author: BARNES, J„

text:
    Willie WASH, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01705-COA
    Court of Appeals of Mississippi.
    05/02/2017

      DESOTO COUNTY CIRCUIT COURT, HON. ROBERT P. CHAMBERLIN, J.
    ATTORNEY FOR APPELLANT: WILLIE WASH (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE LEE, C.J., BARNES AND . FAIR, JJ.
   BARNES, J„

FOR THE COURT:

¶'1. Willie Wash appeals the Circuit Court of DeSoto County’s judgment denying his motion for post-conviction relief (PCR). 'Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In November 2013, Wash was indicted for one count of third-offense felony shoplifting, in violation of Mississippi Code Annotated section 97-23-93(6) (Rev. 2006), for stealing eight containers of Gain washing detergent and one pack of Bounty paper towels from a Walmart. Wash- was charged as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015), as two of his numerous other prior felonies were violent in nature. On May 1, 2014, Wash pleaded guilty to the shoplifting as charged, and as a result, the State agreed to lower his habitual-offender status to section 99-19-81, thereby allowing Wash to receive' the maximum term of imprisonment prescribed for the crime of shoplifting rather than life imprisonment. The court sentenced Wash to servé five years in the custody of the Mississippi Department of Corrections, and to pay a fine of $1,000.

¶3. On April 23, 2015, Wash filed a lengthy PCR motion claiming ineffective assistance of counsel, irregularities in his indictment, involuntary plea, vindictive prosecution, and other constitutional violations. More specifically, Wash argued that he never received a preliminary hearing and that one of his prior crimes was listed twice on the indictment. Attached to his motion were numerous letters written by Wash to his counsel from January through April 2014, as well as bar-complaint information. In the letters, Wash complained about his counsel’s assistance and the falsity of his indictment; he requested the “discovery package” for his case and a rule book. In May 12, 2015, Wash filed an amended PCR motion, making similar claims, but additionally arguing that the State breached the plea agreement in violation of the State and Federal Constitutions because he was promised eligibility for parole after serving fifty percent of his sentence.

¶ 4. On June 5, 2015, the circuit court denied Wash’s motion, finding his claims without merit. Nearly five months later, on November 9, 2015, Wash appealed the denial. The next day, the circuit court issued an order granting leave for Wash to proceed on appeal in forma pauperis, and this Court subsequently permitted Wash’s out-of-time appeal.

STANDARD OF REVIEW

¶ 5. When reviewing a circuit court’s denial of a PCR motion, the appellate court will only disturb the circuit court’s factual findings if they are clearly erroneous. Matters of law are reviewed de novo. Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss. 2009) (citations omitted).

ANALYSIS

¶ 6. Wash makes several assertions in his lengthy brief before this Court, but they all relate to ineffective assistance of counsel. To succeed on this claim, the defendant must show that his trial counsel’s performance was deficient, and he was prejudiced by that deficiency. McCollum v. State, 81 So.3d 1191, 1192-93 (¶ 8) (Miss. Ct. App. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In the context of a guilty plea, the defendant must show that his “counsel’s errors proximately resulted in the guilty plea and, but for counsel’s error, the defendant would not have entered the guilty plea.” Id. at 1193 (¶ 8) (quoting Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss. Ct. App. 2006)). The defendant “must show unprofessional errors of substantial gravity,” and allege such facts with “specificity and detail.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss. Ct. App. 2006) (citation omitted); Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss. Ct. App. 2006) (citation omitted). However, there is a strong rebuttable presumption that counsel’s conduct falls “within the wide range of reasonable professional assistance.” Kinney, 737 So.2d at 1041 (¶ 8) (citation omitted).

¶ 7. Wash fails to prove ineffective assistance. He claims his counsel failed to conduct an investigation of his case and any possible defenses. However, for claims of failure to investigate, “the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome.” Madden v. State, 991 So.2d 1231, 1238 (¶ 31) (Miss. Ct. App. 2008) (citation omitted). Wash vaguely comments about a plausible defense related to a warrant in Shelby County, but he fails to explain how the warrant relates to his defense, or how it would alter his case’s outcome.

¶ 8. Additionally, Wash claims his counsel should have objected to defects in his indictment; specifically, he should have “challenged” two prior violent convictions from Tennessee that enhanced his sentence. However, Wash admitted to all of his prior crimes, including these two, in his plea colloquy. Moreover, “a guilty plea waives any claim to a defective indictment.” Phillips v. State, 25 So.3d 404, 407 (¶ 6) (Miss. Ct. App. 2010) (quoting Harris v. State, 757 So.2d 195, 197 (¶ 9) (Miss. 2000)). We find no merit to this contention.

¶ 9. Wash also contends his counsel was ignorant of the law, and used intimidation and scare tactics. As a result, Wash states he was forced to enter a plea agreement and accept a five-year sentence. However, Wash provides no proof of these allegations except his own bare assertions in his brief, which are contradicted by the record. The reviewing court cannot decide issues “based on assertions from the briefs alone. The issues must be supported and proved by the record.” Bell v. State, 117 So.3d 661, 663 (¶ 8) (Miss. Ct. App. 2013) (quoting Pulphus v. State, 782 So.2d 1220, 1224 (¶ 15) (Miss. 2001)). The, plea-hearing transcript indicates Wash’s counsel had adequate time to prepare and investigate the case. During his plea colloquy, Wash represented that he had no disagreements with the State’s proof, agreed that his counsel explained his potential sentence, and stated he had not been threatened or coerced into pleading guilty. He also claimed to be satisfied with his counsel’s advice and representation. Wash signed a plea agreement to the same effect, stating his counsel was competent.

¶ 10. Wash fails to prove that his counsel’s performance was deficient. Accordingly, this issue is without merit. We affirm the circuit court’s denial of his PCR motion.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . The majority of Wash’s 545-page record on appeal is a pen-pack and other documentation of his prior criminal history for shoplifting, burglary, and other crimes, starting as early as 1972, and mostly occurring in the Memphis, Tennessee area, His two violent felonies were aggravated assault with a deadly weapon in 2001.

      . However, Wash never pursued an ethical complaint with the Mississippi Bar alleging violation of the Rules of Professional Conduct.

      . The circuit court noted in its November 10 order that while the order denying Wash’s PCR motion had been mailed to Wash on June 5, 2015, Wash apparently did not receive it in a timely manner, because on October 12, 2015, Wash filed a petition for a writ of mandamus requesting the circuit court rule on his PCR motion. Accordingly, on the same day the circuit court received Wash’s petition for a writ of mandamus, the court mailed another copy of the June 5 order to Wash, and on November 9, 2015, the court received Wash's notice of appeal, dated November 3, 2015. On February 9, 2016, this Court granted Wash an out-of-time appeal for good cause.
      While the rules on the trial court extending the time to file a notice of appeal under Mississippi Rule of Appellate Procedure 4(g) are very strict, the comment to Rule 4(g) states the court may suspend Rule 4 to permit out-of-time appeals in criminal cases. Post-conviction-relief proceedings are governed by this rule. M.R.A.P. 4(g) cmt.


source: Caselaw Access Project

author: LEE, C.J., CARLTON, J.,

license: Public Domain

text:
    James Howard WORDLAW a/k/a Do Do a/k/a James Howard Woodlaw a/k/a James Wordlaw a/k/a James H. Wordlaw, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01210-COA
    Court of Appeals of Mississippi.
    05/02/2017
    OKTIBBEHA COUNTY CIRCUIT COURT, LEE J. HOWARD, J.
    OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINS-WORTH, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

PROCEDURAL HISTORY

¶ 1. James Wordlaw was convicted by a jury in the Oktibbeha County Circuit Court of one count of possession of more than .1 gram but less than 2 grams of a controlled substance. He was sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015) and as a subsequent drug offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2013) to six years in the custody of the Mississippi Department of Corrections, without reduction or suspension, or eligibility for parole or probation. Wordlaw was also ordered to pay a $6,000 fine.

¶ 2. Wordlaw filed posttrial motions, which the trial court denied. He now appeals, asserting that the trial court erred by denying his circumstantial-evidence jury instructions and by failing to instruct the jury on venue. We find reversible error regarding venue and remand for a new trial. We decline to address Wordlaw’s other issue.

FACTS

¶3. On the morning of December 24, 2013, Jeremy Akins, an officer with the Starkville Police Department (SPD), noticed a black Toyota Tacoma speeding in Starkville, Mississippi. Officer AMns initiated a traffic stop, and recognized the driver of the truck as Wordlaw. Officer Akins testified that he had seen Wordlaw driving the same truck several times in the weeks leading up to December 24. Word-law told Officer Akins that his license had been suspended. Officer Akins testified that he discovered Roy Bennett was the title owner of the truck,

¶ 4. Although he first claimed the truck belonged to Bennett, his boss, Wordlaw consented to a search. Officer Akins discovered a cigarette pack between the driver’s seat and the middle console. The cigarette pack contained a clear bag filled with a white substance, which was later tested and determined to be crack cocaine. Word-law was subsequently arrested.

¶ 5. Chris Jackson, an officer with the SPD, also responded to the scene. Officer Jackson approached the passenger side of the truck, where Andrea Middleton was sitting. While Officer Akins searched the truck, Officer Jackson received consent from Middleton to search her pockets. Officer Jackson found a crack pipe in Middleton’s pocket. Middleton was subsequently arrested. Other items associated with drug use were found in the truck, including copper brillo pads, copper wiring, and a “push rod” for. use with a crack pipe. Officer Jackson also testified that while Officer Akins searched the truck, he noticed Wordlaw with what resembled a plastic bag in his mouth. He ordered Wordlaw to spit out the plastic bag, but Wordlaw swallowed it instead. An ambulance was called to the scene, but Wordlaw refused medical treatment.

¶ 6. During trial, Bennett testified that he had sold the truck to Wordlaw in October 2013. At .the time, Bennett said his daughter’s boyfriend had been paying the car-insurance premiums.

¶7. Middleton testified that Wordlaw had offered her a ride. . When they noticed the police lights, Wordlaw asked her to hold a cigarette pack. Middleton testified that she refused. Middleton admitted that she had a crack pipe, but denied-possession of the cocaine. Middleton stated she did not know Wordlaw had drugs in the truck until he tried to get -her to hold: the cigarette pack. Middleton said she had been charged , with possession-of cocaine but the charge was later retired to her file. She pleaded guilty to possession of drug paraphernalia.

DISCUSSION

¶ 8. Wordlaw argues that the trial court failed to include .the county and state in the jury instructions. And he contends that the failure to include the venue in jury instruction S.-2 is reversible error. “Failure to instruct the jury on the essential elements of the crime is plain error.” Rogers v. State, 95 So.3d 623, 632 (¶ 30) (Miss. 2012). Venue is considered an .essential element to a criminal prosecution. Id.

. ¶ 9. Wordlaw objected to instruction S-2, arguing it was an improper-instruction for failing to include venue. S-2 read as follows:

The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that, the, Defendant, James Howard Wordlaw, did on or about December 24, 2013, . unlawfully, willfully, feloniously, knowingly[,] and intentionally possess a controlled substance, to wit: Cocaine, in an amount greater than .1 [gram] but less than 2 [grams], then you shall find the Defendant guilty as charged. If the State has failed to prove any of .these elements beyond a reasonable doubt, then you shall find the Defendant not guilty.

¶ 10. The trial court overruled Word-law’s objection. When Wordlaw presented instruction D-2, which tracked the model jury instruction by including the county where the offense occurred, the trial court stated, “D-2 is refused as repetitious. [I] already gave that same instruction. [The] only difference is [D-2] says Oktibbeha County, Mississippi, and that [is] not necessary in the instructions.” No other instructions given to the jury mentioned where the crime occurred, and the indictment was not submitted to the jury.

¶ 11. In Rogers, the supreme court found that the failure to instruct the jury on venue was plain error, and reversed for a new trial. Id. at 624 (¶ 1). The instruction at issue read:

The Court instructs the Jury that ... if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in Count Two of the indictment and testified about, the Defendant, Allen Lynn Rogers, Jr., did willfully, unlawfully[,] and feloniously touch the person of William Hicks, a male child under the age of sixteen (16) years[,] for the purpose of gratifying his lust and indulging his depraved licentious sexual desires, at a time when he, the said Allen Lynn Rogers Jr., was a male person above the age of eighteen (18) years, then it is your duty to find the Defendant guilty as charged in Count Two.

Id. at 631-32 (¶28). The supreme court determined that the jury was “never instructed that, to convict, it was required to find from the evidence, beyond a reasonable doubt, that the crime had occurred in Scott County, Mississippi.” Id. at 631 (¶ 28). The court stated that “the phrase ‘at the time and place charged in Count Two of the indictment and testified about’ did not apprise the jury that the crime must have occurred in Scott County, Mississippi.” Id. at 632 (¶ 28). The court further noted that the indictment was not submitted to the jury for consideration and the “ ‘time and place testified about’ was far from definite.” Id.

¶ 12. In Chesney v. State, 165 So.3d 498, 504 (¶ 12) (Miss. Ct. App. 2015), this Court found reversible error where the jury was not instructed as to venue. The instruction at issue in Chesney was similar to the one in Rogers where it provided that the jury had to find the crime occurred “at the time and place charged” in the indictment. Id. at 503 (¶ 12). Like Rogers, the indictment was not submitted to the jury. We noted that “nowhere was the jury instructed in open court that the location of the conduct was an element of the offense.” Id. at 503-04 (¶ 12). Although there was testimony during trial regarding the location of the offense, “the jury was never instructed that it had to find that the crimes occurred in Neshoba County.” Id. at 504 (¶ 12).

¶ 13. Here, as in Chesney, there was some proof of venue elicited during trial. Regardless, the instructions did not apprise the jury that it had to find beyond a reasonable doubt that the crime occurred in Oktibbeha County. As the supreme court has stated, “such an obvious omission is fatal and requires reversal.” Rogers, 95 So.3d at 632 (¶ 30).

¶ 14. This is not a case where a defendant is attempting to create reversible error by purposefully failing to object to insufficient jury instructions. Rather, Wordlaw attempted twice to have the jury instructed as to venue, only to be overruled on both occasions.

¶ 15. The dissent cites to Rooks v. State, 529 So.2d 546 (Miss. 1988), for support. In Rooks, the supreme court determined that since the defendants did not present evidence that venue was improper, then the omission of venue from the jury instruction was not reversible error. Id. at 556. It is true that Rooks has not been overruled; however, no case has cited Rooks for this particular holding. And caselaw is clear that venue is considered an essential element.

¶ 16. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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

CARLTON, J.,

DISSENTING:

¶ 17. I respectfully dissent from the majority’s opinion, and I would find any error to be harmless consistent with the holdings in Jones v. State, 164 So.3d 1009, 1014 (¶ 12) (Miss. Ct. App. 2013), and Rooks v. State, 529 So.2d 546, 556 (Miss. 1988).

¶ 18. In Jones, this Court found no prejudice or plain error where the trial court gave a jury instruction for sexual battery of a child under the age of fourteen years that failed to include that the defendant was twenty-four or more months older than the child. Jones, 164 So.3d at 1014 (¶ 13). In so finding, this Court explained that the jury was presented with documentary evidence and corroborating testimony regarding the age of the defendant and the age of the victim. Id. at 1013 (¶ 10). The Jones court also found “that the jury was properly instructed as to the State’s burden of proving that [the defendant] committed sexual battery under [Mississippi Code Annotated] section 97-3-95(1)(d) [(Rev. 2006)].” Id. at 1014 (¶ 13). This Court held that “defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole, fairly— although not perfectly—announce the applicable primary rules of law.” Id. (citing Boyd v. State, 47 So.3d 121, 124 (¶ 11) (Miss. 2010)). The Jones court also distinguished the facts before it from those in Rogers v. State, 95 So.3d 623, 632 (¶ 30) (Miss. 2012), and Berry v. State, 728 So.2d 568, 571 (¶ 6) (Miss. 1999), wherein the Mississippi Supreme Court found reversible error occurred where insufficient evidence was presented at trial and thus failed to cure defective jury instructions. Jones, 164 So.3d at 1014 (¶ 12).

¶ 19. In Rooks, the defendants argued that the jury instructions setting out the elements of the offense of possession of marijuana were erroneous and “require[d] reversal because they did not state that the offense occurred in Leflore County.” Rooks, 529 So.2d at 556. However, the supreme court noted that the State presented ample proof of venue, and the Court held that the defendants “were not entitled to a venue instruction unless and until they presented some evidence that venue was not properly in Leflore County.” Id. Because the only evidence presented was that the marijuana at issue was possessed and discovered in Greenwood in Leflore County, the Court held that the omission of venue from the jury instruction was not reversible error. Id. The supreme court has never overruled Rooks.

¶20. Rooks and the present case are readily distinguishable from Rogers, a Scott County case in which the eleven-year-old victim of a sex crime became confused and testified-that the abuse occurred in Lena “in Scott County,” which was a problem given that Lena is, of course, in Leake County. See Rogers, 95 So.3d at 630-32- (¶¶ 23-30). Under those circumstances, the supreme court held that failure to -instruct the jury on venue was reversible error. However, the present case is controlled by the supreme court’s holding in Rooks, not Rogers. As in Rooks, the only evidence in this case was that the crime occurred in Starkville in Oktibbeha County. In finding Wordlaw guilty of possession of cocaine, the jury necessarily found that he possessed the cocaine in Oktibbeha County. Under Rooks, the omission of venue from the jury instructions was not reversible error.

¶21. In the case before us, Wordlaw argues that the trial court failed to include the county-,and state in the jury instructions, constituting reversible error. However, the record in the case before us reflects that the proof was undisputed as to venue. ■The record reflects undisputed proof that the offense occurred in the City of Stark-ville and Oktibbeha County in Mississippi. Starkville police officer Jeremy Akins testified before the jury that he saw the black Toyota Tacoma speeding in Starkville, Mississippi, and then initiated -a traffic stop. Officer Akins testified that he recognized-the driver as Wordlaw. Officer Akins also stated that Wordlaw thereafter con-sénted 'to a search of the truck. Hence, the proof presented at trial cured any defect in the instruction.

¶ 22. Based upon the foregoing, I dissent and would affirm the judgment and conviction of the trial court.

IRVING AND GRIFFIS, P.JJ., AND WILSON, J., JOIN THIS OPINION.

      . The Mississippi Supreme Court granted a writ of certiorari in this case on February 20, 2014. Jones v. State, 132 So.3d 579 (Miss. 2014). However, the supreme court later entered an order denying certiorari after finding no need for further review of the issues and record. Jones v. State, 2012-CT-00374-SCT (Miss. Aug. 12, 2014) (order dismissing writ of certiorari).


author: FAIR, J.,

text:
    SHANNON ENGINEERING & CONSTRUCTION COMPANY and Associated General Contractors of Mississippi, Inc., Appellants v. Willie PERKINS, Appellee
    NO. 2016-WC-00842-COA
    Court of Appeals of Mississippi.
    05/16/2017
    ATTORNEYS FOR APPELLANTS: JEFFERSON PINCKNEY W. SKEL-TON, PAMELA S. RATLIFF, ANDY LOWRY
    ATTORNEYS FOR APPELLEE: DARRYL MOSES GIBBS, ROGEN K. CHHABRA, CAROLINE JANE SCOTT, AMANDA GRACE HILL
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Willie Perkins injured his- back sorting pipe-laying materials for Shannon Engineering and Construction Company. Perkins continued working for Shannon Engineering for almost two years after the injury, receiving the same compensation, until his employment ended for disputed reasons. After he reached maximum medical improvement, Perkins was restricted to medium-duty work.

¶2. The Mississippi Workers’ Compensation Commission awarded Perkins permanent partial disability benefits, but neither it nor the administrative judge recognized the presumption that “where an injured employee returns to work and receives the same or greater earnings as those prior to his injury, there is created a rebuttable presumption that he has suffered no loss in his wage-earning capacity.” Omnova Sols. Inc. v. Lipa, 44 So.3d 935, 941 (¶ 17) (Miss. 2010) (quoting Agee v. Bay Springs Forest Prods. Inc., 419 So.2d 188, 189 (Miss. 1982)). The presumption is rebuttable, but the Mississippi Supreme Court has recently made it clear that the Commission’s failure to recognize and directly address the presumption is reversible error. See Hudspeth Reg’l Ctr. v. Mitchell, 202 So.3d 609, 611 (¶ 8) (Miss. 2016).

¶ 3. Although this point was raised in the employer/carrier’s brief on appeal, Perkins does not acknowledge it or address it directly.

¶ 4. We reverse the Commission’s decision and remand the case for further proceedings consistent with this opinion.

¶ 5. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: BRYAN, Justice. SHAW, Justice

text:
    Ex parte WILCOX COUNTY BOARD OF EDUCATION and Lester Turk, in his official capacity as a member of the Wilcox County Board of Education. (In re: Eli Mack v. Wilcox County Board of Education and Lester Turk, in his official capacity as a member of the Wilcox County Board of Education).
    1150812.
    Supreme Court of Alabama.
    Sept. 2, 2016.

      Dana B. Hill of Hill, Hill, Carter, Franco, Cole & Black, P.C., Birmingham, for petitioners.
    Gwendolyn Thomas Kennedy, Montgomery, for respondent.
   BRYAN, Justice.

The Wilcox County Board of Education (“the Board”) and Lester Turk, in his official capacity as a member of the Board (hereinafter collectively referred to as “the defendants”), petition this Court for a writ of mandamus directing the Wilcox Circuit Court (“the trial court”) to vacate its March 21, 2016, order denying their motion to dismiss Eli Mack’s complaint and to enter an order granting that motion. For the reasons set forth below, we grant the petition and issue the writ.

Facts and Procedural History

On July 15, 2015, Mack, a resident of Wilcox County, filed a “complaint for declaratory judgment” against the Board and Turk in his official capacity as a member of the Board. That complaint set forth the following pertinent facts:

“4. An election was held in 2012, to fill a place in District 3 on the [Board]. Darryl Perryman, an incumbent, was the successful candidate in that election, in which he was opposed by two write[-]in candidates.[]
“5. An election contest was filed against Darryl Perryman after the general election, which resulted in his being removed from office .,. because he was not a resident within the jurisdictional boundaries for Wilcox County.[]
“7. However, even though there was no issue in the election contest concerning Darryl Perryman’s conduct or performance as a member of the [Board], the ... Board, entered an appearance in the election contest ,.. and paid the legal fees from the budget of the ... Board, to facilitate that appearance.
“9. On or about May 31, 2013, the State Board of Education [(‘the State Board’)] requested that the [Board], while ... Turk was serving as president, permit it to intervene in the election contest. The request failed because of a tied vote.
“11. After the failed vote, three members of the ... Board, without the approval of a majority of the members, asked the State Board ... to intervene in the election contest....
“12. The State Board ... intervened and filed a Writ of Mandamus with the Alabama Supreme Court....”

Given those facts, Mack alleged that an “actual and substantial controversy exists as to whether [the] [defendants had the authority to intervene in the election contest ... or to invite the intervention of the State Board ... where there are no facts that would justify such intervention, and no valid vote granting such action was taken.” Based on those allegations, Mack sought the following relief:

“a. Grant a declaratory judgment to [Mack] declaring that the [Board] did not have the authority to intervene in the election contest....
“b. Enjoin ... Turk (in his official capacity), his successors and subordinates, the [Board], and those acting in concert with them from participating in any legal action involving a member of the [Board], unless the action involves issues related to the exercise of his or her duties as a member of the [Board], or issues which would seriously affect the educational interest of the Wilcox County public school system; and
“c. Order the [defendants to return the funds expended for legal fees and costs expended as a result of the action taken by the [Board] without authority.”

On August 7, 2015, the defendants filed a motion to dismiss the action, asserting, among other arguments, that they are immune from suit under Article I, § 14, Alabama Constitution of 1901; Mack filed a response to the defendants’ motion to dismiss. On March 21, 2016, the trial court, noting that Mack’s complaint sought declaratory relief, entered an order denying the defendants’ motion to dismiss. The defendants petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying their motion to dismiss and to enter an order granting their motion.

Standard of Review

“ ‘ “A writ of mandamus is a “ ‘ “ ‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal ■ right in the petitioner to the order sought; 2) an imperative duty upon- the respondent to perform, accompanied by a refusal to do so; 3) "the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ”
‘Ex parte Wood, 852 So.2d 705, 708 (Ala.2002); A petition for a writ of mandamus is the proper vehicle by which to seek review of the denial of a motion to dismiss based, on the ground of State immunity:
““‘The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue , of immunity. Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002).”
‘Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala.2003).’

“Drummond Co. v. Ala. Dep’t. of Transp., 937 So.2d 56, 57 (Ala.2006).” Ex parte Jefferson Cty. Dep’t. of Human Res., 63 So.3d 621, 625 (Ala.2010).

Discussion

“In Alabama Department of Corrections v. Montgomery County Commission; 11 So.3d 189, 191-92 (Ala.2008), this Court stated:

“‘Section 14, Ala. Const.1901, provides: “[T]he State of Alabama shall never be made a defendant in any court of law or equity.” (Emphasis added.) “The wall of immunity erected by § 14 is. nearly impregnable.” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Indeed, as regards the State of Alabama and its agencies, the wall is absolutely., impregnable. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (“Section 14 affords absolute immunity to . both the State and State agencies.”); Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102 (Ala.2008) (same); Atkinson v. State, 986 So.2d 408, 410-11 (Ala.2007) (same); [Ex parte Alabama Department of Transportation (In re Good Hope Contracting Co. v. Alabama Department of Transportation), 978 So.2d 17 (Ala.2007) ] (same); Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268 (Ala.2000) (same); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992) (same). “Absolute immunity” means just that—the State and its agencies are not subject to suit under any theory- .....
“ ‘ “This immunity may not be waived.” Patterson, 835 So.2d at 142. Sovereign immunity is, therefore, not an affirmative defense, but a “jurisdictional bar.” Ex parte Alabama Dep’t of Transp., 985 So.2d 892, 894 (Ala. 2007). The jurisdictional bar of § 14 simply “precludes] a court from exercising subject-matter . jurisdiction” over the State or. a State agency. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003).’ ”

State Bd. of Educ. v. Mullins, 31 So.3d 91, 97 (Ala.2009).

It is well settled that certain actions are not barred by § 14, i.e., that there are “exceptions” to sovereign immunity, including a declaratory-judgment action “seeking construction of a statute and its application in a given situation.” Ex parte Moulton, 116 So.3d 1119, 1131 (Ala. 2013) (quoting other cases). However, it is equally well settled that those “exceptions” are applicable only to actions brought against State officials and not to actions brought against the State or its agencies. Ex parte Thomas, 110 So.3d 363, 369 (Ala. 2012). Thus, because the State’s county boards of education operate as agencies of the State, Ex parte Hale Cty. Bd. of Educ., 14 So.3d 844, 848 (Ala.2009), § 14 shields them with an “absolutely impregnable” immunity from suit. Mullins, supra. Accordingly, the trial court is without jurisdiction over the Board, and, as a result, the Board has a clear legal right to dismissal from the case.

Once the Board is dismissed, what remains of Mack’s complaint is his claim seeking injunctive relief against Turk and his claim against Turk seeking the recovery of funds expended by the Board in the election contest. Regarding his claim for injunctive relief, Mack seeks, as noted above, to enjoin Turk from “participating” in certain legal actions involving members of the Board, although he fails to define “participating.” It is well settled that the sixth “exception” to sovereign immunity provides that “actions for injunction brought against State officials in their representative capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law” are not barred by § 14. Moulton, 116 So.3d at 1141 (emphasis added) (restating the sixth exception to § 14 immunity). In this case, although Mack alleges that “three members of the [Board], without the approval of a majority of the members, ... requested the State Board ... to intervene in the election contest,” he does not indicate that Turk was one of those three members or that Turk otherwise “participated” in the election contest in any capacity. That is to say, Mack neither alleges that Turk acted in connection with the election contest nor challenges any other conduct, current or imminent, by Turk. Given that Mack’s complaint points to no conduct by Turk, it appears that Mack names Turk as a defendant based solely on Turk’s position as president of the Board.

Moreover, even if we construe Mack’s complaint as alleging that Turk was one of the three members of the Board who sought the State Board’s intervention, it is apparent from the arguments Mack makes in his response to the defendants’ motion to dismiss that such a request of the State Board was beyond Turk’s authority, according to Mack, only because the Board had already voted not to allow the State Board to intervene. In support of that argument, Mack cites § 16-8-4, Ala.Code 1975, which provides, in pertinent part: “No motion or resolution shall be declared adopted [by a county board of education] without the concurrence of the majority of the whole board.” As noted in that part of Mack’s complaint quoted supra, Mack contends that, before its intervention in the election case, the State Board had requested that the Board allow it to intervene and that a vote by the Board on that request failed to produce a majority. Because that vote failed to produce a majority, Mack argues, the three members of the Board who sought the State Board’s intervention without the approval of the majority of the Board violated § 16-8-4. Thus, the true conduct that Mack alleges was beyond Turk’s authority (assuming Turk’s involvement) was Turk’s acting without the majority of the Board’s approval, i.e., violating § 16-8-4.

However, Mack does not seek to enjoin Turk from violating § 16-8-4 or from otherwise acting on behalf of the Board without the approval of the majority of its members. Instead, he seeks to enjoin Turk from “participating” (whatever conduct that might entail) in certain legal actions involving members of the Board, despite the fact that he has not alleged that Turk’s involvement in such actions is in and of itself beyond Turk’s authority. Indeed, Mack points to no law—nor are we aware of one—that would prohibit an individual from asking an entity to file a motion to intervene in pending litigation. Thus, Mack seeks to enjoin conduct that he has not alleged is, standing alone, beyond Turk’s authority.

When a plaintiff seeks to enjoin conduct that he or she has not alleged is fraudulent, in bad faith, beyond a State official’s authority, or done in a mistaken interpretation of law, the plaintiff fails to invoke the sixth “exception” to sovereign immunity, and the defendant State official is entitled to the absolute immunity afforded by § 14. See Board of Sch. Comm’rs of Mobile Cty. v. Weaver, 99 So.3d 1210 (Ala. 2012) (holding that the defendant State official was entitled to absolute immunity from the plaintiffs’ claim for injunctive relief because the plaintiffs had not alleged that the defendant’s conduct was fraudulent, in bad faith, beyond his authority, or in a mistaken interpretation of law and, thus, had failed to invoke the sixth “exception” to § 14 immunity). Because Mack does not allege that Turk’s “participation” in future legal actions involving members of the Board is beyond Turk’s authority, his claim for injunctive relief fails to invoke the sixth “exception” to sovereign immunity. Accordingly, Turk is immune from Mack’s claim for injunctive relief, and he has a clear legal right to dismissal of the claim against him.

As to Mack’s claim seeking the return of “funds expended for legal fees and costs expended” in the election case, this Court has held that, although a taxpayer, in certain situations, may bring an action seeking to enjoin a proposed illegal expenditure of public funds by a State official, the taxpayer lacks standing to bring an action seeking to recover funds that have been wrongfully expended. See Beckerle v. Moore, 909 So.2d 185 (Ala. 2005). Because Mack seeks the recovery of an allegedly wrongful expenditure of public funds and not to enjoin a proposed expenditure, he lacks standing to bring that claim. ‘“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.’ ” Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 319 (Ala. 2011) (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999)). In the absence of subject-matter jurisdiction, a court can take no valid action-other than to dismiss the ease. Id. Accordingly, because Mack lacks standing to bring a .claim for the recovery of an expenditure of public funds, the trial court is-without subject-matter jurisdiction over that claim, and the defendants are entitled to a.dismissal of that claim.

Conclusion

Because the Board is absolutely immune from suit, the trial court is without subject-matter jurisdiction over it, and the Board is. entitled to dismissal from the case. In addition, Turk is also entitled to sovereign immunity—and thus dismissal for lack of subject-matter jurisdiction— because Mack’s claim for injunctive relief fails to invoke an “exception” to sovereign immunity. Because Mack lacks standing to bring a claim for the recovery of an expenditure of public funds, the trial court is without subject-matter jurisdiction over that claim as well. Accordingly, we grant the petition and issue the writ directing the trial court to enter an order granting the Board and Turk’s motion to dismiss.

. PETITION GRANTED; .WRIT ISSUED.

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

SHAW, J., concurs in part and concurs in-the result.

SHAW, Justice

(concurring in part and concurring in the result).

. I concur in the.main opinion except as to footnote 7, as to which I concur in the result. ■ When it comes to the application of the -doctrine of standing, I do not believe that there will always be a strict binary distinction between public-law cases, in which the doctrine, applies, and private- or personal-law cases, in which it generally does not. See Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 45 (Ala.2013) (noting, among other things, that there “ordinarily” is no question of standing where the plaintiff claims a. personal right to damages). Instead, in private-law cases generally, this Court has rejected the idea that a plaintiffs standing is implicated when he or she fails to support his or her case with supporting facts or legal theories. 159 So.3d at 46.

      . Turk is president of the Board.

      . It does not appear from the face of the complaint that Mack was a candidate in the 2012 election.

      . In a February 13, 2013, order, the trial court found that Perryman was ineligible to hold the District 3 seat of the Board and removed him from that office. In a May 7, 2013, order, the trial court appointed Jeffery Saulsberry temporarily to the District 3 seat pending further order of the trial court.

      . On April 24, 2015, this Court entered an order in response to the State Board’s petition for a writ of mandamus in which we held that the trial court had acted beyond its authority in the election contest by appointing Jeffery Saulsberry to the District 3 seat of the Board following Perryman’s removal from office. Accordingly, this Court ordered the trial court to vacate its May 7, 2013, order appointing Saulsberry to the District 3 seat and ordered the State Superintendent of Education to fill the vacancy left by Saulsberry’s removal. See supra note 3.

      . Mack does not allege that Turk individually filed a motion to intervene in the election case.

      . Intervention in litigation is governed by Rule 24, Ala. R. Civ. P., which provides that intervention, in some circumstances, is a matter of right, Rule 24(a), and, in other circumstances, is left to the discretion of the trial court. Rule 24(b).

      . In Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 44 (Ala.2013), we clarified that the concept of standing was developed " 'for public law’ cases, ... not 'private law’ cases,” and thus removed the gate-keeping function of standing from private-law cases. Stand-tag, however, remains a relevant concept in a public-law case, such as this one, where a citizen brings an action raising "constitutional or other challenges to the actions of officials or administrative agencies.” Id. See also Poiroux v. Rich, 150 So.3d 1027, 1039 (Ala. 2014) (noting that public law constitutes " '[t]he body of law dealing with the relations between private individuals and the government, and with the structure and operation of the government itself’ ” (quoting Black's Law Dictionary 1350-51 (9th ed.2009))).


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte Joshua KILGRO. (In re Joshua Kilgro v. State of Alabama).
    1150533.
    Supreme Court of Alabama.
    Sept. 2, 2016.
    Angela Cochran Morgan, Fort Payne, for petitioner.
    Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Jean A. Webb, asst. atty. gen., for respondent.
   BOLIN, Justice.

WRIT QUASHED. NO OPINION.

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

PARKER and MURDOCK, JJ., dissent.

MURDOCK, Justice

(dissenting).

Following the conviction of the defendant, Joshua Kilgro, in this criminal case the circuit court took up the issue of Kilg-ro’s sentence in two separate hearings, one held on August 4, 2014, and one held on February 19, 2015. Kilgro contends that an order entered on February 25, 2015, constituted the entry by the circuit court of his sentence and that, therefore, Kilg-ro’s appeal of his conviction and sentence following the entry of that order was timely. The Court of Criminal Appeals dismissed Kilgro’s appeal as untimely, however, based on its conclusion that the circuit court pronounced sentence at the August 4 hearing. Kilgro v. State (No. CR-14-1194, Dec. 11, 2015), — So.3d -(Ala.Crim. App.2015) (table).

The entry of a sentence in a criminal case does not occur unless and until the circuit court makes a decision on both the durational and the dispositional aspects of the sentence. I see no basis for concluding that the application of this fundamental requirement would vary depending on whether a defendant is sentenced within or outside a sentencing-guideline scheme. To the extent the Court of Criminal Appeals’ opinion in Hyde v. State, 185 So.3d 501 (Ala.Crim.App.2015), contains language suggesting otherwise, I believe- that suggestion to be inadvertent and, in any event, erroneous. I therefore disagree with the decision of the Court of Criminal Appeals to dismiss Kilgro’s appeal as untimely based, ultimately, on this problematic language in Hyde.

Even aside from, but especially in light of, the foregoing, and based on my review of the statements made by the circuit court at the August 4 hearing and in its February 25 order, I conclude that the circuit court did not intend to, and did not, sentence Kilgro until it entered the February 25 order. Accordingly, I respectfully dissent from the decision to quash the writ in this case.

PARKER, J., concurs.

      . Both the State and Kilgro agreed that the circuit court could enter a sentencing order after listening to a recording following the February 19 hearing.


author: THOMAS, Judge. MOORE, Judge,

text:
    Denise M. WILLIAMS v. John R. WILLIAMS.
    2130615.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2014.
    Rehearing Denied Jan. 9, 2015.

      Mark G. Montiel, Sr., and C. Jordan Speake of Mark G. Montiel, P.C., Montgomery, for appellant.
    G. Houston Howard II of Law Office of Keith A. Howard, LLC, Wetumpka, for appellee.
   THOMAS, Judge.

Denise M. Williams (“the wife”) and John R. Williams (“the husband”) were married on October 20, 2004. There are no children of the marriage. On October 2, 2013, the wife filed a complaint seeking a divorce from the husband, a division of the assets and debts of the marriage, an award of alimony, and an order declaring that the parties’ prenuptial agreement was void because, she asserted:

“This agreement was not fair, just, or equitable to the Wife. The Wife was pressured by the Husband to enter said agreement the night before the parties were married and without the opportunity to seek advice of independent legal counsel. Further, the agreement did not represent a full and fair disclosure of the Husband’s assets, nor was the Wife aware of the extent of the Husband’s assets when she entered the agreement.”

On December 2, 2013, the wife filed a set of interrogatories, requests for production, and a “renewed” motion for a penden-te lite hearing. On December 11, 2013, the circuit court entered an order indicating that the parties had settled the pen-dente lite issues and that the wife’s motion seeking a pendente lite hearing was moot. On January 20, 2014, the wife filed a second renewed motion for a pendente lite hearing, asserting that, although the parties had requested that the circuit court not conduct a pendente lite hearing, the wife needed “intervention of the court to obtain pendente lite relief.”

On January 21, 2014, the husband responded to the wife’s second renewed motion for a pendente lite hearing, asserting that the parties had entered into a “valid Prenuptial Agreement on October 19, 2004,” wherein the wife had “waiv[ed] all of her claims to property settlements, alimony, and support” and that the wife did not need temporary support. That same day, the husband filed a Rule 56(b), Ala. R. Civ.App., motion seeking the entry of a partial summary judgment in his favor.

The narrative summary of undisputed facts in the husband’s partial-summary-judgment motion included general assertions that the wife had filed a complaint seeking a divorce, a division of the assets and debts of the marriage, and an award providing for medical insurance and alimony. The husband argued that, upon entry of a judgment divorcing the parties, there would be “no outstanding issues” for the circuit court to decide because, he asserted, the wife had waived any right to a property settlement or to “alimony, maintenance, or support” by entering into the prenuptial agreement. The husband appended a copy of the prenuptial agreement that was executed on October 19, 2004, and its exhibit A, which was a copy of the husband’s disclosure of his financial assets. That same day, January 21, 2014, the circuit court set a hearing for February 18, 2014.

On February 11, 2014, the wife filed a Rule 56(c)(1) statement in opposition to the husband’s motion seeking the entry of a partial summary judgment. See Rule 56(c)(2)(“any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing”). She appended her affidavit, in which she asserted that the circumstances surrounding her execution of the prenuptial agreement were in dispute, to her statement in opposition. Specifically, the wife contended that a genuine issue of material fact existed regarding the validity of the prenuptial agreement because, according to the wife, the husband had presented the prenuptial agreement at 6:30 p.m. on October 19, 2004, and the marriage ceremony had been scheduled for 10:00 a.m. on October 20, 2004. She asserted that the husband had waited until the “eleventh hour,” had not provided her a copy of the prenuptial agreement to keep, had not allowed her to “fully read and understand” it, and had intentionally created circumstances that had not allowed her to consult an attorney. Also on February 11, 2014, the wife filed a motion to compel discovery, asserting that the husband had refused to respond to her December 2, 2013, interrogatories and requests for production and that he had “ignored” her “multiple attempts” to obtain discovery before the hearing, which was scheduled for February 18, 2014. The circuit court failed to enter an order on the wife’s motion to compel discovery.

Four days before the hearing, on February 14, 2014, the husband filed a “response” to the wife’s statement in opposition to his motion for a partial summary judgment, a copy of a quitclaim deed, and an unverified affidavit of Burt W. New-some, the husband’s attorney, who had drafted the prenuptial agreement; on the day of the hearing, the husband filed a copy of Newsome’s verified affidavit. As the wife points out in her brief on appeal, the Alabama Rules of Civil Procedure do not contemplate a summary-judgment movant’s filing of a “response” to materials filed in opposition to the summary-judgment motion, and, subject to an exception not relevant in this case, Rule 56(c)(2) requires that all materials in support of a motion for a summary judgment be “served at least ten (10) days before the time fixed for the hearing.”

The circuit court held a “summary judgment/pendente lite” hearing on February 18, 2014, and, on March 27, 2014, it entered an order granting the husband’s motion for a partial summary judgment. The circuit court considered the contents of the husband’s motion, the prenuptial agreement, the wife’s statement in opposition, the wife’s affidavit, the husband’s “response,” the husband’s affidavit, and New-some’s affidavit. The circuit court twice concluded that the disputed validity of the prenuptial agreement based upon the timing of the husband’s presentation of the prenuptial agreement to the wife was not “material or critical to the ruling” or was “not material to the outcome of the case.” The circuit court found that, although there was a dispute as to when the wife received the prenuptial agreement, there was no dispute that the wife “[k]new for a month before the wedding” that the husband would be “getting or requiring” a prenuptial agreement. That information was gleaned from the wife’s affidavit; however, in context, the wife actually stated:

“A month prior to signing the agreement, [the husband] told me that his sister suggested that he have a prenuptial agreement executed before he got married. However, he never again mentioned the document to me and never presented any document to me to review prior to the night before our wedding. I believed he had decided that we didn’t even need a prenuptial agreement because so much time had passed since we talked about it, and he never told me that I had to sign a prenuptial agreement in order to marry him. He also knew that I had premarital property of value, but instead of asking me for my disclosures, I now know that he simply stated in the agreement that I had nothing of value. I believe he didn’t ask me for these disclosures because he didn’t want me to know that he was going to give me a prenuptial agreement to sign, and he didn’t want me to have the time to consult with an attorney of my own prior to signing it.”

The circuit court concluded that “the law of this State mandates that a [partial] summary judgment be entered in favor of the Husband.”

The circuit court certified the March 27, 2014, partial-summary-judgment order as a final judgment pursuant to Rule 54(b), Ala. R. Civ.P. On April 22, 2014, the wife filed a motion to alter, amend, or vacate the order, in which she alleged that the circuit court had erred by entering a partial summary judgment because, she asserted, the circuit court had considered improperly submitted evidence, the husband had failed to comply with her discovery requests, the circumstances surrounding the husband’s presentation of the prenuptial agreement were “underhanded and coercive,” and “certain disputed facts” were material. • That same day, the wife filed another motion seeking an order to compel discovery.

The wife filed a notice of appeal as to the March 27, 2014, partial-summary-judgment order in this court on April 24, 2014; the appeal was held in abeyance pending a ruling on the wife’s postjudgment motion. See Rule 4(a)(5), Ala. R.App. P. The wife’s postjudgment motion was denied by operation of law on July 21, 2014. See Rule 59.1, Ala. R. Civ. P.

On appeal, the wife argues.that the .circuit court erred by entering a partial summary judgment in favor of the husband because, she asserts, it • considered evidence not properly beforé it, it deprived the wife of the opportunity to discover evidence to oppose the husband’s motion for a partial summary judgment, it wrongly determined that the dispute regarding the timing of the execution of the prenuptial agreement was not a genuine issue of material fact, it improperly concluded that the prenuptial agreement was valid, and it misinterpreted the prenuptial agreement.

As an initial matter, we must determine whether the circuit court exceeded its discretion by certifying the March 27, 2014, order as a final judgment pursuant to Rule 54(b). Rule 54(b) provides, in its entirety:,

“(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Except where judgment is entered as to defendants who have been served pursuant to Rule 4(f), [Ala. R. Civ. P.,] in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

Upon our request, the parties submitted letter briefs on the issue whether the circuit court had exceeded its discretion by certifying the March 27, 2014, order as a final judgment, and the parties agree that the order was appropriate for certification under Rule 54(b) and that we should consider the merits of the wife’s appeal. However, this court and our supreme court have not hesitated to set aside a Rule 54(b) certification if it appeared that a trial court had erred by entering the certification. See, e.g., Hillman v. Yarbrough, 936 So.2d 1056, 1061 (Ala.2006); Clarke-Mobile Cntys. Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala.2002); Branch v. South-Trust Bank of Dothan, 514 So.2d 1373 (Ala.1987); Winecoff v. Compass Bank, 854 So.2d 611 (Ala.Civ.App.2003); and H.P.H. Props., Inc. v. Cahaba Lumber & Millwork, Inc., 811 So.2d 554 (Ala.Civ.App.2001).

We are aware that this court has, at least twice, considered appeals from partial summary judgments certified under Rule 54(b) involving prenuptial agreements. See Robinson v. Robinson, 64 So.3d 1067 (Ala.Civ.App.2010); and Williams v. Williams, 617 So.2d 1029 (Ala.Civ.App.1992). Furthermore, in Ex parte Williams, 617 So.2d 1032 (Ala.1992), our supreme court reversed this court’s judgment in Williams v. Williams on the merits, noting that a Rule 54(b) certification had been entered as to the partial summary judgment on the validity of the parties’ prenuptial agreement. In those opinions neither this court nor our supreme court addressed the propriety of the Rule 54(b) certifications.

With regard to the first requirement of a proper Rule 54(b) certification, our supreme court has stated:

“Pursuant to Rule 54(b), a trial court may direct ‘the entry of a final judgment as to one or more but fewer than all of the claims or parties.’ But Rule 54(b) makes an order final—and therefore ap-pealable—‘only where the trial court has completely disposed of one of a number of claims, or one of multiple parties.’ Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (quoting Committee Comments on the 1973 adoption of Rule 54(b)) (emphasis added in Tanner ). In other words, for a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.”

Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999).

In this case, the wife filed a petition seeking a divorce from the husband and a determination that the prenuptial agreement was invalid; the husband responded, seeking a divorce from the wife and a determination that the prenuptial agreement was valid. The circuit court’s March 27, 2014, partial summary judgment did not divorce the parties, but it determined that the prenuptial agreement was valid.

“ ‘[Rule 54(b) ] and its comments clearly provide that under the appropriate facts partial summary judgment on fewer than all claims involved can be appropriate. See Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). The fact that the claims may have arisen out of the same set of facts does not prevent them from being multiple claims. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975).’ ”

Clarke-Mobile Cntys. Gas Dist., 834 So.2d at 94 (quoting Pate v. Merchants Nat’l Bank of Mobile, 409 So.2d 797, 799 (Ala.1982)(emphasis added)).

“Respected commentators have observed: ‘The line between deciding one of several claims and deciding only part of a single claim is sometimes very obscure.’ ” Tolson v. United States, 732 F.2d 998 (D.C.Cir.1984) (quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2657, at 60-61 (2d ed.1983)) (construing Rule 54(b), Fed.R.Civ.P., on which Rule 54(b), Ala. R. Civ. P., is patterned) See also Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 & n. 9, 76 S.Ct. 895, 100 L.Ed. 1297 (1956) (explaining that there is “room for argument” on the issue whether the decided claims were independent from pending claims); Cold Metal Process Co. v. United Eng’g & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956) (explaining that a judgment on a plaintiffs claim certified under Rule 54(b), Fed.R.Civ.P., was appealable even though a counterclaim, which arose in part out of the same transaction as plaintiffs claim, remained pending); Corporon v. Safeway Stores, Inc., 708 P.2d 1385 (Colo.App.1985)(explaining that, despite the existence of United States Supreme Court cases on the issue, courts of appeal have “no definitive test for determining ... when the complaint, though purporting to present multiple claims, in fact presents only one claim for relief’).

This court is of the opinion that, by seeking a divorce and asking for an order declaring the prenuptial agreement invalid, the wife presented more than one claim for relief. The fact that the wife’s request for a declaratory ruling regarding the prenuptial agreement arose from her complaint for a divorce does not mean that her claims are not multiple claims. See Clark-Mobile Cntys. Gas Dist., 834 So.2d at 94-95.

Regarding the other requirements of; a proper Rule 54(b) certification, we easily conclude that the entirety of the wife’s .claim regarding the validity of the prenuptial agreement was decided with finality. However, a Rule 54(b) certification should not be entered if a claim that is resolved in the order being certified as final and " one or more claims that will remain pending in the trial court are so 'closely intertwined that separate adjudications would pose an unreasonable risk of inconsistent results. Schlarb v, Lee, 955 So.2d 418, 419-20 (Ala.2006). In this case, .the claim'resolved in the partial-summary-judgment order certified as final was the claim regarding the validity of the prenuptial agreement; the pending claim for relief is .the claim for a divorce. We conclude that the two claims are not so. closely intertvidned’ that separate adjudications would pose an unreasonable risk of inconsistent results. Regardless we decline to ex mero motu dismiss the appeal as being from a nonfinal judgment. Consequently, we will address of the merits of the wife’s appeal of the circuit court’s partial summary' judgment in favor of the husband.

The standard by which we review a summary judgment is well settled:

“ ,‘We review [a summary judgment] de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary-judgment motion:
“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can, reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the [finder of fact] would have been free to draw.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000)).”

Saad v. Saad, 31 So.3d 706, 712 (Ala.Civ.App.2009).

The wife argues that the husband failed to present evidence demonstrating that there was no genuine issue regarding a material fact and that, viewing the facts in the light most favorable to her, this court should reverse the circuit court’s partial summary judgment establishing the validity of the prenuptial agreement. In order to examine the propriety of the judgment, we must determine at the outset which materials contained in the record were properly submitted for the circuit court’s consideration. Specifically, we must determine whether the circuit court properly considered the husband’s “response,” New-some’s unverified affidavit, and the quitclaim deed that the husband filed four days before the hearing.

Rule 56(c)(2) provides that all materials in support of a motion for a summary judgment must be served with the motion; however, “tardy affidavits” are permissible under Rule 6(b)(2), Ala. R. Civ. P., but only if submitted in compliance .with that rule. Cabaniss v. Wilson, 501 So.2d 1177, 1182 (Ala.1986). Rule 6(b) provides, in pertinent part:

“When by these rules ... an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order,- or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect....”

In this case, there is no dispute that the husband failed to request an enlargement of time under Rule 6(b)(1) and that he failed to file a Rule 6(b)(2) motion seeking to file the “response,” the unverified affidavit, and the quitclaim deed. According to the wife, the “response,” along with the unverified affidavit and the quitclaim deed, were not properly filed in support of the husband’s motion for a partial summary judgment; accordingly, she says, the circuit court erred by relying on those documents. The husband contends that the wife waived this argument by failing to file a motion to strike his “response,” that the circuit court did not abuse its discretion in considering the documents, and that the timing of his “response” did not deny the wife an opportunity to file “additional material.”

We agree with the husband. In Ex parte Secretary of Veterans Affairs, 92 So.3d 771, 776-77 (Ala.2012), our supreme court explained:

“Cases decided after Perry[ v. Mobile County, 533 So.2d 602 (Ala.1988),] have not always been clear in holding that a party challenging the admissibility of an affidavit must object to the affidavit and move to strike it. See Ex parte Diversey Corp., 742 So.2d 1250, 1263-54 (Ala. 1999) (holding that ‘the court can consider inadmissible evidence if the party against whom it is offered does not object to the evidence by moving to strike it’); Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 4 (Ala.2007) (‘[I]f an affidavit or the documents attached to an affidavit fail to comply with [Rule 56(e), Ala. R. Civ. P.,] the opposing party must object to the admissibility of the affidavit or the document and move to strike.’); Ware v. Deutsche Bank Nat'l Trust Co., 75 So.3d 1163 (Ala.2011) (party challenging admissibility of affidavit and supporting documents pursuant to Rulé 56(e) must object thereto and move to strike); but see Blackmon v. Brazil, 895 So.2d 900, 903 n. 2 (Ala.2004) (‘Although the plaintiffs argue on appeal that these two affidavits and the listing contract were inadmissible, 'the plaintiffs did not raise such objéctions in the trial court. Therefore, the plaintiffs waived their objections to this evidence.’); Ex parte Unitrin, Inc., 920 So.2d 557, 560 (Ala.2005) (‘Unitrin did not object to the admissibility of any of the materials attached to Ware’s memorandum. Consequently, these materials are properly before us.’). We take this opportunity to reaffirm the holding in Perry that a party must move the trial court to strike any evidence that violates Rule 56(e), Ala. R. Civ. P.3 An objection to the inadmissible evidence alone is not sufficient. The motion to strike brings the objection to the trial court’s attention and requires action on the. part of the trial court to properly preserve the ruling on appeal.
“ Generally, a written motion to strike would be required. However, if a hearing on the summary-judgment motion were transcribed or if the trial court’s order reflected that an oral motion to strike was made, then an oral motion would be sufficient.”

In this case, the wife concedes that she failed to file a motion to strike the husband’s “response” and the attachments thereto. Accordingly, this court will consider the information contained in those documents in reviewing the propriety of the circuit court’s partial summary judgment.

Prenuptial and postnuptial agreements are scrutinized by the same standard. Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala.1991). In Allison v. Stevens, 269 Ala. 288, 112 So.2d 451 (1959), our supreme court stated that the proponent of a prenuptial agreement has

“the burden of showing that the consideration was adequate and that the entire transaction was fair, just and equitable from the [other party’s] point of view or that the agreement was freely and voluntarily entered into by the [other party] with competent independent advice and full knowledge of [the other party’s] interest in the estate and its approximate value.”

269 Ala. at 291, 112 So.2d at 452 (emphasis added). We have often repeated the same standards regarding a proponent’s evidentiary burden. See, e.g., Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980); and Robinson v. Robinson, 64 So.3d 1067, 1075-76 (Ala.Civ.App.2010). In Walters v. Walters, 580 So.2d 1350, 1351 (Ala.Civ.App.1990), we reiterated that the Allison/Bamhill standards are “phrased in terms of an ‘either-or’ requirement”; however, although the two standards are separate and distinct, evidence regarding elements of the second Allison/Bamhill standard may serve as evidence indicating that the prenuptial agreement is or is not fair—i.e., that the first standard has been met. See Ex parte Brown, 26 So.3d 1222, 1226 (Ala.2009).

In this case, the validity of the prenuptial agreement, specifically the timing of the husband’s presentation of the prenuptial agreement to the wife, was a genuine issue of material fact upon which the circuit court received disputed evidence. There is no dispute that the prenuptial agreement was executed on October 19, 2004, and, according to the husband and the wife, the husband presented the prenuptial agreement to the wife for the first time on the eve of the marriage. However, according to Newsome’s affidavit testimony, Newsome “sent” the prenuptial agreement to both parties “three weeks prior to them wedding.” He testified: “Right before sending the agreement, [Newsome] called [the wife].” Newsome said that he talked to the wife about the prenuptial agreement and that the wife did not subsequently telephone him with any proposed changes to the prenuptial agreement.

Therefore, under either Allison/Bamhill standard, the validity of the prenuptial agreement—a genuine issue of material fact—was disputed. Under the first standard, the circuit court had before it disputed evidence regarding whether the entire transaction was fair, just, and equitable from the wife’s point of view, and, under the second standard, the circuit court had before it disputed evidence regarding whether the agreement was freely and voluntarily entered into by the wife and whether she had the opportunity to seek independent legal advice. The wife says that the timing of the presentation of the prenuptial agreement made the entire transaction unfair and did not allow her time to consult an attorney; however, Newsome’s affidavit testimony belies her assertions.

Although we express no opinion on the validity of the prenuptial agreement, we conclude that a genuine issue of material fact exists; therefore, the circuit court’s partial summary judgment was erroneous. Accordingly, the judgment is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

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

MOORE, J., dissents, with writing, which DONALDSON, J., joins.

MOORE, Judge,

dissenting.

I agree that, if this court could consider the merits, the partial summary judgment should be reversed. In his motion for a partial summary judgment, John R. Williams (“the husband”) appended an antenuptial agreement executed by him and Denise M. Williams (“the wife”) on October 19, 2004, and argued that it precluded the wife’s claims for alimony and a property division. In her response, the wife argued, based on facts asserted in her affidavit, that the antenuptial agreement was invalid under the analysis employed in Allison v. Stevens, 269 Ala. 288, 291, 112 So.2d 451, 452 (1959), as reiterated in Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980). In reply, the husband argued, primarily, that the Elmore Circuit Court (“the trial court”) should not consider the wife’s affidavit to the extent that it contradicted the terms of the antenuptial agreement, the contents of which completely satisfied the Allison/Bamhill test. However, the husband did not move to strike the wife’s affidavit, thus waiving any objection to its admissibility. See Ex parte Secretary of Veterans Affairs, 92 So.3d 771, 776-77 (Ala.2012). Hence, the trial court could consider the wife’s affidavit testimony despite the parol evidence rule, which generally precludes a party from contradicting his or her own written contractual agreement. Cf. R.B.S. v. K.M.S., 58 So.3d 795, 803-10 (Ala.Civ.App.2010) (arguing that parol evidence rule should be interpreted as preventing consideration of oral testimony contradicting written agreement even if party fails to object to testimony). The affidavit testimony of the wife tends to prove that “the entire transaction was [not] fair, just and equitable from the [wife’s] point of view” and “that the agreement was [not] freely and voluntarily entered into by the wife with competent independent advice and full knowledge of her interest in the estate and its approximate value.” Allison 269 Ala. at 291, 112 So.2d at 453; Barnhill, 386 So.2d at 751.

That being said, however, I do not believe that this court can consider the appeal. I agree with the main opinion that the trial court completely disposed of a separate claim when it entered the partial summary judgment, see Pearson v. Darrington, 32 Ala. 227 (1858) (treating a claim for divorce as separate from a claim for a “marriage settlement”), but I nevertheless find that the trial court exceeded its discretion in certifying the judgment as final under Rule 54(b), Ala. R. Civ. P.

Rule 54(b) provides that a court may certify a judgment as final only upon “an express determination that there is no just reason for delay.” Rule 54(b) commits that determination to the sound discretion of the trial judge, see 2 Champ Lyons & Ally Windsor Howell, Alabama Rules of Civil Procedure Annotated § 54.3 (4th ed.2014), because, among other things, he or she is most familiar with “the likely rate of progress of the portions of the case that remain.” 15A Charles Alan Wright et al., Federal Practice and Procedure § 3914.7 (2d ed.1992). Thus, in reviewing a Rule 54(b) certification for an abuse of discretion, see generally Scrushy v. Tucker, 955 So.2d 988, 996 (Ala.2006), this court may evaluate whether the trial court properly-determined that the remaining claims would be pending for a significant period so as to warrant immediate appellate review of the adjudicated claims, which immediate review, this court and our supreme court have repeatedly emphasized, should be reserved only for those exceptional circumstances in which normal appellate review would lead to harsh effects. See, e.g., Fuller v. Birmingham-Jefferson Cnty, Transit Auth., 147 So.3d 907 (Ala. 2013); and Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996), overruled on other grounds, Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 763 (Ala.2000).

In this case, upon entry of the partial summary judgment, the trial court only had to adjudicate the remaining claim for divorce, which was based on incompatibility of temperament and an irretrievable breakdown in the marriage. See Ala.Code 1975, § 30-2-l(a)(7) & (9). In its partial summary judgment, the trial court, immediately after certifying the judgment as final, stated: “Upon the filing by the Husband of an Affidavit showing the grounds for the divorce, this Court will enter its standard divorce decree.” The husband filed the aforementioned affidavit on the same day the trial court entered its partial summary judgment, about four hours later. Hence, the record shows that the only outstanding claim could have been adjudicated almost simultaneously with the partial summary judgment so as to allow the entry of a final judgment without the need for a Rule 54(b) certification, as the main opinion acknowledges. 218 So.3d at 787 n. 3.

Because the only remaining claim could have been adjudicated forthwith, neither party would have been subjected to any harsh effect by awaiting a final judgment in this case. The trial court thus exceeded its discretion in determining that there was “no just reason for delay” and in certifying the partial summary judgment as final for the purposes of appellate review under Rule 54(b). Accordingly, this court should dismiss the appeal as arising from a nonfinal judgment, which has been improperly certified. See Pavilion Dev., L.L.C. v. JBJ P’ship, 142 So.3d 535 (Ala. 2013).

DONALDSON, J., concurs.

      . The record contains a motion filed by the wife seeking pendente lite relief dated September 24, 2013, which is before the date on which she filed the complaint seeking a dí-vorce. That motion does not appear on the State Judicial Information System case-action-summary sheet.

      . We note that the pendency of discovery does not alone bar the entry of a summary judgment; however, it would have been error for the circuit court to enter a summary judgment before the discovery had been completed if the wife had demonstrated that the outstanding discovery was crucial to her case. The wife did not do so. "To show that the discovery sought is crucial to his [or her] case, the nonmoving party should comply with Rule 56(f), [Ala. R. Civ. P.].” McGhee v. Martin, 892 So.2d 398, 401 (Ala.Civ.App. 2004). Our supreme court has stated that "[a] party seeking the shelter of Rule 56(f) must offer an affidavit explaining to the court why he [or she] is unable to make the substantive response required by Rule 56(e),” Hope v. Brannon, 557 So.2d 1208, 1213 (Ala. 1989); see also Hilgers v. Jefferson Cnty., 133 So.3d 409, 416-17 (Ala.Civ.App.2013). Because of our resolution of the wife's other issues on appeal, we decline further discussion of this issue.

      . It is unclear why the circuit court elected to certify the March 27, 2014, partial-summary-judgment order as final under Rule 54(b) rather than simply entering a divorce judgment, especially in light of its finding the prenuptial agreement to be valid. Furthermore,
      “ ‘ “[i]t bears repeating, here, that ‘ “certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely." ’ State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). ' " Appellate review in a piecemeal fashion is not favored.' " ’ Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003) (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis added).”
      " ‘Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).' "

        Meeks v. Morrow, 151 So.3d 1069, 1074 (Ala. 2014) (quoting Schlarb v. Lee, 955 So.2d 418, 419 (Ala.2006).

      . Newsome’s verified affidavit was filed on the day of the hearing.


author: MURDOCK, Justice. MURDOCK, Justice

text:
    Ex parte John R. WILLIAMS. (In re Denise M. Williams v. John R. Williams).
    1140374.
    Supreme Court of Alabama.
    Aug. 19, 2016.
    G. Houston Howard II of Law Office of Keith A. Howard, LLC, Wetumpka, for petitioner.
   MURDOCK, Justice.

WRIT DENIED. NO OPINION.

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

BOLIN and MURDOCK, JJ., concur specially.

MURDOCK, Justice

(concurring specially).

I concur in the denial of certiorari review, I write specially to address concerns regarding the application of Rule 54(b), Ala. R. Civ. P., in this case.

This is a divorce case in which the wife filed a complaint seeking (1) a divorce, (2) a judgment declaring a prenuptial agreement invalid, (3) a division of property, (4) alimony, and (5) an order that the husband provide the wife with medical insurance. The parties had been married almost nine years at the time the wife filed her complaint; there are no children of the marriage.

The husband filed a motion for a partial summary judgment requesting a judgment declaring that the prenuptial agreement, which provided that neither party would be entitled to alimony or to any portion of the other party’s separate estate in the event of a divorce, was valid. The trial court granted the husband’s motion and certified the partial summary judgment as final under . Rule 54(b). The wife appealed. The Court of Civil Appeals reversed and remanded. See Williams v. Williams, 218 So.3d 781 (Ala.Civ.App.2014) , (plurality opinion). The plurality opinion determined that the Rule 54(b) certification was appropriate, but reversed the trial court’s judgment because there was a genuine issue of material fact as to the validity -of the prenuptial agreement. Presiding Judge Thompson concurred in the result without writing. Judge Moore, joined by Judge Donaldson, dissented with respect to the appropriateness of the Rule 54(b) certification. Judge Moore’s dissent was based solely on a conclusion that there was no reason for immediate appellate review of the partial summary judgment because the remaining issue, the granting of the divorce, could probably be decided in a short time. See Williams, 218 So.3d at 791-92 (Moore, J., dissenting).

There is merit, so far as it goes, in Judge Moore’s position that the Rule 54(b) certification was inappropriate in this case because the trial court could have adjudicated the remaining issue—the existence of grounds for divorce—without’ significant delay. Williams, 218 So.3d at 792 (Moore, J., dissenting).' “[T]he adjudication of divorce cases in piecemeal fashion” is disfavored, see Cochran v. Chapman, 21 So.3d 1244, 1246 (Ala.Civ.App.2008), and “[c]erti-fications under Rule 54(b)' should be'entered only in exceptional cases and should not be entered routinely.” Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994).,This case does not meet this, “exceptional cáse” standard so as to warrant piecemeal appellate review.

I have, however, more fundamental concerns with'-the Rule 54(b) certification in this case: (1) whether the validity of the prenuptial agreement is actually' a separate “claim,” rather than a constituent part of the claim for a divorce, (2) whether the prenuptial-agreement issue was completely adjudicated, and (3) whether the prenuptial-agreement issue, is intertwined with the granting of the divorce and’with the claims seeking property division and alimony.

Subject to a few exceptions not relevant here, an appeal lies only from a final judgment that completely adjudicates all matters in controversy before the court and that is conclusive and certain in itself. Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976). See also Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990) (noting that a final judgment is “one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved”).

Rule 54(b) provides an exception to this general rule. It allows for the entry of a final, appealable judgment as to one or more of, but fewer than all, the claims in an action, but only under certain conditions. This writing will address three of the conditions for Rule 54(b) certification.

Rule 5Jp(b)- Certification is Appropriate Only if the Judgment Resolves an Entire Claim

Rule 54(b) certification does not authorize the entry of a final judgment on part of a single claim. Stephens v. Fines Recycling, Inc., 84 So.3d 867, 877 (Ala.2011). In a two-party suit, Rule 54(b) certification is appropriate only if the action presents multiple separate claims, as opposed to a single claim with multiple elements for recovery. See generally Ex parte National Ins. Underwriters, 366 So.2d 687, 689-90 (Ala.1978) (noting that a “ ‘claim’ refers to a set of facts giving rise to legal rights in the claimant”). As the Court of Civil Appeals explained in J.S. v. S.W., 702 So.2d 169, 171 (Ala.Civ.App.1997), a “claim” for child support was not a separate claim that could have been enforced apart from the claim seeking custody of the child.

The wife’s prenuptial-agreement “claim” is not in fact a separate claim at all. First, portions of the prenuptial agreement offer a defense to a claim for alimony and property division, rather than a true claim. See Ex parte National Ins. Underwriters, 366 So.2d at 690 (stating that the insurer’s “claims were, in actuality, defenses to [the insured’s] claim under the policy”). Clearly, an order validating or invalidating the prenuptial agreement is not one that has any field of operation apart fi*om a judgment granting a divorce. Even if, as may have been true in this case, the trial court were to go further and enter a purportedly final judgment actually denying any and all claims to alimony or for property division, that order also would have no field of operation apart from a judgment granting a divorce.

The wife’s “claims” relating to the prenuptial agreement were not claims separate from her claim for a divorce. Such claims, as well as any more general judgment by the trial court regarding alimony or property, derive from the termination of the marital relationship; they are all merely incident to, or constituent parts of, the claim for a divorce. As the Court of Civil Appeals explained in Cochran v. Chapman, 21 So.3d at 1246: “The question whether the parties are married does not constitute a discrete ‘claim’ within the case; instead, it is a constituent part of Chapman’s single claim for a divorce.” Under Alabama law, there is not a cognizable claim for permanent alimony or property division apart from the claim for a divorce. “[T]here is no jurisdiction in the court to grant ‘permanent alimony1 without a divorce.” Ex parte Thornton, 272 Ala. 4, 7, 127 So.2d 598, 601 (1961). “[T]he court is without power to decree a permanent allowance out of the husband’s estate, when the court has denied a divorce. Such permanent allowance ... is incident to a decree of divorce.” Norrell v. Norrell, 241 Ala. 170, 171, 1 So.2d 654, 654 (1941).

Section 30-2-51, Ala.Code 1975, provides that “the judge, upon granting a divorce, ... may order to a spouse an allowance out of the estate of the other spouse.” (Emphasis added.) Nothing in the statute authorizes a court to order alimony or a division of property if a divorce is not granted. In Mahoney v. Mahoney, 568 So.2d 832 (Ala.Civ.App.1990), the Court of Civil Appeals rejected the notion that a wife could bring an independent action for alimony following a valid foreign divorce. The court stated:

“The law in Alabama is clear that the power to grant alimony is derived solely from statute, and that the obligation of the husband (or the wife) is derived from the marriage relationship. Pursuant to Ala.Code 1975, § 30-2-50, alimony may be awarded pending an action for divorce or, pursuant to § 30-2-51, upon the granting of a divorce. However, after a valid divorce judgment, the relationship of husband and wife is dissolved, and the obligation of the husband to provide for support is at an end. Ex parte Thornton, 272 Ala. 4, 127 So.2d 598 (1961). Therefore, in this instance, we find that our statutes do not alloiv an independent action for alimony after the marriage relationship has been terminated by a valid divorce.”

568 So.2d at 833-34 (emphasis added). The claims seeking a division of property and alimony are not separately enforceable in the absence of a divorce judgment. They are merely incident to, or constituent parts of, the claim for a divorce.

Cases from other states are in agreement that there is no cognizable claim for property division and alimony in the absence of a grant of a divorce. See McCotter v. Carle, 149 Va. 584, 595, 140 S.E. 670, 674 (1927) (“[I]t is clear that, when a divorce is not decreed, the power of the court to consider in any respect the estates or property rights of the parties, whether between themselves or otherwise, is nonexistent.” (emphasis omitted)); Caldwell v. Caldwell, 177 W.Va. 61, 63-64, 350 S.E.2d 688, 690-91 (1986) (“ ‘[T]he actual division of the property cannot be made until the final decree [of divorce] is granted....’” (quoting 27B C.J.S. Divorce § 300(1)(1959))); Stuart v. Stuart, 144 Ohio St. 289, 291, 58 N.E.2d 656, 657 (1944) (“As a divorce was not granted, there could be no division of the property....”); Mattson v. Mattson, 79 N.D. 381, 389, 56 N.W.2d 764, 768 (1953) (“Since there is no proceeding known to the law wherein there may be a distribution of property between a husband and a wife, based upon their inability to continue the normal marital relations, the manifest implication of the foregoing statutes is that there can be no property distribution, unless there be a judgment or decree of divorce.”); and Sanchez v. Sanchez, 609 S.W.2d 307, 308 (Tex.Civ.App.1980) (“[I]n a divorce case, the division of the property may not be severed from the granting of a divorce.”).

The portions of the prenuptial agreement at issue here are not subject to independent enforcement in the absence of a divorce. The pertinent portions of the prenuptial agreement speak in terms of the parties’ rights and obligations arising out of the marriage and appear to have effect only in relation to a divorce (or death).

In holding that the issue of the validity of the prenuptial agreement was a claim separate from the claim for a divorce, the Court of Civil Appeals cited Robinson v. Robinson, 64 So.3d 1067, 1076 (Ala.Civ.App.2010), and Williams v. Williams, 617 So.2d 1029 (Ala.Civ.App.), rev’d, 617 So.2d 1032 (Ala.1992). In each of those three cases, the appellate court addressed the merits of a partial summary judgment as to the validity of a prenuptial agreement, but did not address whether the Rule 54(b) certification of that judgment was appropriate. Thus, those cases are not binding precedent with respect to the appropriate-hess of the' Rule 54(b) certification under such circumstances. As this Court has stated:

“ ‘ “For a case to be stare decisis on a particular point of law, that issue must have been raised in the action, decided by the court, and its decision made part of the opinion of the case; accordingly, a case is not binding precedent on a point of law where the holding is only implicit or 'assumed in the decision but is not announced.” ’ ”

Ex parte Town of Lowndesboro, 950 So.2d 1203, 1209-10 (Ala.2006) (quoting Alabama Dep’t of Envtl. Mgmt. v. Lowndesboro, 950 So.2d 1180, 1194-95 (Ala.Civ.App.2005), quoting in turn 20 Am.Jur.2d Courts § 153 (1995) (footnotes omitted)).

The Court of Civil Appeals’ opinion also cites eases relating to declaratory judgments ’generally, but none of those cases addresses the concern presented here.

Was the Claim Completely and Finally Adjudicated?

Second, even if somehow the wife’s prenuptial-agreement “claim” could be understood to be a claim separate from her claim for a divorce, it is not clear that the prenuptial-agreement claim was completely adjudicated. That is, it is not clear from the facts before us in this petition that the trial court’s judgment would - be complete and certain in itself or be capable of execution. In Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d at 625, this Court stated:

“A final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there "has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.... All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own."

(Emphasis added.)

Neither the opinion of the Court of Civil Appeals nor the husband’s statement of facts sets forth the substance of the trial court’s judgment; the Court of Civil Appeals’ opinion states merely that the partial summary judgment “determined that the prenuptial agreement was valid.” Williams, 218 So.3d at 787. For all that appears, there remain matters relating to the prenuptial agreement to be determined, including the application of the agreement to the parties’ specific assets and liabilities (e.g., if the prenuptial agreement provides that the wife will have no claim to the husband’s separate property, what assets do or do not fall into that category) and the disposition of assets or liabilities, if any, not covered by the agreement. See Peden v. Peden, 931 So.2d 721, 722 (Ala.Civ.App.2005) (holding that divorce judgment was not final where husband was ordered “to pay ‘any debts contracted by him,’ ” but the judgment did not determine whether the husband contracted for one of the disputed debts); McGill v. McGill, 888 So.2d 502 (Ala.Civ.App.2004) (holding that judgment , directing the wife to make two lists of personal property and directing the husband to choose which list of property he wanted was not final judgment); and Certain Underwriters at Lloyd’s, London v. Southern Natural Gas Co., 939 So.2d 21, 28 (Ala.2006) (“ ‘An order is not final ... if it leaves open the question of additional recovery.’ ” (quoting Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001))).

Intertwining

Finally, even if it were proper to treat the prenuptial-agreement claim as a separate claim, and even if it were proper to treat the trial court’s decision as a full and final adjudication of that claim, it would appear that Rule 54(b) certification is nonetheless inappropriate because the prenuptial-agreement claim and the remaining claims “‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’” Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987)).

The issues in this case are clearly intertwined in several respects. First, no divorce was entered at the time the summary judgment was entered. In the event, however unlikely, that no divorce is subsequently entered, any order regarding alimony or property division made in the judgment purportedly made final by the Rule 54(b) certification would have to be set aside because there is no authority for such relief in the absence of a divorce. Second, any provisions of the prenuptial agreement as to ownership and division of separate property and as to alimony are necessarily intertwined with the issue of the division of assets acquired by the parties during their marriage. See Ex parte Drummond, supra.

Third, the same facts and issues must be considered in the review of both portions of the judgment (the validity of the prenuptial agreement and the later adjudication of the remaining issues). “‘“It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.” ’ ” Loachapoka Water Auth., Inc. v. Water Works Bd. of Auburn, 74 So.3d 419, 423 (Ala.2011) (quoting Centennial Assocs., Ltd. v. Guthrie, 20 So,3d 1277, 1281 (Ala. 2009), quoting in turn 10 Charles Alan Wright et al., Federal Practice & Procedure § 2659 (1998)). Appellate review of a claim as to the validity of a prenuptial agreement will ordinarily involve many of the same facts and events that would be relevant to later appellate review of the property division. The possibility of duplicate or overlapping appellate review is indicative of the inappropriateness of the Rule 54(b) certification of the order addressing the prenuptial-agreement issue.

Conclusion

The husband’s petition to this Court for certiorari review does not assert any ground challenging the Rule 54(b) certification as improper. The practical outcome of the Court of Civil Appeals’ decision is to place the issue of the prenuptial agreement back before the trial court for its consideration at a point when the trial court has now entered a judgment of divorce. The Court of Civil Appeals has affirmed that judgment, and this Court has denied certiorari review of that affir-manee. See Williams v. Williams, 197 So.3d 480 (Ala.Civ.App.2015). At least under the unique circumstances presented here, I am not inclined to vote in favor of granting certiorari review of a decision by a lower appellate court for the sole purpose of vacating that judgment on grounds not presented to us by the certiorari petition. The Court of Civil Appeals appears to have correctly decided the issue it did decide, and I see no injustice in allowing the Court of Civil Appeals’ mandate to stand. Thus, I concur in the denial of the husband’s petition, which will allow the case to proceed in the trial court.

BOLIN, J., concurs.

      . See also North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 345-46 (Ala. 2008) (" ‘[T]he rule that only a final judgment is appealable is to ensure that there be but one appeal of an entire- case, thereby saving time and expense for litigants, as well as bench and bar.’ Powell v. Republic Nat’l Life Ins. Co., 293 Ala. [101] at 103, 300 So.2d [359] at 361 [(1974)].”).

      . Rule 54(b) provides, in pertinent part:
      "(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

      . Cf. Stephens, 84 So.3d at 877 (holding that an attempt to pierce the corporate veil does not present a separate claim for relief, but is instead a means to collect a breach-of-contract damages award).

      ". I do not address whether a prenuptial ■ agreement might contain provisions that are not linked to divorce and that would be enforceable independent of a divorce. That question is not presented here:

      . Chief Justice Moore and I dissented.