author: JAMES, J.,

text:
    Casey Mark BURGESS a/k/a Casey Burgess a/k/a Casey M. Burgess, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-02078-COA.
    Court of Appeals of Mississippi.
    May 17, 2016.
    Rehearing Denied Oct. 11, 2016.
    Certiorari Denied Feb. 9, 2017.

      Donald W. Boykin, Jackson, attorney for appellant.
    Office .of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. On November 8, 2012, Casey Mark Burgess was indicted for attempted kidnapping in violation of Mississippi Code Annotated section 97-3-53 (Rev.2014) and aggravated assault in violation of Mississippi Code Annotated section 97—3—7(2)(b) (Supp.2015). On June 18-19, 2013, Burgess was tried and found guilty by a Rankin County jury of both charges. Burgess was sentenced to ten years for attempted kidnapping and twenty years for aggravated assault, to be served in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run concurrently to each other, but consecutively to the sentence that Burgess had received in a separate case, Rankin County Circuit Court cause number 23-730. Burgess argues that the trial court erred by admitting certain evidence; refusing to admit certain evidence; giving a certain jury instruction; and denying his constitutional right to a fair and impartial jury. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jeanette Yung, the victim, testified to a detailed account of the aggravated assault and attempted kidnapping. On the witness stand, Yung affirmatively identified Burgess as her attacker. Yung testified that on September 1, 2011, she and her two-year-old daughter arrived at their home in the Castlewoods subdivision with groceries and a greeting card she had purchased from Walmart. Immediately after Yung parked her vehicle in her garage, Burgess pulled into her driveway, effectively blocking in her vehicle. Yung exited her vehicle holding her Walmart shopping bags, with the greeting card in one of the shopping bags. Yung’s daughter remained in her carseat in the vehicle. Yung did not know Burgess, and had never seen him before. Yung testified that he was wearing a baseball cap. Burgess exited his truck, then told Yung, “I’ve got your paperwork,” and began to approach her.

¶ 3. Burgess continued approaching Yung. He was armed with a Leatherman knife in his hand. He told her: “[G]et in [my] f* * *ing truck or I’m going to stab you.” Burgess grabbed Yung’s arms and shoved her toward his truck while holding the knife to her side. Yung resisted. Burgess put the knife to her neck, and put her in his truck. Yung continued to resist and struggled for the knife. During the struggle, she dropped the items she was holding. She also suffered cuts to her hands and bruises on her arms. Yung was able to get the knife from Burgess and free herself from him. Yung ran to the front of her house screaming for help. She looked to check on her daughter, and then she saw Burgess get into his truck and speed away. Yung called 9-1-1, and law enforcement responded to the scene. Yung was taken to the ER for treatment of her injuries.

¶ 4. Investigators of the Rankin County Sheriffs Department discovered a baseball cap; a plastic Walmart bag with items inside; a Leatherman tool with the blade exposed and blood on it; and droplets of blood, all in Yung’s driveway near her garage.

¶ 5. Later that day, on September 1, 2011, a sheriffs deputy spotted Burgess in his truck near his home. The deputy began to pursue him, and Burgess sped off. The deputy lost sight of Burgess. A few minutes later, the deputy received a call informing him of an auto accident involving a truck matching the description of Burgess’s truck several miles down the road. Burgess had wrecked his truck, and fled into the woods. The deputy arrived to the scene, entered the woods, and apprehended Burgess as he was coming out of the woods.

¶ 6. The day after the attack, Investigators Raymond Duke and Chris Barnes met Yung at the wrecker yard where the truck had been towed. Yung confirmed that the truck was the same truck that Burgess was driving the day of the attack. Yung identified the greeting card she had purchased at Walmart on the floorboard of the truck. Yung also identified Burgess in a photo lineup. Investigators discovered an empty Leatherman tool sheath in the truck.

¶7. Burgess testified in his own defense at trial. Burgess admitted to being in Yung’s driveway, but denied having any intent to harm her. Burgess testified to a different account of what transpired. Burgess, who had previously lived in Castle-woods, testified that he was in the subdivision that day collecting discarded items that had been placed on the curb. He explained that one of his hobbies was picking up salvageable items. Burgess’s mother also testified confirming that Burgess had a hobby of collecting salvageable items. Burgess testified that he backed into Yung’s driveway to turn around, because he wanted to go back to a box he had seen about two houses down from her driveway.

¶ 8. Burgess testified that while he was in her driveway, his cell phone started ringing, but it fell between the passenger’s seat and the center console. Burgess put the truck in park and walked around to the passenger side to retrieve his cell phone. When he opened the passenger door, a sheet of paper from a stack of paperwork on his passenger seat blew out of his truck. A Leatherman was under the stack of paperwork. He grabbed the stack of paperwork, and picked up the Leatherman with the blade exposed.

¶ 9. At this time, Burgess saw Yung in the driveway outside the garage. Burgess felt obligated to tell her that he was getting his paperwork, because he was in her driveway. Burgess testified that Yung came toward him, gasped, and said: “Take anything you want. Take anything you want.” Burgess denied touching her. Instead, he claimed Yung grabbed his hand, and admitted there was “a struggle.” Burgess testified that Yung eventually pulled the Leatherman out of his hands, and then ran away from him screaming, “Help. Help.” Burgess closed the passenger door, and picked up a pocketknife that had been clipped to his pocket that had fallen to the ground. He testified that he got into his truck and drove off quickly because he was scared Yung would alert the police. He also testified that he quickly left because he had been drinking alcohol, smoking crack cocaine, and had drugs in his truck.

¶ 10. On cross-examination, the prosecutor questioned Burgess on inconsistencies between his videoed interview he had with law enforcement following his arrest and his testimony at trial. Burgess’s videoed interview with law enforcement was entered into evidence and played for the jury at trial.

¶ 11. The jury returned a verdict finding Burgess guilty for attempted kidnapping and aggravated assault. Burgess was sentenced to ten years for attempted kidnapping and twenty years for aggravated assault, to be served in the custody of the MDOC, with the sentences to run concurrently, but consecutively to the sentence that Burgess had received in cause number 23-730. Burgess filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion, and Burgess filed his notice of appeal.

¶ 12. Burgess raises five issues on appeal: (1) whether evidence of Burgess’s prior felony convictions should have been excluded and whether evidence of his intent to appeal those convictions should have been admitted; (2) whether the trial court erred by not granting a mistrial following testimony that Burgess had been interviewed by law enforcement regarding an assault on his wife; (3) whether the trial court erred by not admitting Burgess’s cell-phone records; (4) whether the trial court erred by giving jury instruction S-3A; and (5) whether Burgess’s constitutional right to a fair and impartial jury was denied.

DISCUSSION

I. Whether the trial court erred by admitting Burgess’s prior felony convictions and excluding evidence of Burgess’s intent to appeal those convictions.

¶ 13. Burgess argues that the trial court erred by allowing evidence of Burgess’s three prior felony convictions for sexual battery. Burgess argued that evidence of the prior convictions should not have been permitted under Mississippi Rule of Evidence 609(a)(1).

¶ 14. A trial court’s decision to admit a prior conviction for impeachment is reviewed under an abuse-of-discretion standard. Myers v. State, 153 So.3d 581, 587 (¶ 21) (Miss.2014) (citing Strickland v. State, 980 So.2d 908, 919 (¶ 18) (Miss. 2008)).

¶ 15. Rule 609(a)(1) of the Mississippi Rules of Evidence states:

(a) General Rule. For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party[.]

¶ 16. Burgess cites Mclnnis v. State, 527 So.2d 84 (Miss.1988), in support of his argument that his three prior felony convictions for sexual battery have no probative value on the issue of truthfulness, and should not have been admitted for impeachment purposes. However, McInnis was overruled to the extent that it held only prior convictions relating to dishonesty or a false statement were allowed to be used for impeachment purposes. White v. State, 785 So.2d 1059, 1061 (¶¶ 5-6) (Miss. 2001). Indeed, “[a] crime which does not involve propensity of truthfulness may be admissible under 609(a)(1) so long as it meets the requirements which are set forth in that rule.” Triplett v. State, 881 So.2d 303, 305 (¶ 10) (Miss.Ct.App.2004).

¶ 17. “Convictions offered under 609(a)(1) to impeach a party must be analyzed under the guidelines set forth in Peterson to determine if the probative value is great enough to overcome the presumed prejudicial effect to that party, and findings should be made on the record by the judge.” Strickland, 980 So.2d at 920 (¶ 18) (citing M.R.E. 609 cmt.). The Peterson factors include: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue. Peterson, 518 So.2d at 636.

¶ 18. At the close of the prosecution’s case-in-chief, Burgess made the decision that he would take the stand to testify. The prosecution moved the trial court to permit it to introduce evidence of Burgess’s three prior felony convictions for sexual battery for impeachment purposes.

¶ 19. The trial court conducted a full, on-the-record Peterson hearing. The trial court made a finding as to each Peterson factor, concluded that the factors overall weighed in favor of admissibility, and determined that the probative value of admitting evidence of the three prior felony convictions outweighed any prejudicial effect to Burgess. However, the trial court ruled that the jury would not be allowed to hear that the three prior felony convictions were for sexual battery nor any other details of those convictions. The trial court instructed the jury that evidence of Burgess’s prior convictions was not evidence of guilt for the attempted kidnapping and aggravated assault of Yung. The trial court also instructed the jury that evidence of the prior convictions could be used in assessing the credibility of Burgess as a witness. After reviewing the record and the trial court’s Peterson analysis, we find that the trial court did not abuse its discretion in admitting Burgess’s three prior felony convictions under Rule 609(a)(1).

¶ 20. Burgess also argues that the trial court erred by denying him the opportunity to testify that he intended to appeal the three prior felony convictions. Mississippi Rule of Evidence 609(e) provides: “The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.” The comment to Rule 609(e) states that, “[ojnce the prior conviction has been introduced, the adversary can present evidence that an appeal of that conviction is pending.”

¶21. Although evidence of the pen-dency of an appeal is admissible under Rule 609(e), there was no evidence that Burgess had actually appealed his three prior felony convictions for sexual battery at the time of his trial. Because there was no pending appeal at the time of the trial as required by Rule 609(e), the trial court did not err by refusing to allow testimony regarding Burgess’s intent to appeal his prior convictions.

II. Whether the trial court erred by not granting a mistrial following testimony that Burgess had been interviewed by law enforcement regarding an assault on his wife.

¶ 22. Burgess argues the trial court erred by not granting a mistrial after a law-enforcement officer testified that Burgess had been interviewed for an assault on his wife and Yung.

¶ 23. On direct examination, Investigator Wayne Humphreys, of the Rankin County Sheriffs Department, testified that Burgess was arrested and advised of his Miranda rights. After Burgess waived his Miranda rights, he gave a videoed interview with law-enforcement investigators. Investigator Humphreys gave the following testimony regarding the videoed interview:

Q: And what portion of that—of the interview does that videotape deal with?
A: This is—it—it—it—dealt with two things—
Q: Okay.
A: —an assault on his wife and an assault on Jeanette [Yung]—

¶ 24. At that point, Burgess’s attorney immediately objected to the testimony, and moved for a mistrial. Arguments were presented outside the presence of the jury. The trial court sustained the objection to the testimony, but denied Burgess’s motion for a mistrial. The trial court instructed the jury: “[T]he Defense had objected to certain testimony by Mr. Hum-phreys. I have sustained that objection and I’m going to instruct you to disregard any response by Mr. Humphreys concerning any other allegation other than that we are here today on.” The jury affirmatively acknowledged that they understood the instruction. The trial court then individually questioned each juror whether he or she could disregard any statement about any other allegation. Every juror an~ swered that he or she could.

¶25. “This Court will not reverse on the failure to grant a mistrial unless the trial court abused its discretion in overruling the motion for a mistrial.” Carpenter v. State, 910 So.2d 528, 534 (¶ 23) (Miss.2005), “Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety.” Id, “This Court on numerous occasions has held that where the trial judge sustains an appellant’s objection to the testimony of a witness and instructs the jury to disregard the same, prejudicial error does not result from that testimony.” Ford v. State, 147 So.3d 325, 330 (¶ 11) (Miss.2014) (citing Snelson v. State, 704 So.2d 452, 456 (¶ 26) (Miss.1997)).

¶ 26. Burgess argues that he was prejudiced by Investigator Humphreys’s testimony mentioning a separate assault of his wife because it went to the heart of the matter of whether he assaulted Yung. Burgess also argues that the limiting instruction did not cure the prejudicial effect.

¶27. The trial court sustained Burgess’s objection, and instructed the jury to disregard any statement made by Investigator Humphreys regarding any other allegation other than those at issue in the trial. “It is presumed, unless otherwise shown, that the jury followed the instruction given by the trial court.” Id. at (¶ 12) (citing Flora v. State, 925 So.2d 797, 805 (¶ 10) (Miss.2006)).

¶ 28. Because the trial court is in the best position to assess prejudicial effect, we afford the trial court considerable discretion in ruling on a motion for a mistrial. Id. at (¶ 11) (citing Harrell v. State, 947 So.2d 309, 316 (Miss.2007)). After reviewing the testimony, we find that any prejudicial effect of Investigator Hum-phreys’s statement was cured by the trial court’s admonition. See Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995) (holding that the trial court’s admonition of the prosecution witness’s testimony regarding prior bad conduct cured any harm that may have been inflicted on the defendant’s defense). Accordingly, the trial court did not abuse its discretion in denying Burgess’s motion for a mistrial.

III. Whether the trial court erred by not admitting Burgess’s cellphone records.

¶ 29. Burgess argues that the trial court erred by not admitting his cellphone records. At trial, the prosecutor objected to the introduction of the cellphone records. The trial court determined that the cell-phone records were not relevant, and sustained the prosecutor’s objection. Burgess testified that he was in the subdivision looking for discarded items. He also testified that he made two- phone calls to a friend telling him that he was in Castlewoods looking for discarded items. Burgess argues that the purpose of the cell-phone records was to verify that Burgess had actually made the calls, that he was not simply loitering in the subdivision, and that he had sent some text messages.

¶ 30. The standard of review applied to a trial court’s decision to admit or exclude evidence is abuse of discretion. Robinson Prop. Grp. L.P. v. Mitchell, 7 So.3d 240, 243 (¶ 9) (Miss.2009). The relevancy and admissibility of evidence are well within the trial court’s discretion, and reversal may be had only where that discretion has been abused. Bingham v. State, 723 So.2d 1189, 1191 (¶ 9) (Miss.Ct.App.1998).

If 31. “ ‘Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. However, “[e]vidence which is not relevant is not admissible.” M.R.E. 402. The cellphone records did not have any tendency to make the existence of any fact that was of consequence to the determination of the action, which involved whether Burgess was guilty of attempted kidnapping and aggravated assault, more or less likely than it would have been without the evidence. Whether Burgess actually made the phone calls and sent some text messages before the attack was not relevant under Rule 401. The trial court did not abuse its discretion in excluding the cellphone records.

IV. Whether the trial court erred by giving jury instruction S-3A.

¶ 32. Burgess argues that the trial court should have refused jury instruction S-3A, which was an “acquit first” lesser-included-offense instruction. Burgess contends that such an “acquit first” instruction has the effect of pressuring the jury to convict a defendant, resulting in a coerced verdict.

¶ 33. “Whether to grant or deny proposed jury instructions is within the sole discretion of the [trial] court.” Victory v. State, 83 So.3d 370, 373 (¶ 12) (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010)). As such, the giving or refusal of jury instructions is reviewed under an abuse-of-discretion standard. Id. We review the jury instructions as a whole to determine whether an error has occurred. Id.

¶ 34. The portion of jury instruction S-3A that Burgess contends was improper provided: “The Court instructs the Jury that if you unanimously find that the prosecution failed to prove all the elements of the crime of aggravated assault, you may then proceed in your deliberations to consider the lesser charge of simple assault.” The Mississippi Supreme Court has held that an “acquit first” instruction, such as jury instruction S-3A, is not prohibited by Mississippi law. Fulgham v. State, 46 So.3d 315, 329-30 (¶ 40) (Miss.2010); see also White v. State, 149 So.3d 566, 559 (¶ 10) (Miss.Ct.App.2014). This argument is without merit.

V. Whether Burgess’s constitutional right to a fair and impartial jury was denied.

¶ 35. Burgess argues his constitutional right to a fair and impartial jury was denied. Specifically, Burgess argues that juror number 12 should have been stricken for cause because the juror stated that he would tend to believe law-enforcement officers, and had always known them to be factual. The trial court refused to strike juror 12 for cause. Burgess used his last peremptory challenge to strike juror 12. As a result, juror 12 did not actually sit on the jury.

¶ 36. Burgess argues that he and the prosecution were not treated equally because he had to use his last peremptory challenge to strike juror 12. However, “[t]he mere loss of a peremptory challenge is not enough to constitute a violation of the constitutional right to an impartial jury.” Johnson v. State, 68 So.3d 1239, 1246-47 (¶ 24) (Miss.2011) (citing Mettetal v. State, 615 So.2d 600, 603 (Miss.1993)).

¶37. In Christmas v. State, 10 So.3d 413, 423 (¶ 47) (Miss.2009), the court held:

So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the defendant was denied his constitutional rights. This Court has explained that a prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his peremptory challenges and that the incompetent juror was forced by the trial court’s erroneous ruling to sit on the jury.

Id (internal citations omitted).

¶38. Although Burgess exhausted his peremptory challenges, he fails to show that an incompetent juror was forced to sit on the jury due to an erroneous ruling by the trial court. Thus, this argument is without merit.

¶ 39. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ATTEMPTED KIDNAPPING, AND SENTENCE OF TEN YEARS; AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . On April 3, 2013, Burgess was convicted of three counts of sexual battery against his wife in cause number 23-730.

      . Peterson v. State, 518 So.2d 632 (Miss.1987).

      . On September 5, 2013, Burgess filed a notice of appeal in cause number 23-730. Burgess v. State, 2013-KA-01516-SCT.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: BOLIN, Justice MURDOCK, Justice SHAW, Justice

license: Public Domain

text:
    Ex parte Don DAVIS, Judge of Mobile County Probate Court.
    1140456.
    Supreme Court of Alabama.
    Feb. 11, 2015.
    J. Michael Druhan and Harry V. Satter-white of Satterwhite, Druhan, Gaillard & Tyler, L.L.C., Mobile; and Lee L. Hale, Mobile, for petitioner.
   ORDER

The petition filed in this Court by the Mobile County Probate Judge on February 9, 2015, in substance is a request for an advisory opinion. Section 12-2-10, Ala. Code 1975, authorizes this Court to address requests for advisory opinions from only the Governor or the Legislature. See Opinion of the Justices No. 199, 286 Ala. 156, 158, 238 So.2d 326, 327 (1970). Because this Court is not authorized to address this petition, the petition is dismissed.

PETITION DISMISSED.

STUART, MAIN, WISE, and BRYAN, JJ., concur.

BOLIN, MURDOCK, and SHAW, JJ., concur specially.

PARKER, J., concurs in the result.

MOORE, C.J., recuses himself.

BOLIN, Justice

(concurring specially).

“What has been an orderly process, I suspect, will soon resemble a three-ring circus.” Tyson v. Macon Cnty. Greyhound Park, Inc., 43 So.3d 587, 595 (Ala. 2010) (Woodall, J., dissenting). Admittedly this quotation is taken out of context. From the perspective of a probate judge in Alabama, however, the events that have unfolded subsequent to the issuance of the memorandum opinion and order by United States District Judge Callie S. Granade, in the United States District Court for the Southern District of Alabama, Southern Division, in Civil Action No. 14-0208-CG-N surely brings to mind this quotation. I do not intend to trivialize the important constitutional questions presented by this controversy, but the unfortunate path this litigation has taken so far has resulted in mass confusion that I suspect has led the public to wonder what has happened to the orderly rule of law.

As a former probate judge, I am aware of the many duties imposed by law upon the office of probate judge, only one of which is judicial. Some of the other “hats” worn by some or all probate judges include being the keeper of records and documents that must be maintained for posterity, serving as the chief election official of the county in all elections, and, although this particularly may vary from county to county, issuing a variety of licenses, e.g., hunting licenses, fishing licenses, driver’s license renewals, automobile-tag renewals, and marriage licenses.

Although I concur fully with the dismissal of the action herein, as will be addressed further below I am disappointed and concerned that, amongst everyone heretofore connected with the constitutional issues and the litigation, nowhere has there been a probate judge with a seat as a party at any of these proceedings, except for Mobile County Probate Judge Don Davis, who was dismissed from the proceedings on July 25, 2014, and added again as a party on February 10, 2015. The only two judicial participants who exercised wisdom, restraint, and discretion on the record were United States Supreme Court Justices Thomas and Scalia. I specifically refer to Justice Thomas’s dissent to the United States Supreme Court’s denial of a stay in the federal court matter, which Justice Scalia joined and which states as follows:

“The Attorney General of Alabama asked us to stay a federal injunction preventing him from enforcing several provisions of Alabama law defining marriage as a legal union of one man and one woman pending our consideration of Obergefell v. Hodges, No. 14-556; Tanco v. Haslam, No. 14-562; DeBoer v. Snyder, No. 14-571; and Bourke v. Beshear, No. 14-574. Those cases are scheduled to be argued this Term and present the same constitutional question at issue here: Whether the Fourteenth Amendment requires States to recognize unions between two people of the same sex as a marriage under state law.
“When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. See, e.g., Herbert v. Kitchen, [Ms. 13A687, January 6, 2014] 571 U.S. _, 134 S.O. 893, 187 L.Ed.2d 699 (2014); see also San Diegans for Mt. Soledad Nat. War Memorial v. Paulson, 548 U.S. 1301, 126 S.Ct. 2856, 165 L.Ed.2d 941 (2006) (Kennedy, J., in chambers) (staying an injunction requiring a city to remove its religious memorial). Although a stay is not a matter of right, this practice reflects the particularly strong showing that States are often able to make in favor of such a stay. Because States are required to comply with the Constitution, and indeed take care to do so when they enact their laws, it is a rare case in which a State will be unable to make at least some showing of a likelihood of success on the merits. States also easily meet the requirement of irreparable injury, for ‘ “[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” ’ Maryland v. King, [Ms. 12A48, July 30, 2012] 567 U.S. _, _, 133 S.Ct. 1, 183 L.Ed.2d 667 (2012) (slip op., at 2-3) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977) (Rehnquist, J., in chambers)). The equities and public interest likewise generally weigh in favor of enforcing duly enacted state laws.
“It was thus no surprise when we granted a stay in similar circumstances a little over a year ago. See Herbert v. Kitchen, supra. Nor was it a surprise when we granted a stay in similar circumstances less than six months ago. McQuigg v. Bostic, [Ms. 14A196, Aug. 20, 2014] 573 U.S. _, 135 S.Ct. 32, 189 L.Ed.2d 884 (2014). Those decisions reflected the appropriate respect we owe to States as sovereigns and to the people of those States who approved those laws.
“This application should have been treated no differently. That the Court more recently denied several stay applications in this context is of no moment. Those denials followed this Court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws. Although I disagreed with the decisions to deny those applications, Armstrong v. Brenner, ante, p. _; Wilson v. Condon, ante, p. _; Moser v. Marie, ante, p. _, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen.
“Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, [Ms. 12-307, June 26, 2013] 570 U.S. _, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (slip op., at 25-26). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.
“Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. See, e.g., Maricopa County v. Lopez-Valenzuela, [Ms. 14A493, Nov. 13, 2014] 574 U.S. _, _, 135 S.Ct. 428, 190 L.Ed.2d 385 (2014) (slip op., at 2) (Thomas, J., joined by Scalia, J., respecting denial of application for stay) (collecting cases). It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or the elected representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it ■will resolve the issue at hand in several months.
“I respectfully dissent from the denial of this application. I would have shorn the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.”

Strange v. Searcy, [Ms. 14A840, February 9, 2015] 574 U.S. _, _, 135 S.Ct. 940, 191 L.Ed.2d 149 (2015)(emphasis added).

The highly emotional issue involved in the federal proceeding, on both sides of the argument, it appears will be decided only by the United States Supreme Court. The plaintiffs in the two cases decided by the federal district court could have joined the various probate judges in the State as parties, if nothing else, as relief parties. For that matter, the federal district court could have provided that the probate judges were made defendants. See Rules 19 and 20, Fed.R.Civ.P. (allowing for join-der and permissive joinder, respectively). This would have allowed the probate judges notice and an opportunity to be heard. Rather, the only probate judge made an original party to the federal court action was Judge Davis, the petitioner in the instant proceeding, who was later dismissed from that action with prejudice and who has now been added as a party again. The federal district judge in her order acknowledged both that the United States Supreme Court has granted certiorari in a case to be decided in this Term of Court and that that case will “definitively” decide the important constitutional issues involved. However, the same federal district court denied a stay past February 9, 2015, although the definitive decision lies just four months ahead. It is my judgment that the United States Court of Appeals for the Eleventh Circuit, with due respect, also contributed to the resulting confusion by refusing to take further action in this and similar same-sex-marriage cases in that circuit until the United States Supreme Court issues a decision and by denying a stay of the federal court matter before Judge Granade. While all of the above was occurring, the Chief Justice of the Alabama Supreme Court sent a letter to the probate judges giving them advice on how to address this issue, together with a memorandum of law, and finally issued an order to the probate judges on the eve of the expiration of the federal court’s temporary stay that reflected a view of the law that directly conflicted with the federal judge’s view of the law as espoused in her order.

The ensuing legal “circus” has left the probate judges, who had no voice or opportunity to be heard in this matter, in an untenable position—caught between a federal district judge’s order, the statewide precedential value of which is uncertain, and an order from the Chief Justice of the Alabama Supreme Court. If the term “circus” is hyperbole, the current predicament at least qualifies as a “darned if I do, darned if I don’t” dilemma for the probate judges, and this is no way to wisely, fairly, and deliberately administer justice.

The Chief Justice has wide powers pursuant to § 12-2-30(b)(7) and (8), Ala.Code 1975, but the question arises as to whether those powers apply to probate judges’ administrative, as opposed to judicial, actions. Should a probate judge follow the order of the chief judicial officer in the State of Alabama? Or should the probate judge follow an order of a federal district judge, of which he or she has possibly been made aware by media or by word of mouth through his or her professional association, not by having had a seat at the table in the courtroom as a party ? There are many federal district judges in the three federal districts in Alabama. From a precedential standpoint, what happens if the opinions of two federal district judges conflict: Which opinion, if either, would be the binding precedent on a federal question? Who wins if there is a conflict between a federal court order and a state-court opinion on a federal question? Although I do not agree with the entirety of the article, these questions were recently examined in the introduction to that article in the Vanderbilt Law Review, which does state correctly the following pivotal questions:

“Lower federal court precedent cannot bind state courts, or so we are told. Most state courts assert that they are free to reach their own conclusions about the meaning of federal law, even when doing so creates a conflict with the federal court of appeals presiding over the geographic region in which they sit. Several federal circuits have conceded that their decisions are not binding on state courts, and, in concurring opinions, two justices have emphatically agreed. A number of federal courts scholars have declared that state courts need not follow lower federal court precedent because state courts are ‘coordinate’ with lower federal courts and not ‘subordinate’ to them.
“And yet, upon closer inspection, the role of lower federal court precedent in state court decisionmaking remains unclear. A few state courts appear to believe that they are bound to follow the decisions of the federal courts of appeals on questions of federal law, and many others have issued inconsistent opinions on that question. The U.S. Courts of Appeals for the Eighth and Ninth Circuits claim that state courts must follow their lead on federal questions, creating a circuit split that has never been resolved by the Supreme Court. Only a handful of legal scholars have opined on the matter, and most have done so in passing in articles devoted to other subjects. Remarkably, then, this significant question about the interplay between the state and federal judicial systems lingers unresolved more than two-hundred years after the Constitution’s ratification.
“The relationship between the lower federal courts and the state courts raises foundational questions about the place of those federal courts in our constitutional structure. Are the lower federal courts’ interpretations of federal law binding on the states under the Supremacy Clause, as the Supreme Court considers its own precedent to be? Alternatively, are state and loioer federal courts coequals under the Constitution such that neither can control the other’s rulings? Does Congress or the Supreme Court have the constitutional authority to require that state courts follow loioer federal court precedent? If not, is it because principles of federalism forbid such interference with state institutions, or because such a rule undermines judicial independence, or bothl
“Similar foundational questions were raised seventy-five years ago in Erie Railroad v. Tompkins, [304 U.S. 64, 71, 58 S.Ct. 817, 82 L.Ed. 1188 (1938),] when the Supreme Court overruled Swift v. Tyson, [41 U.S. (16 Pet.) 1, 18, 10 L.Ed. 865 (1842),] and held that federal courts must follow state law as articulated by a state’s highest court. The Court explained that federal courts undermined state sovereignty by failing to treat state courts’ views on state law as controlling. Although Erie focused on the federal courts’ obligation to adopt state common law, the decision confirmed that federal courts must follow state courts’ interpretations of state positive law as well. The bottom line after Erie is that state courts have the final word on the meaning of state law.
“Erie is one of a handful of iconic cases that has shaped our understanding of not only the relationship between state and federal courts but also our entire federal system. According to John Hart Ely, Erie ‘implicates, indeed perhaps it is, the very essence of our federalism.’ And yet Erie left the job half done. The case tells us how federal courts should treat state courts’ precedent on state law, but it does not address how state courts should respond to federal courts’ interpretation of federal law. Of course, some might argue that Erie supports the conclusion that state courts are bound only by the Supreme Court on questions of federal law, just as federal courts are required to follow only the precedent of the highest court of the state on questions of state law. And yet the unique and limited role of the Supreme Court creates a significant disjunction: the Court cannot quickly resolve disputes between state and federal courts on the meaning of federal law, leaving intrastate splits to linger between these court systems for decades.”

Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L.Rev. 53, 55-59 (2015)(footnotes omitted; emphasis added).

The purpose of this writing is not to try today to answer the questions posed by the article quoted above. It is offered solely to illustrate the probable angst and consternation that each of the 68 probate judges of this State has undergone since the federal court’s order and Chief Justice Moore’s order were issued, and it did not have to be this way.

As stated above, I place the blame for the confusion that now exists in the various probate courts of this State since the two-week stay expired at the feet of everyone involved, save the Attorney General, who has properly requested a stay at all levels, and Justices Thomas and Scalia, who offered a solution that would have delayed this matter for only four months or less—after which we would have had the final answer, no confusion, and, most importantly, an orderly administration of justice.

In conclusion, I feel compelled to comment on a portion of the amended pleading in the “In Rem Action” that is actually before this Court and that the Court properly dismisses. There is a portion contained in the “action” with which I sharply disagree. I quote from paragraph 7 of the “action”:

“7. If this Court either fails to docket this amended in rem action regarding the Administrative Order or fails to address this amended in rem action filed within this Court before the federal court in the Southern District of Alabama enters an Order requiring Judge Davis to abide by the above federal court orders, then Judge Davis will accept this Honorable Court’s failure to act on this amended in rem matter as an implicit directive to Judge Davis to abide by the Orders of the Southern District of Alabama on January 23rd and also January 28th, 2015. Judge Davis anticipates that Judge Granade could enter this Order as quickly as tomorrow based on the Order the judge has entered today.”

(Emphasis added.)

With due regard for the fact that the above document was submitted to this Court by a probate judge who is suffering the uncertainties set forth in this writing, I would caution any litigant coming before this Court that, although, proverbially, silence may be golden, the silence of this Court, as an institution, should never be treated as an “implicit directive” to take any particular course of action.

MURDOCK, Justice

(concurring specially).

The amended petition before us quotes from the February 9, 2015, order of Judge Granade in the case of Searcy v. Strange (Ms. 14-0208, S.D.Ala., Jan. 23, 2015), stating that her injunction in that case “enjoined ,., [the] Attorney General for the State of Alabama” and those under his supervision and that, because the petitioner was not a party to that case, his actions or inactions did not constitute a “failure] to comply with th[at] order.” The petitioner asks this Court for guidance with respect to the issue of the constitutionality of the various statutes enacted by the Alabama Legislature providing for the governmental licensing and recognition of what are referred to in those statutes as “marriages,” see Ala.Code 1975, §§ 30-1-3 through -19. Inherent in the petitioner’s request for guidance, particularly given the facts alleged in the petition, is whether, under the terms of those statutes, particularly § 30-1-9, a probate judge has an affirmative obligation to issue marriage licenses at all, and whether, under the principles articulated in such cases as Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So.2d 487 (1948), and City of Birmingham v. Smith, 507 So.2d 1312 (Ala.1987), and considering the meaning of the term “marriage” intended by the Legislature in those statutes, they may be deemed to survive, or must be stricken as wholly void, if they are not to be applied solely to a union between a man and a woman. These are substantial questions. These questions, however, are not before us in an adversary proceeding or in the context of a request for an advisory opinion by the Governor or the Legislature. Nor has there been a showing that these questions are properly before us on some other basis. I therefore concur in the order of this Court.

SHAW, Justice

(concurring specially).

In the matter before this Court, Mobile County Probate Court Judge Don Davis references an order of the United States District Court for the Southern District of Alabama that states: “Ala. Const. Art. I, § 36.03 (2006) and Ala.Code 1975, § 30-1-19 are unconstitutional.... ” Searcy v. Strange (Ms. 14-0208, Jan. 23, 2015). Judge Davis then notes that on February 8, 2015, Alabama’s Chief Justice issued an administrative order stating that “no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article I, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala.Code 1975.”

The matter Judge Davis filed in this Court states that it “is filed in order to give this Honorable Court acting as the entire Supreme Court of Alabama the opportunity to review the application of the above Administrative Order.” This invitation to “review” the administrative order issued by the Chief Justice, in my view, is a request for an advisory opinion. However, only the governor or the legislature may request an advisory opinion. Ala. Code 1975, § 12-2-10 (“The Governor, by a request in writing, or either house of the Legislature, by a resolution of such house, may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions”). See also Opinion of the Justices No. 199, 286 Ala. 156, 158, 238 So.2d 326, 327 (1970) (“[T]he present request originated not with the Governor, but with the Contest Subcommittee of the State Committee ..., which course of action is not within the purview of [§ 12-2-10]. To hold otherwise would add a new concept to the prerogatives of [§ 12-2-10] and set a new precedent for litigants to request advisory opinions whenever the constitutionality of a law arises”). This Court is not empowered “ ‘to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.’ ” Stamps v. Jefferson Cnty. Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963) (emphasis omitted)). See also AIRCO, Inc. v. Alabama Pub. Serv. Comm’n, 360 So.2d 970, 971 (Ala. 1978) (“To render an opinion based solely upon the Commission’s alleged improper actions (without seeking a remedy therefrom) or upon its prospective improprieties would be to render impermissible advisory opinions.”).

      . "The act ‘ought not to be wholly void unless the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional' ” 251 Ala. at 217, 36 So.2d at 493 (quoting A, Bertolla & Sons v. State, 247 Ala. 269, 271, 24 So.2d 23, 25 (1945)). "The test is .., whether the legislature would have passed the statute without the [unconstitutional aspect in-eluded therein].” 507 So.2d at 1317.


author: MAIN, Justice.

text:
    EX PARTE NORFOLK SOUTHERN RAILWAY COMPANY, INC. (In re Trennon Putnam v. Norfolk Southern Railway Company, Inc.).
    1150434.
    Supreme Court of Alabama.
    March 11, 2016.

      Larry B. Moore of Moore, Berry & Lin-ville, Florence; and Turner B. Williams, Michael W. Ray, and Al F. Teel of Burr & Forman LLP, Birmingham, for petitioner.
    Submitted on petitioner’s brief only.
   MAIN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion [204 So.3d 371]. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MOORE, C.J., and BOLIN, MURDOCK, and BRYAN, JJ., concur.


author: STUART, Justice. MAIN, Justice

text:
    Ex parte WAYNE FARMS, LLC. (In re Ben F. Hicks and Imogene W. Hicks v. Wayne Farms, LLC, et al.).
    1150404.
    Supreme Court of Alabama.
    May 27, 2016.

      Robert D. Segall, Shannon L. Holliday, and Ashley N. Penhale of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Walter E. McGowan of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, for petitoner.
    Julia A. Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and Clifton F. Hastings of Cervera, Ralph, Reeves, Baker & Hastings, L.L.C., Troy, for respondents.
   STUART, Justice.

Wayne Farms, LLC, petitions this Court for a writ of mandamus ordering the Bullock Circuit Court to vacate its order denying Wayne Farms’ motion for a change of venue and to enter an order transferring the underlying action to the Pike Circuit Court. We grant the petition and issue the writ,

Facts and Procedural History

Ben F. Hicks and Imogene W. Hicks owned and operated a chicken farm in Pike County. In April 2013, Imogene entered into an agreement, entitled the Union Springs Broiler Flock Agreement, in which Wayne Farms agreed to deliver flocks of broiler chicks to the Hickses’ farm. Imogene agreed to grow and care for the chicks until the chicks reached a marketable weight, at which times Wayne Farms was to return to the farm to pick them up. On October 22, 2013, Ronnie King, an employee of Wayne Farms, drove a tractor-trailer owned by Wayne Farms to the Hickses’ farm to pick up a load of chickens. After the chickens were loaded, King began to drive the tractor-trailer away. Before King left the Hickses’ property, the loaded trailer detached from the tractor and overturned, pinning Ben to the ground and causing him to be injured.

On June 5, 2015, Ben and Imogene sued Wayne Farms and King in Bullock County, alleging claims of negligence and wantonness and seeking damages for Ben’s injuries. On July 9, Wayne Farms moved the Bullock Circuit Court to transfer the action to the Pike Circuit Court. In its motion, Wayne Farms acknowledged that venue was proper in Bullock County but maintained that, pursuant to the doctrine of forum non conveniens, see § 6-3-21.1, Ala.Code 1975, in the interest of justice and for the convenience of the parties and witnesses, the action should be transferred to Pike County. In support of its motion, Wayne Farms attached an affidavit from William T. Sipper, the compliance manager for Wayne Farms who investigated the incident on the Hickses’ farm. He averred:

“Mrs. Hicks grew chickens for Wayne Farms for over 40 years at her Pike County farm. Most recently, Mrs. Hicks executed a Broiler Flock Agreement in April 2013 by which Mrs. Hicks agreed to grow and care for broiler birds owned by Wayne Farms at her farm in Pike County. Both Mrs. Hicks and Tony Wood, a Wayne Farms Live Production manager, executed the Broiler Flock Agreement in Pike County. Mark Sanders, who was Mrs. Hicks’[s] Wayne Farms field representative, visited Mrs. Hicks’[s] farm on a weekly or bi-weekly basis to meet and discuss the operation, growing conditions and other matters. Mr. Sanders and Mr. Wood are knowledgeable about the Broiler Flock Agreement, the relationship between Mrs. Hicks and Wayne Farms, Mrs. Hicks’[s] farming operation, the profitability of Mrs. Hicks’[s] farm and other related matters. Although Mr. Sanders lives in Crenshaw County, his current employment requires him to travel to Pike County almost every work day. Likewise, Mr. Wood now oversees Wayne Farms’[ ] Enterprise operation in Coffee County, which is approximately 24 miles from the Pike County Courthouse and approximately 55 miles from the Bullock County Courthouse.
“As set out in the Broiler Flock Agreement, a live haul operation, which is when Wayne Farms picks up its broiler birds from its growers, was scheduled for October 22, 2013. During the live haul operation, the tractor-trailer hauling a load of chickens overturned and injured Mr. Ben Hicks.
“The Meeksville Volunteer Fire Department, which is in Pike County, the Pike County Fire & Rescue and the City of Troy Fire Department responded to the scene of the accident. Specifically, the Meeksville Volunteer Fire Department responders included Chief Louis Davis, Joseph Walker, Samantha Davis and Thomas Davis, all of whom lived and worked in Pike County at the time of the accident and at the present time. Although the City of Troy Fire Department will not release the names of the personnel who responded to the accident or their report regarding the accident, I believe most, if not all, of the City of Troy responders lived and worked in Pike County at the time of the accident and likely at the present time as well.
“Also, Care Ambulance, out of Troy, responded to the accident and transported Mr. Hicks to the Troy Regional Medical Center Emergency Room where he was examined and then admitted for treatment. All of the nurses, physicians, therapists and other medical providers who examined and treated Mr. Hicks at Troy Regional Medical Center worked in Pike County and the records related to them treatment are also likely located in Pike County. Upon information and belief, Mr. Hicks’s primary care physician who provided care both before and after the accident is located in Pike County.
“After the accident, several Wayne Farms employees met with Mr. and Mrs. Hicks at their home in Pike County to discuss what Wayne Farms could do to help Mr. Hicks recover while also discussing the Hickses’[] concerns regarding when Mrs. Hicks might be able to take another batch of chickens. Michael Simmons, a Wayne Farms Broiler Manager and Kris Torbert, a Wayne Farms Live Production Manager, met at the Hicks[es]’ farm and offered to provide the Hickses with labor to assist in doing the work that Mr. Hicks did before the accident. Mr. Simmons lives and works in Troy (Pike County), Alabama. Although Mr. Torbert lives in Houston County, he maintains an office in both Houston and Pike Counties.
“Mr. Simmons is also very knowledgeable about the workings of the live production aspect of Wayne Farms’[ ] operation as well as the financial prospects of the business from the grower’s perspective. Also, Mr. Simmons inspected the feed bins at Mrs. Hicks’s Pike County farm after the accident and obtained an estimate for the cost of repair.
‘Wayne Farms’[] operation in Pike County is extensive and includes the entire live production department, including a feed mill and hatchery, as well as the accounting department. On the other hand, the only portion of Wayne Farms’! ] operation in Bullock County is a processing plant. Also, all of the record and documents regarding Wayne Farms’!] contracts with the Hicksfes], payments to the Hicksfes], Grower Settlement Summaries and other related documents are located in Pike County.
“Also, I searched online and discovered that the distance from the Hickses’ home to the Pike County Courthouse is approximately 4 miles while the distance from the Hickses’ home to the Bullock County Courthouse is nearly 35 miles.”

On October 29, 2015, the Hickses responded to Wayne Farms’ motion for a change of venue. In their response, they maintained that Wayne Farms had failed to show that transferring the case from a county where one of the defendants resided to a county where no defendant resided would be “significantly more convenient” or “in the interest of justice.” In support of their position, they attached a copy of King’s response to the plaintiffs’ first interrogatories, in which King stated that his residence was approximately 7 miles from the Bullock County Courthouse and that “it would be substantially more convenient for [him] if the trial in this case [was] held in Bullock County, Alabama.”

On October 30, 2015, Wayne Farms further supplemented its motion for a change of venue by filing affidavits from Michael Simmons, a broiler manager for Wayne Farms; Dustin L. Stinson, a physical-therapist assistant; Kris Torbert, a live-operations manager for Wayne Farms; and Tony Joe Wood, a live-production manager for Wayne Farms. On December 4, 2015, Wayne Farms filed additional affidavits from Louis Davis, chief of the Meeksville Volunteer Fire Department; Deborah Griffin, a physical therapist at Southeast Alabama Medical Center; Mark Sanders, a former Wayne Farms’ field representative; and Christopher Schwan, a former emergency medical technician who responded to Ben’s accident. These individuals averred that they had knowledge about the case, that they had worked or did work in Pike County, and that it would be more convenient for them if the case was tried in Pike County.

On December 7, 2015, the Bullock Circuit Court conducted a hearing to address Wayne Farms’ motion for a change of venue. On December 8, 2015, King submitted an affidavit stating that he is a legal resident of Bullock County and that he opposed the motion to transfer the case to Pike County.

On December 10, 2015, the Bullock Circuit Court entered an order denying Wayne Farms’ motion for a change of venue, stating:

“This matter comes before the court on the motion to transfer venue filed by Wayne Farms pursuant to Alabama Code 1975, § 6-3-21.1. The court has reviewed the evidence submitted by the parties in support of and in opposition to the motion. The court held a hearing on the motion to transfer on December [7], 2015, and heard arguments from attorneys for the [Hickses] and Wayne Farms. [King], who resides in Bullock County, did not appear at the hearing, but filed an affidavit with the court wherein he specifically stated that he wanted 'the case to remain in my home county.’ Mr. King’s affidavit also noted that his former employer, Wayne Farms, ‘has a large presence in my home county and engages in daily activities through a number of employees on a daily basis.’ Prior to the filing of the affidavit, King had also filed an answer to plaintiffs’ interrogatories in which he stated that his residence was only 7 miles from the Bullock County Courthouse and that it would be ‘substantially more convenient for me if the trial in this case is held in Bullock County, Alabama.’
“Having reviewed the submissions as to convenience, the court finds that [Wayne Farms] has not met [its] burden. This court is also required to decide the second prong of the statute, that dealing with the interest of justice. Wayne Farms is required to prove that there is no significant connection between this court and the [Hickses’] action, and that it would be in the interest of justice to have this case transferred to Pike County, Alabama. After reviewing the evidence, and considering the arguments of the parties at the hearing, the court finds the following: that Wayne Farms has not met its burden of proof; that there is a strong and therefore sufficient connection between the forum (Bullock County) where this action was filed and the [Hickses’] action; that there is a very strong connection between this case and Bullock County; that Wayne Farms has a large physical plant and a substantial business presence in Bullock County; [that] King resides in the county; and [that] Wayne Farms, therefore, has a strong connection to Bullock County; that King has not joined Wayne Farms in requesting a transfer and has filed an affidavit stating that to transfer the case to Pike County would not be in the interest of King.
“The court finds that there would be no burden on the judicial resources of Bullock County for this action to remain in this court and that the interest of justice does not require a transfer of this action to Pike County.
“For the reasons stated above, it is the judgment of this court that Wayne Farms’[] motion to transfer venue is due to be and is hereby denied.”

On January 21, 2016, Wayne Farms petitioned this Court for a writ of mandamus directing the Bullock Circuit Court to vacate its order denying its motion for a change of venue and to enter an order transferring the underlying action to Pike County. On February 24, 2016, this Court ordered answers and briefs.

Standard of Revieiv
“ ‘A petition for a writ of mandamus is the appropriate “method for obtaining review of a denial of a motion for a change of venue” pursuant to § 6-3-21.1. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998)....
‘““A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified ⅛ the interest of justice.’” Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where “the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6-3-21.1, Ala.Code 1975, compels the trial court to transfer the action to the alternative forum.” Ex parte First Tennessee Bank Nat’l Ass'n, 994 So.2d 906, 912 (Ala.2008)(emphasis added).’
“Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573 (Ala.2011).”

Ex parte Quality Carriers, Inc., 183 So.3d 937, 940-41 (Ala.2015).

Discussion

Wayne Farms contends that the Bullock Circuit Court exceeded the scope of its discretion in denying its motion to transfer the underlying action from Bullock County to Pike County because, it says, the interest of justice requires that the underlying action be heard in Pike County. Wayne Farms does not dispute that Bullock County is an appropriate venue; however, it maintains that the interest-of-justice prong of § 6-3-21.1 requires a transfer of the action to Pike County. Specifically, it argues that Pike County has a strong connection to the case because all the events giving rise to the Hickses’ claims occurred in Pike County and that Bullock County’s connection to the case is minimal—namely, the facts that King resides there and that Wayne Farms operates a processing facility there. Thus, Wayne Farms reasons that the interest-of-justice prong of Alabama’s forum non con-veniens statute requires the Bullock Circuit Court to transfer the case to the Pike Circuit Court.

Wayne Farms has moved this Court to strike certain exhibits attached to the Hickses’ response to its mandamus petition and to strike any arguments based upon those exhibits because those exhibits were not before the Bullock Circuit Court at-the time the Bullock Circuit Court denied the motion for a change of venue. Specifically, Wayne Farms objects to this Court’s consideration of Exhibit F, which is a fact sheet showing that Wayne Farms operates a processing facility in Bullock County; Exhibit G, which is a location map indicating the locations of Wayne Farms’ facilities; and Exhibit 0, which is a copy of the Union Springs Broiler Flock Agreement executed by Imogene and Wayne Farms. The Hickses oppose Wayne Farms’ motion to strike, maintaining that, even though the Bullock Circuit Court did not have those exhibits when it ruled on the motion, those exhibits were either referenced in the pleadings or evidence information about which the circuit court had judicial knowledge. “It is well settled that ‘in a mandamus proceeding, this Court will not consider evidence not presented to the trial court.’ Ex parte Cincinnati Ins. Co., 51 So.3d 298, 310 (Ala. 2010).” Ex parte Alabama Med. Ctr., 109 So.3d 1114, 1117 (Ala.2012). Accordingly, we will not consider Exhibits F, G, and O or any arguments based on those exhibits.

“Section 6-3-21.1, Ala.Code 1975, provides, in pertinent part:
“ With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.’
“(Emphasis added.)
“ ‘Historically, the plaintiff has had the initial choice of venue under the system established by the legislature for determining venue. Before the enactment of § 6-3-21.1 by the Alabama Legislature in 1987, a plaintiffs choice of venue could not be disturbed on the basis of convenience to the parties or the witnesses or in the interest of justice. With the adoption of § 6-3-21.1, trial courts now have “the power and the duty to transfer a cause when ‘the interest of justice’ requires a transfer.” Ex parte First Family Fin. Servs., Inc., 718 So.2d 658, 660 (Ala.1998)(emphasis added). In First Family, this Court noted that an argument that trial judges have almost unlimited discretion in determining whether a case should be transferred under § 6-3-21.1 “must be considered in light of the fact that the Legislature used the word ‘shall’ instead of the word ‘may’ in § 6-3-21.1.” 718 So.2d at 660. This Court has further held that “Alabama’s forum non conveniens statute is compulsory.” Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala.2004).’
“Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748-49 (Ala.2010).
“ ‘The “interest of justice” prong of § 6-3-21.1 requires “the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.” Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, “in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the ‘nexus’ or ‘connection’ between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.” Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that “litigation should be handled in the forum where the injury occurred.” Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider “the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.” Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).’
“Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008).”

Ex parte Quality Carriers, Inc., 183 So.3d at 942.

Here, Wayne Farms has established that, even though King resides in Bullock County and it operates a processing facility there, Pike County’s connection to the claims in this case is strong and Bullock County’s connection is weak. The Hickses are Pike County residents. The accident from which all the claims arise occurred on the Hickses’ farm, which is located in Pike County. Most of the emergency personnel who responded to the accident are located in Pike County. Ben received medical treatment from several medical providers in Pike County. Wayne Farms presented evidence indicating that its “operation in Pike County is extensive and includes the entire live production department, including a feed mill and hatchery, as well as the accounting department” and that all the interactions and business transactions between Wayne Farms and the Hickses occurred in Pike County. Although the Hickses are correct that the case has a connection with Bullock County because King is a resident of Bullock County and Wayne Farms operates a processing facility there, the overall connection between Bullock County and this case is weak and the connection between the case and Pike County is strong. As we stated in Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 750 (Ala.2010), with bracketed changes to reflect this case: “This Court sees no need to burden [Bullock] County, with its weak connection to the case, with an action that arose in [Pike] County simply because the individual defendant resides in [Bullock] County and the corporate defendant does some business there.” The Bullock Circuit Court exceeded the scope of its discretion when it denied Wayne Farms’ motion for a change of venue; the interest of justice requires that the underlying action be transferred. See Ex parte Quality Carriers, Inc., supra; Ex parte J & W Enters., 150 So.3d 190 (Ala.2014); Ex parte Autauga Heating & Cooling, supra; and Ex parte McKenzie Oil Co., 13 So.3d 346 (Ala. 2008).

Conclusion

Wayne Farms has demonstrated a clear legal right to a writ of mandamus directing the Bullock Circuit Court to vacate its order denying Wayne Farms’ motion for a change of venue and to enter an order transferring the underlying action to Pike County.

PETITION GRANTED; WRIT ISSUED.

BOLIN, WISE, and BRYAN, JJ., concur.

PARKER, J., concurs in the result.

MURDOCK and MAIN, JJ., dissent.

SHAW, J., recuses himself.

MAIN, Justice

(dissenting).

I respectfully dissent. The parties agree that venue is proper in Bullock County where the plaintiffs filed suit. Additionally, Pike County, the neighboring county, is also a proper venue, and it has a strong connection to Ben F. Hicks and Imogene W. Hicks’s claims. Nevertheless, I do not agree that Bullock County’s connection to the claims is so weak that the “interest of justice” would be offended by trying the case there. Given the relevant facts, including Wayne Farms’ major presence in Bullock County, the connection of its Bullock County operation to the incident, and the codefendant’s desire that the case remain in his home county, Bullock County has more than “little, if any, connection to the action.” See Ex parte National Sec. Ins. Co., 727 So.2d 788, 790 (Ala.1998) (“[T]he ‘interest of justice’ requires the transfer of the action from a county with little, if any, connection to the action ... to the county with a strong connection to the action.... ”). Thus, I would defer to the plaintiffs’ choice of venue and deny the petition. Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003) (‘When venue is appropriate in more than one county, the plaintiffs choice of venue is generally given great deference.”).

      . The Hickses are correct that the Union Springs Broiler Flock Agreement was referenced in several of the pleadings before the Bullock Circuit Court. However, a copy of the agreement was never presented to the circuit court; therefore, any arguments based on the language in the agreement will not be considered.

      . Because we conclude that the interest of justice mandates that the underlying action be transferred to Pike County, we pretermit discussion of the convenience-of-the-parties-and-witnesses prong addressed in the petition.


author: SHAW, Justice.

text:
    Ex parte Derrick STURDIVANT. (In re Derrick Sturdivant v. State of Alabama).
    1150416.
    Supreme Court of Alabama.
    May 27, 2016.
    Derrick Sturdivant, pro se.
    Submitted on certiorari petition only.
   SHAW, Justice.

On December 11, 2015, the Court of Criminal Appeals, in an unpublished memorandum, affirmed the Jefferson Circuit Court’s order denying Derrick Sturdivant’s Rule 32, Ala. R.Crim. P., petition. Sturdivant v. State (No. CR-14-1549, December 11, 2015), _ So.3d _ (Ala.Crim.App.2015) (table). In his brief on appeal in the Court of Criminal Appeals, Sturdivant, for the first time, raised an issue challenging the sentencing court’s jurisdiction to enter his original sentence. Following the Court of Criminal Appeals’ affirmance, Sturdivant filed this petition for a writ of certiorari.

Although jurisdictional issues can generally be raised at any time, see Nunn v. Baker, 518 So.2d 711 (Ala.1987), the Court of Criminal Appeals “will not remand a case to the circuit court to hold an eviden-tiary hearing on a jurisdictional claim that was not presented in the petitioner’s Rule 32 petition unless facts appear in the record affirmatively showing a lack of jurisdiction.” Fincher v. State, 837 So.2d 876, 881 (Ala.Crim.App.2002). Nothing before this Court indicates that the record before the Court of Criminal Appeals affirmatively demonstrated that the sentencing court lacked jurisdiction, and we deny Sturdi-vant’s petition for the writ of certiorari.

Nevertheless, if Sturdivant’s claim “is jurisdictional in nature, [then Sturdivant] may file another Rule 32 petition raising this claim; the claim will not be subject to the procedural bars in Rule 32.2, Ala. R.Crim. P.; if pleaded properly, [Sturdi-vant] would be entitled to have an opportunity to present evidence to prove the claim.” Fincher, 837 So.2d at 882.

WRIT DENIED.

STUART, PARKER, MAIN, and WISE, JJ., concur.

      . The merits of that claim have not been adjudicated in this case.


author: PER CURIAM. THOMPSON, Presiding Judge,

text:
    Stephanie Spivey Fancher REEVES v. Robert Allen FANCHER.
    2140925.
    Court of Civil Appeals of Alabama.
    May 20, 2016.

      Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellant.
    Rickman E. Williams III and Valerie K. Ghittom of Pitts, Williams & Jones, Selma, for appellee.
   PER CURIAM.

Robert Allen Fancher (“the father”) and Stephanie Spivey Fancher (“the mother”) were divorced by an October 14, 2009, judgment of the Dallas Circuit Court (“the trial court”). Pursuant to the divorce judgment, the parties were awarded joint legal and joint physical custody of the minor child born of their marriage.

On June 19, 2014, the mother notified the father pursuant to the requirements of the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 to § 30-3-169.10, Ala.Code 1975, that she intended to relocate with the child to Vicksburg, Mississippi, with her new husband. On July 1, 2014, the father filed a petition in the trial court in which he objected to the proposed change in the principal residence of the child and sought an award of custody of the child. See § 30-3-169, Ala. Code 1975. The mother answered the father’s July 1, 2014, petition and counterclaimed, also seeking an award of custody of the child.

The trial court conducted an ore tenus hearing on the parties’ claims. The record indicates that during the course of the testimony, the hearing was recessed and the parties reached a settlement agreement. On October 6, 2014, the trial court entered a judgment incorporating the terms of that agreement. Pursuant to the October 6, 2014, judgment, the parties were awarded joint legal custody of the child, but the mother was awarded “primary physical custody.” The judgment specified that the mother and the child were permitted to relocate to Vicksburg, established a standard schedule of visitation for the father, and ordered the father to pay child support.

On November 6, 2014, the father filed a postjudgment motion in which he asserted arguments pertaining to the income-withholding order entered to enforce his child-support obligation. The trial court denied that motion on November 10, 2014. Neither party appealed.

On December 2, 2014, the father filed what he characterized as a “motion to reconsider” the October 6, 2014, judgment. In that “motion,” the father sought an award of custody of the child. On December 4, 2014, the trial court entered an order in which it scheduled the father’s “motion” for a hearing. Also on December 4, 2014, the mother moved to vacate the trial court’s December 4, 2014, order, arguing that the father’s request for a modification of custody required the initiation of a new action and the payment of a filing fee. The record does not indicate that the trial court ruled on the mother’s motion to vacate.

However, on December 4, 2014, the father initiated a new modification action in which he sought an award of custody of the child. The trial court conducted an ore tenus hearing on the father’s December 2014 modification petition on February 11, 2015. During that hearing, the father offered in support of his custody-modification claim only the testimony of the parties’ young child. After the child testified and the father rested his case, the mother moved for a “judgment as a matter of law” or to dismiss the action, arguing that the evidence presented by the father did not meet the evidentiary burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), necessary to warrant a modification of the October 6, 2014, judgment that had awarded the mother primary physical custody of the child. The trial court denied the mother’s motion. For reasons not explained in the record, the trial court did not enter a judgment until six months later, on August 12, 2015. In that August 12, 2015, judgment, the trial court found, among other things, that there had been a material change in circumstances and awarded custody of the child to the father. The mother timely appealed.

The mother first argues that the trial court erred in failing to grant her motion for a “judgment as a matter of law” following the father’s presentation of evidence in his case-in-chief. The trial court received ore tenus evidence without a jury, and, in such a case, a motion for a “judgment as a matter of law” is properly referred to as a motion for a “judgment on partial findings.” See Rule 52(c), Ala. R. Civ. P.; Lawson v. Harris Culinary Enters., LLC, 83 So.3d 483, 495 n. 7 (Ala. 2011). See also City of Prattville v. Post, 831 So.2d 622, 627 (Ala.Civ.App.2002) (“A motion for a ‘judgment as a matter of law’ asserted in a bench trial is actually a motion for a judgment on partial findings by the trial court.”). A motion for a judgment as a matter of law, formerly referred to as a motion for a directed verdict, in a nonjury action was formerly treated as a Rule 41(b), Ala. R. Civ. P., motion for an involuntary dismissal until Rule 41(b) was replaced by Rule 52(c), Ala. R. Civ. P. Hales v. Scott, 473 So.2d 1028 (Ala.1985) (treating a “motion for a directed verdict” as a Rule 41(b) motion); Stroupe v. Beasley, 549 So.2d 15, 16-17 (Ala.1989) (same). Our supreme court has explained:

“Rule 52(c), Ala. R. Civ. P., supplanted the involuntary-dismissal procedure in nonjury trials set forth in Rule 41(b), Ala. R. Civ. P. Loggins v. Robinson, 738 So.2d 1268 (Ala.Civ.App.1999). Thus, we will treat ... [a] motion for involuntary dismissal as one for a judgment on partial findings under Rule 52(c). Rule 52(c) provides:
“ ‘If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence.’
“Caselaw addressing involuntary dismissals under former Rule 41(b) is equally applicable to a judgment on partial findings entered pursuant to Rule 52(c). Loggins, supra. This court in Loggins set forth the applicable standard of review in such a case, as follows:
“‘“[Sjince the Judge is the trier of fact in a nonjury action, he or she may weigh and consider the evidence on a motion for an involuntary dismissal. The normal presumptions of correctness attach to a trial court’s ruling on an involuntary dismissal. The trial court’s ruling need only be supported by credible evidence and will not be set aside unless it is clearly erroneous or palpably wrong or unjust.” ’
738 So.2d at 1271, quoting Feaster v. American Liberty Ins. Co., 410 So.2d 399, 402 (Ala.1982).”

King Power Equip., Inc. v. Robinson, 777 So.2d 723, 726 (Ala.Civ.App.2000).

In King Power Equipment, supra, the defendant, King Power Equipment, Inc., argued on appeal, among other things, that the trial court in that case had erred in denying its “motion for involuntary dismissal,” which this court noted was properly made pursuant to Rule 52(c), after the close of the plaintiffs evidence. 777 So.2d at 726. In addressing that issue, this court set forth and considered only the evidence that was before the trial court in that case at the time King Power Equipment moved for the judgment on partial findings; in other words, this court analyzed the issue considering only the evidence presented by the plaintiff in her case-in-chief. 777 So.2d at 727 (“When King Power Equipment moved for the involuntary dismissal, the court had the following evidence before it....”). This court ultimately concluded in that case that, “at the time King Power Equipment moved the court for a judgment on partial findings, the court had before it sufficient credible evidence” that supported its denial of that motion and that “the court’s denial of King Power Equipment’s motion for a judgment on partial findings was not clearly erroneous.” 777 So.2d at 727.

In this case, in order to address the mother’s argument that the trial court erred in denying her motion for a judgment on partial findings, this court must consider the evidence that was before the trial court at the time the mother made that motion. See King Power Equip., 777 So.2d at 727. In considering that evidence, this court may not reverse the trial court’s ruling unless it is clearly erroneous. See King Power Equip., 777 So.2d at 727.

The October 6, 2014, judgment that the father sought to modify awarded the mother primary physical custody of the child. Accordingly, in order to prevail on a claim seeking to modify that custody award, the father was required to meet the McLendon standard:

“A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra. A parent seeking to modify a previous custody order bears a heavy burden of proof. Vick v. Vick, 688 So.2d 852 (Ala.Civ.App.1997).”

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009).

In support of his custody-modification claim, the father presented as evidence the testimony of only one witness, the parties’ minor child, who was nine years old at the time of the February 11, 2015, hearing; after the child finished testifying, the father rested his case. The transcript indicates that the father’s attorney, in his direct examination, repeatedly had to remind the child to answer out loud; the child repeatedly either nodded or shook her head or failed to respond to questioning. The vast majority of the responses the child did make during the father’s direct examination were “yes” or “no” answers to leading questions. In short, the child indicated that she had liked her school in Alabama, that she had had difficulty making friends at her new school in Mississippi, and that she missed her extended family in Alabama. The child responded “yes” to questioning regarding whether she wanted to live with her father.

The mother’s attorney questioned the child about her life in Mississippi. The child testified that she likes her teacher, that she made the “A/B” honor roll at her new school, and that she has been involved in a local church and is taking gymnastics after school. The child also testified that she had engaged in similar activities when she lived in Alabama. On cross-examination, the child testified that she misses her friends in Alabama but that she had made some new friends in Mississippi. The child also stated that, when she and the mother had lived in Alabama, she had visited the father every other weekend and that she continued to see the father on alternating weekends after she and the mother moved to Mississippi.

The mother maintains that that evidence was not sufficient to survive her motion for a judgment on partial findings. The October 6, 2014, modification judgment incorporated an agreement of the parties reached after the mother had presented ore tenus evidence in support of the proposed relocation to Mississippi during the hearing on the father’s petition objecting to that relocation. That judgment specifically provided, in compliance with the Act, that the mother and the child could relocate to Mississippi. Accordingly, under the facts of this case, it would be improper to consider that court-approved relocation as a material change in circumstances warranting a modification of custody. A purpose of the Act is to allow the parties and the trial court to consider issues pertaining to a proposed relocation before the relocation occurs and before a child’s life is possibly disrupted by a relocation or a change in custody.

The father seems to have based his custody-modification petition solely on the child’s desire to return to live in Alabama. The father filed his custody-modification petition less than two months after the mother and the child had relocated, and at the time of the February 11, 2015, hearing on the merits of the father’s December 4, 2014, custody-modification petition, the child had been living in Mississippi for only four months.

As the mother argued before the trial court, and as she reiterates on appeal, although a child’s desire with regard to custody modification is a factor that may be considered by a trial court, the child’s desire, alone, may not be determinative of a custody decision, Glover v. Singleton, 598 So.2d 995, 996 (Ala.Civ.App.1992); Marusich v. Bright, 947 So.2d 1068, 1071 (Ala.Civ.App.2006) (“The child testified that he wanted to live with the father; however, that testimony alone was insufficient to overcome the presumption in favor of the mother[, the custodial parent].”).

In Marusich v. Bright, supra, the father in that case sought a modification of custody under the McLendon standard, and he presented evidence indicating only that he had remarried and that the child wanted to live with him. The trial court granted the requested modification, and this court reversed, concluding that “the father offered insufficient evidence to establish that there had been a material change in circumstances warranting a change in custody.” 947 So.2d at 1071.

Similarly, in C.E. v. C.C.H., 963 So.2d 131 (Ala.Civ.App.2007), the mother in that case sought to modify a custody award that afforded the father in that case custody of the parties’ minor child. The trial court granted the petition to modify, and this court reversed. In doing so, this court noted that the mother had presented evidence indicating that her circumstances were essentially the same but that the child wanted to live with her, apparently, in part, because the child did not get along "with her stepmother and did not spend much time with the father. This court concluded that “[njothing in the testimony at trial established a material change in circumstances affecting the child’s welfare such that custody should be changed; nor did the evidence demonstrate that the child’s best interests would be materially promoted by placement in her mother’s custody.” C.E. v. C.C.H., 963 So.2d at 135.

In this case, the evidence indicates that the child is engaged in the same activities in Mississippi in which she took part when she lived in Alabama, i.e., school, extracurricular activities, and church activities. The child testified that she wanted to return to Alabama and that she missed her extended family in Alabama; however, the child’s desire, alone, is not dispositive. See Glover v. Singleton, supra; Marusich v. Bright, supra, The child testified that, at the time of the February 11, 2015, hearing, she was doing well in her new school, was active in church activities, and was making friends in Mississippi.

After the child testified and the father rested his case, the father’s claim seeking a modification of custody had been fully heard by the trial court. The mother argued that the evidence was not sufficient to meet the McLendon standard, and she cited a number of cases to the trial court to support her contention that the child’s desire with regard to custody was not determinative. The mother also argued that, given the evidence the father had presented, she should not be required to present evidence to defend the father’s custody-modification claim. We agree. The evidence indicates that the child was adjusting to the recent relocation to Mississippi but that she missed her former home, her father, and her extended family and would prefer to live in Alabama. The relocation was made only after the father objected, the trial court received some ore tenus evidence, and, ultimately, the father, rather than present evidence in opposition to the relocation, consented to it. The trial court entered the October 6, 2014, modification judgment pursuant to the Act. Even affording the ‘““normal presumptions of correctness” ’ ” to the trial court’s ruling, King Power Equipment, 777 So.2d at 726 (quoting Loggins, 738 So.2d at 1271), we cannot say that, at the time the father rested his case and the mother moved for a judgment on partial findings on the father’s most recent custody-modification claim, the father had presented sufficient evidence of a material change in circumstances. Further, the father presented no evidence tending to indicate that the child’s best interests would be materially promoted by a change in custody. Accordingly, given the evidence and arguments presented to the trial court, we conclude that the trial court erred in denying the mother’s Rule 52(c) motion for a judgment on partial findings. We, therefore, reverse the August 12, 2015, judgment.

The mother has also raised arguments pertaining to the trial court’s consideration of the report of the guardian ad litem submitted after the close of all of the evidence, especially given the fact that the guardian ad litem was not present at the February 11, 2015, hearing. Comments made by the trial court and the attorneys during the hearing in this matter indicate that the guardian ad litem was ill and unable to attend the hearing for that reason. Given the disposition of this appeal, we need not reach the arguments the mother raises in her appellate brief with regard to the consideration of the guardian ad litem’s report.

The mother’s request for an attorney fee on appeal is denied. Upon the docketing of a notice of appeal, an Informational Filing Notice is transmitted by the court’s clerk to the attorneys of record. An Informational Filing Notice was electronically sent to the mother’s attorney on August 20, 2015. That Informational Filing Notice specifies, among other things, that an itemized statement must be attached to a request for an attorney fee on appeal. The mother, in her request for an attorney fee, did not submit an itemized statement in support of her request for an attorney fee.

REVERSED AND REMANDED.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs specially.

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

THOMPSON, Presiding Judge,

concurring specially.

This case illustrates why caution should be exei’cised when allowing a young child to testify, particularly in an action between the child’s parents. There is no general prohibition against allowing a child to testify, “ ‘even though calling children to testify against one of their parents in a divorce case is distasteful and should be discouraged.’ ” Blume v. Durrett, 703 So.2d 986, 989 (Ala.Civ.App.1997) (quoting Ex parte Harris, 461 So.2d 1332, 1333 (Ala.1984)). In determining whether to allow a child to testify, a trial court should make a determination of the child’s “maturity and competency” to provide testimony. Blume v. Durrett, 703 So.2d at 989. In addition, as in all matters concerning child custody, the best interests of the child are the foremost consideration. McCulloch v. Campbell, 60 So.3d 909, 918 (Ala.Civ.App.2010). Therefore, the trial court must determine whether, given the situation and the child’s maturity and competency, allowing a child to testify would serve the child’s best interests.

“During a custody proceeding, a child is a ward of the court, and the trial judge has wide discretion in protecting the child. The judge
“ ‘acts as parens patriae to do what is best for the interest of the child.... Any matter affecting the rights, interest or welfare of the ward is within the peculiar jurisdiction and discretion of the court. Protection of the child from the emotional experience of expressing a preference as between one parent or another in open court in their presence and being subjected to cross-examination is within the discretion of the court.’
“Leigh v. Aiken, 54 Ala.App. 620, 623-24, 311 So.2d 444 (Ala.Civ.App.1975).”

Blume v. Durrett, 703 So.2d at 989 (emphasis added).

The transcript of the child’s testimony in this case demonstrates that the child was either in distress while testifying or not sufficiently mature to testify. The child was prodded repeatedly to answer questions posed to her, and, when the child merely nodded or shook her head in response to a question, she was further repeatedly urged to answer questions aloud. Neither parent objected to the child’s being called to testify in open court as possibly being detrimental to her, nor did either object during the child’s testimony. At the end of the questioning of the child, the mother’s attorney asked the child whether she believed that it was fair that the child had to make the decision regarding with which parent she was to live. The child was unable to answer and instead shook her head.

The child’s preference, alone, is not determinative of a custody decision, see Glover v. Singleton, 598 So.2d 995, 996 (Ala.Civ.App.1992), and Marusich v. Bright, 947 So.2d 1068, 1071 (Ala.Civ.App.2006), and no child should be placed in the position of believing that his or her preference would decide a dispute between the two adult parents. It is clear from the transcript that having to testify in the action between her parents placed the child in an untenable and stressful situation. In determining whether to allow a child to testify, a trial court should consider its parens patriae role in protecting the child from the stresses of believing that he or she might influence the outcome of a custodial dispute between his or her parents and to consider whether the child is sufficiently mature to testify and whether allowing the child to testify serves the child’s best interests.

      . In enacting § 30-3-151, Ala.Code 1975, our legislature defined only five types of custody a trial court may consider in fashioning a custody award: "joint custody,” "joint legal custody,” "joint physical custody,” “sole legal custody," and "sole physical custody." That statute defines "sole physical custody” as a situation in which "[o]ne parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.” § 30-3-151(5). Parties and trial courts often use the nonstatutory term "primary physical custody” in place of "sole physical custody” in describing an award of physical custody to one of the parties. An award of “primary physical custody” generally, as in this case, denotes an award of "sole physical custody" as that term is defined in §30-3-151. This court has explained:
      "[0]ur appellate courts have recognized that there is confusion in the trial courts’ use of th[e] term ['joint custody’], and, therefore, the courts have interpreted the term joint custody’ according to the intent of the trial court in using the term. This court has explained:
      " 'The trial court's divorce judgment awarded the parties “joint custody,” yet it awarded the father “primary physical custody.” "These terms have been commonly employed by the bench and bar; however, in light of the definitions of the types of custody set out in the joint-custody statute, those older terms are unclear and ... serve only to confuse the issue of custody.” Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999). Using the proper terms set out in the joint-custody statute, § 30-3-151, Ala.Code 1975, the divorce judgment can be construed only one way—that is, it awards the father sole physical custody and the mother and the father joint legal custody. See Harris, 775 So.2d at 214.’ ”

        Whitehead v. Whitehead, [Ms. 2140657, Feb. 12, 2016] _ So.3d _, _ (Ala.Civ.App.2016) (quoting Richardson v. Fotheringham, 950 So.2d 339, 341 (Ala.Civ.App.2006)). For the purposes of this opinion, we refer to the custody award as one providing for "primary physical custody.” There is no dispute between the parties to this action that the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), applies to a modification of the October 6, 2014, judgment. See Whitehead v. Whitehead, supra.

      . We note that the mother did not renew her motion for a judgment on partial findings pursuant to Rule 52(c) at the close of the evidence. However, such a renewal is not required in the context of a Rule 52(c) motion. Our supreme court has explained:
      "In a case tried before a jury, to preserve for appellate review a question of the sufficiency of the evidence, a party must raise that question in a Rule 50(a), Ala. R. Civ. P„ motion for a judgment as a matter of law, at the close of all the evidence. Barnes v. Dale, 530 So.2d 770, 776-77 (Ala.1988). This principle does not apply in a nonjury case. Seier v. Peek, 456 So.2d 1079, 1081 (Ala.1984).”

        Ex parte James, 764 So.2d 557, 559 (Ala.1999).

      . The record indicates that, although the divorce judgment had provided that the parties had joint legal and joint physical custody of the child, the parties had agreed to informally alter that arrangement when the child began school. After the child began school, the child lived with the mother and visited the father on alternating weekends.