author: FAIR, J., FOR THE COURT:

text:
    Darrell W. PHILLIPS a/k/a Darrell Phillips a/k/a Darrell Wendell Phillips, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00056-COA
    Court of Appeals of Mississippi.
    January 9, 2018
    DARRELL W. PHILLIPS (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Darrell Phillips's suspended sentence was revoked after he was convicted of a felony in Tennessee. He later filed a motion for post-conviction relief challenging the timeliness of his revocation hearing. The circuit court dismissed it without an evidentiary hearing, finding that although Phillips's revocation hearing was untimely under the statute, he was not entitled to have his revocation set aside. We agree and affirm.

STANDARD OF REVIEW

¶ 2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f 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." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State , 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

DISCUSSION

1. Statutory Timeliness of Revocation Hearing

¶ 4. In 2008, Phillips pled guilty to felony shoplifting. He was sentenced to five years' incarceration followed by five years of post-release supervision. In September 2013, Phillips was arrested in Tennessee for attempted robbery. A short time thereafter, the State filed a motion to revoke Phillips's suspended sentence, and a bench warrant was issued. Phillips subsequently pled guilty in Tennessee to the robbery charge. He was transported back to Mississippi on September 18, 2015, and was served with the revocation warrant that day. Phillips was appointed counsel for the revocation proceedings, and he apparently presented no defense at the revocation hearing in exchange for a reduced sentence after revocation. The hearing was held October 16, 2015, and the order revoking the suspended sentence was filed the same day. Phillips was ordered to serve three years of his suspended sentence.

¶ 5. On September 9, 2016, Phillips filed the instant motion for post-conviction relief, alleging that his revocation hearing was untimely pursuant to the 2014 amendments to revocation procedure enacted by House Bill 585, which became effective July 1, 2014. The 2014 amendments substantially changed probation and suspended sentence revocation, prescribing certain procedures and time limitations, and notably limiting revocations for "technical violations" to certain prescribed time periods. See Miss. Code Ann. § 47-7-37 (Rev. 2015). In particular, subsection 47-7-37(3) requires that, after an offender is arrested on a warrant for an alleged violation of probation (or suspended sentence), "the department shall hold an informal preliminary hearing within seventy-two (72) hours of the arrest to determine whether there is reasonable cause to believe the person has violated a condition of probation." Subsection (5)(a) then provides that the revocation hearing shall be held within twenty-one days of the arrest if the offender remains detained on the warrant. If the hearing is not held within twenty-one days, "the offender shall be released from detention and shall return to probation status," but the court may still "subsequently hold a hearing" and revoke the suspended sentence. Id. at (5)(c). Subsection (10) requires that the "revocation charge shall be dismissed if the revocation hearing is not held within thirty (30) days of the warrant being issued," "[u]nless good cause for the delay is established in the record of the proceeding." Phillips was arrested on the warrant on September 18, 2015, and the revocation hearing was held October 16, 2015. Phillips contends that, under the statute, he should have received a preliminary hearing and should have been released after twenty-one days.

¶ 6. Phillips erroneously assumes that violation of these statutory time limits required dismissal of his revocation charges; he seeks to be returned to post-release supervision under his suspended sentence. But the statute does not mandate dismissal if there is a failure to hold a preliminary hearing or to hold a final revocation hearing within twenty-one days; the time limits of subsections 47-7-37(3) and 47-7-37(5)(a) only address whether the probationer can be held in custody pending the final revocation hearing. Violation of subsection 47-7-37(10)'s requirement that the final hearing be held within thirty days, on the other hand, does result in dismissal of the revocation charge-but only if there is not good cause for the delay. That time limit was not exceeded.

¶ 7. Additionally, Mississippi Code Annotated section 47-7-37.1 (Rev. 2015), which became effective after passage in April 2015, was in effect at the relevant time. That section provides that, "[n]otwithstanding any other provision of law to the contrary," a court may still revoke probation or a suspended sentence and impose any or all of the sentence on a finding that the probationer has committed a new felony or absconded. Id. Phillips's suspended sentence was revoked after a finding he had committed a felony in Tennessee, and thus the statute did not prohibit revocation no matter how much time had passed since he was arrested on the revocation warrant.

¶ 8. Phillips has failed to show that his revocation must be set aside.

2. Failure to Hold Preliminary Revocation Hearing

¶ 9. Phillips also contends that he was constitutionally entitled to a preliminary hearing on the revocation charges. That may or may not be true when the revocation is for a new conviction. See 67 C.J.S. Pardon and Parole §§ 87 - 88 (2017). Regardless, Phillips waived this issue by failing to raise it at the revocation hearing itself. Presley v. State , 48 So.3d 526, 528 (¶ 9) (Miss. 2010). And the failure to hold a preliminary hearing is harmless if it does not result in prejudice. Id. at 529-30 (¶¶ 11-15). Phillips has identified no prejudice as a result of the failure to hold a preliminary hearing.

¶ 10. This issue is without merit.

3. Ineffectiveness of Counsel

¶ 11. Finally, Phillips contends that his counsel at the revocation hearing was constitutionally ineffective for erroneously advising him, on the day of the revocation hearing, that the time limits of Mississippi Code Annotated section 47-7-37 apply only to parole revocation.

¶ 12. Even if we were to accept Phillips's assertions, as we explained in the prior issue, section 47-7-37's time limits would not have affected the legality of his revocation. Thus an error by counsel on this point was harmless and cannot support relief based on ineffective assistance of counsel, which requires, among other things, a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 13. This issue is without merit.

¶ 14. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: GRIFFIS, P.J., FOR THE COURT:

license: Public Domain

text:
    Thomas MATNEY a/k/a Thomas Paul Matney a/k/a Tom Paul Matney, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00015-COA
    Court of Appeals of Mississippi.
    January 30, 2018
    ATTORNEY FOR APPELLANT: THOMAS MATNEY (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY T. GERBER
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Thomas Matney appeals the "deni[al] and dismiss[al]" of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Matney entered a plea of guilty to two counts of burglary of a dwelling house. Matney was subsequently sentenced to serve twenty-five years in Count I, and twenty-five years in Count II, with said sentences to run consecutively, provided that when he has served fifteen years in Count II, he shall be released and placed on five years of post-release supervision. Matney was ordered to pay restitution in the amount of $200, courts costs in the amount of $421.50, and a fine of $1,000.

¶ 3. Matney filed a PCCR motion, and later filed a supplement to his motion. The motion was subsequently "denied and dismissed" by the circuit court. Matney now appeals and argues he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 4. We review a circuit court's denial or dismissal of a PCCR motion for abuse of discretion. Wallace v. State , 180 So.3d 767, 769 (¶ 7) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id.

ANALYSIS

¶ 5. To prove ineffective assistance of counsel, Matney must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To overcome this presumption, Matney "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 6. Matney asserts he was shown a plea petition that "informed [him] that Counts I and II would be run together" and "that he would be given a 25 year sentence." Because he "agreed that this was an acceptable plea offer," Matney signed the petition. Matney now claims that the "plea agreement was breached" and that his "counsel was ineffective in failing to inform [him] that the sentence he read and signed for 25 years changed to 40 years." Matney further claims that "he would not have entered a plea of guilty had he been properly advised that he would receive a 40 year prison term." However, the record clearly shows Matney was advised of the minimum and maximum sentences and understood that he could receive a sentence up to the maximum authorized by law.

¶ 7. The plea petition, which was read and signed by Matney, advised that his plea was an "open plea" and that if he pled guilty, he could be sentenced to a minimum of three years or a maximum of twenty-five years on each count. The plea petition further advised that "any sentence [he] receive[d] [wa]s up to the [c]ourt," and "that the [c]ourt [wa]s not required to carry out any understanding made by [Matney] and [his] attorney with the [d]istrict [a]ttorney."

¶ 8. Additionally, the plea-hearing transcript shows Matney was advised of the minimum and maximum sentences and understood that the circuit court would impose the sentence. Specifically, during the plea hearing, the following exchange occurred:

COURT: Mr. Matney, I'm now advised by [defense counsel] by the petition that you filed that you now wish to enter open pleas in Cause Number 27002 to burglary of a dwelling house in Counts I and II, an open plea, but not as a habitual offender.
....
COURT: You finished eight years of school and you're able to read and write; is that correct?
MATNEY: Yes, sir.
....
COURT: Did you read and sign your petition to enter a plea of guilty?
MATNEY: Yes, sir.
COURT: Do you understand everything in the petition?
MATNEY: Yes, sir.
COURT: Is everything in this petition true and correct?
MATNEY: Yes, sir.
....
COURT: Do you understand the minimum and maximum punishment[s] that could be imposed for each of the crimes that you're offering to plead guilty to?
MATNEY: Yes, sir.
COURT: The minimum period of incarceration is three years. The maximum period of incarceration is 25 years ....
COURT: So if I were to impose these sentences to run consecutively, you'd be looking at a minimum period of incarceration of six years, a maximum period of incarceration of 50 years .... Do you understand that?
MATNEY: Yes, sir.
....
COURT: Do you understand that this is an open plea which means that I will order a presentence[-]investigation report, I'll hear-we'll come back into court and we'll go over that report, I'll hear anything you have to say[;] I'll hear whatever the State has to say and then I'll impose a sentence that I believe is appropriate up to the maximum authorized by law[,] which in this case would be 50 years. Do you understand that?
MATNEY: Yes, sir.
COURT: And knowing that do you still wish to go forward with your plea?
MATNEY: Yes, sir.
....
COURT: Do you have any questions about your rights or any questions about the crimes that you're offering to plead guilty to?
MATNEY: No, sir.
COURT: Because the bottom line is, it's not too late at this point to skip this hearing and proceed to trial, but it will be once I accept your pleas of guilty. So before I do that I need to make sure this is what you want to do. Do you want to plead guilty?
MATNEY: Yes, sir.
COURT: Any questions about that?
MATNEY: No, sir.

¶ 9. The record shows Matney was advised of and understood the nature of the charges against him, the minimum and maximum sentences for each charge, and the consequences of pleading guilty. Moreover, Matney was advised that his pleas were "open plea[s]" and that the circuit court would impose an appropriate sentence "up to ... 50 years." Matney voluntarily entered his guilty pleas with the knowledge and understanding of the same. Thus, Matney's argument that he was not properly advised of a possible forty-year sentence fails.

¶ 10. Additionally, Matney claims his counsel was ineffective "for not objecting to the [circuit] court's sentence." However, the record shows Matney was advised and understood that his sentence was up to the circuit court. Moreover, the sentence imposed by the circuit court was within the statutory parameters. Simply because Matney does not agree with the sentence does not mean his counsel was ineffective, nor does it warrant PCCR.

CONCLUSION

¶ 11. Matney has failed to show that his counsel's performance was deficient, and that the alleged deficiency prejudiced his defense. Additionally, Matney has failed to show that, but for counsel's errors, the result of the proceeding would have been different. Accordingly, Matney's claim of ineffective assistance of counsel fails. We therefore affirm the circuit court's judgment, which "denied and dismissed" Matney's PCCR motion.

¶ 12. AFFIRMED.

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


author: WESTBROOKS, J., FOR THE COURT:

text:
    Lacedric D. GIPSON, Appellant v. Stephanie Nicole JACKSON, Appellee
    NO. 2016-CA-01440-COA
    Court of Appeals of Mississippi.
    February 13, 2018
    ATTORNEY FOR APPELLANT: RANDOLPH WALKER
    ATTORNEY FOR APPELLEE: B. SEAN AKINS
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Lacedric D. Gipson appeals a judgment from the Chancery Court of Tippah County. After a review of the record, we affirm the chancery court's decision to hold Gipson in contempt for unpaid medical bills; however, we reverse the chancery court's upward modification of child support and remand for the court to make specific on-the-record findings regarding the child-support guidelines and deviation criteria.

FACTS AND PROCEDURAL HISTORY

¶ 2. At the time of the proceedings, Gipson and his wife had been married for approximately ten years. During the course of their marriage, Gipson fathered children with two other women, including Stephanie Jackson. Jackson and Gipson have a son, D.J., who was born in 2008. On October 2, 2013, Jackson and Gipson entered into an agreement that granted custody of D.J. to Jackson subject to Gipson's rights of visitation. The agreement also included a provision for child support and a provision regarding payment of D.J.'s medical expenses. The medical-bill provision states the following:

In the event that public assistance is no longer available, [Gipson] shall secure similar and adequate health insurance for the aforesaid minor child. Further, the parties shall thereafter split equally (50/50) out[-]of [-]pocket expenses and co-pays of any and all medical, dental, mental hospital, optometric, orthodontic, deductibles, and drug bills (nonprescription drugs excepted) not otherwise covered by said insurance.... [Jackson] shall submit all such out[-]of[-]pocket expenses to [Gipson] in writing and [Gipson] shall pay outstanding expenses within 30 days.

¶ 3. In 2015, D.J. no longer qualified for Mississippi Medicaid. Jackson stated that she began paying for his medical expenses out of her own pocket and placed him on her insurance. Jackson informed Gipson that D.J. no longer qualified for Medicaid, and that it would be more cost effective for their son to be placed on Gipson's insurance. However, Gipson testified that he forgot about getting insurance coverage. Gipson also informed Jackson that he would not pay his half of the medical bills-even though Jackson provided Gipson with copies of the receipts and bills to review.

¶ 4. Jackson filed a complaint for contempt and modification of child support. Jackson, who was living with her boyfriend at the time, also requested that the chancery court modify the provision prohibiting overnight romantic guests while in D.J.'s presence if said guests were not related by blood or marriage. Gipson filed a counter-petition for contempt and modification. The chancery court found both Jackson and Gipson in contempt and ordered they both be incarcerated until they purged themselves of contempt. Gipson appeals.

STANDARD OF REVIEW

¶ 5. "This Court's scope of review in domestic-relations cases is limited." Wilson v. Stewart , 171 So.3d 522, 526 (¶ 8) (Miss. Ct. App. 2014) (citation omitted). "We will not disturb a chancellor's judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard." Id.

DISCUSSION

I. Contempt and Outstanding Medical Bills

¶ 6. Gipson asserts that the chancellor erred in ordering him to pay $696.99 to Jackson for D.J.'s medical bills. He argues that the chancellor's decision was not supported by substantial and credible evidence. However, Gipson fails to cite any authority to substantiate his assertion. This Court has held that "failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment." In re Estate of Forrest , 165 So.3d 548, 550 (¶ 7) (Miss. Ct. App. 2015).

¶ 7. Notwithstanding the procedural bar, we find that Gipson's assertion lacks merit. These facts are analogous to Stallings v. Allen , 201 So.3d 500 (Miss. Ct. App. 2016). In Stallings ,

[a] chancery court found that [a father] provided no proof of any payments he made for [his son's] medical, dental, orthodontic, and eye-care expenses. [The mother], on the other hand, provided outstanding medical billing statements for services provided, showing [the father] had not made payments on them. She also provided numerous medical-related billing statements, testifying she had paid these service providers directly. [The father] defended his admitted failure to pay orthodontic expenses by claiming, in his opinion, his son did not need orthodontic treatment. Yet the original order ... specifically stated [the father] must pay all "orthodontic" expenses. Further, [the father] did not provide any proof of dental-insurance benefits for the child. Moreover, he failed to rebut [the mother]'s prima facie showing of contempt-he did not provide proof that he could not pay for the medical expenses or dental-insurance premiums, or prove his lack of payment was not willful.

Id. at 504 (¶ 16). Moreover, there were no receipts submitted by the mother, yet this Court found that the chancery court's findings were supported by substantial evidence. Id. at 506 (¶ 23).

¶ 8. In this case, the chancery court's original order specifically stated that Gipson must pay half of D.J.'s medical bills. Furthermore, Jackson provided receipts and a spreadsheet that itemized and verified each payment she made toward D.J.'s medical bills. Therefore, we find that the chancery court did not abuse its discretion in finding Gipson in contempt. Further, we find that the chancery court's judgment was supported by substantial evidence. Therefore, this issue is without merit.

II. Modification of Child Support

¶ 9. Gipson argues that the chancellor failed to make specific findings on the record, as required for a modification of child support; yet there was a $200 increase.

¶ 10. This Court has held that "the chancellor must apply the guidelines to make the determination that their application would be unjust." Evans v. Evans , 75 So.3d 1083, 1091 (¶ 31) (Miss. Ct. App. 2011) (citation omitted). But there are exceptions to the guidelines regarding the modification of child support in Mississippi Code Annotated section 43-19-103 (Rev. 2015). This section provides:

The rebuttable presumption as to the justness or appropriateness of an award or modification of a child[-]support award in this state, based upon the guidelines established by [ Mississippi Code Annotated section] 43-19-101 [ (Rev. 2015) ], may be overcome by a judicial or administrative body awarding or modifying the child[-]support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria :
(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents' incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent's homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child-care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Miss. Code Ann. § 43-19-103 (emphasis added).

¶ 11. Jackson presented a Rule 8.05 financial statement to the chancery court, and Gipson testified that he could pay an increase in child support-although the amount of the increase was not discussed. The chancery court discussed the fact that Gipson and his wife traveled frequently and the fact that Gipson had purchased gifts for himself and his wife. However, the chancellor made no specific findings as to Gipson's adjusted gross income and gave no specific reasons for deviating from the guidelines.

¶ 12. The chancellor stated that while Gipson was not working due to a chronic ankle injury, he could get a part-time job and earn more income. The chancellor also stated the following:

As to the modification of child support, there's no doubt in this [c]ourt's mind that this man can work. He is what you call a typical deadbeat. For a man to make only $500.00 a month, and has got all of the toys around his house that he's got, but they belong to daddy. This [c]ourt wasn't born yesterday. And he says he likes to fish[.] I do[,] too. It costs me $50.00 to $100.00 every time I go fishing-gasoline, the bait, and everything else. But this man is able to fish, he is able to do carpenter work, he is able to do a lot of other stuff, but he physically cannot hold out to hold a job. This [c]ourt doesn't believe it. I'm going to set the child support at $350.00 a month, increase it.

¶ 13. However, we find that the increase in child support was based upon speculative income. In order for there to be a deviation from the guidelines, there must be specific findings of fact on the record. Further, "[w]hen a chancellor makes a ruling without specific findings of fact and a party raises the issue of the amount of child support awarded, this Court will send the issue back to the lower court for the mandatory specific findings of fact as to why the chancellor deviated from the guidelines." Dailey , 151 So.3d at 1044 (¶ 16). As a result, the chancery court's upward modification of child support is reversed and remanded in order for the chancellor to make specific on-the-record findings that the application of the child-support guidelines would be unjust or inappropriate in this case.

¶ 14. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

      Initials are substituted for privacy of the minor child.

      The chancery court increased Gipson's child-support payments to $350 per month, denied Gipson's request for joint physical custody, and ordered that he be incarcerated in the Tippah County jail until he paid half of the medical bills. Gipson paid a total of $696.99 for the medical bills.
      The chancery court also held Jackson in contempt for living with her boyfriend and ordered that Jackson be incarcerated until her boyfriend moved out of her home. However, Jackson and her boyfriend were married the same day. The court also denied Jackson's request to modify the provision forbidding overnight romantic guests while in the presence of the minor child if said guests were not related by blood or marriage.

      Jackson asserts that the core issue of the case is whether the chancellor has the authority to increase child-support payments for a noncustodial parent without providing any factual support for his decision or consulting the Mississippi Child Support Guidelines. Jackson further asserts that this issue is an issue of first impression. However, this Court and the Mississippi Supreme Court have addressed child-support modifications involving a noncustodial parent and specific on-the-record findings of fact. See Dailey v. McBeath , 151 So.3d 1038, 1044 (¶ 16) (Miss. Ct. App. 2014) ; Klein v. McIntyre , 966 So.2d 1252, 1258 (¶ 20) (Miss. Ct. App. 2007) ; Wallace v. Bond , 745 So.2d 844, 847 (¶ 11) (Miss. 1999).

      Gipson testified that the Michael Kors watches and purse that he purchased were counterfeit.


author: Judge Brian P. Howell, Anniston, as respondent. MURDOCK, Justice (dissenting).

text:
    EX PARTE Brandon JOHNSON
    (In re: State of Alabama v. Brandon Johnson)
    1150854
    Supreme Court of Alabama.
    November 15, 2016
    Brandon Johnson, pro se.
   Judge Brian P. Howell, Anniston, as respondent.

ORDER

The Petitioner's Motion for an Order Reinstating the Mandamus Petition filed by Brandon Johnson on October 5, 2016, having been submitted to the Court,

IT IS ORDERED that the Petitioner's Motion for an Order Reinstating the Mandamus Petition is DENIED.

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

Murdock, J., dissents.

STUART, Justice (concurring specially).

I concur with the order denying Brandon Johnson's motion seeking to reinstate his earlier petition for a writ of mandamus.

On May 9, 2016, Johnson filed a mandamus petition, alleging that he had a clear, legal right to a writ of mandamus because, he said, the trial judge refused to recuse himself from Johnson's case even though the trial judge had been an attorney in the district attorney's office when Johnson was originally convicted and had helped secure a codefendant's testimony that was offered against Johnson during Johnson's original trial. On June 23, 2016, this Court ordered answer and briefs. On June 30, 2016, the trial judge filed an answer, to which was attached an order he had filed in the clerk's office on May 31, 2016, which stated:

"While the Court is sure that it can handle the filings of the Defendant as it has done multiple times before, it feels to best avoid any appearance of impropriety or any claims of retaliation from the Defendant, it is best for this Court to recuse from this filing and all future filings of this Defendant.
"Therefore, the motion for judge to recuse filed by [Brandon Johnson] is hereby granted."

On July 22, 2016, this Court dismissed the petition as moot because, in light of the trial judge's order, Johnson had received the relief that he had requested in his mandamus petition.

In his motion seeking to reinstate his mandamus petition, Johnson presents a different issue. Johnson now argues that, even though the trial judge entered an order recusing himself from Johnson's case, the trial judge continues to act in his case. In support of his motion, Johnson attached copies of orders issued in his case filed by the trial judge in the clerk's office on September 26, 2016. Unquestionably, these orders were issued by the trial judge after the date of the trial judge's order of recusal. Thus, in his motion, Johnson is requesting a different type of relief-enforcement of the order of recusal-from the relief requested in the earlier petition-an order of recusal. Therefore, denial of Johnson's motion to reinstate his petition is proper because Johnson is seeking different relief.

In order to obtain the relief Johnson is requesting in his motion, Johnson needs to file a petition for a writ of mandamus in the Court of Criminal Appeals. See § 12-3-11, Ala. Code 1975 ("Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction."); and § 12-3-9, Ala. Code 1975 ("The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases."). With his petition, Johnson needs to attach a copy of the trial court's order of recusal along with copies of the trial court's orders filed subsequent to the date of the order of recusal.

It is true that this Court can consider the substance of a pleading and construe the pleading accordingly. See Ex parte Deramus, 882 So.2d 875, 876 (Ala. 2002) ("This Court has stated that it is 'committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.' " (quoting King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 718 (Ala.1987) )). See also Evans v. Waddell, 689 So.2d 23, 26 (Ala. 1997) ("The substance of a motion and not its style determines what kind of motion it is."). Therefore, I have considered the propriety of this Court's construing Johnson's motion for reinstatement of his original petition as a new petition for a writ of mandamus and then, because we do not have original jurisdiction over the petition, transferring the petition to the Court of Criminal Appeals. See § 12-3-11 and § 12-3-9. However, when requesting mandamus relief, a petitioner is responsible for providing the Court with "those parts of the record that are essential to an understanding of the issues set forth in the mandamus petition. Rule 21(a), Ala. R. App. P." Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 814 n. 6 (Ala. 2003). Johnson does not attach a copy of the trial judge's order of recusal to the pleading that would be transferred to the Court of Criminal Appeals. Therefore, because Johnson does not adequately support his contention that the trial judge has entered an order of recusal and is not adhering to that order, he does not demonstrate in his motion that he has a clear, legal right to the relief he requests, and it appears that the Court of Criminal Appeals would have no choice but to deny Johnson's motion for failure to factually support his petition.

Johnson is a pro se petitioner. I recognize this Court and the Court of Criminal Appeals have generally adhered to a rule of liberal construction when dealing with pleadings of pro se litigants. Ex parte Deramus, 882 So.2d at 875. However, in this instance, even if we construe Johnson's motion to reinstate as a petition for a writ of mandamus, because Johnson does not adequately support his pleading with a copy of the order of recusal, he cannot obtain the relief he seeks and, thus, such a construction would be an exercise in futility.

Bolin, J., concurs.

MURDOCK, Justice (dissenting).

I believe this Court can and should defend the integrity of our prior action in this matter by granting the motion to reopen the petition for a writ of mandamus or treating the current motion as a new petition for a writ of mandamus. I do not find the movant's failure to include with his current motion a copy of the trial court's previous order of recusal to be an impediment to such action. The fact of that recusal was known to this Court at the time of our dismissal of the movant's previous petition and, indeed, was the basis for our previous action in this regard. I therefore respectfully dissent from the denial of relief to this pro se petitioner.


author: MOORE, Judge.

text:
    Keith SHARP and Guardian Brokers, Ltd., Inc. v. Dan HORTON d/b/a Heritage Footwear
    2160111
    Court of Civil Appeals of Alabama.
    April 7, 2017
    Aubrey Neeley, Fort Payne, for appellants.
    J. David Dodd of Scruggs, Dodd & Brisendine, Attorneys, P.A., Fort Payne, for appellee.
   MOORE, Judge.

Keith Sharp and Guardian Brokers, Ltd., Inc. ("Guardian Brokers"), appeal from a judgment entered by the DeKalb Circuit Court ("the circuit court") denying Sharp and Guardian Brokers' petition to quash the writ of execution sought by Dan Horton d/b/a Heritage Footwear ("Horton") and denying all other relief requested by Sharp and Guardian Brokers with regard to the actual execution. We reverse the circuit court's judgment.

Facts and Procedural History

On September 26, 2012, Horton filed a complaint in the DeKalb District Court ("the district court"), alleging that Keith Sharp, d/b/a Pegasus Partners, had failed to pay certain invoices for services that Heritage Footwear had provided to Pegasus.

After Sharp failed to appear, the district court entered, on January 18, 2013, a default judgment against Sharp and awarded Horton "the amount of $9,577.40 plus court costs, plus $422.60 interest, for which execution may issue."

On February 21, 2013, Horton obtained a writ of execution regarding certain property in possession of Pegasus. On June 6, 2013, Sharp filed a motion to quash the writ of execution, alleging that the property seized by Horton was not owned by Pegasus but, instead, was owned by Guardian Brokers. On November 21, 2013, the district court entered a judgment adding Guardian Brokers as a party and denying the motion to quash the writ of execution. The district court further ordered:

"The Court orders [Horton] to file with the Court a report of the disposition of the equipment executed on by [Horton] together with an itemization of all expenses, attorney fees and cost of collection within 15 days of the date of this order. The Court further orders that any equipment, not sold by [Horton] or remaining in the possession of [Horton], remain idle and secure where it is presently located until further order of the Court."

On December 3, 2013, Sharp and Guardian Brokers (hereinafter referred to collectively as "Sharp") filed a notice of appeal to the circuit court.

The circuit court held a de novo trial on February 25, 2016. At the trial, the parties litigated the ownership of the property seized. Furthermore, Sharp's attorney elicited testimony regarding the actual execution. Specifically, Horton testified that, on the writ-of-execution form, he had checked the box next to "Restore the property to Dan Horton" although, he said, he had never been in possession of the property. Horton also testified that he had taken the property-specifically, 3 knitting machines and a forklift-had traveled approximately 15 to 20 minutes away, and had placed the property in a warehouse. He testified that he had not advertised the property for sale but that he had sold the knitting machines to Ron Prestwood for $16,000, an amount greater than the total judgment amount. He testified that he had kept the entire $16,000 and the forklift. Horton also testified that he did not know if he had signed the "return of service." Both parties filed posttrial briefs; Sharp argued in its brief, among other things, that, because the execution was irregular, the writ of execution should be quashed.

On May 12, 2016, the circuit court entered a judgment denying the petition to quash the writ of execution and all other requested relief. On June 10, 2016, Sharp filed a postjudgment motion. On September 6, 2016, the parties filed their consent to extend the time for the circuit court to rule on Sharp's postjudgment motion. On September 23, 2016, the circuit court denied the postjudgment motion. Sharp filed a notice of appeal to this court on November 1, 2016.

Standard of Review

" 'When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep't of Revenue v. Garner, 812 So.2d 380, 382 (Ala. Civ. App. 2001) ; see also Ex parte Graham, 702 So.2d 1215 (Ala. 1997).' "

American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 873 (Ala. 2006) (quoting Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 516-17 (Ala. 2003) ).

Discussion

We initially note that an appeal is a proper method for obtaining review of a judgment concerning a motion to quash a writ of execution. See, e.g., Ex parte Arvest Bank, 219 So.3d 620, ---- (Ala. Civ. App. 2016).

On appeal, Sharp does not challenge the denial of the motion to quash the writ of execution on the basis that the property seized by Horton was not owned by Pegasus but, instead, was owned by Guardian Brokers. Sharp does, however, argue that the circuit court erred in declining to quash the writ of execution because of multiple statutory violations that, Sharp contends, Horton committed during the execution process. Specifically, Sharp argues that Horton personally seized the property and that he failed to make a "return of execution" in violation of Ala. Code 1975, § 6-9-80 ; that Horton "transported the property away from the neighborhood where it was seized and sold it at another location in violation of Ala. Code [1975,] § 6-9-86"; that Horton "did not advertise the sale as required by Ala. Code [1975,] § 6-9-87"; and that Horton did not return the excess money or property to Sharp in violation of Ala. Code 1975, § 6-9-93.

Section 6-9-147, Ala. Code 1975, provides:

"Courts have full power over their officers making execution or judicial sales, and whenever satisfied that a sale made under any legal process is infected with fraud, oppression, irregularity, or error to the injury of either party, the sale will be set aside."

See also, e.g., Hogan v. Carter, 431 So.2d 1160, 1163 (Ala. 1983)

In response to Sharp's argument, Horton points out that our supreme court has held "that procedural irregularities alone are not enough to invalidate the sale." Hogan, 431 So.2d at 1163. However, as our supreme court explained in Dean v. Lusk, 241 Ala. 519, 523, 3 So.2d 310, 313 (1941) :

"An irregularity in the conduct of the sale, such as failure to give the notice required by statute or to post notices of the sale at the courthouse door, has been held insufficient to render the sale void on collateral attack.
Bonner v. Lockhart, 236 Ala. 171, 181 So. 767 [ (1938) ]; Code 1940, Tit. 7, §§ 531, 536. This being a direct attack on the levy and sale in a court of equity[,] the allegations of the bill challenging the sufficiency of the notices, for the levy and sale under the statute, (Code 1923, §§ 7819, 7825), are not sufficient in that they fail to allege injury. Ray's Adm'r v. Womble, 56 Ala. 32 [ (1876) ]."

In the present case, the evidence is undisputed that the violations go beyond mere procedural irregularities and do, in fact, involve injury to Sharp. Indeed, the evidence indicates that Horton completely disregarded the applicable statutory requirements for the conduct of the sale. For example, Horton did not simply give insufficient notice of the sale; instead, he did not attempt to provide notice of the sale or to conduct a statutorily compliant sale. Moreover, Horton retained property and retained the proceeds from the sale above the amount of the judgment. We conclude that the undisputed evidence indicates that the sale in this case was "infected with ... irregularity [and] error to the injury of [Sharp]." See § 6-9-147. Therefore, the circuit court erred in declining to grant Sharp the relief requested.

Conclusion

Based on the foregoing, we reverse the judgment of the circuit court and remand this cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman, Thomas, and Donaldson, JJ., concur.

Thompson, P.J., concurs in the result, without writing.

      Section 6-9-80 provides:
      "The sheriff or other officer receiving an execution must execute the writ with diligence and, if practicable, perform the mandate thereof and make return of his acts to the clerk or register, as soon as practicable and not later than 90 days from the date of the execution."

      Section 6-9-86 provides:
      "Lands, when levied on under execution from any court of record, must be sold on any Monday in the month at the courthouse of the county. Other property may be sold on any day, except Sunday, either at the courthouse, the residence of the defendant, the place where levied on, or the neighborhood thereof, as may be most expedient. The sale may be continued from day to day if rendered necessary by the inclemency of the weather or from inability to conclude the sale in one day."

      Section 6-9-87 provides:
      "In sales of personal property, notice must be given by advertisement at the courthouse door and also by publication in a newspaper, if one is published in the county, for 10 days previous to such sale, but only one insertion in such newspaper shall be necessary. In sales of real property, the publication in such newspaper must be once a week for three successive weeks and by posting up notice for 30 days at the courthouse door previous to the sale."

      Section 6-9-93 provides:
      "When, at an execution sale, the amount of the sale exceeds the judgment, interest and costs, the excess must be paid to the debtor or his legal representative. When money is paid or collected on an execution, the whole or any part of which is enjoined, the same must, on demand, be refunded to the debtor or his legal representative if it has been paid over to the plaintiff, his agent or attorney without notice of the injunction."


author: THOMPSON, Presiding Judge.

text:
    SIMA PROPERTIES, L.L.C. v. John R. COOPER, in his official capacity as Director of the Alabama Department of Transportation, and the City of Prattville
    2160132
    Court of Civil Appeals of Alabama.
    April 7, 2017
    J. Knox Argo, Montgomery, for appellant.
    Luther Strange, atty. gen.; Andrew Brasher, deputy atty. gen.; and Jim R. Ippolito, Jr., chief counsel and asst. atty. gen., Erika R. McKay, asst. counsel and asst. atty. gen., Department of Transportation, for appellee John R. Cooper, in his official capacity as Director of the Alabama Department of Transportation.
    Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery, for appellee City of Prattville.
   THOMPSON, Presiding Judge.

Sima Properties, L.L.C. ("Sima"), appeals from two separate judgments entered by the Montgomery Circuit Court ("the trial court") dismissing Sima's inverse-condemnation action against John R. Cooper, in his official capacity as the director of the Alabama Department of Transportation ("ALDOT"), and the City of Prattville ("the city").

In its complaint, Sima alleged that it owns a gasoline station at the corner of Alabama Highway 14 and Old Farm Road within the geographical boundaries of the city. Sima averred that its customers had had access to the gasoline station from Highway 14 by the use of a driveway. However, in November 2014, Sima said, the driveway was closed when ALDOT and the city "altered the construction of Highway 14 by creating another road and an intersection in close proximity to [Sima's] access way onto said Highway 14 and closed [Sima's] direct access to Alabama Highway 14." Sima claimed that the construction project terminated what Sima said were its easement rights and its right of access. Sima also alleged that the value of its property was diminished and that its property had been taken without due process of law. It further asserted that Cooper and the city had acted fraudulently, in bad faith, beyond their respective authorities, or under a mistaken interpretation of the law in exercising dominion over Sima's property rights. Sima sought compensation for the property it claimed it had lost, as well as litigation expenses, and an order requiring Cooper and the city to restore its direct access to Highway 14.

Cooper filed a motion to dismiss Sima's complaint pursuant to Rule 12(b)(1) and (6), Ala. R. Civ. P., on the grounds that he had sovereign immunity under Article I, § 14, Ala. Const. 1901, and that the complaint failed to state a claim upon which relief could be granted. The trial court would lack subject-matter jurisdiction over the claims asserted against Cooper if Cooper were found to have sovereign immunity. Ex parte Alabama Dep't of Transp., 978 So.2d 17, 26 (Ala. 2007). Cooper attached an affidavit and supporting exhibits to his motion to dismiss. The city also filed a motion to dismiss, arguing that Sima failed to state a claim upon which relief could be granted. Specifically, the city asserted that ALDOT owns the property at issue and that Sima has no right of ownership or possession to that property. In its motion, the city relied on the information stated in the affidavit and the exhibits attached to Cooper's motion. The city did not include an evidentiary submission of its own.

The affidavit Cooper submitted was that of Philip Shamburger, the acting bureau chief of ALDOT's right-of-way bureau. In that affidavit, Shamburger explained that, in his position, he was responsible for, among other things, oversight of ALDOT's right-of-way acquisition process and served as custodian of right-of-way records. Shamburger stated that in May 1970 ALDOT filed a condemnation petition in the Autauga Probate Court "for property owned by George L. Yarbrough and others to purchase real estate for 'public use as a right of way for the construction and maintenance of a public road' " as identified by a certain project number. After a hearing on the petition, the probate court entered an order condemning the property. That order was appealed to the circuit court. After a trial, Shamburger said, the circuit court entered a judgment of condemnation, which included the property at issue. Yarbrough and the others who owned the property were awarded $56,460.90 for the property. Shamburger attached the probate-court and circuit-court judgments as exhibits to his affidavit. He also attached a map, which he said was maintained in ALDOT's ordinary course of business, showing the property at issue. According to the map, Shamburger said, the property from the entrance of Sima's gasoline station to Highway 14 is owned by ALDOT for the purpose of providing a right-of-way for construction and maintenance of a public road.

Sima filed an opposition to both motions to dismiss. After a hearing on Cooper's and the city's motions, the trial court entered separate judgments dismissing Sima's claims. As to Cooper's motion, the trial court found that he was entitled to sovereign immunity both as to claims seeking damages and as to claims seeking injunctive relief. The trial court also found that Sima did not have an ownership interest in the property at issue and that, therefore, it could not bring a valid inverse-condemnation claim. As to the city's motion, the trial court relied on the evidentiary materials attached to Cooper's motion to find that ALDOT, and not Sima, owned the property at issue. The trial court determined that, because Sima's property was not taken, it could not prove a set of facts upon which relief could be granted. Accordingly, the trial court also dismissed Sima's claims against the city.

Sima filed a motion to alter, amend, or "revise" the judgments, pursuant to Rule 59, Ala. R. Civ. P. The trial court denied the motion. Sima then appealed both judgments to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, Sima contends that the trial court erred in dismissing its action against Cooper on the ground that Cooper was entitled to sovereign immunity. In its judgment in favor of Cooper, the trial court wrote:

"Sovereign immunity also bars Sima's action for damages against Cooper in his official capacity. Section 14 of the Alabama Constitution prohibits a damages award against a State official in his official capacity because a result favorable to Sima would directly affect the State treasury."

Under most circumstances, a state official sued in his or her official capacity is entitled to sovereign immunity under § 14 of the Alabama Constitution of 1901.

"This Court has long held that ' " 'the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution.' " ' Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 364 (Ala. 2001) (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (Ala. 2001), quoting in turn Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971) ). '[A]n action contrary to the State's immunity is an action over which the courts of this State lack subject-matter jurisdiction.' Larkins, 806 So.2d at 363."

Ex parte Alabama Dep't of Transp., 978 So.2d 17, 21 (Ala. 2007). However, there are exceptions to the State's sovereign immunity under § 14, one of which is a valid inverse-condemnation action brought against a state official in his or her representative capacity. Id. If the exception did not exist, an action against a governmental authority to recover the value of property that has been taken by that authority could never occur, because, based on sovereign immunity, the trial court would never obtain jurisdiction over an inverse-condemnation action. See Jefferson Cty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala. 1993). Therefore, we hold that the trial court erred in determining that Sima's action against Cooper was due to be dismissed on the basis of sovereign immunity.

Sima also asserts that the trial court erred in dismissing its inverse-condemnation action against both Cooper and the city on the ground that Sima did not have a property right in the access from Highway 14 to its gasoline station.

" 'A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.'
" Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala. 2003)."

Double B Country Store, LLC v. Alabama Dep't of Transp., 171 So.3d 28, 31 (Ala. Civ. App. 2015).

Two sections of the Alabama Constitution of 1901-Article I, § 23, and Article XII, § 235 (which applies specifically to municipalities)-prohibit a governmental entity from taking private property for public use without just compensation. In Gober v. Stubbs, 682 So.2d 430, 433-34 (Ala. 1996), our supreme court discussed the power of eminent domain and its limitations:

"The power of eminent domain does not originate in Article I, § 23. Instead, it is a power inherent in every sovereign state. Section 23 merely places certain limits on the exercise of the power of eminent domain. This Court stated in Steele v. County Commissioners, 83 Ala. 304, 305, 3 So. 761, 762 (1887) :
" 'The right of eminent domain antedates constitutions, and is an incident of sovereignty, inherent in, and belonging to every sovereign State. The only qualification of the [inherent] right is, that the use for which private property may be taken shall be public.... The constitution [of our State] did not assume to confer the power of eminent domain, but, recognizing its existence, [further] limited its exercise by requiring that just compensation shall be made.'
"In order for an exercise of eminent domain to be valid under § 23, two requirements must be met. See Johnston v. Alabama Public Service Commission, 287 Ala. 417, 419, 252 So.2d 75, 76 (1971). First, the property must be taken for a public use and, with one exception inapplicable here, it cannot be taken for the private use of individuals or corporations. This first restriction is no more than a restatement of a requirement inherent in a sovereign's very right to exercise eminent domain. See Steele, 83 Ala. at 305, 3 So. at 762. Second, 'just compensation [must be paid] for any private property taken.' Johnston, 287 Ala. at 419, 252 So.2d at 76."

(Footnotes omitted.)

Section 235 of the Alabama Constitution expands on a landowner's rights. That section provides that entities invested with the privilege of taking property for public use-including municipal authorities-"shall make just compensation ... for the property taken, injured, or destroyed by the construction or enlargement of [their] works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction." Ala. Const. 1901, Art. XII, § 235.

" Section 235 does not expressly discuss inverse condemnation; however, statutes and [our appellate courts'] caselaw have long recognized that, if an entity holding eminent-domain powers fails to make compensation before taking, injuring, or destroying private property, the aggrieved property owner is entitled to assert an inverse-condemnation claim against that municipal corporation. See Jefferson Cnty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala. 1993) (...) (' "Inverse condemnation" refers to a legal action against a governmental authority to recover the value of property that has been taken by that governmental authority without exercising its power of eminent domain-it is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when the taking authority has not initiated condemnation proceedings.'), and § 18-1A-32, Ala. Code 1975 ('A condemnor shall not intentionally make it necessary for an owner of property to commence an action, including an action in inverse condemnation, to prove the fact of the taking of his property.'). Applying § 235, a plaintiff asserting an inverse-condemnation claim is required to put forth substantial evidence of the following elements: (1) that the defendant is an entity 'invested with the privilege of taking property for public use'; (2) that the plaintiff's property was 'taken, injured, or destroyed'; and (3) that that taking, injury, or destruction was caused 'by the construction or enlargement of [the defendant's] works, highways, or improvements.' See, e.g., Mahan v. Holifield, 361 So.2d 1076, 1079 (Ala. 1978) ('[ Section 235 ] has been interpreted to support a cause of action by a private landowner whose property is taken or damaged by a municipality as a consequence of its acts of construction or enlargement.')."

Housing Auth. of the Birmingham Dist. v. Logan Props., Inc., 127 So.3d 1169, 1173-74 (Ala. 2012).

Cooper and the city contend that the dismissal of Sima's inverse-condemnation action was proper because, they say, Shamburger's affidavit and supporting exhibits demonstrate that Sima does not "own" or have a right to ownership of the property that was "taken" when ALDOT closed what Cooper and the city say was its "unauthorized access" to Highway 14. Therefore, they argue, Sima cannot meet one of the elements required to sustain an inverse-condemnation action, i.e., that its property was taken.

The bases for Sima's argument that it "owned" a right of access in the driveway leading from Highway 14 to the gasoline station are twofold: (1) Sima contends that the owner of land adjoining a highway has a property right in access to the highway, and (2) it contends that, because it had used that driveway for more than 20 years, it had acquired an ownership right by adverse possession.

As to its contention that it had a property right in access to Highway 14 because it was an adjoining landowner, Sima relies on Davis v. State, 346 So.2d 936 (Ala. 1977). In that case, our supreme court set forth the law regarding the right of a landowner to access a street or highway abutting his or her property:

" ' " 'The overwhelming weight of authority is that the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. Access to the highway is one of these private rights and is a property right, and the interference with the right of access of an abutting owner is an element of damage.' " ' "

346 So.2d at 939 (quoting St. Clair Cty. v. Bukacek, 272 Ala. 323, 328, 131 So.2d 683, 687 (1961), quoting in turn Blount Cty. v. McPherson, 268 Ala. 133, 135, 105 So.2d 117, 119 (1958) ).

In Housing Authority of the Birmingham District v. Logan Properties, Inc., 127 So.3d at 1177, our supreme court reiterated the rule announced in Alabama Power Co. v. City of Guntersville, 235 Ala. 136, 143-44, 177 So. 332, 339 (1937) :

" 'We think the proper rule, deducible from the foregoing authorities, is, that just compensation must be made by municipal corporations and other corporations and individuals invested with the privilege of taking property for public use, when, by the construction or enlargement of "its" works, highways, or improvement, there will be occasioned some direct physical disturbance of a right, either public or private, which the owner enjoys in connection with his property, and which gives it an additional value, and that by reason of such disturbance he has sustained some special damage with respect to his property in excess of that sustained by the general public.' "

(Emphasis added in Logan Properties.)

We conclude that, under the law set forth in Davis and Logan Properties, Sima has asserted a valid inverse-condemnation action against Cooper and the city. Sima has alleged that Cooper, through ALDOT, and the city have interfered with its right of access from the gasoline station to Highway 14, which it obtained by virtue of its being an abutting landowner. If the allegations are proven, Sima's inverse-condemnation claim could be compensable. In reaching this holding, we are not concluding that Sima will ultimately prevail in its inverse-condemnation action; we hold only that it could possibly prevail.

As to Sima's second contention-that it obtained a property right in the driveway or its access from the gasoline station to Highway 14 through adverse possession-" '[t]here is abundant authority in this State for the proposition of law that title cannot be acquired by adverse possession of land owned by the State or a county.' State ex rel. Attorney General v. Tarleton, 279 Ala. 555, 188 So.2d 516 (1966) ; Nixon v. City of Anniston, 219 Ala. 219, 121 So. 514 (1929) ; Jefferson County v. McClinton, 292 Ala. 285, 293 So.2d 294 (1974)." Taylor v. Martin, 585 So.2d 849, 852 (Ala. 1991). Therefore, we find no merit to Sima's argument that it had a property right in the driveway through adverse possession.

For the reasons set forth above, the judgments dismissing Sima's inverse-condemnation action are reversed and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

Pittman, Thomas, and Moore, JJ., concur.

Donaldson, J., concurs in the result, without writing.

      We note that any argument by Cooper and the city that Sima has access to its property by means other than the driveway at issue requires a factual determination that could be based only on matters outside of the pleadings. It is well settled that,
      "[i]f, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, [Ala. R. Civ. P.,] and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
      Rule 12(b), Ala. R. Civ. P.
      In Singleton v. Alabama Department of Corrections, 819 So.2d 596, 599-600 (Ala. 2001), our supreme court held that if a motion under Rule 12(b)(6) is required to be converted into a motion for a summary judgment based on the consideration of matters outside the pleadings, the parties are entitled to notice that the motion to dismiss has been converted to a motion for a summary judgment and to an opportunity to present evidence in opposition to the motion. The record in this case indicates that such a procedure was not followed.