author: LEE, C.J.,

text:
    Wendell DUNCAN a/k/a Wendell Avery Duncan, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00354-COA
    Court of Appeals of Mississippi.
    08/15/2017

      ATTORNEY FOR APPELLANT: WENDELL DUNCAN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLIN-TON
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Wendell Duncan appeals the dismissal of his fifth motion for postconviction relief (PCR) by the Washington County Circuit Court. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 1994, Duncan was convicted of conspiracy to commit burglary of a business and burglary of a business, He was sentenced as a habitual offender under Mississippi Code Annotated section 99—19— 83 (Rev. 2007) to serve five years for the conspiracy conviction and seven years for the burglary conviction in the custody of the Mississippi Department of Corrections (MDOC). The sentences were ordered to run consecutively for a total of twelve years.

¶3. In 1995, Duncan was convicted of armed robbery. Duncan was indicted as a habitual offender for two prior convictions—shooting into an occupied dwelling and aggravated assault. However, he was not sentenced as a habitual offender for the armed-robbery conviction because the circuit judge found that the State failed to prove Duncan’s habitual-offender status. Instead, Duncan was sentenced as a non-habitual offender to thirty years in the custody of the MDOC, with the sentence ordered to run consecutively to the previously imposed, sentence as a habitual offender of twelve years for the burglary and conspiracy convictions.

¶ 4. Duncan filed his first PCR motion in 1996, which was dismissed by the circuit court. The Mississippi Supreme Court affirmed the circuit court’s judgment in 1998 in an unpublished opinion in docket number 96-CA-01017-SCT. In 2005, Duncan filed numerous motions and other documents in both the circuit court and the supreme court. The motions were denied, and Duncan was sanctioned by the supreme court for frivolous filings and barred from filing any further documents until he had paid the sanctions. In 2008, Duncan filed a motion in the circuit court to vacate his convictions and sentences, which the circuit court treated as Duncan’s second PCR motion and dismissed as time-barred and successive-writ barred. This Court affirmed the trial court’s dismissal in Duncan v. State, 28 So.3d 665, 667 (¶ 7) (Miss. Ct. App. 2009).

¶ 5. In 2011, the supreme court denied Duncan’s motion for leave to proceed in the circuit court, noting that Duncan had failed to file a direct appeal of his convictions and sentences. Duncan filed a motion in the circuit court to correct his sentence, which the circuit court treated as Duncan’s third PCR motion and dismissed as successive-writ barred. This Court affirmed the circuit court’s dismissal in Duncan v. State, 100 So.3d 996, 999 (¶ 13) (Miss. Ct. App. 2012). Duncan filed a fourth PCR motion, which was again dismissed by the circuit court. This Court again affirmed the circuit court’s dismissal in Duncan v. State, 170 So.3d 579, 582 (¶ 11) (Miss. Ct. App. 2014), finding that the PCR motion was both time-barred and successive-writ barred.

¶ 6. In November 2015, Duncan filed a fifth PCR motion in the circuit court, alleging an illegal sentence and ineffective assistance of counsel for the conspiracy and burglary convictions. The motion was dismissed as both time-barred and successive-writ barred. Duncan now appeals the dismissal of his fifth PCR motion.

STANDARD OF REVIEW

¶ 7. The circuit court’s dismissal of a PCR motion will not be reversed unless the appellate court finds the circuit court’s decision was clearly erroneous. Stokes v. State, 199 So.3d 745, 748 (¶ 7) (Miss. Ct. App. 2016). We review issues of law, however, under a de novo standard. Id. “Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) states: ‘If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified.’” Stokes, 199 So.3d at 748 (¶ 7). “This Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Dickens v. State, 119 So.3d 1141, 1143-44 (¶ 6) (Miss. Ct. App. 2013) (citation and internal quotation marks omitted).

DISCUSSION

¶ 8. Mississippi’s Uniform Post-Conviction Collateral Relief Act (UP-CCRA) provides a movant with three years to file a PCR motion, and failure to do so within the three years is a procedural bar. Franklin v. State, 203 So.3d 9, 10 (¶ 5) (Miss. Ct. App. 2016) (citing Blount v. State, 126 So.3d 927, 930-31 (¶ 12) (Miss. Ct. App. 2013)); see also Miss. Code Ann. § 99-39-5(2) (Rev. 2015). In the instant case, Duncan’s PCR motion was filed on November 17, 2015—nearly twenty-one years after his conviction on November 30, 1994. Because Duncan filed his PCR motion more than three years after the entry of his judgment of conviction, his motion is time-barred.

¶9. In addition to the time bar, “[u]nder the UPCCRA, any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion.” Stokes, 199 So.3d at 749 (¶9) (citing Miss. Code Ann. § 99-39-23(6) (Rev. 2015)). This is Duncan’s fifth PCR motion, and as such, it is barred as a successive writ.

¶ 10. As Duncan correctly asserts, errors that violate a fundamental constitutional right are excepted from the procedural bars. Carter v. State, 203 So.3d 730, 731 (¶ 7) (Miss. Ct. App. 2016). The right to be free from an illegal sentence has specifically been held as one of the fundamental-rights exceptions to the procedural bars. Id.- However, “merely asserting a constitutional-right violation is insufficient to overcome the procedural bars.” Fluker v. State, 170 So.3d 471, 475 (¶ 11) (Miss. 2016) (quoting Means v. State, 43 So.3d 438, 442 (¶ 12) (Miss. 2010)). Rather, “[t]here must at least appear to be some basis for the truth of the claim before the procedural bar will be waived.” Id.

¶ 11. In the instant case, Duncan asserts that his PCR motion is excepted from the procedural bars, arguing that he served an illegal sentence for the burglary and conspiracy convictions in violation of his fundamental constitutional rights. However, Duncan fails to go beyond “merely asserting” that his sentence was illegal and thus violated his fundamental constitutional rights. As this Court stated in Duncan, 170 So.3d at 581 (¶ 9), “the sentence Duncan complains of is technically over,” as Duncan completed serving it approximately ten years ago. Thus, .even assuming arguendo that his claim is excepted from the procedural bars, the alleged defect could not be remedied, as the sentence he seeks relief from is over. Nevertheless, Duncan has not made a showing sufficient to implicate the fundamental-rights exception to the procedural bars. As such, this fifth PCR motion is time-barred and successive-writ barred.

¶ 12. Duncan’s PCR motion also alleges ineffective assistance of counsel. “The Mississippi Supreme Court has consistently held that the UPCCRA’s procedural bars apply to PCR claims based on ineffective assistance of counsel.” Stokes, 199 So.3d at 749 (¶ 12) (citation omitted). As such, Duncan’s PCR claim of ineffective assistance is also time-barred and successive-writ barred.

¶ 13. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Herman BARNES, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01254-COA
    Court of Appeals of Mississippi.
    08/22/2017

      ATTORNEY FOR APPELLANT: HERMAN BARNES (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT JR.
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   CARLTON, J.,

FOR THE COURT:

¶1. Herman Barnes filed a motion for postconviction relief (PCR) in the Marion County Circuit Court seeking relief from the Mississippi State Parole Board’s decision to review his parole eligibility after four years, instead of once every year. The circuit court dismissed Barnes’s PCR motion for lack of jurisdiction. Barnes filed a motion for reconsideration, which the circuit court subsequently denied. Barnes now appeals, claiming that the Parole Board’s decision violates Mississippi Code Annotated section 47-7-18(6) (Rev. 2015). Finding no error, we affirm the circuit court’s dismissal of Barnes’s PCR motion.

FACTS

¶2. On September 3, 1983, a Marion County jury convicted Barnes of capital murder, and the circuit court sentenced him to life in the custody of the Mississippi Department of Corrections (MDOC). On November 14, 1983, a Marion County jury convicted Barnes of aggravated assault on a law-enforcement officer, and the circuit court sentenced Barnes to serve five years in the custody of the MDOC. Then, on March 2, 1984, a Marion County jury convicted Barnes of an additional count of capital murder. The circuit court sentenced Barnes to a consecutive life term, with instructions that he serve his sentences in the following order:

[Barnes] is to begin serving his sentence [for the 1984 capital-murder conviction] after the completion of his sentence imposed [for aggravated assault of a law-enforcement officer, ... ] and the [five-year] sentence [for aggravated assault of a law-enforcement officer] is to begin to run consecutive and after the completion of his sentence [for the, 1983 capital-murder conviction].

Barnes is currently an inmate at the Central Mississippi Correctional Facility.

¶3. During sentencing, the trial court set November 12, 2003, as Barnes’s initial parole date. The record reflects that the Parole Board denied Barnes parole on that date, as well as on two additional dates. The record shows that following Barnes’s most recent denial of parole on March 9, 2016, the Parole Board setoff Barnes’s next parole-eligibility hearing for four years.

¶ 4. On April 26, 2016, Barnes filed his PCR motion, alleging that he is entitled to a parole hearing at least “once per year”; therefore, Barnes argues the Parole Board possessed no authority to impose a four-year setoff. On May 11, 2016, the circuit court dismissed Barnes’s PCR motion for lack of jurisdiction. The circuit court explained:

Barnes complains of the denial of parole. While decisions concerning parole eligibility may fall under the [Mississippi Uniform Post[ ]Conviction Collateral Relief Act (UPCCRA) ], the denial of parole does not. Miss. Code Ann. § 99-39-5; see Evans v. State, [ 188 So.3d 1256, 1262 (¶ 25) (Miss. Ct. App. 2016) ].
Additionally and alternatively, one interpretation of the relief Barnes seeks is injunctive relief. Under that interpretation, this Court would be the inappropriate venue for such a suit. Miss. Code Ann. § 11-11-3 (Rev. 2004).
Finally, the court notes that it is not apparent from the information presented to the court that Barnes’s next review by the Parole Board will occur in 4 years. Exhibit D, attached to Barnes’s petition, is a sheet entitled “ACTION OF THE PAROLE BOARD.”
Exhibit D bears text reading: -“[X] DENIED PAROLE CONTINUED. () Month(s); 4 _; () Year(s): () Duration.” It is unclear whether the punctuation following the word “Month(s)” is a colon or a semicolon. Should it be a colon, then it appears to the court that Barnes would be eligible for his next hearing in four months, not four years.

¶ 5. On July 6, 2016, Barnes filed a motion for reconsideration, which the circuit court denied on July 15, 2016. In its order denying Barnes’s motion for reconsideration, the circuit court provided that:

[T]he Mississippi Supreme Court has held .that decisions of parole matters are soundly within the discretion of the [P]a-role [B]oard, and not the courts. Vice v. State, 679 So.2d 205, 208 (Miss. 1996). Further, there is no liberty interest in parole that would implicate some form of judicial review. Id. (citations omitted). The Motion for Reconsideration is therefore denied.

¶ 6. On August 26, 2016, Barnes filed his appeal. ■

STANDARD OF REVIEW

¶ 7. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard, of review.” Lackaye v. State, 166 So.3d 560, 562 (¶ 5) (Miss. Ct. App. 2015).

DISCUSSION

¶ 8. Barnes argues that the Parole Board’s decision to deny parole, and setoff his next parole-eligibility hearing for Tour years violated section 47-7-18(6).

¶9. Section-47-7-18(6) provides, in pertinent-part, that: ,. - , .

If the [Parole B]oard denies parole, the board may schedule a subsequent parole hearing and, if a new date is scheduled, the board-shall identify. the corrective action the inmate will need to take in order to be granted parole. Any inmate not released at the time of the inmate’s initial parole date shall have a parole hearing at least every year.

¶ 10. In the recent and similar case of Willard v. Mississippi State Parole Board, 212 So.3d 80, 83-84 (¶¶ 6, 14) (Miss. Ct. App. 2016), this Court explained that section 47-7-18 “became effective on July 1, 2014, with the passage of H.B. 586,” which “amended-the statutory law prohibiting-parole eligibility.” This Court determined that “the Legislature intended the statute to apply prospectively[.]” Willard, 212 So.3d at 85 (¶ 17). As .a result, this Court found that a petitioner is ineligible for parole under the provisions of section 47-7-18 if his conviction and sentence predate the effective date of that statute. Willard, 212 So.3d at 86 (¶ 18).

¶ 11. We further recognize that “the grant or denial of parole is entirely within the Parole Board’s discretion, and the denial of parole is not subject to a statutory right of appeal.” Id. at (¶ 19). In Drankus v. Mississippi Parole Board, No. 2015-CP-01049-SCT, 224 So.3d 83, 84, 2017 WL 449621, at *1 (¶ 1) (Miss. Feb. 2, 2017), Michael Drankus argued that the “[Pjarole [Bjoard’s ... decision to deny [him] parole and to ‘setoff his next parole hearing for three years[ ] violated Drankus’s constitutional and statutory rights.” The Mississippi Supreme Court held “the circuit court here has no jurisdiction to hear an appeal of the [P]arole [B]oard’s decision to setoff Drankus’s next parole hearing for three years.” Id. at 85, 2017 WL 449621, at *2 (¶ 7). In explaining its decision, the Drankus court cited Cotton v. Mississippi Parole Board, 863 So.2d 917, 920-21 (¶ 10) (Miss. 2003), stating “the circuit court had no authority to adjudicate the matters presented because there was no statutory mandate granting circuit courts jurisdiction over appeals concerning the denial of parole.” Drankus, 224 So.3d at 85, 2017 WL 449621, at *1 (¶ 6). See also Drankus v. State, 215 So.3d 1000, 1001 (¶ 7) (Miss. Ct. App. 2017) (discussing the supreme court’s decision in Drankus, 224 So.3d at 84, 2017 WL 449621, at *1 (¶ 1)).

¶ 12. The Drankus court also held that “the recent amendments to Mississippi’s parole statutes ... do not apply to prisoners ... who were admitted prior to the amendments’ effective date.” Drankus, 224 So.3d at 85, 2017 WL 449621, at *2 (¶ 7); see Fisher v. Drankus, 204 So.3d 1232, 1236 (¶ 13) (Miss. 2016) (“A statute will not be construed to be retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is.”). The record herein reflects that Barnes received his convictions and sentences in 1983 and 1984, well before the July 1, 2014 enactment of section 47-7-18. As a result, we find that the provisions of this statute do not apply to Barnes.

¶ 13. After our review, we find no error in the circuit court’s dismissal of Barnes’s PCR motion for lack of jurisdiction.

¶ 14. AFFIRMED.

LEE, C. J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . The record reflects that all three convictions stemmed from the same incident.


author: ISHEE, J.,

text:
    JACKSON-GEORGE REGIONAL LIBRARY SYSTEM, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee
    NO. 2016-CC-01201-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEY FOR APPELLANT: STACIE ELIZABETH ZORN
    ATTORNEYS FOR APPELLEE: ALBERT B. WHITE, ANNA CRAIN CLEMMER
    BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Johnell Fowler was terminated by the Jackson-George Regional Library System (JGRLS) after posting a compromising photo of a library patron in violation of JGRLS’s confidentiality policy. Fowler’s claim for unemployment benefits was initially denied by the claims examiner on the basis of employee misconduct. On appeal before an administrative law judge (ALJ), however, the claim examiner’s findings were reversed, and benefits were awarded. JGRLS appealed the ALJ’s decision to the Mississippi Department of Employment Security’s (MDES) Board of Review (the Board), which adopted and affirmed the ALJ’s findings and conclusions. Aggrieved, JGRLS then appealed to the Jackson County Circuit Court, which affirmed the Board’s decision. JGRLS now seeks relief from this Court. We reverse and render.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Fowler was employed as a clerk by the St. Martin Library, a branch of the JGRLS, for roughly seven years and five months. Fowler was terminated on September 22, 2014, and filed for unemployment benefits bn September 30, 2014.

¶ 3. At the time of Fowler’s termination, Fowler was on a six-month probationary period implemented in June 2014. Fowler’s notice of probation stated that if any further disciplinary incidents or insubordination occurred while she was on probation, Fowler would be subject to immediate disciplinary action including, but not limited to, suspension without pay or -termination. The infractions leading to Fowler’s probation, however, were excluded from the ALJ’s scope of investigation because, according to JGRLS, Fowler’s final incident was allegedly enough to warrant immediate termination.

¶ 4. Sometime after the initiation of her probationary period, Fowler posted a compromising photograph of a St. Martin library patron on Facebook. The photo depicted the patron sitting at a library computer with her underwear exposed, which Fowler captioned as “St. Martin’s finest.” Lori Barnes, director of the JGRLS, became aware of Fowler’s photo, and on September 22, 2014, issued to Fowler a letter of termination. Pursuant to her role as JGRLS’s director, Barnes possessed the sole authority to terminate JGRLS employees for cause. Barnes’ stated in Fowler’s termination letter that Fowler’s posting of the photo violated JGRLS’s “confidentiality policy,” which, in its entirety, read: “Maintain strict confidentiality of all customer information. Never discuss customers with other employees in public areas.” The confidentiality policy, however, did not articulate the punishment for a violation thereof. Barnes, in her letter, wrote that she could not fathom a more textbook-violation of the policy, and thus, terminated Fowler immediately.

¶ 6. As a result, Fowler filed for unemployment benefits on September 30, 2014, which a claims examiner initially denied on the basis that Fowler was found to have violated JGRLS’s confidentiality policy. Fowler appealed to an ALJ. The ALJ conducted a telephonic hearing on December 5, 2014, wherein Fowler and Barnes testified as to Fowler’s termination, among other things. In light of the testimony presented at the hearing, the ALJ reversed the findings of the claim examiner, and awarded Fowler benefits. The ALJ made clear the “decision [was] rendered on a credibility basis,” and that the best-available evidence revealed JGRLS’s confidentiality policy was not uniformly applied.

¶ 6. Aggrieved, JGRLS appealed to the Board. The Board affirmed the ALJ, thereby adopting the ALJ’s findings and conclusions. JGRLS then appealed to the Jackson County Circuit Court. The circuit court affirmed the Board, which affirmed the ALJ’s finding that substantial evidence existed supporting the conclusion that JGRLS did not uniformly enforce its rules and policies. JGRLS now appeals to this Court, arguing that the Board’s ruling was not supported by substantial evidence, and therefore, was arbitrary'and capricious.

STANDARD OF REVIEW

¶ 7. “Our review of' an administrative appeal is well established. In the absence of fraud and if Supported by substantial evidence, an order from the Board of Review of the MDES on the facts is conclusive in the lower court.” EMC Enter. Inc. v. Miss. Dep’t of Emp’t Sec., 11 So.3d 146, 150 (¶ 9) (Miss. Ct. App. 2009) (internal quotations omitted). This Court will not disturb an administrative agency’s decision “on appeal unless it 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.’ ” Id. (citing Pub. Emps’ Ret. Sys. v. Dozier, 995 So.2d. 136, 138 (¶ 7) (Miss. Ct. App. 2008)).

¶ 8. “A rebuttable presumption exists in favor of the administrative agency’s decision and findings, and the challenging party has the burden of proving otherwise.” Id. (citing Cummings v. Miss. Dep’t of Emp’t Sec., 980 So.2d 340, 344 (¶ 13) (Miss. Ct. App. 2008)). “[I]f an agency’s decision is not based on substantial evidence, [however,]'it will be deemed arbitrary and capricious.” Id. (quoting Case v. Pub. Emps’ Ret. Sys., 973 So.2d 301, 310 (¶ 20) (Miss. Ct. App. 2008)).

DISCUSSION

I. Misconduct Defined

¶ 9, “A person is disqualified from receiving unemployment benefits if ‘[she] was discharged for misconduct connected with [her] work, if so found by [MDES].’ ” Kidd v. Miss. Dep’t of Emp’t Sec., 202 So.3d 1283, 1285 (¶ 6) (Miss. Ct. App. 2016); see also Miss. Code Ann. § 71-5-513(A)(1)(b) (Rev. 2012). The Mississippi Supreme Court addressed the definition of “misconduct”' in Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss. 1982). There, the supreme court defined “misconduct” as:

[C]onduct evincing such willful'and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, [come] within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary, negligence in isolated incidents and good faith errors in judgment or discretion [are] not considered “misconduct.”

Id, (citation omitted).

¶10. Additionally, MDES Regulation 308.00 (Miss. Admin. Code § 20-1-101:308.00) states, in pertinent part:

For purposes of Mississippi Code Section 71-5-513, misconduct shall be defined as including but. not limited to:
1. The failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed;
a. An individual shall be found guilty of employee misconduct for the violation of an employer rule only under the following conditions:
i. the employee knew or should have known of the rule;
ii. the rule was lawful and reasonably related to the job environment and performance; and
iii[J the rule is fairly and consistently enforced,

(Emphasis added). “The employer bears the burden of proving misconduct by substantial, clear, and convincing evidence." Kidd, 202 So.3d at 1285 (¶ 6); accord Miss. Code Ann. § 71-5-513(A)(l)(e).

II. The Board’s Decision Was Not Supported by Substantial Evidence

¶ 11. As the circuit court highlighted in its order, the issue before the Board was whether there was substantial evidence to support the finding that Fowler’s actions did not constitute employee misconduct because JGRLS did not uniformly apply its confidentiality policy. On appeal to this Court, JGRLS alleges there was no evidence upon which the Board could support its decision. Reviewing the record, we likewise cannot say that the Board’s decision was supported by substantial evidence.

¶ 12. “Substantial evidence ... means something more than a mere scintilla of evidence, and that it does not rise to the level of a preponderance’of the evidence.” Smith v. Tippah Elec. Power Ass’n, 138 So.3d 900, 903 (¶ 12) (Miss. 2014) (internal quotations omitted). “It may be said that it means such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id. “Substantial evidence1 means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” Id. Here, JGRLS’s principal argument is that Fowler’s testimony related to the ultimate issue was not based upon personal knowledge—therefore, it could not rise to the level of substantial evidence. We agree.

¶ 13. During. the hearing before the ALJ, Barnes testified that, though Fowler was on probation for prior, unrelated infractions, her posting of the photo was grounds for immediate termination. Because of this testimony, Fowler’s prior infractions that lead to her probation'were deemed irrelevant, and excluded from the ALJ’s' scope of investigation. Barnes further testified that through her role as JGRLS’s director, she had personal knowledge of other employees’ disciplinary records.- She reiterated as well that JGRLS’s rules and regulations were uniformly and consistently enforced, that past employees had been subject to immediate termination for confidentiality-policy violations, and that were other employees to post similar photos, they would have faced similar penalties. Fowler, on the other hand, testified to the contrary.

¶ 14. Fowler began by stating that the Facebook photo she posted was of a patron, likely taken in 2Q13, which remained on her phone for years; prior to her posting the photo, it had never been shared with anyone else. Fowler went on to testify that she posted the photo after other JGRLS employees began posting photos of a similar nature. Fowler stated that she was aware of JGRLS’s policies, but at the time she posted the photo, did not believe her photo violated any JGRLS rules as neither the patron’s name nor face was displayed in the photo. She likewise stated that, in hindsight, she realized the posting was the wrong thing to do, but in light of that above, she did not realize at the time that her actions would violate JGRLS’s confidentiality policy.

¶ 15. Fowler also stated that, to her knowledge, of the other employees who posted similar Facebook photos, none were disciplined. Though she admitted that she did not divulge the names of those fellow employees to Barnes, nor possessed actual, personal knowledge of others’ disciplinary records, Fowler testified that she would have known if others were reprimanded because JGRLS employees “talk to each other.”

¶ 16. Following the hearing, the ALJ stated in his opinion:

The best available evidence indicates that those rules were not uniformly enforced against all the employees. Violation of a rule that is not uniformly enforced does not constitute misconduct as defined by Mississippi state law.
This decision is rendered on a credibility basis. The testimony of [Fowler and Barnes] carried as to the enforcement of the rules. [Fowler’s] testimony on that issue was cohesive and convincing.
While [Fowler’s] actions may constitute sufficient reason to discharge an at-will employee, they were not proven to constitute misconduct and thus do not disqualify the claimant from receiving unemployment insurance benefits.

Thus, the ALJ found that JGRLS did not meet its burden of proving misconduct by substantial, clear, and convincing evidence. See Kidd, 202 So.3d at 1285 (¶ 6); accord Miss. Code Ann. § 71-5-513(A)(l)(c); see also Miss. Admin. Code § 20-1-101:308.00.

¶ 17. It was further found that Fowler’s testimony was consistent, reliable, and credible. JGRLS, however, contends that because Fowler’s testimony was uncorroborated hearsay not based upon any personal knowledge, it cannot rise to the level of substantial evidence, and thus, the Board’s adoption of the ALJ’s findings was arbitrary and capricious. We agree.

¶ 18. We find such even in light of the fact that “the [R]ules of [E]vidence are relaxed in administrative settings[J” Sky-Hawke Tech. LLC v. Miss. Dep’t of Emp’t Sec., 110 So.3d 327, 330 (¶ 9) (Miss. Ct. App. 2012). We also acknowledge that the circuit court relied heavily on McClinton v. Mississippi Department of Employment Security, 949 So.2d 805 (Miss. Ct. App. 2006), in which this Court held that “if hearsay, even if not corroborated in the traditional sense, is highly probative because it has strong indicia of reliability, it can at least in many situations be substantial evidence.” Id. at 814 (¶ 29). Likewise, MDES asserts the same here. Upon review of the record, however, we cannot say that this is one of the many situations the McClinton court anticipated.

¶ 19. This is because Mississippi Rule of Evidence 602 states “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” M.R.E. 602. Thus, “[a] person must have personal knowledge of the matter as opposed to a mere opinion, in order to testify.” M.R.E. 602 advisory committee’s note to 2016 amendment (emphasis added). And though evidence “introduced to sufficiently prove the witness’s personal knowledge” permits “the witness [to] testify to that matter,” we find such is not the case here. Robinson v. State, 940 So.2d 235, 238 (¶ 9) (Miss. 2006).

¶ 20. To begin, Fowler admitted that she lacked any personal knowledge as to other employees’ disciplinary records. From an evidentiary standpoint alone, that is enough to bar her testimony as to the uniform enforcement of JGRLS’s rules and regulations. See M.R.E. 602. Going further, however, we cannot say that Fowler’s assertions of personal knowledge due to employee correspondence was enough to “supply the necessary foundation showing that [she] ha[d] personal knowledge.” See M.R.E. 602 advisory committee’s note to 2016 amendment. JGRLS employs over ninety employees across eight different branches. Yet Fowler failed to report any of the other employees allegedly engaged in similar conduct, and did not provide any statements by them to her that would have given her personal knowledge that they had not been disciplined. Thus, having laid no foundation, and possessing no personal knowledge as to the ultimate issue of uniform enforcement, we find Fowler’s testimony cannot constitute substantial evidence—as such, the Board’s decision cannot stand.

CONCLUSION

¶21. In sum, we recognize both the highly deferential standard of review accorded the Board’s findings and the rebut-table presumption in favor of its decision. EMC, 11 So.3d at 150 (¶ 9) (citing Cummings, 980 So.2d at 344 (¶ 13)). Nevertheless, because we find the Board’s decision was not supported by substantial evidence, it necessarily follows that the decision was also arbitrary and capricious. See id. Therefore, we reverse and render the judgment of the circuit court, and reinstate the ruling of the claims examiner denying benefits to Fowler.

¶ 22. REVERSED AND RENDERED.

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


author: MAIN, Justice. MURDOCK, Justice

text:
    EX PARTE LERETA, LLC (In re: Fronia Warhurst v. City of Tuscumbia et. al.)
    1151054
    Supreme Court of Alabama.
    December 2, 2016

      Rachel J. Moore, J. Todd Miner, and Nathan C. Weinert of Najjar Denaburg, P.C., Birmingham, for petitioner.
    Rebecca Narmore, Tuscumbia, for respondent.
   MAIN, Justice.

LERETA, LLC, petitions this Court for a writ mandamus directing the Colbert Circuit Court to vacate its order denying LERETA’s motion to set aside a default judgment entered against it in the action brought by Fronia Warhurst and to enter an order setting aside the default judgment. Because we conclude that Warhurst did not perfect service of process on LERETA, we grant the petition and issue the writ. , ..

I. Facts and Procedural History

Warhurst’s house flooded during a rainstorm in September 2012. On July 28, 2014, Warhurst sued the City of Tüseüm-bia, JP Morgan Chase Bank, N.A. (“Morgan Chase”), and LERETA. Warhurst averred that Tuscumbia negligently and/or wantonly maintained or repaired a storm-drainage system near her' house, which, she said, proximately resulted in the flooding. Warhurst further alleged that, before the flooding, Morgan Chase, the holder of Warhurst’s mortgage, wrongfully terminated her flood insurance. Finally, War-hurst alleged that LERETA, a company that provides flood-zone-determination reports and certifications to lenders, incorrectly informed Morgan Chase that War-hurst’s house ■ was not in a flood zone. Warhurst demanded judgment against all three defendants in the amount of $250,000, “or as a jury may determine.”

Warhurst attempted to serve LERETA via certified mail addressed to its corporate headquarters. The certified mail was not addressed to any particular individual; rather, it was addressed generally to “Lereta LLC,” as follows:

“Lereta LLC
“1123 Parkview Drive
“Covina, California
“91724”

The certified mail was received and signed for by an employee of LERETA on August 4, 2014. It is undisputed that the employee who signed the certified-mail receipt was not an officer, partner, managing agent, general agent, or agent authorized by appointment or by law to receive service of process. Further, the employee who signed for the certified mail did not check the “agent” box on the certified-mail return receipt.

LERETA did not file an answer. On September 15, 2014, Warhurst filed an application for entry of a default judgment against LERETA and requested that the judgment be entered in the amount of $250,000. On October 9, 2014, the circuit court entered a default judgment against LERETA in the amount of $250,000. The claims against Tuscumbia and Morgan Chase remained pending, and, on the motion of Tuscumbia, the circuit court stayed the action as to Tuscumbia pending War-hurst’s collection efforts against LERETA.

On March 25, 2016, LERETA filed a motion to set aside the default judgment. In its motion, LERETA argued that the court’s October 9, 2014, order purporting to enter a default judgment was not a final judgment and thus was subject to being set aside by the circuit court. It also argued that Warhurst had not perfected service on LERETA because the certified mail was not addressed to an officer, member, managing agent, general agent, or an agent authorized by appointment or law to receive service of process. LERETA further averred that it has a meritorious defense, that no prejudice will result to War-hurst if the default judgment is set aside, and that the default judgment was not a result of its own culpable conduct. In support of its motion, LERETA attached an affidavit of its chief executive officer, John Walsh. Walsh testified that he was unaware of the action against LERETA until March 2016. He testified that the employee who signed for the certified mail was not an officer, member, or managing or general agent of LERETA and was not an agent authorized to receive service of the complaint.

Warhurst states that, on April 20, 2016, she initiated formal debt-collection proceedings in California in an attempt to collect on the default judgment entered against LERETA. On May 26, 2016, the circuit court entered an order denying LERETA’s motion to set aside the default judgment. This petition for the writ of mandamus followed.

II. Analysis

Initially, we address whether a petition for a writ of mandamus is the proper vehicle by which to address the circuit court’s denial of LERETA’s motion to set aside the default judgment.

“ ‘ “Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.’ ”
“ ‘Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala. 2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991)). Mandamus will he to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala. 2004).’ ”

Ex parte Scrushy, 940 So.2d 290, 293-94 (Ala. 2006)(quoting Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala. 2004)).

Ordinarily, “[i]f we were dealing with a true judgment by default, where damages had been assessed and the judgment was otherwise ‘final,’ the petitioners would have an adequate remedy by means of appeal, and mandamus would not be appropriate.” Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 897 (Ala. 2005). The default judgment in this case, however, did not adjudicate all the claims as to all the parties, and the circuit court did not certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Thus, the order is interlocutory and does not support a direct appeal. See Progress Indus., Inc. v. Wilson, 52 So.3d 500, 505 (Ala. 2010) (“ ‘A judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all defendants.’” (quoting Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982))).

Nevertheless, despite the nonfinal nature of the judgment, Warhurst has initiated legal proceedings in California against LERETA in an attempt to collect on the judgment, and the circuit court in thi^ case has indefinitely stayed the action against Tuscumbia pending Warhurst’s collection efforts. Accordingly, LERETA is currently faced with defending against collection proceedings related to a nonfinal judgment as to which it has no present right to appeal. Under these circumstances, LERETA has no adequate means by which to challenge the nonfinal judgment, other than a petition for writ of. mandamus. Thus, a writ of mandamus is the appropriate remedy in this case. See, e.g., Ex parte Family Dollar, 906 So.2d at 897 (holding mandamus review proper from the denial of a motion to set aside a nonfinal default judgment).

Further supporting our conclusion that mandamus is the proper remedy is LERETA’s contention that the default judgment is void for want of personal jurisdiction. “ ‘ “[Mjandamus will he to direct a trial court to vacate a void judgment or order.” ’ ” Ex parte Trust Co. of Virginia, 96 So.3d 67, 69 (Ala. 2012) (quoting Ex parte Scrushy, 940 So.2d at 294, quoting in turn Ex parte Sealy, 904 So.2d at 1232). LERETA argues that the circuit court never obtained personal jurisdiction over it and, thus, that the default judgment is void and is due to be set aside. Specifically, LERETA contends- that it was not served in .accordance with Rule 4, Ala. R. Civ. P., because the certified mail was not addressed to a natural person .who is “an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.” Rule 4(c), Ala. R. Civ. P. We agree.

Although a circuit court has “great discretion” in ruling on a motion to set aside a default judgment, if a default judgment is void, it must be set aside:

“ ‘ “The standard of review in the case of an order setting aside, or refusing to set aside, a default judgment proceeds on the basis that the trial judge has great discretion, and his judgment will not be disturbed unless he has clearly [exceeded] such discretion.” Roberts v. Wettlin, 431 So.2d 524, 526 (Ala. 1983). However, “[w]hen the grant or denial [of a request for relief from a judgment] turns on the validity of the judgment, discretion has no place for operation. If the judgment is void, it is to be set aside; if it is valid, it must stand.” Smith v. Clark, 468 So.2d 138, 141 (Ala. 1985).’”

Boudreaux v. Kemp, 49 So.3d 1190, 1194 (Ala. 2010)(quoting Cameron v. Tillis, 952 So.2d 352, 353 (Ala. 2006)); see also LVNV Funding, LLC v. Boyles, 70 So.3d 1221, 1226-27 (Ala. Civ. App. 2009) (“In reviewing the ruling of a trial court on a motion to vacate a default judgment on the ground that the judgment was void, this court applies a de novo standard of review. ... Discretion plays no part in determining .whether a default judgment is void.”).

Failure to prefect service renders a default judgment void. “‘The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void.’” Boudreaux, 49 So.3d at 1194 (quoting Nichols v. Pate, 992 So.2d 734, 736 (Ala. Civ. App. 2008)).

In this case, Warhurst attempted service on LERETA by requesting the clerk to issue service of process by certified mail pursuant to Rule '4(i)(2)(B)(i), Ala. R. Civ. ■P. That provision authorizes a plaintiff to effectuate service by certified mail as follows:

“(i) In the event of service by certified mail by the clerk, the clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision....”

(Emphasis added.) Rule 4(c)(6) provides upon whom process must be served when seeking to serve “Corporations and Other Entities.” Thus, when seeking to serve a corporation or other business entity by certified mail, Rule 4(c)(6) directs to whom the certified mail must be addressed. That section provides:

“(c) Upon Whom Process Served. Service of process ... shall be made as follows:
(t
“(6) Corporations and Other Entities. Upon a domestic or foreign corporation or upon a partnership, limited partnership, limited liability partnership, limited liability company, or unincorporated organization or association, by serving an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.”

(Emphasis added.) The Committee Comments to Amendment to Rule 4 Effective August 1, 2004, make clear that Rule 4(c)(6) was intended to require that personal or certified-mail service to a business entity must be accomplished by directing service to a “specific person” or a registered agent:

“The former provision allowing corporations and other business entities to be served by certified mail at any of their usual places of business has been eliminated. Now, personal or certified mail service must be directed to the registered or appointed agent or to a specific person, such as an ‘officer/ ” '

(Emphasis added.)

Furthermore, Rule 4(i)(2)(C) provides when service by certified mail is deemed effective:

“(C)- When Effective. Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee’s agent as evidenced by signature on the return receipt. Within the meaning of this subdivision, ‘agent’ means a person or entity specifically authorized by the addressee to receive the addressee’s mail and to deliver that mail to the addressee. Such agent’s authority shall be conclusively established when the addressee acknowledges actual receipt of the summons and complaint or' the court determines that the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default. An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within time to avoid a default. In- the case of an entity included ■ in one of the provisions of Rule 4(c), ‘defendant/ within the meaning of this subdivision, shall be such a person described in the applicable subdivision of 4(c).”

Again, the Committee Comments specifically state that effective service by certified mail to a business entity requires delivery to an “addressee,” who must be a person as identified in Rule 4(c)(6), or, alternatively, to the addressee’s agent specifically authorized to receive the addressee’s mail. The Committee Comments state: “If the defendant is an entity, such as a corporation within Rule 4(c)(6), the ‘addressee’ will have to be a person defined in that rule, such as an ‘officer’ or a ‘managing agent.’ ” (Emphasis added,)

Based on the above, we are clear to the conclusion that service on a corporation or business entity cannot be perfected by certified mail addressed merely to the entity itself. Rule 4 plainly and specifically provides that service on a business entity by certified mail requires the mailing to be addressed to an “officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.” To be effective, the certified mail must be delivered to that addressee or that addressee’s authorized agent.

In the present case, the certified mail was addressed only to “Lereta LLC.” It was not addressed to an “officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service. of process.” Accordingly,, service by certified mail to LERETA was ineffective; the circuit court never obtained personal jurisdiction over LERETA; and, consequently, the default. judgment is void. Therefore, the circuit court exceeded its discretion in denying LERETA’s motion to set aside the default judgment. See LYNV Funding, 70 So.3d at 1232 (holding that circuit court erred in denying relief from default judgment where certified-mail service to limited-liability corporation was not addressed to an officer, partner, managing or general agent of the limited-liability corporation or an agent authorized to receive service of process on behalf of the limited-liability corporation).

III. Conclusion

Because the circuit court lacked personal jurisdiction to enter the default judgment, LERETA’s motion to set aside the default judgment was ,due to be granted. Accordingly, we direct the circuit court to set aside its order of May 26, 2016, denying LERETA’s motion to set aside the default judgment and to enter an order setting aside the default judgment.

PETITION GRANTED; WRIT ISSUED.

Stuart, Parker, Wise, and Bryan, JJ., concur.

Bolin, J., concurs in the result.

Murdock and Shaw, JJ., dissent.

MURDOCK, Justice

(dissenting).

I believe we are providing mandamus relief based on a faulty premise as framed in the main opinion: “LERETA[, LLC,] is currently faced with defending against collection proceedings related to a nonfinal judgment as to which it has no present right to appeal.” 226 So. 3d at 143. That situation simply cannot be. Because the judgment against LERETA does not adjudicate all claims against all parties and has not been certified as final by the Colbert Circuit Court under Rule 54(b), Ala. R. Civ. P., it is not a final judgment for purposes of appeal (indeed, the circuit court is free to alter or rescind the default judgment under Rule 54, Ala. R. Civ. P.), by definition it is not a final judgment for purposes of execution. Finality for purposes of execution and appeal is the same. One cannot be subject to execution of a judgment without having the full due-process right of an appeal of that judgment. Not only is this conclusion intuitively and logically correct, it is also rooted in the language of Rule 54(a), Ala. R. Civ. P., which defines a “judgment” as simply “a decree or any order from which an appeal lies.” (Emphasis added.) If no appeal lies, then there is no “judgment” for execution.

LERETA -will have an adequate remedy by appeal, if and when the judgment against it is made final. LERETA will say, of course, that the remedy of an appeal is not “adequate” because of the imminent collection efforts. But again, the judgment against LERETA is not final—Fronia Warhurst has no “judgment” upon which she properly may execute at the present time. LERETA’s proper interlocutory remedy, in other words, is to seek mandamus relief to stop the collection efforts on a nonfinal judgment. But it has not requested such relief in this case.

      . "Although the committee comments are not binding, they may be highly persuasive.” Iverson v. Xpert Tune, Inc., 553 So.2d 82, 88 (Ala. 1989). See also Thomas v. Liberty Nat'l Life Ins. Co., 368 So.2d 254, 257 (Ala. 1979).

      . We note that a number of unpublished federal district court decisions have reached the same conclusion. See, e.g., Parks v. Quality Serv. Integrity, No. 2:13-CV-909-WKW, Nov. 9, 2015 (M.D. Ala. 2015) ("[Plaintiffs certified mailing] was not addressed to a natural person who was authorized to receive process on behalf of Defendant. As a result, service of process was not proper under Alabama law.”); Johnson v. Champions, No. 12-0334-WS-M, Jan, 24, 2013 (S.D. Ala. 2013) ("[X]he mailing must be addressed, not simply to the artificial entity, but to a human being affiliated with the entity as an officer, partner or agent as described in Rule 4(c)(6).”); and Weckesser v. Sea Tow Corp., No. 08-0528-WS-M, Aug. 24, 2010 (S.D. Ala. 2010) ("There is no human addressee on the certified mailing to Sea Tow, so service was not effective under Alabama law.).

      . Compare Wallace v. Belleview Props. Corp., 120 So.3d 485, 500-01 (Ala. 2012) (Murdock, J., concurring specially):
      "[I]t is important to acknowledge the synonymous nature of the finality of a Rule 54(b) judgment for purposes of execution and for purposes of appeal. The purposes and effects of a Rule 54(b) certification necessarily mean that an order certified as final under Rule 54(b) is final for all the same purposes as any other judgment and, accordingly, must be viewed as being 'as final' as any other final judgment. 10 Charles Alan. Wright et ah, Federal Practice and Procedure § 2654 (3d ed. 1998), for example, states that 'Rule 54(b) also is important because of the collateral effects of a determination under the rule.' ... As further explained in Federal Practice and Procedure:
      “ ‘Because Rule 54(b) provides a means of rendering a final judgment on part of a multiple-claim or multiple-party action, it has an effect on various other rules or procedures connected with the rendition of judgment. For example, as was stated earlier, once there has been a Rule 54(b) certification and a final judgment has been entered, the time for appeal begins to run. Similarly, preclusion principles are based on a final judgment so that since a Rule 54(b) order is viewed as final, it has binding effect. On the other hand, if no certificate issues, the court’s decision or order remains interlocutory and the above effects will not take place.
      " 'Other matters that should be noted in relation to the entry of a judgment under Rule 54(b) are that it enables a lien to be imposed on the judgment debtor's property and a writ of execution to be issued to begin the process of collecting any damage[s] award. Section 1962 of Title 28 provides that every district-court judgment shall be a lien on the property in the state in which the court is sitting, in accordance with the law of that state; state law commonly requires a judgment to be final in order to create a lien.
      '.' 'Another effect of a Rule 54(b) order is on the accrual of interest on a judgment, since interest begins to accumulate only on a judgment that has become final.'
      "10 Federal Practice and Procedure § 2661. Professor Moore likewise explains that a judgment certified as final under Rule 54(b) is a final judgment 'for all purposes,' specifically emphasizing its finality for purposes of the 'running of time to appeal,' as well as for purposes of 'res judi-cata,’ the accrual of Interest and 'execution.' See Moore's Federal Practice § 54.26 Cl]—[43. See also Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721, 728 (D.C. Cir. 1969)('[T]he role Rule 54(b) plays with reference to the finality of a judgment for purposes of appeal has implications as regards its finality for purposes of execution as well.' (footnote omitted)).
      "The latter authorities, including the opinion of the United States Court of Appeals for the District of Columbia in Red-ding, point to the absolute unworkability— ‘chaos’ would be the right word in many cases—of a scenario where a judgment as to a claim is certified as final and execution ensues (so that a money judgment is collected or a judgment deed to land is delivered), only to have the losing party decide years later that he or she should not so readily have acquiesced in the certified judgment and therefore choose to appeal an already executed judgment along with the judgment entered on the remainder of the claims in the case. A judgment is either final or it is not. The law does not have two types of finality, one brand of finality for purposes of being able to execute upon a judgment and another brand of finality for purposes of appealability. Finality for purposes of appeal and for purposes of execution are the same. 'Enforcement of a judgment by execution ... presupposes a judgment which determines with finality the rights and liabilities of the parties.' 30 Am. Jur. 2d Executions, Etc, § 57 (2005). See also, e.g., 2 Federal Procedure, Lawyer Edition § 3:133 ('Since an execution ordinarily issues only a final judgment, finality for purposes of execution and finality for purposes of appeal should be the same.').”
      (Footnote omitted; emphasis omitted; emphasis added.)

      . I also believe that the circumstances of Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 897 (Ala. 2005), cited in the main opinion, are distinguishable from those of the present case (a fact suggested by Justice Lyons in his special writing in that case concurring in part and concurring in the result in part). I further believe that the substantive analysis offered by Justice Lyons (joined by Justice Johnstone), as well as the similar position expressed by Justice Woodall in his dissenting opinion in that case, is correct.


author: BOLIN, Justice.

text:
    EX PARTE April Steele BENTON et al. (In re: Amir Alan Ebrahimi v. April Steele Benton et al.)
    1151181
    Supreme Court of Alabama.
    December 2, 2016

      Michael L, Haggard of Smith, Tyra, Thomas & Haggard, LLC, Alabaster, for petitioners April Steele Benton and John Benton; and Wayne Randall of Donald, Randall & Donald, Tuscaloosa, for petitioner State Farm Mutual Automobile Insurance Company.
    Christopher M. Long-of Mezrano Law Firm, Homewood, for respondent.
   BOLIN, Justice.

April Steele Benton and John Benton (hereinafter collectively referred to as “the Bentons”) and State Farm' Mutual Automobile Insurance Company • (“State Farm”), the defendants below, petition this Court for a writ of mandamus directing the Bibb Circuit Court to vacate its July 18, 2016, order denying the Bentons’ and State Farm’s motion to transfer this action from the Bibb Circuit Court to the Shelby Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ.

I. Facts and Procedural History

On December 4, 2014, April Steele Benton, a resident of Bibb County, and Amir Alan Ebrahimi, a resident of Shelby County, were involved in a two-vehicle collision in Shelby County. Following the collision, Ebrahimi was transported from the scene of the accident by Regional Paramedical Services to the University of Alabama at Birmingham Medical Center (“UAB”), where he received treatment for his injuries.

On March 8, 2Ó16, Ebrahimi filed a complaint in the Bibb Circuit Court against April Steele Benton; John Benton, the owner of the car April was driving; and State Farm, Ebrahimi’s underinsured-mo-torist carrier. On April 20, 2016, the Ben-tons filed a motion to transfer the action to Shelby County based on the doctrine of forum non conveniens, as codified in § 6-3-21.1, Ala. Code 1975. The Bentons argued in their motion that Shelby County has a stronger connection to the case because: (1) the accident occurred in Shelby County; (2) the Pelham Police Department, located in Shelby County, investigated the accident; (3) Ebrahimi, the plaintiff, resides in Calera, which is located in Shelby County; (4) the first responders, employees of Regional Paramedical Services, are located in Shelby County; (5) Ebrahi-mi was treated at UAB, which is closer to Shelby County than to Bibb County; and (6) the only connection this action has with Bibb County is the fact that the Bentons, the defendants, reside there. On May 3, 2016, State Farm joined in the motion to transfer. Ebrahimi did not file a motion in opposition.

On July 18, 2016, the trial court, following a hearing, entered an order denying the motion for a change of venue. On September 1, 2016, the Bentons and State Farm filed this petition for a writ of mandamus.

II. Standard of Review

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner 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) properly invoked jurisdiction of .the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused, its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So. 2d 932, 936 (Ala. 1995)

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998).

III. Analysis

The Bentons and State Farm contend that the trial court exceeded its discretion in denying their motion to transfer the underlying action from Bibb County to Shelby County under the “interest-of-justice” prong of § 6-3-21.1 because, they say, all the material events giving rise to Ebrahimi’s claims occurred in Shelby County and Bibb County’s only connection to this action is the fact that the Bentons reside there. Section 6-8-21.1 provides, in pertinent part:

‘With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

(Emphasis added.) “A [party] moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.” Ex parte Masonite Corp., 789 So.2d 830, 831 (Ala. 2001)(em-phasis added). In this case, it is undisputed that venue is proper in both Bibb County and Shelby County. However, Ebrahimi chose to file his complaint in Bibb County, where the Bentons reside. “When venue is appropriate in more than one county, the plaintiffs choice of venue is generally given great deference.” Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003). Accordingly, this Court must determine “whether ‘the interest of justice’ overrides the deference due [Ebrahimi’s] choice of forum.” Ex parte J & W Enters., LLC, 150 So.3d 190, 194 (Ala. 2014).

“The ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [(Ala. 1998)]. Therefore, ‘in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So. 2d 906, 911 (Ala. 2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala. 2007). The petitioners in this case are thus required to demonstrate ‘ “that having the case heard in [Shelby] County would more serve the interest of justice” ’ than having the case heard in [Bibb] County. Ex parte First Tennessee Bank, 994 So.2d at 909 (quoting Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006)).”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala. 2008).

We conclude that the Bentons and State Farm have demonstrated a clear legal right to have the underlying action transferred from Bibb County to Shelby County. Under our prior decisions construing the interest-of-justice prong of § 6-3-21.1, this Court gives great weight to the fact that the accident occurred in Shelby County and to the fact that no material events occurred in Bibb County. See, e.g., Ex parte Wayne Farms, LLC, 210 So.3d 586, 591 (Ala. 2016) (holding that the interest of justice required transfer of a personal-injury action from Bullock County to Pike County where, among other things, the plaintiffs were residents of Pike County; the accident occurred on the plaintiffs’ farm in Pike County; and most of the emergency personnel who responded to the accident were located in Pike County, and the only connection the case had to Bullock County were the facts that one of the defendants lived there and that the plaintiffs operated a processing facility there); Ex parte Manning, 170 So.3d 638 (Ala. 2014)(holding that the interest of justice required transfer of a personal-injury action from Macon County to Montgomery County where, among other things, the accident occurred in Montgomery County; law-enforcement personnel who responded to the accident worked in Montgomery County; the plaintiff was transported to a hospital in Montgomery County after the accident; and the plaintiff was a resident of Montgomery County, and the only connection to Macon County was the fact that the defendant was a resident there); Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 750 (Ala. 2010)(holding that the interest of justice required transfer of a personal-injury action from Montgomery County to Elmore County where, among other things, the plaintiff was a resident of Elmore County; the accident occurred in Elmore County; and the emergency personnel who responded to the accident were from Elmore County, and, “[bjesides the fact that [the defendant] is [a] resident of Montgomery County, there was no other evidence before the trial court indicating a connection between the case and Montgomery County”); Ex parte Indiana Mills, supra (holding that the interest of justice required transfer of a personal-injury action from Macon County to Lee County where, among other things, the accident occurred in Lee County and the Lee County police and emergency personnel responded to the scene and investigated the accident, and the only connection to Macon County were the facts that the defendant company conducted business there and that one of the individual defendants resided there); and Ex parte Mitchell, 690 So.2d 356, 358 (Ala. 1997) (holding that the interest of justice required that a personal-injury action against an insurance company be transferred to DeKalb County where all the parties to the action were DeKalb County residents and all the transactions relating to the sale of the policy occurred in DeKalb County).

In this case, nothing material to the underlying action transpired in Bibb County; rather, Bibb County’s only connection to the case is the fact that the Bentons, the defendants, reside there. See Ex parte Wachovia Bank, N.A., 77 So.3d 570, 574 (Ala. 2011)(“In short, nothing material to this case transpired in Macon County. Macon County’s sole material contact with this case is that the two individual defendants ... reside there.”). The accident in this case occurred in Shelby County; the police personnel and emergency personnel who responded to the accident were from Shelby County; and Ebrahimi, the plaintiff, is a resident of Shelby County. This Court sees no need to burden Bibb County, with its weak connection to the case, with an action that arose in Shelby County simply because the Bentons, the defendants, reside there.

IV. Conclusion

We hold that, based on the evidence before the trial court at the time of its ruling, the court should have granted the Bentons’ and State Farm’s motion for a change of venue, and we accordingly issue the writ of mandamus and direct the trial court to vacate its order denying the motion and to enter an order transferring the action to Shelby County.

PETITION GRANTED; WRIT ISSUED.

Stuart, Shaw, Wise, and Bryan, JJ., concur.

Parker and Main, JJ., concur in the result.

Murdock, J., dissents.