author: BARNES, J.,

text:
    Wanda JOHNSON, Appellant, v. Ira JOHNSON, Jr., Appellee.
    No. 2008-CA-00230-COA.
    Court of Appeals of Mississippi.
    Nov. 3, 2009.

      Minor F. Buchanan, Jackson, attorney for appellant.
    Michael Wayne Boyd, Greenville, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. This case comes on appeal from the Washington County Chancery Court’s grant of a divorce on the ground of irreconcilable differences to Wanda Johnson and Ira Johnson, Jr. The chancellor also awarded sole physical custody of the couple’s minor child to Ira. It is from this judgment Wanda now appeals. As Ira confesses reversible error, we reverse and remand for further proceedings in the chancery court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. Wanda and Ira were married on June 21, 1980, and resided in Greenville, Mississippi. Two children were born of the marriage: Kira, born July 22, 1982, who at all times relevant to this case is emancipated, and Amber, born November 30, 1989. After several years without intimacy in the marriage, Ira left the domicile in September 2004. Amber remained with Wanda.

¶3. On August 4, 2006, Wanda filed a petition for child custody and support. Ira filed an answer on October 10, 2006, confessing custody and support. Ira also counter-claimed for divorce based on fault grounds and, alternatively, on the ground of irreconcilable differences. Ira’s filing did not include a required anti-collusion certificate. Ira then filed an amended complaint for divorce on August 8, 2007, without leave of the court, seeking custody of Amber and providing the anti-collusion certificate.

¶4. A trial was held on November 20, 2007, with the chancellor’s granting a divorce on the ground of irreconcilable differences and awarding joint legal custody of Amber to both parents and physical custody to Ira. The judgment also contained other orders relating to property division and awarded attorney’s fees to Ira. The order was entered on January 7, 2008. Wanda now appeals the chancery court’s judgment.

STANDARD OF REVIEW

¶ 5. “We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard.” Engel v. Engel, 920 So.2d 505, 508(1110) (Miss.Ct.App.2006).

¶ 6. Wanda’s first claim is that the chancellor’s judgment of divorce, which was granted on January 7, 2008, nunc pro tunc to November 20, 2007, was erroneous based on the fact that the parties had never executed a written agreement for an irreconcilable differences divorce, had not withdrawn the fault grounds, and had not executed a consent for the chancellor to rule on contested matters. Mississippi Code Annotated section 93-5-2 (Supp. 2008) governs the award of a divorce based on irreconcilable differences. “[W]hen a divorce is sought on the ground of irreconcilable differences, the parties shall enter a mitten agreement resolving matters of property division, which must then be approved by the chancellor.” Ash v. Ash, 877 So.2d 458, 460(¶ 11) (Miss.Ct.App.2003) (citing Rounsaville v. Rounsaville, 732 So.2d 909, 910(116) (Miss.1999)) (emphasis added). Subsection (3) of 93-5-2 provides, however, that if a couple is unable to agree on provisions related to custody or property rights, they may consent to a divorce on the ground of irreconcilable differences and have the court “decide the issues upon which they cannot agree.” Miss.Code Ann. § 93-5-2(3). In Irby v. Estate of Irby, 7 So.3d 223, 238(¶50) (Miss.2009), the Mississippi Supreme Court stated:

[T]he consent (1) must be in writing and signed by both parties; (2) must state that the parties voluntarily consent to permit the court to decide the issues upon which the parties cannot agree; (3) must specifically set forth the issues upon which the parties are unable to agree; and (4) must state that the parties understand that the decision of the court shall be a binding and lawful judgment.

These provisions must be strictly followed. Perkins v. Perkins, 787 So.2d 1256, 1264(¶ 24) (Miss.2001).

¶ 7. Accordingly, one of the main conditions in the granting of a divorce under section 93-5-2 is that neither spouse contest it. Irby, 7 So.3d at 238(¶ 49). The supreme court stated that subsection (5) of section 93-5-2, which is to be read in conjunction with subsection (3), “mandates that a contest or denial be withdrawn or canceled, by leave and order of the court, by the party who filed the contest or denial.” Id. at 239(¶ 54). “This is a procedural safeguard which has existed within the framework of [sjection 93-5-2 since its promulgation.” Id. at 239-40(¶ 54). Therefore, the Mississippi Supreme Court in Irby reasoned that, if a party meets the procedural requirements of subsection (3), compliance with subsection (5) is no longer necessary. Id. at 240(¶ 54).

¶ 8. However, in the present case, the parties failed to comply with either subsection (3) or subsection (5). There was discussion between counsel at trial which revealed that no written consent was ever entered into by the parties. Evidence of an e-mail between the attorneys, which was read and referred to at trial, also showed that the parties had not reached an agreement at the time of trial, and that the parties were still arguing over what the specifics of the agreement would be. Additionally, Ira never sought leave of the court to withdraw his fault-based complaint. In recognition of the requirements under section 93-5-2, Ira has filed a “Confession of Appeal in which he agrees that the statutory filing requirements were not met at trial, and that Wanda is entitled to a new trial. In light of Ira’s admission and our review of the record, we find that the grant of a divorce by the chancellor failed to comply with subsections (3) or (5) of Mississippi Code Annotated section 93-5-2.

¶ 9. Therefore, as Ira has confessed reversible error, we reverse and remand for further proceedings in the chancery court. In light of our disposition of the case, we do not reach the other issues raised by Wanda.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Rodger Dale JORDAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-00914-COA.
    Court of Appeals of Mississippi.
    Nov. 3, 2009.

      William Wayne Housley, Tupelo, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   KING, C.J.,

for the Court.

¶ 1. On May 3, 2007, Rodger Dale Jordan filed a petition in the Circuit Court of Pontotoc County for post-conviction relief to set aside his conviction and sentence for statutory rape. On March 31, 2008, the trial court conducted an evidentiary hearing on Jordan’s petition. As a result of the hearing, the trial court denied Jordan’s petition for post-conviction relief. Aggrieved, Jordan appeals and argues the following issues: (1) he received ineffective assistance of counsel; (2) his guilty plea was entered involuntarily; (3) the trial court erred in ruling that there was no evidence of material facts which required the vacation of his guilty plea; and (4) the cumulative effect of the aforementioned errors entitles him to a reversal of the trial court’s judgment. Finding no error, we affirm.

FACTS

¶ 2. On December 16, 2005, Jordan was arrested for the crime of statutory rape of a child, Ann, that occurred during the period of October 11-13, 2005. Soon after the rape, Ann was diagnosed with Ewing’s sarcoma. During its April 2006 term, the Pontotoc County Grand Jury indicted Jordan as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007) for the offense of statutory rape. The case was initially set to be tried on July 17, 2006. However, because of receipt of late discovery, defense counsel’s extremely busy court calendar, and defense counsel’s lack of preparation, Jordan’s defense counsel filed a motion for continuance. The trial judge granted the motion and rescheduled the case for trial on July 27, 2006. The defense filed a motion requesting that the trial court find the victim’s statement to her sister — that she became pregnant after Jordan forced her to have sexual intercourse with him— was not an exception to the tender years exception to the hearsay rule under Mississippi Rule of Evidence 803(25). On July 11, 2006, the State moved to amend the indictment to address the age of the victim. On July 24, 2006, defense counsel filed a motion pursuant to Mississippi Rule of Evidence 412, seeking permission to introduce evidence of the victim’s prior sexual conduct.

¶ 3. On July 26, 2006, the trial court conducted a hearing on the motions filed by the defense regarding Rule 803(25) and Rule 412. At the Rule 803(25) hearing, Ann’s sister was allowed to testify as to their conversation because of the victim’s absence. After being unexpectedly released from the hospital where she was receiving treatment for cancer, Ann appeared and testified at the motions’ hearing. At the conclusion of the hearing, the trial court ruled that the victim’s statement to her sister was admissible as a hearsay exception pursuant to Rule 803(25) for the following reasons: (1) although Ann appeared to be mature at the age of 13 when the rape occurred, she was diagnosed with cancer approximately four months later; (2) Ann did not appear to have a full understanding or appreciation of the questions asked by counsel; (3) Ann did not have an apparent motive to lie about what she told her sister; (4) it was uncontradicted that Ann did not harbor any hard feelings against Jordan; (5) Ann’s general character was described as trustworthy, and there was no evidence to contradict Ann’s truthfulness to others; (6) Ann only told her sister; (7) Ann’s statement about being pregnant was unprovoked; (8) the victim initially refused to discuss with her sister what she meant by her comment that “it sucks being pregnant”; (9) the timing of the declaration is some five weeks or so after the alleged incident; (10) the fact that the Ann and her sister had a good relationship, and there was no evidence to contradict their relationship; (11) there was no proof that Ann’s memory was faulty; (12) there is no evidence that has called into question Ann’s credibility; (13) there is no evidence that the rape was fabricated; and (14) there is no evidence that the sister suggested to Ann what to say or how to say it. The trial court also ruled that evidence of the victim’s past sexual behavior would be inadmissible at trial.

¶ 4. On July 27, 2006, Jordan pled guilty and was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC) with fifteen years suspended, fifteen years to serve day for day, and five years of post-release supervision. Jordan was ordered to pay a $1,000 assessment to the Mississippi Children’s Trust Fund, a $1,500 fine, and court costs. Jordan was also directed to register as a sex offender. On May 3, 2007, Jordan filed a petition for post-conviction relief to set aside the plea alleging that: his guilty plea was made involuntarily; the assistance he received from defense counsel was ineffective; and there exists evidence of material facts not previously presented to and heard by the trial court.

¶ 5. On March 31, 2008, the trial court conducted an evidentiary hearing on Jordan’s petition for post-conviction relief. At the conclusion of the hearing, the trial judge took the matter under advisement. On May 12, 2008, the trial court denied Jordan’s petition for post-conviction relief.

STANDARD OF REVIEW

¶ 6. “When reviewing a [trial] court’s decision to deny a petition for post conviction relief[,] this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 7. Jordan argues that he received ineffective assistance from his trial counsel. Specifically, Jordan claims that defense counsel coerced and cajoled him to enter a guilty plea as his counsel unprepared for trial. Jordan claims that defense counsel was relying on receiving a continuance in order to prepare for trial. “To prove ineffective assistance of counsel, a defendant must show (1) that his counsel’s performance was deficient and (2) that this deficiency prejudiced his defense.” Kimble v. State, 2 So.3d 688, 690(¶ 6) (Miss.Ct.App.2008). “An allegation of ineffective assistance of counsel for failure to properly prepare must state whether any additional investigation, such as interviewing witnesses or investigating facts, would have significantly aided or altered the outcome of the defendant’s case at trial.” Benson v. State, 821 So.2d 823, 827(¶ 16) (Miss.2002).

¶ 8. In support of his claim of ineffective assistance of counsel, Jordan offered two affidavits, one from his mother, Debbie McGregor, and the other from Kortney Sappington, his fiancée. McGregor and Sappington were allegedly privy to conversations regarding Jordan’s guilty plea. The affidavits from McGregor and Sap-pington indicate that defense counsel told Jordan to enter a guilty plea because with the status of Ann’s physical appearance from cancer, there was no way he could “win,” especially since he had not prepared for the trial. McGregor and Sappington also claimed that defense counsel told Jordan not to worry because he could appeal. However, there was evidence presented at the hearing that called into question McGregor’s credibility. The only other evidence offered to support Jordan’s allegation that defense counsel cajoled and coerced him to enter a guilty plea was his own allegations of coercion.

¶ 9. As for Jordan’s argument that defense counsel was unprepared for trial, Jordan provides no evidence to support his allegation that counsel was unprepared. Clearly, Jordan failed to meet the burden of proof that defense counsel’s performance was deficient and that such deficiency prejudiced his defense.

¶ 10. During his plea hearing, Jordan stated that he had not been promised anything, coerced, or threatened by anyone into entering his plea. Jordan testified that he was satisfied with counsel’s performance and that he (Jordan) had no reservations about entering a plea in light of having expressed some reservations earlier about his attorney. Therefore, we find that Jordan’s allegation of ineffective assistance of counsel is without merit.

II. Voluntariness of Plea

¶ 11. Jordan asserts that his guilty plea was not entered voluntarily. First, Jordan argues that his plea was involuntary because defense counsel coerced and manipulated him into a guilty plea with the assurance that his case could be heard on appeal. Second, Jordan contends that because of the outcome of the motion hearings and the victim’s deteriorating health, his attorney gave him a choice to either take a plea and be sentenced to fifteen years, which he could immediately appeal, or go to trial and lose, which would likely result in a life sentence. Jordan claims that although he stated at his plea hearing that he had not been coerced, he was under duress and, thus, committed perjury.

¶ 12. “Counsel has ‘a duty to fairly, even if that means pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case.’ ” Robinson v. State, 964 So.2d 609, 612(¶ 8) (Miss.Ct.App.2007) (citation omitted). “If the attorney believes that it is in his client’s best interest to plead guilty, it is his duty to inform him of that fact.” Id. In Gardner v. State, 531 So.2d 805, 809-10 (Miss.1988), the supreme court held that despite the advice or instructions an attorney gives his client, if the trial court is thorough in its questioning and explanation to the defendant regarding his rights and the consequences of his plea, then such discussion is sufficient to render a plea voluntary.

¶ 13. During the plea colloquy, the following dialogue occurred between the trial judge and Jordan as to the voluntariness of his plea and his right to appeal:

■ Q. Has anyone promised you anything, offered you anything, tried to coerce you or threaten you into entering this plea?
A. No ma’am.
Q. Is this plea free and voluntary?
A. Yes, ma’am
Q. Mr. Jordan, this is very important. Do you understand that today is made final in this sense? If you enter your plea today and I accept your plea, you will have waived or given up your right to appeal this case?
A. Yes, ma’am.
Q. You understand that?
A. Yes, ma’am.

¶ 14. In addition, when the trial court asked Jordan whether he pled guilty or not guilty as to the felony offense of statutory rape of a victim under the age of 14 years as set forth in the indictment, Jordan responded in the following manner:

Q. It is alleged in the indictment that between the dates of 11th and 13th day of October, 2005, that you did willfully, unlawfully, feloniously have sexual intercourse with a child under the age of 16 years, to wit [Ann], having a date of birth of July 21st, 1992, and who was 36 or more months younger than the defendant, and not the spouse of the defendant and at the time of the offense that you, the defendant was 18 years of age or older, having a date of birth of August 22nd, 1972, in violation of Mississippi Code Annotated, Section 97-3-65(l)(a). Do you understand, sir?
A. Yes, ma’am.
Q. Do you understand that charge.
A. Yes, ma’am.
Q. Do you plead guilty or not guilty to statutory rape of a victim under the age of 14 years of age as set forth in the indictment I’ve read to you in CR06-058.
A. Guilty.

¶ 15. “The law is clear that, in instances where it is alleged that an attorney gave faulty advice or misinformation in the time preceding the plea hearing, the error is cured if the defendant unequivocally is given the correct information and indicates his understanding of it during the hearing itself.” Henderson v. State, 769 So.2d 210, 214(1112) (Miss.Ct.App.2000). Even if Jordan was misled by counsel, the trial court’s explanation that by entering a guilty plea Jordan forfeited his right to appeal was sufficient to negate any misinformation. Additionally, Jordan acknowledged that he understood that by entering a guilty plea he was admitting to the facts as read from the indictment. We find that Jordan’s guilty plea was entered voluntarily and knowingly. Therefore, this issue is without merit.

III. Existence of Evidence of Material Facts

¶ 16. Jordan contends that during hearings on the pretrial motions, evidence was revealed that would require the vacation of his guilty plea. Jordan asserts that because he was not given an opportunity to conduct interviews of new witnesses or investigate new leads that became available the day prior to trial, his guilty plea should be set aside. Jordan alleges that a cursory investigation produced multiple witnesses who confirmed that the victim had multiple sexual partners around the time of the alleged statutory rape.

¶ 17. Jordan’s initial defense was that the victim falsely accused him of having sexual intercourse with her and being the source of her alleged pregnancy. Later, Jordan stated affirmatively that he had engaged in sexual intercourse with the 'victim.

¶ 18. The new evidence, which Jordan alleged was material to his defense, was the testimony of two witnesses, who claimed to have had sexual intercourse with the victim, and affidavits from the victim’s schoolmates and friends which alleged the same. Any newly discovered material evidence must be sufficient to result in a different result or induce a different verdict. The new evidence does not negate Jordan’s acknowledgment of sexual intercourse with the victim.

¶ 19. This Court held in Majors v. State, 946 So.2d 369, 373-74(¶ 12) (Miss.Ct. App.2006) that:

Newly discovered evidence is relevant only in situations where a defendant goes to trial and is convicted. To succeed on a motion for a new trial based on newly discovered evidence, the petitioner must prove that new evidence has been discovered since the close of trial and that it could not have been discovered through due diligence before the trial began. Additionally, the petitioner must show that the newly discovered evidence will produce a different result or induce a different verdict, if a new trial is granted.

(Internal citations and quotations omitted). Jordan did not stand trial; instead, he pled guilty to statutory rape. Because Jordan pled guilty, the alleged newly discovered evidence in this case is irrelevant. Therefore, we find that this issue is without merit.

IV. Cumulative Error

¶ 20. Having found no merit to any of the specific errors alleged by Jordan, we find no cumulative error. Jones v. State, 956 So.2d 310, 315(1119) (Miss.Ct.App. 2006).

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

LEE AND MYERS, P JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . For purposes of confidentiality, we will call the child Ann.


author: ISHEE, J.,

text:
    Kevin DUFRENE, Appellant, v. Randall A. SLADE, Ken W. Slade and Rodney G. Slade, Appellees.
    No. 2008-CA-01875-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    William L. Ducker, Purvis, attorney for appellant.
    Jack Parsons, Benjamin H. Holland, Tadd Parsons, Wiggins, attorneys for ap-pellees.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Chancery Court of Pearl River County entered a judgment in favor of Randall A. Slade, Ken W. Slade, and Rodney G. Slade (collectively the Slades) on August 28, 2008. On October 14, 2008, the trial court heard Kevin Dufrene’s motion to set aside the judgment, and on November 4, 2008, the court entered a written order denying the motion. Feeling aggrieved, Dufrene has appealed the trial court’s order. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 22, 2007, the Slades filed a complaint for injunction and other equitable relief against Dufrene. Dufrene was properly served, and he makes no argument that there was any error or insufficiency in the service of the complaint. Due to Dufrene’s decision to proceed pro se, the Slades filed a motion for trial setting on March 17, 2008, and personally served the motion for trial setting on Du-frene on April 16, 2008.

¶ 3. On April 30, 2008, counsel for the Slades and Dufrene appeared at the hearing to set the trial date. Both parties agreed that the date of trial would be set for June 23, 2008. However, before an order was entered setting the date of trial for June 23, the trial court administrator informed counsel for the Slades that the date was no longer available for the trial judge. Shortly after gaining this knowledge, the Slades’ attorney wrote Dufrene and asked him if he would be agreeable to a trial date of August 19, 2008, commencing at 9:00 a.m. at the Pearl River County Courthouse in Poplarville, Mississippi. Enclosed in the letter was an agreed order of continuance setting the matter for trial on August 19, 2008. Dufrene makes no argument or dispute that he received, signed, and returned an agreed order of continuance setting the trial date for August 19, 2008.

¶ 4. After receiving the signed agreed order, counsel for the Slades executed the order, and forwarded it to the trial court clerk for filing. The order was filed on May 21, 2008.

¶ 5. On August 19, 2008, at the Pearl River County Courthouse, both parties were called on the docket, but Dufrene did not appear. In an effort to give Dufrene additional time to appear, the court moved on and finished all the other matters on the docket for that day. Dufrene never appeared before the court; accordingly, the case proceeded without him. After hearing all available testimony and reviewing all of the relevant exhibits, the trial court entered a judgment on August 28, 2008, in favor of the Slades, granting them certain relief.

¶ 6. On September 2, 2008, counsel for the Slades mailed a copy of the judgment to Dufrene. Three days later, on September 5, 2008, Dufrene filed a motion to set aside the judgment. Dufrene claimed that he was not present at the August 19, 2008, trial date “due to lack of notification of the court date.” On October 14, 2008, the trial court heard the motion to set aside judgment, and on November 4, 2008, the court entered its written order denying the motion.

DISCUSSION

¶ 7. Rule 40 of the Mississippi Rules of Civil Procedure governs the assignment of cases for trial. It “establishes an orderly but flexible method of scheduling cases for trial, while assuring that the parties receive appropriate notice at important stages of the process.” M.R.C.P. 40 cmt. Rule 40(b) of the Mississippi Rules of Civil Procedure is applicable here. Rule 40(b) provides, in pertinent part, as follows:

The court shall provide by written direction to the clerk when a trial docket will be set.... The clerk shall within three (3) days after a case has been placed on the trial docket notify all parties who were not present personally or by their attorney of record at the docket setting as to their trial setting. Notice shall be by personal delivery or by mailing of a notice within said three (3) day period. Matters in which a defendant is summoned to appear and defend at a time and place certain pursuant to Rule 81 or in which a date, time and place for trial have been previously set shall not be governed by this rule.

M.R.C.P. 40(b) (emphasis added). The comment to Rule 40 points out that “[p]arties who are present at the setting receive notice of the date and time of trial at that time.” M.R.C.P. 40 cmt.

¶ 8. Perhaps more importantly, Rule 40(c) allows parties to agree to the date of trial. It states that “[p]arties, including those who are in a representative or fiduciary capacity, may waive any waiting period imposed by these rules or statute and agree to a time and place for trial.” M.R.C.P. 40(c). The comment makes clear that the parties are not bound to follow the formalities of Rule 40(a) and (b), but may agree upon a trial date. M.R.C.P. 40 cmt.

¶ 9. Since Dufrene admittedly signed the agreed order setting the trial for August 19, 2008, he had sufficient notice of his trial. Dufrene’s presence at the hearing for setting the trial date was sufficient notice to satisfy Rule 40(b), and his agreement to reschedule the trial date was explicitly allowed under Rule 40(c). Although Du-frene argues that he should have received confirmation of the trial date from the Slades, there was no obligation for them to do so, and Dufrene never sought any such confirmation. After agreeing to the trial date, Dufrene received no notice of any further continuances; therefore, no further notice was necessary. Accordingly, we find that this issue is without merit.

¶ 10. Dufrene argues in his brief that he has been overreached, but he provides no evidence to support this argument. Dufrene provides no evidence that the trial court awarded relief to the Slades based solely on the fact that he was not present on the day of trial. Testimony and other documentary evidence were received and admitted into evidence. After having heard all the available testimony and reviewed the relevant exhibits, the trial court entered a judgment in favor of the Slades.

¶ 11. Dufrene failed to appear on the trial date after receiving proper notice, and he fails to show that he has been overreached; thus, we find that these issues are without merit. Because of the reasons stated above, the judgment in favor of the Slades is affirmed.

¶ 12. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: CARLTON, J.,

text:
    Mary (Smith) HOSKINS, Appellant, v. Ronald HOSKINS, Appellee.
    No. 2008-CA-01369-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.

      Darrin Jay Westfaul, attorney for appellant.
    John Stannard Farese, Ashland, attorney for appellee.
    Before KING, C.J., IRVING, and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Mary Hoskins filed a petition for divorce in the Panola County Chancery Court against her husband, Ronald Hos-kins, on the grounds of habitual cruel and inhuman treatment and desertion. The chancellor dismissed Mary’s divorce action for failing to meet the burden of proof. Mary appealed the chancellor’s decision. Finding no error, we affirm the judgment of the chancery court.

FACTS

¶ 2. Mary and Ronald married in Panola County on August 4, 1979. The couple separated on December 29, 2004, when Mary left the marital home. According to Mary, she left because Ronald told her that he hated and despised her, threatened to kill her, and demanded that she leave the marital home. Mary testified that Ronald had moved out of the couple’s bedroom and into a spare bedroom months before the separation.

¶ 3. Upon leaving the marital home, Mary resided with her sisters, Martha Bland and Jackie Smith. She later moved into an apartment in Batesville, Mississippi. Ronald and Mary remained separated, and Mary filed her petition for divorce on April 30, 2007. After a day of trial on June 30, 2008, the chancellor dismissed Mary’s divorce petition, after a motion from Ronald, finding that Mary failed to prove that the marriage ended because of Ronald’s cruel and inhuman treatment of her or that Ronald had deserted Mary.

¶4. On appeal, Mary argues that the chancellor erred in his application of the law regarding corroboration of cruel and inhuman treatment and “constructive desertion” as well as in his evaluation of the facts in evidence.

STANDARD OF REVIEW

¶ 5. This Court will not disturb a chancellor’s denial of a divorce unless we determine that the chancery court was “manifestly wrong as to law or fact” or abused its discretion. Dorman v. Dorman, 737 So.2d 426, 429(¶ 6) (Miss.Ct.App.1999). We review questions of law de novo. Ku-mar v. Kumar, 976 So.2d 957, 961(¶ 13) (Miss.Ct.App.2008).

DISCUSSION

I. Whether the chancellor erred in denying Mary a divorce on the grounds of habitual cruel and inhuman treatment.

¶6. Mississippi Code Annotated section 93-5-1 (Supp.2008) provides the grounds for obtaining a divorce in Mississippi and includes the ground of habitual cruel and inhuman treatment. The party seeking a divorce on the ground of habitual cruel and inhuman treatment bears the burden of proving her ground by a preponderance of the evidence. Shavers v. Shavers, 982 So.2d 397, 403(¶35) (Miss.2008). This Court has defined habitual cruel and inhuman treatment as follows:

Conduct that evinces habitual cruel and inhuman treatment must be such that it either (1) “endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief’[;] or (2) “is so unnatural and infamous” as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Kumar, 976 So.2d at 961 at (¶ 15) (citing Mitchell v. Mitchell, 767 So.2d 1037, 1041 (¶ 14) (Miss.Ct.App.2000)).

¶ 7. The complaining spouse’s testimony alone is inadequate to establish habitual cruel and inhuman treatment to obtain a divorce. The supreme court has held that a divorce on the ground of habitual cruel and inhuman treatment “will not be granted on the uncorroborated testimony of the complainant.” Anderson v. Anderson, 190 Miss. 508, 512, 200 So. 726, 727 (1941). The testimony presented to support the claim of habitual cruel and inhuman treatment should be sufficient to convince a “prudently cautious mind” that the plaintiffs allegations are true and not exaggerations for the purpose of obtaining a divorce. Id. at 513, 200 So. at 728. Both this Court and the supreme court have upheld cases in which the chancellor denied a divorce for lack of corroborating evidence. See Hassett v. Hassett, 690 So.2d 1140, 1146 (Miss.1997); Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994); Gardner v. Gardner, 618 So.2d 108, 114 (Miss.1993).

¶ 8. In some cases, however, the plaintiff may not need to provide corroborating evidence. The supreme court in Anderson noted an exception to the general rule requiring corroboration “in a case where, in its nature or owing to the isolation of the parties, no corroborating proof is reasonably possible.” Cochran v. Cochran, 912 So.2d 1086, 1089(¶12) (Miss.Ct.App. 2005) (quoting Anderson, 190 Miss, at 512, 200 So. at 727).

¶ 9. To support her allegations of habitual cruel and inhuman treatment, Mary testified that she left the marital home after Ronald told her that he hated and despised her and demanded that she leave the home. Mary testified that Ronald “touched me to my nose, and he said to me ... I’m going to kill you. No one else can live in this house-if I can’t live here, no one else can live here. And he said that he would burn the house down, me in it.” Mary further testified that Ronald regularly made accusations that she committed adultery. Mary testified that Ronald once threatened to rape her.

¶ 10. Mary also testified that Ronald exhibited controlling behavior toward her. Ronald put a note on the thermostat of their home prohibiting anyone from turning on the heater or air conditioner in the home. He treated her family differently than his family when they visited in the marital home. Ronald talked down to Mary and belittled her. Further, Mary claims that Ronald controlled the family finances, including her income, forcing her to purchase clothing for her minor children on credit cards. Further, Mary claimed that Ronald expected her to “submit herself as a wife.”

¶ 11. Additionally, Mary testified that she experienced health problems while living with Ronald that subsided after the couple’s separation. She testified that she had trouble sleeping, nervousness, and high blood pressure, for which she sought medical treatment. Since the separation, Mary testified, her symptoms have greatly improved.

¶ 12. Without addressing the issue of whether Ronald’s conduct rose to the level of habitual cruel and inhuman treatment, the chancellor dismissed Mary’s complaint. He found that Mary failed to meet her burden of proof because her allegations were uncorroborated. Mary argues that the chancellor “misunderstood the law relative to ‘corroborating testimony.’ ” She contends that the chancellor mistook Uniform Chancery Court Rule 8.03 “to be the decisive law relative to corroborating testimony in a divorce action when such a rule does not adequately state the current status of the law.” Additionally, Mary argues that she provided adequate corroboration for her claims that she suffered habitual cruel and inhuman treatment during her marriage to Ronald.

¶ 13. The chancellor made no indication in his bench ruling that he relied on Rule 8.03. The chancellor made no reference to specific case law or to the Uniform Chancery Court Rules. The chancellor stated that the evidence Mary presented to support her divorce petition “would not be sufficient corroboration to get [Mary] ground[ ] of habitual cruel and. inhumane [sic] treatment, and [if] it goes to the Supreme Court, they’d reverse it, just like that. For that reason, I’m sustaining the motion to dismiss.”

¶ 14. The chancellor applied the appropriate legal standard in denying Mary a divorce on ground of habitual cruel and inhuman treatment. As discussed above, the law requires that Mary’s testimony be corroborated in order to satisfy her burden of proof. Anderson, 190 Miss, at 512, 200 So. at 727. Mary contends that Ronald made threats to her in private; thus, no corroborating proof existed. Therefore, she argues that providing corroboration for her testimony was not reasonably possible. See id. However, while Mary alleges that Ronald threatened her in private, she does not address the lack of corroboration for her other claims. Further, Mary and Ronald did not live in isolation. Mary worked outside the home and visited family members throughout the marriage. Ronald and Mary shared their home with their two adult children and a grandchild who was in Mary’s custody. Neither of the couple’s children, who should have known of Ronald’s cruel and inhuman treatment of Mary, testified at the trial. Their children would have witnessed Ronald’s controlling behavior and the negative impact Mary claims Ronald’s behavior caused on her health. See Cochran, 912 So.2d at 1089 (¶¶ 14-15) (holding that wife must provide corroboration for her allegations of cruel and inhuman treatment despite her claim that the parties were isolated).

¶ 15. Ronald admitted at trial that he had told Mary she needed to submit herself as a wife because “she didn’t cook for me, she didn’t wash my clothes, she didn’t iron my clothes ... and I gave her everything her heart desired. God knows that I love her.” Ronald also admitted asking Mary whether she had engaged in affairs. The remainder of Ronald’s testimony related to Mary’s claim of constructive desertion and property matters.

¶ 16. To corroborate her claims, Mary called her sister, Martha Bland, to testify. Most of Martha’s testimony consisted of hearsay, to which Ronald objected. Martha testified regarding her first-hand knowledge of Ronald and Mary’s relationship, but she failed to provide corroboration of Mary’s claims that Ronald treated Mary cruelly. She testified that Ronald “was pretty demanding over [Mary] in situations. I can remember just a simple card game, you know, the way that he would talk to her. If she made a mistake in just a card game, that’s stupid, you’re so silly. You know, things like that.” Martha testified that she visited in the couple’s home often when they first married, but she visited less often after a while because Ronald teased Martha about her weight. She testified that he asked visitors to remove their shoes in the home, and she felt like Ronald just did not want company.

¶ 17. Additionally, Martha testified that Mary seldom attended family functions. When she did attend, Martha testified that she seemed rushed and ready to return home. Martha testified that Mary acted “jittery, nervous or whatever if she was around us for a certain period of time.” Martha testified that Mary’s demeanor changed after her separation from Ronald. Martha testified that the night Mary left the marital home, she was “nervous and upset,” but her demeanor changed “after the separation, after a few weeks, few months, or whatever.” Further, Martha testified regarding Mary’s condition prior to the separation from Ronald, stating: “At one point, she was always going to the doctor, something was always wrong it seemed like. It seems like after the separation, it seemed like things, physically, she just changed.” Martha could not, through first-hand knowledge, explain the cause of Mary’s ailments. See Chamblee, 687 So.2d at 860 (holding that wife’s claims of abuse were uncorroborated when neighbor saw bruises on wife’s arm but possessed no knowledge of their origin).

¶ 18. Though Mary claimed she sought medical attention during the marriage for conditions that improved after she and Ronald separated, she presented no medical evidence. Though Martha testified that Mary “was always going to the doctor,” Mary offered no medical records or testimony from her physicians regarding her conditions.

¶ 19. Despite Mary’s contention that she provided adequate corroboration for her claims, the chancellor found that she failed to meet her burden of proof. The chancellor acts as the trier of fact and evaluates the credibility of the witnesses and the weight of their testimonies. Id. (quoting Polk v. Polk, 559 So.2d 1048, 1049 (Miss.1990)). The chancellor applied the correct legal standard by requiring Mary to corroborate her testimony. Therefore, this issue is without merit.

II. Whether the chancellor erred in failing to grant Mary a divorce on the ground of desertion.

f 20. In addition to her allegations of habitual cruel and inhuman treatment, Mary alleged that Ronald deserted the marriage for the space of one year. Mary relied on the doctrine of constructive desertion, alleging that Ronald’s behavior drove her away from the marital home. The Mississippi Supreme Court has defined constructive desertion as follows:

If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health or safety, is compelled to leave the home and seek safety, peace and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will be not guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.

Grant v. Grant, 765 So.2d 1263, 1267(¶ 10) (Miss.2000) (quoting Day v. Day, 501 So.2d 353, 356 (Miss.1987)). Chancellors should grant a divorce on the ground of constructive desertion only in extreme cases. Deen v. Deen, 856 So.2d 736, 738(¶ 11) (Miss.Ct.App.2003) (citing Griffin v. Griffin, 207 Miss. 500, 505, 42 So.2d 720, 722 (1949)).

¶ 21. Mary’s allegations under the constructive-desertion theory are essentially the same as her allegations that Ronald’s behavior constituted habitual cruel and inhuman treatment. She claims that: Ronald demanded that she leave the marital home; he exhibited controlling behavior toward her; he talked down to her and belittled her; and his behavior caused her to experience health problems. This Court has explained the distinction between habitual cruel and inhuman treatment and constructive desertion as follows:

As noted by one commentator, “the line between the heretofore seldom used ground of constructive desertion and the ground of habitual cruel and inhuman treatment [is] blurred” with the only distinction being that in the former, the non-complaining party is compelled to leave and the objectionable conduct continues for one year.

Shorter v. Shorter, 740 So.2d 352, 358(¶ 29) (Miss.Ct.App.1999) (quoting Shelton Hand, Jr., Mississippi Divorce, Alimony and Child Custody, § 4, n. 71 (4th ed.1996)).

¶22. The chancellor found that Mary failed to corroborate her claim of cruel and inhuman treatment. Thus, it follows, she failed to corroborate her claim of constructive desertion. Furthermore, the chancellor found that Mary made no attempts to reconcile with Ronald, though Ronald testified that he had asked Mary to come home. Mary argued at trial that Ronald had changed the locks to their home. However, upon further questioning, Mary admitted that she first tried to re-enter the marital home the day of the trial, and her key would not unlock the main entrance to the home.

¶ 23. Mary’s uncorroborated testimony was insufficient to convince the chancellor that Ronald’s conduct made the marriage “unendurable, or dangerous to life, health or safety.” Grant, 765 So.2d at 1267(¶ 10). Thus, the chancellor did not err in dismissing Mary’s divorce complaint. This issue is without merit.

¶ 24. THE JUDGMENT OF THE PA-NOLA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.

      . Miss.Code Ann. § 93-5-1.


author: SHAW, Justice.

text:
    AFFINITY HOSPITAL, L.L.C., d/b/a Trinity Medical Center, and David Brittin, R.N. v. Doris WILLIFORD, as administrator ad litem of the estate of Kristopher Mark Kean, deceased.
    1071405.
    Supreme Court of Alabama.
    April 17, 2009.
    S. Greg Burge of Burr & Forman, LLP, Birmingham, for appellants.
    Stephen D. Heninger of Heninger Garrison Davis, LLC, Birmingham, for appellee.
   SHAW, Justice.

This Court granted Affinity Hospital, L.L.C., d/b/a Trinity Medical Center, and David Brittin, R.N., defendants in the underlying wrongful-death action, permission to appeal from the trial court’s denial of their motion for a summary judgment on the claims of the plaintiff, Doris Williford, as administrator ad litem of the estate of Kristopher Mark Kean, deceased. See Rule 5, Ala. R.App. P. We affirm.

Facts and Procedural History

On February 25, 2006, Kristopher Mark Kean, who was experiencing suicidal thoughts, sought treatment at the emergency department of Baptist Medical Center-Montclair, now known as Trinity Medical Center. Kean was initially interviewed by Brittin, a registered nurse, and then asked to sit in a waiting area. Kean was later found dead in a restroom; he had hung himself with a belt.

In February 2007, Kean’s mother, Mary Jane Whitman, petitioned the Jefferson County Probate Court to appoint the county administrator, Doris Williford, as administrator ad litem of Kean’s estate. Whitman alleged in the petition that at the time of his death Kean was unmarried and had no children, and that he had died intestate. Whitman further alleged that Kean had died under “unusual circumstances,” that his death required “further investigation,” and that Whitman desired to obtain medical records held by Trinity Medical Center “in order to determine whether there [were] grounds to assert a wrongful death claim on behalf of the estate of the decedent.” The probate court granted the petition and appointed Willi-ford as administrator ad litem of Kean’s estate.

On July 23, 2007, Williford filed a wrongful-death action under Ala.Code 1975, § 6-5-410, in the Jefferson Circuit Court against Affinity Hospital, L.L.C., d/b/a Trinity Medical Center, and Brittin (hereinafter referred to collectively as “Trinity”). Trinity answered the complaint and later filed a motion for a summary judgment contending, among other things, that Williford, acting as an administrator ad litem of Kean’s estate and not as a “general administrator” appointed pursuant to Ala.Code 1975, § 43-2-42, lacked the authority to file the wrongful-death action.

On April 15, 2008, Williford filed in the probate court a “Report of the Administrator ad Litem.” The report recited that Williford had received the medical records regarding Kean’s death, that “there were grounds to assert a wrongful death claim on behalf of the Estate,” and that Williford had filed such an action. Williford further petitioned “that she be appointed Administrator of the estate of Kristopher Mark Kean, deceased, so that the wrongful death claim may be pursued on behalf of the estate.” The probate court granted letters of administration to Williford that day.

On April 16, 2008, Williford amended the complaint seeking to substitute the named plaintiff — Williford, as administrator ad li-tem — with “Doris Williford, General County Administrator as the Personal Representative and Administrator of the Estate of Kristopher Mark Kean,” i.e., to change the capacity in which she sued. The amendment to the complaint stated: “The purpose of this amendment is simply to substitute Doris Williford, General County Administrator as the Personal Representative and Administrator of the Estate of Kristopher Mark Kean, deceased, to maintain, continue and ratify the suit brought herein on behalf of the Estate.”

Trinity filed a motion to dismiss the amended complaint, maintaining that the amendment was untimely. Specifically, Trinity contended that because Williford had filed the wrongful-death action in her capacity as administrator ad litem and not as a “general administrator,” the wrongful-death action was a nullity. Further, Trinity maintained that the amendment naming Williford as a “general administrator” was untimely because it was not filed within two years of Kean’s death as required by Ala.Code 1975, § 6-5-410(d), and could not relate back to the original filing of the complaint. The trial court denied Trinity’s motion to dismiss and also denied its previously filed motion for a summary judgment. However, the trial court, pursuant to Rule 5, Ala. R.App. P., certified the following as controlling questions of law and stated that an immediate appeal from its order denying the summary judgment would materially advance the ultimate termination of the litigation:

“1. Did the administrator ad litem have the capacity to file this wrongful death suit in the first instance?
“2. Has the two year statute of limitations [] for wrongful death expired at the time of the amendment, thereby barring the amendment?”

(Capitalization in the original omitted.)

We granted the petition for permission to appeal, and we now affirm the trial court’s denial of the motion for a summary judgment.

Standard of Review

Because this case involves only issues of law and no material disputed facts, our review is de novo. Padgett v. Conecuh County Comm’n, 901 So.2d 678, 685 (Ala.2004). See also Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004) (“Questions of law are reviewed de novo.”); BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310, 312 (Ala.2004) (“This Court reviews de novo a trial court’s conclusions of law.”).

Discussion

On appeal, Trinity argues that Williford, as an administrator ad litem, did not possess the capacity or authority to file a wrongful-death action on behalf of Kean’s estate, which must be filed by the “personal representative” of the decedent. Ala. Code 1975, § 6-5-410. Further, Trinity contends that the later substitution of Williford as the “general administrator” of the estate, who, according to Trinity, would actually possess the capacity and authority to file the wrongful-death action, occurred after the two-year period for filing a wrongful-death action under § 6-5-410(d) had expired and did not relate back to the date of the initial filing. See Downtoum Nursing Home, Inc. v. Pool, 375 So.2d 465, 466 (Ala.1979) (holding that one who is not an administrator or executor of the estate of the deceased may not maintain an action for wrongful death under § 6-5-410; an action filed by an improper party was a nullity and the relation-back doctrine did not apply to an attempt to amend the complaint and add a proper administrator after the two-year period for filing a wrongful-death action had expired). See also Brown v. Mounger, 541 So.2d 463 (Ala.1989) (holding that because the purported personal representatives did not receive letters of administration within two years of the decedent’s death, they were prohibited from bringing a wrongful-death action). Therefore, Trinity concludes, Wil-liford’s action against it should be dismissed because it was not filed by the proper party originally and it is now too late to substitute the proper party.

I.

Alabama’s wrongful-death statute, Ala. Code 1975, § 6-5-410, states, in pertinent part:

“(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.”

Ala.Code 1975, § 6-5-410(a) (emphasis added). The term “personal representative” is not defined in § 6-5-410. Case-law, however, has interpreted the phrase to include “executors and administrators”:

“Section 6-5-410 provides that the personal representative of the deceased may bring a wrongful death action. A ‘personal representative,’ for the purposes of § 6-5-410, is an executor or an administrator.... One who sues under this section without having been appointed executor or administrator does not qualify under this section as a personal representative, and the suit is a nullity.”

Waters v. Hipp, 600 So.2d 981, 982 (Ala.1992). See also Hatas v. Partin, 278 Ala. 65, 67, 175 So.2d 759, 761 (1965) (“The words ‘personal representative’ are broader in some respects, but when used in [the predecessor statute to § 6-5-410], they can only mean the executor or administrator of the injured testator or intestate.”). Further, both parties note that, as defined in the Probate Code, the term “personal representative” “[ijncludes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.” Ala.Code 1975, § 43-8-1(24).

The function and role of a “personal representative” in a wrongful-death action is well settled:

“In the context of a wrongful-death action, the sole role of a personal representative, such as an administrator or an executor, ‘ “is to maintain the suit, and collect the damages and pay them over to the distributees” ’; in other words, an administrator is ‘“a mere agency and conduit, provided by the [wrongful-death] statute for bringing the suit, collecting the damages, and passing them over to those entitled thereto.” ’ Hatas v. Partin, 278 Ala. 65, 68, 175 So.2d 759, 761 (1965) (quoting Kennedy v. Davis, 171 Ala. 609, 612, 55 So. 104, 105 (1911)). For this reason, the personal representative may properly be said to be ‘only [a] nominal or formal party.’ Board of Trustees of Univ. of Alabama v. Havrell, 43 AlaApp. 258, 261, 188 So.2d 555, 557 (1965). Indeed, it has been said that when a personal representative brings a wrongful-death action, he ‘does not act strictly in his capacity as administrator of the estate of his decedent’ because the administrator ‘is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent.’ Hatas, 278 Ala. at 68,175 So.2d at 761.”

Scroggins v. Johnson, 907 So.2d 1059, 1064 (Ala.Civ.App.2004). Further, in the context of a wrongful-death action, a “personal representative” acts “as agent by legislative appointment for the effectuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages.” Steele v. Steele, 623 So.2d 1140, 1141 (Ala.1993). See also Bonner v. Williams, 370 F.2d 301, 303-04 (5th Cir.1966) (“The rights and duties of the personal representative [in an action under § 6-5-410] are limited, however, to maintenance of the suit, collection of the damages, and distribution of the proceeds to the statutory distributees.”).

The role of an administrator ad litem is governed by Ala.Code 1975, § 43-2-250:

“When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein.”

Before the enactment of this statute, “an administrator ad litem was unknown to our law and the appointment of such an administrator was void.” Ex parte Riley, 247 Ala. 242, 250, 23 So.2d 592, 599 (1945). Generally, an administrator ad litem is a fiduciary charged with acting in the best interests of the successors to an estate. An administrator and an administrator ad litem serve in different fiduciary capacities and are separate and distinct parties. The appointment of an administrator ad litem may precede the appointment of an administrator, and the two may subsist together. The administrator ad litem is appointed for a special and limited purpose and is solely responsible to the estate for that portion of its affairs entrusted to him or her by the court. See 31 Am.Jur.2d Executors and Administrators § 1050 (2002).

There are several reported cases in which it appears that an administrator ad litem, without challenge, has filed a wrongful-death action. See, e.g., Ex parte Sumter County, 953 So.2d 1235 (Ala.2006); Franks v. Norfolk S. Ry., 679 So.2d 214 (Ala.1996); Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala.1991); and Handley v. Richards, 518 So.2d 682, 683 (Ala.1987) (Maddox, J., concurring specially). In Franks, Steve Franks was appointed by the probate court as the administrator ad litem of the estate of Georgia Delaine Franks “for the purpose of filing a wrongful death action” in connection with Georgia’s death in an automobile accident. 679 So.2d at 215. The defendants, Norfolk Southern Railway and certain of its employees, argued that- Steve Franks had not been properly appointed as the administrator ad litem, that he was not the proper party to have brought the wrongful-death action, and that the action was a nullity and should be dismissed. The trial court agreed and dismissed the case, holding “that the appointment of Steve Franks as administrator was void and that the action was a nullity because (1) the action had not been brought by the proper party, (2) there was no relation back, and (3) the statutory limitations period had run.” 679 So.2d at 216.

On appeal, Steve Franks argued that the trial court did not have jurisdiction to consider a collateral attack on his appointment as administrator ad litem and “that his appointment as administrator ad litem was proper and, therefore, authorized him to bring the wrongful death action.” 679 So.2d at 216. We noted that while another party had been appointed as the “administrator” of Georgia’s estate and had the authority to file a wrongful-death claim, “Steve Franks was appointed administrator ad litem for the purpose of bringing a wrongful death action.” 679 So.2d at 216. The defendants, however, challenged whether the probate court, rather than the circuit court, had the power to appoint an administrator ad litem. We stated:

“The language of § 43-2-250 indicates that the legislature intended that any court, including the probate court, has the authority to appoint an administrator ad litem if the facts requiring one are established. Although the legislature has expressly granted exclusive jurisdiction to the circuit court in some specific areas, § 43-2-250 does not indicate that circuit courts are to have exclusive jurisdiction over the appointment of an administrator ad litem for the purpose of allowing a wrongful death case.”

679 So.2d at 218. Although Franks involved a challenge to whether an administrator ad litem was a proper party in a wrongful-death action, the decision presumed that — and did not explicitly analyze whether — the administrator ad litem was a “personal representative” for purposes of the wrongful-death statute. However, Justice Houston addressed the issue in a special writing:

“An administrator ad litem can be appointed when ‘there is no executor or administrator of [the] estate, or [the executor or administrator] is interested adversely thereto.’ Ala.Code 1975, § 43-2-250. Even though there was an administrator when Steve Franks was appointed, Steve Franks could have established that the existing administrator was not interested in purs[u]ing a wrongful death action against Norfolk Southern Railway Company. I agree with the majority that Norfolk Southern should not be permitted to attack Franks’s appointment collaterally.
“Therefore, for purposes of this special writing, I assume that Steve Franks is administrator ad litem of the estate of Georgia Delaine Franks, deceased, for the purpose of bringing a wrongful death action. Is he a proper party? Franks’s action is brought under Ala. Code 1975, § 6-5-410, which provides, in pertinent part: ‘A personal representative may commence an action ... for the wrongful act, omission, or negligence of any person, persons, or corporation ... whereby the death of his testator or intestate was caused.’ Is an administrator ad litem a personal representative?
“The defendant predicates a great deal of its argument on the nature of the Alabama wrongful death action.... Suffice it to say that, in my opinion, an administrator ad litem is a personal representative. A ‘representative’ is ‘[a] person ... that in some way corresponds to, stands for, replaces, or is equivalent to, another person.’ Black’s Law Dictionary 1302 (6th ed. 1991). The adjective ‘personal’ is defined as ‘Appertaining to the person; belonging to an individual; limited to the person.’ Black’s Law Dictionary 1143 (6th ed. 1991). Steve Franks stands for and replaces the deceased Georgia Franks in this action; clearly, he is a personal representative.”

Franks, 679 So.2d at 218-19 (Houston, J., concurring) (third alteration added; other alterations in original).

No authority has been cited indicating that an administrator ad litem lacks the powers of a “personal representative” for purposes of prosecuting a wrongful-death action. Further, nothing in the plain language of § 43-2-250 forbids an administrator ad litem from taking such action; instead, that section explicitly provides for the appointment of an administrator ad litem when there is no executor or administrator for a particular proceeding and one is needed — necessarily implying that the administrator ad litem has the same powers as an executor or administrator in connection with that proceeding, subject to any limitations provided by the appointing court.

Although Trinity correctly notes that an administrator appointed pursuant to Ala. Code 1975, § 43-2^42, has greater powers and duties than an administrator ad litem, nothing before us indicates that an administrator ad litem cannot perform the duties of a “personal representative” in a wrongful-death action, which, as noted above, are more narrow than the duties of an administrator or executor. Further, Trinity expresses concern that an administrator ad litem is not required to post a bond; however, the lack of a posted bond is immaterial in this case, because the probate court “deemed sufficient” Williford’s “General County bond.”

Finally, it would appear that the role of an administrator ad litem appointed pursuant to § 43-2-250 corresponds with “persons who perform substantially the same function” as “executors, administrators, successor personal representatives, and special administrators” found in the definition of “personal representative” in the Probate Code. Ala.Code 1975, § 43-8-1(24).

Upon her appointment as administrator ad litem, Williford assumed the limited role of a court-appointed advocate for the interests of Kean’s estate, and, as a fiduciary, she was answerable to the probate court for her handling of the affairs entrusted to her. Therefore, we conclude that Williford, acting in her capacity as an administrator ad litem, was a “personal representative” within the meaning of Ala. Code 1975, § 6-5-410, and was, therefore, vested with the authority conferred by that section to file a wrongful-death action.

II.

Trinity also argues that the probate court’s order appointing Williford as administrator ad litem did not grant Willi-ford the power to file this particular action. Whitman’s petition to appoint an administrator ad litem requested that an administrator ad litem be appointed “solely” to gather information to determine whether there were sufficient grounds for filing a wrongful-death action. The probate court’s order granting the petition stated:

“This matter came on to be heard on Petitioner’s Petition for Appointment of Administrator ad Litem .... The Court having considered same, it hereby renders the following Decree:
“That the Petition is hereby granted, and DORIS WILLIFORD is appointed as Administrator ad Litem of the Estate of Kristopher Mark [Kean], deceased. Further, said Doris Williford, in her capacity, is further appointed for the special purpose of obtaining medical information, records, and videotapes and to investigate a potential wrongful death action on behalf of the decedent’s estate.

Trinity argues that Whitman’s petition requested that Williford be appointed “solely” for the purpose of gathering information to determine if a wrongful-death claim existed and that her appointment was thus for that specific purpose. Therefore, Trinity concludes, Williford was not granted the actual power to file a wrongful-death action on behalf of Kean’s estate. Because Williford did not have the power to file the action, Trinity argues, the action is a nullity. According to Trinity, the appearance of a “general administrator” did not occur until the two-year period of § 6-5-410(d) had expired; therefore, Trinity contends, the amendment purporting to change Williford’s capacity did not relate back to the original filing, which it says was a nullity, and the case must be dismissed.

First, Trinity cites no authority indicating that the actions of an administrator ad litem that extend beyond the scope of his or her powers are void and not merely voidable. See Ellis v. Hilbum, 688 So.2d 236 (Ala.1997) (holding that an amendment to a complaint attempting to name a proper personal representative related back to the filing of the original complaint because the acts of the prior, improperly appointed personal representative were not void, but merely voidable).

In any event, contrary to Trinity’s argument, the probate court’s order appointing Williford administrator ad litem, albeit not a model of clarity, did not explicitly limit Williford’s powers only to investigating whether a wrongful-death action was viable. Contrary to the interpretation of the probate court’s order Trinity urges, we do not read the probate court’s requirement that Williford investigate the viability of a wrongful-death action as a restriction on her duties. Instead, the order is an appointment of Williford as administrator ad litem pursuant to § 43-2-250, which necessarily grants Williford the power and authority to represent the estate in a “proceeding” when the interests of the estate require representation (here, a wrongful-death action, as Whitman’s petition alludes). The probate court’s order also “further appoint[s]” Williford for “the special purpose” of investigating the wrongful-death action. This language does not limit Williford to simply investigating the viability of an action, as Trinity contends; instead, it logically purports to extend her duties beyond simply participating in an action by also requiring her to investigate the viability of such an action.

Conclusion

Williford, as the administrator ad litem, had the capacity to file the wrongful-death action in this case. The trial court’s denial of Trinity’s summary-judgment motion is affirmed. Because of our holding on the trial court’s first question, there is no need to address the trial court’s second question — whether the amendment purporting to add Williford as the administrator was filed within the two-year period for filing wrongful-death actions.

AFFIRMED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . Although termed as a "statute of limitations" by the trial court, the limitations period of Ala.Code 1975, § 6-5-410(d), for a wrongful-death action is actually treated as a substantive limitation on the action: "This two year period is part of the substantive cause of action and is not to be treated as a statute of limitations. The two year period is not a limitation against the remedy only because after two years the remedy expires." Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465, 466 (Ala.1979). See also Ex parte FMC Corp., 599 So.2d 592, 594 (Ala.1992) ("It is well settled that the time limitation set out in § 6-5-410(d) is part of the substantive cause of action .... The two-year period is not a limitation against the remedy only, because after two years the cause of action expires.”).

      . Downtown Nursing Home, supra, and Waters each involved a situation in which a wrongful-death action was filed by someone other than a duly appointed representative of an estate. The issue in Hatas was whether a “special administratrix” appointed in a foreign state could file a wrongful-death action without first qualifying as an administrator in this state. None of these cases discusses the specific issue before this Court in the instant appeal: Whether an administrator ad litem is included within the definition of “personal representative” for purposes of filing a wrongful-death action.

      . Three factors must generally exist in order for an administrator ad litem to be appointed:
      “(1) The estate of the deceased person 'must be represented,' which means that the interests of the estate require representation. (2) ‘There is no executor or administrator of such estate, or he is interested adversely thereto.' (3) 'The facts rendering such appointment necessary shall appear in the record of such case, or shall be made known to the court by the affidavit of any person interested therein.' "

        Riley, 247 Ala. at 250, 23 So.2d at 599. See also Loving v. Wilson, 494 So.2d 68, 70 (Ala. 1986) (“Requiring the appointment of an administrator ad litem for the estate of a deceased cotenant indicates that 'the interests of the estate require representation.' " (quoting Riley)).

      . Trinity also contends that an administrator ad litem can be appointed only in connection with an existing proceeding. Whether a proceeding must be pending or existing before an administrator ad litem can be appointed does not touch upon the issue presented in this case: Whether an administrator ad litem has the power, capacity, or authority to file a wrongful-death action under § 6-5-410. Instead, Trinity's argument challenges whether Williford was properly appointed in the first place.
      However, for purposes of the question, certified on this permissive appeal, the circuit court assumed that Williford was properly appointed as an administrator ad litem. Specifically, the circuit court’s order certifying the question was based on the premise that Williford "was duly appointed under Ala.Code [1975,] § 42-2-250 by the Jefferson County Probate Court as Administrator Ad Litem,” and the question it certified asks if "the administrator ad litem” had "the capacity to file this wrongful death suit .... ” Trinity's issue is thus outside the scope of the questions certified in this case.


text:
    Marvin Roland GRAVES v. Mary GOLTHY, administratrix of the estate of Freddie Golthy, Jr., deceased.
    1070422.
    Supreme Court of Alabama.
    April 17, 2009.
    Marvin Roland Graves, pro se.
    Deborah A. Mattison and Susan Donahue of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appellee.
   SHAW, Justice.

Marvin Roland Graves, the defendant below, appeals from a summary judgment awarding the plaintiff, Mary Golthy, as administratrix of the estate of Freddie Golthy, Jr., deceased, $1,375,000 in punitive damages in this wrongful-death action. Because Graves’s notice of appeal was not filed within 42 days of the entry of the judgment, this appeal is untimely and must be dismissed.

Facts and Procedural History

In light of our disposition of this appeal, a detailed statement of the facts giving rise to this action is not necessary. Gol-th/s claim arose out of the fatal shooting of her husband, Freddie Golthy, Jr., by Graves. Golthy, as administratrix of Freddie’s estate, brought a wrongful-death action against Graves seeking damages for Freddie’s death. Golthy ultimately filed a motion for a summary judgment in the wrongful-death action, and the trial court conducted a hearing on that motion on August 9, 2005. Graves appeared at the hearing and presented testimony. Thereafter, following the filing of supplemental supporting documents by Golthy, a notification of the failure of settlement efforts, and a substantial lapse of time, the trial court, on March 1, 2007, issued an order entering a partial summary judgment for Golthy as to liability, but it made no determination with respect to damages.

On March 21, 2007, Graves filed what he styled as a “Motion of Objection Relief from Judgment and Order Stay of Proceeding.” In that motion Graves cited Rule 62(b), Ala. R. Civ. P. (dealing with the stay of execution of, or any proceedings to enforce, a judgment pending the disposition of certain postjudgment motions), and Rule 56(d), Ala. R. Civ. P. Although Golthy filed a response opposing Graves’s motion, there is no indication in the record that the trial court ever ruled on Graves’s motion.

The trial court held a hearing on the damages to be awarded Golthy and on July 27, 2007, issued an order awarding Golthy $1,375,000 in punitive damages. That order, which disposed of all the remaining claims in this case, was stamped “filed” by the circuit court clerk on August 1, 2007, and input into the State Judicial Information System on August 16, 2007. The July 27, 2007, order awarding damages was thus deemed “entered” on August 16, 2007, see Rule 58(c), Ala. R. Civ. P., and constituted a final, appealable judgment.

On August 15, 2007, Graves filed a “Motion for Stay of Execution” pursuant to Rule 62(a) (dealing with automatic stay of execution of, or any proceedings to enforce, a judgment and the exceptions thereto) and (b), Ala. R. Civ. P. This August 15 motion to stay was denied by the trial court.

On September 25, 2007, Graves filed a “Motion for Relief from Judgment or Order.” This motion, which sought relief from the August 16, 2007, judgment, cited Rule 60, Ala. R. Civ. P.; it was denied by the trial court on October 16, 2007. On November 14, 2007, Graves filed a written notice of appeal.

Discussion

Graves’s notice of appeal was filed 90 days after the August 16, 2007, entry of the final judgment in this case, well beyond the 42-day period for filing a notice of appeal provided by Rule 4(a), Ala. R.App. P. The issue before this Court is whether either of the two postjudgment motions filed by Graves — the one filed on August 15, 2007, and the one filed on September 25, 2007 — can be characterized as one of the postjudgment motions specifically enumerated in Rule 4(a)(3), Ala. RApp. P., that tolls the time for filing a notice of appeal. Rule 4(a)(3) provides:

“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure [Ala. R. Civ. P.] shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1. Any error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the [Ala. R. Civ. P.].”

Golthy argues, and we agree, that neither the August 15 motion nor the September 25 motion tolled the time for filing the notice of appeal in this case. “[T]his Court looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure.” Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998). The August 15 motion to stay execution clearly indicates that it was filed pursuant to Rule 62, Ala. R. Civ. P. Consistent with Rule 4(a)(3), Ala. RApp. P., the Committee Comments on 1973 Adoption of Rule 62 plainly state that the stay provided for in the rule “does not affect appealability of the judgment nor prevent the time for appeal from running.” Further, although Graves stated in the motion to stay that its purpose “[was] to allow (Graves) the opportunity to consider his future course of actions in this case and/or motion for a new trial, or to alter, amend, or vacate [the trial] court’s judgment pursuant to Rule 59, Ala. R. Civ. Proc.,” he did not actually move to alter, amend, or vacate the trial court’s final judgment. Thus, the August 15 motion was not a Rule 59, Ala. R. Civ. P., motion and did not toll the time in which to file the notice of appeal.

Graves’s September 25 motion, which was filed 40 days after the August 16, 2007, final judgment, is titled a “Motion for Relief from Judgment or Order.” The motion cites Rule 60, Ala. R. Civ. P., and asserts that Graves was in prison and thus unable to properly respond to Golthy’s summary-judgment motion. However, a Rule 60 motion is not included in Rule 4(a)(3), Ala. R.App. P., as one of the motions that toll the time in which to file an appeal. See also Borders v. City of Huntsville, 875 So.2d 1168, 1175 (Ala.2003); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala.1983) (holding that a Rule 60(b)(6) motion “does not affect the finality of the judgment or toll the time for appeal”). Therefore, to the extent that the September 25 motion can be considered a Rule 60, Ala. R. Civ. P., motion, it did not toll the 42-day period in which to file the notice of appeal.

Graves’s September 25 motion also attacks the propriety and constitutionality of the trial court’s award of punitive damages. To the extent that this could be considered a motion to alter, amend, or vacate the judgment under Rule 59(e), Ala. R. Civ. P., the motion is untimely because it was not filed within 30 days of the August 16, 2007, judgment. See Rule 59(e) (“A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.”). Therefore, even if the motion were to be considered a Rule 59 motion, it would not toll the 42-day period for filing a notice of appeal. Miller Props., LLC v. Green, 958 So.2d 850, 852 (Ala.2006) (holding that a Rule 59(e) motion filed more than 30 days after entry of the final judgment “was untimely and of no effect”), Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002) (“Although a timely post-judgment motion will toll the 42-day time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so.”).

Graves filed his notice of appeal on November 14, 2007, 90 days after the entry of the August 16, 2007, final judgment. “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. R.App. P. Graves’s appeal is untimely; therefore, this Court is without jurisdiction and must dismiss the appeal. See Buchanan v. Young, 534 So.2d 263, 264 (Ala.1988) (“The failure to file a notice of appeal within the time provided in Rule 4, [Ala. R.App. P.], is a jurisdictional defect and will result in a dismissal of the appeal.”).

APPEAL DISMISSED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . This case was originally assigned to another Justice. It was reassigned to Justice Shaw on February 6, 2009.

      . There is a discrepancy in the record as to the date on which the hearing was conducted. Because the date of the hearing on the motion has no bearing on our decision in this matter, for purposes of this opinion, we have used the date indicated on the reporter's official transcript of the proceedings.

      . Rule 56(d) states:
      “(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”

      .Graves is a prison inmate proceeding pro se. The certificate of service attached to Graves's notice of appeal states that the notice of appeal was mailed to the circuit court clerk on October 31, 2007. However, the record does not indicate that Graves complied with the requirements of Rule 4(c), Ala. R.App. P., in order to establish that the notice of appeal was properly sent through institutional mail on October 31, 2007. In any event, as shown below, even if the notice of appeal had been filed on October 31, 2007, the appeal is due to be dismissed as untimely.


author: STUART, Justice. COBB, Chief Justice

text:
    Ex parte Mary Jo HISE (In re Mary Jo Hise v. Charles W. Hise).
    1080594.
    Supreme Court of Alabama.
    April 24, 2009.
    P. Vaughan Russell of McCormick & Russell, Selma; and Valerie K. Chittom, Selma, for petitioner.
   STUART, Justice.

WRIT DENIED. NO OPINION.

LYONS, WOODALL, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and MURDOCK, J„ dissent.

COBB, Chief Justice

(dissenting).

I respectfully dissent from the denial of this petition for a writ of certiorari asking this Court to review the decision of the Court of Civil Appeals affirming the trial court’s judgment in an underlying divorce action, specifically arguing that the trial court’s property division and alimony award were inequitable. Hise v. Hise (No. 2070161, Dec. 5, 2008) — So.3d - — ■ (Ala. Civ.App.2008) (table). Rule 30(a)(l)(D)2, Ala. R.App. P., states:

“Where it is not feasible to quote that part of the opinion either because no wording in the opinion clearly shows the conflict or because no opinion was issued, the petition shall state that this subparagraph is applicable and then state, with particularity, how the decision conflicts with a prior decision .... ”

The facts presented in the present petition by Mary Jo Hise, the former wife, are in compliance with Rule 39(d)(5)(A), Ala. R.App. P., and those facts are the only facts before us. Hise sets out the details of the trial court’s final judgment dividing the marital estate and states, in pertinent part:

“Relying on the total valuation of marital assets calculated by the Wife’s accountant to be $3,772,500, the trial court awarded the Husband $3,116,500 of the $3,772,500 ... while awarding the Wife only $656,000. The trial court awarded the Husband approximately 82.61% of the marital assets and awarded the Wife approximately 17.39% of the marital assets.
“Using those values provided by the Husband’s accountant, and those values calculated by the Husband himself, the Husband was awarded approximately 73% of the marital estate while the Wife was awarded approximately 27%.
“The Wife’s accountant calculated the Wife’s annual expenses for basic needs, excluding taxes and savings, to be approximately $56,000; with taxes and savings the amount is $96,149.37. The Husband testified at the hearing that, during the five years the case was pending before the trial, the Wife’s expenses for one of those years was approximately $150,000 or $200,000.... The award of $2,000 per month is less than half of the amount the Wife and her accountant calculated as necessary for her basic needs, excluding taxes and savings, and the $2,000 is approximately one-sixth of the monthly expenses the Husband claimed he paid for at least one year that this ease was pending.”

(Footnote omitted.)

The petition states as grounds for review that the Court of Civil Appeals’ no-opinion affirmance of the trial court’s judgment conflicts with the opinions of the Court of Civil Appeals and this Court in Mullís v. Mullís, 994 So.2d 934 (Ala.Civ.App.2007), affd, 994 So.2d 942 (Ala.2008). After describing the facts of Mullís in some detail and noting that in that case the Court of Civil Appeals reversed a trial court’s judgment awarding the husband approximately 81.8% of the parties’ net worth and awarding the wife only 18.2%, Hise states in her petition:

“The Wife petitions this Court for cer-tiorari review on the ground that the Court of Civil Appeals’ affirmance of the trial court’s property division and award of alimony directly conflicts with its decision in Mullís v. Mullís, 994 So.2d 934 (Ala.Civ.App.2007). The Wife contends that, had the Court of Civil Appeals adhered to its holding in Mullís v. Mullís in considering the facts in the present case, so like those in Mullís, it would have been compelled to reverse the trial court’s inequitable property division and award of alimony. Specifically, the Wife asserts that the Court of Civil Appeals failed to properly consider those factors that dictated its finding that the property settlement was inequitable in Mullís, namely those identified by the Court of Civil Appeals in Mullís v. Mullís, Court- right v. Courtright, 757 So.2d 453 (Ala. Civ.App.2000) and Covington v. Coving-ton, 675 So.2d 436 (Ala.Civ.App.1996). These include the ages and health of the parties, the length of their marriage, the parties’ station in life and future prospects, their standard of living and potential for maintaining that standard after the divorce, the value and type of property they own, and the source of them common property. Courtnght v. Court-right, 757 So.2d 453, 456 (Ala.Civ.App. 2000) (quoting Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996)). “Conflict with decision of Alabama Supreme Court
“In Ex parte Mullís, 994 So.2d 942 (Ala.2008), this court affirmed the Court of Civil Appeals’ ruling in Mullís v. Mul-lís, 994 So.2d 934 (Ala.Civ.App.2007). In its opinion, the Supreme Court emphasized that the Court of Civil Appeals had relied on the factors set forth in its decision in Courtnght v. Courtnght, 757 So.2d 453 (Ala.Civ.App.2000), in reversing the trial court’s inequitable division of property. The Supreme Court concluded that the Court of Civil Appeals had properly reversed the trial court’s property division, particularly when 18.2% of the parties’ net worth was all the wife would receive from the marriage. This Court considered the length of the marriage, the parties’ future prospects and the value of the marital property in determining that the trial court’s division of the marital property was inequitable.”

Petition, at 3-5.

This statement of conflict with both Mullís cases fully complies with the requirements of Rule 39(a)(l)(D)2. Thus, Mary Jo Hise has presented us with facts and a statement of grounds for review that warrant our review. Moreover, this petition, at least on the facts before us, presents a situation that has a real likelihood of legal merit. If indeed the facts are as they are presented by the petitioner, the Court of Civil Appeals’ affirmance does conflict with the Mullís cases.

In denying this petition, this Court is speculating on the application of the cases cited by the Court of Civil Appeals in its no-opinion affirmance. I do not believe that this Court can validly refuse to review this petition on such a rationale. The Court of Civil Appeals cites Rule 28(a)(10), Ala. R.App. P., and various cases; however, this Court has no knowledge as to why that rule or those cases were cited. At this point, all that is before the Court are the petitioner’s facts and statement of grounds. We cannot know why the Court of Civil Appeals cited Rule 28 or whether that rule relates to anything the petitioner has presented to this Court. Similarly, we cannot know the significance of the cases cited in the Court of Civil Appeals’ no-opinion affirmance. It is certainly possible that Hise is attempting to “switch horses” for a more productive argument, but speculation on that possibility is not a basis on which this Court should deny Hise’s petition. Rule 53, Ala. R.App. P., is the procedural rule that authorizes this Court and the Court of Civil Appeals to issue no-opinion affirmances. Rule 53(d), Ala. R.App. P., states:

“An order of affirmance issued by the Supreme Court or the Court of Civil Appeals by which a judgment or order is affirmed without an opinion, pursuant to section (a), shall have no precedential value and shall not be cited in arguments or briefs and shall not be used by any court within this state, except for the purpose of establishing the application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar.”

See also Dennis v. Northcutt, 923 So.2d 275 (Ala.2005); Wade v. State, 986 So.2d 1212 (Ala.Civ.App.2007). I believe that our law prohibits this Court from denying a petition for a.writ of certiorari on the basis of speculation as to the applicability of the cases or rules cited in a no-opinion affirmance. I recognize, as Rule 53(d) states, that a no-opinion affirmance might be used as a procedural bar or as res judicata or the like, but this Court may not speculate that the legal authority cited in a no-opinion affirmance supports any particular conclusion. In this case the petitioner has properly stated conflict as a ground for review and has supplied facts to support that review with respect to an issue that strongly supports an inference that justice and equity have not been done. The denial of this petition on the basis of the rule and the cases cited by the Court of Civil Appeals in its no-opinion affir-mance is profound error. Accordingly, I must dissent.