author: ROBERTS, J.,

text:
    MARK S. BOUNDS REALTY PARTNERS, INC., Appellant v. Melanie LAWRENCE, Appellee.
    No. 2009-CA-00493-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.

      Gregory Moreau Johnston, attorney for appellant.

      Kathleen Shorkey Cook, attorney for ap-pellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the dismissal of Mark S. Bounds Realty Partners, Inc.’s (Bounds) complaint in the Chancery Court of Madison County for lack of subject-matter jurisdiction and the subsequent award of attorney’s fees to Melanie Lawrence. Aggrieved by the chancellor’s award of attorney’s fees, Bounds argues that such an award was improper and unwarranted. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. After several years of employment with Bounds, Lawrence decided to take another position in the real-estate industry and left Bound’s employment in October 2007. Soon after, a dispute arose between the parties; and in July 2008, Lawrence, through her attorney, mailed Bounds a letter explaining that unless they could reach an agreement regarding the monies Lawrence felt she was owed, she would file a complaint in the County Court of Madison County within the following week alleging, among other causes of action, breach of contract. Lawrence attached a draft of the complaint to the letter. After receiving the letter and draft complaint, Bounds’s attorney contacted Lawrence’s attorney and discovered the exact day she planned on filing her complaint. Approximately a week passed without further contact between the parties.

¶ 3. In response to the letter, which Bounds viewed as hostile, Bounds filed a complaint in the Chancery Court of Madison County on the same day, Lawrence planned on filing her complaint in county court seeking a declaratory judgment and claiming, among other causes of action, breach of an employment contract. That same day Lawrence filed her complaint in the County Court of Madison County. Service of process in the county court matter was subsequently completed on Bounds soon after the complaint was filed. However, service of process on Lawrence in the chancery matter was not completed until approximately a month-and-a-half after Bounds’s complaint was filed.

¶4. Prior to successfully serving Lawrence in the chancery matter, Bounds filed a motion to dismiss in the county court in which it argued that it was first to file in the chancery court, and as such, jurisdiction attached to the chancery court. In the motion to dismiss, Bounds requested that the county court action be dismissed or, in the alternative, transferred and consolidated with the chancery court action. Lawrence responded that the chancery court did not have subject-matter jurisdiction over the parties’ claims. Regardless, Bounds’s motion was never set for a hearing and was essentially abandoned. Soon after, Bounds effectuated service of process on Lawrence through Constable Matt Shackleford. Bounds stated that utilizing Constable Shackleford was necessary as Lawrence had, according to Bounds, failed to accept service on thirteen different occasions. However, Lawrence claimed that there was nothing indicating service had been attempted thirteen times as the return service showed only one attempt. Additionally, Lawrence claimed that Constable Shackleford: entered her home without a warrant or permission, pushed his way past her minor child, handcuffed her, and only identified himself approximately fifteen to twenty minutes after entering her home. Bounds argued that Constable Shackleford’s account was that Lawrence became belligerent during his attempt to serve process, and he was forced to handcuff her.

¶ 5. Lawrence subsequently filed a motion to dismiss in the chancery court claiming that the chancery court did not have subject-matter jurisdiction over the parties’ claims. She also requested attorney’s fees resulting from Bounds’s chancery court action. A hearing on the matter occurred on December 3, 2008. At the conclusion of the hearing, the chancellor found that the primary matters raised by Bounds were those of law and that the chancery court did not have subject-matter jurisdiction to hear them. Bounds’s causes of action were subsequently transferred to the county court. Additionally, the chancellor awarded Lawrence attorney’s fees in the amount of $l,250. Bounds timely appealed the chancellor’s award of attorney’s fees.

¶ 6. Finding no error, we affirm.

DISCUSSION

¶ 7. In awarding attorney’s fees, the chancellor failed to make any findings in support of the award. Bounds argues that because of the lack of on-the-record findings, this Court’s standard of review is de novo. Lawrence disagrees and argues that our standard of review is abuse of discretion.

¶ 8. The typical standard of review of an award of attorney’s fees is abuse of discretion. Bailey v. Estate of Kemp, 955 So.2d 777, 787 (¶ 41) (Miss.2007). Further, it is well settled that this Court will not reverse a chancellor’s findings of fact “unless they are manifestly wrong, not supported by substantial credible evidence, or an erroneous legal standard was applied.” Columbia Land Dev., LLC v. Sec’y of State, 868 So.2d 1006, 1011 (¶ 14) (Miss.2004). Although findings of fact would have been helpful to this Court in resolving this appeal, explicit findings of fact are not always required from a chancellor when the underlying case is not significantly complex. See M.R.C.P. 52(a); UCCR 4.01; Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987) (stating “in cases of any significant complexity the word ‘may’ in Rule 52(a) [of the Mississippi Rules of Civil Procedure] should be construed to read ‘generally should’ ”). When such is the case and the chancellor has failed to make explicit findings of fact, “this Court proceeds upon the ‘assumption that the chancellor resolved all such fact issues in favor of [the] appellee’ ... or as a minimum, in a manner which would be in line with the decree.” Love v. Barnett, 611 So.2d 205, 207 (Miss.1992) (quoting Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983)). Therefore, as neither party requested findings of fact from the chancellor pursuant to Rule 52(a) of the Mississippi Rules of Civil Procedure, and this case is not one of significant complexity, we will review the chancellor’s order under an abuse-of-discretion standard.

¶ 9. At the conclusion of the hearing, the chancellor granted Lawrence’s motion to dismiss for lack of subject-matter jurisdiction and transferred Bounds’s causes of action to the county court. Additionally, the chancellor awarded attorney’s fees by stating nothing more than: “I’m awarding attorney’s fees in the amount of $1,250.” Bounds argues that there was no basis or authority for the chancellor to award attorney’s fees to Lawrence. Bounds claims that a trial court can only award attorney’s fees when they are awarded in connection with a relevant contractual provision, a statute, or where punitive damages are appropriate. Bounds suggests that none of those three conditions were present before the chancellor.

¶ 10. Bounds is correct in stating what has long since been the law in regard to an award of attorney’s fees awarded in connection with trying a lawsuit. Mississippi courts follow what has been deemed “the American rule [which provides] that when there is no contractual provision or statutory authority providing for attorney’s fees, they may not be awarded as damages unless punitive damages are proper as well.” Willard v. Paracelsus Health Care Corp., 681 So.2d 539, 544 (Miss.1996). However, the supreme court has made clear that adherence to the American rule is “concerned solely with attorney’s fees being allowable as part of the costs of a lawsuit.” Grisham v. Hinton, 490 So.2d 1201, 1206 (Miss.1986). Indeed, a court’s authority to award attorney’s fees based upon a party’s or an attorney’s conduct is not only statutory, complying with the American rule, but also found in the Mississippi Rules of Civil Procedure and Mississippi Rules of Appellate Procedure. See generally Miss.Code Ann. §§ 11-55-1 to -15 (Rev.2002); M.R.C.P 11(b); 26 cmt.; 37; M.R.A.P 34(g).

¶ 11. The Litigation Accountability Act of 1988 (the Act) is one such avenue by which attorney’s fees may be awarded. The Act allows a court to award attorney’s fees in a civil action if it “finds that an attorney or party brought an action ... that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct.... ” Miss.Code Ann. § 11-55-5(1) (Rev.2002). Similarly, Rule 11(b) of the Mississippi Rules of Civil Procedure allows a court to award attorney’s fees if it finds that a “party files a motion or pleading which ... is frivolous or is filed for the purpose of harassment or delay.” Both section 11-55-5 and Rule 11(b) are augmented by Mississippi Code Annotated section 11-55-7 (Rev.2002), which requires a trial court to make certain findings in connection with an award of attorney’s fees under either the statute or rule. Stevens v. Lake, 615 So.2d 1177, 1184 (Miss.1993). However, as noted above, the supreme court has held that in the context of attorney’s fees awarded pursuant to Rule 11(b), it “will assume that the judge made determinations of fact sufficient to support its [sic] ruling where no specific finding has been made” even when no finding in support of the award was explicitly made. Eatman v. City of Moss Point, 809 So.2d 591, 593 (¶ 8) (Miss.2000). Therefore, as the supreme court has held that the findings required by section 11-55-7 apply to both Rule 11(b) and section 11-55-5, we will proceed under Eatman with an assumption that the chancellor made findings of fact sufficient to support the award of attorney’s fees.

¶ 12. The Act defines a claim brought “without substantial justification” to be one that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss.Code Ann. § 11-55-3(a) (Rev.2002). An appellate court uses the same test to determine whether a filing is frivolous under both the Act and Rule 11. Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 197 (Miss.1995). A claim is frivolous when “objectively speaking, the pleader or movant has no hope of success.” Id. at 195. That is, “(this Court’s) inquiry is an objective one to be exercised from the vantage point of a reasonable party in (the litigant’s) position as it filed and pursued its claim.” Roussel v. Hutton, 638 So.2d 1305, 1317 (Miss.1994) (quoting Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1335 (Miss.1989)).

¶ 13. Given the test that must be employed, the question before the chancery court was objectively speaking would a reasonable litigant in Bounds’s position have any hope of success of winning his case by filing his complaint in chancery court. Furthermore, as applied to our standard of review, this Court must ask is a negative answer to the chancery-court’s test manifestly wrong or not supported by substantial credible evidence. Bounds’s stated purpose for filing his complaint in the chancery court was to avoid a jury trial. Such a tactic, i.e. attempting to gain priority jurisdiction, is not prohibited provided that the pleading is correctly filed, although the manner in which this particular “race to the courthouse,” albeit the wrong one, is suspect. Therefore, we must examine the causes of action raised in Bounds’s complaint to determine if it had any hope of success in chancery court.

¶ 14. In general, circuit courts are courts of law, and chancery courts are courts of equity. See Miss. Const. art. 6, § 159; Miss. Const, art. 6, § 156. Furthermore, while circuit courts have general jurisdiction, chancery courts are courts of limited jurisdiction. IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 112 (¶ 72) (Miss.1998). We look to “the nature of the controversy and the relief sought, assuming the allegations in the well-pleaded complaint are true[,]” to determine where subject-matter jurisdiction properly lies. Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis and Dove, 965 So.2d 1041, 1049 (¶ 20) (Miss.2007) (quoting Collins v. State, 594 So.2d 29, 32 (Miss.1992)). If an independent basis for equity jurisdiction exists, chancery courts can hear and adjudicate law claims. Re/Max Real Estate Partners, Inc. v. Lindsley, 840 So.2d 709, 712 (¶ 13) (Miss.2003). However, “in cases in which some doubt exists as to whether a complaint is legal or equitable in nature, the better practice is to try the case in circuit court.” S. Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (¶ 6) (Miss.1999).

¶ 15. Bounds’s complaint sought a declaratory judgment that no oral contract existed between the parties and also alleged the following: libel and slander alleging that Lawrence injured Bounds’s reputation and good will when she held herself out to be a “property manager,” even though she was not one; fraudulent concealment and misrepresentation also stemming from Lawrence allegedly holding herself out to be a property manager; breach of contract alleging that Lawrence breached her employment contract by engaging in a personal business using company resources and time; and unjust enrichment stemming from compensation received by Lawrence while she was allegedly engaged in personal business at the workplace. Finally, Bounds requested compensatory damages in the amount of $100,000.

¶ 16. As both parties recognize, seeking a declaratory judgment under Rule 57 of the Mississippi Rules of Civil Procedure is a jurisdictionally neutral claim and is dependent on the underlying claim for a determination of which court properly has subject-matter jurisdiction. Issaquena Warren Counties Land Co. v. Warren County, 996 So.2d 747, 750 (¶ 9) (Miss.2008). Unjust enrichment is an equity claim “that one receiving money paid to him by mistake should not be allowed to enrich himself at the expense of the party who paid the money to him by retaining it, but in equity and good conscience should refund it.” Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1180 (¶ 14) (Miss.2004) (quoting Mason v. S. Mortgage Co., 828 So.2d 735, 739 (¶ 18) (Miss.2002)). However, in its complaint, Bounds ties its claim of unjust enrichment to its breach-of-contract claim. Circuit courts generally have exclusive jurisdiction over breach-of-contract claims that request damages, which are a legal remedy. Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 717 (¶ 13) (Miss.2009). Similarly, Bounds’s remaining claims, namely libel, slander, fraudulent concealment, and misrepresentation, request solely a legal remedy. Therefore, those causes of action raised by Bounds should have been raised in a court of law rather than one of equity.

¶ 17. Furthermore, it appears as if either the concept of a chancery court’s subject-matter jurisdiction was lost on Bounds’s attorney, or he proceeded to file in the chancery court with knowledge that the court lacked subject-matter jurisdiction over the claims presented. In its complaint, Bounds alleged that venue and subject-matter jurisdiction were proper in the chancery court because “the causes of action asserted by Plaintiff herein occurred and accrued in whole or in part in Madison County, Mississippi.” While this statement, when taken as true, would readily establish that venue was appropriate in the Circuit Court of Madison County, see Mississippi Code Annotated section 11 — 11—3(l)(a.)(i) (Rev.2004), it does nothing in the way of establishing either venue or subject-matter jurisdiction in the Chancery Court of Madison County.

¶ 18. Lastly, had Bounds believed that its complaint raised claims of equity and filed its complaint in chancery court with only the intent to avoid a jury trial, rather than harassment or some other form of judicial delay, such an agenda could have easily been argued in county court. Mississippi Code Annotated section 9-9-21(1) (Supp.2009) provides that the jurisdiction of the county courts is concurrent with that of chancery courts so long as the amount in controversy does not exceed $200,000. Had Bounds convinced the county court judge that its complaint was one of equity, its claims could have been heard by the judge alone in county court rather than a jury. Given the set of facts before the chancellor, we find that there is sufficient evidence in the record to support the chancellor’s implied finding(s) that: Bounds’s complaint had no hope of success in chancery court; it unnecessarily expanded the proceedings of Lawrence’s dispute with Bounds; and/or it was interposed for delay or harassment. Therefore, we affirm the chancellor’s award of attorney’s fees.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR.

      . The record shows that the total amount of the attorney’s fees Lawrence incurred as a result of the chancery court action was $2,347.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Lura Foster CARPENTER, Deceased: Bobby Dean Carpenter, Individually and as Executor Appellant. v. Autumn COSBY, Appellee.
    No. 2009-CA-00114-COA.
    Court of Appeals of Mississippi.
    May 18, 2010.

      William L. Maxey, attorney for appellant.
    Cliff R. Easley, Jr., attorney for appel-lee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Following the death of Lura Foster Carpenter (Lura), her three surviving children — Bobby Dean Carpenter (Bobby), Jerry Wayne Carpenter, and Nancy Lynn Carpenter Dempsey — filed a petition to probate Lura’s will, which contained several handwritten interlineations and markings. Autumn Cosby (Autumn), the daughter of Lura’s deceased child, challenged the probate of the will claiming that the handwritten markings showed that Autumn was to receive a child’s share of the estate. The chancellor found that, based upon the handwritten changes to the will, Lura’s original will was totally revoked and that Autumn should inherit a child’s share through the laws of intestacy. Bobby now appeals the chancellor’s judgment. Finding error, we reverse and remand for further proceedings by the chancery court consistent with this opinion.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Upon her death on May 27, 2007, Lura left a last will and testament, which was dated February 26, 1999. The will contained numerous deletions and added language handwritten by Lura. Paragraph III of the will states:

I have three children now living; my son, Jerry Wayne Carpenter; my son, Bobby Dean Carpenter; and my daughter, Nancy Lynn Carpenter Dempsey. It is my specific intent that my deceased daughter, Sandra Gwyn Carpenter McSheffrey, and her daughter, Autumn Cosby, will will not inherit anything under my Last Will and Testament except as specified herein. Any references to my children shall mean my three living children or their issue.

(Emphasis added). In paragraph VII, Lura bequeathed a bedroom suite to another granddaughter, Tammy Maycock; however, she marked through a small portion of the sentence. This marking did not affect the above-stated bequest. Paragraphs VIII, IX, X, and XI were completely marked through, rendering them illegible. Finally, in paragraph XIII, Lura made another handwritten addition. Paragraph XIII reads:

I will, devise and bequeath any real property, including my residence, in equal shares to my children, Jerry Wayne Carpenter, Bobby Dean Carpenter and Nancy Lynn Carpenter Dempsey. In order to accomplish this, it is my desire that my real property, including my residence, be sold and the net proceeds divided equally between Jerry Wayne Carpenter, Bobby Dean Carpenter and Nancy Lynn Carpenter Dempsey [and] Autumn Crosby. If one of my children wants the real property, then that child shall pay the fair market value as determined by a duly licensed appraiser, whose name will be drawn from three appraisers; and the proceeds will be distributed between the other two children.

(Emphasis added).

¶ 3. A Petition for Probate of Will, Letters Testamentary and Other Relief in the Matter of the Estate of Lura Foster Carpenter was filed on June 20, 2007. The petition alleged that Lura’s entire estate was to be devised to her three living children: Jerry, Nancy, and Bobby. A decree admitting the will to probate and granting letters testamentary and other relief was entered on the same day. On October 23, 2007, Autumn, the daughter of Sandra Carpenter Cosby who was Lura’s predeceased child, filed a petition to construe the will. The petition requested that the handwritten markings to Lura’s will be construed in such a manner that Autumn would inherit a child’s share. The executor, Bobby, filed an Answer to Petition to Construe Will, asserting that the handwritten deletions were a partial revocation of the will and that the handwritten additions were not legally effective. He later filed a motion for judgment on the pleadings pursuant to Mississippi Rule of Civil Procedure 12(c). Autumn filed an answer and a cross-motion for judgment on the pleadings requesting that the chancery court find that the will was partially revoked, including the paragraphs containing Lura’s handwritten additions; she argued that the result would be that Autumn would receive her deceased mother’s child’s share through the laws of intestacy.

¶ 4. On September 25, 2008, an agreed order of the court for partial disbursement and other relief settled any claims among Autumn, Jerry, and Nancy. Accordingly, Jerry and Nancy are no longer parties to this action. After a hearing on the motions, the chancellor entered a judgment on December 22, 2008, in favor of Autumn, ruling that the handwritten deletions and amendments resulted in a total revocation of Lura’s will. Thus, Autumn was entitled to inherit a child’s share through intestacy. Bobby now appeals claiming that the changes to Lura’s will did not warrant a total revocation.

STANDARD OF REVIEW

¶ 5. Our review of a chancellor’s decision is limited to an abuse of discretion standard. Deliman v. Thomas, 16 So.3d 721, 724 (¶ 13) (Miss.Ct.App.2009) (citing Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 9) (Miss.2002)). We will only reverse if the chancellor’s findings “are manifestly wrong or clearly erroneous or the court has applied an incorrect legal standard.” Id. (citing In re Estate of Ladner v. Ladner, 909 So.2d 1051, 1054 (¶ 6) (Miss.2004)). However, questions of law are reviewed de novo. Alexander v. Gross, 996 So.2d 822, 823 (¶ 4) (Miss.Ct.App.2008) (citing Morgan v. West, 812 So.2d 987, 990 (¶ 8) (Miss.2002)). In an appellate review of a contest to a will, our “ ‘polestar consideration’ ... is to give effect to the intent of the testator.” Costello v. Hall, 506 So.2d 293, 297 (Miss.1987) (citations omitted).

I. Whether the writings on Lura’s last will and testament, which were not witnessed pursuant to Mississippi Code Annotated section 91-5-1 (Rev. 2004), have any legal relevance.

¶ 6. Although Bobby addresses this issue last in his briefing, we find that this issue must be discussed at the outset in order to analyze the remaining issues appropriately. Bobby claims that the handwritten additions to Lura’s will were invalid as they were not witnessed pursuant to Mississippi Code Annotated section 91-5-1 (Rev.2004). This section states that:

Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

(Emphasis added). However, as Autumn accurately contends, this argument is “misplaced” as the chancellor found the markings to be a violation of the statute and, therefore, invalid. At the hearing, the chancellor stated that the items where Lura scratched out the entire paragraph were properly revoked; however, “[Lura’s] additions where she wrote in that Autumn is going to receive something, because she didn’t have two witnesses sign on those amendments, then they basically are not valid.” See, e.g., In re Will of Palmer v. Harpole, 359 So.2d 752, 754 (Miss.1978) (provisions written on the testator’s will and codicil were invalid as they were not signed by the testator). Consequently, we find no error in the chancellor’s findings; thus, Bobby’s argument on this issue is without merit.

II. Whether the chancellor erred in finding that Lura’s last will and testament was totally revoked instead of partially revoked.

¶ 7. The total or partial revocation of a will “by either cancellation or obliteration” is statutorily authorized under Mississippi Code Annotated section 91-5-3 (Rev.2004). Will of Palmer, 359 So.2d at 753. “A testator who wishes to revoke a will may do so by either: (1) destroying, canceling, or obliterating the will, or (2) ‘by subsequent will, codicil, or declaration, in writing, made and executed.’ ” In re Estate of Woodfield, 968 So.2d 421, 428 (¶ 16) (Miss.2007) (quoting Miss. Code Ann. § 91-5-3 (Rev.2004)). It is essential to the revocation that the testator “have the intent to revoke the will.” Id. (citing McCormack v. Warren, 228 Miss. 617, 628, 89 So.2d 702, 706 (1956)). “The intent of the testatrix [is] a question of fact.” Estate of Lyles v. Howell, 615 So.2d 1186, 1191 (Miss.1993).

¶ 8. Neither party disputes that Lura intended some sort of revocation; rather, the issue is the extent of the revocation. Bobby contends that the handwritten in-terlineations in Lura’s will are merely evidence of her intent to partially revoke those portions of the will, not a complete revocation of the will. While Bobby admits that Lura made the additions in paragraphs III and XIII presumably to amend her will, Bobby contends that those changes were ineffectual; as such, they did not result in a revocation of those portions. Therefore, he submits that the chancellor committed reversible error in revoking Lura’s will in toto.

¶ 9. The Mississippi Supreme Court has stated that the act of cancellation is “accomplished by the drawing of lines over or across words with the intent to nullify them and the form and extent of the lines are totally unimportant as long as they are a physical token of the intent to revoke.” Estate of Lyles, 615 So.2d at 1188 (quoting Will of Palmer, 359 So.2d at 753). The parties agreed at the hearing on the motions that Lura intended to revoke all portions of paragraphs VIII, IX, X, and XI. Further, there appeared to be no issue with the partial revocation of paragraph VI. In fact, the record shows that Maycock had already received her bequest of the bedroom suite under the will. At the hearing on the motions for judgment on the pleadings, counsel for Autumn stated that it was not Autumn’s position that the revocation of those paragraphs necessarily resulted in a total revocation of the will. Rather, Autumn’s counsel argued that all of the paragraphs that contained interlin-eations and additions should be revoked, leaving Lura’s real property and some small portions of personal property to descend intestate. However, as the chancellor noted, the will contained a residuary clause. Paragraph XV states:

All the rest of my personal items and household contents may be divided between my children in equal shares. Any items other than the above mentioned items may be disposed of as necessary and the net proceeds divided as equally as possible among my surviving children, per stirpes.

There was no mention of Autumn in this paragraph. Consequently, the chancellor was concerned that if she found that all of the amended and deleted paragraphs were revoked, then the undesignated property would not descend by intestate law. Rather, Lura’s real property and any remaining personal property would go to Bobby, Jerry, and Nancy under the residuary clause in paragraph XV.

¶ 10. The chancellor cited Estate of Lyles to support her finding of total revocation. In that case, the testatrix, Mrs. Lyles, left a will which originally devised 40 acres of her real property to Brodie Howell, a family friend, and 100 acres to her niece and closest remaining relative, Bennie Mothershed. However, when the will was found upon her death, the 40-acre devise to Howell had been scribbled out and the figure “100” in the latter part of the sentence had been marked out. Written above the “100” was the figure “140.” Further, Howell’s name had been written beside a later clause which contained a bequest of a certificate of deposit to a group of beneficiaries. However, these additions were not witnessed as required by statute; thus, they were ineffective. Applying the doctrine of dependent relative revocation, the chancellor held that the changes made were evidence of Mrs. Lyles’s intent to amend her will rather than to revoke it. Estate of Lyles, 615 So.2d at 1188. On appeal, the Mississippi Supreme Court explained, in regard to the doctrine, that:

[I]f the testator by codicil or physical act, revokes a portion of a prior testamentary instrument and makes a substituted disposition under a mistake of fact or of law with the result that the later disposition is invalid, the prior disposition is revived on the theory that had the testator not been mistaken in his beliefi,] he would not have revoked the original gift.

Id. at 1190 (quoting Crosby v. Alton Ochsner Med. Foundation, 276 So.2d 661, 666 (Miss.1973)). “The basis for the doctrine of dependent relative revocation ... is that there was never any revocation of the earlier instrument, or real intention to revoke, because of a mental misconception of the effect of his act, on account of mistake, or ignorance, or some other error.” Crosby, 276 So.2d at 666.

¶ 11. The supreme court in Estate of Lyles, 615 So.2d at 1191, further stated that “dependent relative revocation is a rule of presumed intent rather than a substantive rule of law.” It also acknowledged that, at “the heart of the doctrine of dependent relative revocation is the idea that, given the option, the testator or testatrix would prefer the will as executed over intestacy. The wisdom of this concept is undeniable.” Id. at 1191 (emphasis added). Nevertheless, “the presumption embodied in the doctrine may be rebutted by circumstances.” Id. (citing Caine v. Barnwell, 120 Miss. 209, 227, 82 So. 65, 66 (1919)). In Estate of Lyles, 615 So.2d at 1191, the supreme court found that “the presumed intent embodied in the dependent relative revocation doctrine [was] rebutted by the specific circumstance that Mothershed [was] the sole heir-at-law of the testatrix.” Accordingly, considering the “peculiar” facts of that case, the supreme court found that a total revocation of the will produced the result that Mrs. Lyles intended when she made her changes. Id. Therefore, it held that the chancellor’s application of the doctrine of dependent relative revocation to Mrs. Lyles’s will was error. Id.

¶ 12. In the present ease, the chancellor seized upon the italicized language to find that the will was totally revoked in accordance with Estate of Lyles. We find this analysis misplaced. In Estate of Lyles, since the testatrix deleted the number of acres devised to both Howell and Moth-ershed, the effect of these cancellations was that the land passed by intestate succession because there was not a valid clause remaining in the will concerning the real property. In the case before us, however, when the cancellations are taken into account, there still exist both a valid devise of the land “in equal shares to my children, Jerry Wayne Carpenter, Bobby Dean Carpenter and Nancy Lynn Carpenter Dempsey” and a residuary clause reading, “[a]ny items other than the above mentioned items may be disposed of as necessary and the net proceeds divided as equally as possible among my surviving children, per stirpes.” The revocation in this case, therefore, cannot result in intestate succession. The language in Estate of Lyles relied upon by the chancellor, while appearing broad, was, in fact, case specific. Accordingly, we find that the chancellor erred in her holding that Lura revoked her entire will.

¶ 13. Proper application of the doctrine of dependent relative revocation would only result in re-inserting the can-celled clauses, which might have left certain items of the estate to Autumn. As the general doctrine states: “[I]f the testator by ... physical act, revokes a portion of a prior testamentary instrument and makes a substituted disposition under a mistake of fact or of law with the result that the later disposition is invalid, the prior disposition is revived[.]” Estate of Lyles, 615 So.2d at 1190 (quoting Crosby, 276 So.2d at 666). We do not agree with Bobby’s contention that any claim by Autumn as a beneficiary under the original will may not be revived under the doctrine of dependent relative revocation. As noted, since Lura’s additions to paragraphs III and XIII were not attested to by any witnesses, or by a holographic instrument, these changes were ineffectual. See Miss. Code Ann. § 91-5-1. It is not clear from the record whether the cancelled portions of the original will, paragraphs VIII through XI, devised any portion of Lura’s estate to Autumn. Paragraph VIII mentions a granddaughter, and paragraph XI contains a name that begins with an “A,” but for the most part, these paragraphs are illegible. However, paragraph III under the original will states that Autumn was not to inherit “except as specified herein,” suggesting that there was a specific bequest to Autumn contained in the deleted provisions. Regardless, it is apparent that Lura revoked those paragraphs under the mistaken assumption that Autumn would receive a devise under the invalid amendments to paragraphs III and XIII.

¶ 14. Accordingly, we remand this case to the chancellor to determine whether Autumn would have received any bequests under the deleted portions of the original will, which should be reinstated under a proper application of the doctrine of dependent relative revocation.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF GRENADA COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The italicized language represents Lura's handwritten addition to the paragraph.

      . The italicized language represents Lura's handwritten addition to the paragraph.

      . This Court notes that the name of Lura's deceased child, Sandra, is slightly different in paragraph III of her will. The record contains no explanation as to why; however, there appears to be no dispute that she is the same individual.

      . Jerry and Nancy agreed to decrease their bequeathed share of one-third of the real estate devise so that Autumn might receive a one-fourth share of the proceeds from the sale of the real estate. The sale of Lura’s home netted proceeds of $148,607.52, less attorney’s fees of $2,365.12. One-third of the remaining amount is $47,795.75; one-fourth is $35,846.81. Therefore, Autumn has been awarded $23,897.88, two times the difference between the amounts. The remainder of the proceeds is being held by the court until the resolution of the proceedings.

      . Paragraphs IV-VT of the will contained three bequests of small items of personal property that were not amended in any way.

        . Further, as a result of the total revocation of Lura’s will, Autumn would receive one-fourth of the entire estate, an outcome that we find to be clearly inconsistent with both the original will and Lura’s handwritten changes. This is apparent when we look at ineffectual additions to paragraphs III and XIII, which express an intent for Autumn to inherit only a share of Lura's real property. Further, specific bequests of personal property to Lura’s three children and, in paragraph VI, a specific bequest of bedroom furniture to her granddaughter, Maycock, would be cancelled if the entire estate were to descend by intestate succession. Autumn would own one-fourth interest in each item of personal property in her grandmother’s estate. Furthermore, we find that the inclusion of a residuary clause in the will, which Lura left unaltered, bolsters the presumption against intestacy.


author: MURDOCK, Justice. LYONS, Justice WOODALL, Justice

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v. Walter George AUSTIN and Charlene Austin.
    1061505.
    Supreme Court of Alabama.
    Sept. 30, 2009.

      Kori L. Clement of Hare, Clement & Duck, P.C., Birmingham, for appellant.
    Robert C. Gammons and Joshua B. White of Stephens, Millirons, Harrison & Gammons, P.C., Huntsville, for appellee.
   MURDOCK, Justice.

Nationwide Mutual Fire Insurance Company (“Nationwide”) appeals from an order of the Madison Circuit Court denying Nationwide’s motion to show satisfaction of the judgment and granting Walter George Austin and Charlene Austin’s motion for taxation of additional costs following a judgment in favor of the Austins. We affirm in part and reverse in part.

I. Facts and Procedural History

On May 18, 2004, the Austins’ vehicle was involved in an accident with a vehicle driven by Stephen Anthony Horton. The Austins suffered injuries as a result of this accident, and they filed a complaint in the Madison Circuit Court alleging negligence against Horton and seeking uninsured-motorist (“UM”) benefits from Nationwide and State Farm Mutual Automobile Insurance Company (“State Farm”), the Austins’ automobile insurance carriers.

The Austins’ automobile-insurance policy with Nationwide (“the policy”) provided UM coverage. The policy also provided medical-payment coverage. The portion of the policy providing UM coverage contained a section entitled “Limits and Conditions of Payment.” In that section, the policy stated, in pertinent part:

“4. Damages payable [for UM coverage] will be reduced by any amount paid or payable under:
“a) the Medical Payments coverage in this policy.”

Following discovery, both State Farra and Nationwide filed motions, which the trial court granted, to opt out of the trial pursuant to the procedure provided by this Court in Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988). As contemplated in Lowe, Nationwide remained a party defendant to the Austins’ action.

At the conclusion of the trial on May 2, 2007, the jury rendered a vei*dict in favor of the Austins and assessed damages in the amount of $130,000 for Walter Austin and $60,000 for Charlene Austin. Based on that verdict, the trial court entered a judgment on the same date and for the same amounts against both Horton and Nationwide. On May 15, 2007, the Austins filed a motion for taxation of additional costs. The Austins requested, pursuant to § 12-21-144, Ala.Code 1975, the taxation as costs of the amounts paid to a court-reporting service for transcripts and videotapes of two depositions of treating physi-dans that the Austins had offered as evidence during the trial. Nationwide did not file an objection of any kind to this motion.

On May 29, 2007, Nationwide tendered to Walter Austin $95,369.07, and tendered to Charlene Austin $31,736.71. The Austins refused to acknowledge these payments as payment in full for the judgment, and, as a result, Nationwide filed what it styled as a motion to show satisfaction of the judgment. Nationwide asserted in its motion that, pursuant to the terms of the policy, it was entitled to a setoff of the medical payments it had previously tendered to the Austins against the final judgment awarded. Nationwide had previously made payments to the Austins under the medical-payments provision of the policy in the amounts of $14,630.93 to Walter Austin and $11,201.29 to Charlene Austin.

The trial court held a hearing on the Austins’ motion for taxation of additional costs and Nationwide’s motion for satisfaction of the judgment. On June 20, 2007, the trial court issued an order granting the Austins’ motion and denying Nationwide’s motion.

With regard to the taxation of additional costs, the trial court found that the Austins had “properly established the actual cost of each deposition and that said depositions were introduced during the course of the trial.” It therefore concluded, pursuant to § 12-21-144, Ala. Code 1975, that “the cost of such depositions should be taxed as additional costs in this case” in the amount of $903.83 against all the named defendants.

Concerning Nationwide’s motion for satisfaction of the judgment, the trial court concluded that Nationwide’s election to opt out of the litigation bound it to the amount of damages awarded in the final judgment and that the medical-payments setoff provision of the policy would limit the recovery allotted to the Austins in the final judgment in a manner contrary to the public policy of § 32-7-23, Ala. Code 1975, which requires automobile insurance companies selling automobile-liability policies in Alabama to provide UM coverage in their policies.

Nationwide appeals from the trial court’s June 20, 2007, order, objecting to both the taxing of additional costs and the denial of Nationwide’s motion for satisfaction of the judgment. In the alternative, Nationwide states that it appeals the May 2, 2007, order of the trial court memorializing the jury verdict in favor of the Austins. Nationwide offers no arguments on appeal, however, concerning the May 2, 2007, order; accordingly, it has waived any objection to that order.

II. Standard of Review

We review a trial court’s ruling on taxation of costs under § 12-21-144, Ala. Code 1975, to determine whether the trial court exceeded its discretion. See Vulcan Oil Co. v. Gorman, 434 So.2d 760, 762 (Ala.1983) (stating that “the taxation of costs ... rests in the discretion of the trial judge, whose decision will not be reversed unless clear abuse is shown”).

Although not styled as such, Nationwide’s postjudgment motion for relief from the judgment on the ground that the judgment had been satisfied is properly considered a motion filed pursuant to Rule 60(b)(5), Ala. R. Civ. P. Rule 60(b)(5) provides that a court may relieve a party from a final judgment if the circumstances presented fall within one of three categories, namely: “[i] the judgment has been satisfied, released, or discharged, or [ii] a prior judgment upon which it is based has been revered or otherwise vacated, or [iii] it is no longer equitable that the judgment should have prospective application.” Nationwide’s motion for relief on the basis of a satisfaction of the judgment falls within the first of these three categories.

As has been recognized in cases such as Satterfield v. Winston Industries, Inc., 553 So.2d 61, 63 (Ala.1989), whether the circumstances warrant relief to a movant under Rule 60(b)(5) can involve the “discretion of the trial court, and its decision will not be reversed unless there [is] an abuse of that discretion.” As the Court in Sat-terfield noted, however, “[t]hat portion of Rule 60(b)(5) relied on by Satterfield applies only when new facts or new law arises after the original judgment is entered, rendering prospective application of the judgment inequitable.” 553 So.2d at 63. The application of an abuse-of-discretion standard in cases such as Satterfield is consistent with the nature of the issue presented and the relief sought. As one court has explained in reference to motions for relief of the nature provided by Rule 60(b),

“[i]f there is a discretionary appraisal or weighing by the [trial] court of the facts of a particular case, the [trial] court’s determination on appeal is subject to abuse or misuse of discretion. Here, the standard of review is the standard abuse of discretion test.”

In re Marriage of Barnes 251 Mont. 334, 336, 825 P.2d 201, 203 (1992).

Our cases recognize that where relief is sought under a different provision of Rule 60(b) — Rule 60(b)(4) — a de novo standard of review is applied. This is so because the issue of jurisdiction raised in a Rule 60(b)(4) motion is a purely legal one. Thus it was that the Court in Satterfield was able to contradistinguish the alternative relief sought under Rule 60(b)(4) in that case from the relief also sought in that case under the above-referenced portion of Rule 60(b)(5):

“The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside.”

553 So.2d at 64. As the United States Court of Appeals for the Eleventh Circuit explained in Sloss Industries Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir.2007): “We review de novo ... a district court’s ruling upon a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a legal one.” (Emphasis added). See Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir.1995) (“Ordinarily, motions for relief from judgment pursuant to Federal Rules of Civil Procedure 60(b) are addressed to the sound discretion of the district court and will not be reversed absent some abuse of discretion.... We review de novo, however, a district court’s ruling upon a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a legal one.”) (emphasis added).

As the Supreme Court of Montana explained in Essex Insurance Co. v. Moose’s Saloon, Inc. 338 Mont. 423, 428-29, 166 P.3d 451, 455-56 (2007):

“Our standard of review of a [trial] court’s ruling on a motion pursuant to [Rule] Civ. P. 60(b) depends on the nature of the final judgment, order, or proceeding from which relief is sought and the specific basis of the Rule 60(b) motion .... As a general rule, the [trial] court’s ruling is reviewed for abuse of discretion.... By contrast, where the movant sought relief under subsection (4) of Rule 60(b) on the ground that the judgment is void, the standard of review is de novo, since the determination that a judgment is or is not void is a conclusion of law. Export Group [v. Reef Indus., Inc.], 54 F.3d [1466] at 1469 [ (9th Cir.1995) ] (‘We review de novo ... a district court’s ruling upon a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a legal one.’).”

(Emphasis added.) See also Landmark West Enters., LLC v. Wei Yu Ren, (No. CIV.-07-0280-F, June 8, 2007) (W.D.Okla.2007) (not reported in F.Supp.2d) (“When reviewing a bankruptcy court’s determination of a Rule 60(b)-type motion to reconsider, to the extent the bankruptcy court based its ruling on discretionary factors, the review is for abuse of discretion; to the extent the bankruptcy court’s ruling was based on its findings of fact and conclusions of law, traditional review applies to those determinations — clearly erroneous is the standard of review for the findings of fact, and de novo review applies to the legal conclusions.”).

Because the issue presented here is a purely legal one — whether Nationwide is entitled to set off amounts paid to the Austins under the medical-payments coverage in the policy against amounts otherwise owed the Austins under the policy’s UM coverage — we review de novo the trial court’s denial of Nationwide’s motion for a satisfaction of the judgment.

III. Analysis

Nationwide contends that the trial court erred in taxing additional costs to the defendants for the expense of two depositions the Austins introduced as evidence during the trial. Specifically, Nationwide argues that the invoices from the court-reporting services the Austins attached to their motion for taxation of additional costs to establish the expense of those depositions constituted inadmissible hearsay. According to Nationwide, without the invoices, the Austins failed to establish the cost of the depositions, and, therefore, the trial court should have denied them motion.

Nationwide did not object to the Austins’ motion in the trial court. In fact, it made no argument whatsoever concerning the taxation of additional costs to the trial court. Horton filed an objection to the Austins’ motion, but he did not raise the issue of the Austins’ allegedly using hearsay evidence to prove the cost of the depositions. Because Nationwide’s argument was not presented to the trial court, we cannot consider it on appeal. See Marks v. Tenbrunsel, 910 So.2d 1255, 1268 (Ala.2005) (“ ‘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.’ ” (quoting Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992))). The trial court’s ruling on the Austins’ motion for taxation of additional costs is therefore due to be affirmed.

As noted above, Nationwide also appeals the trial court’s denial of its motion for satisfaction of the judgment based on the provision in the Austins’ automobile-insurance policy that permits Nationwide to set off benefits paid under the medical-benefits portion of the policy against the damages due for UM coverage. The latter coverage is provided pursuant to § 32-7-23, Ala.Code 1975, the uninsured-motorist statute (“the UM Act”). “[Section] 32-7-23, Ala.Code 1975, requires that every automobile-liability-insurance policy issued or delivered in Alabama provide uninsured-motorist coverage with limits for bodily injury or death of at least $20,000 per person, unless the coverage is specifically rejected in writing by the named insured.” Continental Cas. Co. v. Pinkston, 941 So.2d 926, 929 (Ala.2006).

The trial court denied Nationwide’s motion for satisfaction of the judgment for three reasons. First, it noted that Nationwide had elected to opt out of the litigation, and, as a result, Nationwide was “bound by the factfinder’s decisions on the issues of liability and damages.” Lowe, 521 So.2d at 1310. The trial court ruled that this meant that Nationwide could not object to the award of damages in the action.

In concluding that Nationwide could not demand satisfaction of the judgment on the basis of the setoff provision in the policy because it had opted out of the litigation, the trial court misunderstood the opt-out process we explained in Lowe. As the Lowe Court stated, in an action for UM benefits under the plaintiffs policy,

“[i]f the insurer is named as a party, it would have the right, within a reasonable time after service of process, to elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court). Under either election, the insurer would he bound by the factfinder’s decisions on the issues of liability and damages.”

Lowe, 521 So.2d at 1310 (some emphasis added; some emphasis omitted).

If the above-emphasized passage is to be interpreted as the trial court interpreted it, then an insurer in Nationwide’s position would not be able to assert any right it would otherwise have to enforce a setoff provision, or for that matter to assert other contractual defenses it might have under the terms of its insurance policy, even if it elected to participate in the litigation. The correct reading of Lowe is that a UM insurer that elects not to participate in the litigation forgoes the right to question, as the above-quoted passage indicates, the fact-finder’s decision as to whether the alleged tortfeasor is liable to the insured and, if so, in what amount. That question, however, is a different question than whether, as between the insurer and the insured, the contractual terms of the parties’ insurance policy limit the insurer’s liability to the insured for the damages awarded against the tortfeasor.

Nationwide is not challenging the amount of damages awarded to the Austins and against Horton; it is asserting its purported right based on the policy to offset the medical payments it has already made to the Austins against the amount awarded. Because Nationwide is not questioning “the factfinder’s decisions on the issues of liability and damages,” 521 So.2d at 1310, its election to opt out of the litigation does not prohibit it from taking advantage of the setoff provision of its policy with the Austins.

The trial court also denied Nationwide’s motion because the trial court

“specifically recall[ed] that the [Austins’] counsel, in final argument, pointed out to the jury that most of the past medical bills incurred by the [Austins] had been paid and that the [Austins] were asking only to be reimbursed for their deductible or out of pocket expenses. The [Austins] offered evidence of substantial future medical expenses along with evidence of lost income, permanent disabilities and pain and suffering. The total damages presented by the [Austins] significantly exceeded the jury award and, as noted herein, did not include past medical expenses that had been previously reimbursed. The Court therefore finds that there was no double recovery by the [Austins] in this case.”

The problem with this reasoning is found in a closer look at the policy language at issue. The UM provision of the Austins’ policy provides that Nationwide “will pay damages ... which are due by law to [the insured] from the owner or driver of an uninsured motor vehicle because of bodily injury suffered by [the insured.] Damages must result from an accident arising out of the 1. ownership; 2. maintenance; or 3. use; of the uninsured motor vehicle.” The trial court’s reasoning would be appropriate if it had been established that the “damages ... due by law” to the Austins from the uninsured motorist, Horton, included the amounts of $130,000 and $60,000 awarded by the jury plus the amounts of the medical payments already made on behalf of each of the Austins by Nationwide. This was not established, however.

Instead, according to the trial court’s June 20, 2007, order, the Austins did not ask the jury to consider including in their awards to the Austins any amounts for the previously made medical payments. Therefore, we do not know whether, if the Austins had asked the jury to include in its awards amounts equal to such payments, the jury would have done so. Indeed, what we do know, according to the trial court, is that the jury did not award the Austins all the damages they requested. For all we know, the jury would have declined to award the Austins some or all of their prior medical expenses had it been asked to do so. Any attempt to state otherwise would require some degree of speculation.

In any event, the only actual measure of “damages ... due by law” from Horton to the Austins that has been established in this case is the measure that the jury actually awarded. It is necessarily with respect to such ascertained “damages” that the policy provisions at issue must operate.

Finally, the trial court denied Nationwide’s motion because it concluded that the policy provision permitting Nationwide to set off medical payments against damages recovered on a UM claim was contrary to the public policy expressed in the UM Act. The trial court quoted this Court’s statement in State Farm Mutual Automobile Insurance Co. v. Motley, 909 So.2d 806, 812 (Ala.2005), that ““‘[t]he Uninsured Motorist Statute is construed so as to assure a person injured by an uninsured motorist will be able to recover the amount of his damages in that the insurer will not be allowed to insert provisions in the policy limiting the insured’s recovery.” ’ ” (quoting Dillard v. Alabama Ins. Guar. Ass’n, 601 So.2d 894, 896 (Ala.1992), quoting in turn Alabama Ins. Guar. Ass’n v. Hamm, 601 So.2d 419, 423 (Ala.1992) (emphasis omitted)). See also Progressive Speciality Ins. Co. v. Gore, 1 So.3d 996, 999 (Ala.2008) (citing Star Freight, Inc. v. Sheffield, 587 So.2d 946, 957 (Ala.1991)). The trial court reasoned that enforcing the policy’s medical-payments-setoff provision would impermissi-bly limit the recovery allotted to the Austins in the final judgment.

The question before us is whether a setoff provision of the nature found in the Austins’ policy with Nationwide constitutes an improper limitation on their recovery of UM benefits. This is the same question this Court addresses today in McKinney v. Nationwide Mutual Fire Ins. Co., 33 So.3d 1203 (Ala.2009). We held in McKinney that “where an insured has contracted only for the statutory minimum UM coverage and the total damages the insured are legally entitled to recover exceed the total of any payment by the tortfeasor’s insurer, the insured’s UM coverage and any medical benefit also paid by the liability insurer to the insured, a policy provision allowing the insurer to set off any medical-benefit payments against the UM coverage is unenforceable as a matter of public policy.” 33 So.3d at 1215.

The present case differs from McKinney in that the Austins have contracted for more than the statutory minimum UM coverage. Even accounting for the medical-payments setoff, the Austins’ recovery under the UM provision in their policy will still be well above the required statutory minimum provided in § 32-7-23(a), Ala. Code 1975. Under the particular circumstances presented in the present case, giving effect to the contractually agreed upon setoff provision would not contravene the public policy of requiring certain minimum amounts of UM coverage to be provided in every automobile liability policy. We therefore conclude that the trial court erred in refusing to honor the otherwise clear and unambiguous setoff provision found in the parties’ insurance contract.

IV. Conclusion

For the foregoing reasons, we affirm the portion of the trial court’s June 20, 2007, order granting the Austins’ motion for taxation of additional costs, and we reverse the portion of the same order denying Nationwide’s motion for a satisfaction of the judgment. The cause is remanded to the trial court for further action consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and LYONS and WOODALL, JJ., concur in part and dissent in part.

LYONS, Justice

(concurring in part and dissenting in part).

Does an insurer satisfy the requirement of § 32-7-23, Ala.Code 1975, that every policy must provide coverage for uninsured-motorist benefits in an amount not less than $20,000 by watering down the rights to more than $20,000, even though it contracted for higher limits than $20,000, by including a setoff provision allowing it to deduct payments made to its insured under the medical-benefits portion of the policy? The answer lies in an understanding of the scope of legislative intent.

If the legislature’s public-policy objective was fulfilled by merely permitting an insured to have at least $20,000 in uninsured-motorist coverage, thereby making the insured’s decision to purchase any uninsured-motorist coverage greater than $20,000 a private matter between the insured and the insurer, the setoff does not violate public policy. If the legislature’s public-policy objective was fulfilled by permitting an insured to have at least $20,000 in uninsured-motorist coverage, and more if the insured cared to purchase it, then the matter of excess above $20,000 is not simply a private matter between the insured and the insurer, and setoffs should not be permitted to defeat the coverage.

Section 32-7-23(a), Ala.Code 1975, in pertinent part, provides:

“No automobile liability ... policy insuring against loss resulting from liability imposed by law ... arising out of the ownership, maintenance or use of a motor vehicle shall be delivered ... in this state ... unless coverage is provided ... in limits for bodily injury or death set forth in subsection (c) of Section 32-7-6 ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles .... ”

The reference to limits set forth in subsection (c) of § 32-7-6 brings into play the requirement of coverage “of not less than twenty-five thousand dollars ($25,000).”

The thrust of the statute is thus provision for coverage for not less than $20,000 and not coverage in the amount of $20,000. I do not see how we can conclude that public policy is served by denying protection to the insured’s statutory right to such benefit when coverage exceeds $25,000. I therefore join Justice Woodall’s special writing.

WOODALL, Justice

(concurring in part and dissenting in part).

I concur fully in Part II of the majority opinion. Also, I concur in Part III to the extent that it holds that the trial court’s order granting Walter Austin and Charlene Austin’s motion for taxation of additional costs is due to be affirmed. However, I respectfully dissent from Part III insofar as it reverses the trial court’s order denying the motion for a satisfaction of the judgment filed by Nationwide Mutual Fire Insurance Company.

The majority has, in my opinion, overlooked the purpose of the underinsured-motorist coverage purchased by the Austins. Once Stephen Anthony Horton’s fault is established and the extent of the Austins’ damages proved, “[t]he purpose of [underinsured-jmotorist coverage is to allow [the] insured ... to recover the amount of the jury verdict even if [Horton] does not have insurance coverage in that amount.” Harvey v. Mitchell, 522 So.2d 771, 773 (Ala.1988). The only limit on the Austins’ recovery of underinsured-motorist benefits is the policy limit of such coverage. “ ‘Underinsured motorist coverage provides compensation to the extent of the insured’s injury, subject to the insured’s policy limits.’” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 811 (Ala.2005) (quoting Hardy v. Progressive Ins. Co., 531 So.2d 885, 887 (Ala.1988)). Thus, where a policy provides underin-sured-motorist coverage in excess of the statutorily required minimum, such minimum coverage is irrelevant to a determination of an insured’s rights under the policy, and I cannot agree with the majority’s conclusion to the contrary.

The Austins have established that they “are legally entitled to recover damages from [the] owner[ ] ... of [an underin-sured] motor vehicle[] because of bodily injury.” § 32-7-23(a), Ala. Code 1975 (emphasis added). Thus, as stated above, the Austins are entitled to recover to the extent of their injuries, subject only to the applicable policy limit. Nationwide is not entitled to reduce its obligation to its insureds by reducing the insureds’ recovery of underinsured-motorist benefits by the amount paid to them under their medical-payments coverage. See McKinney v. Nationwide Mut. Fire Ins. Co., 33 So.3d 1203 (Ala.2009) (Woodall, J., concurring in the result).

COBB, C.J., and LYONS, J., concur.

      . As defined in the Austins' policy, and as used in this opinion, the terms "uninsured motorist” and "uninsured motor vehicle” refer to both uninsured and underinsured motorists and motor vehicles. See also § 32-7-23(b), Ala.Code 1975. Likewise, the term "UM” is used in this opinion as a shorthand reference to both uninsured and underinsured motorists and motor vehicles.

      . The record indicates that following depositions, Horton reached a settlement with the Austins for the limits of coverage available under his liability insurance policy. Nationwide, whose policy with the Austins provided UM coverage of $300,000 per person and $900,000 per occurrence, “fronted" the proposed settlement amount to the Austins, thereby continuing the action against Horton.

      . The Court explained in Lowe that
      "[a] plaintiff is allowed either to join as a parly defendant his own liability insurer in a suit against the underinsured motorist or merely to give it notice of the filing of the action against the motorist and of the possibility of a claim under the underinsured motorist coverage at the conclusion of the trial. If the insurer is named as a party, it would have the right, within a reasonable time after service of process, to elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court). Under either election, the insurer would be bound by the factfinder's decisions on the issues of liability and damages. If the insurer is not joined but merely is given notice of the filing of the action, it can decide either to intervene or to stay out of the case. The results of either choice parallel those set out above — where the insurer is joined as a party defendant. Whether the choice is timely made is left to the discretion of the trial court, to be judged according to the posture of the case. In either event, the trial court could then fashion its judgment accordingly.”

        Lowe, 521 So.2d at 1310 (emphasis omitted; emphasis added).

      . Section 12-21-144 provides, in pertinent part, that “[t]he costs of any deposition introduced, in whole or in part, into evidence at the trial by the party taking it shall be taxed as costs in the case upon the certificate of the person before whom the deposition was taken. ..."

      . It is not clear from the record who paid the remaining portion of the judgment, although we presume that State Farm has paid any portion for which it was responsible; State Farm is not a party to this appeal.

      . Section 32-7-23(a) provides, in pertinent part:
      "(a) No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 32-7-6, under provisions approved by the Commissioner of Insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. ...”

      . We note that, in its answer to the complaint, Nationwide placed the Austins and the trial court on notice of its intention to seek a setoff, claiming as its ninth defense a right to “offset” "any collateral payments such as medical expenses ... for some of the damages claimed in this lawsuit.”

      . The trial court's order granting Nationwide's motion to opt out of the litigation explicitly recognized that Nationwide “will be bound by the jury's determination in this case of damages subject to its policy limits and the insurance coverage levels of the remaining defendants.” (Emphasis added.) This limitation is consistent with the principle recognized by Alabama courts to the effect that, under the UM Act, the insured "is entitled to collect within the limits of the policy, all damages which he is legally entitled to recover.' " United Servs. Auto. Ass’n v. Smith, 57 Ala.App. 506, 509, 329 So.2d 562, 564 (Ala.Civ.App.1976) (quoting § 32-7-23(a), Ala.Code 1975) (emphasis added); see, e.g., Alfa Mut. Ins. Co. v. Moreland, 589 So.2d 169, 171 (Ala.1991) (stating that "[i]n an action for uninsured motorist benefits, absent fraud or bad faith, an insured may recover from his insurer damages only up to the limits provided for in the contract of insurance”); Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 614, 243 So.2d 736, 742 (1970) (noting that § 32-7-23(a), Ala.Code 1975, “limits recovery of damages to that amount to which the injured party is 'legally entitled to recover' and that amount is legally settled prior to the claims under the statute and the policies”).

      . In such a case, the result reached by the trial court when it denied Nationwide’s post-judgment motion, i.e., leaving Nationwide responsible for the full measure of the $130,000 and $60,000 awarded by the jury, would be achieved by adding the amount of the prior medical payments to the amounts awarded by the jury to calculate the "damages ... due by law” and then allowing a credit for the amount of the prior medical payments, thus leaving an amount due from the insurer equal to the amounts awarded by the jury.

      . In response to Justice Woodall's special writing, it is important to note that it is the same contract of insurance that creates in the insured a right to collect more than the statutory minimum $20,000 of UM insurance that places a condition on a portion of that non-required, additional coverage. Nothing in our law prevents the two parties to that insurance contract from voluntarily bargaining for and agreeing to the payment of an additional premium for such additional UM coverage or from agreeing to a premium for additional UM coverage that is conditioned in some respect. The public-policy concern that informs our disallowance of such a condition when it interferes with the statutorily required minimum amount of UM coverage does not extend beyond the protection of that minimum coverage to impede the parties’ freedom of contract as to such additional coverage and premiums to which they may voluntarily agree.

      . Section 32-7-6(c), Ala.Code 1975, which sets the required limits of coverage, was amended in 2008 to increase the amount from $20,000 to $25,000.


author: PARKER, Justice. MURDOCK, Justice

text:
    Ex parte ALABAMA PEACE OFFICERS’ STANDARDS AND TRAINING COMMISSION and R. Alan Benefield, individually and in his capacity as executive secretary of the Alabama Peace Officers’ Standards and Training Commission. (In re Doby Vines and Joey Vines v. R. Alan Benefield et al.).
    1051667.
    Supreme Court of Alabama.
    Sept. 30, 2009.

      Troy King, atty. gen., and Joseph D. Steadman, deputy atty. gen., of Dodson & Steadman, P.C., Mobile, for petitioners.
    Robert D. Drummond, Jr., Fairhope, for respondents.
   PARKER, Justice.

The Alabama Peace Officers’ Standards and Training Commission (“APOSTC”) and its executive secretary, Chief R. Alan Benefield, are defendants in an action brought by brothers Doby Vines and Joey Vines, former part-time employees at Southwest Alabama Police Academy (“SWAPA”). In the trial court, APOSTC and Benefield filed a motion for a summary judgment, asserting that they were immune from liability. The trial court denied the motion. APOSTC and Benefield now petition this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss with prejudice all the claims against them. We grant the petition.

I. Background and Procedural Posture

This ease arises from the termination on January 24, 2003, of the Vineses’ part-time employment with SWAPA, which resulted from an APOSTC directive authorizing the dismissal of all SWAPA part-time employees. The Vineses filed a complaint in the Montgomery Circuit Court on January 5, 2005, naming as defendants Benefield and Gary Branch, president of Faulkner State Community College, in their individual and official capacities, and APOSTC. The Vineses sought restoration of their employment, wages, and benefits, and both compensatory and punitive damages from Benefield in his individual capacity, alleging that he and Branch had conspired among themselves to deny the Vineses them employment, wages, and benefits. They also claim that APOSTC did not have the authority to order their dismissal. The claims against Branch were subsequently dismissed. See supra note 1.

On June 9, 2006, APOSTC and Benefield filed a motion for a summary judgment, asserting the defense of immunity. The trial court did not address the issue of immunity when it entered its August 8, 2006, judgment denying their summary-judgment motion. APOSTC and Benefield now seek review of the denial of the motion for a summary judgment.

II. Standard of Review

“ ‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: ‘(1) a clear legal right 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) the properly invoked jurisdiction of the court.’ Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).”

Ex parte Nall, 879 So.2d 541, 543 (Ala.2003).

“This case is before us on a petition for the writ of mandamus. The petition cites Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000), for the proposition that ‘[wjhile the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’ We confine our interlocutory review to matters germane to the issue of immunity. Matters relevant to the merits of the underlying tort claim, such as issues of duty or causation, are best left to the trial court.... See Ryan v. Hayes, 831 So.2d 21, 32 (Ala.2002) (recognizing that the defense of immunity should, as a general rule, be determined as a threshold issue, thereby avoiding ‘development of unnecessarily restricted principles of tort law driven by the need to accommodate principles of State-agent immunity’).”

Ex parte Hudson, 866 So.2d 1115, 1120 (Ala.2003).

III. Analysis

APOSTC and Benefield’s immunity defense was presented in the brief in support of the motion for a summary judgment. The order entered by the trial court denying the motion failed to address the immunity issue. The petition for writ of mandamus asks this Court to review whether the trial court erred in denying APOSTC and Benefield’s motion for a summary judgment in which they asserted immunity as a defense.

A. State Immunity

Section 14, Ala. Const.1901, states “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” This Court has ruled that “[a] suit against a State agency, or against State agents in their official capacities, is a suit against the State.... State agents enjoy absolute immunity from suit in their official capacities.” Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002).

1. APOSTC

Section 36-21-41, Ala.Code 1975, creates the Alabama Peace Officers’ Standards and Training Commission. It is undisputed that the statutorily created commission is an agency of the State of Alabama. Accordingly, a suit against APOSTC is prohibited as a suit against the State. The trial court, therefore, erred in denying the motion for a summary judgment in favor of APOSTC. Burgoon, 835 So.2d at 133 (“A trial court must dismiss an action against a State agency or against a State agent acting in an official capacity at the earliest opportunity.”).

2. Benefield in his official capacity

The Vineses’ demands for prospective restoration of employment, wages, and benefits depend upon the official scope of Benefield’s authority. In their opposition to Benefield’s motion for a summary judgment, the Vineses attached Benefield’s affidavit, in which he states: “The only action I took with respect to the termination of Joey and Doby Vines was to communicate to Faulkner State University[] APOSTC’s decision to terminate them, and this action was taken in my official capacity as Executive Secretary of APOSTC.” The trial court erred in not entering a summary judgment on the claims against Benefield in his official capacity based upon State immunity. See Burgoon, supra.

B. State-Agent Immunity

A State agent does not enjoy absolute immunity when acting in his individual capacity. This Court has recognized limitations on State-agent immunity. In Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000), a plurality of the Court restated the law of State-agent immunity:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(b) allocating resources;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

In Ex parte Butts, 775 So.2d 173 (Ala.2000), a majority of this Court adopted the Cranman restatement of the rule governing State-agent immunity. Thus, State-agent immunity “ ‘does not protect State officers and employees under circumstances where a plaintiff alleges that they acted “willfully, maliciously, illegally, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of the law.” Phillips [v. Thomas, 555 So.2d 81, 83 (Ala.1989) ].’ ” Ex parte Town of Lowndesboro, 950 So.2d 1203, 1209 (Ala.2006) (quoting Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268 (Ala.2000)).

More than mere allegation is required, however, and this Court has prescribed the procedures to determine the applicability of the limitations on State-agent immunity under a given set of facts when such misconduct is alleged:

“This Court has established a ‘burden-shifting’ process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). ‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’” Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).”

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006)(emphasis added).

In their response in opposition to APOSTC and Benefield’s motion for a summary judgment, the Vineses argued that there existed “genuine issues of material fact such that judgment in favor of [APOSTC and Benefield] is not appropriate at this time.” As discussed above, the defense of immunity may be rebutted by a showing that the State agent’s conduct meets the exceptions to State-agent immunity as provided by Cranman. The Vines-es addressed the immunity issue by asserting that “Benefield ... in [his] individual capacity has] acted willfully, in bad faith, beyond [his] scope of authority and/or under a mistaken interpretation of law.”

The demands for compensatory and punitive damages for certain of Bene-field’s conduct in his individual capacity require more than the mere conclusory statements offered by the Vineses.

“In our review of [the plaintiffs] affidavit, we are mindful that we should view all facts stated in her affidavit most favorably to the plaintiff, but we are also mindful that ‘[s]ummary judgment is not prevented by “conclusory allegations” or “speculation” that a fact issue exists. Bare argument or conjecture will not satisfy a [nonmovant’s] burden to offer facts to defeat the motion.’ Riggs v. Bell, 564 So.2d 882, 885 (Ala.1990) (citations omitted). This Court has reiterated this principle frequently since Riggs, citing that case: McGarry v. Flournoy, 624 So.2d 1359, 1361 (Ala.1993); Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 878 (Ala.1994) (‘[M]ere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party’s burden to offer facts or to defeat the motion.’); Black burn v. State Farm Auto. Ins. Co., 652 So.2d 1140, 1142 (Ala.1994); Huff v. United Ins. Co. of America, 674 So.2d 21, 24 (Ala.1995); and Reid v. Jefferson County, 672 So.2d 1285, 1290 (Ala.1995) (‘[the nonmovant’s] statements are con-clusory. Thus, those statements do not constitute substantial evidence and, therefore, do not warrant submitting [his] claim to the jury’). This Court has stated: ‘[A party opposing a summary-judgment motion] must present facts, not merely inferences based upon belief, that counter facts offered in support of the motion.’ Davis v. Ford Motor Credit Co., 599 So.2d 1123, 1125 (Ala.1992).”

Brown ex rel. Brown v. St. Vincent’s Hosp., 899 So.2d 227, 238-39 (Ala.2004). The Vineses had the burden of presenting evidence indicating that Benefield acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority when he performed the duties associated with “hiring, firing, transferring, assigning, or supervising personnel.” Cranman, 792 So.2d at 405. The Vineses, with their con-clusory allegations, failed to meet their burden. Therefore, the trial court should have granted the motion for a summary judgment as to Benefield in his individual capacity based upon the prima facie showing he made of State-agent immunity.

Moreover, as stated previously, the Vineses offered no evidence indicating that Benefield was more than a mere agent for APOSTC, the entity that directed the termination of the Vineses’ employment. Consequently, the Vineses have not offered substantial evidence indicating that Benefield acted willfully, in bad faith, beyond his authority, or under a mistaken interpretation of law when he reported the decision of APOSTC to terminate the employment of all SWAPA part-time employees, including the Vineses.

IV. Conclusion

Consequently, the petition for the writ of mandamus is granted and the writ issued; the trial court is directed to dismiss the claims against APOSTC and against Benefield in his official capacity, because, based on State immunity, the trial court acquired no subject-matter jurisdiction over them, and to enter a summary judgment as to the claims against Benefield in his individual capacity.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, and SHAW, JJ., concur.

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

MURDOCK, Justice

(concurring in the result).

I concur in the result. See Ex parte Sawyer, 984 So.2d 1100 (Ala.2007) (Murdock, J., concurring in the result).

      . Branch was sued in his capacity as president of Faulkner State Community College, which provided classroom space, facilities-related services, and payroll services to SWA-PA. In response to Branch's petition, this Court issued a writ of mandamus directing the dismissal of all claims against Branch. See Ex parte Branch, 980 So.2d 981 (Ala.2007).

      . "Under a 'joint-use agreement' ... Faulkner State [Community College] allowed SWAPA to operate on its property, provided classroom space and facilities-related services, and provided payroll services to SWAPA.” Ex parte Branch, 980 So.2d at 983.