author: LEE, C.J., FOR THE COURT:

text:
    Michael Chadwick SMITH, Appellant v. Kimberly Marie MULL, Appellee
    NO. 2016-CA-00524-COA
    Court of Appeals of Mississippi.
    November 7, 2017 Rehearing Denied April 24, 2018 Certiorari Denied August 16, 2018
    JAK MCGEE SMITH, ATTORNEY FOR APPELLANT
    JASON D. HERRING, MICHAEL SPENCER CHAPMAN, ATTORNEYS FOR APPELLEE
    BEFORE LEE, C.J., FAIR AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Michael Chadwick Smith (Mike) and Kimberly Marie Mull (Kim) married in 2005, and had two children. In 2011, Kim was granted a divorce from Mike on the ground of adultery, and the parties were awarded joint legal custody of the children. This appeal arises from certain provisions contained in the parties' divorce decree. We must decide whether the chancellor erred in (1) denying Mike's request for modification of the visitation-exchange location, (2) finding Mike in contempt of the divorce decree's alcohol provision, and (3) awarding Kim $425 in attorneys' fees. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mike and Kim were married in Kentucky in 2005, where they both worked for the Toyota automobile-manufacturing company. A plant later opened in Mississippi, and the parties relocated to Tupelo. In 2011, Kim sought a divorce on the ground that Mike had committed adultery-a fact that Mike admitted. Mike countered, seeking a divorce from Kim for habitual cruel and inhuman treatment. Finding Mike's claim without merit, the chancellor denied Mike relief, and granted Kim a divorce. The parties were given joint legal custody of their children, with Kim receiving physical custody and Mike receiving liberal rights of visitation.

¶ 3. In 2012, Kim and the children relocated near Atlanta, Georgia, which impacted Mike's visitation. As a result, the parties modified their visitation agreement to meet in Leeds, Alabama, a halfway point between Tupelo and Atlanta. Because Mike was often in Kentucky for either work or leisure, he requested that Kim meet him in Chattanooga, Tennessee, and the parties did so for a time. Eventually, however, problems arose with the visitation-exchange location, and the parties could not agree regarding exchanges when Mike was in Kentucky. Mike petitioned the chancery court to modify the exchange location and order Kim to meet him "at the most convenient location for the exchange of the minor children." Kim counterclaimed asserting that Mike was in contempt of the divorce decree after bringing the children to a private neighborhood cookout where others were consuming alcohol.

¶ 4. The alcohol provision at issue in the divorce judgment ordered: "The parties shall refrain from using alcohol ... in the presence of the children. Further, the parties shall not allow others, including family members, to conduct such activities in the presence of the minor children." Both parties agreed to this provision in an agreed temporary order, and neither appealed this specific provision in the final judgment following their divorce.

¶ 5. Following a hearing, the chancellor found that modification of the exchange point was unnecessary based upon the evidence presented. The chancellor further found that Mike had violated the alcohol provision of the divorce decree by having the children in the presence of others using alcohol when he knew beforehand that alcohol would be served. The chancellor awarded Kim attorneys' fees for the contempt complaint against Mike. In response, Mike filed a motion to alter or amend the judgment or for clarification of the chancellor's findings. He argued that the alcohol provision was vague and ambiguous-thus he could not have committed a willful violation resulting in the finding of civil contempt.

¶ 6. The chancellor found Mike's arguments unpersuasive and upheld her finding of contempt. Per Mike's request, however, the chancellor explained that her ruling comprehended only the use of alcohol at private social gatherings, and did not pertain to events in venues open to the general public. Mike now appeals, arguing that: (1) the chancellor erred in finding that Mike committed willful contempt because the alcohol provision was vague and ambiguous; (2) because Mike did not commit willful contempt, the resulting attorneys' fees are erroneous; and (3) the chancellor erred by declining to modify the exchange location of the parties when Mike is not at his home in Tupelo.

STANDARD OF REVIEW

¶ 7. "This Court's scope of review in domestic-relations cases is limited." Wilson v. Stewart , 171 So.3d 522, 526 (¶ 8) (Miss. Ct. App. 2014) (citation omitted). "We will not disturb a chancellor's judgment when supported by substantial evidence unless the chancellor abused [her] discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard." Id. (internal quotation marks and citation omitted). However, "when reviewing a chancellor's interpretation and application of the law, our standard of review is de novo." Wilson v. Wilson , 79 So.3d 551, 560 (¶ 37) (Miss. Ct. App. 2012).

DISCUSSION

I. Contempt and Attorneys' Fees

¶ 8. Mike appeals the chancellor's finding that he was in contempt of the divorce decree's alcohol provision. Specifically, he argues the language of the alcohol provision is vague and ambiguous. As a result, he also asserts that there was no basis for the chancellor to award Kim attorneys' fees.

A. Contempt

¶ 9. "Contempt matters are committed to the substantial discretion of the trial court[,] which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we." Riley v. Riley , 196 So.3d 1159, 1162 (¶ 9) (Miss. Ct. App. 2016) (quoting Williamson v. Williamson , 81 So.3d 262, 266 (¶ 11) (Miss. Ct. App. 2012) ). "This Court will not reverse a contempt citation where the [chancellor's] findings are supported by substantial credible evidence." Id. (quoting Witters v. Witters , 864 So.2d 999, 1004 (¶ 18) (Miss. Ct. App. 2004) ). "The purpose of civil contempt is to enforce or coerce obedience to the orders of the court." Showers v. Norwood , 914 So.2d 758, 761 (¶ 10) (Miss. Ct. App. 2005). "A citation is proper when 'the contemnor has willfully and deliberately ignored the order of the court.' " Id. (quoting Bredemeier v. Jackson , 689 So.2d 770, 777 (Miss. 1997) ). "However, if the judgment or decree giving rise to the contempt action is overly vague or nonspecific, a finding of contempt is improper." Id. at (¶ 12).

¶ 10. Again, in the parties' judgment of divorce, the chancellor ordered, "The parties shall refrain from using alcohol or having unrelated guests of the opposite sex in the presence of the children. Further, the parties shall not allow others, including family members, to conduct such activities in the presence of the minor children." Mike voluntarily agreed to this same provision in an agreed temporary order entered into by the parties. Additionally, Mike did not appeal this provision of the final judgment, or ask the chancellor to alter, amend, or clarify the provision, although he moved to alter or amend other provisions in the final judgment. Now Mike complains of the provision he voluntarily agreed to and declined to appeal.

¶ 11. Mike admitted that he took the children to a cookout at his friend's house where people were consuming alcohol in the presence of the minor children. He also admitted that Kim had complained to him about the cookout and warned him that this violated the court order-specifically the alcohol provision. Mike further admitted that there were, in fact, a couple of occasions where he took the children to cookouts where people were consuming alcohol. The chancellor, having witnessed the testimony of the parties, found that Mike had willfully violated the court's order by taking his children to a cookout where he knew ahead of time alcohol would be served, or continued at the event with the children after he was aware of the use of alcohol.

¶ 12. Mike argues that the language is so vague and ambiguous that, as worded, it would, for example, disallow him from taking his children to a restaurant where alcohol is consumed. The chancellor, however, noted that Mike's alcohol use was an issue in the divorce proceedings, and the alcohol-restrictive provision was intended "to address the special circumstances developed by the credible proof to serve the best interest of the children[.]" The terms Mike was under court order to abide by were clear and specific-nevertheless, he violated them. Mike's argument that the chancellor's clarification of the provision shows that it was vague or ambiguous is flawed and unpersuasive. The chancellor, at Mike's request, explained what the provision at issue comprehended as applied to the parties and facts in the instant case. Here, the chancellor's clarification of the provision was not due to its ambiguity, but rather, due to Mike's various proposed and hypothetical situations that did not lend themselves in any way to the facts underlying his contempt and ultimately this appeal. The substantial credible evidence shows that Mike willfully violated the court's order. Thus, the chancellor did not abuse her discretion by citing Mike for contempt.

B. Attorneys' Fees

¶ 13. "When a party is held in contempt for violating a valid judgment of the court, then attorneys' fees should be awarded to the party that has been forced to seek the court's enforcement of its own judgment." Bounds v. Bounds , 935 So.2d 407, 412 (¶ 18) (Miss. Ct. App. 2006). Mike argues that because the contempt citation was erroneous, it was improper for the chancellor to award Kim attorneys' fees for the contempt complaint. "However, since we affirm the chancellor's ruling of contempt ..., this issue is without merit." Doyle v. Doyle , 55 So.3d 1097, 1114 (¶ 62) (Miss. Ct. App. 2010).

II. Modification of Exchange Location

¶ 14. Mike also argues that the chancellor erred in failing to modify the exchange location from Leeds to Chattanooga when he is working or visiting in Kentucky. In doing so, Mike asserts the chancellor "gave no cogent reason" for her decision. We disagree.

¶ 15. This Court has articulated the relevant principles regarding modifications of visitation:

When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child. To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child. The chancellor has broad discretion to determine the specific times for visitation.

H.L.S. v. R.S.R. , 949 So.2d 794, 798 (¶ 9) (Miss. Ct. App. 2006) (citations and internal quotation marks omitted). With these principles in mind, we find the chancellor's decision to deny Mike's request for modification was supported by substantial credible evidence.

¶ 16. In his motion, Mike sought to have the exchange location modified to "the most convenient location for ... the minor children." He argued that when he is working or visiting in Kentucky, Chattanooga should be the court-ordered exchange location, as it is a slightly shorter distance (approximately 143 miles) from Kim's home than Leeds (approximately 152 miles). He further argued that the chancellor's failure to modify the exchange location was not in the best interests of the children because it requires approximately 150-160 additional miles per exchange when he is in Kentucky. He alternatively sought to have Kim meet him at a different location so long as it did not exceed the 152 miles that Kim would normally drive from her home. Kim testified that Leeds was "very systematic, very structured, it's what we're used to, we know the safe places, we know all that stuff." Kim also testified that, although Chattanooga may be a shorter overall distance from her home, it took longer to travel there than to Leeds.

¶ 17. To prevail, Mike needed to show that "the prior decree for reasonable visitation [was] not working and that a modification [was] in the best interest[s] of the child[ren]." Id. After hearing testimony from both parties, the chancellor found: "[M]odification of the place of exchange, while perhaps more convenient for [Mike] when he elects to travel out of state, would disturb the children's routines with which they have become comfortable and which complies with the prior decrees." The chancellor further stated: "I don't buy into [Mike's] argument ... that the court is inconveniencing the children, because, as their father, [Mike] ha[s] to make whatever decision works for [himself] in their best interest[s]." The chancellor ultimately held that Mike failed to show that visitation was not working to serve the best interests of the children. Upon review of the facts before us, we do not find the chancellor erred by declining to modify the visitation-exchange location. This issue is without merit.

¶ 18. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.


source: Caselaw Access Project

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

license: Public Domain

text:
    Vanessa Lynn PAGE a/k/a Vanessa L. Page a/k/a Vanessa Page, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01456-COA
    Court of Appeals of Mississippi.
    February 27, 2018 Rehearing Denied June 19, 2018 Certiorari Denied August 16, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH, Jackson
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. After a bench trial, Vanessa Lynn Page was convicted of felony driving under the influence (DUI). Page appeals. Finding no error, we affirm.

FACTS

¶ 2. On August 14, 2015, around 7:00 p.m., Page was arrested near her home in Cedar Lake trailer park in Biloxi, Mississippi, after a tipster identified by first and last name called 911 and reported Page. The tipster called 911 shortly after the tipster and Page left the same Alcoholics Anonymous (AA) meeting. The tipster expressed concern for Page's driving, and the tipster included specific details about Page's identity, vehicle, and destination. The tipster also told the dispatcher that someone had offered Page a ride home, but Page refused. The tipster described Page as a slightly belligerent and extremely intoxicated white woman who was approximately five-feet tall with her hair pulled back into a ponytail.

¶ 3. Biloxi Police Officer Robert McKeithen received the call from dispatch. McKeithen was familiar with the trailer park where Page lived.

¶ 4. When McKeithen approached the area of the trailer park, he immediately noticed the described car at an intersection in front of him. As he made a turn onto South Cedar Lake, he saw Page's grey Nissan Versa turn left into the trailer park. He later testified that the driver matched the description originally provided in the tip. McKeithen followed Page for about an eighth of a mile before pulling her over. Traveling at ten miles an hour, McKeithen trailed Page for roughly forty-five seconds before he stopped her. McKeithen testified he did not observe any traffic offenses while he followed Page. He made the stop based on the confirmation of information he received from dispatch and also for the safety of the children in the area.

¶ 5. Page pulled over immediately. When McKeithen approached, he noticed that Page smelled like alcohol, her eyes were glassy, and her speech was slurred. Once she got out of the car, Page had trouble keeping her balance and she was unsteady on her feet. McKeithen ran her driver's license, which came back as suspended because of a prior DUI from earlier that year.

¶ 6. Shortly after McKeithen stopped Page, Officer Jason Cummings, a DUI officer, arrived on the scene and took over to administer field sobriety tests. Cummings noticed the same odor, appearance, and slurred speech that McKeithen observed. When Cummings attempted to administer the field sobriety tests, Page failed the first test. Citing a pre-existing injury, Page was physically unable to complete the remainder of the tests. Based on these observations, Cummings arrested Page for driving with a suspended license. After he properly Mirandized her, he took her to the police station to continue the DUI investigation.

¶ 7. At the station, Page agreed to an Intoxilyzer test, but she was unable to provide a sufficient breath sample. Page then verbally consented to provide a blood sample. She was taken to Merit Health Hospital, where she gave written consent in the presence of an officer and the phlebotomist who proceeded to draw her blood.

¶ 8. The blood samples were sent to the crime lab for testing. The results indicated that Page had a blood-alcohol concentration of 0.19 percent. Thomas Graham, a crime lab analyst, conducted the test and prepared the report, which was then reviewed by the lab's technical reviewer, Maury Phillips. At trial, Phillips testified regarding Graham's findings. Phillips also described the standard process of analyzing blood samples, and the roles of a technical reviewer. Phillips explained that he personally reviewed Graham's work and all data generated by the testing. Once Phillips verified the results, he signed Graham's report. According to Phillips, the results would have been the same had he conducted the tests himself. The prosecution never entered the report into evidence.

¶ 9. However, the prosecution submitted evidence that Page had two previous DUI convictions within five years of the present case. The circuit court found Page guilty of felony DUI and sentenced her to five years in the custody of the Mississippi Department of Corrections, with three years suspended and two to serve, followed by three years of post-release supervision.

ANALYSIS

I. Whether there was reasonable suspicion for an investigatory stop.

¶ 10. "This Court applies a mixed standard of review when considering Fourth-Amendment issues." Cook v. State , 159 So.3d 534, 537 (¶ 6) (Miss. 2015) (citing Eaddy v. State , 63 So.3d 1209, 1212 (¶ 11) (Miss. 2011) ). "We apply de novo review when determining whether probable cause or reasonable suspicion exists." Id. "[D]e novo review is limited to the trial court's decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards." Id. (quoting Dies v. State , 926 So.2d 910, 917 (¶ 20) (Miss. 2006) ).

¶ 11. Police officers may conduct a brief investigatory stop when they have "reasonable suspicion, grounded in specific and articulable facts that allows the officers to conclude [that] the suspect is wanted in connection with criminal behavior." Eaddy , 63 So.3d at 1213 (¶ 14) (quoting Walker v. State , 881 So.2d 820, 826 (¶ 10) (Miss. 2004) ). "[A]n informant's tip may provide reasonable suspicion if [it is] accompanied by some indication of reliability; for example, reliability may be shown from the officer's independent investigation of the informant's information." Id. at (¶ 15) (citing Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ). "Reasonable suspicion is dependant upon both the content of the information possessed by the detaining officer as well as its degree of reliability." Floyd v. City of Crystal Springs , 749 So.2d 110, 118 (¶ 30) (Miss. 1999) (citing Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ). "Both factors-quantity and quality-are considered in the 'totality of the circumstances.' " Id.

¶ 12. The Mississippi Supreme Court has addressed reasonable suspicion in DUI cases in Floyd and Cook . In Floyd , 749 So. 2d at 112 (¶ 4), an off-duty police officer received a tip from someone who had provided the officer with credible information in the past. That information was relayed to an on-duty officer who located the car and pulled over the driver without observing a traffic violation. Id. at (¶ 5). The driver evidenced signs of intoxication, and he had an open liquor bottle. Id. at (¶¶ 6-7). Because of the accuracy of the informant's tip, the off-duty officer's familiarity with the informant, and the fact that there was no reason "to doubt the reliability or good faith of the informant," the supreme court found that the investigatory stop was justified. Id. at 119 (¶ 33).

¶ 13. Page argues that unlike the informant in Floyd , the tipster was essentially anonymous because the tipster had no prior working relationship with the Biloxi Police Department. However, there is no requirement that a tipster provide credible information in the past to be able to do so in the present. If that were the case, a first-time tipster could never establish credibility. Instead, as noted previously, the court takes a totality-of-the-circumstances approach when evaluating a tip and the tip's subsequent establishment of reasonable suspicion. Alabama , 496 U.S. at 330, 110 S.Ct. 2412.

¶ 14. In Cook , a driver was pulled over and arrested for DUI after a police officer followed the driver based on a tip from an unknown source who said Cook had been driving erratically. Cook , 159 So.3d at 536 (¶ 3). The arresting officer never observed that behavior before stopping the driver. Id. at 540 (¶ 16). Ultimately, the supreme court reversed the DUI conviction because the officers did not corroborate the criminal activity reported in the tip prior to stopping the driver. Id. at (¶ 18). An accurate description of the driver's vehicle and location was insufficient. Id. at (¶ 17).

¶ 15. Page relies on State v. Sailo , 910 S.W.2d 184, 188 (Tex. Ct. App. 1995), in which the Texas Court of Appeals noted that "a tip by an unnamed informant of undisclosed reliability standing alone will rarely establish the requisite level of suspicion necessary to justify investigative detention." However, that is not what occurred in the present case. Here the tipster identified herself by name and reported that she had personally witnessed Page's behavior during an AA meeting just prior to calling in the tip. The tipster also provided specific facts regarding Page's car, physical appearance, and destination. McKeithen stopped Page based on his confirmation of those facts. The content of the tip was extremely specific and easily and visibly verifiable by McKeithen before he stopped Page. The fact that the tipster had been participating in the same AA meeting as Page and personally witnessed Page's behavior, speaks to the tip's reliability regardless of whether the tipster had provided credible information to the police in the past. The "quantity and the quality" of the information provided in the tip, when considered alongside the totality of the circumstances, was enough to establish reasonable suspicion. See Floyd, 749 So.2d at 118 (¶ 30). Therefore, the investigatory stop did not violate Page's Fourth Amendment rights. We find no merit to this issue.

II. Whether the admission of the blood-alcohol testing violated Page's Confrontation Clause rights.

¶ 16. "The standard of review for admission of evidence is abuse of discretion." Debrow v. State , 972 So.2d 550, 552 (¶ 6) (Miss. 2007) (citing Smith v. State , 839 So.2d 489, 494 (¶ 6) (Miss. 2003) ).

"However, when a question of law is raised, the applicable standard of review is de novo." Id.

¶ 17. Criminal defendants have a constitutional right to confront witnesses against them. U.S. Const. amend. VI ; Miss. Const. art. 3, § 26. This applies to in-court testimony and out-of-court testimonial hearsay, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Rubenstein v. State, 941 So.2d 735, 754 (¶ 6) (Miss. 2006) (citing Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ).

¶ 18. Here, Graham performed the test that determined Page's 0.19 percent blood-alcohol concentration. At the time of Page's trial, Graham was no longer employed by the crime lab, and he did not live in Mississippi. The prosecution called Phillips to testify regarding the test results. Although Graham's lab report was not entered into evidence, Phillips testified regarding the results. Accepted by the trial court as an expert in forensic toxicology, Phillips explained that he did not perform the test on Page's blood sample. But he clarified that as the section chief for the toxicology and implied-consent sections of the Mississippi Forensics Lab, he was the technical reviewer of Graham's test.

¶ 19. Claiming that the trial court erred by allowing Phillips's testimony, Page relies heavily on the outcome of Melendez-Diaz v. Massachusetts , 557 U.S. 305, 308, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). There, the prosecution attempted to circumvent the Confrontation Clause requirement by submitting analysts' affidavits and "certificates of analysis" instead of live, in-court testimony. Id. The United States Supreme Court held that the Sixth Amendment does not permit prosecutors to submit forensic reports absent a defendant's opportunity to cross-examine the analysts who generated those reports. Id. at 329, 129 S.Ct. 2527.

¶ 20. Page also relies on Bullcoming v. New Mexico , 564 U.S. 647, 652, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). There, the Supreme Court rejected the use of an uninvolved surrogate witness to testify about forensic reports. Id. At trial, the prosecution sought to admit the crime laboratory's report, which showed that Bullcoming was intoxicated. Id. at 655, 131 S.Ct. 2705. The prosecution did not, however, call as a witness anyone involved with the blood-alcohol concentration test and its subsequently generated report. Id. at 653, 131 S.Ct. 2705. Instead, the prosecution attempted to call another analyst from the crime laboratory. Id. at 655, 131 S.Ct. 2705. That analyst "had neither observed nor reviewed" the work of the analyst who had tested Bullcoming's blood sample. Id. The Supreme Court ruled that allowing testimony by uninvolved parties about the forensic reports, as well as entering those reports into evidence without subjecting the analysts to cross-examination, would be reversible error. Id. at 657-58, 131 S.Ct. 2705.

¶ 21. Such is not the case here. Phillips was the technical reviewer of the lab report at issue, and he testified. The supreme court has held that a supervisor, reviewer, or other analyst may testify in lieu of the primary analyst where the surrogate witness was "actively involved in the production of the report and had intimate knowledge of the analyses even though [he] did not perform the tests first hand." McGowen v. State , 859 So.2d 320, 340 (¶ 68) (Miss. 2003). Additionally, "when the testifying witness is a court-accepted expert in the relevant field who participated in the analysis in some capacity, such as by performing procedural checks, then the testifying witness's testimony does not violate a defendant's Sixth Amendment rights." Id. at 339 (¶ 68).

¶ 22. Here, Phillips was a court-accepted expert in the field of forensic toxicology. He was actively involved in the production of the report, he had intimate knowledge of the tests that were performed and the process that was used to confirm the findings, and he reviewed Graham's work to ensure that the conclusions were correct and accurate. Phillips testified that when an analyst has completed the analysis, his work packet is submitted for review. Phillips explained that all reports issued by an analyst must be technically and administratively reviewed before they are released. As the technical and administrative reviewer in this case, Phillips verified that Graham followed protocol and used the proper scientific methods of toxicology. Moreover, Phillips stated that he received Graham's work packet "with all of the data" and examined it to ensure that the policies were followed and that Graham's conclusions were accurate and correct.

¶ 23. This case is consistent with Jenkins v. State , 102 So.3d 1063, 1069 (¶ 20) (Miss. 2012), and Grim v. State, 102 So.3d 1073, 1081 (¶ 23) (Miss. 2012), which both support the conclusion that Phillips's testimony did not violate Page's right of confrontation. In both cases, technical reviewers who had reviewed data generated by testing, verified the results, and signed the lab reports were called to testify as to their opinions on the forensic findings. Jenkins , 102 So.3d at 1064 (¶ 1) ; Grim , 102 So.3d at 1075 (¶ 1). Our supreme court held that the testimony of an analyst who did not perform the test did not infringe the defendant's right to confrontation if the testifying analyst had "intimate knowledge" of the analysis and if the testifying analyst was "actively involved in the production" of the report at issue. Jenkins, 102 So.3d at 1067, 1069 (¶¶ 13, 19) ; Grim, 102 So.3d at 1079, 1081 (¶¶ 16, 20) (quoting McGowen, 859 So.2d at 340 (¶ 13) ).

¶ 24. While Phillips did not conduct the test himself, he was "actively involved in the production of the report and had intimate knowledge of the analyses even though [he] did not perform the tests first hand." See McGowen, 859 So.2d at 340 (¶ 68). Additionally, Phillips testified that he would have come up with the same result had he done the testing himself. Therefore, we find that Phillips, as the technical and administrative reviewer, was qualified to testify as a surrogate witness in lieu of the primary analyst. We find no merit to this issue.

¶ 25. AFFIRMED .

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


author: CARLTON, J., FOR THE COURT:

text:
    James D. HAVARD and Wife, Margaret Havard, Appellants v. Tanelle SUMRALL and Akeso Group LLC, Appellees
    NO. 2016-CA-01585-COA CONSOLIDATED WITH NO. 2015-CA-00138-COA
    Court of Appeals of Mississippi.
    November 7, 2017 Rehearing Denied April 24, 2018 Certiorari Denied August 9, 2018
    S. WAYNE EASTERLINGGERALD ALAN DICKERSON, ATTORNEYS FOR APPELLANTS
    DOUGLAS G. MERCIER JESSICA LEIGH DILMORE, ATTORNEYS FOR APPELLEES
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. James and Margaret Havard filed a medical-malpractice complaint against Tanelle Sumrall. The Havards then amended their complaint to include Sumrall's employer, the Akeso Group. Sumrall moved to dismiss the Havards' claim against her for failure to prosecute. See M.R.C.P. 41(b). The Lamar County Circuit Court granted Sumrall's motion to dismiss, and the Havards appeal. In response, Sumrall asserts this Court lacks jurisdiction. Upon review, we find we possess jurisdiction over the matter. We further find no abuse of discretion in the circuit court's dismissal of the Havards' complaint against Sumrall for failure to prosecute. We therefore affirm the circuit court's judgment.

¶ 2. After addressing the relevant procedural history and facts of this litigation, we will resolve the question of jurisdiction. We will then address whether the circuit court abused its discretion by dismissing the Havards' complaint against Sumrall for failure to prosecute.

FACTS

¶ 3. The Havards previously attempted an unsuccessful appeal of the circuit court's dismissal of their claim against Sumrall, one of the defendants named in their medical-malpractice complaint. Havard v. Sumrall , 194 So.3d 188, 189 (¶ 1) (Miss. Ct. App. 2016). In our opinion dismissing the prior attempted appeal as interlocutory, we summarized the facts pertinent to Sumrall as follows:

On November 29, 2012, the Havards filed an initial complaint alleging medical negligence against Sumrall, a nurse anesthetist. The lawsuit stemmed from an alleged incident in November 2010 at a hospital in Hattiesburg, Mississippi, where James was scheduled for back surgery. Prior to the surgeon's entering the operating room, Sumrall injected James with the drug epinephrine, which was contra-indicated, under the mistaken impression that the syringe contained another drug for anesthesia. The syringe had actually been used in another procedure using epinephrine. As a result of the injection of epinephrine, James suffered an immediate heart attack in the operating room.
In January 2013, an amended complaint was filed adding Sumrall's employer, the Akeso Group, as a defendant. A summons was issued to its president, John S. Daniel, in Memphis, Tennessee, on January 7, 2013, and delivered to the company via certified mail on January 10. On January [14], 2013, Sumrall filed her answer to the amended complaint, claiming the injuries suffered by James were proximately caused by the acts or omissions of third parties . The docket indicates no activity on the case occurred from January 23, 2013, until September 30, 2014, when the circuit court sent a trial-calendar notice to the parties.
In October 2014, Sumrall filed a motion to dismiss for failure to prosecute under [ Rule] 41(b). On November 10, 2014, the circuit court sent the parties a notice presetting trial for July 2015. In December 2014, the Havards propounded discovery to Sumrall.
On January 5, 2015, the Havards responded to Sumrall's motion to dismiss. On this same day a hearing on the motion occurred. Lead counsel for the Havards explained that he had serious medical issues in April 2013, subsequent surgery, and a substantial rehabilitation period, which delayed activity in the case, but he did not feel Sumrall was prejudiced by this delay. Counsel for Sumrall argued that nearly two years had passed with no activity by the Havards-they could have filed a motion for additional time, but did nothing. At the hearing, no mention was made of the Akeso Group. The trial judge dismissed the claim against Sumrall for the Havards' failure to prosecute. However, the judgment did not dismiss the Havards' claims against the Akeso Group. The Havards appealed, claiming the dismissal against Sumrall was an abuse of discretion.

Id. at 189-90 (¶¶ 2-5) (internal footnotes omitted and emphasis added).

¶ 4. In dismissing the Havards' attempted appeal for lack of jurisdiction, we found the circuit court's dismissal of their claim against Sumrall constituted an interlocutory, rather than final, judgment. In so finding, we stated the following:

[T]he amended complaint named two defendants: Sumrall and the Akeso Group. The last appearance the Akeso Group made was on January 23, 2013, with the acknowledgment of service of the amended complaint. Even though it has never answered the complaint or appeared in the action, the Akeso Group is still a party to the action, and the Havards admit as much in their appellate reply brief. The trial court dismissed Sumrall from the action, but the order did not terminate the action against the Akeso Group, whose claims have not been adjudicated and thus are still pending at the trial-court level. Finally, the trial court's order was not certified as a final judgment under [Mississippi Rules of Civil Procedure] 54(b). Without the entry of a Rule 54(b) certificate, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action, is interlocutory. Thus, the order is interlocutory and not appealable.

Id. at 190-91 (¶ 7) (internal citations, quotations, and footnote omitted).

¶ 5. After the dismissal of their attempted appeal, the Havards successfully sought a default judgment against the Akeso Group, the remaining defendant in their medical-malpractice lawsuit. The circuit clerk made the entry of default against the Akeso Group on July 11, 2016. See M.R.C.P. 55(a). Following a hearing, the circuit court's judgment of default and damages against the Akeso Group was entered on October 31, 2016, and stamped as filed on November 1, 2016. See M.R.C.P. 55(b). The circuit court found the Akeso Group had failed to file an answer or enter an appearance after receiving proper service of process. Based on the hearing testimony and evidence, the circuit court held James had sustained $500,000 in non-economic damages, $250,000 in medical expenses, and $520,000 in lost income over eight years. The circuit court therefore awarded the Havards a $1,270,000 judgment against the Akeso Group.

¶ 6. On November 7, 2016, the Havards filed their second notice of appeal and again asserted that the circuit court erred in its January 2015 judgment when it dismissed their complaint against Sumrall for failure to prosecute.

DISCUSSION

I. Jurisdiction

¶ 7. The only issue the Havards raise on appeal is whether an abuse of discretion occurred when, by its January 2015 "Judgment and Order of Dismissal," the circuit court dismissed their lawsuit against Sumrall for failure to prosecute. In response, Sumrall contends this Court still lacks jurisdiction over the matter. According to Sumrall, the circuit court's January 2015 "Judgment and Order of Dismissal" fails to constitute a final judgment because the circuit court never certified it as such under Rule 54(b) and because the judgment failed to adjudicate the merits of the Havards' claims against both her and the Akeso Group.

¶ 8. As Sumrall asserts, the record shows the circuit court's November 1, 2016 judgment against the Akeso Group set forth no identification as a certified final judgment. See M.R.C.P. 54(b). However, we find that Sumrall's argument fails to address that the Havards only raise this appeal after the circuit court's judgment against the Akeso Group finally adjudicated all the remaining claims among the parties. Consequently, we find that Sumrall fails to address the provision in Mississippi Rule of Civil Procedure 58 that a judgment finally resolving all claims as to all parties constitutes a final judgment when entered pursuant to Mississippi Rule of Civil Procedure 79(a), even if not properly titled. See M.R.C.P. 58.

¶ 9. This Court previously determined that the circuit court's January 15, 2015 dismissal of the Havards' complaint against Sumrall constituted an interlocutory order. Havard , 194 So.3d at 190-91 (¶ 7). Thus, the crux of the issue before us is whether the November 1, 2016 judgment against the Akeso Group constituted a final judgment that resolved all the claims among the parties, and if so, whether the Havards timely asserted their appeal and claims of error following the November 1, 2016 judgment.

¶ 10. Jurisdiction constitutes a question of law that we review de novo. Weeks v. State , 139 So.3d 727, 729 (¶ 5) (Miss. Ct. App. 2013). "An appeal ... may be taken as a matter of right only after the trial court disposes of all the claims against all defendants." Calvert v. Griggs , 992 So.2d 627, 631 (¶ 10) (Miss. 2008). In general, only final judgments are appealable. Newson v. Newson , 138 So.3d 275, 277 (¶ 6) (Miss. Ct. App. 2014). "An important function of this final-judgment rule is to prevent piecemeal appeals." Hoffman v. Hoffman , 200 So.3d 465, 468 (¶ 9) (Miss. Ct. App. 2016) (citing R.A.S. Jr. v. S.S. , 66 So.3d 1257, 1261 (¶ 11) (Miss. Ct. App. 2011) ).

¶ 11. We acknowledge that, "[a]bsent a certification under Rule 54(b), any order in a multiple-party or multiple-claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory." Id. at (¶ 11) (quoting Newson , 138 So.3d at 277 (¶ 7) ). "Consequently, a judgment will only be considered final and appealable if it adjudicates the merits of the controversy which settles all the issues as to all the parties and requires no further action by the lower court." Rigdon v. Miss. Farm Bureau Fed'n , 22 So.3d 321, 324 (¶ 7) (Miss. Ct. App. 2009) (citation and internal quotation marks omitted). Even so, we recognize that Rule 58 provides:

Every judgment shall be set forth on a separate document which bears the title of "Judgment." However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in [ Rule] 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled.

¶ 12. Rule 79(a) further states:

The clerk shall keep a book known as the "general docket" of such form and style as is required by law and shall enter therein each civil action to which these rules are made applicable. The file number of each action shall be noted on each page of the docket whereon an entry of the action is made. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted in this general docket on the page assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. In the event a formal order is entered, the clerk shall insert the order in the file of the case.

¶ 13. Following this Court's dismissal of their first attempted appeal for lack of jurisdiction, the Havards obtained a default judgment against the only remaining defendant, the Akeso Group. The default judgment finally adjudicated the Havards' claims against the Akeso Group at the trial-court level. See Woodkrest Custom Homes Inc. v. Cooper , 108 So.3d 460, 465 (¶ 14) (Miss. Ct. App. 2013) ("When a judgment by default is entered, it is treated as a conclusive and final adjudication of the issues necessary to justify the relief awarded and is given the same effect as a judgment rendered after a trial on the merits." (quoting M.R.C.P. 55 cmt.)). After the circuit court signed its judgment awarding the Havards damages against the Akeso Group, the circuit clerk, in accordance with Rule 79(a), stamped the judgment as filed on November 1, 2016, and entered the judgment into the general docket on the same date. See M.R.C.P. 79(a). The Havards then filed their appeal with this Court on November 7, 2016, and raised as error the circuit court's January 2015 dismissal of their complaint against Sumrall. Thus, the Havards timely raised the instant appeal and claim of error within thirty days of entry of the judgment that finally resolved all claims among all the parties. Accordingly, we find we now possess jurisdiction to review the Havards' appeal.

II. Rule 41(b) Dismissal

¶ 14. Trial courts possess the authority to dismiss an action due to a plaintiff's failure to prosecute. M.R.C.P. 41(b). Even so, "[b]ecause the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly." Holder , 54 So.3d at 196 (¶ 16) (quoting Miss. Dep't of Human Servs. v. Guidry , 830 So.2d 628, 632 (¶ 13) (Miss. 2002) ). We review a Rule 41(b) dismissal for abuse of discretion, and we affirm when the following factors exist: "(1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by [an appellate court] that lesser sanctions would not serve the interests of justice. Additional 'aggravating factors' or actual prejudice may bolster the case for dismissal, but are not requirements." Id. at 196-97 (¶¶ 16, 18).

a. Clear Record of Delay

¶ 15. The Havards challenge the circuit court's finding that "a clear record of delay and dilatory conduct" warranted the dismissal of their claim against Sumrall. Mississippi caselaw holds that "[d]elay alone may suffice for a dismissal under Rule 41(b)" and that "[f]actors other than delay are not required." Id. at 198 (¶ 20) (citation omitted). Here, the circuit court relied on the passage of time to find delay, determining that the Havards failed to prosecute their action against Sumrall for almost two years.

¶ 16. In Holder , the supreme court affirmed a trial court's Rule 41(b) dismissal for failure to prosecute due to the plaintiffs' delay. Id. at 194 (¶ 1). In so doing, the supreme court acknowledged that no set time limit exists for the prosecution of an action once it has been filed and that a Rule 41(b) dismissal will be upheld when the record shows the plaintiff has been guilty of dilatory or contumacious conduct and that lesser sanctions would not suffice. Id. at 197 (¶ 17). Factors other than delay are not required to support a Rule 41(b) dismissal for lack of prosecution when a lesser sanction would not serve the interests of justice. Id. at 198 (¶ 20). The Holder court further explained that, where a clear record of delay exists, no showing of contumacious conduct is also required to support dismissal. Id. Moreover, actual prejudice is not required for dismissal for lack of prosecution, and prejudice may be presumed from an unreasonable delay. Id. at 199 (¶ 28).

¶ 17. In the present case, the Havards' lawsuit stemmed from a November 2010 incident at a Hattiesburg hospital. The Havards filed their initial complaint against Sumrall on November 29, 2012. On January 7, 2013, they filed an amended complaint that added Sumrall's employer, the Akeso Group, as a defendant. On January 14, 2013, Sumrall filed her answer and affirmative defenses to the amended complaint. On January 23, 2013, the Akeso Group filed a notice acknowledging receipt of service of the amended complaint. Then, for over a year and a half, no activity occurred in the case until the circuit court sent the parties a trial-calendar notice on September 30, 2014. The following month, on October 21, 2014, Sumrall filed her motion to dismiss the Havards' claim against her. On November 10, 2014, the circuit court sent the parties a notice of presetting for the trial.

¶ 18. On December 15, 2014, a notice of hearing was filed for Sumrall's motion to dismiss. Following this, on December 30, 2014, the Havards propounded discovery to Sumrall. This marked the Havards' first effort to prosecute their case against Sumrall since they filed their amended complaint almost two years earlier on January 7, 2013. On January 5, 2015, the same day as the hearing on Sumrall's motion to dismiss, the Havards filed their response to Sumrall's motion.

¶ 19. At the hearing on Sumrall's motion to dismiss, the Havards' attorney, Wayne Easterling, admitted that an almost two-year delay had occurred, but he contended that mitigating factors existed. Easterling explained that both he and his client had dealt with serious medical issues that had resulted in the delay. Easterling informed the circuit court that he had suffered his own medical condition in April 2013 and had then undergone surgery and rehabilitation, which prevented him from working on the case. Easterling further argued that Sumrall had suffered no prejudice from the delay. Sumrall, however, responded that she had suffered prejudice, and she argued that, instead of taking no action during the almost two-year delay, the Havards could have at least filed a request for additional time.

¶ 20. In the almost two-year period following the filing of their amended complaint, the Havards submitted no discovery requests to Sumrall and disclosed no expert witnesses to support their medical-malpractice claim. See M.R.C.P. 26. As the record reflects, the Havards failed to begin their discovery until well beyond the deadlines established by Rule 4.04(A) of the Uniform Rules of Circuit and County Court. In addition, the Havards' response to Sumrall's motion to dismiss was reactionary and not within the ten-day time limit set by Rule 4.03(2) of the Uniform Rules of Circuit and County Court. See also Holder , 54 So.3d at 197 (¶ 19) (discussing the plaintiffs' untimely discovery submissions and failure to timely file a response to the defendant's motion to dismiss).

¶ 21. Sumrall filed her motion to dismiss on October 21, 2014, and the Havards failed to respond until January 5, 2015, the day of the hearing on Sumrall's motion. In accordance with Rule 4.04(A), "[a]ll discovery must be completed within ninety days from service of an answer by the applicable defendant." Sumrall filed her answer and affirmative defenses to the amended complaint on January 8, 2013. The Havards propounded no discovery until December 30, 2014, almost two years after Sumrall answered the amended complaint and over two months after Sumrall filed her motion to dismiss for failure to prosecute.

¶ 22. The supreme court has acknowledged that motions to dismiss for failure to prosecute are considered on a case-by-case basis. Holder , 54 So.3d at 197 (¶ 17). The record here supports a finding of a clear record of delay since the Havards failed to begin their own discovery until approximately two years after Sumrall answered the amended complaint and since they only did so after Sumrall filed her motion to dismiss for failure to prosecute. Cf. Beck v. Sapet , 937 So.2d 945, 950 (¶¶ 12-13) (Miss. 2006) (finding that a party's repeated failure to comply with discovery requests warranted dismissal with prejudice). In determining whether the record reflects a clear record of delay or contumacious conduct, courts may consider whether a plaintiff's activity was in reaction to a defendant's motion to dismiss. Holder , 54 So.3d at 198 (¶ 22). As acknowledged, the record here clearly reflects the Havards began discovery as a reactionary measure to Sumrall filing her motion to dismiss and that they did so well beyond the deadlines set forth in Rule 4.04(A).

¶ 23. As in Holder , the record shows the Havards also failed to move for any continuances for additional time to conduct discovery. See Holder , 54 So.3d at 199 (¶ 24). "When there is a clear record of delay, no showing of contumacious conduct is necessary." Id. at (¶ 25). The record therefore shows no abuse of discretion by the circuit court's dismissal for failure to prosecute. See Regan v. S. Cent. Reg'l Med. Ctr. , 2016-CA-00696-SCT, 234 So.3d 1242, 1245-48, 2017 WL 3913937, at **3-5 (¶¶ 13-24) (Miss. Sept. 7, 2017) (mandate issued Sept. 28, 2017) (finding that patient's inactivity evidenced a clear record of delay and that the trial court could dismiss for failure to prosecute without issuing findings on lesser sanctions); Estate of Paulk v. Lott , 217 So.3d 747, 750 (¶ 8) (Miss. Ct. App. 2017) (finding no abuse of discretion in dismissal for failure to prosecute after a thirty-one-month delay by plaintiff following the filing of her complaint). For these reasons, we find the record supports the circuit court's conclusion that a clear record of delay and reactionary conduct existed in this case.

b. Lesser Sanctions

¶ 24. The Havards also contend the circuit court should have considered a lesser sanction than dismissal. However, our supreme court recently stated that "the absence of even a general express finding on lesser sanctions does not require reversal." Regan , 234 So.3d at 1246-47, 2017 WL 391397, at *4 (¶ 20) (citation and internal quotation marks omitted). The supreme court instead explained that, although an appellate court "may be less likely to affirm a Rule 41(b) dismissal if the record does not reflect that the trial court considered lesser sanctions, it is clear that the ultimate decision lies with [the appellate c]ourt." Id. (citation and internal quotation marks omitted). Furthermore, "[a] showing of delay or contumacious conduct is sufficient for a Rule 41(b) dismissal when a lesser sanction would not serve the best interests of justice." Holder , 54 So.3d at 198 (¶ 20). Based on the clear record of delay and reactionary conduct the Havards displayed in this case, we find no abuse of discretion in the circuit court's dismissal with prejudice since it served the best interests of justice. See id. at 197 (¶¶ 16, 18). We therefore find no abuse of discretion in the circuit court's dismissal of the Havards' claim against Sumrall for failure to prosecute. See id. at (¶ 16).

¶ 25. AFFIRMED.

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

      See Holder v. Orange Grove Med. Specialties P.A. , 54 So.3d 192, 196 (¶ 16) (Miss. 2010) (applying an abuse-of-discretion standard of review to a Rule 41(b) dismissal).

      The record reflects a copy of the Havards' notice of appeal from the January 2015 judgment of dismissal was mailed to the Akeso Group in accordance with the Mississippi Rules of Appellate Procedure.

      Sumrall also raises additional arguments relating to the default judgment the Havards obtained against the Akeso Group. However, because Sumrall was not a party to that litigation and filed no cross-appeal in the present matter, we decline to address her other assignments of error.

      See State ex rel. Hood v. Louisville Tire Ctr. Inc. , 204 So.3d 1250, 1254 (¶ 11) (Miss. 2016) (recognizing that the plaintiff "neither filed nor pursued anything for approximately three years"); Manning v. King's Daughters Med. Ctr. , 138 So.3d 109, 116 (¶ 21) (Miss. 2014) (finding the plaintiff "fail[ed] to take any action in her case for two years after filing suit").

      Effective July 1, 2017, Rule 4.04(A) was renumbered as Rule 4.03(A) of the newly renamed Uniform Civil Rules of Circuit and County Court.

      Rule 4.03(2) has been renumbered as Rule 4.02(2) of the Uniform Civil Rules of Circuit and County Court.


text:
    EX PARTE Richard Douglas REESE, Jr.
    1140640 (CR-13-1543)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


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    Supreme Court of Alabama.
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    DECISION WITHOUT PUBLISHED OPINION
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
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    DECISION WITHOUT PUBLISHED OPINION
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    Emily ELLIOTT v. John R. KINGSLEY, M.D., P.C.
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    Supreme Court of Alabama.
    April 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
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    Supreme Court of Alabama.
    June 16, 2017
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
    April 14, 2017
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text:
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    1151055
    Supreme Court of Alabama.
    May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
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text:
    MERRELL LAW FIRM, LLC v. Jennifer TOMBRELLO and Kimberly Tombrello
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    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
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text:
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    1150942
    Supreme Court of Alabama.
    April 14, 2017 Reh. denied June 9, 2017
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text:
    Tommy BROOKS, individually and as administrator of the estate of Rita Kay Brooks, deceased v. ALABAMA SALVAGE AUCTION CO. et al.
    1150843
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Stephen H. FOSTER v. Gary D. FOSTER and The Foster Family 1989 Trust
    1151137
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven Mark HAYDEN and Angela Rae Hayden v. William B. CASHION et al.
    1151274
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE CONTINENTAL MOTORS, INC.
    1151260
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
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text:
    EX PARTE Adrianne HARRIS
    1151303
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
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text:
    EX PARTE UNIVERSITY OF SOUTH ALABAMA d/b/a University of South Alabama Medical Center Hospital
    1151227 (2150026)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
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text:
    James L. HINES v. Lon PORCH et al.
    1151330
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    BARNETT FAMILY PROPERTIES, LLC v. POUNDERS & ASSOCIATES, INC., and Gregg Pounders
    1151327
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Imran M. KHAN
    1151350 (2150472 2160012)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Steven Mark HAYDEN v. COMMERCIAL LITIGATION DOCKET et al.
    1151308
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Suzanne BENNISON
    1151352 (CR-14-1035)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Charissa A. SMALLS and Eugene C. Smalls
    1160052 (2150308)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Laura PETERSON, individually and as personal representative of the Estate of David Peterson v. BIG COVE VOLUNTEER FIRE DEPARTMENT, INC.
    1160059
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Herman Young THOMAS v. ALABAMA STATE BAR
    1160003
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John MEEKS and Oretha Meeks v. Roderick MORROW and Merchants & Farmers Bank
    1160030
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    X-CHEM, LLC, and Kyle C. Buck v. Scott E. MESSER
    1160033
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Sara SMITH T, M.D., and Pediatric Clinic, L.L.C.
    1160177
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE James ROBINSON
    1160094 (CR-15-1108)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James ROBINSON
    1160107 (CR-15-1108)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Paul KENNAMER, Sr., and Dorothy Kennamer
    1160163 (2150753)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Johnathan Virgil DAVIS
    1160157 (CR-14-1675)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Chana HODGES
    1160161 (2150559)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Alice Lynn TAYLOR and Point One, LLC v. James R. HARPER, Jr.
    1160184
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    DOLGENCORP LLC v. Christy HERRING
    1160178
    Supreme Court of Alabama.
    May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE MONTGOMERY RADIOLOGY ASSOCIATES, P.A., and Bryan I. Johnston, M.D.
    1160190
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE EAST ALABAMA HEALTH CARE AUTHORITY d/b/a East Alabama Medical Center
    1160189
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Ella Elzie BANKS
    1160222
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
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    Supreme Court of Alabama.
    June 16, 2017
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text:
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    1160265
    Supreme Court of Alabama.
    June 9, 2017
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text:
    EX PARTE Reginald Lenoir HOLT
    1160256 (CR-15-0954)
    Supreme Court of Alabama.
    May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Writ of cert. quashed.


text:
    EX PARTE Anthony Antwon HARRIS
    1160286 (CR-15-1195)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Beatrice SMEDLEY v. UAB HIGHLANDS et al.
    1160329
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Sylvia W. HUGHES
    1160309 (2150740)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Curtis Wayne EDWARDS
    1160325 (2150720)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Billy C. BOWEN
    1160356 (CR-15-1304)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Tequan Sabre GRAHAM
    1160331 (CR-15-1326)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kamal Tauheed RUSSAW
    1160342 (CR-15-1251)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE D.S.
    1160408 (CR-15-1112)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Donald DEARDORFF
    1160390 (CR-12-1966)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Mark CAMERON
    1160391 (2150546)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jere AUSTILL III
    1160411 (2150783)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Carla LONGMIRE
    1160431 (2150759)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE David L. BEASON
    1160384 (CR-15-1281)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jason Michael SHARP
    1160459 (CR-15-0194)
    Supreme Court of Alabama.
    June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE ALABAMA STATE PERSONNEL DEPARTMENT et al.
    1160461 (2150854)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Monterious TYLER
    1160453 (CR-15-1492)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lee EAKINS
    1160447 (2160125)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE J.R.
    1160460 (2150688)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Charles Junior TAYLOR and Larry Douglas Taylor
    1160462 (2150817)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Albert BONHAM, Jr., and Marilyn Bonham, co-administrators ad litem of the estate of Albert Dewayne Bonham, deceased
    1160483 (2160041)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Destry Cord MCKINNEY
    1160466 (CR-15-1396)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ernest WALKER
    1160478 (CR-15-0858)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Clarence Alvin NORRIS
    1160475 (CR-15-0929)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jeremy Leshun WILLIAMS
    1160477 (CR-15-0494)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE B.J.S.
    1160485 (CR-15-1305)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.C.K.
    1160487 (2150943)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Donald BISHOP
    1160490 (CR-16-0069)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE John Roger WILSON, Jr.
    1160498 (2150994)
    Supreme Court of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Arlando Raeshun NICHOLS
    1160486 (CR-15-0515)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE William SULLIVAN
    1160497 (CR-16-0001)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Demetri MINNIEFIELD
    1160493 (CR-15-1239)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Romulus PETRINA
    1160525 (2150972)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Charles E. CONNERS
    1160535 (CR-16-0117)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Courtney HUNTER
    1160537 (CR-15-0754)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE M.F.
    1160511 (2150859)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE B.P.
    1160510 (2150676 2150710)
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Eve BURT v. Michael BURT et al.
    1160501
    Supreme Court of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE M.L.J., JR.
    1160542 (CR-15-1250)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Robert Thomas CONRAD
    1160560 (CR-15-1398)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Timothy Mark GRIFFIN
    1160545 (CR-15-0716)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ulises CHAVEZ
    1160568 (2160096)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Zachary Charles WILLIS
    1160564 (CR-15-1269)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Billy Vernon HENDERSON
    1160557 (CR-16-0146)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE L.F.
    1160580 (2150956)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE M.B.
    1160572 (2160011)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE M.B.
    1160571 (2160010)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE David Gaston PRICE
    1160573 (2160133)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Donnie HARPER
    1160577 (2150712)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jaquavious Akeem WEATHERS
    1160575 (CR-15-1265)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE L.F.
    1160581 (2150957)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE DeAngelo HOLLOWAY
    1160582 (CR-16-0068)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jermaine Leon YOUNG
    1160615 (CR-15-1462)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Girlis H. SERRATT
    1160601 (CR-16-0120)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Dmitri Lamar WASHINGTON
    1160607 (CR-16-0295)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Joseph Antonio QUATES
    1160635 (CR-15-0859)
    Supreme Court of Alabama.
    June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE F.E.B.
    1160628 (CR-15-1125)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jaron Antonio TOWNSEND
    1160616 (CR-16-0017)
    Supreme Court of Alabama.
    May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Walter Lee RHONE, Jr.
    1160634 (CR-15-1236)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Aubrey Bernard LAVENDER
    1160618 (CR-15-1288)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jonathan Lee DOUGLAS
    1160631 (CR-16-0098)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Joe REID
    1160651 (CR-15-0580)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Carlos Edward KENNEDY
    1160669 (CR-15-1092)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Daveon Lamarnce CATHEY
    1160670 (CR-16-0312)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE R.D.B.
    1160652 (CR-15-1479)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Wallace RIVERS
    1160658 (CR-16-0431)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Darrell Lee JACKSON
    1160636 (CR-16-0035)
    Supreme Court of Alabama.
    May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Timothy Andrew GAVIN
    1160677 (CR-15-1402)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Frank Everette ROWE
    1160681 (CR-15-1498)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Billy Eugene BROWNING
    1160684 (CR-15-1329)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jihad Abdur RAUF
    1160692 (CR-16-0535)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kenneth Winston SANDERS
    1160676 (CR-16-0136)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Christopher Columbus BYRD
    1160688 (CR-15-1309)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Zendarius Ziqae WHITE
    1160693 (CR-15-1493)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Brian Frederick LUCAS
    1160694 (CR-15-1204)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE A.S.
    1160713 (CR-16-0331)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Freddie Buford WALKER
    1160700 (CR-16-0037)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Chey Lindsey GARRIGAN
    1160695 (2150908)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Sue Donaldson DEAN
    1160714 (CR-16-0131)
    Supreme Court of Alabama.
    June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.