwin Circuit Court a petition for a writ of mandamus; the petition was divided into two sections labeled “First Cause of Action” and “Second Cause of Action.” The “First Cause of Action” sought an order to direct Baldwin County to approve her application for a preliminary plat and to enjoin the Town of Magnolia Springs from exercising jurisdiction over the property or the plat application. Her “Second Cause of Action” sought damages against Baldwin County for lost profits, lost opportunity for the sale of the subdivided lots, and interest due, and sought costs and attorney fees and other damages for economic and emotional injury that might be applicable. Lee claimed that because Baldwin County and the Town of Magnolia Springs had prevented her from developing the subdivision, she could not pay her debt on the property. Moreover, she alleged that the Town of Magnolia Springs had thwarted the consummation of her agreement with Scott Raley, a developer, who would have funded all the infrastructure for the subdivision and assumed all the debt on the property if Baldwin County or the planning commission of Magnolia Springs had approved the application for a preliminary subdivision plat.

On March 28, 2008, Lee filed a first amended complaint adding the Town of Magnolia Springs’ planning commission, Mayor Houser, and Councilman Hoik as defendants. The amended complaint also added as defendants Baldwin County Commissioner Charles F. Gruber and Baldwin County Planning Commission members Jerry Knaebel, Jim Elliot, and Cara Stall-man (hereinafter Gruber and the Baldwin County Planning Commission members are referred to as “the individual county defendants”). Lee’s amended complaint alleged fraud against the Baldwin County Planning Commission and asserted claims against Houser, Hoik, and the individual county defendants of tortious interference with Lee’s vested rights, tortious interference with Lee’s business prospects, and conspiracy to wrongly injure and deprive Lee of her legal rights.

On June 2, 2009, the Baldwin County Planning Commission moved to intervene, seeking a judgment that Lee’s proposed condominium development (not the subdivision that was the subject of the plat application) was illegal. On June 26, 2010, McKerall joined the case as an additional petitioner.

On January 24, 2011, the trial court entered a consent judgment as to Lee and McKerall and the Baldwin County Planning Commission and the individual county defendants. On February 18, 2011, the trial court allowed Lee and McKerall to amend their first amended complaint to add two causes of action against the Town of Magnolia Springs and its planning commission for negligent and wanton failure to consider or to approve Lee’s subdivision-plat application. On July 12, 2011, Houser and Hoik filed a motion for a summary judgment, which the trial court granted.

The trial between Lee and McKerall and the Town of Magnolia Springs and its planning commission began on September 14, 2011. At the close of Lee and McKe-rall’s case, the court granted a judgment as a matter of law for the Town of Magnolia Springs and its planning commission on Lee and McKerall’s wantonness claim but denied the motion as to the negligence claim. The case was submitted to the jury on the negligence claim.

After the close of all the evidence and after the jury instructions were given, the Town of Magnolia Springs and its planning commission objected to the jury instruction that Alabama law was not conclusive regarding a municipality’s authority to institute a general moratorium on plat applications and objected to the jury instruction that the Town of Magnolia Springs had a duty to administer the Baldwin County rules and regulations regarding subdivisions. The Town of Magnolia Springs and its planning commission also objected to the trial court’s refusal to instruct the jury regarding the definition for “injury to property” and the “last clear chance” doctrine. On September 16, 2011, the jury awarded Lee $785,000 and McKerall $300,000. The trial court denied the post-judgment motions of the Town of Magnolia Springs and its planning commission.

III. Issues

Of the issues raised in case no. 1110505, we address the following:

1. Whether a municipal planning commission may adopt a moratorium on the approval of subdivisions.

2. Whether the trial court exceeded its discretion in charging the jury that Alabama law is silent as to whether a municipal planning commission may adopt such a moratorium on subdivision applications.

8. Whether the planning commission of the Town of Magnolia Springs was required to review a preliminary plat application when, at the time, the Town of Magnolia Springs and its planning commission had no provision in place for the approval or review of preliminary plat applications.

4. Whether the Town of Magnolia Springs is entitled to immunity for its actions in establishing the moratorium on subdivision applications and for declining to receive any applications until it had adopted procedural and substantive subdivision regulations.

5. Whether a remittitur of the jury verdict is appropriate under § 11-47-190 and § 11-93-2, Ala.Code 1975, for the alleged diminution in the value of Lee’s property.

6. Whether McKerall timely filed a notice of claim.

7. Whether the consent judgment between Lee and McKerall and the Baldwin County Planning Commission and the individual county defendants relieves the Town of Magnolia Springs and its planning commission of liability.

8. Whether damages for lost profits on the possible sale of land, with no certain buyer or contract, are remote and speculative.

9. Whether Lee proved by substantial evidence that she was damaged as a proximate result of any alleged negligence of the defendants when § 11-52-32, Ala.Code 1975, provides that a subdivision application is automatically approved if no action is taken within 30 days after submission of the application.

10. Whether Lee failed to exhaust her administrative remedies.

11. Whether the Town of Magnolia Springs or its planning commission proved by substantial evidence that Lee is guilty of contributory negligence.

As to case no. 1110105, we affirm the summary judgment in favor of Houser and Hoik without discussing the issues raised on appeal.

IV. Analysis

In case number 1110505, the Town of Magnolia Springs and its planning commission appeal the judgment entered on the adverse jury verdict and challenge the denial of their motion for a judgment as a matter of law (“JML”). We review as follows a trial court’s ruling on a motion for a JML made after a verdict has been returned:

“The standard of review applicable to a ruling on a [renewed] motion for [a JML] is identical to the standard used by the trial court in granting or denying a motion for [a JML]. Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in the light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
“... In ruling on a [renewed] motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been ‘substantial evidence’ before the jury to create a question of fact. ‘[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.’ ”

American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993) (citations omitted). Moreover, ‘“[t]he jury’s verdict is presumed to be correct, and that presumption is strengthened by the trial court’s denial of the motion for a new trial.’” Williams v. Williams, 786 So.2d 477, 480 (Ala.2000) (quoting Friendly Credit Union v. Campbell, 579 So.2d 1288, 1291 (Ala.1991)). Finally, “[t]his Court will not reverse a judgment on a jury verdict on a weight-of-the-evidence basis unless the evidence, when viewed in a light most favorable to the nonmovant, shows that the verdict was plainly and palpably wrong and unjust.” 786 So.2d at 480.

1. Whether a municipal planning commission may adopt a moratorium on the approval of subdivisions.

The Town of Magnolia Springs and its planning commission argue that the planning commission had the authority to institute a moratorium on subdivision-plat applications and therefore could not be liable for exercising lawful authority. Lee and McKerall argue that the issue whether the planning commission has the authority to institute such a moratorium is overly broad and distracts from the issue whether the Town of Magnolia Springs and its planning commission negligently sought extraterritorial jurisdiction as well as whether a municipality can exercise lawful authority toward unlawful ends.

The question for the jury was whether the Town of Magnolia Springs and its planning commission acted “negligently, neglectfully, carelessly or unskillfully” by failing to “properly consider or grant the Petitioner Lee’s application for preliminary plat approval.” Lee and McKerall do not challenge the planning commission’s authority to institute a moratorium; rather, they object to the way in which the Town of Magnolia Springs and its planning commission handled Lee’s plat application. Whether the planning commission had the authority to institute a moratorium on subdivision applications is a question of law that is not relevant to the factual issue whether the planning commission exercised its authority unlawfully. Therefore, even if the Town of Magnolia Springs and its planning commission are correct that the planning commission has the authority to institute such a moratorium, the evidence of tortious activity was sufficient to submit a question of fact to the jury.

Assuming, arguendo, that a municipal planning commission has the authority to institute moratoria on subdivision-plat applications and that we would treat this issue as a question of law subject to de novo review, we would conclude that a planning commission cannot exercise its authority to regulate subdivisions in a way that contravenes other laws. § 11-52-32(a), Ala.Code 1975 (“[T]he municipal planning commission shall approve or disapprove a plat within 30 days after the submission thereof to it; otherwise, the plat shall be deemed to have been approved, and a certificate to that effect shall be issued by the municipal planning commission on demand.... ”). See also Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.l979)(holding that, “[sjince the Planning Commission’s power to regulate subdivisions is derived from [§ 11-52-32, Ala. Code 1975], it follows that it cannot use that power to further goals not designated by that statute”). In other words, even if a municipal planning commission has the authority to institute a moratorium on subdivision-plat applications, it may not use that authority, pursuant to § 11-52-32, without regard for the public welfare, to prevent the development of the private property of one individual. Id.

In Smith v. City of Mobile, this Court held that “[s]tatutes or ordinances which impose restrictions on the use of private property are strictly construed and their scope cannot be extended to include limitations [on private property] not therein included or prescribed.” 374 So.2d at 307 (citing E.C. Yokley, The Law of Subdivisions § 53 (1963 and Supp.1979)); see also Baltimore Planning Comm’n v. Victor Dev. Co., 261 Md. 387, 392, 275 A.2d 478, 481 (1971) (“Municipal agencies can exercise only so much of the police power as may be expressly granted or necessarily implied.... The power delegated to the Commission to formulate and publish rules and regulations is not a blank check; it cannot make ad hoc decisions which deny to a citizen the right to use his land lawfully.”).

It is undisputed that Lee purchased her property and prepared her plat application according to the rules and regulations of the Baldwin County Planning Commission that were in force at the time she filed her application, that the Town of Magnolia Springs sought extraterritorial jurisdiction over Lee’s property, that the Town of Magnolia Springs discussed its assertion of extraterritorial jurisdiction with the Baldwin County Planning Commission, that the Town of Magnolia Springs and its planning commission did not have any rules and regulations regarding plat applications at the time the Town of Magnolia Springs asserted extraterritorial jurisdiction, that the purpose of asserting extraterritorial jurisdiction was to restrict the development of Lee’s property, that the Town of Magnolia Springs instituted a moratorium on subdivision-plat applications because its planning commission lacked rules and regulations regarding such plat applications, that the moratorium delayed the development of Lee’s property, that Lee’s plat application comported with the plat-application rules and regulations of Baldwin County at the time the Town of Magnolia Springs asserted extraterritorial jurisdiction, and that Lee and McKerall were unable to develop Lee’s property as a result of the actions of the Town of Magnolia Springs. A town and its planning commission may not institute a moratorium, lawful or otherwise, solely to disregard their statutory duty (§ 11-52-32, Ala.Code 1975) to evaluate a particular plat application that has no apparent flaws without a reasonable “public welfare” explanation. See Mobile City Planning Comm’n v. Stanley, 775 So.2d 226 (Ala.Civ. App.2000) (holding that a municipal planning commission’s decision should not be invalidated unless it is clearly arbitrary and unreasonable and has no substantial relation to the public health, safety, morals, or general welfare of the community).

The Town of Magnolia Springs and its planning commission insist that the moratorium was necessary to allow time for the planning commission to adopt rules and policies before considering subdivision-plat applications. After all, they argue, a town and its planning commission cannot be expected to act without first having proper protocols and procedures in place. But this plain statement of one law ignores other laws, as well as important factual details that might have persuaded the jury that the Town of Magnolia Springs and its planning commission used § 11-52-82 as a sword for attacking Lee’s application, i.e., that the Town of Magnolia Springs and its planning commission exercised their allegedly authorized powers to place themselves in a position where the law would prohibit the planning commission from considering Lee’s pending application before Baldwin County. The holding of Smith v. City of Mobile indicates that a municipality cannot exceed the scope of its § 11-52-82 powers by extending its ability to place restrictions on private property. 374 So.2d at 307. Therefore, the Town of Magnolia Springs and its planning commission cannot exceed the scope of the powers granted them by § 11-52-32 by extending their ability to place restrictions on Lee’s property.

Pursuant to § 11-52^4, Ala.Code 1975, a municipal planning commission is required to adopt rules for the transaction of business and to maintain a record of its resolutions, transactions, findings, and determinations. The Town of Magnolia Springs’ planning commission, however, decided to take on the responsibility of considering Lee’s plat application before the planning commission ever adopted such rules. The jury could have inferred that the Town of Magnolia Springs and its planning commission knew about Lee’s plat application to Baldwin County and assumed responsibility for the plat application, despite a lack of policies in place for handling such an application. The jury could also have reasoned that the Town of Magnolia Springs, which was aware that Baldwin County already had procedures in place for approving plat applications, imposed its own jurisdiction to prevent the approval of this particular plat application. At any rate, the undisputed facts and evidence were enough to allow the issue to go to a jury.

A jury verdict is entitled to a presumption of correctness and should not be disturbed unless it is plainly wrong or manifestly unjust. Noland Co. v. Southern Dev. Co., 445 So.2d 266 (Ala.1984); Smiley v. State, 52 So.2d 565 (Ala.2010). In addition, a judgment based on a jury verdict and sustained by the denial of a postjudgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. Crestview Mem’l Funeral Home, Inc. v. Gilmer, 79 So.3d 585 (Ala.2011); see also Line v. Ventura, 38 So.3d 1 (Ala.2009). The jury’s decision in this case is not plainly wrong or manifestly unjust. We must presume that the jurors drew from the facts any reasonable inferences necessary to support the verdict, and we must not disturb the jury’s seemingly sound findings. Id.

2. Whether the trial court exceeded its discretion in charging the jury that Alabama law is silent as to whether a municipal planning commission may adopt such a moratorium on subdivision applications.

A trial court has broad discretion when formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case. Clayton v. LLB Timber Co., 70 So.3d 283 (Ala.2011); Arthur v. Bolen, 41 So.3d 745 (Ala.2010). Therefore, the standard of review for jury instructions generally is whether the trial court exceeded its discretion in giving or refusing to give an instruction. Id. Even if the trial court exceeded its discretion, a reversal of a judgment on the basis that the jury instructions were improper is warranted only when the trial court’s error was prejudicial. Sanders v. Scott, 769 So.2d 292, 294 (Ala.2000); George H. Lanier Mem’l Hosp. v. Andrews, 809 So.2d 802 (Ala.2001).

The Town of Magnolia Springs and its planning commission argue that they were prejudiced by the jury instruction that Alabama law is silent as to whether a municipal planning commission may adopt a moratorium on subdivision-plat applications. That instruction accurately reflects the law in Alabama. Therefore, the trial court did not exceed its discretion in so charging the jury.

3. Whether the planning commission of the Town of Magnolia Springs was required to review a preliminary plat application when, at the time, the Town of Magnolia Springs and its planning commission had no provision in place for the approval or review of preliminary plat applications.

The Town of Magnolia Springs and its planning commission argue that the planning commission was statutorily required to establish rules and regulations regarding the subdivision of land within the jurisdiction of the Town of Magnolia Springs. Accordingly, they reason, the planning commission cannot be held negligent for acts it was legally authorized or required to do. Lee and McKerall argue that the tortious activity began before the statutory requirement became applicable and that the planning commission used the statutory requirement to further the tor-tious activity.

A municipal planning commission enjoys “such powers as may be necessary to enable it to fulfill its functions, promote municipal planning or carry out the purpose of this chapter.” § ll-52-6(a), Ala.Code 1975. Moreover, a planning commission must “adopt subdivision regulations governing the subdivision of land within its jurisdiction” after publication of those regulations and a public hearing. § 11-52-31, Ala.Code 1975. The planning commission’s liability, however, did not spring from its good-faith adherence to these statutes, but from the actions it took to position itself where it could benefit from the statutory restrictions. But for the Town of Magnolia Springs’ assertion of extraterritorial jurisdiction, §§ ll-52-6(a) and 11-52-31 would not have applied to the Town of Magnolia Springs and, accordingly, would not have barred the development of Lee’s property.

Some of the allegedly negligent actions took place before these statutes became relevant. Those actions include the Town of Magnolia Springs’ seeking extraterritorial jurisdiction over Lee’s property while being fully aware (1) that Lee’s plat application was pending before Baldwin County and (2) that the Town of Magnolia Springs did not have any rules or procedures in place to dispose of Lee’s application. If a municipality chooses to regulate land, it must follow its own rules and regulations. Lynnwood Prop. Owners Ass’n v. Lands Described in Complaint, 359 So.2d 357, 360 (Ala.1978) (citing Miller v. City of Albuquerque, 89 N.M. 503, 507, 554 P.2d 665, 669 (1976)); Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.1979) (holding that the power delegated to a municipal planning commission to formulate and publish rules and regulations is not a blank check and that the commission cannot deny citizens the right to use their land lawfully). If a municipality chooses to regulate land before it has even established its own rules and regulations, a reasonable jury could find the municipality liable in tort, notwithstanding the terms of §§ ll-52-6(a) and 11-52-31. The jury in this case could have found that the Town of Magnolia Springs and its officials tor-tiously acquired jurisdiction over Lee’s property to forestall Lee’s subdivision-plat application and, thus, to prevent the development of her private property. Nothing in the record suggests that the jury’s determination was plainly or palpably wrong.

i. Whether the Town of Magnolia Springs is entitled to immunity for its actions in establishing the moratorium on subdivision applications and for declining to receive any applications until it had adopted procedural and substantive subdivision regulations.

Because “neither counties nor municipalities ... are part of the State or enjoy State immunity,” Health Care Authority for Baptist Health v. Davis, [Ms. 1090084, May 17, 2013] — So.3d -, - (Ala.2013), the Town of Magnolia Springs is not entitled to State immunity under Art. I, § 14, Ala. Const.1901.

Municipal immunity is found in § 11-47-190, Ala.Code 1975:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in the work therefore and while acting in the line of his or her duty.”

(Emphasis added.) This section limits municipal liability to claims of negligence based on the conduct of agents, officers, or employees of the municipality. As two commentators have explained: “Basically, this statute allows a cause of action for negligence when an agent acts as such during his work for the municipality and causes an injury.” Alex L. Holtsford, Jr., and Steven Anthony Higgins, Liability of a Municipality Under Alabama Law, 56 Ala. Law. 35, 38 (1995).

Therefore, a plaintiff may have a cause of action against a municipality for negligence such as false arrest or false imprisonment, Franklin v. City of Huntsville, 670 So.2d 848, 852 (Ala.1995), City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala.2000); for a city officer’s negligently causing or allowing assault and battery, City of Birmingham v. Thompson, 404 So.2d 589 (Ala.1981); or for failure to remedy dangerous conditions on streets, alleys, or public ways by a corporation unrelated to services provided by the municipality, City of Lanett v. Tomlinson, 659 So.2d 68 (Ala.1995).

Like the plaintiffs in Franklin, Robinson, and Thompson, Lee and McKe-rall alleged claims of negligence against a municipality — the Town of Magnolia Springs and its planning commission. To prevail on a claim of negligence, a party must show that another party’s negligence is more than mere “wrongful decision making.” Ott v. Everett, 420 So.2d 258, 260 (Ala.1982). Municipal immunity does not apply when a town’s agents act negligently, and the evidence was sufficient to allow the jury to determine whether the actions of the Town of Magnolia Springs and its planning commission were negligent beyond “wrongful decision making.” Id.

The Town of Magnolia Springs and its planning commission argue that this case falls under a narrow exception to the general rule that a municipality is not immune from liability for negligence. That exception applies when a municipality’s responsibility to provide for the public safety, health, or general welfare outweighs the reasons for imposing liability on the municipality. However, as explained above (see supra note 1 regarding contributory negligence), the Town of Magnolia Springs seemingly lacked a public-interest reason for delaying the consideration of Lee’s plat application and for thereby thwarting the development of her private property. Moreover, this public-policy exception applies only in rare instances such as when “those narrow areas of governmental activities [are] essential to the well-being of the governed,” or when “the imposition of liability can be reasonably calculated to materially thwart the City’s legitimate efforts to provide such public services.” Rich v. City of Mobile, 410 So.2d 385, 387 (Ala.1982). Although prior cases have held that a municipality is immune from liability for giving erroneous information about property zoning, City of Mobile v. Sullivan, 667 So.2d 122, 127 (Ala.Civ.App.1995), municipal immunity cannot extend to protect a municipality for the actions of its agents who sought extraterritorial jurisdiction over the private property of a citizen so that the municipality could prevent development of that property.

In this case, it was possible for a jury to infer that the activities of the Town of Magnolia Springs and its planning commission were neither legitimate nor aimed at the public welfare but were meant to prevent a private citizen from developing her private property for her economic benefit as well as for the economic and social benefit of the community. Therefore, this case does not fall under the public-welfare exception that would cloak the Town of Magnolia Springs in immunity for the actions of its agents.

5. Whether a remittitur of the jury verdict is appropriate under § 11-4-7-190 and § 11-93-2, Ala.Code 1975, for the alleged diminution in the value of Lee’s property.

Alabama appellate courts have a statutory power of remittitur. § 12-22-71, Ala. Code 1975. Although authorized to determine whether the amounts awarded in this case are excessive, this Court must also presume that the jury’s verdict is correct. Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 320 (Ala.1992).

The Town of Magnolia Springs and its planning commission argue that the personal-injury cap of § 11-47-190, Ala. Code 1975, governs the damages awards in this case. That Code section, however, applies only to bodily injury or death. City of Prattville v. Corley, 892 So.2d 845, 850 (Ala.2003). Because neither Lee nor McKerall suffered bodily injury or death, § 11^47-190 does not apply. The Town of Magnolia Springs and its planning commission claim that their liability for damage or loss of property arising out of a single occurrence may not exceed $100,000. See § 11-93-2, Ala.Code 1975. That section, however, applies only to “tangible property.” § 11-93-1(4), Ala.Code 1975. See Macon v. Huntsville Utils., 613 So.2d 318, 321 (Ala.1992) (contrasting tangible-property rights with incorporeal-property rights). The damages sought in this action are for lost profits, which are neither “bodily injury” under § 11-47-190 nor “tangible property” under §§ 11-93-1(4) and 11-93-2. Therefore, these liability caps do not limit the recovery in this case. See City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (damages based on a claim of intentional interference with business relations are not subject to the statutory cap of § 11-93-2).

6. Whether McKerall timely filed a notice of claim.

“Claims [against the municipality] for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.” § 11-47-23, Ala.Code 1975. Because McKerall’s claim sounds in tort, he had to present it to the Town of Magnolia Springs within six months from the date of the accrual of the claim. “A cause of action accrues as soon as the party in whose favor it arises is entitled to maintain an action thereon.” Hill v. City of Huntsville, 590 So.2d 876, 876 (Ala.1991).

McKerall moved to be joined as a plaintiff on June 26, 2010. His injuries, however, parallel to those of Lee, accrued no later than the date she filed suit in August 2007. Lee’s complaint, which the Town of Magnolia Springs and its planning commission concede were timely filed, satisfied the notice-of-claim requirement. Filing a lawsuit operates as a notice of claim. See Diemert v. City of Mobile, 474 So.2d 663 (Ala.1985) (holding that filing an action within the six-month notice-of-claim period satisfies § 11^47-23). Because McKerall failed to meet the six-month deadline, he is barred from recovery unless his joinder as a petitioner relates back to the filing date of Lee’s complaint.

The notice-of-claim statute is not satisfied when a municipality merely learns of an incident resulting in an actionable injury. Large v. City of Birmingham, 547 So.2d 457, 458 (Ala.1989). Because “nothing in the original complaint” would put the Town of Magnolia Springs on notice of the additional claims by McKerall, “ ‘relation back’ and other procedural rules designed to ‘heal’ violations of the statute of limitations cannot ‘heal’ violations of the municipal notice-of-claim statute.” City of Birmingham v. Davis, 613 So.2d 1222, 1224 (Ala.1992). See also Locker v. City of St. Florian, 989 So.2d 546, 550 (Ala.Civ.App.2008) (noting that “the relation-back principles of civil procedure do not apply to satisfy the requirements of §§ 11^7-23 and 11-47-192”). Because “relation back” does not “heal” McKerall’s failure to file a timely notice of claim, he is barred from recovery from the Town of Magnolia Springs and its planning commission. Therefore, the judgment as to McKerall is due to be reversed, and the remainder of this opinion will not discuss the judgment as to him.

7. Whether the consent judgment between Lee and McKerall and the Baldwin County Planning Commission and the individual county defendants relieves the Town of Magnolia Springs and its planning commission of liability.

The consent judgment reads, in relevant part:

“While the respondents the Town of Magnolia Springs, the Magnolia Springs Planning Commission, Charles S. Houser and Robert C. ‘Bob’ Hoik [ (‘the Town Parties’) ] are not participating in the settlement which has resulted in this Consent Decree, they are nevertheless parties to this action and their attorneys have received timely notice of the motion of the other parties for the entry of this Consent Decree, and said attorneys have either remained silent after such notice or have notified the Court that they and their clients have no objection to this settlement or to the terms of this Consent Decree. The Town Parties are therefore bound by its provisions, including but not limited to those that confer permanent, exclusive jurisdiction over the subdivision of the lands that are the subject of this action upon Baldwin County and its Planning and Zoning Commission, pursuant to the terms and provisions of the [Baldwin County Subdivision Regulations] as [they] existed on December 19, 2006.”

The parties stipulate that the Town of Magnolia Springs and its planning commission were bound by this consent decree even though they were not a party to the consent decree. Whether the Town of Magnolia Springs and its planning commission are bound to the consent decree does not change our holding regarding the liability of the Town of Magnolia Springs and its planning commission. The Town of Magnolia Springs and its planning commission argue that if they are bound to the consent decree, they may not be found liable because the consent decree expressly states that Baldwin County has exclusive jurisdiction. They allege, to that end, that if the Town of Magnolia Springs and its planning commission had no jurisdiction and no power to act, there could be no duty on the part of the Town of Magnolia Springs and its planning commission to consider or approve the subdivision plat. However, if Baldwin County had exclusive jurisdiction, then the Town of Magnolia Springs and its planning commission could have been negligent for holding themselves out as having jurisdiction and for preventing Lee from developing her prí-vate property. Lee and McKerall argue that the Town of Magnolia Springs and its planning commission not only were bound to the consent decree but also were possibly acting without any authority when they thwarted the development of Lee’s proper-, ty. Therefore, we hold that the jury could have found the Town of Magnolia Springs and its planning commission negligent for alleging to have authority that they did not have or for exercising that assumed authority to Lee’s financial detriment.

8. Whether damages for lost profits on the possible sale of land, with no certain buyer or contract, are remote and speculative.

A jury’s verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Jamison, Money, Farmer & Co. v. Standeffer, 678 So.2d 1061, 1064-67 (1996) (upholding a damages award because the damages were not speculative). A judgment based on a jury verdict and sustained by the denial of a motion for a new trial will not be reversed unless it is plainly and palpably wrong. Id. Because the jury returned a verdict for Lee, any disputed allegations of fact must be resolved in her favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. Id.

Compensatory damages must be direct and reasonably certain; they may not be remote and speculative. Alabama Power Co. v. Alabama Pub. Serv. Comm’n, 267 Ala. 474,103 So.2d 14 (1958); Crommelin v. Montgomery Indep. Telecasters, Inc., 280 Ala. 391, 194 So.2d 548 (1967). A party may recover anticipated profits of an unestablished business if it presents evidence regarding the profits the business would have earned but for the defendant’s conduct. Super Valu Stores, Inc. v. Peterson, 506 So.2d 317 (Ala.1987).

Even though damages for lost profits may not be calculated easily or with mathematical certainty, the rule of “reasonable certainty” maintains that damages for lost profits can still be recovered if the defendant’s wrong proximately caused them. Morgan v. South Cent. Bell Tel. Co., 466 So.2d 107 (Ala.1985).

The Town of Magnolia Springs and its planning commission challenge the sufficiency of the lost-profits evidence put forth by Lee’s experts and claim that the damages awarded were speculative. Lee was not required to prove with perfect certainty that her business plans would lead to a specified profit; she was required only to prove with reasonable certainty that the conduct of the Town of Magnolia Springs and its planning commission proximately caused her to lose anticipated profits. This she did, and the jury awarded damages roughly equivalent to the amount of alleged lost profits. Therefore, this Court affirms the judgment of the trial court in favor of Lee as to this issue.

9. Whether Lee proved by substantial evidence that she was damaged as a proximate result of any alleged negligence of the defendants when § 11-52-32, Ala.Code 1975, provides that a subdivision application is automatically approved if no action is taken within 30 days after submission of the application.

The Town of Magnolia Springs and its planning commission argue that because § 11-52-32, Ala.Code 1975, requires a municipal planning commission to approve or disapprove a plat application within 30 days of its submission, and because the Court in Boulder Corp. v. Vann, 345 So.2d 272 (Ala.1977), held that the 30-day period begins to run on the date the planning commission considers the application (not on the date when the application is filed), Lee sought the wrong remedy. The Town of Magnolia Springs and its planning commission maintain that the proper remedy was not an action seeking damages for tortious conduct but a writ of mandamus directing the planning commission to consider the application. Mandamus is an extraordinary remedy. Regardless of whether such a writ was appropriate here, Lee did nothing wrong by suing in tort. One need not seek an extraordinary remedy before seeking the ordinary remedy.

The Town of Magnolia Springs and its planning commission cite no authority for the proposition that Lee’s proper remedy was a writ of mandamus rather than a suit for damages. This Court has repeatedly stated:

“‘Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain “citations to the cases, statutes, other authorities, and parts of the record relied on.” ... “[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(1) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005).’ ”

Prattville Mem’l Chapel v. Parker, 10 So.3d 546, 560 (Ala.2008) (quoting Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007)). Because the Town of Magnolia Springs and its planning commission fail to cite any authority on this issue, the issue is waived. City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (“When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.”).

10. Whether Lee failed to exhaust her administrative remedies.

To say that Lee had to exhaust all administrative remedies assumes that there were administrative remedies available to her. It also assumes that the subdivision-plat application constituted a “contested case” under the administrative rules and that § 41-22-20, Ala.Code 1975, applies to municipalities. Nevertheless, there were no administrative remedies available to Lee once the planning commission denied the application; nothing before us suggests that the Town of Magnolia Springs or its planning commission had in place alternative remedies to which Lee could resort.

Therefore, the only conceivable remedies for Lee were a writ of mandamus directing the Baldwin County Planning Commission or the Town of Magnolia Springs and its planning commission to approve or disapprove of the plat application (or, barring that, to enjoin the Town of Magnolia Springs from exercising extraterritorial jurisdiction) or a lawsuit in the circuit court. Lee chose the first option as to the Baldwin County Planning Commission before choosing the second option as to the Town of Magnolia Springs and its planning commission. In light of the foregoing, Lee did not fail to exhaust her administrative remedies.

11. Whether the Town of Magnolia Springs or its planning commission proved by substantial evidence that Lee is guilty of contributory negligence.

“Ordinarily, the denial of a JML is proper where the nonmoving party has produced substantial evidence to support each element of his claim.” Cessna Aircraft Co. v. Trzcinski, 682 So.2d 17, 19 (Ala.1996). “[S]ubstantial 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 Assurance Co., 547 So.2d 870, 871 (Ala.1989); § 12-21-12(d), Ala.Code 1975.

The Town of Magnolia Springs and its planning commission submit that Lee knew all along that Baldwin County, not the Town of Magnolia Springs, had jurisdiction over Lee’s subdivision-plat application. They insist that Lee continually tried to get the planning commission to approve the application and thereby delayed the application process. The Town of Magnolia Springs and its planning commission argue that Lee understood the position she was putting herself in when she caused this delay.

The record does not support this version of the facts. Lee made multiple attempts to submit the plat application to Magnolia Springs’ planning commission because it claimed extraterritorial jurisdiction over the proposed subdivision. Moreover, the record shows that the town officials sought to gain jurisdiction over Lee’s private property to thwart the development of her proposed subdivision.

In support of their contributory-negligence argument, the Town of Magnolia Springs and its planning commission cite three personal-injury cases. These are not analogous to this case, and the Town of Magnolia Springs and its planning commission do not argue why the cases are applicable.

“‘Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain “citations to the cases, statutes, other authorities, and parts of the record relied on.” Further, “it is well settled that a failure to comply with the requirements of Rule 28(a)(1) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)). This is so, because “‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).’”

Prattville Mem’l Chapel v. Parker, 10 So.3d at 560 (quoting Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007)).

We hold that the jury could have found no contributory negligence on the part of Lee. A judgment based on a jury verdict and sustained by the denial of a motion for a new trial will not be reversed unless it is plainly and palpably wrong. Jamison, Money, Farmer & Co., 678 So.2d at 1064. The jury was not plainly and palpably wrong as to this issue.

V. Conclusion

We hold that McKerall’s claims against the Town of Magnolia Springs and its planning commission are barred by his failure to timely file a notice of claim pursuant to the terms of § 11^7-23 and § 11-47-192, Ala.Code 1975, and we reverse the judgment in his favor. We affirm the judgment in favor of Lee against the Town of Magnolia Springs and its planning commission, as well as the summary judgment in favor of Houser and Hoik, and we pretermit any remaining issues.

1110105 — ON APPLICATION FOR REHEARING IN CASE NO. 1110505; OPINION OF SEPTEMBER 27, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

1110505 — APPLICATION OVERRULED; OPINION OF SEPTEMBER 27, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WISE and BRYAN, JJ., concur.

PARKER and SHAW, JJ., concur in the result.

      . "The rule that a plaintiff who was contribu-torily negligent may nonetheless recover from the defendant if the defendant had the last opportunity to prevent the harm but failed to use reasonable care to do so_” Black’s Law Dictionary 960 (9th ed. 2009).

      . Section 11-47-192, Ala.Code 1975, requiring that a notice of claim for personal injury contain certain specific facts, does not apply to McKerall. His claim for lost profits is not a "personal injury.” See Coffee Cnty. Comm’n v. Smith, 480 So.2d 1194, 1195 (Ala.1985) (noting that § 11-47-192 "is applicable only to personal injury claims, not to claims for property damage”).

      . Lee did first seek mandamus relief as to Baldwin County in the Baldwin Circuit Court.


author: MOORE, Chief Justice. MURDOCK, Justice

text:
    Deborah VOLTZ et al. v. Cameron Leigh DYESS.
    1121223.
    Supreme Court of Alabama.
    Jan. 24, 2014.
    Robert D. Bryant of Turner, Turner & Bryant, Marion, for appellants.
   MOORE, Chief Justice.

Deborah Voltz, Jasmin Voltz, and Princess Turner (hereinafter referred to collectively as “the plaintiffs”) appeal from an order entered by the Montgomery Circuit Court dismissing their action against Cameron Leigh Dyess. We reverse and remand.

I.Facts and Procedural History

On November 1, 2012, the plaintiffs filed a complaint against Dyess in the Montgomery Circuit Court, alleging that Dyess had negligently and wantonly caused an automobile accident in which the plaintiffs were injured. The plaintiffs sought damages in excess of $50,000. On November 1, the plaintiffs attempted service of process on Dyess by certified mail. On February 12, 2013, this service of process was returned unclaimed. On February 21, 2018, the plaintiffs filed an amended complaint. On May 3, 2013, the plaintiffs attempted to serve the amended complaint on Dyess, this time through personal service by the sheriff.

On June 12, 2013, without giving notice to the plaintiffs, the trial court entered an order dismissing the case for lack of service. On the same date, the plaintiffs filed a motion to alter, amend, or vacate the order of dismissal. On June 25, 2013, the sheriff’s summons was returned indicating nonservice. Also on June 25, 2013, the trial court set a hearing for July 11, 2013, on the plaintiffs’ motion to alter, amend, or vacate. However, on July 1, 2013, the trial court entered an order denying the plaintiffs’ motion to alter, amend, or vacate. On July 12, 2013, the trial court entered a second order, again denying the plaintiffs’ motion. The order stated that on July 11, 2013, the date of the scheduled hearing, “[n]o one appeared.” On July 15, 2013, the plaintiffs filed a renewed motion to alter, amend, or vacate and a motion to permit service by a private process server. On July 18, 2013, the plaintiffs filed notice of appeal of the trial court’s dismissal of the case.

II.Standard of Review

“Before the adoption of our current Rule 4(b), [Ala. R. Civ. P.,] some Alabama cases evaluated a dismissal for insufficient service of process under Rule 41(b), Ala. R. Civ. P.” State Farm Fire & Cas. Co. v. Smith, 39 So.3d 1172, 1175 (Ala.Civ.App.2009). “Failure of a plaintiff to attempt to obtain service over the defendant within a reasonable time may amount to a failure to prosecute the action, warranting a dismissal of the case.” Crosby v. Avon Prods., Inc., 474 So.2d 642, 644 (Ala.1985); see also State v. Horton, 373 So.2d 1096, 1097 (Ala.1979) (same).

“The general rule, of course, is that a court has the inherent power to act sua sponte to dismiss an action for want of prosecution. However, because dismissal ... is such a drastic sanction, it is to be used only in extreme situations. Accordingly, this Court carefully scrutinizes any order terminating an action for want of prosecution, and it does not hesitate to set one aside when an abuse of discretion is found.”

Burdeshaw v. White, 585 So.2d 842, 847 (Ala.1991).

III.Analysis

The plaintiffs argue that the trial court exceeded its discretion by dismissing their case for lack of service of process when the trial court did not give them 14 days’ notice of its intent to dismiss for failure of service of process, pursuant to Rule 4(b), Ala. R. Civ. P. Rule 4(b) provides:

“If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative, after at least fourteen (lk) days’ notice to the plaintiff, may dismiss the action without prejudice as to the defendant upon whom service was not made or direct that service be effected within a specified time; provided, however, that if the plaintiff shows good cause for the failure to serve the defendant, the court shall extend the time for service for an appropriate period.”

(Emphasis added.) Rule 4(b) was taken from Rule 4(m), Fed.R.Civ.P., “except for the provision[ ] for 14 days’ notice.” Committee Comments to Amendment to Rule 4 Effective August 1, 2004.

We have noted that “Rule 4(b), Ala. R. Civ. P., allows for service of process up to, and in some instances beyond, 120 days after the plaintiff filed its complaint.” Ex parte East Alabama Mental Health-Mental Retardation Bd., Inc., 939 So.2d 1, 5 n. 6 (Ala.2006) (emphasis added). However, we have not had the opportunity to construe the 14-day-notice provision in Rule 4(b). The fundamental rule of construction for our rules of procedure is that “[tjhese rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” Rule 1(c), Ala. R. Civ. P. “ ‘[W]hen interpreting a rule of procedure, we must give the wording of the rule its plain meaning.’ ” Lewis v. State, 889 So.2d 623, 665 (Ala.Crim.App.2003) (quoting J.W. v. State, 751 So.2d 529, 531 (Ala.Crim.App.1999)). In addition, the Alabama Rules of Civil Procedure “are to be construed liberally to effect the purpose of the rules.” B & M Homes, Inc. v. Hogan, 376 So.2d 667, 674 (Ala.1979) (emphasis added).

The notice provision in Rule 4(b) is unambiguous; we thus must give the wording of the rule its plain meaning and give effect to the clear purpose of the rule. Hogan, 376 So.2d at 674. We agree with the Court of Civil Appeals that “[t]he obvious purpose of the notice requirement [of Rule 4(b) ] is to give the plaintiff an opportunity to show ‘good cause’ to extend the time for service.” Moffett v. Stevenson, 909 So.2d 824, 826-27 (Ala.Civ.App.2005). See also Moore v. Alabama Dep’t of Corr., 60 So.3d 932, 934 (Ala.Civ.App.2010) (noting that 14 days’ notice gives “opportunity to present good cause for the failure to perfect service” and “opportunity to request additional time in which to perfect service”).

On November 1, 2012, the plaintiffs attempted to effect service through certified mail. On February 12, 2013, with the 120-day deadline for completing service approaching, the certified-mail receipt was returned, unclaimed. On May 3, 2013, over 180 days after filing suit, the plaintiffs attempted to effect in-person service through the sheriff’s office. On June 12, 2013, more than 210 days after the plaintiffs filed suit, the trial court dismissed the case for lack of service. Under Rule 4(b), the trial court may dismiss the action after 120 days if a plaintiff fails to perfect service.

Standing alone, the plaintiffs’ lengthy and unexplained delay might warrant the involuntary dismissal for lack of service pursuant to Rule 41(b), Ala. R. Civ. P. (permitting involuntary dismissal “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court”). However, the trial court did not dismiss the plaintiffs’ action pursuant to Rule 41(b) for failure to prosecute. Under Rule 4(b), a failure to effect service within 120 days does not, alone, warrant summary dismissal absent at least 14 days’ notice. From our review of the record, we find no indication that the trial court provided any notice at all to the plaintiffs before dismissing the action pursuant to Rule 4(b).

We hold, therefore, that a trial court is required to give plaintiffs at least 14 days’ notice before dismissing an action against a defendant on whom service was not effected. See Rule 4(b), Ala. R. Civ. P.; Moffett, 909 So.2d at 826 (“[TJhe trial court is required to give the plaintiff 14-days’ notice before it dismisses an action against the defendants on whom service was not effected.” (emphasis added)); and Moore, 60 So.3d at 933 (“[T]he text of the rule does require notice of a dismissal for a failure to timely serve a defendant.”).

The trial court erred when it dismissed the action without giving at least 14 days’ notice to the plaintiffs that their case was subject to dismissal for failure to effect service. We reverse the order of dismissal and remand the case for further proceedings consistent with this opinion, including giving the plaintiffs an opportunity to show good cause to extend the time for service.

REVERSED AND REMANDED.

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

MURDOCK and SHAW, JJ., dissent.

MURDOCK, Justice

(dissenting).

The main opinion reverses the trial court’s order of dismissal because it concludes that the 14-day-notice requirement of Rule 4(b), Ala. R. Civ. P., was not met. Rule 41(b), Ala. R. Civ. P., however, expresses no such 14-day-notice requirement in providing that “[f]or failure of the plaintiff to prosecute or comply with these rules” the trial court may order the involuntary dismissal of a complaint. Nothing in the language of Rule 41(b) or Rule 4(b) indicates that Rule 41(b) could not apply in a case such as this. Indeed, Rule 41(b), which by its terms does not differentiate between dismissals with prejudice and dismissals without prejudice, remains the only way in which a dismissal “with prejudice” can be achieved for an undue delay in service of a complaint. Because the rules provide no definition of the phrase used in Rule 41(b), “failure ... to prosecute,” whether the plaintiff’s delay in accomplishing service has been long enough to warrant a dismissal under Rule 41(b) is subject to dispute in any given case. Rule 4(b) appears to be merely an attempt to provide some structure to the analysis, creating a presumption that 120 days is long enough, at least for purposes of a dismissal without prejudice. In the present case, of course, the delay went well beyond the 120-day mark, and dismissal, for all that appears, was warranted under either Rule 4(b) or Rule 41(b).

The main opinion bases its conclusion on the notion that the trial court dismissed the plaintiffs’ action under only Rule 4(b), however. I find no support for this conclusion in the trial court’s order or elsewhere in the record. Among other things, the trial court did not cite Rule 4(b) as the basis for its order. If the trial court’s order was authorized by any rule of procedure, then it was authorized. Given the length of time during which the plaintiffs failed to serve the complaint, the limited efforts at such service in relation to that length of time, and the absence of any compelling reason for that delay expressed by the plaintiffs in any of their filings, I believe the trial court acted within its discretion in dismissing the complaint on the authority of Rule 41(b).

Aside from the foregoing, the sequence of events in this particular case, including the trial court’s reconsideration on two occasions of its order of dismissal more than 14 days after being requested by the plaintiffs to do so, appears to satisfy even the prerequisite in Rule 4(b) of 14 days’ notice prior to a dismissal.

SHAW, J., concurs.

      . The federal counterpart to Rule 4(b) allows a federal court to dismiss a case for lack of service "on motion or on its own after notice to the plaintiff.” Rule 4(m), Fed.R.Civ.P.

      . We recognize that the Moore court held that the 14-day notice may be provided by an opposing party’s filings. See Moore, 60 So.3d at 933-34 ("[T]he rule does not specifically prescribe a method by which such notice must be given.... Moore had received the requisite notice in the form of [a] motion to dismiss.”). No facts in this case provided such constructive notice, so we give no opinion as to the Court of Civil Appeals’ interpretation of Rule 4(b) in Moore.