author: IRVING, J,

text:
    Sirnardo James MOFFETT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00175-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.

      Kate S. Eidt, attorney for appellant.
    Offiee of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J,

for the Court.

¶ 1. Sinardo James Moffett was convicted by a jury of capital murder and sentenced by the Hinds County Circuit Court as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved, Moffett appeals and asserts: (1) that the trial court erred in allowing his codefendant to testify when the State knew that the code-fendant would invoke his Fifth Amendment privilege against self-incrimination, (2) that he was denied effective assistance of counsel, (3) that the verdict was against the overwhelming weight of the evidence, and (4) that the cumulative effect of errors at trial warrants a new trial.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. During the early morning hours of July 21, 2003, officers of the Jackson Police Department found Germane Turner’s body in his sport utility vehicle (SUV) that was parked in Jayne Park in Jackson, Mississippi. It was later determined that Turner had died from a gunshot wound to the chest. On January 9, 2004, arrest warrants were obtained for Eric Robinson and Moffett. On April 6, 2004, Moffett and Robinson, who is Moffett’s brother-in-law, were indicted for Turner’s murder. Robinson entered into a plea agreement, but Moffett went to trial and was convicted of capital murder.

¶ 4. Latisha Williams, Turner’s live-in girlfriend, testified at trial about the last time that she spoke to Turner. Around 11:00 p.m. on July 20, 2003, Williams called Turner on his cellular telephone and asked him to bring home some milk. At approximately 3:00 a.m., Williams heard Turner’s vehicle pull into the driveway. Williams recalled that the vehicle ran for approximately ten to fifteen minutes before it pulled off. Williams stated that she thought that Turner had left to go to the store.

¶ 5. According to Williams, she waited a few minutes and then called Turner again on his cellular telephone. Turner did not answer. Williams then went to the kitchen, looked out of the window, and saw what appeared to be Turner’s clothing lying in the driveway. This discovery prompted Williams to take a closer look. Williams testified that she then went outside and confirmed that the clothing belonged to Turner. Williams called Turner again, and this time a man, who identified himself as Larry, answered. Williams testified that she asked the man where Turner was and that he told her that Turner had gone into a store. Williams called Turner’s telephone several more times, and the man who had identified himself as Larry, answered it each time. Williams continued calling Turner’s telephone, and eventually someone else answered. The person who answered this time informed Williams that Turner had gone into a store and had left his telephone in the car. Williams testified that she asked that person to tell Turner to call “Tasha.” Williams testified that she continued to call Turner’s telephone but could not get anyone else to answer. Williams then called the police.

¶ 6. Officer Abraham Gerome Thompson with the JPD, testified that he responded to a missing-persons call during the early morning hours of July 21, 2003. Williams gave Officer Thompson Turner’s clothing that she had found in the driveway. Officer Thompson then called Turner’s cellular telephone, but he did not get an answer. Thereafter, Williams and Officer Thompson went outside. Shortly thereafter, Williams’s aunt told her that a lady who claimed to have found Turner’s telephone had called.

¶ 7. Officer Thompson noticed what appeared to be blood in the driveway. He also noticed that a shrub that was adjacent to the driveway had been trampled. Upon closer examination, Officer Thompson saw that the shrub had blood on it as well. Officer Thompson surmised that an altercation had occurred. According to Officer Thompson, the clothing that was recovered from the scene had dirt stains on it. Officer Thompson also recovered a gold necklace in the grass near the shrub, and a bag that contained a leafy green substance. On cross-examination, Officer Thompson stated that he did not know whether any DNA analysis was conducted because he turned the clothing over to officers with the Mobile Crime Lab.

¶ 8. Investigator Jeffrey Scott arrived at Williams’s house to assist Officer Thompson. Investigator Scott testified that he observed small blood spatters in the driveway and that Officer Thompson informed him that clothing had been recovered. Investigator Scott stated that he then took over the investigation. According to Investigator Scott, it appeared that Turner had been involved in a struggle. Investigator Scott also recalled that the clothing had grass and bloodstains on it. Investigator Scott conducted a walk-through of the crime scene and observed a plastic bottle lying in the driveway next to a pool of blood. He collected and secured the bottle and samples of the blood. Investigator Scott also stated that he was training James Chambers, a crime scene investigator with the JPD, and that it was Chambers who had collected the evidence. Investigator Scott was then advised that a SUV had been discovered in the parking lot of Jayne Park, which is located behind the JPD’s training academy. Investigator Scott arrived at the park and noticed Turner’s body in the back seat of the SUV. Turner was wearing only boxer underwear and tennis shoes.

¶ 9. On cross-examination, Investigator Scott testified that he documented the evidence, which included three cellular telephones, that was collected from the parking lot where Turner’s SUV was found. He noted that two of the telephones were found inside of the vehicle, and one was found outside of the vehicle. He testified that the telephones were not dusted for fingerprints. The defense pointed out that Investigator Scott had stated in his report that thirty latent prints were collected from the SUV and sent to the JPD’s identification unit for further analysis. Investigator Scott testified that he did not know what had happened to the prints after they were collected. It was also brought out that Investigator Scott collected blood from a stain on the rear passenger door and that he did not know whether it had been tested for DNA. Additionally, a blood-stained ten-dollar bill was found on the floorboard of the back seat, and a .380 shell casing was found underneath the driver’s seat. The shell casing was sent to the lab for fingerprint analysis. Investigator Scott also clarified his earlier testimony and stated that Turner’s body was actually found in between the front and back seats, not solely in the back seat as he had testified on direct.

¶ 10. Mary Ridley, supervisor of the JPD’s communication department, was also present at Williams’s residence during the early morning hours of July 21, 2003. She testified that she instructed the officers to investigate what was considered at that point to be a missing-persons case. Thereafter, an all-points bulletin was issued for Turner’s SUV. Officers then received a report that a lady, who would later be identified as Labertha Mosby, had found a cellular telephone while she walked on the track at Jayne Park. When JPD officer Shaun Terwilliger went to look for Mosby, he saw a Chevrolet Suburban matching the description of Turner’s SUV parked in the parking lot of the police training academy. Officer Terwilliger found Mosby, and she turned the cellular telephone over to him.

¶ 11. Prior to going to Jayne Park, Investigator Chambers also assisted in the investigation at Williams’s residence. In large part, Investigator Chambers’s testimony mirrored Investigator Scott’s. Thus, we will briefly summarize Investigator Chambers’s testimony as it relates to details not covered by Investigator Scott.

¶ 12. Investigator Chambers stated that he then went to the park and saw Turner’s nearly naked body lying on the back seat of Turner’s SUV. He also observed that the radio had been ripped out of the vehicle. Investigator Chambers testified that a projectile was recovered from the SUV. Investigator Chambers also testified that he and another officer collected approximately thirty fingerprints from the vehicle; however, he stated that he did not know whether any of the prints were useable. On cross-examination, he stated that they packaged the cellular telephones and the latent prints that were recovered from the SUV. Investigator Chambers further stated that the telephones and prints were sent to the crime lab for testing.

¶ 13. The State also called Robinson as a witness; however, he pleaded the Fifth Amendment to essentially every question that he was asked. The judge informed Robinson that his refusal to testify constituted a violation of his plea agreement, and as a result, the court would be allowed to revisit his sentencing, which could result in his receiving an enhanced sentence. Thereafter, Moffett’s attorney moved for the court to instruct the jury that no inference was to be drawn from Robinson’s pleading the Fifth Amendment.

¶ 14. Detective James Roberts with the JPD, lead detective in this case, testified that he was dispatched to Jayne Park where he observed Turner’s body and concluded that Turner had been involved in a physical altercation prior to his death. Detective Roberts testified that he spoke with Williams and that she advised him to contact the Edwards Police Department. Detective Roberts went to the Edwards Police Department and spoke with Officer A.B. Roper who told him that Robinson may have been involved in Turner’s murder. Detective Roberts then spoke with Robinson; however, Robinson did not admit to any involvement in the murder. Also, during the course of his investigation, Detective Roberts learned that a man named Rodrick Barnes had been with Mof-fett on the night that Turner was murdered. Detective Roberts said that he then focused on Robinson and Moffett because Barnes informed him that Robinson and Moffett were present when the murder occurred. Detective Roberts testified that he interviewed Moffett and that Mof-fett did not indicate that he was involved in Turner’s murder in any way. Moffett, claimed that he had been at home on the night of the incident and that he had left only for a brief period of time to meet his mother at the Masonic Temple. Detective Roberts also stated that Moffett provided a written statement wherein he denied having any involvement in Turner’s death.

¶ 15. Detective Roberts also recalled that fingerprints were recovered from Turner’s vehicle and that they were sent to the identification unit where they were processed. Detective Roberts stated that the prints were run through an automatic fingerprint comparison computer. Detective Roberts also stated that he requested that the prints be manually compared with Robinson’s and Moffett’s prints. However, according to Melvin Jones, a JPD fingerprint analyst who testified for the defense, none of the prints were a match for either Moffett, Robinson, or Barnes.

¶ 16. Robin Mosley, a friend of Turner’s, also testified on behalf of the State. Mosley stated that on the night of the murder, he and Turner had gone to Club Cartier (the club) and that they stayed for approximately four hours. Mosley also testified that he and Turner then went to Mosley’s home and smoked marijuana. Mosley recalled that Turner left at approximately 2:30 a.m.

¶ 17. On cross-examination, the defense pointed out that Mosley’s trial testimony, as it related to the time that Turner left his home, differed slightly from his written statement that he had provided on the night of the incident. The defense noted that in his written statement Mosley stated that he and Turner stayed at the club until almost 3:00 a.m. and that he and Turner then went to Mosley’s house, where they remained for another thirty minutes until Turner received a call from Williams.

¶ 18. Barnes, who prior to trial identified Moffett in a lineup, also testified on behalf of the State. Barnes stated that he met Moffett and Robinson at the club on the night of Turner’s murder. He had gone there with a friend. According to Barnes, he left the club with Robinson and Moffett after Robinson asked him if he wanted to “ride with them and drink some beer.” Barnes testified that Turner drove past them in his SUV as they were riding around. Barnes stated that Robinson, the driver, turned his vehicle around and followed Turner. Barnes testified that they continued to follow Turner until Turner made it to Turner’s home, at which point Robinson and Moffett got out of their vehicle and attacked Turner, who had also exited his SUV. Barnes recalled that Robinson hit Turner a couple of times with a baseball bat and that Moffett hit him with a pistol. Barnes stated that Robinson and Moffett then removed Turner’s clothing, put Turner in the back of Turner’s SUV, and drove off with him. Robinson was driving and Moffett was sitting in the front seat. Barnes testified that he never saw Turner again, although Turner appeared to be alive when Robinson and Moffett drove off with him. At that point, Barnes ran away, but he came in contact with Robinson and Moffett again. When he encountered them, they were removing the speakers and a television from Turner’s SUV. Barnes stated that he was then forced, at gunpoint, to get into the car with Robinson and Moffett. They took Barnes to his home in Edwards after telling him that he would be killed if he told anyone what had transpired. Barnes stated that initially he did not tell anyone about what had happened because he feared for his life. However, Barnes eventually provided a written statement to the police on January 8, 2004.

¶ 19. Barnes was adamant that he saw Moffett, not Robinson, with a gun. Barnes testified that he did not witness the shooting and that Robinson never told him who had shot Turner. However, on cross-examination, Barnes testified that Robinson had admitted to him that Robinson was the shooter.

¶ 20. Dr. Steven Hayne, the last witness called by the State, testified that he performed an autopsy on Turner. Dr. Hayne recalled that Turner had several cuts, scrapes, scratches, and bruises on his face. Dr. Hayne also noted that Turner suffered multiple abrasions to his back, chest, arm, and leg. However, Dr. Hayne was clear that these injuries did not cause Turner’s death. Rather, he concluded that Turner died from a gunshot that struck him in the left chest cavity. Dr. Hayne testified that the shooter had been very close to Turner when the shot was fired, because there were unburnt fragments of gunpowder around the entrance wound. According to Dr. Hayne, the bullet entered Turner’s body on the left side of the chest wall and exited on the right side of the back.

¶ 21. The defense presented five witnesses: Melvin Jones, Kimela Moffett, Mary, Shatequa Harrison, and Joseph Wilson. Kimela testified that Moffett left them residence at approximately 8:00 p.m. on Sunday, July 20, 2003, to see if his mom needed a ride home from the Masonic Temple. Kimela stated that Moffett returned approximately thirty minutes later and that he remained there for the rest of the night. Kimela testified that she talked on the telephone for a while before going to bed and that Moffett had already fallen asleep by the time she went to bed. Kime-la stated that, to her knowledge, Moffett did not leave their home the rest of the night.

¶ 22. Harrison, Moffett’s sister, testified that on July 20, 2003, she went to Moffett’s home at approximately 5:00 p.m. Harrison stated that she left Moffett’s home at approximately 11:30 p.m. and at that time, Moffett was lying in his bed. However, on cross-examination, Harrison admitted that she did not know whether Moffett left after she returned to her home.

¶ 23. Wilson testified that he had been at the Masonic Temple on the evening of July 20, 2003, and that he saw Moffett come in, speak with a lady, and immediately turn around and leave. Wilson stated that he then engaged the lady in conversation and that she informed him that Mof-fett was looking for Moffett’s mother. Wilson further testified that the lady told him that she had informed Moffett that his mother was not there because she was under the impression that Moffett’s mother had left with Wilson. According to Wilson, he then went outside and tried to get Moffett’s attention, but Moffett did not see him.

¶ 24. At the conclusion of the evidence, the case was submitted to the jury, and Moffett was found guilty of capital murder and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Invocation of the Fifth Amendment by the Codefendant

¶ 25. Outside the presence of the jury, the State brought to the court’s attention that it had learned that Robinson had decided not to testify against Moffett, even though the previous week he had pleaded guilty to manslaughter and kidnapping in a plea agreement with the State that required him to testify fully and truthfully concerning Turner’s murder. The trial judge allowed the State to call Robinson to the stand as a hostile witness, and Robinson pleaded the Fifth Amendment to essentially every question that he was asked. The record reflects that Robinson even pleaded the Fifth Amendment when he was asked his name. He answered only one question, and that question was whether he had entered a guilty plea on September 26, 2006, in regard to the murder of Germane Turner. He answered that question in the affirmative, but he refused to even state what he pleaded guilty to. A review of the transcript does not reveal any questions that tended to implicate Moffett. On cross-examination, Robinson also refused to testify as to what his sentence was.

¶ 26. Moffett directs our attention to United States v. Beechum, 582 F.2d 898 (5th Cir.1978) and argues that the trial judge erred in allowing the State to call Robinson to the stand when the State knew that Robinson intended to plead the Fifth Amendment.

¶ 27. We find the facts in Beec-hum inapposite to our case. In Beechum, the defendant, Orange Jell Beechum, who was charged with unlawful possession of a valuable coin that he knew was stolen from the mail, took the witness stand and testified in his defense. While testifying on cross-examination, he repeatedly invoked the Fifth Amendment in an attempt to avoid answering the prosecutor’s questions about two credit cards, not belonging to him, that were found in his possession when he was arrested. Id. at 905. In finding that the Government was entitled to question Beechum about possession of the credit cards and that Beechum’s Fifth Amendment rights were not violated, the Beechum court, citing United States v. Ritz, 548 F.2d 510 (5th Cm.1977) and United States v. Maloney, 262 F.2d 535 (2d Cir.1959), observed that “[i]t is impermissi-bly prejudicial for the Government to attempt to influence the jury by calling a witness it knows will invoke the [Fjifth [Ajmendment.” Beechum, 582 F.2d at 908-09. Additionally, the Beechum court, citing United States v. Lacouture, 495 F.2d 1237 (5th Cir.1974), noted that “where the government witness indicates beforehand that he will invoke the privilege, the court may properly refuse to allow him to testify before the jury” but that the case before it was not such a case. Beechum, 582 F.2d at 909.

¶ 28. Here, Moffett did not testify. The person that invoked the Fifth Amendment, albeit without a legitimate basis, was a witness called by the State. The witness, Robinson, had waived his right against self-incrimination when he pleaded guilty the week prior to trial. Therefore, he could have been compelled to testify or held in contempt for not during so. Nevertheless, that did not happen. The State did not ask the court to compel Robinson to testify. Rather, the State asked permission to treat Robinson as a hostile witness. The court granted the request, and thereafter, the State asked several leading questions, to which Robinson pleaded the Fifth Amendment.

¶ 29. The purpose of prohibiting the State from calling a witness that the State knows will plead the Fifth Amendment is to prevent unfair prejudice from flowing inferentially to the defendant as a result of the witness’s refusal to answer the prosecutor’s questions. While the jury may presume what the answer would have been, the defendant is unable to cross-examine the witness on the presumed responses.

¶ 30. It is proper here to ask, preliminarily, whether the record supports the conclusion that the State intentionally sought an unfair advantage. We find nothing in the record to suggest that it did. After learning that Robinson was going to invoke the Fifth Amendment, the State made inquiry to the court concerning the proper procedure to follow. The court provided no guidance. While the court has no obligation to assist the State in the presentation of the State’s case, it does have an obligation to see that a defendant receives a fair trial. After the State received no guidance from the court, it asked permission to call Robinson as a hostile witness. It seems quite certain to us that the State knows that it cannot call as a hostile witness any witness who has a legitimate Fifth Amendment right not to testify. Therefore, the State’s asking permission to call Robinson as a hostile witness suggests that the State was simply befuddled about the situation that it found itself in as a result of Robinson’s sudden about-face, not that the State was seeking to gain an unfair advantage in its case against Moffett.

¶ 31. Since Robinson was improperly allowed to get away with not testifying, resulting presumably in the prejudicial inference discussed above, the question becomes did reversible error occur as a result of the process. We find that it did not. First, we note that Moffett’s attorney did not object to Robinson being called to the witness stand and being questioned in front of the jury. In fact Moffett’s attorney suggested that that was the proper procedure. Second, Moffett’s attorney cross-examined Robinson and attempted to elicit testimony beneficial to Moffett’s defense. For example, the record reflects the following exchange between Moffett’s attorney and Robinson:

Q. And in [the plea qualification] proceeding did you indicate that Mr. Moffett was not with you that night?
A. I plead the Fifth.

Third, we find that even in the absence of the prejudicial inference that may have been drawn by the jury from Robinson’s refusal to testify, there was other evidence that was sufficient to support the jury’s verdict. Barnes gave compelling and convincing evidence of Moffett’s guilt. He identified Moffett as a participant in a brutal attack on Turner which occurred just hours before Turner’s body was found with a bullet hole in the chest. Further, the body was found in Turner’s SUV which, according to Barnes, was the vehicle that Moffett and Robinson placed Turner in and drove off in after the vicious assault. The killing was the only thing that Barnes did not witness. However, he provided enough evidence for a reasonable jury to conclude that Moffett and Robinson were the killers.

¶ 32. This issue is without merit.

2. Ineffective Assistance of Counsel

¶33. Moffett argues that he received ineffective assistance of counsel because his trial attorney did not object to the State’s calling Robinson to the stand. We cannot conclude that his counsel’s action constituted ineffective assistance of counsel. It is clear that Moffett’s attorney thought that she might be able to elicit testimony from Robinson that would be helpful to Moffett, and she had good reason to think so. Robinson and Moffett are brother-in-laws. The brief exchange between Moffett’s counsel and Robinson that is quoted above supports the notion that Moffett’s counsel thought Robinson just might testify that Moffett was not with him at the time that Turner was murdered. This issue lacks merit.

3. Sufficiency of the Evidence

¶ 34. In this issue, Moffett argues that the evidence is insufficient to sustain his conviction because (1) no fingerprints or DNA evidence connected him to Turner’s SUV, (2) the fingerprints that were recovered were not generally compared with the fingerprints in the Federal Bureau of Investigation’s National Crime Information Center (NCIC), (3) the officers failed to investigate his alibi, and (4) the State’s main witness did not witness the shooting.

¶ 35. In order to succeed on a challenge to the sufficiency of the evidence supporting his conviction, Moffett must prove that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Smith v. State, 925 So.2d 825, 830(¶ 10) (Miss. 2006) (quoting Brown v. State, 907 So.2d 336, 339(¶ 8) (Miss.2005)). Challenges to the sufficiency of the evidence are viewed in the light most favorable to the State. Id. Therefore, we “must accept as true all evidence consistent with the defendant’s guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant.” Robinson v. State, 940 So.2d 235, 240(¶ 13) (Miss.2006) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). The trial court’s decision is reviewed under an abuse of discretion standard. Smith, 925 So.2d at 830(¶ 10) (citing Brown, 907 So.2d at 339(¶ 8)). “As long as ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ [then] the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 36. We find Moffett’s first argument — that the evidence is insufficient to sustain his conviction because none of the fingerprints that were recovered from Turner’s SUV are a match for his — unpersuasive. There could be any number of reasons why there was no fingerprint match, but the failure to find a match does not, in the least, prove that Moffett did not commit the murder. Barnes’s testimony alone provided an ample evidentiary basis in support of the verdict.

¶ 37. As for Moffett’s argument that his fingerprints were not submitted for general comparison to all persons in the NCIC, we fail to see how this omission would have helped Moffett since his prints did not match any of the prints that were found. Apparently, Moffett’s reasoning is that had a comparison been made, perhaps a match with some other person would have been found. Even so, that would not have exonerated Moffett based on the other evidence that was offered against him. Further, even if a match to some other person would have been found, that fact alone would not prove that that person committed the murder. We find no merit to this issue.

¶ 38. Moffett’s next argument, that the police did not investigate his alibi, is simply untrue. As previously stated, Detective Roberts interviewed Kimela, who testified that Moffett was at home with her when she retired for the night. Obviously, if the jury believed Kimela’s testimony, it also must have concluded that Moffett left their home at some point after she fell asleep. This issue lacks merit.

¶ 39. Moffett also argues that the State did not prove beyond a reasonable doubt that he was the shooter. Barnes provided a detailed account of what transpired on the night that Turner was murdered. Although Barnes conceded that he did not witness the shooting, we note that he testified that Robinson and Moffett: (1) inflicted a beating upon Turner prior to his death, (2) put Turner in the back of Turner’s SUV against his will, and (3) stole speakers and a television from Turner’s SUV. It is well settled that “when two or more persons act in concert, with a common design, in committing a crime of violence upon others, and a homicide committed by one of them is incident to the execution of the common design, both are criminally liable for the homicide.” Price v. State, 362 So.2d 204, 205 (Miss.1978) (citing McNeer v. State, 228 Miss. 308, 314, 87 So.2d 568, 570 (1956)). Therefore, even though Barnes did not identify Moffett as the shooter, that is of no consequence, as the jury obviously concluded that Robinson and Moffett acted in concert in committing a crime of violence which resulted in Turner’s death. There is no merit to this issue.

A Cumulative Error

¶ 40. Finally, Moffett contends that the cumulative effect of the alleged errors requires reversal. There is no merit to this issue, as we have found that the trial judge committed no error.

¶ 41. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Moffett frames this issue in terms of the verdict being against the overwhelming weight of the evidence but makes a sufficiency argument in the body of the discussion. A "weight argument" implicates the propriety of granting a new trial, while a sufficiency argument challenges the propriety of the ver-diet, as well as the State's right to retry the case. Since it is clear from Moffett’s brief that his argument addresses the sufficiency of the evidence rather than the weight, we recast this issue as one of sufficiency of the evidence and will address it as such.

      . Williams and Turner lived with Williams's aunt at the time that he was killed.

      . It is not clear whether Williams was referring to herself, as the record indicates that her first name is Latisha, not Tasha.

      .At the time of trial, Investigator Scott was sergeant over the JPD’s burglary unit; however, on July 21, 2003, he served as a crime scene investigator.

      . Although Officer Terwilliger testified that the SUV was found in the parking lot of the police training academy, all other witnesses testified that the SUV was found at Jayne Park. Officer Terwilliger's testimony — that the SUV was found in the parking lot of the police academy rather than at Jayne Park— may be explained by the fact that a building identified as property of the academy is located in Jayne Park.

      . The projectile was recovered after the SUV had been impounded.

      . The State also called Officer Roper, a patrolman, to the stand, and he testified about an incident that occurred in mid-June 2003. Officer Roper stated that he was on patrol at a convenience store when he encountered a bloodied, tattered Robinson. Officer Roper stated that Robinson told him that Turner had “jumped on him.” Further, Officer Roper testified that Robinson declined to file a report against Turner. According to Officer Roper, Robinson did not provide any details about the attack, but he mentioned that a baseball bat had been involved.

      . Turner, Moffett, Robinson, and Barnes are all originally from Edwards, Mississippi.

      . Detective Roberts also testified that he began to suspect that Robinson was involved in the murder because he had learned that Robinson and Turner had been involved in a “prior negative incident.” On cross-examination, Detective Roberts admitted that he also had learned from an interview with a man named Nick Thompson that Barnes also had been involved in a “prior negative incident.”

      . Moffett came voluntarily to the JPD after he learned that Detective Roberts had been asking about him.

      .Mary Moffett, Moffett's mother, testified on behalf of the defense and agreed that she had attended a function at the Masonic Temple on the night of July 20, 2003; however, she stated that she left with an individual who had also attended the function. Mary stated that she did not see Moffett that night.

      . Although mentioned throughout trial, the record before us does not contain any written or video-taped statements.

      . Barnes was already at the club when Robinson and Moffett arrived.

      . While it is not entirely clear in the record, it appears that the car was the same car that Barnes, Robinson, and Moffett had been riding in when Turner passed them.

      . Kimela is Moffett's wife. In the trial transcript, her name is spelled Camella. However, the record contains a letter written by her wherein she signs her name Kimela. Thus, we assume that Kimela's name is misspelled in the transcript and will refer to her as Kimela.

      . If an attempt had been made to compel Robinson's testimony, it should have occurred outside the presence of the jury. If Robinson still persisted in not testifying, he should not have been called to the witness stand. However, it would have been quite proper to send him to jail until he decided to testify because he had no Fifth Amendment right not to testify-


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Rodney FIELDER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-01614-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.

      Rodney Fielder (Pro Se), attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On February 11, 2003, in the Scott County Circuit Court, Rodney Fielder pleaded guilty to armed robbery. Fielder was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections. Fielder filed a motion for post-conviction relief alleging improper indictment, involuntary plea, and ineffective assistance of counsel. The trial court denied Fielder’s motion on April 28, 2006.

¶ 2. On December 27, 2006, Fielder filed a motion seeking permission to file an out-of-time appeal. Fielder also asserted that his claim constituted a motion for reconsideration because of newly discovered evidence, namely a transcript of his guilty plea. This motion was subsequently denied by the trial court.

¶ 3. On April 26, 2007, Fielder filed a motion entitled “Motion for Immediate Release from the Department of Corrections.” The trial court, treating the motion as one for post-conviction relief, denied Fielder’s motion. Fielder now appeals asserting the following assignments of error: (1) the trial court erred in denying his motion for post-conviction relief in light of newly discovered evidence; (2) the trial court erred in finding his guilty plea was voluntary; (3) he received ineffective assistance of counsel; and (4) the trial court failed to discuss the merits of his claims. Finding Fielder’s motion to be a successive writ, we affirm.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

¶ 5. Under Mississippi Code Annotated section 99-39-23(6) (Rev.2007), all successive motions for post-conviction relief are barred if the prisoner has filed a previous post-conviction-relief motion. Fielder’s first motion for post-conviction relief was found to be without merit and dismissed by the trial court. Fielder’s second motion for post-conviction relief, although not styled as such, was filed on April 26, 2007, and thus was a successive writ. Furthermore, Fielder has failed to point to an exception listed in section 99-39-23(6) to overcome the successive-writ bar. This issue is without merit.

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

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author:
BOLIN, Justice. LYONS, Justice
      MURDOCK, Justice

text:
    Ex parte ALABAMA STATE BAR. (In re Alabama State Bar v. Stuart Craig Dubose).
    1061743.
    Supreme Court of Alabama.
    March 14, 2008.
    Rehearing Denied Aug. 15, 2008.
    J. Anthony McLain, gen. counsel, and Jeremy W. Mclntire, asst. gen. counsel, Alabama State Bar, Montgomery, for petitioner.
    Clarence L. McDorman, Birmingham; and E. Farley Moody, Calera, for respondent.
   BOLIN, Justice.

The Alabama State Bar (“the State Bar”) petitions this Court for a writ of mandamus directing the Board of Disciplinary Appeals of the Alabama State Bar (“the Board of Appeals”) to enter an order reversing its decision finding that the Disciplinary Board of the Alabama State Bar (“the Disciplinary Board”) was divested of its jurisdiction to discipline Stuart Craig Dubose after Dubose assumed the bench as an incumbent circuit court judge for the First Judicial Circuit.

In April 2003 Cheryl Weaver asked Du-bose, then a practicing attorney, to prepare and draft a will for Joseph J. Sullivan. Sullivan, an elderly widower, lived in Washington County and had no immediate family living nearby. Weaver had been Sullivan’s caretaker for more than a decade, and when Sullivan became ill he eventually moved in with Weaver, who continued to care for him. Weaver informed Dubose that Sullivan was dying and that he wanted to leave his entire estate to her. Sullivan’s estate was substantial; it consisted of various bank accounts, stocks in various companies, and real property. Du-bose drafted a will naming Weaver as the executor and sole beneficiary of Sullivan’s estate. According to Dubose, Weaver also told him that she wanted him to be named in the will as the attorney for the estate. Dubose included in the will provisions naming himself as the successor personal representative as well as the attorney for the estate. Dubose stated that he explained to Weaver the proper procedure to effectuate the due execution of the will by Sullivan. He also prepared a certificate to be signed by Sullivan’s physician stating that Sullivan was competent and directed Weaver to have it signed. Dubose did not meet with or speak to Sullivan regarding the will or its provisions before preparing the will.

Sullivan signed the will on April 11, 2003; he died on April 29, 2003. On May 6, 2003, Weaver and Dubose, apparently in anticipation of an action by Sullivan’s heirs contesting the will, entered into a contingency contract whereby Dubose was employed to represent both Sullivan’s estate and Weaver. Sullivan’s estate and Weaver agreed to pay Dubose 33% from the proceeds of any settlement obtained before the filing of a will contest and 40% from the proceeds of any settlement obtained after the filing of any will contest. The agreement also provided that Sullivan’s estate and Weaver would pay the cost of any investigation that might be required.

On August 15, 2003, Sullivan’s heirs filed an action contesting his will. Dubose discovered during his representation of the estate and Weaver in the will contest that the notary public who notarized the physician’s signature was not actually present when Sullivan’s physician signed the certificate declaring that Sullivan was competent. Dubose deleted the notary’s signature from the certificate because he believed that if it was discovered that the notary did not actually witness the physician signing the certificate it would “blow the whole case out of the water.” However, Dubose subsequently deposed Sullivan’s physician and verified that the physician had signed the certificate and that Sullivan was indeed competent at that time. The parties to the will contest ultimately settled the action, and the case was dismissed on February 14, 2005.

On February 14, 2005, Weaver moved the court to appoint Dubose as a coexecutor of the estate. Weaver and Dubose also petitioned the court for the admission to probate of Sullivan’s will and for letters testamentary. The court granted the letters testamentary to Weaver and Dubose on that same date.

A dispute subsequently arose between Weaver and Dubose as to the fee due Dubose under the contingency contract. Dubose contended that he was entitled to 40% of the portion of the estate Sullivan received as part of the settlement, which was valued at approximately $2.5 million, including stock and land. Weaver contended that the stock and land were not to be included in calculating Dubose’s fee and that he was entitled to only 40% of the cash assets of her portion of the estate. On February 18, 2005, Dubose filed a claim against Weaver and the estate, seeking a fee for his services as personal representative and attorney for the estate. Despite having filed a claim against Weaver and the estate, Dubose continued to represent Weaver and to serve as coexecutor of the estate. Dubose’s claim was eventually settled by the parties, and the trial court, on October 2, 2006, entered an order naming Dubose as the sole executor of Sullivan’s estate and awarding him fees for his service as personal representative and as attorney for the estate in the amounts of $127,630 and $969,992, respectively. The trial court granted letters testamentary to Dubose on that same date.

Before Dubose and Weaver settled Du-bose’s claim, an anonymous complaint was filed with the State Bar on May 10, 2005, alleging that Dubose had violated the Alabama Rules of Professional Conduct during his representation of Weaver and Sullivan’s estate. On September 19, 2006, Dubose waived the filing of formal charges and entered a guilty plea to violating Rules 1.1, 1.4(b), 1.7(b), 1.8(c), 8.4(a), and 8.4(g), Alabama Rules of Professional Conduct. On October 4, 2006, the State Bar’s Disciplinary Commission accepted Du-bose’s guilty plea and entered an order suspending him from the practice of law for 45 days. On October 19, 2006, this Court entered an order denying the Disciplinary Commission’s request to suspend Dubose from the practice of law for 45 days, concluding that the requested discipline was insufficient. The next day, the State Bar filed formal charges against Du-bose alleging violations of Rules 1.1, 1.4(b), 1.5(a), 1.7(a), 1.7(b), 1.8(c), 3.4(a), 3.4(b), 8.4(a), 8.4(c), 8.4(d), and 8.4(g), Alabama Rules of Professional Conduct.

In November 2006, Dubose was elected circuit judge for the First Judicial Circuit. He was sworn into office on December 22, 2006, and officially assumed the office of circuit judge on January 15, 2007. On February 8, 2007, Dubose moved the Disciplinary Board for a summary judgment on the complaint against him arguing, among other things, that the State Bar was divested of its jurisdiction to discipline him once he became an incumbent circuit judge. On February 13, 2007, the State Bar filed a response to Dubose’s motion for a summary judgment, arguing that it retained jurisdiction over Dubose for alleged violations of the Rules of Professional Conduct occurring while he was engaged in the private practice of law before he assumed the office of circuit judge. On February 22, 2007, a panel of the Disciplinary Board entered an order denying Du-bose’s motion for a summary judgment.

On March 1, 2007, Dubose moved the Disciplinary Board to reconsider its denial of his summary-judgment motion. Following a hearing, the Disciplinary Board, on March 13, 2007, entered an order finding that the State Bar did have jurisdiction over Dubose to proceed with disciplinary proceedings for the alleged violations of the Rules of Professional Conduct occurring before Dubose assumed the office of circuit judge. The Disciplinary Board certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. On March 19, 2007, Dubose appealed the decision of the Disciplinary Board to the Board of Appeals.

The Board of Appeals issued a show-cause order on July 25, 2007, noting that an order denying a motion for a summary judgment is inherently “non-final” and cannot be made final by Rule 54(b) certification. See Continental Cas. Co. v. South-Trust Bank, N.A., 933 So.2d 337 (Ala. 2006). The Board of Appeals further con-eluded that it had the discretion to treat the appeal as a petition for a writ of mandamus. F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So.2d 366 (Ala.2006), and directed Dubose to answer why his appeal should not be treated as a petition for a writ of mandamus. After receiving responses from the parties, the Board of Appeals, on August 31, 2007, entered an order granting Dubose’s petition for the writ of mandamus and finding that the Disciplinary Board did not have jurisdiction to continue the disciplinary proceedings against Dubose once he became an incumbent circuit court judge. The Board of Appeals ordered that all disciplinary proceedings against Dubose be stayed until such time as he is no longer serving as judge. This petition followed.

Standard of Review

This Court has stated:

“ ‘[Mjandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Horton, 711 So.2d 979, 983 (Ala.1998). ‘Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002) (citing Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000)). One of the exceptions is the denial of a motion grounded on a claim of lack of personal jurisdiction, Ex parte Sekeres, 646 So.2d 640 (Ala.1994), Ex parte Paid Maclean Land Servs., 613 So.2d 1284 (Ala.1993), and Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala.1983).” Ex parte Alloy Wheels Int'l Ltd., 882 So.2d 819, 821-22 (Ala.2003). “Questions of law are reviewed de novo.” Ex parte Terry, 957 So.2d 455, 457 (Ala.2006). Therefore, a petition for a writ of mandamus is the proper vehicle by which to review the State Bar’s claim that the Board of Appeals erred in determining that it was divested of its jurisdiction to discipline Dubose once he assumed office as an incumbent circuit judge, and our review will be de novo.

Discussion

The issue whether the Disciplinary Board has jurisdiction to discipline an incumbent judge for an alleged violation of the Rules of Professional Conduct while the incumbent judge was engaged in the private practice of law presents a question of first impression.

The State Bar acknowledges that Rule 1(a)(2), Ala. R. Disc. P., divests it of the jurisdiction to discipline an incumbent judge for misconduct occurring while the judge is in office. Rule 1(a)(2) provides: “Incumbent Judges. Incumbent judges are not subject to the jurisdiction of the Disciplinary Commission or the Disciplinary Board of the Alabama State Bar.” Indeed, the discipline of an incumbent judge for conduct occurring while in office is provided for by Art. VI, §§ 156 and 157, Ala. Const, of 1901. See also Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So.2d 404 (1968) (holding that the State Bar cannot discipline a judge during the term in which the judge is holding office for misconduct performed in a judicial capacity and that a judge can be disciplined only according to the exclusive method provided for in the constitution). Leaving the discipline of judges to the procedures prescribed in the constitution is of “fundamental soundness, and is essential to the maintenance of an independent judiciary.” In re Alonzo, 284 Ala. 183, 188, 223 So.2d 585, 590 (1969).

However, the State Bar contends that it retains jurisdiction over all disciplinary matters involving any member of the State Bar for violations of the Alabama Rules of Professional Conduct that were committed while the member was engaged in the practice of law. See generally Rule 1(a)(1), Ala. R. Disc. P. It is a compelling argument, especially where, as here, the violations, the institution of disciplinary procedures, and a guilty plea by Dubose all occurred prior to Dubose’s taking office as a member of the judiciary. Implicit in the State Bar’s argument is the fact that even though Dubose may hold judicial office, he nevertheless remains on the roll of attorneys and must be a member of the bar in order to hold judicial office. See In re Alonzo, 284 Ala. at 189, 223 So.2d at 592 (“When one is admitted to the bar of this state and licensed to practice law by this court, he remains enrolled as an attorney from that time on unless his right to practice is destroyed by a judgment of suspension or disbarment. True, during the time an attorney may hold certain judicial offices, his right to practice is suspended. He yet remains on the roll of attorneys of this court, and must be a member of the bar to be qualified to hold certain judicial offices.”). Specifically, the State Bar argues that its jurisdiction over Dubose attached on October 20, 2006, with the filing by the State Bar of formal charges alleging violations of the Rules of Professional Conduct while Dubose was engaged in the private practice of law and that it was not subsequently divested of that jurisdiction when he assumed the office of circuit judge. Reluctantly, we disagree.

In In re Alonzo, siupra, Alonzo had been elected to the office of circuit judge at the November 1966 general election. After being elected judge but before being sworn into office, Alonzo devised a scheme to extort money from a particular party that would be appearing in his court. Once on the bench, Alonzo forced the extortion by entering unfavorable judgments against the party being extorted. Alonzo’s scheme was discovered, and the State Bar brought disciplinary action against him. However, before the State Bar took disciplinary action against Alonzo, a judgment of impeachment was rendered against him, and he was removed from office.

This Court considered the issue whether the State Bar could proceed with disciplinary action against Alonzo. In holding that the State Bar could proceed with disciplinary action against Alonzo, the Court noted that the important constitutional issue of maintaining an independent judiciary was not an impediment to the State Bar’s bringing disciplinary action against Alonzo because he had been impeached and removed from office. In re Alonzo, supra. Further, this Court stated:

“Where, as here, a member of the bar holding judicial office commits fraudulent, corrupt, and immoral acts by originating an extortion plan prior to entering upon a judgeship, and executes that plan after assuming the powers of the judgeship, by actions that cannot by any stretch of the imagination, rationally be deemed judicial or official acts, and where such judge has been removed from office by due and legal impeachment proceedings prior to disciplinary action by the Bar Association, it would indeed be sadly anomalous to conclude that the Bar could not cleanse itself of such unfit member on any theory that judicial robes protected such conduct.”

284 Ala. at 190, 223 So.2d at 592.

This Court’s holding in Alonzo is embodied in Rule 1(a)(3), Ala. R. Disc. P., which, we conclude, controls the present situation. Rule 1(a)(3) provides:

“Former Judges. Former judges who have resumed their status as lawyers are subject to the jurisdiction of the Supreme Court of Alabama and the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar for misconduct that occurred while they were judges, before they became judges, or after the resumption of the practice of law and that would have been grounds for lawyer discipline.”

(Emphasis added.) It is clear from the plain and unambiguous language of Rule 1(a)(3), Ala. R. Disc. P., that the State Bar does not currently have the jurisdiction to discipline Dubose so long as he is serving as an incumbent judge; however, at such time when Dubose becomes a “former judge” and is no longer serving in a judicial capacity, the State Bar would then regain jurisdiction to discipline Dubose for those acts of misconduct that occurred before he became a judge. Therefore, Du-bose is entitled to have the disciplinary proceedings initiated against him by the State Bar stayed until such time as he is no longer serving in his capacity as circuit judge.

Because the State Bar has failed to establish a clear legal right to the relief sought, we deny the petition for the writ of mandamus.

PETITION DENIED.

SEE, WOODALL, STUART, and PARKER, JJ., concur.

COBB, C.J., and LYONS, SMITH, and MURDOCK, JJ., dissent.

LYONS, Justice

(dissenting).

I respectfully dissent.

Sections 156 and 157 of the Alabama Constitution of 1901 create the Judicial Inquiry Commission and the Court of the Judiciary, respectively, and prescribe the procedures for hearing complaints involving charges that a judge has violated any of the Canons of Judicial Ethics, has been guilty of misconduct in office, has failed to perform his or her duties, or has become physically or mentally unable to perform his or her duties. All of these charges relate to conduct occurring while holding judicial office.

Section 158 of the Alabama Constitution of 1901 recognizes the applicability to all appellate court judges and justices of provisions for impeachment found at § 173, in addition to the authority of the Court of the Judiciary. The grounds for impeachment as set forth in § 173 consist of

“willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith .... ”

All of these charges relate to conduct occurring while holding office.

Nowhere in the Alabama Constitution is there any provision describing the sections dealing with removal of a judge from office for conduct occurring while holding office as exclusive of any other proceedings that could lead to removal from office based on a judge’s conduct before taking office. See Sullivan v. State ex rel. Attorney General of Alabama, 472 So.2d 970, 973 (Ala. 1985) (“Neither of these Amendments [creating the Judicial Inquiry Commission and the Court of the Judiciary] indicate they vest exclusive jurisdiction in these bodies to remove sitting judges from office.”).

Judge Dubose relies upon Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So.2d 404 (1968), as authority for the proposition that the State Bar can take no action that could indirectly lead to his removal from office. Judge Dubose quotes the following from Moore where, after the Moore Court restated the rule that once a judge is inducted into an office he was competent to hold when elected, he can be ousted or removed only in the manner prescribed by the Constitution, the Court stated:

“This, in substance, means that there can be no collateral approach to ousting a judge, for such prerogative is reserved to the State by the Constitution. In effect, the action of the [State] Bar amounts to an attempt to remove a judge by indirection rather than by constitutional means.”

282 Ala. at 565, 213 So.2d at 407. The next sentence puts the previous observation in proper context. The Moore Court stated:

“Here, the acts complained of were not by a judge in his alleged capacity as a lawyer, but were judicial actions. Erroneous or reprehensible as they may be, the conduct complained of was not conduct unbecoming an attorney at law enumerated by Rule 36, Section A of the Rules Governing Conduct of Attorneys in Alabama.”

282 Ala. at 567, 213 So.2d at 407 (emphasis added). Because Moore did not relate to conduct prior to taking judicial office and because the Constitution nowhere proscribes any proceedings against an incumbent judge for conduct prior to taking office that could result in his or her removal from office, it is inappropriate to limit the jurisdiction of the State Bar over incumbent judges in disregard of this crucial distinction.

The Board of Appeals relied upon Rule 1(a)(2), Alabama Rules of Disciplinary Procedure, which states:

“Incumbent Judges. Incumbent judges are not subject to the jurisdiction of the Disciplinary Commission or the Disciplinary Board of the Alabama State Bar.”

This rule should not be read as restricting the jurisdiction of the State Bar in a manner inconsistent with the Alabama Constitution and beyond the context of Moore, which address the conduct of judges after assuming office. Treating the rule as preventing the State Bar from disciplining a judge for conduct that occurred before taking office gives the judge an unwarranted immunity. I agree with the sound analysis of the Supreme Court of Missouri in In re Mills, 539 S.W.2d 447, 449-50 (Mo. 1976), where, after acknowledging contrary authority and rejecting it as unpersuasive, the court stated:

“Here, we are presented with an action to discipline a person, now serving as a judge, for misconduct committed while he was a lawyer and before he became a judge. Does his position on the bench render him immune to discipline for violation of the Code of Professional Responsibility applicable to all persons licensed to practice law in this state? Respondent argues that since he may not practice law while a judge, he may not be disciplined while a judge for misconduct committed while a lawyer. Although he may not practice law while a judge, he still holds a license to practice law (a qualification he must have to hold the office of judge), he is still a lawyer, and if he has violated the Code of Professional Responsibility he is, as an officer of this court, amenable to discipline even though it result directly in cancellation of his license and, thereby, lead indirectly to his removal from office. He may not take refuge in a judicial office from, discipline for prior misconduct, the effect of which would be removal of one of his qualifications for occupying the refuge. To permit the use of a judicial office as such a sanctuary ivould be a travesty upon justice."

(Emphasis added.)

The main opinion relies upon Rule 1(a)(3), Alabama Rules of Disciplinary Procedure, which provides:

“Former Judges. Former judges who have resumed them status as lawyers are subject to the jurisdiction of the Supreme Court of Alabama and the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar for misconduct that occurred while they were judges, before they became judges, or after the resumption of the practice of law and that would have been grounds for lawyer discipline.”

This rule dealing with former judges, a circumstance not here presented, merely codifies the holding of this Court in In re Alonzo, 284 Ala. 183, 223 So.2d 585 (1969), in which we rejected a former judge’s plea of immunity from State Bar disciplinary proceedings. In Alonzo, we observed:

“When one is admitted to the bar of this state and licensed to practice law by this court, he remains enrolled as an attorney from that time on unless his right to practice is destroyed by a judgment of suspension or disbarment. True, during the time an attorney may hold certain judicial offices, his right to practice is suspended. He yet remains on the roll of attorneys of this court, and must be a member of the bar to be qualified to hold certain judicial offices.”

284 Ala. at 189, 223 So.2d at 592. Rejecting the plea of immunity, the Alonzo Court held:

“Where, as here, a member of the bar holding judicial office commits fraudulent, corrupt, and immoral acts by originating an extortion plan prior to entering upon a judgeship, and executes that plan after assuming the powers of the judgeship, by actions that cannot by any stretch of the imagination, rationally be deemed judicial or official acts, and where such judge has been removed from office by due and legal impeachment proceedings prior to disciplinary action by the Bar Association, it would indeed be sadly anomalous to conclude that the Bar could not cleanse itself of such unfit member on any theory that judicial robes protected such conduct.”

284 Ala. at 190, 223 So.2d at 592. The main opinion expands Rule 1(a)(3) beyond its field of applicability and, in so doing, ignores the crucial distinction between conduct occurring before a lawyer enters upon judicial office, over which the Bar has authority, and conduct occurring after the lawyer becomes a judge, over which the Bar has no jurisdiction.

A majority of this Court disagrees with my interpretation of the State Bar’s authority, and I urge the immediate amendment of Rule 1 of the Alabama Rules of Disciplinary Procedure to protect the public from judges who were unethical lawyers and relieve this Court of further embarrassment from the absurd consequences of its own rules.

COBB, C.J., and SMITH and MURDOCK, JJ., concur.

MURDOCK, Justice

(dissenting).

I join Justice Lyons’s dissenting opinion. I would add the following:

The fact that it is the State Bar that would enforce the Rules of Professional Conduct and possibly perform the disciplinary act of removing Dubose from the roll of licensed attorneys for misconduct committed by him while he was an attorney and before he took judicial office does not mean that Dubose would be removed from his judicial office in a manner contrary to the Alabama Constitution. To say that the State Bar may remove Dubose from the roll of licensed attorneys is not to say that it can take the further step of acting upon that development and ousting Dubose from judicial office. Clearly, the authority to do so lies elsewhere.

Authority and responsibility for addressing violations of the Rules of Professional Conduct by attorneys while engaged in the practice of law, however, is in the State Bar. The Judicial Inquiry Commission and the Court of the Judiciary have no such authority. I am confident that this Court, in promulgating the Rules of Professional Conduct and the Rules of Disciplinary Procedure, did not intend for an attorney to be able to postpone or even avoid altogether any real consequence for his violation of the former because he succeeds in being appointed or elected to a judgeship in the interval between his commission of an offense and disciplinary action by the State Bar. Cf. Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001)(“ ‘In deciding between alternative meanings ..., we will not only consider the results that flow from assigning one meaning over another, but will also presume that the legislature intended a rational result, one that advances the legislative purpose in adopting the legislation, that is “workable and fair,” and that is consistent with related statutory provisions.’ John Deere Co. v. Gamble, 523 So.2d 95, 100 (Ala.1988) (citations omitted).”); Karrh v. Board of Control of Employees’ Ret. Sys. of Alabama, 679 So.2d 669, 671 (Ala.1996) (to similar effect); League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So.2d 167, 169 (1974) (“Where there is doubt as to the legislative intent in a statute, weight will be given to the practical effect which a proposed construction will have.” (citations omitted)).

      . At some point that is not entirely clear from the record before this Court, the matter of Sullivan's estate was transferred from the Washington Circuit Court to the Mobile Circuit Court.

      . Section 146, Ala. Const, of 1901 (Off.Re-comp.), provides that ''[¡Judges of the supreme court, courts of appeals, circuit court, and district court shall be licensed to practice law in this state ...."

      . The Rules Governing Conduct of Attorneys in Alabama were superseded by the Code of Professional Responsibility on October 1, 1974, which in turn was superseded by the Rules of Professional Conduct on January 1, 1991.


author: LYONS, Justice. COBB, Chief Justice

text:
    CITY OF HUNTSVILLE v. STOVE HOUSE 5, INC.
    1070353.
    Supreme Court of Alabama.
    May 30, 2008.
    Rehearing Denied Aug. 15, 2008.

      Michael L. Fees, C. Gregory Burgess, and Nori D. Horton of Fees & Burgess, P.C., Huntsville, for appellant.
    Gary P. Wolfe of Wolfe, Jones, Boswell, Wolfe, Hancock & Daniel, L.L.C., Huntsville, for appellee.
    Kenneth Smith, gen. counsel, Alabama League of Municipalities, Montgomery, amicus curiae Alabama League of Municipalities, in support of the appellant.
   LYONS, Justice.

The City of Huntsville (“Huntsville”), the plaintiff in a declaratory-judgment action, appeals from a summary judgment in favor of Stove House 5, Inc. (“Stove House”). We affirm.

I. Facts and Procedural History

Huntsville experienced significant economic growth and geographic expansion in the 1950s. In 1956 the Alabama Legislature passed Act No. 86, the stated purpose of which was “[t]o alter, extend, re-arrange, and re-define the boundaries and corporate limits of the City of Huntsville, annexing certain territory to the city, and making provision for the assessment and collection of municipal taxes.” Act No. 86, Ala. Acts 1956 (Second Special Session). This act annexed approximately 14,000 acres into Huntsville’s corporate limits, but also expressly excluded six tracts of land where industries had originally located outside the corporate limits.

These six tracts of unincorporated land became known as “tax islands” because they are now surrounded by land that is within Huntsville’s corporate limits. Although no tax revenue for Huntsville is generated from the tax islands because the land is situated outside Huntsville’s corporate limits, Huntsville has provided fire and police protection and sanitary sewer service to the tax islands since 1956. Stove House asserts that in 1956 Huntsville and the owners of land situated on the tax islands agreed that the tax islands would receive city services in exchange for the owners not opposing the passage of Act No. 86.

From 1956 until 1991, the tax islands were outside the corporate limits of Huntsville, but within the police jurisdiction of Huntsville pursuant to § ll-40-10(a), Ala. Code 1975 (“The police jurisdiction in cities having 6,000 or more inhabitants shall cover all adjoining territory within three miles of the corporate limits .... ”). In 1991 voters ratified Amendment No. 581 to the Alabama Constitution of 1901 (now included in Local Amendments, Madison County § 9 (Off.Reeomp.)), which effectively excluded the tax islands from the police jurisdiction of Huntsville. Amendment No. 531 provides: “In Madison county, no police jurisdiction nor any planning or zoning regulation of a municipality located wholly or partially within Madison county shall extend beyond the corporate limits of the municipality.”

On January 27, 2004, Huntsville sued the owners of land situated on the tax islands known as Martin Stove, Lincoln Mill, Lowe Mill, and Merrimack Mill (“the landowners”), seeking a judgment declaring that Huntsville has no duty under Alabama law to continue providing city services, namely fire and police protection and sanitary sewer services, to these landowners. Huntsville further sought a declaration that because, it says, it has no duty to provide such city services to the landowners, it could lawfully cease providing such services to the landowners. Huntsville named the following individuals and entities as defendants: Reliance Agents, Inc.; John H. Ebaugh; Marguerite W. Ebaugh; Robin Ebaugh; Lowe Mill Properties, LLC; Storage Equities; PS Partners VI, Ltd.; and Stove House.

Huntsville voluntary dismissed the action as it related to Storage Equities and PS Partners VI, Ltd., after Huntsville annexed land on the tax island known as Merrimack Mill. Huntsville and the Ebaughs jointly moved in the trial court for the entry of a consent judgment evidencing their settlement, which provided, in part, that Huntsville would annex land on the tax island known as Lincoln Mill. The trial court granted the motion and entered the consent judgment. Huntsville and Lowe Mill Properties jointly stipulated to the dismissal of the action as it related to Lowe Mill Properties, and the trial court dismissed the action as to Lowe Mill Properties without prejudice. Reliance Agents, Inc., and Stove House were the remaining defendants.

Stove House and Huntsville each moved for a summary judgment. Stove House asserted two alternative bases for its summary-judgment motion. Stove House first contended that the doctrine of laches bars Huntsville’s declaratory-judgment action because, it argued, Huntsville’s lengthy delay in filing the action has prejudiced it. Stove House specifically argued that because more than 50 years had passed since Huntsville agreed to provide city services to the landowners it was impossible to identify witnesses who had knowledge of the creation of the tax islands in 1956 and of any agreements between Huntsville and the landowners.

As an alternative basis for summary judgment, Stove House contended that Huntsville had agreed in 1956 to provide city services to the tax islands and that that agreement still exists. Stove House asserted that Huntsville had admitted the existence of an agreement between Huntsville and the landowners and that Huntsville’s course of performance over the last 50 years evidences its intent to provide city services to the landowners. Stove House then stated, in its brief in support of its motion for a summary judgment:

“To further bolster this contract, the law of Alabama has established that ‘a municipal corporation may be held liable on an implied contract ’ whether implied from corporate acts or implied by law, especially ‘to prevent the municipality from enriching itself by accepting and retaining benefits without paying just compensation therefor.’ Bethune v. City of Mountain Brook, [293 Ala. 89,] 300 So.2d 350 (Ala.1974), also citing Greeson Mfg. Co. v. County Bd. of Ed., [217 Ala. 565,] 117 So. 163 (Ala.1928)[.] [Huntsville] was greatly enriched by annexation of 21½ square miles without vote of those affected. The benefits to [Huntsville] continue to this day, as does [its] obligation under the Agreement.”

(Emphasis added.)

In its brief in opposition to Stove House’s summary-judgment motion, Huntsville contended that all Stove House’s arguments “fall flat” because, it said, there is no formal contract between Huntsville and the landowners. Huntsville contended that controlling caselaw plainly states that a municipality has no duty to provide municipal services outside its corporate boundaries in the absence of a formal contract. See City of Attalla v. Dean Sausage, Inc., 889 So.2d 559 (Ala.Civ.App. 2003). Huntsville further noted that § 11-47-5, Ala.Code 1975, provides that “[c]on-traets entered into by a municipality shall be in wilting” and that there is no evidence indicating that a written contract between Huntsville and the landowners exists. Similarly, in its summary-judgment motion Huntsville argued that it lacks any duty under Alabama law to continue providing city services to the tax islands and that, therefore, Huntsville can lawfully cease providing city services to the tax islands.

The trial court denied Huntsville’s motion for a summary judgment, granted Stove House’s motion for a summary judgment, and entered a summary judgment in favor of Stove House. The trial court in its order did not provide any rationale for its decision. Huntsville then filed a motion to amend, alter, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P., and a motion to strike certain evidentiary material submitted by Stove House in opposition to Huntsville’s motion for a summary judgment. The trial court denied both motions.

Huntsville and Reliance Agents, Inc., then jointly stipulated to the dismissal of Huntsville’s claims against Reliance Agents, Inc. The trial court dismissed the action as it related to Reliance Agents without prejudice. Huntsville then appealed to this Court. Stove House is the only remaining defendant and the only appellee.

II. Standard of Review

The standard by which this Court will review a ruling on a motion for summary judgment is well established:

“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the
trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21 — 12(d)[,] Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).’ ”

Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).

III. Analysis

Huntsville argues that the trial court improperly entered a summary judgment for Stove House because, it contends, settled Alabama law provides that when a municipality does not collect taxes from the owners of property outside the municipality’s corporate limits, the municipality is not required to provide city services to these owners. Huntsville relies heavily on the Court of Civil Appeals’ holding in Dean Sausage, that “any municipal services being provided in a police jurisdiction without a formal contract or agreement ‘ “may be prospectively altered in scope or terminated, after appropriate prior public notice.” ’ ” 889 So.2d at 570 (quoting City of Prattville v. Joyner, 698 So.2d 122, 125 (Ala.1997) (“ Joyner ”), quoting in turn the amicus brief of the attorney general) (emphasis added). Simply, Huntsville contends that it has no duty to provide city services to nonresident landowners such as Stove House because, it says, there is no evidence indicating that Huntsville agreed, pursuant to a formal contract, to provide these services.

Huntsville further contends that absent a formal contract between it and the landowners, neither equitable estoppel nor any other equitable principles prevent it from terminating city services to the tax islands. First, Huntsville notes that this Court has repeatedly held that “ ‘[e]quitable estoppel is to be applied against a governmentality only with extreme caution or under exceptional circumstances.’ ” Joyner, 698 So.2d at 126 (quoting State Highway Dep’t v. Headrick Outdoor Adver., Inc., 594 So.2d 1202, 1204 (Ala.1992)). Huntsville further notes that in Dean Sausage the Court of Civil Appeals construed the holding in Joyner to be based on the rationale that “residents in a municipal police jurisdiction acquire no vested interest or entitlement to the continued provision of municipal services by reliance or estoppel.” 889 So.2d at 570. In accordance with Joyner and Dean Sausage, Huntsville contends that it is not estopped from terminating city services to the landowners because, as nonresidents of Huntsville, the landowners do not have a vested interest in the provision of the city seivices.

Huntsville also argues that the doctrine of laches is inapplicable to this case because, it says, Stove House cannot show that it was disadvantaged, harmed, or prejudiced by the passage of time. Huntsville relies on Touchstone v. Peterson, 443 So.2d 1219, 1226 (Ala.1983), in which this Court stated:

“To be affected by laches, the delay must have been with notice of the existence of the right, resulting in disadvantage, harm, or prejudice to another, or have operated to bring about changes in conditions and circumstances so that there can no longer be a safe determination of the controversy.”

Huntsville further contends that the doctrine of laches is irrelevant because, it says, there is no evidence indicating that a formal contract between Huntsville and the landowners exists and under the authority of Dean Sausage, absent a formal contract, it may terminate city services to the tax islands. In other words, Huntsville asserts that even if it had brought this action 50 years earlier, there still would not have been any evidence of a formal contract between Huntsville and the landowners. Lastly, Huntsville notes that the underlying concept behind the doctrine of laches and equitable estoppel are the same — that one party’s delay in asserting rights cannot be allowed to prejudice another party — and because Dean Sausage held that equitable estoppel cannot prevent a municipality from terminating city seivices to nonresidents, the doctrine of laches is likewise inapplicable to nonresidents.

Stove House argues that the trial court properly entered a summary judgment in its favor because, it says, the oral agreement between Huntsville and the landowners is enforceable under the implied-contract theory set out in Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974). Stove House also asserts that this Court cannot consider Huntsville’s arguments as to why the implied-contraet theory should not apply because, it says, Huntsville failed to present these arguments in the trial court. Stove House further contends that, to the extent the trial court may have relied upon the doctrines of equitable estoppel and laches, the trial court properly entered a summary judgment in its favor.

Because affirmative defenses are threshold issues, we must determine the applicability of the doctrines of equitable estoppel and laches before we address the merits of whether Huntsville has a duty to provide city services to the tax islands and whether it may terminate those services. First, we conclude that equitable estoppel does not prevent Huntsville from terminating city services to the landowners because the landowners have no vested rights to city services. See Dean Sausage, 889 So.2d at 570 (quoting Joyner, 698 So.2d at 125). We also conclude that laches should not be applied against Huntsville because the defense should not be applied against municipalities. In King v. Campbell, 988 So.2d 969 (Ala.2007), this Court quoted from Greenwood v. State ex rel. Bailes, 230 Ala. 405, 407, 161 So. 498, 499 (1935), as follows:

“ ‘Reduced to the last analysis, the defense sought to be interposed is in the nature of an estoppel. But this court in State ex rel. Lott v. Brewer, 64 Ala. 287, [298 (1879),] declared that estoppels against the state cannot be favored, and that though they may arise in some instances, yet, upon the broad ground of public policy, they cannot arise, certainly as to the exercise of governmental functions, “from the laches of its officers.” ’ ”

This Court has applied this rule to the actions of municipal officials. See State v. City of Gadsden, 216 Ala. 243, 113 So. 6 (1927). We therefore reject Stove House’s defense of laches. Moreover, Stove House’s defense of laches based upon failing memories as to the terms of the oral agreement is inherently inconsistent with Stove House’s alternative theory of the existence of an implied contract.

We now turn to Stove House’s alternative contention that an implied contract exists between Huntsville and the landowners. In its brief to this Court Huntsville asserts that Stove House may attempt to argue that Bethune allows a party seeking to enforce an oral agreement with a municipality to succeed on an implied-contract theory, even though § 11^7-5 provides that “[c]ontracts entered into by a municipality shall be in writing, signed and executed in the name of the city or town by the officers authorized to make the same and by the party contracting.” Huntsville then attempts to distinguish Bethune from the present case. Huntsville concludes that any alleged oral agreement between Huntsville and the landowners remains executory in nature, that Bethune is distinguishable because it did not deal with an executory contract, and that, therefore, any implied contract in the present case is unenforceable.

Stove House responds by first contending that this Court cannot consider Huntsville’s arguments attempting to distinguish Bethune because, it asserts, those arguments are raised for the first time on appeal. Stove House asserts that Huntsville so heavily relied upon the Court of Civil Appeals’ holding in Dean Sausage that it failed to provide the trial court with any reason why the law of implied contract set out in Bethune, and clearly argued by Stove House in its brief in support of its summary-judgment motion, should not apply. Stove House then notes the well-established law that “[t]his Court cannot put a trial court in error for failing to consider evidence or accept arguments that, according to the record, were not presented to it.” Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990).

As previously noted, Stove House, in its motion for a summary judgment, quoted Bethune, 300 So.2d at 352, for the proposition that a “municipal corporation may be held liable on an implied contract.” Although Huntsville’s brief in opposition to Stove House’s summary-judgment motion noted that Stove House alluded to an implied agreement between the parties, Huntsville wholly failed to rebut Stove House’s assertion of the applicability of the implied-contract theory or to distinguish this case from Bethune. Simply stated, Huntsville made no mention of Bethune, a decision of this Court, in the trial court. Huntsville stated only that

“the appellate court [the Court of Civil Appeals] in Dean Sausage spoke in terms of a ‘formal contract or agreement,’ not an implied contract or an uncertain agreement or understanding. Because it is undisputable that there is no formal contract for the provision of municipal services to tax islands, [Huntsville] has no duty to provide same to the tax islands.”

Stove House attached exhibits to its motion for a summary judgment indicating that Huntsville had provided city services to the landowners since 1956 and that it was doing so pursuant to an oral agreement entered into by Huntsville and the landowners. Huntsville’s brief in opposition to Stove House’s summary-judgment motion asserted that Stove House had offered no evidence of an implied agreement. Huntsville there asserted that the previous and current attorneys for Huntsville “have no knowledge of any contract at all between the owners of the tax islands and [Huntsville].” In its principal brief before this Court, Huntsville notes that the city attorney acknowledged the existence of “an informal understanding between the original manufacturers and industrialists located on the tax islands at the time of their formation and [Huntsville] in or around the time of the annexation in 1956.” Huntsville’s brief at p. 42 (emphasis in original). This Court recognizes that “[a]n implied contract arises where there are circumstances which, according to the ordinary course of dealing and common understanding, show a mutual intent to contract .... ” Broyles v. Brown Eng’g Co., 275 Ala. 35, 38, 151 So.2d 767, 770 (1963). The materiality of factual disputes as to the terms of any implied contract between Huntsville and the landowners turns on the availability to Huntsville of arguments that support distinguishing Bethune.

Huntsville’s motion to alter, amend, or vacate the trial court’s order entering a summary judgment for Stove House and denying its motion for a summary judgment also failed to address Stove House’s argument that a municipality may enter into an implied contract. Huntsville reiterated its contention that, absent a formal contract, it owed no duty to the landowners to provide them city services and further contended that the trial court erred to the extent it might have relied upon the minutes of the Huntsville City Council meetings as evidence of an agreement obligating Huntsville to provide the landowners city services. Once again, Huntsville failed to address the import of this Court’s decision in Bethune.

Huntsville contends that Stove House’s treatment of Bethune in the trial court was confined to a single sentence. We previously quoted that sentence; suffice it to say that its brevity does not deprive it of clarity. It unquestionably afforded the trial court enough information to permit it to base a decision on an implied contract. Further, Bethune ⅛ problems for the position taken by Huntsville are neither subtle nor abstract. In Bethune this Court noted the predecessor to § 11-47-5, strenuously relied upon by Huntsville in the trial court and providing that “contracts entered into by a municipality shall be in writing, signed and executed in the name of the city or town,” but then stated that “[w]e cannot accept the City's argument that any agreement made by a city which are [sic] not in writing are [sic] void.” 293 Ala. at 93, 300 So.2d at 352.

Huntsville further attempts to excuse its disregard of the well-established law that an appellant may present this Court only with arguments that it presented to the trial court. Huntsville states:

“[Huntsville] would have never discussed [in its principal brief to this Court] whether any alleged contract between it and the former owners of the tax islands was executory if Stove House had not raised the implied-contract defense in Bethune in the trial court in the first place. As such, it would be fundamentally unfair to hold that [Huntsville] is procedurally barred from arguing that Stove House’s implied-contract defense does not apply. Not only was this defense, in actuality, given little attention by Stove House at the trial court level, but [Huntsville] has no idea whether the trial court actually relied upon this defense in ruling in Stove House’s favor because the summary-judgment order contains no rationale.”

Huntsville’s reply brief at p. 29 (citations to the record omitted).

Huntsville thus argues that it raised the Bethune issue in its principal brief before this Court only because Stove House had raised it in the trial court. However, it is fundamentally unfair to reverse the judgment of the trial court by distinguishing Bethune as Huntsville, for the first time on appeal, argues we should do. “[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000); see also Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). Because Huntsville made no attempt to distinguish Bethune before the trial court, it is now precluded from seeking reversal of the summary judgment on its theory that Bethune is inapplicable, and we must affirm. We, of course, express no opinion on the merits of the question whether Bethune is distinguishable on the facts here presented.

IV. Conclusion

We affirm the trial court’s summary judgment in favor of Stove House.

AFFIRMED.

SEE, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

PARKER and MURDOCK, JJ., concur in the result.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I respectfully dissent. This case involves “tax islands” in which the businesses and residents located therein have received services from the City of Huntsville without cost for more than 50 years, all without benefit of any written agreement. The gist of the majority’s opinion that Huntsville is nonetheless bound to continue its service to the tax island in question is based upon its conclusion that Huntsville failed to advocate to the trial court that the case of Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974), is distinguishable. This is not a situation in which the legal rationale of Bethune was not presented to the trial court. Rather, the majority holds that because Huntsville did not advocate that the rationale of Bethune was inapplicable to its situation, the judgment of the trial court may not be reversed based on the trial court’s failure to discern that fact for itself. If the majority opinion is properly regarded by this Court as precedent, it would seem that henceforth this Court may not reverse summary judgment when the trial court had misapplied the rationale of an appellate opinion to reach its conclusion and the nonmovant fails to demonstrate that it has argued that misapplication to the trial court.

For example, consider a case where a plaintiff sues a defendant chemical company for damage caused by the plaintiffs contact with chemicals manufactured by the company, and the company moves for a summary judgment based on the statute of limitations because, under Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), the period between the date of the plaintiffs last exposure and the date of filing the action exceeded the limitations period. If the trial court enters a summary judgment for the defendant and the plaintiff cannot show that it argued that Garrett has no application because this Court overruled it in Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008), the rationale of the majority opinion suggests that this Court must nonetheless affirm the summary judgment. That rationale is wrong.

I believe that the majority’s reliance here on the well-settled rule that this Court will not reverse a judgment of a trial court on an issue not first presented to the trial court, see Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000), and Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992), is based upon a false premise. In fact, the issue before the trial court, presented by Stove House, was whether Bethune warranted a holding that an implied contract for services existed between Huntsville and Stove House as a matter of law. Accordingly, I believe that it is well within the province of this Court to examine the applicability of Bethune to the facts presented here. Our law is well settled that the trial court is presumed to know the law, a concept that surely includes the trial court’s correct application of caselaw. Ex parte Atchley, 936 So.2d 513 (Ala.2006), Apicella v. State, 945 So.2d 485, (Ala.Crim. App.2006), and Carter v. Carter, 666 So.2d 28 (Ala.CivApp.1995). The issue presented by Bethune, ie., whether there were facts to show an implied contract between Stove House and Huntsville as a matter of law, was presented to the trial court, and it is this Court’s responsibility to consider whether the trial court reached the correct result. That is, it is also settled law that this Court reviews the trial court’s decisions on questions of law de novo, and it is this Court’s obligation as an appellate court to undertake that review. Board of Trs. of Univ. of Alabama v. American Res. Ins. Co., 5 So.3d 521 (Ala.2008), Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668 (Ala.2007), and Pinkerton Sec. & Investigation Servs., Inc. v. Chamblee, 961 So.2d 97 (Ala.2006).

Finally, I note that this case ultimately represents a waste of both judicial resources and the resources of the parties. For all that appears in the opinion, Huntsville may simply refile its action for a judgment declaring that it is not obligated to provide further city services to Stove House and this time argue the inapplicability of Bethune. The majority opinion achieves neither justice nor economy.

      . The two other tax islands are the Mallory Plant tax island and the John Blue tax island. The John Blue tax island was annexed before this litigation began, and the Mallory Plant tax island was not included in this litigation.

      . Stove House did not assert the affirmative defense of laches in its answer to Huntsville's complaint; therefore, the defense would ordinarily be deemed to have been waived. See Wallace v. Alabama Ass'n of Classified Sch. Employees, 463 So.2d 135, 137 (Ala. 1984) (quoting Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976) ("a defendant 'cannot revive [the waived affirmative defense] in a memorandum in support of a motion for summary judgment' ")). However, the defense is not waived here because Stove House raised the defense of laches in its summary-judgment motion without objection from Huntsville. Huntsville even addressed the merits of the defense in its brief in opposition to Stove House's summary-judgment motion. See Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997) (“Failure to raise an affirmative defense by responsive pleading does not always result in waiver. The purpose of Rule 8(c) of the Federal Rules of Civil Procedure is to give the opposing party notice of the affirmative defense and a chance to respond.” (internal citation omitted)); Alexander v. Consumers Illinois Water Co., 358 Ill.App.3d 774, 780, 838 N.E.2d 963, 968, 298 Ill.Dec. 70, 76 (2005) (“an affirmative defense is not waived, despite the fact that it was not raised in an answer to a complaint, if the defense is subsequently raised without objection in a motion for summary judgment").