author: WILSON, J.,

text:
    Jacob REYNOLDS a/k/a Jacob Lee Reynolds, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00846-COA
    Court of Appeals of Mississippi.
    09/19/2017

      OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AI-KENS, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON, ATTORNEY FOR APPEL-LEE
    BEFORE GRIFFIS, P.J., CARLTON, WILSON AND GREENLEE, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Armed with a gun and a baseball bat, Jacob Reynolds and an accomplice robbed the Dollar General on Highway 45 in the unincorporated community, of Laud-erdale. Jacob was indicted on two counts of armed robbery—one count for each of the two employees present in the store during the robbery—and for possession of a weapon by a convicted felon. A Lauderdale County jury found Jacob guilty of both counts of armed robbery but not guilty of the felon-in-possession charge. The circuit court sentenced Jacob to two concurrent terms of thirty-one years in the custody of the Mississippi Department of Corrections.

¶ 2. On appeal, Jacob argues that (1) he is entitled to a new trial under the doctrine of “retroactive misjoinder” because he was unfairly prejudiced by evidence introduced on the felon-in-possession charge; (2) there was insufficient evidence to support his conviction on the second count of armed robbery because he did not take any property from'the “person or presence” of the victim, an employee who fled to a stockroom at the outset of the robbery; and (3) his conviction on two counts of armed robbery for taking the. same money violates the state and federal constitutional protections against double jeopardy. We conclude that these arguments are without merit and therefore .affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Jacob lived with his younger brother, Jason Reynolds, in an RV at a trailer park in Lauderdale County. On September 11, 2014, Jacob, Jason, and their friend Jarred Baysinger were at the RV trying to come up with a way to get money fast. Jarred’s girlfriend, Claire Parker, was “begging” Jarred and Jacob to go to Disney World the néxt day with her family. But Jarred and Jacob did not have enough money for the trip.

¶ 4. Jason testified that they eventually decided to rob the Dollar General on Highway 45 in Lauderdale. Jason previously worked at the store. According to Jason, his role was to enter the store, see how many • people were there, and then tell Jacob and Jarred whether to go ahead with the robbery. They planned to rob the store shortly before it closed at-10 p.m.

¶5. Jason entered the Dollar General around 9:30 p.m. and bought a Black & Mild cigar. He used a lot of pennies to pay for the cigar, and the cashier, Audria Brown, thought that he seemed to be “stalling.” Audria recognized Jason as having worked at the store, although they never worked there at the same time. After Jason made his purchase and left, Aud-ria noticed that a group of five to ten young men were milling around outside of the store.

¶ 6. Jason testified that after he left the store he called Jacob or Jarred to let them know how many people were inside. Aud-ria testified that about twenty-five to thirty minutes after Jason left, while she was preparing for a sale the next day, she looked up and noticed that a man was waiting at her register. Audria was about to return to her register when she saw that the man was “ducking like he was scared.” When she turned around, she saw two men coming in the front door and “rushing” toward the store’s office. The first man was wearing a mask and carrying “something black.” Audria thought that the black object was a shotgun bécaüse of how the man was holding it and because she thought that she heard something “click.” Audria did not see or recall much about the second man. She was worried because she knew that the other employee in the store, Lakisha Matthews, was in the office counting down her register. Audria immediately ran to a stockroom in the back of the store. She hid there until Laki.sha came and found her after the robbery was over.

¶ 7. Marcus Moore was shopping at the Dollar General when the robbers entered. Marcus testified that both men were wearing masks, .that one man was carrying a handgun, and that the second man was carrying what appeared to be a shotgun. Marcus later learned that the second man was actually carrying a baseball bat, but he thought that it. -yvas a shotgun because of the way the man was holding it up, almost at shoulder level. Marcus “hesitated for a minute” and then “ran out of the store.” The man with, the baseball bat chased after him but-then returned to the stose.

■ ¶8. Alisha Harris and her daughter Niah were also in the Dollar General at the time of the robbery. Both heard a man say “give me the money,” and Niah saw a roan in a mask. They then hid in, the stockroom with Audria until the robbery was over.

¶ 9. Lakisha was counting the money from her register when, the two men “rushed” into the office. One of the men put a gun to her head and ordered her to give him the money that she was counting, which she did. The man thenjtold her “to go to the safe and get the money out of the safe.” The safe was at the front of the store near the cash registers. Lakisha went to the safe, which was unlocked,, and gave the man the money that was inside of it.

¶ 10. Lakisha explained that cash drops from each register were made to the safe throughout the day and at the end of the day just before closing. Lakisha testified that the safe took about ten minutes to open, so employees sometimes left the safe cracked open while counting down their registers at closing time. . ,

¶ 11. After the men left, Lakisha found Audria and the Harrises in the stockroom. Lakisha testified that approximately $150 was stolen from her register. On the night of the robbery, she provided law enforcement with an estimate of how much had been stolen from the safe, but at trial she could not recall what she told them.

¶ 12. Jason testified that he returned to the RV after he left the Dollar General. About thirty minutes or an hour later, Jacob, Jarred, and Claire all arrived in Claire’s car. Jason denied that anyone ever discussed the robbery. He also denied that he ever saw Jacob with a large amount of cash. However, Jason admitted that nobody had any money beforehand, but after Jacob and Jarred returned to the RV, they suddenly had enough money to spend the night at a hotel and buy crystal meth. They gave Jason $200 or $300 worth of crystal meth.

¶ 13. The next day, Claire, Jacob, and Jarred all left for Disney World. Jason “wasn’t invited and didn’t want to go” anyway. Claire testified that Jacob and Jarred paid for gas, most of their own meals, and admission to the parks during their vacation.

¶ 14. About a month after the armed robbery, Jason was arrested for commercial burglary in Florida and extradited back to Mississippi. Once he returned to Mississippi, Jason was interviewed by Investigator Joe Boswell with the Lauder-dale County Sheriffs Department and gave a written statement. Jason testified against his brother as part of a plea agreement. Jason testified that in exchange for his testimony, the charge of armed robbery against him would be dismissed.

¶ 15. Jason identified his brother in a still photo from surveillance video taken at the Dollar General. The surveillance video from the Dollar General was admitted into evidence at trial. According to Boswell, the video showed Jacob entering the Dollar General at 9:33 p.m., approximately twenty to twenty-five minutes prior to the robbery, without a mask. Boswell believed that one of the robbers who entered the store again twenty to twenty-five minutes later was Jacob because the robber appeared to have on the same pants, shoes, and t-shirt as Jacob, although the t-shirt appeared to be turned inside out during the robbery.

¶ 16. At trial, Jason testified that “it looked like” his brother in the still photos of the video, but he could not “positively” identify him. Jason testified that he had been able to identify his brother in the video because of “the way he walks, his swagger.” Boswell testified that he did not recall having shown Jason the video, but Jason could have seen the video on the local news or social media. Boswell testified that Jason told him that Jacob and Jarred decided to rob the Dollar General because they needed money to go to Disney World and because he (Jason) was familiar with the store’s closing procedures.

¶ 17. On October 22, 2014, Claire and Jarred were stopped by officers from the sheriffs department while driving in Claire’s car. The officers obtained a search warrant for Claire’s car and found a Llama .380 pistol under the driver’s seat and drugs. Boswell believed the Llama was the same gun used in the Dollar General robbery. Because Claire was high on spice when she was arrested, officers waited until the next day to interview her. Claire then told the officers what she knew and provided a written statement. At trial, Claire testified that she never discussed the robbery with either Jacob or Jarred.

¶ 18. The sheriffs department obtained a search warrant for Jason’s and Jacob’s RV. During the search, another resident of the trailer park approached officers and told them that his Llama .380 pistol had been stolen and that he suspected that Jacob had stolen it.

¶ 19. Jacob, Jarred, and Jason were all indicted for the armed robbery of the Dollar General. Count I of a subsequent superseding indictment charged Jacob with armed robbery, alleging that he took the property of the Dollar General, consisting of approximately $1,800, “from the person and presence of Lakisha Matthews, an employee of Dollar General, against her will by violence to her person or by putting her in fear of immediate injury to her person by the exhibition of a deadly weapon, to-wit: a handgun and a baseball bat.” Count II also charged Jacob with armed robbery. Count II was identical to Count I except that it identified Audria Brown as the victim. Count III of the indictment charged Jacob with unlawful possession of a firearm by a convicted felon and specifically identified the firearm as the “Llama Stoe-ger Arms .380 cal. pistol.” During trial, the State moved to amend the references to $1,800 in Counts I and II of the indictment to read $100. The amendment was requested as a result of Lakisha’s uncertainty at trial as to how much money was in the store’s safe at the time of the robbery. The trial judge granted the State’s motion.

¶20. At the close of the evidence, the jury found Jacob guilty of both counts of armed robbery. The jury acquitted him on Count III, possession of a firearm by a convicted felon. The court sentenced Jacob to thirty-one years in the custody of the Department of Corrections on each count, with the sentences to run concurrently.

DISCUSSION

¶ 21. On appeal, Jacob raises the three issues noted in paragraph 2, supra. We address those issues in turn below.

I. “Retroactive Misjoinder”

¶ 22. This Court adopted the doctrine of “retroactive misjoinder” in Williams v. State, 37 So.3d 717, 720-21 (¶ 9) (Miss. Ct. App. 2010). Williams was indicted for aggravated assault for stabbing a man with a small pocket knife (Count I) and for being a felon in possession of the knife (Count II). Id. at 719 (¶¶ 3-4). At trial, Williams stipulated that he was a prior convicted felon, and he was convicted on both counts. Id. at (¶4). On appeal, the State “concede[d] that the knife could not be described as a knife prohibited from possession by a felon by section 97-37-5(1),” and this Court agreed with the State’s concession; therefore, the Court reversed and rendered Williams’s conviction on Count II. Id. at 719-20 (¶ 5).

¶ 23. Williams argued that his conviction on Count I had to be reversed as well because evidence of his'prior felony conviction—which was admissible only on Count II—was “improper and prejudicial.” Id. at 720 (¶6). In addressing Williams’s argument, this Court “adopt[ed] the doctrine of retroactive misjoinder.” Id. at 721 (¶ 9). We held that retroactive misjoinder “occurs when a trial or appellate court determines that while joinder of two or more counts against a defendant was initially proper, one or more of those counts should be vacated.” Id: We held that a defendant in such a case is entitled to a new trial on the remaining count(s) if he “can show that he suffered clear and compelling prejudice as a result of the evidence introduced to support the vacated count.” Id.

¶24. Jacob argues that this doctrine applies in the present case because the jury found him not guilty on Count III. However, ’Williams is materially, distinguishable because it involved a legally invalid conviction that was vacated because the defendant’s possession of the very small pocket knife at issue was perfectly lawful. The issue in this case is different. It is not lawful for a convicted felon to possess a gun, nor was the evidence legally insufficient to convict Jacob of possessing a gun. This is simply a case in which the jury found the defendant not guilty on one count of a .multi-count indictment. Specifically, the jury did not find, beyond a reasonable doubt, that Jacob possessed the particular Llama .380 caliber pistol identified in the indictment arid jury instructions.

¶ 25. “[S]o far as we are aware, no case has held that a defendant was entitled,. on the ground of retroactive misjoin-der, to a new trial on the counts of conviction simply because the jury found the government’s proof on other counts unpersuasive.” United States v. Hamilton, 334 F.3d 170, 183 (2d Cir. 2003) (emphasis added). Indeed, the U.S. Court of Appeals for" the Seventh Circuit has stated that “[w]hen, as is often the case ..., the jury acquits a defendant of some counts of a-multi-count indictment, the defendant is not entitled to a new trial on the counts of which he was convicted, on the theory that the conviction was tainted by evidence, which the jury heard, relating to the counts on which it acquitted.”- United States v. Holzer, 840 F.2d 1343, 1349 (7th Cir. 1988). The doctrine of retroactive mis-joinder applies when the defendant was prejudiced by evidence admissible only on a charge that failed or was invalid as a matter of law. In the more typical case of conviction on some counts and acquittal on others, “the time to decide whether it is fair to subject a defendant to-a single trial for a variety of crimes ... is before trial, when the defendant can complain of mis-joinder ... or move for a severance,” Id

¶ 26. In any event, even if the doctrine of retroactive misjoinder could apply in,a case such as this, Jacob is not entitled to relief. A defendant claiming retroactive misjoinder must (1) show that “evidence [was] admitted at trial on the vacated count that would not have otherwise been admissible on the remaining count” and (2) “demonstrate clear prejudice as a result of the inadmissible evidence that was presented to the jury.” Williams, 37 So.3d at 721 (¶ 10). Indeed, this Court has stated that the defendant must “show that he suffered clear and compelling prejudice.” Id. at (¶ 9) (emphasis added). “The strength of the State’s case against the defendant on the remaining count, the specific evidence presented in connection with the vacated count, and other pertinent details of the defendant’s case and trial should be analyzed in determining if the defendant was prejudiced.” Id.

¶ 27, In Williams, Williams testified'and admitted that he stabbed the victim (Walls), and on the aggravated assault charge, “the central issue ... for the jury was whether Williams acted in necessary self-defense.” Id. at 722 (¶ 13). This Court reasoned that because “the evidence presented to the jury did not amount to much more than a swearing match between Williams and Walls, the credibility.of both individuals was of the utmost importance to Williams’s defense.” Id. at 727 (¶31). We concluded Williams suffered prejudice based on “the repeated mentioning of [his] prior felony conviction by the trial court and the State, the complete lack of any limiting instruction informing the jury that it [should] only consider his prior conviction under Count II, and the lack of an abundance of evidence that Williams did not act in self-defense.” Id.

¶ 28. In this case, the jury was informed of Jacob’s prior conviction only because he was also on trial for unlawful possession of a firearm as a. convicted felon. However, Jacob cannot “show that he suffered clear and compelling, prejudice” as a result. Id. at 721 (¶ 9). The jury was informed of the prior conviction by a stipulation that did not disclose the .offense, and the State did not unduly emphasize the conviction or introduce any other evidence of it. Moreover, unlike Williams, the trial judge instructed the jury that the stipulation was “for the limited and sole purpose of proving the prior felony element of the charge of possession of [a] firearm by a convicted felon.” The judge specifically instructed the jury that the prior conviction could “not be considered as evidence that [Jacob] committed” the crime of armed robbery. Also, unlike Williams, Jacob did not testify, so his “credibility” was not “of the utmost importance to [his] defense.” Id. at 727 (¶ 31). The issue for the jury in this case was simply whether the State had proven that Jacob was one of the two masked robbers of the Dollar General. The State presented ample evidence to support the jury’s verdict, and Jacob cannot show that the stipulation caused him any “clear and compelling prejudice.”

¶29. In addition, we note that Jacob’s trial counsel made a strategic decision to cross-examine Investigator Boswell about Jacob’s admission that he had robbed “the Dixie Oil,” a gas station. Counsel brought out that although Jacob had admitted to robbing the Dixie Oil, he also told Boswell: “I may have been at the Dollar General, but I wasn’t the one who robbed it.” This information was first elicited by Jacob, not the State. Counsel’s point was to suggest that if Jacob was truthful when he admitted robbing the Dixie Oil, he was also telling , the truth when he denied robbing the-Dollar General. Given that Jacob deliberately elicited testimony that he had committed another armed robbery,- we cannot agree that he suffered any marginal prejudice—much less “clear and compelling prejudice”—from a stipulation to an unspecified prior felony conviction.

- ¶ 30. In summary, the doctrine of “retroactive misjoinder”, does not apply simply because a jury acquits a defendant on One count of an otherwise valid multi-count indictment. And even if- the doctrine did apply, Jacob cannot demonstrate that join-der of the charges resulted in “clear and compelling prejudice.” Accordingly, this issue is without merit. ■

II. Weight and Sufficiency of the .Evidence

¶ 31. Jacob next argues that there was insufficient evidence, to support the verdict on Count II because “[t]he evidence failed to establish beyond a reasonable doubt that [he]—or his accomplice— took any personal property from Audria Brown’s person or presence.” In.the alternative, he also argues that he is entitled to a new trial on Count II because the jury’s verdict is against the overwhelming weight of the evidence. Jacob does not challenge the sufficiency or weight of the evidence as to Count I.

¶ 32. The standard of review applicable to each issue is well settled. When a defendant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The issue on appeal is not whether the reviewing court would have found the defendant guilty; rather, the conviction must be affirmed if there was sufficient evidence for “any rational trier of fact” to have rendered a guilty verdict. Id. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at 844 (¶ 18). The evidence must be “[v]iewed in the light most favorable to the verdict,” and we will affirm unless “[t]he trial court ... abuse[d] its discretion in denying a new trial[.]” Id. at (¶19).

¶ 33. “The elements of armed robbery are: (1) a felonious taking or attempt to take; (2) from the person or from the presence; (3) the personal property of another; (4) against his will; (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Cowart v. State, 178 So.3d 651, 666 (¶42) (Miss. 2015). Thus, in evaluating Jacob’s challenge to the sufficiency of the evidence on Count II, we must consider whether the State presented sufficient evidence for a rational trier of fact to find these essential elements of the offense beyond a reasonable doubt. Focusing solely on the second element enumerated above, Jacob argues that there is no evidence that he or his accomplice took anything “from the person or presence” of Audria because she fled to a stockroom as soon as the men burst into the Dollar General.

¶ 34. In Towner v. State, 812 So.2d 1109 (Miss. Ct. App. 2002), this Court addressed a similar scenario of a defendant convicted of two counts of armed robbery after he took a single sum of money that belonged to one business. Towner robbed an employee and one of the owners of Toucan’s restaurant in Gulfport by holding the two women at gunpoint, ordering them into the restaurant’s office, and demanding about $2,000 that was on the desk, in money bags, and in a register drawer. Id. at 1110— 11 (¶¶ 1-4). On appeal, Towner argued “that since the property taken from each victim was the identical property,” there could “be only one robbery.” Id. at 1113 (¶16). In rejecting Towner’s argument, this Court first held that under the plain language of the robbery statute, Miss. Code Ann. § 97-3-79 (Rev. 2014), ownership of the property taken is unimportant; what the State must prove is that property was taken from the person or presence of the victim. See Towner, 812 So.2d at 1113 (¶ 18). We held that “[r]obbing two people of one item of property at gunpoint while the property is within their proximity and control, even if neither of them owns it, may be two robberies.” Id. at 1114 (¶ 23). This is because a robbery is a crime against a specific person—unlike larceny, which is a crime against specific property. Id.

¶ 35. Of particular significance to Jacob’s argument in this case, this Court’s opinion in Toumer also adopted the following “logical explanation” of what it means to take property “from the person of presence” of another:

[T]he phrase “from the presence” or “in the presence” has been construed in a number of cases. “Presence” in this connection is not so much a matter. of eyesight as it is one of proximity and control: the property taken in the robbery must be close enough,, to the victim and sufficiently under his control that, had the latter not been subjected to violence or intimidation by the robber, he could have prevented the taking.

Id. at 1113 (¶ 19) (emphasis added) (quoting Wayne R. LaFave & Austin W. Scott Jr., Substantive Criminal Laio 443, § 8.11(c) (1986)).

¶ 36. Jacob argues that this case is factually distinguishable from Towner because Towner held a gun on both victims and took possession of the money while in the immediate physical presence of both. In contrast, Jacob and his accomplice may not have even seen Audria. Jacob also emphasizes that he and his accomplice took money from Lakisha and from the safe and not from Audria’s register.

¶ 37. We conclude, however, these factual distinctions do not remove the case from Towner’s definition of the key phrase “from the presence.” Audria testified that as she started to return to her register to ring up a customer, she saw the two robbers rushing into the Dollar General. She could tell at least one of them was wearing a mask, and she perceived that he was holding a gun. Because of her understandable fear, she ran to the back of the store and hid in the stockroom with two other customers. As Towner explained, for purposes of our State’s robbery statute, “ ‘[pjresence’ ... is not so much a matter of eyesight as it is one of proximity and control: the property taken in the robbery must be close enough to the victim and sufficiently under his control that, had the latter not' been subjected to violence or intimidation by the robber, he could have prevented the taking.” Id. (emphasis add'ed). If the robbers had not so intimidated Audria that she fled to the stockroom, she would have been in a position to prevent the taking of money from the safe, which was located at the front of the store near her register. The fact that no money was taken from Audria’s register or while the robbers were in Audria’s immediate physical presence is of no moment.

¶ 38. Under our decision in Towner, the State presented sufficient evidence that money was taken from Audria’s “presence” within the meaning our robbery statute. Accordingly, Jacob’s challenge to the sufficiency of the evidence is without merit. Jacob’s weight-of-the-evidence argument merely incorporates by reference his challenge to the sufficiency of the evidence. Accordingly, that argument is also without merit.

III. Double Jeopardy

¶39. Jacob also argues that his conviction on two counts of armed robbery for taking the same money violates the protections against double jeopardy found in the Fifth Amendment to the United States Constitution and Article III, Section 22 of the Mississippi Constitution, which both prohibit multiple convictions for “the same offense.” However, in Towner, we rejected the same argument. Towner, 812 So.2d at 1114 (¶¶ 22-23). We held that Towner was not being punished twice for the “same” offense because there was “a different element .in, each offense”—a different victim, Id. at (¶ 22) (applying the “well-established test ... found in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)”).

¶ 40. Jacob relies on the Towner dissent, see id. at 1116-18 (¶¶ 34-53) (King, P.J., dissenting), and essentially asks us to overrule Towner. However, Towner's, analysis of the issue is sound and has not been called into question. Accordingly, Jacob’s conviction on two counts of armed robbery does not violate the double jeopardy provisions of the Mississippi Constitution or the United States Constitution.

CONCLUSION

¶ 41. Jacob is not entitled to a new trial based on the doctrine of retroactive mis-joinder, there is sufficient evidence to support his convictions, the verdict is not against the weight of the evidence, and his convictions and sentences do not violate double jeopardy.

¶ 42. AFFIRMED.

LEE, C.J., GRIFFIS, P.J.Í BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ„ CONCUR. IRVING, P.J., .CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . In closing argument, defense counsel argued that there was "no hard evidence” that the Llama .380 was the same gun that was used during the robbery and that the gun used in the robbery “could have been a toy gun." During deliberations, the jury inquired whether the gun had to be the specific Llama pistol identified in the jury instructions "or just a firearm/handgun." Without objection, the court answered that the jury should refer to the instructions previously given by the court and continue deliberations. At his sentencing hearing, Jacob maintained that the gun used in the robbery “was fake."

      . “The trial judge stated that the knife was ‘the smallest pocket knife' he had ever seen.” Williams, 37 So.3d at 720 n.1.

      . In essence, by invoking the retroactive mis-joinder doctrine, Jacob is attempting to avoid the general rule that a defendant who fails to file a motion to sever charges prior to trial is procedurally barred from raising the issue on appeal. See Harris v. State, 908 So.2d 868, 875 (¶ 21) (Miss. Ct. App. 2005).

      .The State presented evidence that at least some of the money in the safe had been placed there by Audria during the course of the day. This evidence was not necessary to support the conviction. Jacob’s challenge to the conviction fails because the State presented evidence that Audria would have been in a position to prevent the taking of her employer’s money—regardless of who put it in the , safe—had she not fled in fear of the robbers.

      . The jury was instructed on Towner’s definition of "presence.”

      . Under the "concurrent sentence doctrine,” federal courts have sometimes declined to review a claim that one of two concurrent sentences violates double jeopardy, reasoning that "the existence of one valid sentence makes unnecessary the review of other sentences that run concurrently with it.” Davis v. Thaler, 373 Fed.Appx. 446, 450 (5th Cir. 2010); accord Towner, 812 So.2d at 1115 (¶ 26). However, the United States Supreme Court has held that this doctrine is inapplicable when separate and cumulative fines are imposed for each conviction, even if the defendant’s prison sentences are ordered to run concurrently. See Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987) (per curiam). In this case, it appears that the sentencing order on Count II required Jacob to pay a $1,000 fine in addition to all fines and assessments on Count I. Accordingly, even assuming that Mississippi law recognizes the concurrent sentence doctrine, we must address Jacob’s double jeopardy claim on the merits.

      . Although these provisions could have different meanings, the Mississippi Supreme Court has stated that it will "construe the double jeopardy clause of our Constitution consistent with authoritative constructions of the Constitution of the United States,” Lee v. State, 469 So.2d 1225, 1228 (Miss. 1985) (citing Sanders v. State, 429 So.2d 245, 251-52 (Miss. 1983)).

      . In Culp v. State, 933 So.2d 264, 280-81 (¶ 56) (Miss. 2005), the Supreme Court stated that our decision in Towner “correctly applied” "the Blockburger test.”


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    MARLIN BUSINESS BANK, Appellant v. STEVENS AUCTION COMPANY and John D. Stevens, Appellees
    NO. 2016-CA-01085-COA
    Court of Appeals of Mississippi.
    10/03/2017

      M. REED MARTZ, ATTORNEY FOR APPELLANT
    P. NELSON SMITH JR., COLUMBUS, ATTORNEY FOR APPELLEES
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Marlin Business Bank obtained a default judgment against John D. Stevens and Stevens Auction Company in a Pennsylvania court. Marlin sought to enroll the foreign judgment in Monroe County. The circuit-court judge denied Marlin’s motion to enroll the judgment. Marlin now appeals. '

FACTS AND PROCEDURAL HISTORY

¶2. John D. Stevens is the owner and operator of Stevens Auction Company, located in Aberdeen, Mississippi. Stevens entered into a contract with Security Depot, Inc., for the delivery, installation, and service of video-surveillance equipment on the auction premises. Security Depot, a Georgia-based company, presented Stevens with a lease agreement, entitled “work order.” The work order detailed the equipment and provided the monetary terms of the lease. Pursuant to the terms, the sum of $217 was due at delivery, with payments of the same amount to be paid over the sixty-month lease term. The work order provided an option to purchase the equipment.

¶ 3. The work order contained a forum-selection clause. The clause, located under a section titled “controlling law,” provided that the laws of Georgia controlled any legal proceeding related to the agreement. Stevens signed the agreement and made its first payment to Security Depot on November 14,2013.

¶ 4. On the day of installation, Security Depot presented Stevens with a second equipment-lease contract. The new contract was with Marlin, a third-party finance company. The new contract, entitled “Equipment Lease Contract for Leases under $100,000,” also required Stevens to make sixty monthly payments of $217. The contract with Marlin also contained a forum-selection clause. The clause provided the following:

Personal Guarantee. I hereby personally and unconditionally guarantee all amounts owed by the leasing customer under the lease. ... I agree the lessor may proceed against me separately from the leasing customer. ... I agree that the lease and personal guaranty shall be governed by the laws of the Commonwealth of Pennsylvania and any suit relating to the lease or personal guaranty shall be brought only in a state or federal court in Pennsylvania and I irrevocably consent and submit to the jurisdiction of such courts, and I waive trial by jury. I agree that my faxed signature shall be considered as good as my original signature and admissible in court as conclusive evidence of the personal guaranty.

¶ 5. Stevens signed the lease agreement with Marlin on November 21, 2013. Stevens then made its second payment to Security Depot on November 22, 2013.

¶ 6. Shortly after installation, the equipment malfunctioned. Stevens sought assistance from both Security Depot and Marlin. The equipment was never repaired, and Stevens ceased making payment. Marlin did not receive a single payment from Stevens.

¶ 7. Marlin brought suit against Stevens in a Philadelphia Municipal Court in Pennsylvania. Stevens neither appeared nor responded to the pleadings. On October 23, 2014, Marlin obtained a default judgment, in the amount of $11,459.50, against Stevens.

¶ 8. In January 2015, Marlin filed a notice of enrollment of the Pennsylvania judgment in Monroe County. Stevens challenged the motion.

¶ 9. A hearing was held, but no evidence was offered. The hearing consisted of the argument of counsel and several exhibits being marked for identification. The circuit judge took the matter under advisement and subsequently issued an order that found that Stevens was the victim of a “bait and switch” by Security Depot and Marlin as to the lease agreements and the forum-selection clauses. The circuit judge concluded that the initial agreement and lease payments were made to Security Depot and later switched to Marlin. The lease contract with Marlin was signed on November 21, 2013, but Stevens continued to make payments to Security Depot. Stevens made its second and final payment to Security Depot on November 22, 2013, just one day after execution of the contract with Marlin. The circuit judge also determined that there was no recourse available to Stevens when the switch was made from Security Depot to Marlin. Hence, the circuit judge declined to allow the Pennsylvania judgment be enrolled in Monroe County. Marlin appeals.

STANDARD OF REVIEW

¶ 10. The sole issue before this Court is whether the circuit court was ■ in error when it denied Marlin’s request to enroll the Pennsylvania judgment under the Full Faith and Credit Clause. This Court has held:

Our review of jurisdictional issues is essentially de novo: In making this determination, this Court is in the same position as the trial court, since all facts are set out in the pleadings or exhibits, and the chancellor may be reversed if he erred whether the error was manifest or not.

Schwartz v. Hynum, 933 So.2d 1039, 1041 (¶7) (Miss. Ct. App. 2006) (citations and quotation marks omitted).

ANALYSIS

¶ 11. “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” U.S. Const, art. IV, § 1. This Court has previously held that “when reviewing a judgment rendered by a [court of] competent jurisdiction in a sister state a presumption of validity as to [that court’s] assumption of jurisdiction'is given.” Head & Engquist Equip., LLC v. Penelore Corp., 864 So.2d 1025, 1028 (¶ 6) (Miss. Ct. App. 2004) (citation and quotation marks omitted). It is well settled that a foreign judgment will be presumed valid in this state unless “the party attacking the judgment ... affirmatively show[s] its invalidity.” Galbraith & Dickens Aviation Ins. Agency v. Gulf Coast Aircraft Sales, Inc., 396 So.2d 19, 21 (Miss. 1981).

¶ 12. “[judgments entered in courts of a sister state, when sought to be made the judgment of another state, may only be attacked for lack of jurisdiction, otherwise they must be given the same effect as a domestic judgment.” Id. While our supreme court has held that foreign judgments may only be attacked for lack of jurisdiction, it has also held that “the courts of this State are not required to recognize the judgment of another state [if] the judgment.... has been obtained by extrinsic fraud.” Global Oceanic Enters., Inc. v. Hynum, 857 So.2d 659, 663-64 (¶ 18) (Miss. 2003) (citation omitted).

¶ 13. Here, Stevens did not assert that the Pennsylvania court lacked jurisdiction. Thus, the Mississippi court could “only deny full faith and credit to [the] foreign judgment where the ... judgment was obtained through extrinsic fraud.” Cappaert Manufactured Hous., Inc. v. Thronson, 139 So.3d 100, 101 (¶ 1) (Miss. Ct. App. 2013). In Thronson, the court held:

Extrinsic fraud has been clefined as any fraudulent conduct of the successful par-, ty which was practiced outside of an actual adversary trial directly and affirmatively on the defeated party whereby he was prevented from presenting fully and fairly his side of the cause. For example, in Reeves Royalty, a creditor obtained a default judgment in Texas after if had assured the debtor that‘it would take no further action to collect the debt. Because the Texas judgment was procured by assurances made outside of the trial proceeding, our supreme court found extrinsic fraud rendering the judgment unenforceable.
But here, Cappaert points to nothing that occurred outside of the trial proceedings in Louisiana that led to the judgment. In other words, Cappaert is not alleging that it has, since the Louisiana appeal, learned of a conversation or agreement or assurance made outside of the trial proceeding that prompted the unfavorable judgment. Cappaert’s only evidence to support its claim of extrinsic fraud is the order appointing Judge Cox, which bore the name, but not the signature, of Justice Knoll—an order that Cappaert relied on in its Louisiana appeal. '

Id. at 108-04 (¶¶ 13-14) (citing Reeves Royalty Co. v. ANB Pump Truck Serv., 513 So.2d 595, 597-99 (Miss. 1987) (internal citations and quotation marks omitted).

¶ 14. Stevens’s opposition to the enrollment of the judgment is based the claim that the Pennsylvania court was ah inconvenient forum and that the underlying' agreements were: improperly obtained. There is no allegation that Marlin obtained the Pennsylvania judgment through fraud. The circuit court’s analysis should have focused on these exceptions. It did not.

¶ 15. Stevens argued that the Pennsylvania forum was inconvenient. The lease contract provided that suits relating'to the lease “shall be brought only in a state or federal court in Pennsylvania.” Stevens argues that the Pennsylvania forum is 1,100 miles away from Aberdeen, where the contract was executed, and this distance was inconvenient and posed a hardship for travel.

¶16. To support its argument, Stevens cites Long Beach Auto Auction, Inc. v. United Security Alliance, Inc., 936 So.2d 351, 355 (¶ 13) (Miss. 2006), where the Mississippi Supreme Court held:

Forum selection clauses are presumptively valid and enforceable, unless the resisting party can show:
(1)[The] incorporation [of the clause] into the contract was the result of fraud, undue influence or overweening bargaining power;
(2) The selected forum is: so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of its day in court; or
(3) The enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

In Long Beach, the issue of inconvenient forum selection was raised in the forum where the lawsuit was first filed. The court did not consider whether to grant full faith and credit to á foreign judgment. Id. Long Beach does not support Stevens’s argument here,

¶ 17. Here, the circuit judge apparently determined that there was fraud in the execution of these agreements. Stevens claims that it was faced with a “take it, or leave it” situation when Security Depot presented the second lease contract. Stevens argued that Security Depot strategically delayed its introduction of the second lease contract, and this was a “bait and switch.” There are two concerns. First, there was no evidence offered at the hearing. The circuit judge’s factual finding of “bait ■ and switch” was based on the argument of counsel alonq. Second, the question of whether there was. fraud in the execution of the contract must have been presented in Pennsylvania. Asdiscussed above,' in determining whether-to allow full faith and credit to the judgment, absent a jurisdictional issue, the Mississippi court may only consider whether the Pennsylvania', judgment was “obtained.by extrinsic, fraud. Hynum, 857 So.2d at 663-64 (¶ 18) (emphasis added); see also Thronson, 139 So.3d at 101 (¶ 1). The question of whether there was a “bait and switch” or fraud in the execution or inducement of . the contract was beyond the scope of the hearing on whether to allow the foreign judgment to be enrolled.

¶ 18. We find that the circuit court erred in denying full faith and credit to the Pennsylvania judgment. We remand this action with instructions to reenroll the judgment on the judgment roll of Monroe County.

¶ 19. REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . We refer to the Appellees collectively as "Stevens” unless the context requires otherwise.


author: STUART, Justice. SHAW, Justice

text:
    FMR CORP. n/k/a FMR LLC, et al. v. Elizabeth Ann HOWARD n/k/a Elizabeth Ann Hart
    1151149
    Supreme Court of Alabama.
    January 13, 2017

      Joshua D. Jones and W. Preston Martin of Bressler, Amery & Ross, P.C., Birmingham, for appellants.
    N.J. Cervera and Matthew M. Baker of Cervera, Ralph, Reeves, Baker & Hastings, LLC, Troy; and Frederick A. Erben of Beddow, Erben & Bowen, P.A., Birmingham, for appellee.
   STUART, Justice.

FMR Corp. n/k/a FMR LLC, Fidelity Management Trust Company, and Fidelity Brokerage Services LLC (hereinafter referred to collectively as “Fidelity”) appeal the order of the Pike Circuit Court denying their motion asking the court to compel Elizabeth Ann Howard n/k/a Elizabeth Ann Hart (“Hart”) to arbitrate Fidelity’s dispute with her regarding her responsibility to indemnify Fidelity for losses it might suffer if Hart’s stepchildren prevail on claims they have asserted against Fidelity that are the subject of a separate pending arbitration proceeding. We reverse and remand.

I.

On July 31, 2006, Hart’s husband, Frederick Howard, opened an online individual retirement account with Fidelity (“the Fidelity IRA”), funding it with approximately $1.2 million that had previously- been held in a retirement account administered by Howard’s former employer, BellSouth Corporation. Although Howard had previously designated his three children from a prior marriage—John Troy Howard, Jennifer Howard Brown, and Reed Howard (hereinafter referred to collectively as “the Howard children”)—as the beneficiaries of the BellSouth retirement account, he did not designate any beneficiary for the Fidelity TRA at the time it was opened or at anytime thereafter.

On January 31, 2011, Howard died; his death certificate listed the cause of his death as Parkinson’s disease, which he had suffered from since at least 2003. Howard’s will left all his personal property to the Howard children, explaining therein that no provision was being made in the will for Hart because “she has a sizeable separate estate of her own” and because úpon his death she would take ownership of the marital residence and certain other monetary accounts that she and Howard had held as joint tenants with the right of survivorship. However, because Howard never designated a beneficiary for the Fidelity IRA, Fidelity distributed the approximately $1.4 'million held in that account to Hart in accordance with the terms of the Fidelity IRA, which provided that any assets in the account would become the property of a surviving spouse when the account holder died if no beneficiary had been named. The Howard children unsuccessfully challenged that distribution in the Pike County Probate Court.

On October 10, 2012, the Howard children sued Fidelity and Hart in the Shelby Circuit Court, asserting claims of undue influence, fraud, and conversion against Hart and a claim of negligence against Fidelity. The gravamen of their claims was that Howard was incompetent at the time the Fidelity IRA was opened and that Hart was the impetus behind the online opening of the Fidelity IRA, while Fidelity was alleged to be negligent for failing to implement adequate procedures governing its online-account-opening process that would prevent either fraudulent activity or invalid actions by incompetent individuals. Upon being served, Fidelity requested an extension of time within which to file an answer, which the circuit court granted, noting in its.order doing, so that “[t]his extension of time does not waive, and specifically reserves [Fidelity’s] right to-arbitrate any claims in this, matter.” Meanwhile, Hart’s first action was to file a motion asserting that the proper venue for the Howard children’s claims was the Pike Circuit Court and requesting a transfer of the case to that forum.

On February 7, 2013, Fidelity, rather than file an answer to the Howard children’s complaint, moved the Shelby Circuit Court to compel arbitration, noting in its motion that Howard, Hart, and the Howard children had all executed documents related to accounts with Fidelity that contained arbitration provisions. Specifically, Fidelity noted that at the time of his death Howard owned multiple investment accounts with Fidelity besides the Fidelity IRA and that those accounts listed Hart and the Howard children as co-beneficiaries. Upon Howard’s death, Hart and the Howard children opened their own accounts with Fidelity to receive their respective shares of the funds held in those other accounts, and, in the process of doing so, Hart and the Howard children agreed to an arbitration provision providing, in relevant part: '

“All controversies that may arise between you and us concerning any - subject matter, issue, or circumstance whatsoever (including, but not limited . to, controversies concerning any account, order, or transaction, or-the continuation, performance, interpretation, or breach of this or any other agreement between you and us, whether entered into or arising before, on, or after the date this account is opened) shall be determined by arbitration through the Financial Industry Regulatory Authority (FINRA)

The Shelby Circuit Court did not immediately rule on Fidelity’s motion to compel arbitration, instead allowing Hart and the Howard children to litigate the venufe issue, upon which Fidelity took no position. See generally Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1076 (Ala. 2004) (indicating that parties have the right to establish the proper venue before the issue of arbitration is considered).

On February 25-, 2014, the Shelby Circuit Court entered orders ruling on the two motions pending before it. In the first order, the court granted Fidelity’s motion to compel arbitration and ordered the Howard children to submit their claim against Fidelity to the Financial Industry Regulatory Authority (“FINRA”) for arbitration. In the second order, the court granted Hart’s motion for a change of venue, agreeing that the Pike Circuit Court was the proper forum to hear the claims asserted against Hart by the Howard children. The Pike Circuit Court thereafter conducted the necessary proceedings and, on December 19, 2014, entered a final judgment resolving all claims asserted, by the Howard children against Hart. Neither the Howard children nor Hart appealed that judgment, and that judgment is not the subject of this appeal.

In May 2015, the Howard children initiated arbitration proceedings against Fidelity by filing a statement of claim with FINRA. In August 2015, Fidelity filed with FINRA- its response to the Howard children’s statement of claim, in which it also asserted a third-party claim against Hart for indemnification, noting- that the customer agreement she had agreed to abide by when opening her Fidelity accounts contained both an indemnification clause and the previously quoted arbitration provision. Hart responded by filing a motion in the Pike Circuit Court seeking a judgment declaring, essentially, that Fidelity could not compel her to participate in the arbitration proceedings involving Fidelity and the Howard children.

On April 13, 2016, Fidelity moved the Pike Circuit Court (“the trial court”) to compel Hart to arbitrate the issue whether she was obligated to indemnify Fidelity for any damages, costs, and expenses it might be ordered to pay the Howard children in arbitration as a result of Fidelity’s distribution of the proceeds of the Fidelity IRA to Hart following Howard’s death. Fidelity based its motion on the arbitration provision Hart had agreed to when she opened her own Fidelity accounts after Howard’s death; as noted, that provision stated, in relevant part, that “[a]ll controversies that may arise between you and us concerning any subject matter, issue, or circumstance whatsoever ... shall be determined by arbitration.” The trial court thereafter heard oral arguments on the issue and on June 22, 2016, entered an order holding that Hart could not be compelled to participate in arbitration at the current time, stating: •

“Compelling [Hart] to now participate as a party, in the arbitration of the claims asserted by [the Howard children] against [Fidelity] would be prejudicial to [Hart] as any claim [Fidelity] may have against [Hart] has not ripened at this time. Accordingly, the matters presently before the court are hereby stayed pending further order and [Hart] shall not, at this time, participate as a party in the arbitration of the claims asserted by [the Howard children] against [Fidelity].
“Within ten (10) days of the conclusion of the arbitration of the claims asserted by [the Howard children] against [Fidelity], [Fidelity] shall cause to be filed with this court a report of the final order of the arbiter. If, at that time, the arbitration ruling was adverse to [Fidelity], the amended motion for declaratory judgment made by [Hart] and1 the motion to compel arbitration filed by [Fidelity] shall be deemed as submitted for ruling. However, if the arbitration ruling was favorable to [Fidelity], the amended motion for declaratory judgment made by [Hart] and the motion to compel arbitration filed by [Fidelity] shall be dismissed as moot.”

Fidelity now appeals the trial court’s-denial of its motion to compel arbitration pursuant to Rulé 4(d), Ala. R. App. P.

II.

Our standard of review of a ruling denying a motion to compel arbitration is well settled:

“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala. 2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[A]fter- a motion to compel arbitration has been made and supported, the burden is on the ■ non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (opinion on application for rehearing).”’

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala. 2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000)).

III.

In conjunction with its motion to compel arbitration, Fidelity submitted documents establishing (1) that Hart entered into contracts calling for arbitration when she opened various Fidelity-branded accounts after Howard’s death, and (2) that the transactions underlying those contracts affected interstate commerce. The burden thus shifted to Hart to establish either that the arbitration provision in those contracts was not valid or that it did not apply to the dispute in question. Gantt, 882 So.2d at 315. On appeal, Hart does not challenge the validity of the identified arbitration provision; instead, she argues (1) that there is in actuality no current dispute between her and Fidelity—only the possibility of a future dispute in the event the Howard children prevail on their claim against Fidelity currently in arbitration— and (2) that, even if there were a dispute between her' and Fidelity, Fidelity has waived its right to compel arbitration of that dispute. Before considering these arguments addressing the merits of the trial court’s decision, however, we must first consider Hart’s preliminary argument that Fidelity’s appeal should be dismissed because, she argues, there has been no final judgment.

In its June 22, 2016, order, the trial court stated that it would not compel arbitration “at this time” but indicated that it might do so at some point in the future. Hart accordingly argues that there has been no final judgment that can support an appeal because, she says, the arbitration issue has not been conclusively determined. See, e.g., Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995) (“An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.”). We disagree. Once Fidelity established both the existence of a contract calling for arbitration and that that contract evidenced a transaction affecting interstate commerce, it was entitled to have its motion to compel arbitration granted unless Hart thereafter submitted evidence establishing either that the arbitration provision was not valid or that it did not apply to the dispute in question. Gantt, 882 So.2d at 315. By not granting Fidelity’s motion to compel arbitration, the trial court “effectively and substantively” denied the motion, and Fidelity is entitled to pursue appellate review of that decision. Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 952 (Ala. 2000). A key purpose of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., is to permit the speedy resolution of disputes, Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6, 13 (Ala. 2006), and allowing an order effectively denying a motion to compel arbitration to avoid appellate review because the trial court indicated it might yet compel arbitration at a later date would frustrate that intent to a large degree. Fidelity’s appeal is accordingly properly before this Court.

We thus turn to Hart’s argument that there is. no cognizable dispute between her and Fidelity that can be sent to arbitration. Essentially, Hart argues that, while Fidelity is engaged in an active dispute with the Howard children, it can have no dispute with her regarding her ultimate responsibility to indemnify Fidelity for losses related to that dispute until and unless an award or judgment is entered against Fidelity. Hart appears to concede that, if such an award or judgment is entered, Fidelity might then have an arbi-trable dispute with her; however, Hart argues, until that happens, Fidelity’s third-party-indemnification claim is simply not ripe because, she argues, only the possibility of a future dispute exists.

Fidelity argues that there is presently a dispute between it and Hart that falls within the broad scope of the arbitration provision—specifically, whether Hart is liable to Fidelity for damages it might owe the Howard children if it is determined that funds were wrongfully distributed from the Fidelity IRA opened by Howard to a separate Fidelity account opened by Hart following Howard’s death. We agree that this dispute, or “controversy” as it would be called using the terminology of the arbitration provision, falls within the scope of that arbitration provision. In their briefs to this Court, Hart and Fidelity make extensive arguments regarding the ripeness of this dispute; however, inasmuch as we have held that the subject matter of the dispute is clearly within the arbitration provision, any ripeness issue must be resolved by the arbitrator, not by this Court. See, e.g., Transportation Workers Union of America v. Veolia Transp. Servs., Inc., 24 F.Supp.3d 223, 230 (E.D.N.Y. 2014) (holding that argument that “the dispute is allegedly not ripe” 'is “for the arbitrator to decide, not the court”); Milliman, Inc. v. Health Medicare Ultra, Inc., 641 F.Supp.2d 113, 119 (D.P.R. 2009) (‘Whether the alleged dispute that led Petitioners to commence arbitration proceedings ... is ripe must ultimately be determined by the arbitrator.”); Ace American Ins. Co. v. Huntsman Corp., 255 F.R.D. 179, 210 (S.D. Tex. 2008) (“[I]f it is determined that arbitration is warranted, questions of the ripeness of the underlying disputes ... may be determined by the arbitrators.”).

Hart next argues that, even if Fidelity’s dispute with her is subject to the arbitration provision, Fidelity has nevertheless waived its right to enforce that provision against her because, she alleges, Fidelity failed to invoke the arbitration provision in a timely manner. In support of this argument, Hart emphasizes the lengthy history of this case and the fact that the Howard children initiated litigation against her and Fidelity in October 2012 but that Fidelity did not seek to enforce the arbitration provision against her until August 2015, approximately eight months after she had resolved her dispute with the Howard children. However, as was the case with Hart’s previous argument, this issue must be decided by the arbitrator, not this Court.

In Dudley, Hopton-Jones, Sims & Freeman, PLLP v. Knight, 57 So.3d 68, 71 (Ala. 2010), this Court similarly considered an argument that a party had waived its right to compel arbitration by failing to request it in a timely fashion and held that that issue should be decided by the arbitrator, not the Court, explaining:

“In Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6, 14 (Ala. 2006), this Court stated that ‘whether a party has waived the right to arbitration by its conduct during litigation is a question for the court and not the arbitrator.’ We further explained that ‘[i]n order' to show waiver by litigation-related conduct, the party opposing arbitration must demonstrate that the movant has substantially invoked the litigation process ....’ 939 So.2d at 14. Washington therefore represents an exception to the general presumption in arbitration law that arbitrators should decide allegations of waiver. See, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)) (‘[T]he presumption is that the arbitrator should decide “allegation[s] of waiver, delay, or a like defense to arbitrability.” ’).
“That exception does not apply in this case, however, because [the appellee] is not arguing that [the appellant] waived its right to arbitrate its claims by sub-' stantially invoking the litigation process. Rather, [the appellee] is arguing that [the appellant] waived its arbitration rights based on its failure to pursue its claims in a timely fashion. See [the ap-pellee’s] brief, p. 15 (‘[The appellant’s] conduct in sitting on its hands for almost a decade before seeking arbitration of its claims constitutes a waiver of its right to arbitration. Just as parties can waive their contractual right to arbitration by substantially invoking the litigation process, they can also waive such rights through dilatory conduct.’), An allegation of waiver such as this falls outside the exception articulated in Wash-. ington and is subject to the general rule that arbitrators should decide issues of waiver or delay; accordingly, we cannot affirm the judgment of the circuit court on this basis. See also Brasfield & Gorrie, 35 So.3d [601] at 606-07 n.1 [ (Ala. 2009) ] (explaining that whether a party has waived its right to arbitration by substantially inyoking the litigation process is a matter for the trial court because invoking the litigation process involves matters .that occurred under the trial court’s watch; such a waiver is therefore distinguishable from a waiver based on other factors not involving litigation conduct).”

In this case, although Hart has cited Georgia Power Co. v. Partin, 727 So.2d 2, 7 (Ala. 1998), for the general principle that “[a] court will hbt find a waiver of the right to arbitration unless the party seeking arbitration has so substantially invoked the litigation process that to-compel arbitration will substantially prejudice the party opposing it,” she makes no argument that Fidelity has waived its right to compel arbitratioh because of its litigation conduct; she instead relies exclusively on her general allegation of delay and the faets that the event underlying this dispute occurred in July 2006 when the Fidelity IRA was opened and that litigation based on that event began in October 2012, and yet Fidelity did not act to compel arbitration of its claim against her until August 2015. Hart has made no real argument that Fidelity substantially invoked the litigation process, and her argument that Fidelity waived its right to compel arbitration by failing to make that request in a timely manner is the type of waiver argument that is left to the arbitrator, not a court of law, to decide. See Knight, 57 So.3d at 71 (explaining that allegations of waiver such as this are “subject to the general rule that arbitrators should decide issues of waiver or delay”),

IV.

The trial court denied Fidelity’s motion to compel arbitration in this case, notwithstanding the fact that Fidelity submitted competent evidence establishing that a contract-calling for arbitration existed between it and Hart and that the underlying transaction affected interstate commerce. Hart’s argument that the arbitration provision she agreed to does not apply to the dispute with Fidelity is without merit," and the arguments she has raised regarding ripeness and waiver concern issues that are for the arbitrator, not a court of law, to decide. Accordingly, the judgment entered by the trial court denying Fidelity’s motion to compel arbitration is reversed and the cause remanded for the trial court to enter an order granting the motion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Bolin, Parker, and Wise, JJ,, concur.

Shaw, J., concurs specially.

SHAW, Justice

(concurring specially).

I concur. The caselaw cited in the main opinion indicates that any issue of “ripeness” regarding the indemnification claim asserted by FMR Corp. n/k/a FMR LLC, Fidelity Management Trust Company, and Fidelity Brokerage Services LLC (hereinafter referred to collectively as “Fidelity”) against Elizabeth Ann Howard n/k/a Elizabeth Ann Hart is to be determined by the arbitrator. A determination of ripeness is part of the legal dispute between the parties. Normally, the trial court must determine whether a case is ripe; here, the parties have agreed that that matter—as part of “[a]U controversies” between the parties—must instead be determined by arbitration.

Further, I note that, generally, an indemnification claim is ripe for consideration even if the indemnitee has not yet been held liable for a claim that the indem-nitor might be required to pay. In Ex parte Athens-Limestone Hospital, 858 So.2d 960 (Ala. 2003), the defendant, a hospital, sought to assert an indemnity claim against its employee, Dr. Teng, who had allegedly injured the plaintiff, Wilson. Wilson objected to the assertion of the indemnity claim, arguing that the claim was not ripe because the hospital had not yet been found liable to Wilson. This Court stated:

“Wilson also argues that the Hospital's indemnity claim is not ripe and that there is no justiciable controversy for the trial court to decide regarding the Hospital’s [indemnity] claim against Dr. Teng. Those arguments are without merit. The plain language of Rule 14[, Ala. R. Civ. P.,1 discounts Wilson’s argument that the Hospital’s indemnity claim is not ripe for consideration. Rule 14 was designed for third-party claims like the Hospital’s, because it provides for im-pleader of ‘a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff.’ Rule 14, Ala. R. Civ. P. See also Committee Comments on 1973 Adoption to Rule 14 (‘But where there is a substantive right over, Rule 14 does permit acceleration of liability by allowing the original defendant to implead a third-party claimed to be liable over to him, although there may be no liability to the original defendant unless and until the original defendant is held liable to the original plaintiff.’) (emphasis added).”

858 So.2d at 965. Thus, although Fidelity has not been held liable to Hart’s stepchildren for damages, Fidelity’s claim alleging that Hart would be required to indemnify Fidelity for any such damages cannot be said to be unripe.

      . Fidelity states that it was essentially a passive observer in the litigation initiated by the Howard children after it moved for arbitration—which it did before even filing an answer—and that Hart accordingly cannot identify ' any litigation activity on its part that would merit a finding that it had substantially invoked the litigation process, .


text:
    Luther S. PATE IV and New Pate, LLC, v. Chris W. HAYSLIP and Townes of North River Development Co.
    1130608
    Supreme Court of Alabama.
    01-22-2016
   Reh. denied.


text:
    CREEKSIDE DEVELOPMENT CORP. v. ELLIEGATOR, LLC
    1130673
    Supreme Court of Alabama.
    01-15-2016
   Affirmed.


text:
    BAYER RETAIL CO. v. EASTWYNN THEATERS, INC., and Carmike Cinemas, Inc.
    1130681
    Supreme Court of Alabama.
    01-15-2016
   Affirmed.


text:
    ELLIEGATOR, LLC v. CREEKSIDE DEVELOPMENT CO.
    1130727
    Supreme Court of Alabama.
    01-15-2016
   Affirmed.


text:
    Clement David POIROUX et al. v. Ashley RICH et al.
    1131442
    Supreme Court of Alabama.
    02-19-2016
   Affirmed.


text:
    GRAND HARBOUR DEVELOPMENT, L.L.C. v. Mitchell G. LATTOF, Jr., individually and as trustee of the trust created under the last will and testament of Frankie T. Lattof, deceased, and Walter Trent Marina, Inc.
    1140043
    Supreme Court of Alabama.
    02-12-2016
   Affirmed.


text:
    MARSHALL-JACKSON MENTAL HEALTH BOARD, INC., d/b/a Mountain Lakes Behavioral Healthcare v. Kert REEDSTROM
    1140116
    Supreme Court of Alabama.
    03-11-2016
   Affirmed.


text:
    Kert REEDSTROM v. MARSHALL-JACKSON MENTAL HEALTH BOARD, INC., d/b/a Mountain Lakes Behavioral Healthcare
    1140188
    Supreme Court of Alabama.
    03-11-2016
   Affirmed.


text:
    Annie Louise WHITTY et al. v. MONTGOMERY COUNTY
    1140279
    Supreme Court of Alabama.
    02-12-2016
   Reh. denied.


text:
    ESTATE OF Bernice MORROW, deceased v. STATE
    1140334
    Supreme Court of Alabama.
    01-15-2016
    Reh. denied 03-11-2016
   Affirmed.


text:
    Caroline Elizabeth WHITE v. Lawrence Alan WATERS
    1140427
    Supreme Court of Alabama.
    02-19-2016
   Affirmed.


text:
    Terry HUNTER, as mother and next friend of Austin Taylor Bragg v. AVONDALE BREWING CO. et al.
    1140452
    Supreme Court of Alabama.
    02-12-2016
   Affirmed.


text:
    MCFADDEN, LYON & ROUSE, LLC v. CIT COMMUNICATIONS FINANCE CORP.
    1140558
    Supreme Court of Alabama.
    02-19-2016
   Reh. denied.


text:
    EX PARTE Charles MCELVEEN
    1140614 (2130826)
    Supreme Court of Alabama.
    03-18-2016
   Cert, denied.


text:
    COASTAL NEUROLOGICAL INSTITUTE, P.C. v. Michael Roy THOMAS, personal representative of the estate of Cecil Roy Thomas, Jr., deceased
    1140668
    Supreme Court of Alabama.
    01-15-2016
   Affirmed.


text:
    EX PARTE Timothy Elijah JOHNSON
    1140708 (CR-13-1435)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE William MAYO, as personal representative of the estate of Benita F. Dyess, deceased
    1140724 (2140208)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    ROGERS & WILLARD, INC. v. ENGINEERED ARCHITECTURAL SYSTEMS, INC.
    1140733
    Supreme Court of Alabama.
    01-15-2016
   Reh, denied.


text:
    EX PARTE Ronnie Odell PARKER
    1140737 (CR-12-1729)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE CONTINENTAL MOTORS, INC.
    1140753
    Supreme Court of Alabama.
    02-19-2016
   Mand. pet. denied.


text:
    ESTATE OF Linda D. KING, deceased, Billy Smith, and Mary Smith v. Kendra CLAYTER
    1140780
    Supreme Court of Alabama.
    02-19-2016
   Reh. denied.


text:
    LOGAN PROPERTIES, LLC v. Danielle MCNEAL
    1140802
    Supreme Court of Alabama.
    02-12-2016
   Reh. denied.


text:
    Lydia Kathryn TERRY v. Joel Kirby SPENCER
    1140888
    Supreme Court of Alabama.
    01-15-2016
   Reh. denied.


text:
    APAC MID-SOUTH, INC., and Oldcastle Materials Southeast, Inc. v. Billy DOZIER and CDD Lands, LLC
    1140920
    Supreme Court of Alabama.
    02-12-2016
   Affirmed.


text:
    EX PARTE Jason E. ROGERS
    1140943 (CR-14-0252)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    Melissa LEONARD v. AMERICAN RESOURCES INSURANCE CO. and The Comedy Club
    1140951
    Supreme Court of Alabama.
    03-11-2016
   Affirmed.


text:
    Wayne WILCOX v. Jon PENCE
    1140977
    Supreme Court of Alabama.
    02-12-2016
   Affirmed.


text:
    EX PARTE Eric GUNN and Lora Gunn
    1140988 (2130578)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    Myreico BROADEN v. CITY OF MONTGOMERY et al.
    1141075
    Supreme Court of Alabama.
    03-11-2016
   Affirmed.


text:
    Tim HILLIARD v. Timm GLASS et al.
    1141091
    Supreme Court of Alabama.
    03-11-2016
   Affirmed.


text:
    Sherry DEAKLE and Dana Burney v. Ricky Terrell COCHRAN, Jr.
    1141209
    Supreme Court of Alabama.
    03-11-2016
   Affirmed.


text:
    Connie Denise WILLIAMS, administratrix of the estate of Roy Lee Brittain, and Jada C. Brittain, a minor by and through her mother and next friend, Connie Denise Williams v. ROAD GEAR TRUCK EQUIPMENT, LLC
    1141261
    Supreme Court of Alabama.
    02-19-2016
   Affirmed.


text:
    Ricky Terrell COCHRAN, Jr., as administrator of the estate of Patricia Cochran, deceased v. Sherry DEAKLE and Dana Burney
    1141263
    Supreme Court of Alabama.
    03-11-2016
   Affirmed.


text:
    Joan H. HARLEY v. Edward Ray ANDERSON and Dorothy L. Anderson
    1141286 and 1141287
    Supreme Court of Alabama.
    02-12-2016
   Affirmed.


text:
    EX PARTE Lorene VON ALLMEN
    1141290
    Supreme Court of Alabama.
    01-15-2016
   Mand. pet. denied.


text:
    EX PARTE CITY OF MIDFIELD
    1141317
    Supreme Court of Alabama.
    02-19-2016
   Mand. pet. denied.


text:
    EX PARTE Henry LATTIMER III
    1141361 (CR-14-0481)
    Supreme Court of Alabama.
    02-12-2016
   Writ of cert, quashed.


text:
    EX PARTE Tracey Lynne JEFFERY
    1141363 (CR-14-0457)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    Charles W. BRACY v. ALABAMA DEPARTMENT OF CORRECTIONS
    1141412
    Supreme Court of Alabama.
    02-12-2016
   Affirmed.


text:
    EX PARTE Ulysses Charles SNEED
    1150064 (CR-12-0736)
    Supreme Court of Alabama.
    03-18-2016
   Cert, denied.


text:
    EX PARTE BILLY BARNES ENTERPRISES, INC.
    1150065 (2130773)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Harry L. MCCALL
    1150066 (CR-14-1318)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE James GRAVELING and Lori Graveling
    1150081 (2140173)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Marcus Dantrell RIVERS
    1150153 (CR-13-1958)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Timothy Lebarron MARTIN
    1150154 (2140441)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Darrel B. WALKER
    1150167 (CR-14-1154)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Deckrice Littleton MORRISSEY
    1150168 (CR-14-1251)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE David Christopher WALLACE
    1150169 (CR-14-0873)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Joseph Ray GOLDEN
    1150181 (CR-14-0424)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Navis JENNINGS, Jr.
    1150183 (CR-14-1297)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Frederick F. WROTEN
    1150184 (CR-14-1038)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Caren Gayle RUSH
    1150188 (CR-14-0636)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Shannon WILKINSON
    1150190 (2140819)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE A.H.B.
    1150191 (CR-14-0682)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE W.M.R.
    1150193 (CR-14-1187)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Lester Paul VOLLRATH
    1150194 (CR-14-0841)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Timothy Ray WILLIAMS
    1150195 (CR-14-0685)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Joshua Lang WHIGAN
    1150198 (CR-13-0207)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Pierre CINEAS
    1150199 (CR-14-1167)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Jose VALDEZ
    1150203 (CR-14-0283)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE C.C.
    1150205 (2141008)
    Supreme Court of Alabama.
    02-12-2016
   Cert. denied.


text:
    EX PARTE Willie A. SULLEN
    1150214 (CR-14-1267)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Michael Alan TOLBERT
    1150220 (CR-14-0110)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE John H. THOMPSON
    1150227 (2140427)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Demarcus WILLIAMS
    1150229 (CR-13-1851)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Christopher GALLANT
    1150235 (CR-13-1315)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Rory DAUGHTRY
    1150239 (2140535)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Thomas H. JOINER, Jr., and Betty Joiner
    1150241 (2140211)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Maleya MCMILLAN
    1150243 (CR-14-0158)
    Supreme Court of Alabama.
    01-15-2016
   Cert, denied.


text:
    EX PARTE Tony VELASCO d/b/a Classic Auto Body
    1150273 (2130840)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Cheryl PETTY and Chris Petty
    1150281 (CR-14-0401)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Kristy HOOKS and Daron Hooks
    1150282 (2140696)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Carroll B. POWELL, Jr.
    1150283 (2140407)
    Supreme Court of Alabama.
    02-19-2016
   Cert, denied.


text:
    EX PARTE Donald Ray SYLVESTER, Jr.
    1150290 (CR-14-0769)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Robert E. WOODS
    1150292 (CR-14-1186)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Kenneth S. TRAYWICK
    1150296 (2140185)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Harvie Lee HUNT
    1150297 (CR-14-0472)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Aloysius HENRY
    1150298 (CR-14-1338)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Bobby Gene MILES
    1150299 (CR-14-1591)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Thomas Alvin WALKER
    1150300 (CR-14-0922)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Christopher Anthony WILLIAMS
    1150312 (CR-14-0626)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Stanley Brent CHATMAN
    1150313 (CR-14-0062)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Cale Bernard STARR and Gregory Alan Starr
    1150314 (CR-14-0832)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Jerrod Deshawn LUCAS
    1150316 (CR-14-0137)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Isadore Dewain PETITE
    1150318 (CR-14-1260)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Shaquille Dijion PARKER
    1150320 (CR-14-1473)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Shaniah WOODS
    1150321 (CR-14-0626)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Lebarron PENDLETON
    1150332 (CR-14-1319)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Aven COTTON
    1150338 (CR-14-1540)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Calvin MASSEY
    1150339 (CR-14-0665)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Jonathan Richard TSCHIDA
    1150341 (CR-14-0674)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Cherryl OLIVER
    1150347 (2140927)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE John Earl JUZANG
    1150356 (CR-14-1569)
    Supreme Court of Alabama.
    02-12-2016
   Cert. denied.


text:
    EX PARTE Raymond Junior CLEMMONS
    1150376 (CR-14-0382)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Brandon Colt FOSTER
    1150379 (CR-14-1375)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Mickey ELLISON
    1150391 (CR-14-1144)
    Supreme Court of Alabama.
    02-12-2016
   Cert, denied.


text:
    EX PARTE Damien Deandre SHIPLEY
    1150396 (CR-14-0550)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Ryan Gene GERICKE
    1150402 (CR-13-0433)
    Supreme Court of Alabama.
    03-18-2016
   Cert, denied.


text:
    EX PARTE Lesa Renee COLEMAN
    1150408 (CR-14-1118)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE James Edward BAKER
    1150409 (2140775)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Cornelius Terrell BROWN
    1150410 (CR-14-1041)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Jtreme Alexander SHELLEY
    1150412 (CR-14-0915)
    Supreme Court of Alabama.
    03-18-2016
   Cert. denied.


text:
    EX PARTE Robert Olin GEORGE
    1150413 (CR-14-0789)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Joseph David STOUGH
    1150415 (CR-14-1311)
    Supreme Court of Alabama.
    03-18-2016
   Cert, denied.


text:
    EX PARTE Walter R. CLAY
    1150420 (CR-14-1306)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Demarcus K. JONES
    1150428 (CR-15-0167)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Shaundale Wilfred FINLEY
    1150441 (CR-14-0265)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Christopher Ross WANK
    1150447 (CR-14-0888)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Christopher Lee BERNIER
    1150455 (CR-14-0797)
    Supreme Court of Alabama.
    03-18-2016
   Cert, denied.


text:
    EX PARTE Timothy RICHARDS
    1150456 (CR-13-1795)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Ronzie MCRATH
    1150457 (CR-14-0591)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Demitrius Wayne ALEXANDER
    1150460 (CR-13-1454)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Arterell Shamone GLADYS
    1150461 (CR-14-1128)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Perry Demon PARRISH
    1150463 (CR-14-0411)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Michael Dewayne HORTON
    1150469 (CR-14-0116)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Anita MCCURDY
    1150470 (2140475)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Rodney BROWN
    1150483 (CR-14-1117)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Clarence WATERS
    1150489 (CR-14-1031)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Brian Andre SMITH
    1150493 (CR-14-1329)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE D.S.
    1150499 (2140878)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Donnie Lee ECKLES
    1150500 (CR-14-0342)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Terry BLAND
    1150504 (CR-14-1715)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Zackery WEDGEWORTH
    1150513 (CR-14-0553)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.


text:
    EX PARTE Davida DAVIDSON
    1150521 (2150029)
    Supreme Court of Alabama.
    03-11-2016
   Cert, denied.