author: CARLTON, J.,

text:
    John Ray KIDD, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01182-COA
    Court of Appeals of Mississippi.
    11/08/2016
    Rehearing Denied March 7, 2017
    Certiorari Denied June 15, 2017

      WILLIAM C. STENNETT, ATTORNEY FOR APPELLANT ■
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
    .BEFORE IRVING, P.J., CARLTON .. AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. John Ray Kidd appeals the Union County Circuit Court’s denial of his motion for postconviction relief (PCR). Kidd argues that he is entitled to a vacated conviction and new trial based on the existence of new evidence. Finding no error, we affirm.

FACTS

¶ 2. On February 8, 1998, Angela Allen accused Kidd of forcibly raping and séxually assaulting her. After a trial held in June 1999, the jury found Kidd guilty of one count of sexual battery and two counts of rape. The trial court then sentenced Kidd to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) for sexual battery and thirty years in the custody of the MDOC on each count of rape, with all sentences to be served consecutively.

113. Kidd appealed his conviction and sentence, and in April 2001, this Court affirmed. Kidd v. State, 793 So.2d 675, 677 (¶¶ 1-2) (Miss. Ct. App. 2001). Kidd filed a PCR motion in 2003, asserting the existence of newly discovered evidence. After conducting, an evidentiary hearing, the trial court ultimately denied Kidd’s PCR motion, finding that Kidd failed to obtain permission from the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-7 (Rev. 2015). On September 10, 2014, the supreme court granted Kidd leave to file this current motion to vacate his conviction and for a new trial based on his claim of the discovery of new, éxonerating evidence not known or reasonably discoverable at trial.

¶4. The record shows that upon filing his present PCR motion, Kidd provided the trial court with an affidavit from Dawn Pannell written on May 15, 2014, stating that on' the evening of February 8, 1998, Pannell was at Dodger’s Bar in Tupelo, Mississippi. Pannell stated that while at the bar that evening, she overheard Angela Allen and Roger Grimes plot to “set up” Kidd for rape in an attempt to extort money from Kidd. Pannell claimed that She cautioned Allen, “Don’t do that.” According to Pannell’s affidavit, Allen responded that she intended to “get[] that money,” and advised Pannell “for [her] own good to stay out of [Allen’s] business.” Pannell stated that when she left the bar, she observed Allen and Kidd sitting together. Pannell further stated that years later, during the summer of 2005,, she saw Allen at Walmart and “told her that [Kidd] went to prison because of [her] and [Grimes].” Pannell claimed that Alien admitted that 'Kidd would not “pay what we wanted” and she also admitted that she and Kidd never had sex. Pannell then stated that Allen told her “[D]on’t ever mention this to [me] again,” and walked away.

¶ 5. On April 9, 2015, and June 15, 2016, the trial court held an evidentiary hearing on Kidd’s motion to vacate his conviction and sentence and for a new trial, which the trial court treated as a PCR motion. At that hearing, the trial court heard testimony from Allen (the victim), as well as from several witnesses who did not testify at Kidd’s 1999 trial: Pannell, Wayne Ray, Jimmy Putt, and Officer Chris Glasson of the New Albany Police Department. At the hearing, the State argued that Ray and Putt were available to testify at Kidd’s trial in 1999.

¶6. On July 2, 2015, the trial court entered an order denying Kidd’s motion. The trial court stated that Kidd filed a PCR motion claiming “he is entitled to relief based on newly discovered evidence in the form of an affidavit from Dawn Pannell, who claims to have firsthand knowledge that Kidd was falsely accused” of sexual battery and rape. The trial court observed that, although other alleged witnesses who did not testify at Kidd’s 1999 trial provided testimony, at the evidentiary hearing, the asserted newly discovered evidence presented by Kidd “is largely the testimony of ... Pannell,” who “testified under oath that [Kidd] was essentially ‘set up’ by the victim and that the victim’s claim of being raped was fabricated." In denying Kidd’s request to vacate his conviction and sentence and for a new trial, the trial court explained that it found Kidd’s witnesses at the evidentiary hearing “totally devoid of credibility and not believable in the least.”

¶ 7. Kidd now appeals, asserting that the trial court erred in denying his motion to vacate his conviction and for a new trial. Kidd argues that the testimony of the witnesses presented at his evidentiary hearing amounts to newly discovered evidence that establishes that he was falsely accused by Allen of'rape and sexual assault.

STANDARD OP REVIEW

¶ 8. “The appropriate standard of review for denial of [PCR] after an eviden-tiary hearing is the clearly erroneous standard.” Davis v. State, 980 So.2d 951, 954 (¶ 5) (Miss. Ct. App. 2007) (quoting Johns v. State, 926 So.2d 188, 194 (¶ 29) (Miss. 2006)). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Russell v. State, 73 So.3d 542, 544 (¶ 5) (Miss. Ct. App. 2011). The PCR movant has the burden of showing he is entitled to relief by a preponderance of the evidence. Watkins v. State, 170 So.3d 582, 585 (¶ 10) (Miss. Ct. App. 2014).

¶ 9. Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) defines newly discovered evidence as “evidence, not reasonably discoverable at the time of trial,, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” A movant seeking a new trial based on a newly-diseovered-evidence claim must show:

(1) the new evidence was discovered after the trial; (2) it could- not by due diligence have been discovered prior to trial; (3) it is material to the issue and not merely- cumulative or impeaching; and (4) [it] will probably produce a different result or verdict in the new-trial.

Van Norman v. State, 114 So.3d 799, 801 (¶ 11) (Miss. Ct. App. 2013) (citing Crawford v. State, 867 So.2d 196, 203-04 (¶ 9) (Miss. 2003)). “Relief must be denied if the movant fails to meet' any one of these four elements.” Id.; see also Watkins, 170 So.3d at 587-88 (¶ 20) (In order “[t]o prevail on a newly-discovered-evidence claim, [Kidd] had to show evidence that is both newly discovered and material to the outcome of his convictions.”)..

¶ 10. In PCR cases, when reviewing evi-dentiary hearings, “[w]e will not set aside [a trial court’s] finding unless it is clearly erroneous. Put otherwise, we will not vacate such a finding unless, although there is evidence to support it, we are on the entire evidence left with the definite and firm conviction that a mistake has been made.” Meeks v. State, 781 So.2d 109, 111 (¶ 5) (Miss. 2001) (quoting Rochell v. State, 748 So.2d 103, 109 (¶ 20) (Miss. 1999)).

¶ 11. This Court will affirm a trial court where it reaches the correct result, even if we disagree with the court’s reasoning for that result. Ducksworth v. State, 174 So.3d 323, 324 (¶ 6) (Miss. Ct. App. 2015).

DISCUSSION

¶ 12. Kidd argues that the testimony of Pannell, supported by the testimony of Ray and Putt, supports Kidd’s position that he should be afforded a new trial in this case based upon newly discovered evidence. The record reflects that the issue before us is whether the testimony of Pan-nell constitutes newly discovered evidence under controlling law, and if so, whether relief is therefore warranted.

¶ 13. As stated, Kidd filed a PCR motion in 2003 asserting the existence of newly discovered evidence, which the trial court ultimately denied after finding that Kidd failed to obtain permission from the Mississippi Supreme Court. The supreme court’s September 2014 order granting Kidd leave to file the present PCR motion reveals that this constitutes Kidd’s seventh PCR motion. Kidd’s prior motions are not contained in the record.

¶ 14. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that a movant must file a PCR motion “within three ... years after the time in which [his] direct appeal is ruled upon by the Supreme Court of Mississippi.” Section 99-39-23(6) bars petitioners from filing second or successive PCR motions. Section 99-39-23(6) provides an exception to this rule when the petitioner can show the existence of newly discovered evidence, or “evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.”

¶ 15. Pertinent to our review, we acknowledge that precedent provides an analysis to apply in determining whether evidence indeed constitutes newly discovered evidence warranting relief from the successive-writ bar as set forth in section 99-39-23(6). This Court has further explained that newly discovered evidence can refer “to evidence, that is, an exhibit, testimony, or some other information that could have been offered as evidence in the defendant’s trial but was not offered because it was not reasonably discoverable at the time of the trial.” McCoy v. State, 111 So.3d 673, 676-77 (¶ 10) (Miss. Ct. App. 2012). As stated, in order to prevail on his newly-discovered-evidence claim, Kidd must show: “(1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered pri- or to trial; (3) it is material to the issue and not merely cumulative or impeaching; and (4) [it] will probably produce a different result or verdict in the new trial.” Van Norman, 114 So.3d at 801 (¶ 11). Stated otherwise, “to constitute newly discovered evidence the movant must show the evidence: (1) will probably produce a different result or verdict, (2) has been discovered since trial and could not have been discovered before trial by the exercise of due diligence, (3) is material to the issue, and (4) is not merely cumulative or impeaching.” Russell, 73 So.3d at 545 (¶ 9). If Kidd fails to meet any one of these four elements, we must deny relief. Van Norman, 114 So.3d at 801 (¶ 11).

¶ 16. In the present case, during the evidentiary hearing on Kidd’s PCR motion, the trial judge heard testimony from Allen, as well as other witnesses who did not testify at Kidd’s 1999 trial: Pannell, Ray, Putt, and Officer Chris Glasson of the New Albany Police Department. Pannell testified regarding the allegations set forth in her affidavit. During the evidentiary hearing, Pannell stated that on the evening of February 8, 1998, she overheard Grimes tell Allen: “[I]f you got him off somewhere and say he forced himself on you, his daddy would pay big to shut you up.” Pannell claimed that Allen then told her, “I’ll get that money.” Pannell testified that she tried to talk Allen out of doing it, but Allen insisted that she was going to go through with the plan to accuse Kidd of rape and then extort money from his father. When Pannell left the bar to go home,- she observed Allen “sitting [in] the back of the bar at the table with her arm around ... Kidd.” Pannell further testified that she ran into Allen at Walmart years later, in the summer of 2005. According to Pannell’s testimony, Allen admitted to her that she knew Kidd went to jail after being convicted of raping her. In contrast to Kidd’s defense at trial of consensual sex, Pannell claimed that Allen also told her that she and Kidd never had sex, and that Kidd’s father refused to pay her off.

¶ 17. During the evidentiary hearing, Pannell admitted that she had consumed a few beers on the evening of February 8, 1998. Pannell also admitted that she was currently in a rehabilitation program for substance abuse. When asked to describe what Allen looks like, Pannell responded, “Are you serious? ... As many years as it’s been since I’ve seen her, I mean seriously. I spent five seconds with her at Wal-mart[,]” referring to the 2005 encounter between her and Allen that Pannell alleged in her affidavit.

¶ 18. Allen testified that Kidd raped her on the evening of February 8, 1998. She also testified that she had “never laid ... eyes on [Pannell] before in [her] life.” Allen denied-Pannell’s allegation that she engaged in a discussion with Grimes about “shaking down” Kidd.

¶ Í9. Wayne Ray, who testified at Kidd’s 2003 evidentiary hearing, also provided testimony at the evidentiary hearing on Kidd’s present PCR motion. Ray stated that he knew both Allen and Kidd, and he had observed them talking to each other “10, 12, 15 times” at Dodger’s Bar. Like Ray, Jimmy Putt also testified for Kidd at both the 2003 evidentiary hearing and the evidentiary hearing at issue. At the eviden-tiary hearing on the present PCR motion, Putt stated that he saw Pannell and Allen talking to each other at Dodger’s Bar on the evening of February 8, 1998. Putt testified that he was threatened by an investigator named Mickey Baker that if he came in and testified at Kidd’s trial, Putt would be guaranteed jail time.

¶ 20. During closing arguments, the State argued that Pannell lacked credibility, explaining: ‘We-had ... Allen in here and [Pannell] says that in passing at a Wal-Mart entrance that she was able to recognize [Allen] immediately. Yet in this courtroom she couldn’t pick [Allen] out and identify her for the Court.” The State also argued that Ray and Putt, friends of Kidd who testified at the hearing to allegedly corroborate the proposed newly discovered evidence of Pannell’s testimony, were available to testify at Kidd’s trial in 1999, and both men also testified at Kidd’s previous evidentiary hearing in 2003. The State claimed that as a result, “this evidence that they’re claiming to be newly discovered doesn’t fit under that standard.”

¶21. The trial court ultimately denied Kidd’s PGR motion after finding the testimony from all of Kidd’s witnesses, including Pannell, “totally, devoid of credibility and not believable in the least.” The trial court explained that Kidd’s claim of newly discovered. evidence “is. largely the testimony of ... Pannell,” who “testified under oath that [Kidd] was essentially ‘set up’ by the victim and that the victim’s claim of being raped was fabricated,” We recognize that “the. trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility , of the witnesses.” Johns, 926 So.2d at 196 (¶ 36).

¶22. As acknowledged, the record reflects that the issue before this Court is whether Pannell’s affidavit and testimony constitute newly discovered evidence warranting relief. See Russell, 73 So.3d at 545 (¶ 9). In his PCR motion, Kidd asserts that Pannell’s testimony should be considered in context with the other evidence in the case.

. ¶ 23. In reviewing Kidd’s claim of newly discovered evidence, we acknowledge that the alleged newly discovered evidence pertains to impeaching Allen’s trial testimony and asserting a financial motive. The context of the evidence in the record in this case shows that the conviction was not based solely on Allen’s testimony. The record additionally shows that during the cross-examination of Allen at trial, the defense questioned her credibility and motives,

¶ 24. The trial transcript further reflects that Allen’s. testimony was corroborated with significant medical testimony. During Kidd’s trial, the State presented medical evidence from emergency-room (ER) personnel, including an ER doctor, showing that Allen presented in the ER with contusions and abrasions to her rectal area, and her anus showed obvious signs of trauma. Allen also had a bruised and bloody nose and bruised neck. An ophthalmologist who subsequently examined Allen also provided testimony opining that the injury to Allen’s eyes was consistent with slapping or choking. Additionally, the trial record shows that Allen presented in the ER with a portion of rope still around one of her ankles. Rope fibers and hair strands collected from Allen were consistent with hair strands and fibers found in Kidd’s truck. As- stated, the record also shows that Kidd’s counsel cross-examined Allen at trial as to her credibility and alleged financial motives.

¶ 26. In reviewing Pannell’s testimony in light of the criteria applicable to determining whether evidence constitutes newly discovered evidence, we find that it fails to meet the criteria necessary to establish- a claim for relief. See Russell, 73 So.3d at 545 (¶ 9). The transcript from Kidd’s trial reflects that the issues of Allen’s credibility and motives, including the issue of a financial motive on Allen’s part, were examined by the defense on cross-examination .of Allen. As a result, we find that testimony from Pannell would merely, be cumulative impeachment evidence. Moreover, Kidd has failed to .show that Pan-nell’s testimony would “probably produce a different result or verdict in the new trial.” Van Norman, 114 So.3d at 801 (¶ 11). As previously stated, the PCR movant possesses the burden of showing that he is entitled to relief by a preponderance of the evidence. Crawford, 867 So.2d at 202 (¶ 7). As established by precedent, in order to prevail on his newly-discovered-evidence claim, Kidd must show: “(1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered prior to trial; (8) it is material to the issue. and not merely cumulative or impeaching; and (4) [it] will probably produce a different result or verdict in the new trial.” Van Norman, 114 So.3d at 801 (¶ 11). If Kidd fails to meet any one of these four elements, including proving that the new evidence was material to the issue, we must deny relief. Id.

¶ 26. Based on the foregoing, we find no abuse of discretion in the trial court’s order denying Kidd’s PCR motion. Accordingly, we affirm the trial court’s denial of Kidd’s PCR motion.

¶ 27. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT DENYING THE MOTION FOR POSTCON-VICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The record shows that this constitutes Kidd’s seventh PCR motion.

      . The trial court held the evidentiary hearing after the supreme court’s September 2014 order granting Kidd leave to file Iris motion to vacate his conviction and for a new trial.

      . "Mississippi Code Annotated section 99-39-23(6), in pertinent part, has an exception for newly discovered evidence.” Johnson v. State, No. 2015-CP-00234-COA, 204 So.3d 346, 2016 WL 2638072, at *2 (¶ 10) (Miss. Ct. App. May 10, 2016).

      . As stated, the record reflects that Putt and Ray also testified at Kidd’s 2003 evidentiary hearing held as a result of a prior PCR motion filed by Kidd in 2003 wherein Kidd also alleged newly discovered evidence. The record reflects that the trial court denied Kidd’s prior 2003 PCR motion after realizing that Kidd failed to obtain permission from the supreme court to file the motion.

      . See Ormond v. State, 599 So.2d 951, 962 (Miss. 1992); Johnson v. State, 39 So.3d 963, 965-66 (¶ 9) (Miss. Ct. App. 2010).


source: Caselaw Access Project

license: Public Domain

text:
    Brian Anthony YOUNG a/k/a Brian A. Young a/k/a Brian Young, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-CP-01799-COA
    Court of Appeals of Mississippi.
    11/29/2016
    Rehearing Denied April 4, 2017
    Certiorari Denied June 8, 2017

      BRIAN ANTHONY YOUNG (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR AP-PELLEE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   CARLTON, J.,

FOR THE COURT:

¶1. Brian Young appeals the Jackson County Circuit Court’s dismissal of his motion for postconviction relief (PCR). After finding that Young failed to obtain permission from the Mississippi Supreme Court for leave to proceed in the trial court pursuant to Mississippi Code Annotated section 99-39-7 (Rev. 2015), we affirm the trial court’s dismissal of Young’s PCR motion.

FACTS

¶2. In April 2002, a Jackson County jury found Young guilty of murder. The trial court sentenced Young to serve a life sentence in the custody of the Mississippi Department of Corrections (MDOC). Young then appealed his conviction and sentence, which the Mississippi Supreme Court affirmed in Young v. State, 891 So.2d 813, 821 (¶ 25) (Miss. 2005).

¶3. On January 18, 2006, the supreme court granted Young leave to proceed with a PCR motion. Young filed his PCR motion, and the trial court entered an order on July 31, 2008, denying Young’s PCR motion. Young then appealed the trial court’s denial of his PCR motion. On appeal, this Court entered an order affirming the trial court’s denial of Young’s PCR motion. Young v. State, 33 So.3d 1151, 1160 (¶ 23) (Miss. Ct. App. 2009).

¶ 4. In 2013, Young filed a petition in the supreme court seeking leave to file a motion in the trial court for DNA testing of a confession letter and envelope, pursuant to section 99-39-7. On March 28, 2014, the supreme court dismissed Young’s petition for leave to proceed in the trial court. In its order of dismissal, the supreme court cited Means v. State, 43 So.3d 438, 442 (¶ 12) (Miss. 2010), and determined that Young had failed to present an “arguable basis,that DNA testing would provide a reasonable likelihood of more probative results and demonstrate by reasonable probability that he either would not have been convicted or would have received a lesser sentence.”

¶ 5. Young disregarded the supreme court’s order denying permission for leave to proceed and filed his “petition to test confession letter and envelope for DNA and fingerprints” in the trial court in April 2014. The trial court subsequently entered an order of dismissal explaining that “[b]e-cause the supreme court denied [Young’s] request for leave to proceed in the trial court, this court has no jurisdiction and the petition is hereby dismissed.”

¶ 6. Young now appeals and asserts the following assignments of error: (1) the trial court erred in summarily dismissing his PCR motion -without determining if Young met the statutory requirements exempting him from the three-year statute of limitations under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015); (2) the trial court erred in finding that it lacked jurisdiction to consider Young’s PCR motion; and (3) the trial court erred in failing to grant Young an evidentiary hearing to determine if he is entitled to DNA and fingerprint testing on the alleged confession letter and envelope.

STANDARD OF REVIEW

¶ 7. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s, legal conclusions under a de novo standard of review.” Jackson v. State, 178 So.3d 807, 809 (¶ 8) (Miss. Ct. App. 2014).

DISCUSSION

¶ 8. Although Young has styled his motion as a “petition to test confession letter and envelope for DNA and fingerprints,” we recognize the supreme court’s guidance that “pleading[s] cognizable under the Uniform [Postconviction] Collateral Relief Act (UPCCRA.) will be treated as [PCR motions] that are subject to the procedural rules promulgated therein, regardless of how the plaintiff has denominated or characterized the pleadings.” Doss v. State, 126 So.3d 1026, 1027-28 (¶ 5) (Miss. Ct. App. 2013) (citing Knox v. State, 75 So.3d 1030, 1035 (¶ 12) (Miss. 2011)). Accordingly, we find that Young’s motion is essentially a PCR motion. Id.

¶ 9. We further recognize that “[w]hen a case is affirmed on direct appeal, permission from the Mississippi Supreme Court must be obtained in order to seek [PCR] in the circuit court.” Bradford v. State, 116 So.3d 164, 165 (¶ 7) (Miss. Ct. App. 2012) (quoting Campbell v. State, 75 So.3d 1160, 1161-62 (¶ 7) (Miss. Ct. App. 2011)); see also Miss. Code Ann. § 99-39-7. Mississippi Code Annotated section 99-39-27(9) (Rev. 2015) provides: “The dismissal or denial of an application [for leave to proceed in the trial court] is a'final judgment and shall be a bar to a second or successive application under this article.” “This procedure is not merely advisory, but jurisdictional.” Harris v. State, 160 So.3d 722, 723 (¶ 5) (Miss. Ct. App. 2015) (quoting Campbell, 75 So.3d at 1162 (¶ 7)).

¶ 10. In the present case, we find that the trial court did not err in dismissing Young’s PCR motion, The record re-fleets that Young’s conviction and sentence were affirmed by the supreme court on direct appeal. Young, 891 So.2d at 821 (¶ 25). As a result, section 99-39-7 provides that Young must obtain permission from the supreme court in order to seek postconviction relief in the trial court. The record, herein reflects that the supreme court entered an order dismissing Young’s motion for leave to proceed in the trial court after finding Young had failed to present an “arguable basis that DNA testing would provide a reasonable likelihood of more probative results and demonstrate by reasonable probability that he either would not have been convicted or would have received a .lesser sentence.” See Means, 43 So.3d at 442 (¶ 12), Since the supreme court failed to grant Young permission to file his PGR motion in the trial court, the trial court lacked jurisdiction to consider Young’s motion. Therefore, we affirm the trial court order dismissing Young’s PCR motion.

¶11. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, JAMES, WILSON AND GREENLEE, JJ., , CONCUR. ISHEE, J., NOT PARTICIPATING.

      . The State filed a motion to dismiss Young’s appeal. The supreme court passed for consideration along with the merits of the appeal both the State’s motion and Young's response. In determining this appeal, we affirm the trial court’s dismissal of Young’s PCR motion. Therefore, issuance of a separate order to dispose of the State’s pending motion is unnecessary, and we dismiss the motion as moot.

      . The record reflects that the delay between the filing of Young's 2006 PCR motion and the trial court’s 2008 order denying the motion was due to the effects of Hurricane Katrina.

      . In Young, 33 So.3d at 1153 (¶ 1), this Court addressed the following assignments of error asserted by Young: (1) his constitutional right to a speedy trial was violated; (2) the trial court erred in denying his request for an evidentiary hearing prior to denying his PCR motion; and (3) ineffective assistance of counsel. Within his argument that he was denied effective assistance from his trial counsel, Young also alleged that "in September 2000, his trial counsel received a confession letter from the victim’s husband[,]” but the letter and envelope were never examined by a laboratory. Id. at 1158 (¶ 17). In its opinion, this Court acknowledged that at Young’s trial, one of the detectives testified that "the letter was not sent to a laboratory for examination because the State believed too many people had touched the letter.” Id. at (¶ 18). This Court ultimately held that "Young”s trial attorney’s decision not to seek independent examination of the letter or object to the detective’s testimony does not constitute ineffective assistance of counsel.” Id.


author: IRVING, P.J.,

text:
    Charles SMITH, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00812-COA
    Court of Appeals of Mississippi.
    12/06/2016
    Rehearing Denied April 4, 2017
    Certiorari Denied June 8, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY; GEORGE T. HOLMES, JUSTIN TAYLOR COOK, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLE-BEN, ATTORNEY FOR APPELLEE
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Charles Smith appeals the judgment of the Clay County Circuit Court, arguing that the trial court erred by not informing him of his rights as a pro se litigant under Uniform Rule of Circuit and County Court 8.05.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On April 5, 2012, Smith was indicted for the murder of Bennie Oaks, which occurred on September 4, 2011. Prior to trial, the court appointed counsel to represent Smith; however, Smith informed the court that-he wanted to represent himself. After a mental evaluation of Smith,- the doctor that had examined him expressed concerns about his effectiveness in representing himself and his working relationship with his trial counsel. Despite those concerns, the doctor concluded that Smith could competently, knowingly, and intelligently participate in the proceedings. Upon inquiry by the court, Smith clarified his intention to conduct his defense in cooperation with his trial counsel’s assistance. The court then granted Smith permission to proceed to trial and represent himself during portions of the proceedings. During the trial, Smith and his appointed counsel both participated in his representation. On April 14, 2014, Smith was convicted of murder and sentenced to life in prison ás a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015). On October 15, 2014, Smith’s motion for a new trial was denied. This appeal followed.

DISCUSSION'

¶4. “The trial court’s decision to allow pro se representation will be disturbed only upon a showing of abuse of discretion.” Metcalf v. State, 629 So.2d 558, 566 (Miss. 1993).

¶ 5. Smith argues that the trial court failed to inform him of the disclosures required to be given to a pro se litigant under Uniform Rule of Circuit, and County Court 8.05. Rule 8.05 provides:

When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, the state will appoint one free of charge to the defendant to defend or assist the defendant in his/her defense.
2. The defendant has the right to conduct the defense and that the defendant may elect to conduct the defense and allow whatever role (s)he desires to his/ her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.
5. Other matters as the court deems appropriate.
After instructing the defendant and ascertaining that the defendant understands these matters, the court will ascertain if the defendant still wishes to proceed pro se or if the defendant desires an attorney to assist him/her in his/her defense. If the defendant desires to proceed pro se, the court should determine if the defendant has exercised this right knowingly and voluntarily, and, if so, make the finding a matter of record. The court may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney, but all disputes between the defendant and such attorney shall be resolved in favor of the defendant.

¶ 6. Most notably, Smith argues that the court did not inform him that proceeding pro se would increase the likelihood of an unfavorable outcome at trial. He also argues that the court never specifically told him that he had the right to an attorney. However, he admits that the court’s action in appointing counsel to assist him may be interpreted as the court telling him that he possessed such a right. Further, he argues that although the court informed him that he would be held to the same evidentiary standards of an attorney, he did not know that he would be held to the same standards regarding all aspects of his representation. In addition, he contends that the nature of the hybrid representation was damaging to his case, as there was no cohesive trial theory. He states that his attorney argued that the stabbing was in self-defense; however, he argued that he did not stab Oaks at all— an inconsistency that he believes hurt his case. Smith also contends that his decision to waive counsel was not made knowingly, voluntarily, and intelligently, as required by Rule 8.05. Finally, he asserts that since he was not properly informed of his rights, his conviction and the judgment of the circuit court should be reversed.

¶ 7. The State correctly responds that Smith did not waive his right to counsel. Instead, Smith proceeded under a hybrid representation whereby Smith and his attorney shared the responsibility of presenting his case at trial. During the hearing to decide whether Smith would be capable of proceeding pro se, Smith had the following exchange with the court:

[COURT]: Last time we talked[,] I think you indicated you wanted to represent yourself; is that right?
[SMITH]: Well, Your Honor, it was partially. What I was saying is that I don’t have a problem with my counsel representing me. But I would like to actually have the moment to cross-examine the witnesses as well as him. I wanted it to be a partial thing, we do this in part.
[COURT]: Sure. I understand. You don’t get to cross-examine a witness and he gets, to cross-examine a witness. I mean, if there’s a witness you want to cross-examine, you’ll have to do it, he won’t be able to cross-examine.
[SMITH]: I understand that.
[COURT]: Okay. So you want to be able to be an active participant in certain parts of the case?
[SMITH]: That’s correct.
⅜ ⅜ ⅜ ⅜
[COURT]: All right. You understand if you cross-examine or do direct examination of witnesses, I’ll have to hold you to the same rules of evidence that I do to the State and that I would hold [your attorney], too. Do you understand that?
[SMITH]: Yes, sir, I understand.

¶ 8. Although Smith was active in representing himself by delivering the opening statement and performing examinations of witnesses, he was not a true pro se defendant. Smith’s trial counsel filed several pretrial motions on his behalf, conducted jury voir dire, delivered the closing argument, cross-examined some of the State’s witnesses, and argued objections during the trial. The issue of hybrid representation is succinctly addressed in Henley v. State, 729 So.2d 232, 236 (Miss. 1998):

Recently, this court has turned to a hybrid representation in an effort to strike a balance between the right to counsel and the right to self-representation. Hybrid representation encompasses both the participation of the criminal defendant in the course of the trial when he has not effectively waived his right to assistance of counsel, and the participation by an attorney when the defendant is proceeding pro se. There is no absolute right to hybrid representation, and whether to allow hybrid representation lies in the discretion of the trial court.

¶ 9. When looking at the relationship between Smith and his attorney, it is clear that a hybrid relationship existed. This Court ruled in Wash v. State, 129 So.3d 247, 251 (¶ 9) (Miss. Ct. App. 2013), that the appellant

did not proceed pro se as contemplated by Rule 8.05; thus, there [was] no need to determine whether [the appellant] knowingly and voluntarily waived his right to counsel. [The appellant] was never left to his own defense as ... [trial counsel] functionally remained counsel throughout trial in the form of hybrid representation.

¶ 10. The ruling in Wash is directly applicable to this case. Smith’s argument that he was not apprised of his rights under Rule 8.05 is moot since he was represented in a hybrid capacity. Despite the fact that the court was not required to do so—because of the nature of Smith’s hybrid representation—the court did in fact inform Smith of all of his rights, including the significant risk he faced by representing himself. Immediately before trial, Smith had the following exchange with the court:

[COURT]: Okay. Like I say, you’re not a dumb man, you’re a pretty smart fellow. I figured that out, but I also told you, in all the years I’ve either been a trial lawyer, or a trial judge, I don’t know anybody that’s ever defended [himself] and won. I think I told you that, last time; right?
[SMITH]: But it’s not impossible.
[COURT]: No. It’s not impossible. It just, it doesn’t happen very ' often. I just want you to be aware of that.
' [SMITH]: Again, if I lose, Your Honor, then I’m to blame myself.

Clearly, the trial- court fully informed Smith of his rights under Rule 8.05 despite having no obligation to do so; therefore, his arguments are without merit.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN PRISON IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J.-, CONCURS IN PART ‘ WITHOUT SEPARATE WRITTEN OPINION.


author: WESTBROOKS, J.,

text:
    William Brady FOSTER a/k/a Brady Foster, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00326-COA
    Court of Appeals of Mississippi.
    05/30/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   PROCEDURAL HISTORY

WESTBROOKS, J.,

FOR THE COURT:

. ¶ 1. William Brady Foster was indicted in the Circuit Court of Franklin County on one count of burglary of a dwelling and one count of being a felon in possession of a firearm, After a jury trial, Foster was acquitted of burglary in Count I, but convicted of being a felon in possession of a firearm in Count II. Foster was sentenced as a habitual offender to ten years in the custody of the Mississippi Department of Corrections, without eligibility for reduction, suspension, parole, or probation. Foster was also- ordered to pay all court costs and fees, including a $200 prosecution fee.

¶ 2. Foster filed- a posttrial motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for- a new trial. The trial court denied his motion, and Foster timely appealed. After review of the record, we affirm.

FACTS

¶ 3. On September 17,2015, Lance Moak noticed his air-conditioning unit had been removed from his 'bedroom window, and the television set in his bedroom was missing. Upon further inspection, Moak noticed the back door of his house ajar. His rifle and sawed-off shotgun were missing. The cabinets where he kept his ammunition were ajar, and a drawer in another room appeared to have been rummaged through. Moak noticed a television missing from another room in his home. Moak called the Franklin County Sheriffs Department.

¶ 4. At that time, David Blackwell was an investigator with the Franklin County Sheriffs Department. As part of the investigation, Blackwell testified he went to the home of Josh and Jake Smith based on a call he received from the Lincoln County jail regarding the burglary of Moak’s home. Josh and Jake were in the custody of the Lincoln County jail during that time and spoke with Blackwell regarding Foster and the burglary. Blackwell testified that he discovered Moak’s stolen property in an abandoned house next door to the Smiths’ residence. At that time, Foster was staying with Josh; Jake, and their mother, Janet Smith. Blackwell searched the trailer- and observed a sawed-off shotgun hanging over the top of the bed in a back room. Blackwell also learned that Foster, a convicted felon, stayed in the back room with his girlfriend, Lakeisha Rollins, when he slept there.

¶ 5. Josh and Rollins testified that Foster had a shotgun in his possession when he picked up Rollins one day in a white pickup truck that Foster had borrowed from his father. However, Foster testified he never had a sawed-off shotgun, because he was not allowed to have a gun. Foster also testified he knew of guns being in the Smiths’ residence while he was there; however, he was not around the gun because of his prior felony convictions.

¶ 6. Following a jury trial, Foster was acquitted of burglary, but convicted of the crime of being a felon in possession of a firearm. He was sentenced as a habitual offender to serve a term of ten years in the custody of the Mississippi Department of Corrections, without eligibility for reduction, suspension, parole, or probation. After the denial of Foster’s posttrial motion for a JNOV or new trial, he timely appealed.

¶ 7. Foster’s counsel filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005), asserting he diligently searched the procedural and factual history of this criminal action and found no arguable issues for review. Foster’s counsel requested the Court grant Foster thirty days of additional time to file a pro se brief, if Foster desired to do so. In July 2016, this Court entered an order giving Foster an additional forty days to file a pro se supplemental brief. No such brief has been filed to date.

¶ 8. The State agrees there are no ap-pealable issues before this Court. Finding no error, we affirm the judgment of the circuit court.

DISCUSSION

¶9. “In Lindsey, [the Mississippi Supreme Court] outlined a procedure that appellate counsel must follow when they determine that there are no appealable issues in the record.” Allred v. State, 130 So.3d 504, 506 (¶ 6) (Miss. 2014) (citing Lindsey, 939 So.2d at 748 (¶ 18)). The court stated as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7); see also Smith v. Robbins, 528 U.S. 259, 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756, (2000) (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal. (5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Allred, 130 So.3d at 506-07 (¶ 6) (internal citations omitted) (quoting Lindsey, 939 So.2d at 748 (¶ 18)).

¶ 10. This Court finds that Foster’s attorney complied with all the requirements of Lindsey. Counsel’s brief states he “diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on Foster’s behalf in good faith for appellate review.” Counsel asserts he reviewed: (a) the reason for the arrest and the circumstances surrounding Foster’s arrest; (b) any possible violations of Foster’s right to counsel; (c) the entire trial transcript and content of the record; (d) all rulings of the trial court; (e) possible pros-ecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in sentencing, including the constitutionality of Foster’s sentence; (i) the indictment and all of the pleadings in the record; (j) any possible ineffective-assistance-of-counsel issues; (k) any potential discovery violations; and (l) the sufficiency of Foster’s sentence as a habitual offender. Counsel also states he mailed Foster a copy of the brief, a copy of the trial transcript, and correspondence informing Foster that counsel found no arguable issues in the record. Counsel also informed Foster that he had a right to file a pro se brief, and requested that this Court grant Foster thirty days of additional time to file a pro se brief, if he desired to do so. The Court did not receive a pro se brief from Foster.

¶ 11. After reviewing the record, this Court finds that there is sufficient evidence to support Foster’s conviction. Foster was convicted of possession of a weapon by a convicted felon. The indictment also contained an enhancement for habitual-offender status.

¶ 12. Mississippi Code Annotated section 97-37-5 (1) (Rev. 2014) states:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

¶ 13. Further, Mississippi Code Annotated section 99-19-81 (Rev. 2015) states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 14. The State had to show that Foster was in possession of a firearm, and that he had prior felony convictions. At trial, the State presented testimony from multiple witnesses who saw Foster in possession of a firearm. Rollins, Foster’s girlfriend at that time, testified Foster was in possession of .a gun while picking her up in a white pickup truck. She also testified she saw Foster in possession of a sawed-off shotgun, Genette Racliff, a witness at trial, testified she called Foster’s father to report she saw Foster pull what looked like a gun from the back of his truck. However, she did not know for certain. Jake and Josh testified that Foster and Rollins lived with them and their mother during a period of time, and that they saw a shotgun in the room where Rollins and Foster stayéd. Josh also testified he saw a rifle at his home, although neither brother could testify as to who brought the guns into their residence. Janet testified she witnessed Foster bring a shotgun into her home. Blackwell testified he saw a sawed-off shotgun hanging over the-top of the bed in a bedroom in the Smiths’ home while investigating the burglary. He further testified that he learned that Foster and Rollins utilized that particular bedroom when they stayed there. Finally, Foster admitted that he stayed in a home with guns, although he denied he was in actual possession of those guns.

¶ 15. After Foster was convicted of possession of a weapon by a convicted felon, the court held a separate habitual-status hearing before sentencing. Certified copies of his guilty plea and sentencing order were submitted showing Foster was found guilty of accessory after the fact to burglary of a storehouse by the Circuit Court of Franklin County in February 2011. Also, certified copies of his guilty plea and sentencing order were submitted showing Foster was found guilty of burglary of a storehouse by- the- Circuit Court of Franklin County in February 2013. Without objection from Foster s counsel, the circuit court found Foster to be a habitual offender pursuant to section 99-19-81.

¶ 16. After review of the record, this Court finds - the conviction should be affirmed. The State submitted sufficient evidence to convict Foster under section 97-37-5, and to sentence him under section 99-19-81, Further, we find that Foster’s counsel complied with the Supreme Court’s holding in Lindsey in submitting his brief.

¶ 17. THE JUDGMENT OF THE FRANKLIN COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR REDUCTION, SUSPENSION, PAROLE, OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FRANKLIN COUNTY.

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

      . Since Foster was acquitted of burglary, this Court only analyzes the testimony relating to the charge of felon in possession of a firearm.


author: BÁRNES, J.,

text:
    Tabatha KALMON, Appellant v. Brent KALMON, Appellee
    NO. 2015-CA-01902-COA
    Court of Appeals of Mississippi.
    06/27/2017

      ATTORNEY FOR APPELLANT: JOHN PATRICK ROBBINS
    ATTORNEY FOR APPELLEE: WILLIAM PAUL STARKS II
    BEFORE IRVING, P.J., BARNES, CARLTON AND WESTBROOKS, JJ.
   BÁRNES, J.,

FOR THE COURT:

¶ 1. Tabatha. and Brent Kalmon were married on April 10, 2010, in. Dover, Delaware. The couple had one child, a son, born in August 2011. In October 2012, Tabatha admitted to Brent that she had a brief affair with someone she met while attending physical therapy technical school in San Antonio, Texas, for four months. The Kalmons stayed together, attempting to make the marriage work. However, after Tabatha turned twenty-one years of age, she began “going out” with friends more often, and the couple continued to have marital problems. The Kalmons moved to Lowndes County, Mississippi, in January 2013 when Tabatha was assigned to the Columbus Air Force Base. The couple separated on August 16, 2013. Brent discovered afterwards that Tabatha had sent her former paramour, Jonathon Crane, a text in April 2013; she also sent Jonathon nude photographs.

¶2. On November 2, 2013, after Brent had denied her late-night request to pick up their two-year-old child, Tabatha took an overdose of sleep medication (four Am-bien and three Flexeril pills). Although Tabatha claimed she had no intention of killing herself, she was hospitalized for two days and received mandatory mental-health counseling for several months (November 2013-September 2014). She was also prescribed medication for depression. She continued to be employed full-time on active duty.

SUMMARY OF PROCEEDINGS

¶ 3. On November 7, 2013, Brent filed a complaint for divorce and other relief, seeking a divorce based on adultery and habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. He also requested sole legal and physical custody of their minor child. Tabatha filed an answer and counterclaim for divorce. The Lowndes County Chancery Court entered a temporary order on December 2, 2013, awarding the couple joint physical and legal custody of the minor child during the pendency of the proceeding.

¶ 4. On October 7, 2014, Brent filed an emergency motion for a change of custody, alleging Tabatha “ha[d] exhibited a complete disregard for the safety and well-being” of the child by failing to require them son to use a child-safety seat and by driving while texting when the child was present in the car. The motion also charged that, during this incident, Tabatha’s mother used profanity in front of the child and engaged in “teaching and coaching” the child to use profanity. The chancellor denied the motion.

¶ 5. A trial was held April 15, 2015, and continued on August 4, 2015. On April 15, 2015, the parties withdrew all fault-based grounds and consented to a divorce based on irreconcilable differences. The remaining issues of child custody, child support, visitation, and marital distributions of assets (including the distribution of proceeds from the sale of Tabatha’s wedding/engagement rings) were submitted to the chancery court. On October 15, 2015, the chancery court entered its opinion and final judgment, granting the divorce on the ground of irreconcilable differences. The chancery court awarded physical custody of the minor child to Brent, weighing the appropriate factors under Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), and providing for reasonable visitation with the mother. Tabatha was ordered to pay $447 in monthly child support, and Brent was ordered to pay Tabatha $300 from the sale of the rings. Tabatha filed a motion to reconsider, which the chancellor denied.

¶ 6. On appeal, Tabatha challenges the chancellor’s findings of fact as to three of the Albright factors, and requests that this Court reverse and render the court’s decision and award her physical custody of the minor child. Finding no abuse of discretion in the chancellor’s findings, we affirm.

DISCUSSION

¶ 7. Tabatha’s claims on appeal concern the chancery court’s findings on certain Albright factors, specifically, its determination that three factors—moral fitness, parenting skills, and physical and mental health and age of the parents—favored Brent. The court found that only one factor favored Tabatha—the stability of the home environment.

¶8. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005. “When reviewing the chancery court’s application of the Albright factors, the appellate court ‘reviews the evidence and testimony presented at trial under each factor to ensure the chancery court’s ruling was supported by record.’ ” Mitchell v. Mitchell, 180 So.3d 810, 816 (¶ 10) (Miss. Ct. App. 2015) (quoting Hollon v. Hollon, 784 So.2d 943, 947 (¶ 13) (Miss. 2001)). We will not “reweigh the evidence”—if the chancellor’s findings of fact “are supported by substantial evidence,” we will defer to those findings. Id.

A. Parenting Skills

¶ 9. Although the chancellor noted that neither party had any “real concerns about each other’s parenting skills,” she found in favor of Brent on this factor as Tabatha had “allowed the child to ride in a vehicle without being buckled in a car seat and permitted her mother to teach [the child] an inappropriate word.” Tabatha contends that the chancery court improperly weighed this evidence against her, noting that this was a single incident. She claims Brent “sensationalized]” this story at trial and argues that “[t]o call this situation an emergency or even an incident that deserves significant attention is laughable.”

¶ 10. Brent asserts that Tabatha’s testimony regarding the incident was false, and there is evidence in the record to support his claim. Tabatha said the incident regarding the car seat took place in an airport parking lot, but counsel for Brent introduced video evidence of the incident that called into question the veracity of Tabatha’s testimony.

Q. Now, [Tabatha], you testified earlier that was in a parking lot, is that correct?
A. Yes, sir.
Q. Okay. Well, can you explain why on the video there’s four or five cars and [eighteen] wheelers that are passing by at high rates of speed?
A. I couldn’t tell you. I was in the airport parking lot, I mean, just the whole, like cell phone waiting area. I mean, there’s roads next to it. I’m not sure what angle this is at.
Q. And going under a bridge?
A. I, I guess so. I’m not sure.
Q. [D]o you recall being on your cell phone texting while you were driving?
A. I’m not texting. It was my GPS.
Q. Okay. So, you were driving home when this happened?
A. No, I’m in the parking lot setting up my GPS. I told you my mom was, you know, she had to get a hold of my stepdad and that’s why we were still kind of lingering around.
Q. Okay. But you’re not sitting still?
A. Correct.
Q. And your mother is telling your son, “Say [‘]s-head[,] get out of the way[’].”
A. Sure.
Q. [D]o you recall that?
A. Something similar, yes.
Q. And there being traffic in front of you?
A. Maybe.
Q, But you weren’t sitting still in a parking lot in a parking spot?
A. I never claimed that. I just said we were in a parking lot, yes.
Q. And more importantly, [the child] was ■ not buckled in?
A. Correct.

The chancery court viewed the video and evidently found that this incident, isolated or not, was serious enough to warrant a finding that this factor favored Brent, As Brent notes, “[t]he issue is not whether she is fit, but who is favored by analysis.” We also reviewed the video and find the chancery court’s determination supported by the record.

. B. Physical and Mental Health and Age of the Parents

¶ 11. The chancellor observed that both Brent and Tabatha were in good health and “are of an age to, ably take care of a four[-]year-old child,” However, due to Tabatha’s suicide attempt, and the fact that Brent “had no mental health issues,” the chancellor found this factor favored Brent,

. ¶ 12. Tabatha downplays her “alleged suicide attempt,” noting that it was almost two years before the trial, and she had “completed extensive counseling.” Whether she intended to kill herself or not, it is evident that Tabatha desired attention and was willing to go to extreme lengths to get that attention. Tabatha claimed at trial she only took the sleeping medication to see if anyone cared about her; she had no intention of ending her life. She testified: “I wanted people to understand that I really was hurting and I really was at a low point in my lifefj” The counselor’s report noted that Tabatha said, “I wanted people to see I was really at my wits end.” Tabatha also testified 'that' she sent her former lover a nude photo because she “was getting no attention” from Brent, and she got breast implants in June 2013 so Brent would “find her attractive again.”

¶ 13. To counter this evidence, Tabatha introduced at trial a text from Brent from July 2011, in which he said to her, “How about if I just go f-ing kill myself[?]” Brent argues that there was no evidence of “any mental disorder or intent to actually carry out any threats” on his part, and we find the record supports his argument. Brent said he made an “idle” threat during the marriage after Tabatha “stormed out of the house”, during an argument. Tabatha, on the other hand, committed a desperate, and potentially fatal, act in an attempt to either harm herself or gain sympathy and attention. Therefore, we conclude that the chancery court’s finding that this factor favored Brent is supported by substantial evidence.

C, Moral Fitness

¶ 14. In finding that this factor favored Brent, the. chancery court noted Tabatha’s adultery and the nude photographs that she sent to “her former paramour” during a time .in which .the Kalmons were attempting to reconcile. The . court was also “particularly troubled with [Tabatha’s] suicide attempt.” Although Tabatha was commended for receiving counseling, the chancellor expressed concern that Tabatha is no longer receiving any counseling and was “not totally convinced” by Tabatha’s reassurances that she was “doing fine.”

¶ 15. Tabatha acknowledges that she had a “brief extramarital relationship,” but she contends this is “a marital issue, not a custody issue.” She notes that the minor child never met Jonathon, and she argues that, despite Brent’s claims to the contrary, there is no proof she “had any further relationships.” She also asserts that Brent had sent text messages to ex-girlfriends prior to the couple’s separation and had introduced his new girlfriend to the child. Tabatha is correct that “[mjarital fault should not be used as a sanction in custody awards.” Albright, 437 So.2d at 1005. “However, adultery is a factor to be considered in evaluating moral fitness, though not given ‘undue weight.’ ” White v. White, 166 So.3d 574, 586-87 (¶ 36) (Miss. Ct. App. 2015) (quoting Blakely v. Blakely, 88 So.3d 798, 804-05 (¶ 26) (Miss. Ct. App. 2012)).

¶ 16. Tabatha told Brent that the reason for the affair was that she “was just drunk,” and she continued to communicate with her former lover months after the affair was discovered, sending him nude photos. She also let a male friend sleep over in the guest room when the child was home, although there was no evidence presented that he was more than a friend. Tabatha admitted at trial that she had stayed out all night on one occasion, while Brent was home with their child, and she failed to contact him. She claimed she was “not in any state” to go home because she had an “allergic reaction” to a couple of glasses of wine, and the battery had died on her cell phone. We find this evidence, as well as Tabatha’s past mental-health issues, supports the chancery court’s finding. This issue is without' merit.

¶ 17. Accordingly, we affirm the judgment.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Tabatha is a member of the United States Air Force. The couple was living in Washington, D.C., at the time.'

      . This agreed order was not entered into the court's file until October 15, 2015, when the chancery court entered its final judgment.

      . The parties were awarded joint legal custody.

      . This was due to the fact that Tabatha continued to reside in the marital home; Brent resides in an apartment and relies on his mother for day care. The chancery court found that, as to the remaining Albright factors, neither party was favored.

      . There was also testimony that Brent was, at one point, the primary caregiver—driving and picking up the child from daycare, bathing him, and feeding him. Tabatha refuted this testimony, claiming that she dressed the child in the mornings, but she admitted that Brent took their child to and from daycare.

      . The day prior to the suicide attempt, on October 31, 2013, Tabatha met with a mental-health counselor, who observed she was "tearful” and "visibly shaky,”


author: BRYAN, Justice. BOLIN, Justice

text:
    William Wood BYRD, Jr. v. Dairian BENTLEY, as personal representative of the Estate of Mark Jonathan Bentley, Sr., deceased.
    1150495.
    Supreme Court of Alabama.
    Aug. 26, 2016.
    Rehearing Denied Oct. 14, 2016.
    William Wood Byrd, Jr., pro se.
    Salem Resha, Jr., of Wilson Resha LLC, Birmingham, for appellee.
   BRYAN, Justice.

AFFIRMED. NO OPINION.

PARKER, MURDOCK, and MAIN, JJ., concur.

BOLIN, J., concurs specially.

BOLIN, Justice

(concurring specially).

I concur with affirming the summary judgment entered by the Shelby Probate Court in favor of Dairian Bentley, as personal representative of the estate of Mark Jonathan Bentley, Sr., deceased (sometimes hereinafter referred to as “the estate”), in this will-contest action filed by William Wood Byrd, Jr. Although the probate court provided alternative reasons as to why the summary judgment in favor of the estate was proper, I write specially to discuss the probate court’s reason that it lacked jurisdiction over the will contest under § 43-8-199, Ala.Code 1975, because Byrd filed the contest in the probate court, rather than the circuit court.

I initially note that I agree with the probate court’s assessment that the substance of Byrd’s action against the estate is a will contest inasmuch as the crux of Byrd’s allegations is that the will submitted to probate by Dairian Bentley was a forgery and that Dairian Bentley had committed fraud by presenting the will for probate.

“In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Ala. Code 1975, before probate, the contest may be instituted in the probate court or (2) under § 48-8-199, Ala. Code 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.”

Stevens v. Gary, 565 So.2d 73, 74 (Ala.1990)(emphasis added). Section 43-8-199, Ala.Code 1975, “provides the sole remedy where [as here] a person interests ed in an estate fails to join a will contest in probate court.” Hollis v. Wallace, 481 So.2d 875, 877 (Ala.1985). “Because a circuit court’s jurisdiction over a will contest is statutorily conferred and limited, a proceeding initiated under § 43-8-199 must comply exactly with the requirements of that statute.” Evans v. Waddell, 689 So.2d 23, 27 (Ala.1997).

The probate court reasoned that because the will in this case had already been admitted to probate, under the plain mandate of § 43-8-199, Byrd was required to file his action in the circuit court, and not the probate court. I take this opportunity, however, to point out that there are currently four Alabama counties (Mobile, Jefferson, Shelby, and Pickens Counties) in which the probate courts have been vested with jurisdiction concurrent with that of the circuit courts to try contests after a will has been admitted to probate. Pursuant to local acts, the probate courts of Mobile and Jefferson Counties have concurrent jurisdiction with the circuit courts of those counties and therefore have jurisdiction to try contests after a will has been admitted to probate. See Act No. 974, Ala. Acts 1961, and Act No. 1144, Ala. Acts 1971, respectively. See also Coleman v. Richardson, 421 So.2d 113, 116 (Ala.1982), in which this Court held that, pursuant to Act No. 974, the Mobile Probate Court, located in a county then having a population of between 300,000 and 500,000, had jurisdiction to try a will contest case after the will had been presented to probate:

“Appellant contends that because Act No. 974 confers general equity jurisdiction on certain probate courts concurrent with that of the circuit courts, in equity, dealing with the administration of estates, and further confers the same powers and authority on probate judges of certain counties as exercised and held by circuit judges of those same counties, sitting in equity and dealing with the administration of estates, his petition to so probate the alleged October 23, 1973, will of Irma Barbara Garriga Coleman does not, as suggested by Appellee, contravene the mandate of Code 1975, [§ 43-8-199], We agree.
“While the plain and clear language of Code 1975, [§ 43-8-199], speaks only to the ‘circuit’ court’s jurisdiction in will contests, to say that such nomenclature deprives those probate courts in the appropriately populated counties via Act No. 974 from any post-probate jurisdiction would, in our view, read Act No. 974 right out of existence. We are sensitive to Appellee’s admonition against ‘judicial legislation,’ but we are constrained to give Act No. 974, enacted subsequent to § 43-1-79 [the predecessor to § 43-8-199], its clear meaning and to effect its obvious purpose.
“It is important to note that such concurrent jurisdiction, as heretofore delineated, exists only in those counties with the population set forth in Section 1 of the Act. As Mobile County is encompassed within such population guidelines, Coleman’s filing of his ‘will contest’ petition in the probate court, as opposed to the circuit court, was entirely proper.”

Although Coleman was decided based upon the local act conferring equity jurisdiction on the Mobile Probate Court concurrent with the circuit court as to the administration of estates, the same logic and reasoning would apply to similar local acts or constitutional amendments that grant like authority to probate courts in other counties.

Pursuant to local constitutional provisions, the probate courts of Shelby and Pickens Counties “may exercise equity jurisdiction concurrent with that of the circuit court[s] in cases originally filed in the Probate Court[s] of [Shelby and Pickens Counties] if the [probate judges are] licensed to practice law in the State of Alabama.” See Local Amendments, Shelby County, § 4, Ala. Const. 1901 (Official Recomp.), and Local Amendments, Pick-ens County, § 6.10, Ala. Const. 1901 (Official Recomp.). Accordingly, Byrd’s will contest need not be filed in the circuit court, because the Shelby Probate Court was constitutionally vested with equity jurisdiction pursuant to a local constitutional provision where, in accordance with that provision, the current probate judge in Shelby County is licensed to practice law in this State.

Notwithstanding the foregoing, based on the other valid alternative reasons stated by the probate court, I agree that the summary judgment in favor of the estate is proper. “[T]his Court will affirm a judgment for any reason supported by the record that satisfies the requirements of due process.” Smith v. Mark Dodge, Inc., 934 So.2d 375, 380 (Ala.2006) (citing Taylor v. Stevenson, 820 So.2d 810, 814 (Ala. 2001)).


author: THOMPSON, Presiding Judge.

text:
    EX PARTE GENTILE COMPANY, LLC (In re: Gentile Company, LLC, d/b/a Jan-Pro of North Alabama v. The Bright Star Restaurant, Inc.)
    2150901
    Court of Civil Appeals of Alabama.
    October 14, 2016

      J. Stanton Glasscox of Glasscox Law Firm, LLC, Birmingham, for petitioner.
    T. Morgan Duncan of Paden & Paden, P.C., Bessemer, for respondent.
   THOMPSON, Presiding Judge.

On May 12, 2016, Gentile Company, LLC, doing business as Jan-Pro of North Alabama (“Gentile”), filed a complaint in the Jefferson Circuit Court (“the trial court”) seeking to recover damages from The Bright Star Restaurant, Inc. (“Bright Star”), on claims alleging breach of contract and negligence. In its complaint, Gentile alleged that it had entered into a contract to provide cleaning services for Bright Star and that Bright Star had wrongfully terminated the contract on April 15, 2016,

Bright Star responded to the complaint on June 17, 2016, by filing a motion seeking to dismiss the complaint or, in the alternative, to transfer the action to the Jefferson Circuit Court, Bessemer Division (“the Bessemer division”). See Act No. 213, Ala. Local Acts 1919 (creating the Bessemer division of the Jefferson Circuit Court); Ex parte Flexible Prods. Co., 961 So.2d 111, 114-15 (Ala. 2006) (holding that Act No. 213, Ala. Local Acts 1919, is -a venue statute); and § 6-3-7(d), Ala. Code 1975 (“[I]n any county having two courthouses, the divisions shall be treated as two separate judicial districts for purposes of venue and for purposes of any change or transfer of venue .... ”). Bright Star argued in its motion to dismiss or to transfer (that motion is hereinafter referred to as “the motion to transfer”) that venue was proper in the Bessemer division, and, as an alternate basis for seeking a change of venue, it argued the theory of forum non conveniens.

On June 28, 2016, the trial court entered an order denying that part of Bright Star’s motion to, transfer in which Bright Star had sought the dismissal of Gentile’s action but granting the request for a change of venue and ordering that the action be transferred to the Bessemer division. Gentile filed a purported postjudgment motion. See SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n.1 (Ala. Civ. App. 2007) (“A valid postjudgment motion may only be taken in reference to a final judgment.”).' Bright Star responded to' the purported postjudgraent motion, and Gentile filed a reply to that response. The trial court conducted a hearing, and it entered an order on July 18, 2016, in which it denied Gentile’s purported postjudgment motion. Gentile filed a petition for a writ of mandamus on July 22, 2016, within the presumptively reasonable time allowed for challenging the June 28, 2016, order. See Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ. App. 2007) (“The presumptively reasonable time within which to file a petition for a writ of mandamus is the time in which an appeal may be taken, i.e., 42 days.” '(citing Rule 21(a), Ala. R. App. P., and Ex parte Fiber Transp., L.L.C., 902 So.2d 98 (Ala. Civ. App. 2004))).

An order granting a motion to change venue is reviewable by a petition for a writ of mandamus. Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953).

“Mandamus is a drastic and extraordinary writ to be issued only where ‘(1) there is a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). When this Court considers a - petition for a writ of mandamus relating to a venue ruling, this Court’s ‘scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Jd. Additionally, ‘[o]ur review is further limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d [788, 789 (Ala. 1998) ]; Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995).’ Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala. 2000).”

Ex parte MedPartners, Inc., 820 So.2d 815, 818 (Ala. 2001).

“The question of proper venue for an action is determined at the commencement of the action.” Ex parte Pratt, 815 So.2d 532, 534 (Ala. 2001). In this case, Gentile alleged in its complaint that Bright Star is a domestic corporation. Section 6-3-7(a), Ala. Code 1975, which governs venue of actions against foreign and domestic corporate defendants, provides, in pertinent part:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation'does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

In its complaint, in support of its contention that venue was proper in the trial court, Gentile alleged that it is a domestic corporation “that at all times material and relevant to this complaint did business by agent in Jefferson County, Alabama.” Gentile further alleged that Bright Star is also a domestic corporation “that is qualified to do business in Alabama, and does business in Jefferson County.” In its motion to transfer, Bright Star alleged only that its restaurant is located in Bessemer and that “the substantial part of the events or omissions giving rise to the action” occurred in Bessemer, at the location of the restaurant. Based on the allegations in the complaint and the motion to transfer, the trial court entered its June 28, 2016, order.

Gentile’s purported postjudgment motion, Bright Star’s response to that motion, and Gentile’s reply contained allegations similar to those made in the complaint and the motion to transfer. In support of its reply, Gentile submitted an affidavit of its president, Dominic Gentile. In their filings made after the trial court’s initial ruling, both parties argued the venue issue thoroughly. The trial court conducted a hearing at which it considered the arguments of counsel. The trial court then entered its July 18, 2016, order, which clarified its earlier, June 28, 2016, order by specifically finding:

“1. The greater part of the performance of the contract at issue is in the Bessemer Division and took place at [Bright Star’s] premises in Bessemer; and
“2. [T]he relative inconvenience of the parties and the material witnesses, some of whom have transportation challenges, is a major issue and makes the Bessemer Division an issue under forum non conveniens.”

In its petition for a writ of mandamus, Gentile argues that Bright Star did not meet its evidentiary burden. We agree. Bright Star presented no evidence in support of its motion to transfer. Although it is a logical inference from the allegations of the parties that most of the performance of the contract occurred in Bessemer, Bright Star made no attempt to present evidence to support that finding. “The un-sworn statements, factual assertions, and arguments of counsel are not evidence.” Ex parte Russell, 911 So.2d 719, 725 (Ala. Civ. App. 2005). Similarly, the statements made by counsel in an unsworn pleading or motion are also not evidence. Hicks v. Jackson Cty. Comm’n, 990 So.2d 904, 905 n.1 (Ala. Civ. App. 2008). The only evidence before the trial court was the affidavit of Dominic Gentile, which arguably supports a determination that venue was proper in the trial court under § 6-3-7(a)(3). It is well settled that if venue is proper in two locations, the plaintiff, in this case Gentile, may select the court in which it wants to proceed. Ex parte H.L. Raburn & Co., 384 So.2d 1075, 1076 (Ala. 1980).

Further, neither party presented evidence on the other ground on which the trial court based its decision, i.e., the doctrine of forum non conveniens. Our supreme court has explained:

“ ‘ “A defendant moving for a transfer under § 6-3-21.1[, Ala. Code 1975, the statute governing venue transfers under the doctrine of forum non conveniens,] has the initial burden of showing that the transfer is justified, based on the convenience of the parties or witnesses or based on the interest of justice.” ’ Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008) (quoting Ex parte National Sec. Ins. Co., 727 So.2d [788,] 789 [(Ala. 1998)]). ‘Our review is limited to only those facts that were before the trial court.’ Ex parte Kane, 989 So.2d at 511, Further, ‘those facts “must be based upon ‘evidentiary material,’ which does not include statements of counsel in motions, briefs, and arguments.” ’ Ex parte Indiana Mills & Mfg., Inc., 10 So.3d [536,] 541 n.3 [ (Ala. 2008) ] (quoting Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 345 (Ala. 2006)).”

Ex parte Veolia Envtl. SVC, 122 So.3d 839, 842 (Ala. Civ. App. 2013).

Given the failure of Bright Star to present any evidence on the issue of forum non conveniens, we must conclude that Bright Star failed to meet its burden for transferring the action to the Bessemer division for • that reason as well. We grant the petition for a writ of mandamus, and we direct the trial court to vacate its June 28, 2016, order transferring the action to the Bessemer division and its July 18, 2016, order clarifying its reasoning for the transfer.

PETITION GRANTED; WRIT ISSUED. -

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

      . We note that there is no indication that, at the time the trial court reconsidered its ruling granting the motion to transfer for venue, the case had been sent to or docketed in the Bessemer division. See Ex parte Sawyer, 873 So.2d 166, 167 (Ala. 1993) (a trial court may not change its mind or reconsider a transfer for venue once the action has been transferred to and docketed in the new court).

      . In that affidavit, Dominic Gentile stated that Gentile's offices were not located within the Bessemer division and that he did not "consider” Bright Star’s payment under the contract at issue fulfilled until Gentile had acknowledged receipt of that payment in its Birmingham office.


text:
    Charles K. MEEKER, Jr., and Katrina Bowden Meeker v. BEAUFORD ENGINEERING SERVICES, INC.
    2091197
    Court of Civil Appeals of Alabama.
    10/19/2015
   Dismissed.


text:
    Craig A. LONG v. Terri S. LONG
    2130493
    Court of Civil Appeals of Alabama.
    10/09/2015
   Reh. denied; no-opinion affirmance of 04/10/2015 corrected.


text:
    BILLY BARNES ENTERPRISES, INC. v. Jessie Walter RAMER
    2130773
    Court of Civil Appeals of Alabama.
    10/09/2015
   Reh. denied.


text:
    Tony VELASCO d/b/a Classic Auto Body v. Richard PACE
    2130840
    Court of Civil Appeals of Alabama.
    10/30/2015
    Reh. denied. 12/04/2015
   Affirmed.


text:
    Clint Toneyo FOSTER v. Sonja Marie FOSTER
    2130951
    Court of Civil Appeals of Alabama.
    10/02/2015
   Reh. denied.


text:
    G.O. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES and C.C.
    2131007
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Charles L. WALLER v. CITY OF DAPHNE
    2140069
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Bryan Elliott CUMBIE v. Jennifer Foster CUMBIE
    2140143
    Court of Civil Appeals of Alabama.
    10/23/2015
   Affirmed.


text:
    James GRAVELING and Lori Graveling v. ROLL TIDE HOMES, LLC
    2140173
    Court of Civil Appeals of Alabama.
    10/09/2015
   Reh. denied.


text:
    Kenneth S. TRAYWICK v. Michael L. KIDD
    2140185
    Court of Civil Appeals of Alabama.
    10/02/2015
    Reh. denied. 12/11/2015
   Affirmed.


text:
    Sheila STONE v. Rodney STONE
    2140187
    Court of Civil Appeals of Alabama.
    10/30/2015
   Reh. denied.


text:
    Thomas H. JOINER, Jr., and Betty Joiner v. CITY OF GUIN
    2140211
    Court of Civil Appeals of Alabama.
    11/20/2015
   Reh. denied.


text:
    Roger Wade ROBERSON v. Judy Carol ROBERSON
    2140223
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    John Woodson KLOS v. Patricia A. KLOS
    2140236
    Court of Civil Appeals of Alabama.
    10/02/2015
   Affirmed.


text:
    Lana KELLEY v. Kevin KELLEY
    2140241
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    Myron TIBBS v. STATE
    2140272
    Court of Civil Appeals of Alabama.
    10/09/2015
   Reh. denied.


text:
    Ronald James PETERS v. Courtney GRAY
    2140308
    Court of Civil Appeals of Alabama.
    10/30/2015
   Affirmed.


text:
    Hubert I. MATTHEWS and Hubert I. Matthews Family Partnership, L.P. v. COMMONWEALTH LAND TITLE INSURANCE CO. et al.
    2140343
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    Michael Allen BUTTS v. Tammie J. BUTTS
    2140345
    Court of Civil Appeals of Alabama.
    10/30/2015
   Affirmed.


text:
    S.O.C. III v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140352
    Court of Civil Appeals of Alabama.
    10/02/2015
   Affirmed.


text:
    James L. DOUGLAS, Jr. v. Martha MCGEE et al.
    2140353
    Court of Civil Appeals of Alabama.
    10/02/2015
   Appeal—Affirmed.

Cross-appeal—Affirmed.


text:
    J.C. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140358
    Court of Civil Appeals of Alabama.
    10/02/2015
   Affirmed.


text:
    L.M. v. I.N.A.
    2140367
    Court of Civil Appeals of Alabama.
    10/30/2015
   Reh. denied.


text:
    Abbey ETHERIDGE, in her capacity as guardian and conservator of Willie E. Sheffield and the Estate of Willie E. Sheffield, deceased v. TURNER PINE CO. and Tom Turner, Jr.
    2140395
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    LOWE’S HOME CENTERS, INC. v. Jody CHERNESKI
    2140398
    Court of Civil Appeals of Alabama.
    11/04/2015
   Dismissed.


text:
    Sandra Jean CLAYBOURNE v. Michael Eugene CLAYBOURNE
    2140405
    Court of Civil Appeals of Alabama.
    10/09/2015
    Reh. denied. 12/11/2015
   Affirmed.


text:
    Carroll B. POWELL, Jr. v. Beverly C. GRIZZLE
    2140407
    Court of Civil Appeals of Alabama.
    10/16/2015
    Reh. denied. 12/04/2015
   Affirmed.


text:
    Andrew Arthur DUERR v. Anne Marie DUERR
    2140423
    Court of Civil Appeals of Alabama.
    10/09/2015
   Dismissed.


text:
    John H. THOMPSON v. Tracy MCQUEEN and Alabama State University
    2140427
    Court of Civil Appeals of Alabama.
    11/13/2015
   Reh. denied.


text:
    Kathy DENDY v. Michael DENDY
    2140433
    Court of Civil Appeals of Alabama.
    10/30/2015
   Affirmed.


text:
    Virginia R. MCDOUGAL v. Jason Lee LANGSTON
    2140439
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Kim MASON v. UPS, INC.
    2140440
    Court of Civil Appeals of Alabama.
    10/09/2015
   Affirmed.


text:
    Timothy Lebarron MARTIN v. Sharron Lee MARTIN
    2140441
    Court of Civil Appeals of Alabama.
    10/30/2015
   Reh. denied.


text:
    S.R. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140451
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Steven Mark HAYDEN v. William B. CASHION and Western Steel, Inc.
    2140456
    Court of Civil Appeals of Alabama.
    12/07/2015
   Transferred to the Sup. Ct.


text:
    C.A. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140457
    Court of Civil Appeals of Alabama.
    10/23/2015
   Affirmed.


text:
    WHITE OAK TRANSPORTATION, INC. v. Randy KELLER
    2140461
    Court of Civil Appeals of Alabama.
    10/07/2015
   Dismissed.


text:
    Joseph WEST v. STATE
    2140463
    Court of Civil Appeals of Alabama.
    10/23/2015
   Reh. denied.


text:
    Shon THOMPSON v. Deanna THOMPSON
    2140469
    Court of Civil Appeals of Alabama.
    11/06/2015
   Affirmed.


text:
    Anita MCCURDY v. Verna MOLZ
    2140475
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    Willard Ryan DRUMMOND, Ritchie Drummond, and Rendell Drummond v. Shela DRUMMOND and the Estate of Charlie A. Drummond, deceased
    2140476
    Court of Civil Appeals of Alabama.
    11/13/2015
   Affirmed.


text:
    Marc PARKER and Melissa Parker v. AUTAUGA COUNTY HERITAGE ASSOCIATION
    2140477
    Court of Civil Appeals of Alabama.
    11/06/2015
   Affirmed.


text:
    A.B.C. v. L.G.
    2140497
    Court of Civil Appeals of Alabama.
    11/06/2015
   Affirmed.


text:
    K.R. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140498
    Court of Civil Appeals of Alabama.
    10/09/2015
   Affirmed.


text:
    Tara BELL v. Jomo JOHNSON
    2140511
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Angela Rae HAYDEN v. William B. CASHION and Western Steel, Inc.
    2140512
    Court of Civil Appeals of Alabama.
    12/07/2015
   Transferred to the Sup. Ct.


text:
    ALABAMA DEPARTMENT OF LABOR v. BETTY’S CLEANING & LAWN CARE, LLC
    2140513
    Court of Civil Appeals of Alabama.
    10/02/2015
   Affirmed.


text:
    Rory DAUGHTRY v. ARMY FLEET SUPPORT, LLC
    2140535
    Court of Civil Appeals of Alabama.
    11/20/2015
   Reh. denied.


text:
    A.L.S. v. I.W. and J.W.
    2140537
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    Rita BROWN v. ALLY & RICH PROPERTIES, LLC
    2140545
    Court of Civil Appeals of Alabama.
    10/27/2015
   Dismissed.


text:
    Inez M. WILLIAMS v. Romone D. WILSON
    2140553
    Court of Civil Appeals of Alabama.
    10/23/2015
   Affirmed.


text:
    Jamie BRAND and Cynthia Maloy v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee for the certificate holders of the CWABS, Inc., asset-backed certificates, series 2006-18
    2140583
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Dan GREEN v. Robin MACKINAW and Sherri Middleton
    2140585
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    Nikki ADAMS v. BROWN & SONS WRECKING SERVICE et al.
    2140594
    Court of Civil Appeals of Alabama.
    12/17/2015
   Dismissed.


text:
    S.W. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140599
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Fredrick J. DOUGLAS v. TROY BANK & TRUST CO.
    2140600
    Court of Civil Appeals of Alabama.
    11/06/2015
   Affirmed.


text:
    JEFFERSON COUNTY BARBER COMMISSION et al. v. Andre MOORE et al.
    2140603
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    Lisa A. HODO-PAYNE v. COMMISSIONER, STATE DEPARTMENT OF LABOR, Unemployment Compensation Trust Fund
    2140620
    Court of Civil Appeals of Alabama.
    10/23/2015
   Affirmed.


text:
    Michael WHITE and Shirley White v. Norman K. WEBSTER
    2140622
    Court of Civil Appeals of Alabama.
    10/09/2015
   Dismissed.


text:
    C.B.T. v. STATE
    2140627
    Court of Civil Appeals of Alabama.
    10/30/2015
   Affirmed.


text:
    V.M. v. STATE
    2140628
    Court of Civil Appeals of Alabama.
    10/30/2015
   Affirmed.


text:
    S.P. v. C.C.
    2140643
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed,


text:
    S.P. v. B.H.
    2140644
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    Rada Elizabeth FOSTER v. James Edward FOSTER
    2140661
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    J.M.W. v. R.R.
    2140667
    Court of Civil Appeals of Alabama.
    10/23/2015
    Reh. denied. 12/04/2015
   Affirmed.


text:
    J.M.W. v. R.R.
    2140668
    Court of Civil Appeals of Alabama.
    10/23/2015
    Reh. denied. 12/04/2015
   Affirmed.


text:
    Tracy Marvel BOOZER v. Jeffery Allan MARVEL
    2140674
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    Haicha TOUSSAINT v. Gino A. MAURICE
    2140677
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    Gregory Allen KIMBRELL v. Brenda Michelle KIMBRELL
    2140684
    Court of Civil Appeals of Alabama.
    10/19/2015
   Dismissed.


text:
    S.A.A. v. In re D.M.J., a minor child
    2140691
    Court of Civil Appeals of Alabama.
    10/29/2015
   Dismissed.


text:
    K.J. v. STATE DEPARTMENT OF HUMAN RESOURCES
    2140693
    Court of Civil Appeals of Alabama.
    10/23/2015
   Dismissed.


text:
    Cecil FERGUSON v. Colonel Jeff DUNN, commissioner of the Alabama Department of Corrections, et al.
    2140695
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    Kristy HOOKS and Daron Hooks v. Chris MILES
    2140696
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    Alvin Butler CHARD and Joseph Moon v. CITY OF MUSCLE SHOALS et al.
    2140703
    Court of Civil Appeals of Alabama.
    10/30/2015
   Affirmed.


text:
    Sabrina W. STOVER v. Richard Dennis STOVER
    2140705
    Court of Civil Appeals of Alabama.
    10/16/2015
   Affirmed.


text:
    Moses HALL v. John ROBINSON
    2140708
    Court of Civil Appeals of Alabama.
    11/23/2015
   Dismissed.


text:
    J.T. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140710
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    Danny MUHAMMAD v. CADENCE BANK, N.A.
    2140713
    Court of Civil Appeals of Alabama.
    12/4/2015
   Affirmed.


text:
    Danny MUHAMMAD v. CADENCE BANK, N.A.
    2140714
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    A.O. v. STATE DEPARTMENT OF HUMAN RESOURCES
    2140723
    Court of Civil Appeals of Alabama.
    11/03/2015
   Dismissed.


text:
    Pamela Jean LENAHAN v. Juttee OLIVE et al.
    2140727
    Court of Civil Appeals of Alabama.
    10/09/2015
   Affirmed,


text:
    H.E. v. BALDWIN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140739
    Court of Civil Appeals of Alabama.
    10/23/2015
   Affirmed.


text:
    Janie D. COBB v. FEDERAL NATIONAL MORTGAGE ASSOCIATION et al.
    2140741
    Court of Civil Appeals of Alabama.
    11/20/2015
   Dismissed.


text:
    DOLGENCORP, LLC, and Angela Mason v. Ebony BROWN
    2140750
    Court of Civil Appeals of Alabama.
    10/23/2015
   Dismissed.


text:
    Leah Frances BRUNSON v. Ryan Joseph PERRET
    2140759
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    L.E.W. III v. M.J.L.
    2140765
    Court of Civil Appeals of Alabama.
    12/29/2015
   Case reinstated


text:
    James Edward BAKER v. STATE REAL ESTATE COMMISSION
    2140775
    Court of Civil Appeals of Alabama.
    11/06/2015
   Affirmed.


text:
    M.R. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140788
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    Nancy PERRY v. USAA CASUALTY INSURANCE CO.
    2140813
    Court of Civil Appeals of Alabama.
    11/20/2015
   Affirmed.


text:
    Shannon WILKINSON v. MOBILE CHRISTIAN SCHOOL, INC., and David Pahman
    2140819
    Court of Civil Appeals of Alabama.
    11/06/2015
   Affirmed.


text:
    Matthew Dean BURGESS v. L.P.R. CONSTRUCTION CO., Travis Weber, and Cory Daman
    2140820
    Court of Civil Appeals of Alabama.
    11/13/2015
   Dismissed.


text:
    A.E. v. M.L. and C.L.
    2140828
    Court of Civil Appeals of Alabama.
    11/17/2015
   Dismissed.


text:
    B.M.B.B.E. v. T.E.B.
    2140829
    Court of Civil Appeals of Alabama.
    12/16/2015
   Dismissed.


text:
    S.L. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140833
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    S.L. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140834
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    S.L. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140835
    Court of Civil Appeals of Alabama.
    12/18/2015
   Mfirmed,


text:
    J.V. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140839
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    J.V. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140840
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    J.V. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140841
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    Eddy B. DAVENPORT v. DKW HOLDINGS, LLC, et al.
    2140863
    Court of Civil Appeals of Alabama.
    12/04/2015
   Affirmed.


text:
    D.S. v. E.S.
    2140878
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    William MCCOY v. MOBILE INFIRMARY MEDICAL CENTER et al.
    2140902
    Court of Civil Appeals of Alabama.
    10/19/2015
   Dismissed.


text:
    Lawanda MOSLEY v. NEXTRAN CORP.
    2140905
    Court of Civil Appeals of Alabama.
    10/14/2015
   Case reinstated


text:
    Jacqueline E. AUSTIN v. ESTATE OF Edna Erle AUSTIN, James Maxwell Austin, Jr., and Dana Austin-LaFrance
    2140908
    Court of Civil Appeals of Alabama.
    12/08/2015
   Dismissed.


text:
    L.E.W. III v. STATE EX REL. M.L.
    2140919
    Court of Civil Appeals of Alabama.
    10/13/2015
   Dismissed.


text:
    Cherryl OLIVER v. DOTHAN CITY BOARD OF EDUCATION
    2140927
    Court of Civil Appeals of Alabama.
    12/18/2015
   Affirmed.


text:
    JONES OIL CO. v. Sidney E. HARRIS III
    2140929
    Court of Civil Appeals of Alabama.
    11/25/2015
   Dismissed.


text:
    A.L.R. v. E.N.M.
    2140931
    Court of Civil Appeals of Alabama.
    10/06/2015
    Reh. denied. 11/10/2015
   Dismissed.


text:
    Jenifer WADE v. SOUTH BALDWIN REGIONAL MEDICAL CENTER
    2140932
    Court of Civil Appeals of Alabama.
    10/13/2015
   Dismissed.


text:
    Joe Clark OSBURN, Sr. v. Alma Griffin OSBURN
    2140945
    Court of Civil Appeals of Alabama.
    11/03/2015
   Dismissed.


text:
    L.T.D. v. HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140954
    Court of Civil Appeals of Alabama.
    12/11/2015
   Affirmed.


text:
    Jeffrey Dodd YORK v. Christie BRASCO
    2140957
    Court of Civil Appeals of Alabama.
    10/27/2015
   Dismissed.


text:
    Edward COKE v. BIRMINGHAM HOUSING AUTHORITY et al.
    2140959
    Court of Civil Appeals of Alabama.
    10/06/2015
   Dismissed.


text:
    Randy E. MOREFIELD v. Tina Bates MOREFIELD
    2140973
    Court of Civil Appeals of Alabama.
    11/10/2015
   Dismissed.


text:
    Daniel ROSENOW, Jr. v. Thomas HORNE et al.
    2140974
    Court of Civil Appeals of Alabama.
    10/16/2015
   Dismissed.


text:
    PLEASANT BAY AMBULANCE SERVICE v. CITY OF RUSSELLVILLE
    2140975
    Court of Civil Appeals of Alabama.
    11/03/2015
   Dismissed.


text:
    EX PARTE Beverly Jo JONES (In re: Beverly Jo Jones v. J. Jerry Pilgrim)
    2140976
    Court of Civil Appeals of Alabama.
    10/21/2015
   Reh. denied.


text:
    Cynthia Denise BRISTOW v. Cassanova Apollo BRISTOW
    2140983
    Court of Civil Appeals of Alabama.
    11/18/2015
   Dismissed.


text:
    Paul KENNAMER and Dorothy Kennamer v. FORD MOTOR CO.
    2140984
    Court of Civil Appeals of Alabama.
    12/22/2015
   Dismissed.


text:
    Mischa Ruth CRAIG v. Doyle Laron CRAIG
    2140989
    Court of Civil Appeals of Alabama.
    11/12/2015
   Dismissed.


text:
    J.H. v. B.M.
    2140991
    Court of Civil Appeals of Alabama.
    10/14/2015
   Dismissed.


text:
    D.S.F. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140995
    Court of Civil Appeals of Alabama.
    10/15/2015
   Dismissed.


text:
    D.S.F. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140996
    Court of Civil Appeals of Alabama.
    10/15/2015
   Dismissed.


text:
    D.S.F. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140997
    Court of Civil Appeals of Alabama.
    10/15/2015
   Dismissed.


text:
    C.C. v. C.S.
    2141008
    Court of Civil Appeals of Alabama.
    10/21/2015
    Reh. denied. 11/17/2015
   Dismissed.


text:
    EX PARTE STATE AND DEPARTMENT OF YOUTH SERVICES et al. (In re: Dr. Carolyn Turner et al. v. State and Department of Youth Services et al.)
    2141013
    Court of Civil Appeals of Alabama.
    10/29/2015
   Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


text:
    Susan FORBUS v. Jean Carlton FORBUS
    2141014
    Court of Civil Appeals of Alabama.
    11/18/2015
   Dismissed.


text:
    James Michael FORBUS v. Jean Carlton FORBUS
    2141015
    Court of Civil Appeals of Alabama.
    11/18/2015
   Dismissed.


text:
    EX PARTE Richard Lamar BOLDEN and Eight Thousand, Two Hundred and Sixty Five Dollars (In re: Richard Lamar Bolden and Eight Thousand, Two Hundred and Sixty Five Dollars v. State; Judge Michael Conaway)
    2141016
    Court of Civil Appeals of Alabama.
    10/09/2015
   Dismissed.


text:
    The ROBINSON FAMILY LIMITED PARTNERSHIP et al. v. CHARTER LANDING, INC., and Kenneth Montgomery
    2141021
    Court of Civil Appeals of Alabama.
    11/24/2015
   Dismissed.


text:
    J.R.B. v. K.N.S.
    2141024
    Court of Civil Appeals of Alabama.
    12/03/2015
   Dismissed.


text:
    D.J.W. v. D.K.R.
    2141033
    Court of Civil Appeals of Alabama.
    12/30/2015
   Dismissed.