text:
    Charlie C. HENDERSON a/k/a Charlie C. Henderson, Jr. a/k/a Charles Henderson, Appellant v. STATE of Mississippi, Appellee.
    No. 2015-KA-00164-COA.
    Court of Appeals of Mississippi.
    June 28, 2016.
    Rehearing Denied Nov. 22, 2016.
    Certiorari Denied Feb. 2, 2017.

      Office of State Public Defender by Mollie Marie Mcmillin, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. A Lauderdale County jury found Charlie Henderson guilty of accessory after the fact to the murder of Aaron Coleman. The trial judge sentenced Henderson to five years in the custody of the Mississippi Department of Corrections (MDOC), with two years suspended and five years of supervised probation. Henderson now appeals, claiming the trial court erred in admitting into evidence a profane rap video posted on YouTube, featuring Henderson and others, who act out a violent scene at the end of the video. He argues the video was irrelevant and highly prejudicial. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 3 p.m. on February 27, 2011, twenty-one-year-old Coleman received a phone call to meet a friend. Coleman lived with his mother, younger sister, and maternal grandmother. He told his mother that he was leaving to meet his friend and would be back. It was Sunday, and the next morning Coleman had to go to work at West Lauderdale High School, near Meridian, Mississippi. Coleman left home in his vehicle, wearing red shorts and a white t-shirt. By 8 p.m. that evening, Coleman’s family became concerned because he had not returned home. They called and texted his cellular phone, but he did not answer.

¶ 3. When Coleman had not returned by the following morning, his mother called the police and Coleman’s best friend, Bobby Baker. Coleman’s mother and Baker rode around trying to locate Coleman but could not find him. Baker told Coleman’s mother that Sunday afternoon he and Coleman had ridden around; then Coleman had dropped him off at the house of a friend, William Michael Jordan, and left.

¶ 4. The following Thursday, law enforcement found Coleman’s vehicle on Kewanee Road near Meridian. Only Coleman’s fingerprints were found on the vehicle. The following Sunday, Coleman’s body was found on the side of Interstate 20, near the Kewanee Road exit. The chief medical examiner for Mississippi testified that Coleman died of a contact shotgun wound to the lower abdomen. The shotgun pellets had caused massive damage to the abdominal organs, and Coleman probably bled to death within minutes of being shot. Coleman’s body showed evidence of bodily decomposition, some of which consisted of “scavenger activity.” He was wearing the same clothing he had on the Sunday he disappeared.

¶5. Detective Mark Chandlee of the Meridian Police Department interviewed Coleman’s friends, including Baker and Jordan, because he had information that Coleman was last seen at Jordan’s house the night Coleman disappeared. Henderson was also at Jordan’s house that night and was friends with these individuals. Baker’s and Jordan’s statements matched—Coleman had dropped Baker off at Jordan’s house and left, without even entering the residence. With no further leads, Coleman’s case was transferred to the Mississippi Bureau of Investigations (MBI) as a cold case.

¶ 6. Nearly a year after Coleman’s disappearance, in January 2012, cold-case investigator Danny Knight of the MBI took over the case. Knight received a tip that led him to JaMichael Smith, who was from Meridian but at that time lived in Michigan. Smith was visiting Mississippi for a funeral in February 2011, and had been at Jordan’s house the Sunday Coleman disappeared. He quickly left Meridian for Michigan on a bus that very night. Detective Chandlee had unsuccessfully tried to get Smith to return to Mississippi, but Knight succeeded, obtaining a warrant for Smith’s arrest. In April 2012, Smith waived extradition and returned to Mississippi. On April 3, 2012, Smith gave a statement to Knight that led to the arrest of four individuals: Smith, Baker, and Henderson were charged with accessory after the fact to murder, while Jordan was charged with depraved-heart murder, or alternatively manslaughter, and felon in possession of a firearm.

¶ 7. Initially, Baker had refused to give a statement to law enforcement, but on June 15, 2012, he gave a statement to Knight that was consistent with Smith’s earlier statements on what transpired on Sunday, February 27, 2011. Several months later, Baker was alerted by a friend about a violent, profane rap video posted on YouTube on April 9, 2013, entitled “ ‘F—All Y’all’ by Gutta G featuring King Chris,” which “starred” Henderson and another rapper; Jordan had a small part. Baker interpreted the video to threaten him personally for his statement to law enforcement about the events of February 27.

¶ 8. In September 2014, Henderson’s trial for accessory after the fact to murder began. Baker testified for the prosecution. He admitted to lying to investigators initially about not knowing what happened to Coleman, but claimed the statement he gave to Knight was the truth. He had known Henderson, Jordan, Smith, and Coleman since elementary school. On the day Coleman disappeared, Baker testified he picked Coleman up and they rode around Meridian. Eventually, they went to Jordan’s house, where ten to twelve individuals were drinking beer, smoking marijuana, and visiting. Everyone appeared to be having a good time. As people began leaving the party, Coleman received a call from his mother to come home. As Coleman got up to leave, Henderson began teasing and tussling with him in a friendly way, because Coleman had a curfew. Around this time, Jordan, who was drunk, went in his bedroom, grabbed a shotgun, and returned to the living room. He began swinging the gun around recklessly, pointing it at people. The gun went off; Coleman was shot in the stomach, and Henderson was nearly hit. Very little blood was shed from Coleman’s wound.

¶ 9. Immediately after Coleman was shot, Smith ran out the back door and took the first bus back to Michigan. Baker wanted to call an ambulance because Coleman was still alive, but Jordan pointed a shotgun at Baker, and Henderson told Baker to hang up his phone, even though Jordan maintained the shooting was an accident. Instead, Henderson, Jordan, and Baker loaded Coleman in Jordan’s vehicle. Baker got in the backseat with Coleman. As Jordan and Henderson were deciding what to do, Coleman quit breathing. When Henderson realized Coleman was dead, he went through Coleman’s pockets and found his car keys. Jordan started his vehicle, with Baker in the passenger seat and Coleman’s body in the back seat. Henderson followed, driving Coleman’s vehicle.

¶ 10. They drove around Meridian and made their way onto Interstate 20, when Jordan’s vehicle ran out of fuel; so, they pulled over on the side of the interstate near the Kewanee exit and called Henderson to bring them some gasoline. When Henderson arrived, he was angry because Coleman’s body was still in Jordan’s vehicle. Henderson suggested they dump Coleman’s body on the side of the interstate and leave Coleman’s vehicle at another location. Coleman’s body was unloaded and slid down the embankment. Henderson drove Coleman’s vehicle to Ke-wanee Road where Henderson wiped down the vehicle to erase fingerprints and threw the keys on the floorboard. They left Coleman’s vehicle and traveled in Jordan’s vehicle to Henderson’s house. The next-door neighbor had a large “fire barrel” in which they burned their shirts, and Coleman’s cell phone, before returning to their respective homes. The next day, Baker rode around Meridian with Coleman’s mother in search of Coleman, knowing he was dead. One week later, Henderson, Baker, and Jordan met to get their story straight—that Coleman dropped Baker off at Jordan’s house and they never saw Coleman again. Smith, however, who remained in Michigan, was never contacted about the agreed-upon story.

¶ 11, Baker claimed he quit telling the agreed-upon story because he began to fear Henderson and Jordan. After giving his June 12, 2012 statement to Knight, Baker became aware of the rap video, featuring Henderson and another rapper, with Henderson’s brother, Jordan, and others having smaller parts. The video had been uploaded to YouTube in April 2013, after indictments were issued for Jordan, Henderson, Baker, and Smith. Baker informed his attorney of the video, and his attorney informed Knight. The music video depicts a situation where someone has been falsely implicated of a crime by a long-time friend; however, the informant thinks his friends are ignorant of his betrayal. The rap video was violent, and Baker felt threatened by it. At the end of the video, there is a short segment where Henderson and other men chase a young man into the woods—where he is surrounded—then Henderson shoots the young man. Over the defense’s objection, the video was allowed into evidence at Henderson’s trial and played for the jury.

ANALYSIS

¶ 12. Henderson argues that the trial court erred in admitting the YouTube rap video into evidence because it was irrelevant, confusing, and prejudicial.

¶ IB. The trial judge has a great deal of discretion regarding the relevancy and admissibility of evidence. Therefore, this Court will not reverse a trial judge’s evidentiary ruling unless the judge abuses this discretion so as to prejudice the accused. Gore v. State, 37 So.3d 1178, 1183 (¶ 13) (Miss.2010) (citations omitted). “Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Dickerson v. State, 175 So.3d 8, 20 (¶ 40) (Miss. 2015) (quoting M.R.E. 401). However, relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.” Id. (quoting M.R.E. 403).

¶ 14. Generally, “all evidence introduced in a criminal prosecution must be relevant to the guilt or innocence of the accused, but that rule is not violated by the admission of evidence that [the] accused attempted to suppress evidence against himself.” Mattox v. State, 243 Miss. 402, 413, 137 So.2d 920, 923 (1962). In Mattox, the Mississippi Supreme Court held if there is evidence a defendant attempted to keep a witness from testifying, this evidence has “probative value as an incriminating circumstance inconsistent with [the defendant’s] innocence and as tending to show a consciousness of guilt and that his cause lacked honesty and truth.” Id. (citations omitted).

¶ 15. The defense argument that the video was irrelevant is without merit. The video was posted on YouTube on April 9, 2013—nearly a year after Smith and Baker had given statements incriminating Jordan and Henderson, and the four individuals had been indicted—but nearly a year before Henderson’s and Jordan’s trials. So the video was posted after Smith and Baker gave incriminating statements, but before either one testified at Jordan’s or Henderson’s trials. The six-minute-long video begins as a rap-music video with Henderson lip-syncing, and ends with a short scene where a young man is shot. The main rapper is Henderson, but Jordan also appears briefly, in addition to Henderson’s brother and other extras.

[T]he video begins ... [with] a close-up shot of Jordan’s face. The scene then turns to his codefendant, Henderson, who begins rapping, “used to be my homeboy—used to be. Asked him why he flipped on me.” The rap proceeds to question how a life-long friend could turn State’s evidence. Henderson repeatedly warned that when “it’s your turn, you gonna burn.”[] While Jordan does not rap in the video, he can be seen singing along with the chorus, waving his middle finger and making other hand motions that go along with the words.

Jordan, 212 So.3d at 846 (¶ 23), 2015 WL 8142708, at *4 (¶ 23). Henderson raps repeatedly about shaking the informant’s hand, but the informant “can’t even look me in the eyes; he had to look the other way, f—all y’all.... A lot of enemies but they don’t show themselves—witness protection.” No one’s name is ever explicitly mentioned; Henderson “ain’t goin’ to say nobody’s name, just know all of ‘em’s to blame.... You’re my best friend from elementary.” Other threatening, probative lyrics are in the second and third verses:

You a jerk. Your kind the kind to get “murk ”[] for saying foolish shit.... “Ain’t goin’ say you took the stand, you cracked before you made it” ... there, turned on your own homies.... He’s been a bitch since he was five. Tall won’t make it in these woods, y’all goin’ to eat your words alive.

(Emphasis added). The scene after the music video is even more probative.

The rap song is followed by a scene featuring Henderson but not Jordan.
In this segment, an unidentified man walks up to Henderson and his circle of friends. The group chases the man into the woods. Henderson then tells the man, “You already know,” and repeatedly asks him, “How you kill a snake?” Henderson then pulls a handgun on the man. The video ends with Henderson pointing the gun directly at the camera. The screen goes blank and a gunshot rings out.

Jordan, 212 So.3d at 846 (¶ 24), 2015 WL 8142708, at *4 (¶ 24). Under Mattox, evidence is admissible it if shows a consciousness of guilt. The video is relevant to show Henderson’s attempt to prevent Baker from testifying at trial, through intimidation, about Henderson’s involvement in the murder.

¶ 16. Henderson further argues that even if the video was relevant, the probative value is substantially outweighed by the danger of prejudice to Henderson, because the video is not flattering to him— the language is offensive and the subject matter is violent. Citing Rule 403, the trial court ruled that the probative value of the video was not “substantially outweighed by the danger of unfair prejudice.” The trial judge determined:

[I]f Mr. Baker did not testify, the State’s case would be almost unwinnable, [b]ut with Mr. Baker’s testimony, that adds a different side to this case, because there’s eyewitness testimony from one charged with accessory after the fact to murder who’s testifying against Mr. Henderson. So, it’s very important that the jury hears his testimony.

We disagree with the trial court in that the issue is not the probative value of Baker’s testimony, upon which the trial court based its ruling, but the probative value of the video.

¶ 17. The video evidence can reasonably be interpreted as a not-so-subtle threat by Henderson, the lead performer in the video, meant to intimidate Baker, a long-time Mend since elementary school, who turned State’s evidence. Baker testified at trial that he knew his life would be threatened by Jordan and Henderson if he went to law enforcement, because he had known these individuals since childhood. Therefore, he returned to Ohio once he gave his statement to Knight in June 2012. He stated he “fear[ed] for his life.” Baker testified he found out about the video, which was published on YouTube in April 2013, from a Mend. He knew four of the actors in the video: Henderson, Henderson’s brother, Jordan, and Chris Randall. Baker felt so threatened after seeing the video he contacted his attorney about it. He felt he was the informant character because of the lyrics stating they had been friends since elementary school, he had ratted on them and could not look them in the eyes, yet there was no “witness protection.” At the end of the video, Henderson made a comment to the character Baker thought was himself: “[I]f I could find a way to get him down here.” Baker testified he was living in Ohio at the time, and they all knew it. Then Henderson asks “how do you kill a snake” and shoots the alleged snitch. The scene ends with the caption “to be continued.” The video has substantial probative value to Henderson’s consciousness of guilt under Mattox. Had the video shown a crime more similar to Coleman’s death, it might have been more prejudicial than probative, or confusing to the jury, but this is not the case. Coleman was not chased into the woods and shot, but killed by Jordan, drunkenly waiving a shotgun around.

¶ 18. We do not find that the probative value of the video was substantially outweighed by the danger of unfair prejudice under Rule 403. The trial court did not abuse its discretion in admitting the video into evidence. Accordingly, Henderson’s conviction and sentence are affirmed.

¶ 19. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF ACCESSORY AFTER THE FACT TO MURDER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED AND FIVE YEARS OF PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, WILSON AND GREENLEE, JJ„ CONCUR. FAIR, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The rap video was published on YouTube in April 2013, after Smith and Balter had implicated Jordan and Henderson, but before Jordan's trial commenced. At Jordan's trial, both Baker and Smith testified, and both felt threatened by the video, but at Henderson’s trial, only Baker testified; so Smith’s reaction will not be discussed.

      . Initially, Henderson and Jordan were to be tried together, but on the morning of trial on February 3, 2014, after the jury was selected, Henderson was granted a severance. See Jordan v. State, 212 So.3d 836, 2015 WL 8142708 (Miss.Ct.App.2015) (This Court affirmed Jordan’s conviction for depraved-heart murder and felon in possession of a firearm.). Baker and Smith pleaded guilty; so they were not tried with Jordan and Henderson.

      . Baker testified that he moved back to Ohio in late 2012 because he feared for his life after giving a statement to investigators.

      . See also United States v. Begay, 673 F.3d 1038, 1046 (9th Cir.2011) (Evidence showing that a defendant seeks to intimidate the witnesses against him is admissible to show the defendant’s “consciousness of guilt.”); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir.1996) (holding evidence of witness intimidation is clearly admissible to show "consciousness of guilt”); United States v. Monahan, 633 F.2d 984, 984 (1st Cir.1980) ("[T]hreatenmg personal harm to a witness ... implies a knowledge and fear of particular and damaging testimony intimately related to the prosecution at hand” and is "relevant to show consciousness of guilt."); State v. Wilson, 171 So.3d 356, 365 (La.Ct.App.2015) (finding evidence for the State of attempts by the defendant to intimidate witnesses has substantial probative value).

      . This Court’s Jordan opinion describes the video in detail. In that case, Jordan objected to the admission of the video because it was unauthenticated and irrelevant. We agreed with the trial court that the video was authentic, as well as admissible, because it was probative—it was aimed at intimidating Smith and Baker into not testifying. Jordan, 212 So.3d at 842-47, 2015 WL 8142708, at *4-9.
      While that case included a dissenting opinion finding, in part, the music video prejudicial to Jordan because he had only a minor role in the video, this case is distinguishable in that Henderson is the lead performer in the video.

      . Other repeated lyrics state: "Why you turn on me, homey? Witness protection. You goin' to learn, homey, when it’s your turn, homey. You gonna burn, homey. I’ve known you since elementary.”

      . "Murk” means to beat someone to death, Jordan, 212 So.3d at 846 n. 4, 2015 WL 8142708, at *6 n. 4.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Cynthia JOHNSON, Appellant v. CITY OF JACKSON, Mississippi, Appellee.
    No. 2015-WC-00946-COA.
    Court of Appeals of Mississippi.
    July 19, 2016.
    Rehearing Denied Nov. 22, 2016.
    Certiorari Denied Feb. 23, 2017.

      Christopher H. Neyland, Jackson, attorney for appellant.
    Carrie Johnson, Monica Davis Joiner, attorneys for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Cynthia Johnson was employed by the City of Jackson (the City) as a deputy court clerk from April 16, 2003, until January 21, 2011. On January 20, 2011, Johnson reported to the City that she was suffering from carpal tunnel syndrome as a result of her work. Johnson immediately began receiving medical treatment. She also began receiving indemnity benefits from the City. The City continued to pay Johnson’s medical and indemnity benefits until they were suspended in November 2011, when the City claimed that the benefits had been provided in error. On November 21, 2011, Johnson filed a petition to controvert with the Mississippi Workers’ Compensation Commission. The City filed a motion to dismiss, asserting that Johnson was reasonably aware of the com-pensable work-related injury as early as June 2008, and thus the two-year statute of limitations barred her claims. The administrative judge (AJ) denied the City’s motion regarding Johnson’s claims of ulnar neuropathy and complex regional pain syndrome, but granted it as to her claims of carpal tunnel syndrome and depression. Both parties petitioned the Commission for review. The Commission dismissed all of Johnson’s claims as barred by the statute of limitations. Aggrieved, Johnson appeals. We hold that all of Johnson’s claims are barred by the two-year statute of limitations and affirm the Commission’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 6, 2008, Johnson went to her family doctor, Dr. Stephen Coachys, complaining of pain in her arms and hands, as well as high blood pressure and dizziness. Based on findings from his evaluation of Johnson, Dr. Coachys administered a nerve-conduction study on June 9, 2008. The results of the study indicated that Johnson had carpal tunnel syndrome and ulnar neuropathy.

¶ 3. Later that month on June 20, 2008, Johnson visited Dr. Coachys for treatment of depression and anxiety. During this visit, Dr. Coachys reviewed the results of the nerve-conduction study with Johnson and referred her to an orthopedist for further evaluation regarding corrective surgery for her injury. However, Johnson refused the surgical referral and continued working. During this time Johnson did not file any work-related-injury claims.

¶ 4. Johnson again visited Dr. Coachys on January 14 and 21, 2011, with primary complaints of bilateral hand pain. On January 21, 2011, she requested a referral to an orthopedist or physical therapist for her bilateral hand pain. Johnson initially saw specialist Dr. Chris Etheridge, but did not pursue treatment with him because she disagreed with his treatment recommendation. Regardless, Johnson’s intake form for Dr. Etheridge lists complaints of bilateral hand problems that started on June 6, 2008.

¶ 5. Dr. Coachys referred Johnson to Dr. David Gandy, who diagnosed her with bilateral carpal tunnel syndrome and possible ulnar neuropathy on both arms on March 2, 2011. Dr. Gandy noted in his deposition that Dr. Coachys had previously diagnosed Johnson with carpal tunnel syndrome in 2008, and that Johnson had been having problems with her hands and wrists since 2008.

¶ 6. Dr. Gandy performed surgery on Johnson to alleviate the pain in her right arm on April 6, 2011. On November 22, 2011, Johnson began seeing Dr. Leon Gri-goryev for pain-management therapy due to her complaints of more upper-arm pain. Dr. Grigoryev diagnosed Johnson with a type of complex regional pain syndrome based on a diagnostic test that he had administered on October 26, 2011. Dr. Grigoryev’s notes also indicated that Johnson had been suffering from carpal tunnel syndrome since June 2008.

¶7. In November 2011, the City suspended Johnson’s medical and indemnity benefits. Dorothy “Dot” Thomas, the claims supervisor for the City’s risk-management department, testified that Johnson’s benefits were based on the June 2008 injury, although payments did not start until the injury was reported in January 2011. Thomas testified that Johnson received benefits for services rendered by Dr. Coachys, Dr. Etheridge, and Dr. Gan-dy, as well as the surgery performed by Dr. Gandy. Although the claims were initially reviewed and approved by Greg Burnett, the City’s attorney at the time, the City eventually determined that Johnson’s claims were time-barred. Hence, the City suspended her benefits.

¶ 8. Johnson filed a petition to controvert with the Commission on November 21, 2011, alleging that she had suffered a compensable work injury on January 21, 2011, ie., her last day of employment with the City. The City filed a motion to dismiss Johnson’s claim, alleging that the statute of limitations began running on Johnson’s claim in 2008, and thus, the claim was time-barred when she reported the injury in January 2011. Following a hearing on the motion, the AJ denied the motion in regard to Johnson’s claims of ulnar neuropathy and complex regional pain syndrome, and granted the motion in regard to her claims of carpal tunnel syndrome and depression.

¶ 9. The City filed a petition for review while Johnson filed a cross-petition for review of the depression claim and for clarification on the ruling on the carpal-tunnel-syndrome claim. The Commission affirmed the AJ’s ruling regarding depression and carpal tunnel syndrome and reversed the ruling regarding ulnar neu-ropathy and complex regional pain syndrome. The Commission thus dismissed all of Johnson’s claims as barred by the statute of limitations.

DISCUSSION

¶ 10. Johnson has identified four compensable injuries that she suffered as a result of her work for the City of Jackson: (1) carpal tunnel syndrome, (2) ulnar neu-ropathy, (3) complex regional pain syndrome, and (4) depression. The Commission determined that all of her claims were barred by the statute of limitations, which reads:

No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer.... Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the [Cjommission within (2) years from the date of the injury or death, the right to compensation therefore shall be barred.

Miss.Code Ann. § 71-3-35(1) (Rev.2011). This Court analyzes the applicability of a statute of limitations under a de novo standard of review. Brown v. Ill. Tool Works Inc., 135 So.3d 160, 165 (¶ 20) (Miss.Ct. App.2013). We will not disturb the factual findings of the Commission unless they are unsupported by substantial evidence. Morris v. Lansdell’s Frame Co., 547 So.2d 782, 784 (Miss.1989) (citation omitted).

¶ 11. Carpal tunnel syndrome is recognized as a latent or progressive injury that is not immediately recognizable. See, e.g., Smith v. Nissan N. Am., 102 So.3d 321, 323 (¶ 16) (Miss.Ct.App.2012); Shipp v. Thomas & Betts, 13 So.3d 332, 334 (¶ 8) (Miss.Ct.App.2009); Lucas v. Angelica Uniform

Grp., 733 So.2d 285, 288 (¶ 11) (Miss.Ct. App.1998). With such latent injuries, “the claim period for the statute of limitations runs from the time the compensable injury becomes reasonably apparent.” Brown, 135 So.3d at 165 (¶ 19). The question of when an injury becomes reasonably apparent is an issue of fact for the Commission to determine. Id. This Court will reverse the findings of the Commission when, “although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact.” Waffle House Inc. v. Allam, 976 So.2d 919, 921-22 (¶ 8) (Miss.Ct.App.2007) (citation omitted).

¶ 12. In the case at hand, the Commission determined that Johnson was or should have been reasonably aware that she had sustained work-related carpal tunnel syndrome and ulnar neuropathy injuries on the date of her diagnosis by Dr. Coachys on June 6, 2008. While it is true that Johnson was not definitively or explicitly diagnosed with carpal tunnel syndrome or ulnar neuropathy until a later date, this Court has previously held that it is “not necessary for the carpal tunnel syndrome to be first diagnosed through the nerve-test procedure.” Brown, 135 So.3d at 165 (¶ 23); see also Smith, 102 So.3d at 323 (¶ 15) (finding the “[claimant’s] condition did not have to be confirmed before the statute began to run”). Instead, “the two-year limitation statute does not begin to run until by reasonable care and diligence it is discoverable and apparent that a com-pensable injury has been sustained.” Pepsi Cola Bottling Co. v. Long, 362 So.2d 182, 184 (Miss.1978) (citation omitted).

¶ 13. Johnson contends that the two-year statute of limitations does not begin to run until a claimant’s disability progresses to the point that she is forced to quit her job. See Jenkins v. Ogletree Farm Supply, 291 So.2d 560, 565 (Miss. 1974). However, Johnson’s reliance on Jenkins is misplaced. In Jenkins, the Mississippi Supreme Court was primarily concerned with addressing whether the claimant’s injury “occurred within a reasonably definite and not too remote period of time.” Id. at 567. The court did not address the date from which the statute of limitations began to run because the issue was not raised on appeal. Id. at 562. In the face of caselaw explicitly stating that the statute of limitations runs from the point that a work injury has become reasonably apparent, we do not find the holding in Jenkins, which makes no qualitative judgment regarding the statute of limitations, applicable.

¶ 14. Instead, we find that there is substantial evidence available on the record that Johnson’s carpal tunnel syndrome and ulnar neuropathy were reasonably discoverable and apparent on June 6, 2008. The Commission noted that on this date, Dr. Coachys diagnosed Johnson with signs indicative of carpal tunnel syndrome and ulnar neuropathy. In his deposition, Dr. Coachys testified that based on these signs and Johnson’s occupation, he determined on June 6, 2008, that Johnson quite possibly had carpal tunnel syndrome. Further, the intake forms of Dr. Etheiidge and Dr. Gandy both indicated hand and arm injuries with a start date of June 6, 2008. Dr. Gandy’s intake form explicitly noted that the injuries started as a result of typing, data entry, and filing. Taken together, the evidence supports the Commission’s finding that Johnson knew or should have known of her carpal tunnel syndrome and ulnar neuropathy as early as June 6, 2008.

¶ 15. Additionally, we find that the testimony of Dr. Coachys provides ample evidence that Johnson should have reasonably been aware of a compensable work-related injury on June 20, 2008. On that date, Dr. Coachys explained the results of the nerve-conduction study with Johnson, provided her with medication for treatment, and suggested an appointment with an orthopedist for her injury. Johnson refused to act on this suggestion. Reasonable diligence must be exercised by the claimant to confirm the occurrence of a compensable injury. Pepsi 362 So.2d at 184 (citation omitted). Had Johnson exercised due diligence, her carpal tunnel injury should have easily been recognized as early as June 6, 2008, or at the latest by June 20, 2008. Using either date, the filing of Johnson’s claim on November 21, 2011, was well outside of the two-year statute of limitations. As such, we affirm the Commission’s dismissal of Johnson’s carpal-tunnel-syndrome and ulnar-neuro-pathy claims.

¶ 16. Having determined that the date of Johnson’s carpal-tunnel-syndrome and ulnar-neuropathy injuries falls outside of the two-year statute of limitations, we find that Johnson’s claim for complex regional pain syndrome is also time-barred. Dr. Grigoryev testified that Johnson’s complex regional pain syndrome arose directly out of surgery undertaken to fix her ulnar neuropathy. In such cases,

[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.

John R. Bradley & Linda R. Thompson, Mississippi Workers’ Compensation § 4:24, at 114 (2015).

¶ 17. Hence, while Johnson’s complex regional pain syndrome is a compen-sable consequence of an original work-related injury, the presence of such an injury does not revive a time-barred claim. “Once a claim is barred by limitations, the otherwise compensable disability becomes that ‘of the claimant alone’ and it may not be revived as a compensation claim.” Var-danian S. Dunn, Mississippi Workers’ Compensation § 259.1, at 315 (3d ed.1982). As such, when the statute of limitations ran on Johnson’s ulnar-neuropathy claim in June 2010, Johnson was barred from asserting any further claims that might arise out of that injury, including claims arising from treatment such as Johnson’s complex-regional-pain-syndrome claim. Accordingly, we affirm the Commission’s dismissal of Johnson’s complex-regional-pain-syndrome claim.

¶ 18. Finally, on the issue of Johnson’s depression claim, we find that there is clear, substantial evidence supporting the Commission’s determination that Johnson’s depression began on or before June 20, 2008. The testimony and records of Dr. Coachys clearly show that Johnson complained of depression and received medication for depression as early as June 20, 2008. Johnson now attempts to claim that her depression was not a compensable . injury until January 2011. We agree with the Commission’s determination that Johnson was aware of a com-pensable injury in June 2008, and accordingly affirm the Commission’s dismissal of Johnson’s claim for depression.

CONCLUSION

¶ 19. In each of Johnson’s claims, there is substantial evidence to support the Commission’s findings of fact regarding the start date of Johnson’s compensable work-related injury. The Commission’s determination that Johnson’s carpal tunnel syndrome and ulnar neuropathy were reasonably apparent on June 6, 2008, is supported by the testimony and documents of Johnson’s various doctors. The testimony further supports a finding that, even if these injuries were not reasonably apparent on June 6, 2008, they were reasonably apparent on June 20, 2008, following Dr. Coachys’s discussion of the nerve-conduction study. Regardless of the date chosen, Johnson failed to submit her carpal-tunnel and ulnar-neuropathy claims within the two-year statute of limitations, barring these claims and any claims arising directly out of them, including Johnson’s complex-regional-pain-syndrome claim. Further, the record clearly shows that Johnson was well aware of work-related depression as early as June 20, 2008, over two-years before she filed her claim for depression. Accordingly, we affirm the Commission’s dismissal of each of Johnson’s claims, finding each claim to be time-barred by the statute of limitations.

¶ 20. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.


author: GREENLEE, J., JAMES, J.,

text:
    James W. BENNETT, Appellant v. MISSISSIPPI STATE DEPARTMENT OF HEALTH, A Member of the Mississippi State Agencies Self-Insured Workers’ Compensation Trust, Appellee.
    No. 2015-WC-00850-COA.
    Court of Appeals of Mississippi.
    July 26, 2016.
    Rehearing Denied Nov. 29, 2016.
    Certiorari Denied Feb. 2, 2017.

      J. Peyton Randolph II, Ridgeland, Rick D. Patt, Jackson, attorneys for appellant.
    Michael D. Young, James Andrew Fag-gert, attorneys for appellee.
   GREENLEE, J.,

for the Court:

¶1. James Bennett appeals the Mississippi Workers’ Compensation Commission order reversing the administrative judge’s determination that Bennett was acting in the scope of his employment when, in anticipation of bad weather, he rode toward his house after lunch to switch from his motorcycle to his jeep before returning to his office. We find the Commission’s order to be supported by substantial evidence and therefore affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Bennett is a salaried senior systems administrator employed by the Mississippi Department of Health. He has an office cubicle located on Woodrow Wilson Drive in Jackson, but frequently travels to separate locations to fulfill work orders. On June 12, 2012, after having lunch out, Bennett sustained serious injuries when another vehicle pulled out in front of him while he was en route to his house to switch from his motorcycle to his jeep before returning to his office.

¶ 3. Bennett filed a petition to controvert on August 21, 2012. A compensability hearing was held on May 28, 2014, on the sole question of whether Bennett was acting in the course and scope of his employment at the time of the accident. The administrative judge heard the testimony of Bennett; his supervisor at the time, William Staples; and his coworker, Larry Walker.

¶4. Senior systems analysts with the Mississippi Department of Health have the autonomy to prioritize work orders as they come in and to schedule service trips for projects that cannot be performed remotely. Bennett is entitled to use a work vehicle on a first-come, first-served basis or to be reimbursed for mileage if using a personal vehicle. Some projects require the transportation of equipment or computers, necessitating the use of an enclosed vehicle. Schedules are typically determined several days in advance, and in this case, Bennett had determined which work orders he intended to service at least a day in advance of the accident.

¶ 5. The day before the accident, Bennett mentioned to his supervisor that he might ride his motorcycle the next day if the weather was good. The morning of the accident he drove directly from his home to his first service location. He stated at the hearing that he would not have been entitled to mileage reimbursement for his trip from his morning work location to lunch. He also testified that his initial intent was to return to his office after lunch. However, in light of impending rain, he instead drove toward his house to exchange vehicles. Bennett struck another vehicle that pulled out in front of him. He sustained serious injuries that required him to spend several weeks in the hospital. The only work equipment Bennett had with him when the accident occurred was a small external hard drive and tool kit stored in his leather saddle bag.

¶ 6. The administrative judge ruled that Bennett was a traveling employee operating within the scope of his employment at the time of the accident and that his injuries were therefore compensable. The Commission reversed the holding of the administrative judge, finding that Bennett was not acting within the scope of his employment at the time of the accident because he was on a personal errand to exchange vehicles unconnected to a business purpose for his employer.

¶ 7. Bennett timely appeals.

DISCUSSION

¶ 8. This Court will defer to the findings of the Commission when those findings are supported by substantial evidence. Bouldin v. Miss. Dep’t of Health, 1 So.3d 890, 894 (¶ 7) (Miss.Ct.App.2008). “We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citations omitted).

¶ 9. Our workers’ compensation statutes compensate for injuries “arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.” Miss.Code Ann. § 71—3—3(b) (Rev.2011). But, “if an employee steps aside from the employer’s business for some purpose of his own, which is disconnected [from] his employment, the relation of employer and employee is temporarily suspended ... regardless of how short the time, and the employer is not liable for the employee’s acts during such time.” Bouldin, 1 So.3d at 895 (¶ 9). The claimant bears the overall burden of proving facts prerequisite to any recovery. Id.

I. Whether Bennett was a traveling employee.

¶ 10. Bennett argues that the administrative judge correctly classified him as a “traveling employee.” An employee with a fixed place of employment generally assumes the hazards associated with going to and from the workplace. Lane v. Hartson-Kennedy Cabinet Top Co., 981 So.2d 1063, 1067-68 (¶ 12) (Miss.Ct.App.2008). However, an exception may apply where travel is an integral part of an employee’s job. “Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.” Smith & Johnson, Inc. v. Eubanks, 374 So.2d 235, 237 (Miss.1979) (citation omitted). A traveling employee is one who goes on a trip to further the business interests of his employer, such as a. traveling salesman or a person attending a business conference for the benefit of his employer. Bryan Bros. Packing Co. v. Dependents of Murrah, 234 Miss. 494, 500, 106 So.2d 675, 677 (1958).

¶ 11. In Bonldin, we declined to categorize a doctor as a “traveling employee” where the doctor rotated on a weekly or monthly basis between fixed places of employment in health departments across five counties. Bonldin, 1 So.3d at 896 (¶ 12). We affirmed the Commission’s determination that the doctor was on a personal errand and therefore did not suffer com-pensable injuries when struck by a vehicle on her lunch break off of a health clinic’s premises. Id.

¶ 12. Bennett’s position as a senior systems analyst is similar to the position of the doctor in Bonldin. Bennett has a fixed place of employment. While aspects of his work include travel to service locations and he is entitled to reimbursement for that travel, his position is not comparable to that of a truck driver or traveling salesman. Travel to lunch and his personal errand home to exchange vehicles were outside the scope of his employment. We defer to the Commission’s conclusion that, under the facts and circumstances of this case, Bennett’s detour to his home to change from his motorcycle to his jeep was a distinct departure on a personal errand. He did not need a larger vehicle to transfer equipment for an afternoon work order as evidenced by his testimony that, had it not begun to rain, he would have driven straight to his office.

II. Whether Bennett satisfies an exception to the “coming-and-going rule.”

¶ 13. Bennett argues that, even if he is analyzed as a “commuting employee,” he satisfies one of the exceptions to the “coming-and-going rule.” The exceptions to the coming-and-going rule are:

(1) where the employer furnishes the means of transportation, or remunerates the employee; or (2) where the employee performs some duty in connection with his employment at home; or (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or (4) where the employer furnishes a hazardous route; or (5) where the injury results from a hazardous parking lot furnished by the employer; or (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises; or (7) when the employee is on a special mission or errand for his employer, or where the employee is accommodating his employer in an emergency situation.

Lane, 981 So.2d at 1068-69 (¶ 15) (finding that the second exception to the coming- and-going rule was satisfied where an employer instructed a truck driver to go home to take a shower during a several-hour break in order to save the employer the expense of paying for a shower at the work site).

¶ 14. Only the first two exceptions conceivably apply to this case. As established by testimony at the hearing, while Bennett is eligible for reimbursement for mileage incurred driving from his office to a work site, or from a work site to his office, he conceded at the hearing that he would not be entitled to seek reimbursement for driving to lunch or for mileage on a personal errand between service calls. As to the second exception, while fulfilling certain work orders requires the use of an enclosed vehicle to transport equipment, substantial evidence supports the Commission’s conclusion that Bennett made a personal decision to transfer vehicles, and that the trip home was not necessary to facilitate his scheduled work assignments. Bennett himself testified that his original plan was to drive straight from lunch to his office.

CONCLUSION

¶ 15. Bennett has failed to meet his burden of proof to show that his injuries are compensable. Therefore, we defer to the findings of the Commission because they are supported by substantial evidence.

¶ 16. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND WILSON, JJ., CONCUR. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J.

JAMES, J.,

dissenting:

¶ 17. Because I would find that the full Commission erred in its decision when it reversed the order of the administrative judge, I respectfully dissent. I would also find that this decision was not supported by substantial evidence and was based on an erroneous interpretation of the law.

¶ 18. The record shows that Bennett, within one year, had undergone seven surgical procedures after his accident. Bennett, through counsel, detailed his injuries in his petition to controvert. In his petition he stated that he sustained injuries to his left lower and upper extremities, chest, head, and body as a whole, consisting of multiple fractures, facial disfigurement, and damage to his vision. All of Bennett’s claims for payment were denied. The record supports a finding that Bennett was in the course and scope of his employment at the time of the accident, and that he was a traveling employee. Bennett had informed his superior that he would have to swap his motorcycle for a closed vehicle if it were to rain. Bennett had concluded his lunch when he proceeded to go home to swap his vehicle for business purposes since it was about to rain. The testimony was uncontradicted that Bennett had to drive to Canton after lunch to work in the employer’s satellite office. He was carrying computer equipment in a non-waterproof motorcycle bag when the accident occurred. The administrative judge found by a preponderance of evidence that Bennett was furthering a business purpose at the time of the accident.

¶ 19. Bennett testified that it would not have been fan- to his employer to charge mileage for the full trip, which included a trip to his house to swap vehicles, but mileage between the two job sites was compensable. The fact that Bennett did not intend to charge for a small portion of the trip that was necessary to protect the computer equipment did not change the nature of the trip. The important thing to notice is that there was no abandonment of his employer’s business simply because he wanted to protect his employer’s equipment. The trip home to make sure that the equipment was protected was also related to and in the furtherance of his employer’s business. “Worker’s [cjompensation claims, and the laws that govern them, are to be construed broadly and liberally in favor of the claimant.” Miss. Transp. Comm’n v. Dewease, 691 So.2d 1007, 1016 (Miss.1997). Doubtful cases must be resolved in favor of compensation. Duke ex rel. Duke v. Parker Hannifin Corp., 925 So.2d 893, 897 (¶ 15) (Miss.Ct.App.2005).

¶ 20. The order of the full Commission finding that Bennett’s decision to drive home to swap vehicles was a personal errand constitutes reversible error. I would therefore reverse and render the ruling of the full Commission and reinstate the order of the administrative judge.

LEE, C.J., JOINS THIS OPINION.


author:
SHAW, Justice.
      BRYAN, Justice

text:
    Ex parte Raymond ADAMS, as executor of the Estate of Clifford Wayne Cleveland, deceased. (In re Estate of Clifford Wayne Cleveland, deceased). Raymond Adams, as executor of the Estate of Clifford Wayne Cleveland, deceased v. Clifford W. “Chip” Cleveland and Celeste Cleveland Minor.
    1140732 and 1141293.
    Supreme Court of Alabama.
    May 6, 2016.

      Debra D. Spain and Chad W. Bryan of Capell & Howard, P.C., Montgomery, for petitioner/appellant Raymond Adams.
    Rob Riddle of Cleveland, Riddle & At-chison, Attorneys at Law, LLC, Prattville, for respondents/appellees Chip Cleveland and Celeste Minor.
   SHAW, Justice.

These matters involve the administration of an estate. In case no. 1141293, Raymond Adams, the executor of the estate of Clifford Wayne Cleveland, appeals from a preliminary injunction issued against him at the request of the beneficiaries of the estate, Clifford Wayne Cleveland II (“Chip”) and Celeste Cleveland Minor. In that matter, we reverse and remand. In case no. 1140732, Adams petitions this Court for a writ of mandamus directing the trial court (1) to require the beneficiaries of the estate—Chip and Minor—to produce certain materials disclosing the assets and liabilities of the estate, (2) to vacate its order prohibiting Adams from hiring attorneys and accountants to assist him with the administration of the estate, (3) to vacate its order requiring Adams to produce certain corporate documents, and (4) to sanction the beneficiaries, and (5) directing the trial judge to recuse himself from further presiding over the underlying case. For the reasons discussed below, we deny that petition.

Facts and Procedural History

As discussed in Ex parte Adams, 168 So.3d 40 (Ala.2014) (“Adams I”), this litigation began following the death of Clifford Wayne Cleveland (“Cleveland”), on March 28, 2014. 168 So.3d at 41. Cleveland died possessed of assets with an estimated value of between $2 million and $3 million; however, as discussed in more detail below, those assets were significantly encumbered, rendering the estate potentially insolvent.

Cleveland’s will named two coexecutors of the estate: Louis C. Colley, Cleveland’s law partner, and Adams, Cleveland’s business partner. The primary beneficiaries of the will were Cleveland’s children, Chip and Minor. The facts, as stated in Adams I, are as follows:

“Colley and Adams petitioned the Au-tauga Probate Court to probate the estate and were granted letters testamentary. On April 30, 2014, the Autauga Circuit Court granted Chip and Minor’s motion, as beneficiaries under Cleveland’s will, to have the probate of the estate removed to that court.
“On May 5, 2014, Chip and Minor moved the circuit court to disqualify Adams as a coexeeutor of the estate, arguing as a basis for disqualification that Adams does not reside in Alabama. The circuit court set the motion for a hearing on May 27, 2014, and gave Adams ‘ten days to provide proof of his residency.’ ... On May 9, 2014, Chip and Minor moved the circuit court to prohibit Adams from retaining any third-party professionals, such as attorneys or CPAs, to assist with the administration of the estate, arguing that it was an unnecessary expense [because they were allegedly sufficiently familiar with Cleveland’s finances]. The circuit court entered an order on that date, granting the motion and prohibiting any coexecutor or beneficiary from hiring such professional help ‘until further order’ of the circuit court. The circuit court also set the issue for further discussion at the May 27 hearing.
“On May 16, 2014, Adams filed with the circuit court a statement of residency, acknowledging that ‘he currently resides in North Carolina’ but arguing that,
“ ‘[contrary to the Motion to Disqualify Co-Executor filed by [Chip and Minor], out-of-state residency does not preclude [the] service of an executor appointed by Will. Rather, Ala. Code [1975,] § 43—2—22[,] only imposes an in-state residency requirement upon administrators of intestate estates.’
“... Also on May 16 Colley resigned as coexecutor of the estate, stating that he did not have time to fulfill his duties as coexecutor and noting that ‘[he] ha[d] been informed by Chip Cleveland, son of [Cleveland], that [Chip] is willing to assume the role of [c]o-[e]xecutor.’
That same day, Chip moved the circuit court to substitute him in Colley’s place as coexecutor or, in the alternative, to appoint him as a coexecutor of the estate. The circuit court granted that motion and appointed Chip coexecutor on May 19, 2014.
“Adams objected to the substitution of Chip as coexecutor, arguing:
“ ‘Neither the [w]ill nor Alabama law provides any basis for the substitution of an unnamed co-executor in the place of a co-executor who resigns his appointment. Rather, as a matter of law, the sole remaining co-executor is vested with full authority to act on behalf of the estate. A court may only appoint a substitute personal representative when all of the designated co-executors are unable to serve.’
“... The circuit court ‘noted’ Adams’s objection but took no further action with regard to Chip’s appointment.
“On May 23, 2014, Adams moved the circuit court to compel Chip and Minor ‘to produce all materials within their possession concerning the assets and liabilities of the [e]state’ ...; to remove Chip as coexecutor; and to impose sanctions against Chip and Minor. With regard to the latter, Adams argued that Chip and Minor had ‘obtained] the appointment [of Chip as coexecutor] through misrepresentations of law and fact.’ ...
“On May 26, 2014, Chip and Minor supplemented their motion to disqualify Adams, adding an argument that Adams had not timely administered the estate. A hearing was held on May 27, and on May 28 Adams submitted a response to the supplemental motion to disqualify him as coexecutor. On May 29, 2014, Chip and Minor moved the circuit court to compel Adams to produce certain documents related to the administration of the estate[, including ‘all documents and records’ of C & M Baling Systems, Inc. (‘C & M’), a North Carolina business jointly owned by Adams and Cleveland, and ‘any documents concerning assets wherein’ Adams and Cleveland had a shared interest]. That same day Adams moved the circuit court to require Chip to post bond as a coexecutor. The parties filed responses to those respective motions. On June 5, 2014, Adams supplemented his motion to require Chip to post a bond. It appears that there has been no ruling on those motions.
“On June 6, 2014, Adams petitioned this Court for mandamus relief from the circuit court’s May 9 order prohibiting Adams from hiring attorneys or other professionals to assist with the administration of the estate and from the May 19 order appointing Chip as coexecutor of the estate. Adams also asks this Court to instruct the circuit court to ‘direct [Chip and Minor] to produce all materials within their possession that would reflect upon the assets and liabilities of the [e]state, [including such items as check registers and statements of account]’ ..., and ‘to enter sanctions against [Chip and Minor] for the amount of attorneys’ fees and costs determined to have been the result of the ... improper attempts to usurp control over the [e]state from Adams and/or Adams’ administration of the [e]state.’ Adams also moved this Court for an emergency stay of the order appointing Chip as a coexecutor of [the] estate.
“On June 13, 2014, Chip moved for sanctions against Adams, arguing that Adams had presented ‘willful and gross falsehoods set forth in documents before [the circuit court],’ including, among others, that Chip and Minor had pressured Colley to resign as coexecutor. On June 20, 2014, this Court issued a stay of the order appointing Chip coexecutor and of ‘all proceedings in the case generally ... pending further order of this Court’ and ordered answer and briefs to be filed as to Adams’s petition for mandamus relief.”

Adams I, 168 So.3d at 41-43.

In Adams I, we first considered Adams’s claim that he had a clear legal right to have Chip removed as coexecutor. Citing applicable statutory authorities identified by Adams and the lack of ambiguity in Cleveland’s will, this Court agreed. 168 So.3d at 44-45, 46. However, noting that Adams filed the petition in Adams I before the trial court’s actual refusal to remove Chip as coexecutor, we nonetheless declined to grant the requested mandamus relief “at [that] time.” 168 So.3d at 46. We similarly denied Adams’s related requests on the ground that the trial court had not actually refused to withdraw the order prohibiting Adams from obtaining the assistance of attorneys and accountants or his demand for access to estate-related documentation in Chip and Minor’s possession. 168 So.3d at 47.

Following the release of this Court’s decision in Adams I on November 26, 2014, proceedings resumed in the trial court. Specifically, Adams immediately filed a motion requesting that the trial court rule on the motions made the subject of the petition for mandamus relief at issue in Adams I. Chip and Minor responded with their own request for a ruling on all pending motions, as well as renewed requests both to sanction Adams and to disqualify him from serving as executor.

On January 30, 2015, Adams filed a motion seeking the trial judge’s recusal on the ground of apparent bias and/or partiality in favor of Chip, whom the motion identified as “a local attorney who routinely practices before [the trial] [c]ourt.” In support of his request, Adams cited the trial court’s alleged refusal to dispose of any pleadings submitted by Adams “while ... granting] multiple filings by Chip ... almost simultaneously with their submission.” More particularly, Adams noted the trial court’s continued refusal to remove Chip as coexecutor despite alleged indications in Adams I that it might be appropriate to do so. See 168 So.3d at 46, 47 (terming the “alleged difference in treatment” as “troubling” and stating, in connection with a concurrent lift of the stay then in effect below, that we “encourage[d] the circuit court to address the pending motions expeditiously”). Adams further noted that the protracted disputes resulting from the coexecutor situation not only had hampered the probate process but also had caused the estate to incur substantial—and purportedly - unnecessary—legal fees—problems Adams anticipated would continue should the trial judge, Sibley G. Reynolds, remain sitting in the case. Attached as an exhibit to Adams’s motion was, among other submissions, a listing of the claims pending against the estate, which totaled in excess of $2 million.

Thereafter, in keeping with this Court’s observations in Adams I, the trial court, in February 2015, ordered Chip’s removal as coexecutor. The trial court also subsequently entered an “Order Setting Eviden-tiary Hearing” for April 8, 2015, specifically to consider “all pending motions and for the taking of testimony on all motions.” In response, among other related filings by the parties, Adams filed a motion specifically requesting that the hearing be transcribed, either by the trial court’s reporter or by an alternate reporter. In addition, Adams filed a renewed request to require Chip and Minor to produce all estate property and records that, according to Adams, remained in their possession. Adams also requested that he be allowed to obtain from Cleveland’s accountant Cleveland’s tax returns from 2007 until the date of Cleveland’s death, which items he had formally requested but had not received allegedly because of the interference and objection of Chip and Minor. In further preparation for the scheduled hearing, Adams also filed a motion requesting rulings on seven specific pleadings—-with filing dates from May 2014 to April 2015—and a renewed motion seeking a protective order regarding Chip and Minor’s pending request for the records of C & M Baling Systems, Inc. (“C & M”).

On April 11, 2015, Chad W. Bryan, one of Adams’s counsel of record, executed an affidavit aimed at recording certain events that had transpired during the pendency of the estate proceedings, including, among other things, hearings conducted on May 27, 2014; January 8, 2015; and April 8, 2015. Specifically, Bryan’s testimony suggested that Judge Reynolds both had conducted proceedings in locations other than the courtroom and had declined specific requests for a court reporter, thus avoiding the formal transcription of the estate proceedings; had questioned why Adams, who did not live in Alabama, wanted to serve as executor and had allegedly made comments suggesting a predisposition on the matter, including that Chip and Minor should be allowed control of the estate in light of their past extension of financial assistance to Cleveland; had- randomly scheduled hearings at which he proceeded to address matters not identified as being set for consideration, thus providing Adams with insufficient time to respond; and had made allegedly threatening comments to Adams’s counsel both in relation to the production of the C & M documentation sought by Chip and Minor and in response to their repeated requests that the hearings be transcribed.

Debra Deames Spain, Bryan’s cocounsel, executed a similar affidavit detailing her independent recollection of the April 8, 2015, hearing. Specifically, Spain testified that during the hearing Judge Reynolds: declined to recognize Adams’s request that the official court reporter transcribe the proceedings and proceeded with argument without allowing Adams to secure an alternate court reporter; accused Bryan and Adams of having violated a prior order requiring the production of the C & M documentation despite no such order having yet been issued, then proceeded, in an allegedly threatening manner, to so order from the bench; and issued similarly threatening comments in response to Adams’s request for a formal evidentiary hearing on the recusal issue.

On April 12, 2015, Adams filed the instant petition in case no. 1140732, again seeking mandamus relief. This Court subsequently ordered answers and briefs.

As reflected in the record in case no. 1141293, discussed below, while the mandamus petition remained pending in this Court, the trial court, on June 19, 2015, conducted a hearing; thereafter, the trial court entered, on June 25, 2015, an order making, among others, the following dispositions:

“1. Motion for Sibley Reynolds to re-cuse. Argument heard and the same is denied.
“2. Motion for attorneys fees called, but parties having witnesses prepared but wanting to take up other motions instead with the time allowed, the same was passed and witnesses released.
“3. Motion for the Production of Estate Property. Argued. Granted in part and denied in part. There is no estate property or asset in the possession of [Chip and Minor]. None to be delivered. Opportunity to inspect being offered and no agreement being reached.
“4. Motion for Sanctions as against [Chip and Minor] argued and denied.
“5. Request to deny motion to prohibit retention of CPA and Attorney. Motion to Prohibit was granted May 9, 2014, but the Executor has ignored the Order.
“6. Renewed Motion to deny retention of CPA and Attorney. Moot as argued.
“7. Petition for Damages for [Chip and Minor for] breach of fiduciary duty, argued and denied.
“9. Motion for a Protective Order as filed by C & M.... Court finding in hearing that [Adams] or C & M ... delivered just the day before the hearing the requested financial documents for one of the assets of the estate. Protective Order on dissemination of financial’s of C & M.... ”

The order further explained:

“The requested] evidentiary hearing being held this date, June 19, 2015, as the same was not able to be heard based on the failure to produce the C & M Baling documents to [Chip and Minor], Upon representation by counsel for [Adams], these documents now being produced the day before the hearing.
“[Adams] requesting the Motion for Recusal to be argued first and the request being granted. Upon hearing the argument, the Motion for Recusal is denied as noted above.
“Inspection issue to be handled through the counsel for [Chip and Minor] within 30 days of this date. Personal items of the deceased to be reviewed] but not delivered to the executor. Copies to be made at executor[’s] expense. The request by [Adams] to inspect the records of [certified public accountant] Wyn Minor being heard. [Adams] having the opportunity to inspect the records of Wyn Minor and failing to follow up on the inspection. [Adams] to have 30 days to arrange for that inspection.”

On August 3, 2015, Chip and Minor requested that the trial court enter a preliminary injunction preventing Adams from selling the estate’s 25% ownership interest in River Plantation, LLC (“RPL”), an entity formed by Cleveland and third parties as a holding company for approximately 600 acres of farm/hunting land. Essentially, despite the apparent insolvency of the estate, Chip and Minor expressed, in thefr motion seeking injunctive relief, a belief that they are entitled to inherit Cleveland’s interest in RPL or, at the very least, to a “right of first refusal” to purchase that interest.

Apparently three hours before the bidding deadline for the estate’s interest in RPL, the trial court granted the requested injunction, halting the sale, and set the matter for further hearing. Thereafter, over Adams’s objection and following the scheduled preliminary-injunction hearing, the trial court enjoined the sale of the estate’s interest in RPL “pending the determination of the Estate’s solvency.” As to the injunction itself, the trial court’s order provided only the following:

“This Court does Order as follows: All further activities concerning the proposed sale of the [e]state’s interest in [RPL] are enjoined, pending the determination of the [e]state’s solvency. Injunction is entered.”

The trial court similarly rejected Adams’s request that, in the event the sale was enjoined, Chip and Minor be required to post adequate security. In case no. 1141293, Adams appeals from the preliminary injunction. See Rule 4(a)(1)(A), Ala. R.App. P.

Case No. 11W7S2

Adams petitions this Court for a writ of mandamus directing the trial court (1) to direct Chip and Minor to produce the requested items of estate property and documentation regarding assets and liabilities of the estate; (2) to vacate its May 9, 2014, order prohibiting Adams from hiring attorneys and accountants to assist with the administration of the estate; (3) to vacate its order, issued from the bench during the April 2015 hearing, which required Adams to produce documents pertaining to C & M; (4) to sanction Chip and Minor by requiring them to reimburse the estate for the attorney fees and costs resulting from their allegedly unfounded attempts to have Chip appointed as coexecutor and to disqualify Adams; and (5) to direct the trial judge to recuse himself from presiding further over the underlying proceedings. For the reasons stated below, we deny the petition.

Standard of Review

As we explained in Adams I, we review a petition for writ of mandamus subject to the following standard:

“‘It is well settled that a writ of mandamus will issue where the petitioner demonstrates “ ‘(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ” ’
“Toler v. Murray, 886 So.2d 76, 78 (Ala. 2004) (quoting Ex parte Fontaine Trailer Co., 854 So.2d 71, 76 (Ala.2003), quoting in turn Ex parte State ex rel. CM., 828 So.2d 291, 293 (Ala.2002)).”

168 So.3d at 43.

Discussion

In their responses to Adams’s petition, Chip and Minor maintain that the trial court’s June 25, 2015, order, as set out above, addressed and resolved the issues before this Court in Adams’s most recent request for mandamus relief. They argue that the order clearly addressed Adams’s assertion of a clear legal right to obtain any estate-related items in Chip and Minor’s possession by granting Adams access; that, as the trial court’s order pointed out, any request by Chip and Minor to deny Adams’s hiring of an accountant was moot, because Adams had proceeded with such hiring; and that the dispute regarding production of the C & M records was moot in light of Adams’s production of the records one day before the June 19 hearing. They further argue that Adams’s' request for sanctions against Chip and Minor was without merit and that Adams’s request for the recusal of Judge Reynolds “[carries] a very high burden.”

Adams concedes that the portion of his petition pertaining to the production of the C & M records (item (3) above) was mooted by the trial court’s entry of a protective order; therefore, we do not consider that issue. Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala.2006) (“An action ... cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.”). See also Ex parte Novartis Pharm. Corp., 991 So.2d 1263 (Ala.2008) (holding that, like an appeal, a petition for a writ of mandamus may be dismissed if, while the petition is pending, an event occurs that renders it impossible for the appellate court to grant the requested relief). Adams nonetheless maintains that he possesses a clear legal right to estate property and records in the possession of Chip and Minor and to hire professionals to assist with the administration of the estate (items (1) and (2) above). However, as quoted above, the trial court’s order appears to have granted Adams sufficient access to the estate property at issue and noted that any request to permit the hiring of professionals was moot in light of the fact that Adams had already done so. Because the trial court appears to have, during the pendency of this petition, already awarded to some degree or recognized as moot the relief Adams requested as to these two issues, they are also denied as moot. Ex parte Novartis, supra.

Adams further argues that he has a clear, legal right to have sanctions imposed against Chip and Minor in the form of reimbursement of fees and costs (item (4) above) because, he argues, if he is entitled to the requested reimbursement, it must occur before the final distribution of the estate’s assets. We are not convinced, however, that Adams and/or the affected creditors do not have an adequate remedy with regard to this issue by means of direct appeal, and Adams does not cite applicable authority in support of his assertion that mandamus review of this particular claim is permissible. See State v. Martin, 69 So.3d 94, 96-97 (Ala.2011) (“Mandamus is an extraordinary remedy, and ‘[t]his Court will not issue the writ of mandamus where the petitioner has “ ‘full and adequate relief ” by appeal.’ Consequently, in seeking review of the trial court’s ... order by a petition for a writ of mandamus, it would appear that the [petitioner] ‘has an affirmative burden to prove’ that the ‘trial court clearly exceeded its discretion’ and that the [petitioner] ‘does not have an adequate remedy by ordinary appeal.’ ”), and Ex parte Heaton, 738 So.2d 877, 878 (Ala.1999) (“Mandamus relief is not appropriate when it ‘requests this Court to do something that can be done on appeal.’ ” (quoting Ex parte State Farm Gen. Ins. Co., 549 So.2d 484, 485 (Ala.1989))). See also Rule 21(a)(D), Ala. R.App. P.

The remaining issue is whether the trial judge is required to recuse himself from presiding further over the underlying proceedings. See Ex parte Crawford, 686 So.2d 196, 198 (Ala.1996) (noting this Court’s belief “that to allow the recusal issue to be raised either on appeal, after having been properly preserved at trial, or in a petition for a writ of mandamus, will best serve the interests of justice.”). Adams maintains that all litigants are entitled to have their “proceedings administered by a judge who is free from even the appearance of partiality.” Pet. at 37. See Crowell v. May, 676 So.2d 941, 944 (Ala.Civ.App.1996) (“[A]ctual bias is not necessary for a judge to recuse—only a reasonable appearance of bias or impropriety.”), and Canon 3.C(1), Alabama Canons of Judicial Ethics (“A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned .... ”).

It is well established that “[t]he burden of proof is on the party seeking recusal.” Ex parte Cotton, 638 So.2d 870, 872 (Ala.1994), abrogated on other grounds, Ex parte Crawford, 686 So.2d 196 (Ala.1996). Further,

“[t]he standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge’s impartiality.’ [Ex parte] Cotton, 638 So.2d [870,] 872 [ (Ala.1994) ]. The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question.”

Ex parte Bryant, 682 So.2d 39, 41 (Ala. 1996).

Here, Adams bases his argument that Judge Reynolds should recuse himself on Judge Reynolds’s alleged failure to voluntarily and timely rule on Adams’s motions below as opposed to Judge Reynolds’s allegedly prompt—and largely favorable—disposition of all motions filed by Chip and Minor. See Pet. at pp. 38-40. In support of his contentions, as well as citing the filing and disposition dates of the parties’ respective proceedings in the trial court, Adams identifies rulings by Judge Reynolds in other cases in which Chip was involved, in which it was subsequently determined, on appeal, that Judge Reynolds had exceeded his discretion, i.e., Adams alleges there is a history of Judge Reynolds’s preferential treatment of Chip, not just in the present case, but in all matters in which Chip appears before Judge Reynolds and in which Chip has a financial interest. According to Adams, there is, therefore, at the very least, “an appearance of partiality” tainting the proceedings. Pet. at 44.

“ ‘The necessity for recusal is evaluated by the “totality of the facts” and circumstances in each case. [Ex parte City of] Dothan Pers. Bd., 831 So.2d [1] at 2 [ (Ala.2002) ]. The test is whether “ ‘facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.”” Ex parte George, 962 So.2d 789, 791 (Ala. 2006) (quoting In re Sheffield, 465 So.2d 350, 355-56 (Ala.1984), quoting in turn Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982) (emphasis added)). ‘Recusal is not required where there is not substantial evidence to support an accusation of bias.’ Ford v. Ford, 412 So.2d 789, 791 (Ala.Civ.App.1982) (emphasis added).
“ ‘ “[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.” ’ Ex parte Balogun, 516 So.2d 606, 609 (Ala.1987) (quoting Fulton v. Longshore, 156 Ala. 611, 613, 46 So. 989, 990 (1908)).”

Ex parte Bank of America, N.A., 39 So.3d 113, 119-20 (Ala.2009).

In large part, Adams’s allegations of treatment reflecting a bias on the part of Judge Reynolds in favor of Chip stem from the trial court’s alleged failure to rule on Adams’s motions below. As reflected in the trial court’s June 2015 order, however, those motions have now largely been disposed—and not all adversely to Adams. Adams relies on Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), which, with regard to the federal recusal statute, calls for an objective review of allegations of bias and emphasizes that “what matters is not the reality of bias or prejudice but its appearance.” 510 U.S. at 548. However, Liteky also stands for the proposition that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion” because the mere fact of the ruling—or lack thereof—when viewed alone and objectively, “cannot possibly show reliance upon an extrajudicial source” and, instead, represents “proper grounds for appeal, not for recusal.” 510 U.S. at 555, 556. See also Ex parte Monsanto Co., 862 So.2d 595, 606 (Ala.2003) (same); Kitchens v. Maye, 623 So.2d 1082, 1086 (Ala.1993) (“‘The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and must result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.’ ” (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966))).

The mere failure to rule on pending matters is easily distinguishable from the severe actions found in the cases on which Adams’s petition relies in support of its call for Judge Reynolds’s recusal. See Matter of Sheffield, 465 So.2d 350, 355 (Ala.1984)(requiring recusal where the trial judge had engaged in public comment on the merits of the case and where the trial judge presided over a contempt proceeding of which he and his court were the objects); State v. Moore, 988 So.2d 597, 601 (Ala.Crim.App.2007) (holding that a trial judge should have recused himself from presiding over the retrial of a defendant whose conviction had been reversed on appeal in light of publicity detailing palpable animosity between the trial judge and the prosecutor); Ex parte Atchley, 951 So.2d 764, 765 (Ala.Crim.App.2006) (recusal was warranted where the petitioner’s unrefuted affidavit testimony established that the trial judge had previously served as petitioner’s defense counsel and that, during that prior representation, the petitioner and the trial judge became embroiled in a heated confrontation as a result of alleged pressure placed on the petitioner to plead guilty to an offense he denied committing); and Crowell v. May, 676 So.2d 941, 944 (Ala.Civ.App.1996) (affirming trial court’s grant of new trial and trial judge’s recusal from further involvement in the case following disclosure of the relationship between trial judge’s family and the family of one of the parties to the litigation). Further, excepting the mere fact that Chip practices in the circuit where Judge Reynolds sits, Adams cites no evidence of an “extrajudicial source” as a foundation for his allegations of bias. See Whisenhant v. State, 555 So.2d 219, 223 (Ala.Crim.App.1988) (“‘While a true personal bias will disqualify a jury, a judicial bias, if one exists, will not disqualify a trial judge from hearing a case.’ ” (quoting Whisenhant v. State, 482 So.2d 1225, 1237 (Ala.Crim.App.1982))).

There is evidence in the materials before us suggesting the trial court’s possible exasperation with or antagonism toward Adams and/or his counsel. On this subject, Liteky aptly explains:

“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22 (1921), a World War I espionage case against German-American defendants: ‘One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans’ because their ‘hearts are reeking with disloyalty.’ Id., at 28 (internal quotation marks omitted). Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are ivithin the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration—even a stem and short-tempered judge’s ordinary efforts at courtroom administration—remain immune.”

510 U.S. at 555-56 (some emphasis omitted; some emphasis added). See also Monsanto, 862 So.2d at 625; Ex parte Large, 501 So.2d 1208, 1210 (Ala.1986); and Hartman v. Board of Trs. of Univ. of Alabama, 436 So.2d 837, 841 (Ala.1983).

Although comments such as those reported to have been expressed by Judge Reynolds are neither to be encouraged nor commended, “ ‘[t]he vital point is that ... the judge should not himself give vent to personal spleen or respond to a personal grievance.’ Moore, 988 So.2d at 603 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954)). Contrary to Moore, there is nothing here to suggest that Judge Reynolds’s comments resulted from a personal grievance against either Adams or his counsel. See Monsanto, supra; Large, supra; and Hartman, supra. See also Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.1994) (“The trial judge’s statements arose out of a judicial proceeding, not from an extrajudicial source; and although the trial judge’s expressed opinions may have been better left unsaid, in our opinion the remarks he made do not show bias, hostility, or prejudice against Duncan arising from a ‘personal,’ i.e., extrajudicial, source.”). Further, Judge Reynolds’s alleged comments to Adams’s counsel do not rise to the level of those in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). Thus, although the alleged incidents of unprofessional behavior attributed to Judge Reynolds remain “troubling,” Judge Reynolds does appear to have heeded, to some discernible extent, our prior admonitions in Adams I; thus, Adams has failed to identify circumstances demonstrating a clear legal right to a writ by this Court directing Judge Reynolds to recuse himself from the underlying case. We, therefore, deny the petition.

Case No. 114.1293

In case no. 1141293, Adams appeals from the trial court’s preliminary injunction prohibiting the sale of the estate’s shares in RPL. More specifically, Adams maintains that the trial court’s decision was both procedurally and factually erroneous in that the injunction was entered in direct violation of both the powers expressly afforded Adams in Cleveland’s will and his statutory duties as executor and in that it further failed to satisfy Rule 65, Ala. R. Civ. P.

Discussion

As to the sufficiency of an injunctive order in light of Rule 65(d), Ala. R. Civ. P., we have explained:

“When reviewing a preliminary injunction, this Court must consider both whether the evidence in the record supports the issuance of the preliminary injunction and whether the form of the preliminary-injunction order itself complies with the requirements of Rule 65(d)(2), Ala. R. Civ. P. We review the evidence to determine whether the following elements set forth in Perley ex rel. Tapscan, Inc. v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994), were established:
“ ‘In order for a trial court to grant a preliminary injunction, the plaintiff must show all of the following: (1) that without the injunction the plaintiff would suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the plaintiff.’
“(Citing Martin v. First Fed. Sav. & Loan Ass’n of Andalusia, 559 So.2d 1075 (Ala.1990); Board of Dental Exam’rs of Alabama v. Franks, 507 So.2d 517 (Ala.Civ.App.1986), writ quashed, 507 So.2d 521 (Ala.1987)). Rule 65(d)(2) meanwhile sets forth the elements that every preliminary-injunction order must contain:
“ ‘Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.’
“... In this case, it is clear on its face that the circuit court’s order does not comply with Rule 65(d)(2). Accordingly, we need not consider whether the evidence ultimately supports the issuance of the preliminary injunction because the order is due to be reversed regardless of whether the evidence supports the issuance of the injunction. See Marathon Constr. & Demolition, LLC v. King Metal Recycling & Processing Corp., 129 So.3d 272, 276 n. 3 (Ala.2013) (‘The defendants make other complaints about the trial court’s November 28, 2012, order.... Because the trial court’s failure to comply with the requirements of Rule 65 is dispositive, we need not reach the other arguments.’).
“Pursuant to Rule 65, it is mandatory that a preliminary-injunction order give reasons for the issuance of the injunction, that it be specific in its terms, and that it describe in reasonable detail the act or acts sought to be restrained.’ Monte Sano Research Corp. [v. Kratos Defense & Sec. Solutions, Inc.], 99 So.3d [855,] 863 [ (Ala.2012) ]. The February 27, 2014, order in this case is sufficiently specific in its terms and describes in reasonable detail the acts sought to be restrained; however, it contains no explanation of the reasons- for its issuance. Instead, the order opens by stating that the court has ‘considered [Colley’s] motion for injunctive relief [and] finds said motion well taken.’ Then the order immediately proceeds to detail the specific acts that it requires or prohibits. What is missing from the order is any discussion of the reasons Colley’s motion for injunctive relief was ‘well taken.’ ”

Stephens v. Colley, 160 So.3d 278, 282-83 (Ala.2014). See also, e.g., Butler v. Roome, 907 So.2d 432, 434 (Ala.2005) (“This Court has repeatedly held that the language of Rule 65(d)(2) is mandatory and requires that an order issuing a preliminary injunction state reasons for issuing the injunction and that it be specific in its terms.”); and Marathon Constr. & Demolition, LLC v. King Metal Recycling & Processing Corp., 129 So.3d 272, 278 (Ala. 2013) (“ ‘Alabama law ... clearly provides that “[i]t is mandatory that security be given under Rule 65(c), unless the trial court makes a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist.” ’ ” (quoting Spinks v. Automation Pers. Servs., Inc., 49 So.3d 186, 191 (Ala.2010))).

Like the order at issue in Stephens, the trial court’s order in the present case is sufficiently specific as to the enjoined conduct. Also like the order in Stephens, notably absent from the trial court’s order here, however, is the requisite explanation for the issuance of the injunction. See Stephens, supra; Rule 65(d)(2).

In their brief on appeal, Chip and Minor acknowledge the mandatory nature of the requirements found in Rule 65. They maintain, however, that “elaborate detail” is not necessary to meet those requirements and, contrary to Adams’s contentions, argue that the trial court’s inclusion of language explaining that the injunction was issued “pending a determination of the Estate’s solvency” amounted to sufficient explanation for the issuance of the injunction. (Chip and Minor’s brief, at p. 14.) We cannot agree.

Chip and Minor’s argument fails to acknowledge the language of Rule 65(d)(2) as well as the numerous decisions of this Court reaffirming that the requirements of Rule 65(d)(2) are mandatory. Although the language quoted above from the trial court’s order does explain what issue the trial court intends to resolve during the term of the injunction, it wholly fails to state the specific grounds on which the injunction itself issued. That omission, alone, requires reversal of the trial court’s order, regardless of the potential underlying merit, which, as a result of the facial deficiency of the order, this Court need not reach. See Marathon Constr., supra. In consideration of the foregoing, the trial court’s preliminary injunction halting the sale of the estate’s interest in RPL is reversed and the case is remanded for further proceedings consistent with this opinion.

1140732—PETITION DENIED.

MOORE, C.J., and STUART, BOLIN, PARKER, and MAIN, JJ., concur.

BRYAN, J., concurs specially.

MURDOCK, J,, concurs in the result.

WISE, J., recuses herself.

1141293—REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

WISE, J., recuses herself.

BRYAN, Justice

(concurring specially in case no. 1140732).

I concur fully in the main opinion. I write specially to state that I believe that the trial judge's behavior in this case comes perilously close to requiring this Court to issue a writ of mandamus requiring his recusal. As the main opinion correctly notes, the standard for recusal is objective; it does not require evidence of actual bias.

“The test that remains applicable at all times, the answer to which always depends upon the ‘totality of circumstances’ of each case, is whether a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find that there is a reasonable basis for questioning the judge’s impartiality.”

Ex parte City of Dothan Pers. Bd., 831 So.2d 1, 11 (Ala.2002) (citing In re Sheffield, 465 So.2d 350, 356 (Ala.1984)). Considering the totality of the circumstances as presented by the petitioner, I am of the opinion that the trial judge’s behavior comes very close to meeting that standard.

      . According to Adams, after Cleveland served as his legal counsel, he and Cleveland became close personal friends and later established several good business ventures.

      . The remaining members of RPL had, in February 2015, submitted an initial offer to purchase Cleveland’s 25% interest in RPL from the estate. Upon receipt of that initial offer, Adams, noting that, pursuant to RPL’s operating agreement, the membership interest of a deceased member may be transferred to a lineal descendant of that member without triggering the buy-out provisions also found in the operating agreement, provided notice to Chip and Minor—in case they might be willing to pay more for the estate’s interest than the remaining RPL members. Adams later set a formal deadline by which all competing bids were due. Instead of responding with a bid as apparently anticipated, Chip and Minor sought, two days before the bidding deadline, injunctive relief to prevent the sale of Cleveland’s interest.

      . As Adams notes, this initial grant of relief appears to have been more in the manner of a temporary restraining order. The original order of the trial court provided, in full:
      “This matter having come before the Court by way of [Chip and Minor’s] Motion for Preliminary Injunction, and upon the Court considering the same, it is hereby Ordered, Adjudged, and Decreed as follows:
      "1. Said motion is well taken and due to be granted.
      "2. Executor Adams shall take no action to continue the gathering of bids and ultimately attempting to sell any interest of the Estate in that entity known as [RPL] until further order of this Court.
      "3. This matter shall be set for a hearing on the 18th day of August, 2015, at 9:00 a.m. at the Autauga County Courthouse."

      . A transcript of the preliminary-injunction hearing is not included with the record on appeal in case no. 1141293.

      . The mandamus petition was briefed and then submitted to this Court on July 10, 2015. The notice of appeal in case no. 1141293 was received by this Court on August 27, 2015, and the mandamus petition was held pending the submission of the appeal on briefs, which occurred on January 12, 2016.

      . Notably, Adams’s petition was filed before the entry by the trial court of the June 2015 order discussed in more detail above.

      . See Ex parte Found. Bank, 146 So.3d 1, 8 (Ala.2013) (holding, in a case where Chip served as counsel for the respondent in a dispute before Judge Reynolds over attempts to redeem, in the probate court, property sold pursuant to a tax sale, that because the probate court has exclusive jurisdiction over the statutory redemption process, the circuit court lacked jurisdiction to stay redemption in the probate court); Cartwright v. Maitland, 30 So.3d 405, 408 (Ala.2009) (reversing, in a case where Chip served as cocounsel for parties suing their realtor, the trial court’s refusal to compel, on the realtor’s motion, arbitration of the subject claims); City of Prattville v. S & M Concrete, LLC, 151 So.3d 295, 302 (Ala.Civ.App.2013) (reversing, in a case where Chip served as counsel for local Prattville businessman, the decision of the City of Prattville to deny a rezoning request as being neither arbitrary nor capricious and further concluding that the circuit court lacked jurisdiction because the business owner’s appeal from the zoning board’s decision was untimely); and Stanfield v. Stanfield, 2 So.3d 873, 877 (Ala.Civ.App.2008) (reversing, in a case where Chip represented one of the parties in a divorce proceeding, the trial court’s refusal to set aside a default judgment in favor of Chip’s client). We see nothing probative in these apparently random and isolated instances of the reversal on appeal of Judge Reynolds's judgments in cases where a lawyer, who apparently practices primarily within the Autau-ga Circuit, happened to serve as counsel, and Adams identifies no portion of the cited opinions indicating a determination by the appellate court that the identified error was the result of bias. Similarly, in spite of citing the foregoing cases as further evidence of Judge Reynolds’s apparent long-standing bias in favor of Chip, the petition correctly concedes that these “isolated reversals are [not per se] indicia of bias.” Pet. at 43 n. 11.

      . See 28 U.S.C. § 455.