author: MYERS, P. J.,

text:
    Albert JOINER, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2009-CA-00220-COA.
    Court of Appeals of Mississippi.
    Feb. 9, 2010.
    Rehearing Denied May 25, 2010.

      James D. Minor, Oxford, attorney for appellant.
    Office of Attorney General, by Lisa Lynn Blount, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P. J.,

for the Court.

¶ 1. Albert Joiner, Jr., pleaded guilty in the Lafayette County Circuit Court to the crimes of strong armed robbery and felony fleeing. He was sentenced as a habitual offender to fifteen years and four years, respectively, with the sentences to run consecutively, without the eligibility for probation or parole. Joiner thereafter filed a motion for post-conviction relief (PCR) in the circuit court, in which he claimed that he was improperly charged and sentenced under Mississippi’s habitual-offender statute, and that he was not afforded constitutionally effective assistance of counsel. The circuit court summarily dismissed the PCR motion. Joiner timely appeals that decision. Finding no error, we affirm the circuit court’s dismissal.

FACTS

¶2. On February 23, 2007, Joiner was indicted on one count of robbery with a deadly weapon as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2000). Thereafter, on September 24, 2007, Joiner was also indicted for felony fleeing and felon in possession of a deadly weapon as a habitual offender. Pursuant to a plea agreement with the State, Joiner petitioned the court to enter a plea of guilty to a reduced charge of strong armed robbery as a habitual offender. As part of that same plea agreement, Joiner also petitioned the court to enter a plea of guilty to felony fleeing as a habitual offender.

¶ 3. After ascertaining that each respective plea was knowing, intelligent, and voluntary, the circuit court accepted both guilty pleas. The circuit court then sentenced Joiner to fifteen years for strong armed robbery as a habitual offender and four years for felony fleeing as a habitual offender with the sentences to run consecutively, for a total of nineteen years in the custody of the Mississippi Department of Corrections, without eligibility for probation or parole.

DISCUSSION

¶ 4. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “if ‘it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’” Staggs v. State, 960 So.2d 563, 565(¶ 2) (Miss.Ct.App.2007) (quoting Miss. Code Ann. § 99-39-11(2) (Rev.2000)). This Court will affirm the summary dismissal of a PCR motion “if the petitioner has failed to demonstrate a claim procedurally alive substantially showing [the] denial of a state or federal right....” Flowers v. State, 978 So.2d 1281, 1283(¶ 5) (Miss.Ct.App.2008) (citation and internal quotations omitted).

I. Joiner’s Indictment and Sentence as a Habitual Offender

¶ 5. Joiner first contends that the indictment charging him with armed robbery was defective because his indictment did not properly conclude with the words “against the peace and dignity of the State,” thereby violating Article 6, Section 169 of the Mississippi Constitution of 1890. Joiner also claims that the State failed to prove his habitual-offender status for sentencing. He urges this Court to remand the matter back to the circuit court for re-sentencing without the habitual-offender status. We find no merit to either claim.

A. Indictment

¶ 6. Under Mississippi law, any non-jurisdictional defect in an indictment or information against a defendant is considered waived when a defendant enters a valid plea of guilty. Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). In Foster v. State, 716 So.2d 538, 539(¶ 4) (Miss.1998), the defendant presented a similar argument as the one presently before this Court—that his indictment was invalid because the section charging him as a habitual offender came after the words “against the peace and dignity of the State of Mississippi.” The supreme court dismissed this argument, holding that any challenge to the validity of the indictment was waived when David Foster entered a valid guilty plea. Id. at (¶ 5) (citing Brandan v. State, 662 So.2d 1051, 1054-55 (Miss.1995)).

¶ 7. Here, Joiner entered a valid plea of guilty to the crime of strong armed robbery, a lesser offense to the crime of armed robbery charged in the indictment. Having done so, Joiner may not now challenge the validity of the indictment for the alleged defect he claims exists therein. Id.

¶ 8. For the sake of thoroughness, however, we note that the indictment contained in the record before this Court is not defective; it properly concludes with the language, “against the peace and dignity of the State,” as contemplated by Article 6, Section 169. See generally Starling v. State, 90 Miss. 255, 271-72, 43 So. 952, 955 (1907). The phrase appears twice in the two page indictment, first, on page one following the charging paragraph, and then again on page two after the detailed portion of the indictment charging Joiner as a habitual offender.

¶ 9. The portion which Joiner refers to as following the Section 169 language, is the signatures of the assistant district attorney, the grand jury foreman, and the deputy clerk. As has been previously noted by this Court, “[t]he last required item[s] on the indictment document [are] the signature[s], while the ‘peace and dignity1 language is the last phrase in the text of the indictment following the charging language and before the signature[s].” See Stephens v. State, 739 So.2d 413, 415(¶ 9) (Miss.Ct.App.1999) (citing McNeal v. State, 658 So.2d 1345, 1348-50 (Miss. 1995)).

¶ 10. Accordingly, we find no defect in the indictment as herein alleged by Joiner.

B. Proof of Habitual-Offender Status

¶ 11. Joiner argues that, assuming the validity of the indictment, the State would still have to set forth evidence of his prior convictions. Joiner contends that no proof was presented at his plea hearing as to whether he was a previously-convicted felon.

¶ 12. In order to be sentenced as a habitual offender, the State is required to properly indict the accused as a habitual offender, then prove the prior offenses by competent evidence beyond a reasonable doubt, and provide the accused a reasonable opportunity to challenge the State’s proof. Madden v. State, 991 So.2d 1231, 1236(¶ 20) (Miss.Ct.App.2008) (citation omitted). However, when the accused makes a valid decision to forego his or her right to a criminal trial and instead pleads guilty to the principal offense as a habitual offender, he or she waives the right that the prosecution must prove the prior offense(s) beyond a reasonable doubt. Id. (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)).

¶ 13. Joiner’s indictment delineated five previous felony offenses for which he was convicted. In Joiner’s plea petition, which he signed, he admitted that he had been previously convicted of the same felony offenses set forth in the indictment, which he listed as follows: grand larceny, simple assault on a law enforcement officer (two counts), attempted armed robbery, and burglary.

¶ 14. Thus, having submitted a plea petition to the circuit court in which he admitted to these prior felony convictions and having then entered a valid guilty plea to the principal offense as a habitual offender, we find that the circuit court properly sentenced Joiner as a habitual offender.

II. Ineffective Assistance of Counsel

¶ 15. Joiner contends that he received constitutionally ineffective assistance of counsel based upon his trial counsel’s having allowed him to plead guilty as a habitual offender without proof or evidence of his prior convictions. Having found that Joiner was properly sentenced as a habitual offender, this issue is moot.

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

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Jamal Antwan PRITCHETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00325-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
   GRIFFIS, J.,

for the Court:

¶ 1. Jamal Pritchett was convicted of robbery by use of a deadly weapon and sentenced to ten years in the custody of the Mississippi Department of Corrections. On appeal, Pritchett claims that the circuit court: (1) erred in allowing evidence regarding gang membership because the State did not lay a proper foundation to show a connection between gang membership and the, crime and (2) erred in denying his motion for a new trial because the verdict is against overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On October 17, 2007, Pritchett visited a Texaco gas station near the Highway 39 and 45 by-pass in Meridian, Mississippi. There was only one older clerk working at the gas station. Pritchett later visited some friends, and they collectively decided to rob a store. The group chose to rob the Texaco, so they obtained a gun.

¶ 3. After 3:00 a.m., Pritchett, Rodrickas Marsh, and Octavious McNeil arrived at the Texaco gas station. Pritchett agreed to enter the store first and wave when it was clear for Marsh and McNeil to enter. Marsh testified that Pritchett entered the store first. Marsh and McNeil, who were masked and armed, entered and robbed the clerk at gunpoint. After the robbery, Pritchett left the store followed closely by Marsh and McNeil.

¶ 4. After leaving the store, Pritchett, Marsh, and McNeil split up the money and talked about the robbery. McNeil testified that Pritchett’s role was to go into the store and wave his hand to let them know if everything was clear so he and Marsh could come inside. On the video surveillance from the Texaco gas station, Pritch-ett is shown waving his hand shortly before the other two entered the gas station.

¶ 5. Although Pritchett claims he had nothing to do with the robbery, he was in the same vehicle as Marsh and McNeil. Both Marsh and McNeil testified that they were involved in the robbery of the store and testified that Pritchett was also involved.

¶ 6. After a trial on December 10, 2008, the jury found Pritchett guilty of robbery by use of a deadly weapon.

ANALYSIS

1. Did the circuit court err in allowing the jury to hear evidence about gang membership?

¶ 7. Pritchett argues that the circuit court erred in allowing the jury to hear evidence about Pritchett’s alleged involvement in a gang. The State responds that any reference to Pritchett’s connection with a gang was minimal and harmless to Pritchett’s defense.

¶ 8. The circuit judge “enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence.” Shearer v. State, 423 So.2d 824, 826 (Miss. 1982). We will not reverse the ruling of a circuit judge unless he abused his discretion and caused the accused to experience prejudice. Id.

¶9. In a statement given to Detective Jay Arrington with the Meridian Police Department, Pritchett admitted that two of the people with him on the night of the robbery were in the same gang, and two others were in a different gang. Defense counsel objected to this reference to gangs in a pre-trial hearing and without the jury present. The prosecutor argued that the statement showed a possible gang connection and should be admitted. The circuit judge ruled that the statement was admissible. There was no mention of a gang affiliation or any attention drawn to that wording within those documents during trial.

¶ 10. During his testimony, Detective Arrington mentioned the word gang twice in reference to the decor of the room where the gun was found during the search of a home that was not Pritchett’s. The only other time that the word gang was used was during the prosecutor’s closing argument when he argued that Pritch-ett had helped plan this crime in a room decorated with “pitchfork and six pronged stars on the wall.” The jury heard the word gang a minimal amount of times, and it was never told that Pritchett was in a gang.

¶ 11. Evidence of bad acts will be admitted under Mississippi Rule of Evidence 404(b) if they are introduced to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Denham v. State, 966 So.2d 894, 899 (¶ 18) (Miss.Ct.App.2007) (quoting M.R.E. 404(b)). Here, the circuit judge found that Pritchett’s statement regarding his gang membership was relevant under Mississippi Rule of Evidence 401. Mississippi Rule of Evidence 401 “makes no distinction between relevancy and materiality.” M.R.E. 401(a) cmt. If the evidence has any probative value at all, the rule favors its admission. Id. The circuit judge found that the evidence had some probative weight and that its probative value substantially outweighed the danger of unfair prejudice. M.R.E. 403. The court also determined that limited statements about gang membership went to show possible motive, opportunity, intent, or preparation. M.R.E. 404(b).

¶ 12. “Evidence of other bad acts committed by a defendant is not generally admissible as a part of the State’s case-in-chief.” Powell v. State, 878 So.2d 144, 149 (¶ 21) (Miss.Ct.App.2004). However, the sparse reference by the State to Pritch-ett’s possible gang membership was not part of the State’s case-in-chief. As we find no abuse of discretion by the circuit judge, this issue is without merit.

2. Is the jury’s verdict against the overwhelming weight of the evidence?

¶ 13. Pritchett claims that the jury’s verdict is against the overwhelming weight of the evidence. The State counters that there was an ample amount of evidence to support the jury’s verdict.

¶ 14. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The appellate court must accept as true all evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Swann v. State, 806 So.2d 1111, 1117 (¶25) (Miss.2002) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. “This court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

¶ 15. Here, there was a substantial amount of evidence against Pritchett. There are surveillance videos that documented both of his visits to the Texaco gas station. The jury heard his co-defendants testify that Pritchett was involved with the planning and execution of the robbery. In fact, McNeil testified that Pritchett was the lookout, and Pritchett was supposed to wave his hand if it was clear to rob the clerk. The surveillance video shows Pritchett waiving his hand shortly before the clerk was robbed.

¶ 16. After the jury watched the videos and heard the evidence, they found Pritch-ett guilty. The evidence supports this finding. No unconscionable injustice will result by allowing this verdict to stand.

¶ 17. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of the witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425 (¶8) (Miss.Ct.App.1999) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)). The jury’s verdict is not against the overwhelming weight of the evidence, and the circuit court properly denied Pritchett’s motion for a new trial. Thus, this issue has no merit.

¶ 18. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY BY USE OF A DEADLY WEAPON AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $500 FINE, $1000 TO THE VICTIMS’ COMPENSATION FUND, AND RESTITUTION OF $207 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.


author: BARNES, J.,

text:
    PREFERRED TRANSPORT COMPANY, LLC, Appellant/Cross-Appellee v. CLAIBORNE COUNTY BOARD OF SUPERVISORS, Appellee/Cross-Appellant.
    No. 2008-CA-01532-COA.
    Court of Appeals of Mississippi.
    April 6, 2010.

      Robert C. Latham, Jeremy Peter Diamond, attorneys for appellant.
    J. Lawson Hester, Jacqueline H. Ray, attorneys for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Preferred Transport Company, LLC (PTC) is appealing an order from the Claiborne County Circuit Court addressing PTC’s complaint against the Claiborne County Board of Supervisors (the Board). In its original complaint, PTC claimed that the Board’s award of a bid for solid waste disposal to another company was in violation of statutory authority as the bid award was based on factors not contained in the Request for Proposals (RFP). In its order, the circuit court agreed with PTC, ruling that the Board violated statutory authority in its consideration of factors outside the bid documents and ordering the bid process to be reopened. PTC argues on appeal that the circuit court should have awarded the contract to PTC based on its lowest bid price or, in the alternative, awarded it compensatory damages and attorney’s fees. The Board cross-appealed the circuit court’s holding that it violated statutory authority. Finding no error, we affirm on direct and cross-appeal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In January 2008, the Board requested competitive proposals for the collection and disposal of solid waste pursuant to Mississippi Code Annotated section 31-7-13(r) (Supp.2007). Both PTC, the company currently performing the service, and HomeBase Litter Control, LLC (Home-Base), a local start-up company, submitted sealed proposals to the Board. On February 21, 2008, the Board unsealed and reviewed the proposals. PTC submitted a proposal of $9.77 per household for an annual cost of $386,071.32. HomeBase submitted a proposal of $13 per household for an annual cost of $513,078.

¶ 3. At a meeting on March 3, 2008, the Board entertained the motion to award the contract for solid waste disposal. The president of the Board requested an opinion from its attorney as to the rules governing the Board’s actions in accepting a competitive proposal. The attorney informed the Board that the relevant statutory authority, Mississippi Code Annotated section 31-7-13, states that the Board could consider “price, technology, and other factors.” The attorney further said that “other relevant factors” would be “local employment, local access, and providing economic development opportunities to qualified local residents.” The Board then invited comments from the representatives of HomeBase and PTC. HomeBase, which is owned by a county resident, submitted that it intended to hire local employees and planned to give special services to the elderly. HomeBase also outlined its plan for obtaining financing and equipment. PTC stated that it had provided quality services for the county for the past six years and that it had the lowest proposal. After some discussion, the Board awarded the contract to HomeBase, citing the economic-development benefits of using a local contractor. The Board then entered into further negotiations with HomeBase, which subsequently agreed to lower its household price to $11, making the annual cost $434,676, which was still $48,604.68 more than PTC’s annual cost.

¶ 4. On March 13, 2008, PTC filed a Notice of Appeal and Bill of Exceptions with the Claiborne County Circuit Court. PTC claimed that the factors cited in the meeting were not outlined in the RFP; therefore, the Board’s reliance on such factors was a violation of section 31-7-13. In its order filed on August 6, 2008, the circuit court agreed with PTC’s claim that the Board had exceeded statutory authority in considering factors not in the RFP. However, rather than awarding the contract to PTC as requested, the circuit court ordered the Board to reopen the request for proposal process to include such factors in the RFP. The circuit court did not address the issue of compensatory damages sought by PTC. A notice of appeal was filed by PTC on September 2, 2008, on the issues of the award of the contract and damages. The Board filed a notice of cross-appeal on September 16, 2008, claiming that the circuit court’s holding, that it violated statutory authority, was in error.

STANDARD OF REVIEW

¶ 5. Our review of a decision by a county board of supervisors is limited. Billy E. Burnett, Inc. v. Pontotoc County Bd. of Supervisors, 940 So.2d 241, 242-43 (¶ 5) (Miss.Ct.App.2006). We will not set aside the decision unless it is “clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evidentiary basis.” Id. at 243 (citations omitted). “As to questions of law, however, the Board’s decision will be reviewed de novo.” A & F Properties, LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 300 (¶ 6) (Miss.2006). We also employ a de novo review in “issues of statutory interpretation.” Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 10) (Miss.2007) (citing Weiner v. Meredith, 943 So.2d 692, 694 (¶ 5) (Miss.2006)).

I. Whether the circuit court correctly held that the Board exceeded its discretion by considering factors not included in the bid documents.

¶ 6. PTC submits that the circuit court correctly held that the Board exceeded its authority in considering other factors not contained in the request for proposal documents. However, in its cross-appeal, the Board contends that it should have been allowed to consider the “other relevant factors” submitted by HomeBase, and that its decision was not “arbitrary, capricious, discriminatory, illegal or without substantial evidentiary basis.” The Board further submits that the statute does not place limits on the information that a bidder may submit in support of its bid and that it selected the “lowest and best bid,” pursuant to Mississippi Code Annotated section 31 — 7—13(d) (Supp.2009), based upon the bid submissions.

¶ 7. We agree with the Board “that where the law allows a governing authority to determine the lowest and best bidder, it is permissible for factors other than price to be considered.” Billy E. Burnett, Inc., 940 So.2d at 243 (¶ 6) (citations omitted). These factors may include “the bidder’s honesty and integrity, the bidder’s skill and business judgment, the bidder’s experience and facilities for carrying out the contract, the bidder’s conduct under previous contracts, and the quality of work previously done by the bidder.” Id. However, the Mississippi Supreme Court has also noted that, although “governing authorities have a measure of discretion in awarding public contracts[,]” this discretion only exists “where it is supported by statute.” Hemphill Const. Co., Inc. v. City of Laurel, 760 So.2d 720, 723 (IT 13) (Miss.2000).

¶ 8. Mississippi Code Annotated section 31-7-13 addresses the rules regarding bidding requirements for public purchases. However, under section 31-7-13(m)(xxii) (Supp.2007 and Supp.2009), garbage, solid waste and sewage contracts are excepted from the bidding requirements of section 31-7-13. Rather, these types of contracts are addressed in subsection (r), entitled “Solid waste contract proposal procedure.” This subsection states, in pertinent part, that:

Any request for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, legal responsibilities and other relevant factors as are determined by the governing authority or agency to be appropriate for inclusion; all factors determined relevant by the governing authority or agency or required by this paragraph (r) shall be duly included in the advertisement to elicit proposals. After responses to the request for proposals have been duly received, the governing authority or agency shall select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter contracts with one or more of the persons or firms submitting proposals.

(Supp.2007 and Supp.2009) (Emphasis added). When interpreting the construction of a statute, the term “shall” renders the action mandatory. Franklin v. Franklin ex rel. Phillips, 858 So.2d 110, 115 (¶ 15) (Miss.2003). Although both parties reference section 31 — 7—13(d)(i) to support their differing views on what constitutes the “lowest and best bid,” we must reiterate that this portion of the statute is not applicable to the type of contract before us. Subsection (r) is the sole authority of the proposal process for solid waste disposal; therefore, the Board was not under the obligation to select the “lowest and best bid,” but “the most qualified proposal or proposals.”

¶ 9. In the present case, there was no issue with the quality of PTC’s prior services to the County or the fact that it submitted the lowest proposal. However, the Board based its award on factors which HomeBase unilaterally included in its proposal (i.e., the company is owned by a local resident, would offer special services for elderly customers, and provide employment for local residents). PTC was unaware until the hearing before the Board that these factors, which were not included in the RFP, were even to be considered. Local economic development and services for the elderly are certainly factors worthy of the Board’s consideration, and HomeBase’s proposal may have been the “most qualified” based upon these factors. However, the Board’s consideration of these “other relevant factors” in awarding the contract, when it had failed to include them in the RFP, was a violation of section 31-7-18(r) which requires that “all factors determined relevant by the governing authority ... shall be duly included in the advertisement to elicit proposals.” Although the RFP did state that the Board could “reject any or all proposals,” it also stated that the Board reserved the right “to make an award, consistent with law, deemed in the best interest of the County.” (Emphasis added). Once the Board determined that it was going to consider these “other relevant factors,” the Board should have re-instituted the request for proposal process; failing to do so was not “consistent with law.” Merely raising these factors at the hearing on the proposals did not cure this error. PTC, relying on its six years of service to the County and its lower proposal cost, was not aware that these factors would be considered relevant until immediately prior to the award of the contract at the hearing.

¶ 10. We feel it necessary to address a recent case by this Court, Wastewater Plant Service Co., Inc. v. Harrison County Utility Authority, 28 So.3d 686 (Miss.Ct. App.2010), which was decided subsequent to the briefing by the parties. In Waste-water, this Court held that it was proper for the board of directors for the county’s utility authority to consider other factors such as efficiency, qualifications, and quality in making its award. However, our holding in that case may be distinguished from the present one as it involved an RFP which clearly stated that it would take into account, not only price, but “other evaluation factors.” Here, the RFP stated, in pertinent part, that: “Proposals for refuse collection service and for disposal service are solicited on the basis of rates for each type of work. Proposals will be compared on the basis of the summation of the rates proposed.” (Emphasis added). There was no mention of other factors to be considered. Thus, we find Wastewater Plant Service Co., Inc. is not controlling precedent in this case.

¶ 11. Accordingly, we find that the circuit court did not err in holding that the Board’s consideration of such factors was in violation of statutory authority and affirm on this issue.

II. Whether the Board’s finding, that PTC was not the lowest and best bid, was arbitrary, capricious, discriminatory, illegal, or was not supported by substantial evidence by considering factors of local employment, local access, and providing economic-development opportunities to qualified local residents as relevant factors.

¶ 12. The Board, in its cross-appeal, further claims that its actions were not arbitrary or capricious and were supported by substantial evidence. We will not disturb the findings of a board of supervisors on appeal unless the findings are arbitrary or capricious, not supported by substantial evidence, or violate a statutory “right of the complaining party.” Miss. Waste of Hancock County, Inc. v. Bd. of Supervisors of Hancock County, 818 So.2d 326, 330 (¶ 6) (Miss.2001) (citation omitted). The Board’s failure to include these “other relevant factors” in its RFP, but then to consider them in awarding the contract to HomeBase, was a violation of PTC’s right under Mississippi Code Annotated section 31-7-13(r) to have all factors determined relevant by the Board included in the advertisement for proposals. Accordingly, we must reject the Board’s argument on this issue.

III. Whether the circuit court erred by deviating from the statutory relief of awarding the solid waste collection contract to PTC, or in the alternative, awarding compensatory damages to PTC.

¶ 13. PTC argues that the circuit court had the statutory authority to award the contract to PTC pursuant to Mississippi Code Annotated section 11-51-75 (Rev. 2002) or, alternatively, to award it compensatory damages and attorney’s fees. Section 11-51-75 states that “[i]f the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities.”

¶ 14. Section 31-7-13(r) states, in pertinent part, that: “If the governing authority or agency deems none of the proposals to be qualified or otherwise acceptable, the request for proposals process may be rein-itiated.” Therefore, as the Board had statutory authority to reopen the proposal process, we find no error in the circuit court’s use of this procedure as an available remedy-

¶ 15. Further, to support its contention for an award of compensatory damages, PTC cites to City of Durant v. Laws Construction Co., 721 So.2d 598, 606 (¶ 34) (Miss.1998), where the Mississippi Supreme Court affirmed an award of damages to Laws Construction as the City of Durant, Mississippi failed to follow the bidding requirements under the applicable statute. However, Laws is distinguishable from the present case in that the construction contract, which was awarded in violation of Mississippi Code Annotated section 31-3-21 (Rev.1990), had been substantially completed by another vendor. Thus, it was impossible to award the contract to Laws Construction at that point and only an award of damages would be an equitable remedy. Id. at 605 (¶ 28). Conversely, in the present case, we have an ongoing services contract which can be renewed upon the award of a new contract at the closing of the request for proposal process. Therefore, we do not find that an award of compensatory damages was warranted.

¶ 16. The Board also contends that it was immune from an imposition of damages based upon “legislative immunity” and under the Mississippi Tort Claims Act. However, we decline to address this issue as it is moot based upon our holding.

¶ 17. We find no error in the circuit court’s order to re-institute the RFP process and affirm on this issue.'

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPELLEE/CROSS-APPELLANT.

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

      . Two other companies submitted bids, Southern Waste Management and Southern Landfill Management. However, their bids were not given extensive consideration by the Board and are irrelevant to the issues before this Court.

      . The circuit court also allowed HomeBase to continue to provide services until such time as the re-bidding process could be opened.

      . Section 31 —7— 13(d)(i) states that:
      If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No agency or governing authority shall accept a bid based on items not included in the specifications.
      (Supp.2007 and Supp.2009) (emphasis added).

      . HomeBase is currently providing services for the County in the interim based upon tire court's order so that the County may provide services to its residents without interruption.

      . Miss.Code Ann. § 11-46-1 to -23 (Rev. 2002).


author: STUART, Justice. MURDOCK, Justice

text:
    Tony R. SMITH and Smith & Weems Investments, LLC v. SLACK ALOST DEVELOPMENT SERVICES OF ALABAMA, LLC. Jerry E. Hazel v. Slack Alost Development Services of Alabama, LLC.
    1080069 and 1080074.
    Supreme Court of Alabama.
    June 26, 2009.
    Rehearing Denied Sept. 18, 2009.

      Carl E. Chamblee, Jr., of Chamblee & Malone, LLC, Birmingham, for appellants.
    Windy C. Bitzer and Jack Smalley III of Hand Arendall LLC, Mobile; and Michael C. Niemeyer of Hand Arendall LLC, Fair-hope, for appellee.
   STUART, Justice.

These consolidated appeals arise from two separate breach-of-contract actions filed in the Baldwin Circuit Court by Slack Alost Development Services of Alabama, LLC (“Slack Alost”), against individuals who failed to close on condominiums they had contracted to purchase in Slack Alost’s Bel Sole development in Gulf Shores. In the underlying action in appeal no. 1080069, Slack Alost sued Tony R. Smith and Albert Weems, who is not a party to the appeal, for failing to complete their condominium purchase, and in the underlying action in appeal no. 1080074, Slack Alost sued Jerry E. Hazel for failing to complete his condominium purchase. On August 19, 2008, the trial court entered a summary judgment against Weems and awarded Slack Alost $166,424. That same date, it also entered a summary judgment against Hazel and awarded Slack Alost $120,522. Smith and Smith & Weems Investments, LLC, which provided earnest money in the form of a letter of credit on behalf of Weems, and which was added as an indispensable party pursuant to Rule 19(a), Ala. R. Civ. P., now appeal the summary judgment entered against Weems, and Hazel appeals the judgment entered against him. We dismiss the appeal filed by Smith and Smith & Weems Investments in appeal no. 1080069, and we reverse the judgment entered against Hazel in appeal no. 1080074.

I.

On July 22, 2005, Slack Alost and Weems entered into a preconstruction contract whereby Weems agreed to purchase unit 901 in the Bel Sole condominium development for $820,000. The contract also identified Tony Smith as a purchaser and contains his purported signature and initials alongside Weems’s signature and initials. Smith, however, denies signing or initialing the contract; he alleges that his signature and initials were forged. The contract contained provisions requiring the purchasers to provide, within 15 days, an earnest-money deposit in the form of an irrevocable standby letter of credit in an amount equal to 20% of the purchase price, or $164,000, and authorizing Slack Alost to draw upon that letter of credit for the full amount if the purchasers failed to complete the purchase. In compliance with this provision, a letter of credit from Am-South Bank in that amount was delivered to White Sands, Inc., the escrow agent identified in the contract. The letter of credit was applied for by and issued on behalf of Smith & Weems Investments, LLG, a limited liability company of which Smith and Weems are the only two members. Smith testified in his deposition that both his and Weems’s signatures are required on any contract entered into by Smith & Weems Investments.

On November 17, 2005, Slack Alost and Hazel entered into a preconstruction contract whereby Hazel agreed to purchase unit 302 in the Bel Sole condominium development for $590,000. This contract was similar in all material respects to the contract entered into by Weems, and it required Hazel to provide, within 15 days, an earnest-money deposit in the form of an irrevocable standby letter of credit in an amount equal to 20% of the purchase price, or $118,000, and authorized Slack Alost to draw upon that letter of credit for the full amount if Hazel failed to complete his purchase. AmSouth Bank thereafter issued a letter of credit in that amount on behalf of Hazel and delivered it to the escrow agent, White Sands.

On January 19, 2007, Slack Alost sent a letter to Weems and Smith and another to Hazel informing them that construction on Bel Sole was near completion and asking them to schedule a closing on them respective units sometime during the week beginning Monday, February 5, and ending Friday, February 9, 2007. When none of the parties took any action to schedule the closings, Slack Alost scheduled Weems and Smith’s closing for April 2, 2007, and Hazel’s closing for April 5, 2007, and notified the parties by letter of the scheduled closings. Slack Alost alleges that it was ready, willing, and able to close on the two units on those dates; however, neither Weems or Smith nor Hazel appeared for their scheduled closings. Slack Alost therefore took the position that Weems, Smith, and Hazel were in default and requested that White Sands draw upon the respective standby letters of credit and disburse the proceeds to Slack Alost as provided in the sales contracts in the event the purchaser defaulted. White Sands responded that it would disburse the proceeds only with the written consent of all the parties or pursuant to a court order.

On May 15, 2007, Slack Alost sued Hazel, alleging that he breached his contract to purchase unit 802, and, on May 17, 2007, Slack Alost filed a separate action against Weems and Smith alleging that they breached their contract to purchase unit 901. Both actions also named White Sands as a defendant and sought injunc-tive relief against it based on its refusal to draw on the letters of credit. Slack Alost subsequently moved the trial court, pursuant to Rule 19(a), Ala. R. Civ. P., to add Smith & Weems Investments as a party in the case against Weems and Smith based on the fact that it was the entity named in the standby letter of credit issued by Am-South Bank. That motion was granted and, due to the similar allegations in the two complaints filed by Slack Alost, the trial court consolidated the two cases for discovery purposes.

In September 2007, Regions Bank — the successor to AmSouth Bank — notified White Sands that the letters of credit issued on behalf of Hazel and Smith & Weems Investments would expire on November 16, 2007, and November 28, 2007, respectively, and that it was not renewing those letters of credit. On October 12, 2007, Slack Alost moved the trial court to issue an injunction requiring White Sands to draw on both letters of credit and to deposit the proceeds with the court. White Sands joined in that motion and, on November 14, 2007, the motion was granted. The letters of credit were subsequently drawn upon and the proceeds were deposited with the court.

On June 24, 2008, Slack Alost filed separate motions seeking summary judgments against Hazel and Weems. Slack Alost did not move for a summary judgment against Smith or Smith & Weems Investments. On August 19, 2008, the trial court granted both motions and, after adding an appropriate amount for prejudgment interest, entered a judgment against Hazel for $120,522 and against Weems for $166,424. The trial court also directed the circuit court clerk to disburse to Slack Alost the funds previously deposited with the court. Hazel, Weems, Smith, and Smith & Weems Investments moved the trial court to reconsider its judgments; however, those motions were denied. Hazel then filed his notice of appeal, and Smith and Smith & Weems Investments filed a separate notice of appeal. Weems is not a party to that appeal.

II.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

We first consider Hazel’s appeal from the summary judgment entered against him (appeal no. 1080074). Hazel argues that he never received an offering statement as required by the Alabama Uniform Condominium Act, § 35-8A-101 et seq., Ala.Code 1975, and that he was accordingly entitled to cancel the contract he had entered into to purchase unit 302 without penalty. Section 35-8A-408 provides:

“(a) A person required to deliver an offering statement pursuant to section 35-8A-402(c) shall provide a purchaser of a unit with a copy of the offering statement and all amendments thereto before conveyance of that unit, and not later than the date of any contract of sale. Unless a purchaser is given the offering statement more than seven days before execution of a contract for the purchase of a unit, the purchaser may cancel the contract, or rescind the conveyance if a conveyance has already occurred, within seven days after first receiving the offering statement.
“(b) If a purchaser elects to cancel a contract or conveyance pursuant to subsection (a), he may do so by hand-delivering notice thereof to the offeror or by mailing notice thereof by prepaid United States mail to the offeror or to his agent for service of process. Cancellation is without penalty, and all payments made by the purchaser before cancellation shall be refunded promptly.
“(c) If a person required to deliver an offering statement pursuant to section 35-8A-402(c) fails to provide a purchaser to whom a unit is conveyed with that offering statement and all amendments thereto as required by subsection (a), the purchaser, at the purchaser’s option and in lieu of any rights to damages or other relief, is entitled to receive from that person an amount equal to five percent of the sales price of the unit at anytime prior to the expiration of six months from the date of conveyance of the unit, plus five percent of the share, proportionate to his common expense liability, of any indebtedness of the association secured by security interests encumbering the condominium.”

In conjunction with the construction of the Bel Sole condominium development, Slack Alost produced an offering statement dated July 1, 2005, and an amended offering statement dated January 5, 2007. Hazel alleges that Slack Alost failed to deliver either of these offering statements to him and that he did not receive them until after Slack Alost commenced this litigation. He further alleges that, pursuant to § 35-8A-408, he rescinded his contract to purchase unit 302 by a letter from his attorney to Slack Alost dated April 30, 2007.

Slack Alost, however, argues that Hazel not only received an offering statement when he signed the sales contract for unit 302, but he also specifically initialed and dated paragraph 15 of that contract, which provides that the “ [purchaser acknowledges receipt of a copy of the offering statement with respect to the unit and the condominium prepared in accordance with the Alabama Uniform Condominium Act ... and purchaser represents that purchaser has read and is familiar with the provisions thereof.” Moreover, Slack Alost submitted to the trial court in conjunction with its motion for a summary judgment the following deposition testimony of Hazel’s in which he admitted initialing paragraph 15:

“Q. When you got — when you signed Plaintiffs Exhibit 17, the pre-con-struction contract for unit 302, were you provided with a copy?
“A. Of the contract?
“Q. Yes.
“A. Yes.
“Q. What other documents were you provided?
“A. Did I provide?
“Q. What other documents were you provided?
“A. Oh, that I was provided? None that I know of.
“Q. Okay. Did you read the contract before you signed it?
“A. No, sir.
“Q. Okay. Did you understand when you signed it you were responsible for the contents of the contract and having read it and know what it said?
“A. Yes, sir. Yes, sir.
“Q. Is it your contention in this lawsuit and here under oath that you never received a copy of the offering statement for this project?
“A. I never received one that I know of, and let me preface that by saying I have everything that I ever got on Bel Sole in a file at home just like I have everything that I got from Island Towers and Legacy Key in a file. There was no offering statement. I did get an offering statement with Island Towers. I did not get one from Bel Sole.
“Q. You initialed, on November 10th, 2005, a statement acknowledging your receipt of the offering statement for Bel Sole, correct?
“A. Yes, sir, I initialed it.
“Q. Okay. And your initial is — you understood to be recognition, by anybody reading this contract, that you had received that offering statement?
“A. Yes, sir.”

Thus, in spite of the fact that he acknowledges signing a contract specifically indicating that he did receive the original offering statement, Hazel now maintains that he did not actually receive that offering statement, offering as evidence the fact that he cannot find it in his files. Ultimately, however, whether Hazel received the original offering statement is immaterial to the resolution of this appeal because there is no evidence in the record indicating that Hazel received the January 5, 2007, amended offering statement, which, under § 35-8A-408(a), Slack Alost was also required to provide Hazel. See Commissioners’ Commentary to § 35-8A-408 (“Subsection (a) requires that each purchaser be provided with both the offering statement and all amendments thereto pri- or to the time that the unit is conveyed. If there is a contract for the sale of the unit, these documents must be provided not later than the date of the contract. The section makes clear that any amendments to the offering statement prepared between the date of any contract and the date of conveyance must also be provided to the purchaser.”). When asked at his deposition if he had ever received an offering statement from Bel Sole, Hazel stated: “I never received one that I know of .... I did not get one from Bel Sole.” Although Slack Alost has submitted evidence indicating that Hazel did, in fact, receive the July 1, 2005, offering statement, it has submitted no evidence indicating that Hazel received the January 5, 2007, amended offering statement. A genuine issue of material fact therefore exists on this point, and the summary judgment entered against Hazel is due to be reversed for that reason and the case remanded. Accordingly, we need not consider the other arguments raised by Hazel in his appeal.

IV.

We next consider the appeal filed by Smith and Smith & Weems Investments (appeal no. 1080069). After that appeal was filed, Slack Alost moved this Court to dismiss the appeal, arguing, first, that Smith and Smith & Weems Investments lacked standing to appeal the summary judgment entered against Weems because they were not a party to it and, second, that the summary judgment they sought to appeal was a nonfinal judgment because there was still an outstanding claim against Smith. For the reasons that follow, we dismiss the appeal.

As a matter of procedure, this Court routinely remands causes to the trial court on the basis that the judgment being appealed is not a final judgment if the appellant is seeking review of a judgment that failed to resolve all the claims asserted in that action, unless the trial court has expressly invoked Rule 54(b), Ala. R. Civ. P., so as to make that judgment final. Foster v. Greer & Sons, Inc., 446 So.2d 605, 609-10 (Ala.1984). Accordingly, on February 2, 2009, this Court remanded the cause for the trial court to determine whether (1) to make the judgment entered against Weems final pursuant to Rule 54(b), Ala. R. Civ. P.; (2) to adjudicate the remaining claim against Smith, thus making the judgment entered against Weems final and appealable; or (3) to take no action, in which ease the appeal filed by Smith and Smith & Weems Investments (no. 1080069) would be dismissed as being from a nonfi-nal judgment. On February 17, 2009, the trial court entered an order certifying the judgment entered against Weems as final pursuant to Rule 54(b).

“If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.” Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007) (emphasis added). The exception to that rule is that this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is “no just reason for delay.” Rule 54(b); see also Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1279 (Ala.2009) (“Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against Guthrie, thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court’s conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding”). This Court has previously held that a trial court exceeds its discretion in this area when the claim or claims that remain pending in the trial court present issues that are “intertwined” with the issues presented in the claim certified as final pursuant to Rule 54(b). See, e.g., Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008) (“It would accordingly be contrary to the interests of justice to adjudicate these remaining claims against Gonzales and Elizondo separately from the claims against the other defendants; the common issues are intertwined.”).

In the instant case, it is apparent that at least some of the issues presented in the still pending claim against Smith are the same as the issues presented in the appeal now brought by Smith and Smith & Weems Investments. Weems and Smith are business partners accused of breaching the same real-estate contract, and, as Hazel did, Weems and Smith have both argued that Slack Alost never presented them with the original offering statement or the amended offering statement for the Bel Sole condominium development, in violation of § 35-8A-408. In Centennial Associates, Ltd., we stated that “ ‘[i]t is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.’ ” 20 So.3d at 1281 (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)). Repeated appellate review of the same underlying facts would be a probability in this case, and, in light of this Court’s stated policy disfavoring appellate review in a piecemeal fashion, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004), we accordingly hold that the trial court exceeded its discretion in certifying the judgment entered against Weems as final pursuant to Rule 54(b). Appeal no. 1080069 is therefore dismissed.

V.

The trial court entered a summary judgment in favor of Slack Alost and against Hazel in appeal no. 1080074. However, because Hazel has demonstrated that there is a genuine issue of material fact as to whether he was provided the amended offering statement for Bel Sole as required by § 35-8A-408, the judgment entered against him is hereby reversed and the cause remanded to the trial court.

In appeal no. 1080069, Smith and Smith & Weems Investments appeal the summary judgment entered by the trial court in favor of Slack Alost and against Weems. However, because the trial court has not entered a judgment on a similar claim Slack Alost has asserted against Smith in the same action, which claim is based upon essentially the same facts and raises many of the same issues, the trial court exceeded its discretion in certifying the judgment entered against Weems as final pursuant to Rule 54(b). Accordingly, appeal no. 1080069 is hereby dismissed.

1080069 — DISMISSED.

1080074 — REVERSED AND REMANDED.

LYONS, WOODALL, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and MURDOCK, J., concur in the result.

MURDOCK, Justice

(concurring in the result).

I concur in the result reached by the main opinion. I write separately to address appeal no. 1080069.

The main opinion dismisses appeal no. 1080069 because it concludes that the trial court’s judgment was not appropriate for certification under Rule 54(b), Ala. R. Civ. P., given the “intertwined” nature of the issues adjudicated as to Albert Weems and the issues in the still pending claim against Tony Smith. The main opinion declines, however, to address the Rule 54(b) issue as it relates to Smith & Weems Investments, LLC (“the LLC”). I therefore write separately in the hope of warding off a subsequent judgment that does not include an adjudication of the claims against the LLC.

In short, I do not see how the LLC could not be an appropriate party — with “standing” — to file an appeal in the present ease. This is a case in which the trial court ordered the bank to pay into court the proceeds of the letter of credit and, subsequently, ordered those same proceeds paid to Slack Alost Development Services of Alabama, LLC (“Slack Alost”). The LLC was and is the “applicant” for the letter of credit. As such, it must reimburse the bank for anything paid as a result of a court order regarding that letter. It therefore has the most direct financial stake in whether the letter of credit had to be paid into court and, in turn, whether the proceeds were to be paid over to Slack Alost or are to be available for refund to the bank.

The LLC’s stake in this matter is so obvious that Slack Alost, itself, petitioned the trial court to add the LLC as a party defendant. As Slack Alost concedes in its brief to this Court, Slack Alost “requested that the trial court join [the LLC] as a real party in interest pursuant to [Ala. R. Civ. P.] 19(a), since [the LLC] was the applicant for the letter of credit that served as the earnest money deposit for the purchase contract.” The fact that the LLC was not the particular defendant found in the summary-judgment order to have a direct contractual liability to Slack Alost is immaterial. The facts remain (1) that the LLC had a direct financial interest that was adversely affected by the orders of the trial court in this case providing for the payout on the letter of credit and the disbursement of those proceeds eventually to Slack Alost, all of which became a proper subject of appeal in conjunction with the entry of the summary judgment in appeal no. 1080069; and (2) that the LLC was, in fact, a formal party to the action in which the summary judgment was entered and that summary judgment was adverse to its interests and, as a final judgment in that action, necessarily constituted a final adjudication against the LLC.

Although the trial court purported to limit its summary judgment in appeal no. 1080069 to the rights of Slack Alost and Weems, thereby at first glance leaving the rights and duties of the LLC unadjudicat-ed and reserved for another day, the court-ordered payout and disposition of the letter-of-credit proceeds would have prejudiced the LLC’s rights as the applicant for the letter. Indeed, it would have defeated the very purpose for which it was necessary to join the LLC as a party in the first place: to avoid a judgment that would dispose of its interests without its being able to participate in the judicial proceedings resulting in that judgment (which, of course, includes any appeal necessary as a result of any error by the trial court) and thereby have the due-process opportunity to protect its interests.

The motion filed by Slack Alost seeking the addition of the LLC as a real party in interest specifically explains that it was necessary to add the LLC as a party because the LLC was the “applicant” for the letter of credit and therefore had an interest in the fact that “Slack Alost ha[d] filed a motion for preliminary injunction seeking an order requiring that the standby letter of credit be drawn upon and the proceeds paid into court.” Clearly, therefore, the summary judgment that has been entered by the trial court is the very judgment for which the LLC was added as a party. As the motion of Slack Alost also explained:

“[T]he potential exists for the absence of [the LLC] as a party to impair Slack Alost’s ability to protect its interest. In the alternative, the absence of [the LLC] as a party may create a substantial risk of incurring double, multiple, or otherwise inconsistent obligations with respect to the material issues applicable to Slack Alost’s motion for a preliminary injunction order.”

Again, that motion seeking a preliminary injunction was concerned with the initial payout of the letter of credit, something that, together with the disbursement to Slack Alost, has now been made final by the very summary judgment at issue in this appeal.

Thus, I submit that the present situation as to the LLC goes beyond the type of circumstances in which this Court commonly has said that a Rule 54(b) certification is inappropriate — i.e., where the interests of the excluded party are “intertwined” with those of the party before us on appeal thereby giving rise to the possibility of inconsistent results. Here, the interests of the LLC are not just “intertwined”; it is the LLC’s very interests that are, in effect, being adjudicated and disposed of without the LLC’s having any ability to appeal the judgment that accomplishes this. For this reason, Rule 54(b) certification was inappropriate, there is no final appealable judgment in appeal no. 1080069, and dismissal is the correct result.

COBB, C.J., concurs.

      . At his deposition, Weems testified that the signature and initials purporting to be Smith’s do not, in fact, match Smith’s writing, and Weems further speculated that they were added to the contract by somebody in the office of the real-estate agent who handled the sales transaction.

      . The contract between Weems and Slack Alost included a provision stating that “[a]ll obligations of purchaser hereunder, where there may be more than one purchaser, shall be joint and several.” Thus, regardless of whether Smith is ultimately found to have also signed the contract, Weems is liable for all the obligations under the contract.

      . This Court remanded the cases for the entry of a Rule 54(b), Ala. R. Civ. P., certification, and, in response, the trial court certified its summary judgments as final.

      . We note that the Commissioners’ Commentary to § 35-8A-408 indicates that the issuance of an amended offering statement does not automatically give the purchaser another seven-day window in which to rescind the contract. Whether an amended offering statement has that effect depends upon whether the amendments are material or merely technical.

      . Rule 54(b) provides, in part:
      "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

        . Because we are dismissing the appeal filed by Smith and Smith & Weems Investments as being from a nonfinal judgment, we need not consider Slack Alost’s argument that that appeal is also due to be dismissed based on Smith's and Smith & Weems Investments' alleged lack of standing.

      . See main opinion, note 6.

      . See, e.g., Fisher v. Dakota Cmty. Bank, 405 F.Supp.2d 1089 (D.N.D.2005) (juxtaposing the interests of the "applicant” and the "beneficiary” of a letter of credit, on the one hand, and that of the bank/“issuer,” on the other hand, and explaining that, in a dispute over whether payment was due on the letter, "if the applicant won, the issuer would not have to make payment and, if the beneficiary won, the issuer would make payment, but would then be able to recover what it paid from the applicant” and ultimately concluding that the bank/issuer was not merely a "nominal party” for purposes of federal diversity jurisdiction). Here, the LLC vigorously opposed the motion for a summary judgment in the trial court, arguing that the condition for payout on the letter of credit, contractual default by Weems, had not occurred.

      . Regardless of whether this Court facilitated such a certification with its previous remand, it is clear to me that the partial summary judgment entered by the trial court in appeal no. 1080069 was not appropriate for Rule 54(b) certification and that this is a jurisdictional matter that we should now act to correct.


author: LYONS, Justice.

text:
    LUCKY JACKS ENTERTAINMENT CENTER, LLC, and NEW GAMING SYSTEMS, INC. v. JOPAT BUILDING CORPORATION et al.
    1071648.
    Supreme Court of Alabama.
    July 10, 2009.
    Rehearing Denied Sept. 18, 2009.

      Donald E. Blankenship of Blankenship & Company, Birmingham, for appellants.
    William Kent Upshaw of Comer & Up-shaw, LLP, Birmingham, for appellee.
   LYONS, Justice.

Lucky Jacks Entertainment Center, LLC (“Lucky Jacks Entertainment”), and New Gaming Systems, Inc. (“NGS”), appeal from a judgment awarding approximately $216,000 in damages to Jopat Building Corporation, Pajia Realty Corporation, Natural Bridge Development Corporation, and Birges Land Corporation (hereinafter referred to collectively as “Jo-pat”). We reverse and remand.

Factual Background and Procedural History

Jopat owns and manages a shopping center in Roebuck. NGS operates gaming businesses in several states. Beginning in April 2006, NGS negotiated an agreement to lease from Jopat part of the shopping center. On June 7, 2006, Lucky Jacks Entertainment, an independent company owned by an NGS employee, executed the lease agreement as lessee. By separate agreement with Jopat, NGS guaranteed the lease on behalf of Lucky Jacks Entertainment. The lease agreement provided: “The Premises shall be used and occupied for the purpose of operating a video sweepstakes center and for no other purpose without the prior written consent of Lessor.” (Emphasis added.) Lucky Jacks Entertainment was formed specifically to operate the video-sweepstakes center in the leased premises pursuant to the lease; it did not engage in any other business in Alabama.

It is undisputed that, at the time the lease agreement was negotiated and signed, the parties were aware that litigation was pending in the Jefferson Circuit Court regarding the legality of video-sweepstakes operations such as the one required by the lease. It is also undisputed that the parties “hoped” that this Court would eventually determine that such operations were legal.

The lease agreement included a termination provision, which provided: “Lessee may terminate the Lease at any time after twelve (12) full months of paying rent, provided Lessee gives Lessor ninety (90) days advance written notice and paid a sum equal to four (4) months of the then monthly rent with the termination notice.” Jopat’s agent, Matt Renner, testified that the termination provision was inserted into the lease agreement at NGS’s request because NGS knew that the required use— for a video-sweepstakes center- — could be declared illegal. The owner of Lucky Jacks Entertainment, Nathan Freels, testified that the termination provision was inserted into the lease agreement so that Lucky Jacks Entertainment could terminate the lease if the video-sweepstakes operation was not profitable.

Pursuant to the lease agreement as ultimately amended, Lucky Jacks Entertainment began operating a video-sweepstakes center on the property in September 2006. Lucky Jacks Entertainment paid rent as required by the lease agreement for each month it occupied the premises, including December 2006. On December 1, 2006, this Court determined that video-sweepstakes operations were unlawful under § 13A-12-27, Ala. Code 1975. See Barber v. Jefferson County Racing Ass’n, 960 So.2d 599 (Ala.2006). It is undisputed that Lucky Jacks Entertainment vacated the premises and did not pay rent after December 2006.

On January 3, 2007, through counsel, Lucky Jacks Entertainment wrote Jopat’s agent noting this Court’s decision in Barber; in that letter, counsel mistakenly presumed that the lease term expired on January 4, 2007. In that same letter, Lucky Jacks Entertainment proposed to extend the lease on a month-to-month basis until this Court’s decision became “final.” In response, Renner wrote Lucky Jacks Entertainment explaining that the expiration date of the lease was September 30, 2009; demanding that Lucky Jacks Entertainment pay the rent owed for January 2007 within five days or be in default of the lease agreement; and offering to help Lucky Jacks Entertainment sublet or assign the lease if it wished to vacate the premises before the expiration date. The record does not show that Lucky Jacks Entertainment requested permission to use the premises for another purpose or that it responded to Jopat’s demand for payment of rent.

On March 23, 2007, Jopat sued Lucky Jacks Entertainment and NGS, as guarantor (hereinafter referred to collectively as “Lucky Jacks”), in the Jefferson Circuit Court seeking damages for breach of the lease agreement and recovery under the guaranty agreement. Jopat later amended the complaint to state a claim for attorney fees and to demand $82,000 in damages on the breach-of-lease claim. Lucky Jacks answered both the complaint and the amended complaint.

At a bench trial, Jopat argued that Lucky Jacks Entertainment had breached the lease agreement by failing to comply with the termination provision in the agreement when it vacated the premises and ceased paying rent. Lucky Jacks argued that the lease was illegal and that it was, therefore, void and unenforceable in its entirety — including the termination provision. Specifically, citing this Court’s decision in Walker v. Southern Trucking Corp., 283 Ala. 551, 219 So.2d 379 (1969), Lucky Jacks contended that Lucky Jacks Entertainment was relieved of its duty to perform because the single use for the leased premises required by the lease agreement — a video-sweepstakes operation — had been determined to be unlawful. Jopat argued that this Court’s decision in Barber rendered the lease agreement merely impossible to perform, not void, and that, therefore, Lucky Jacks Entertainment was required to comply with the termination provision if it desired to terminate the lease.

On May 13, 2008, the trial court entered a judgment detailing its findings of fact and conclusions of law. Based on the Court of Civil Appeals’ decision in Lucas v. Lyle, 807 So.2d 546 (2001), the trial court concluded that the lease was voidable, and it awarded Jopat approximately $216,000 in damages, the amount Lucky Jacks Entertainment would have had to pay if the lease agreement had been terminated pursuant to the termination provision. Lucky Jacks moved to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. The trial court denied Lucky Jacks’s motion on July 24, 2008. Lucky Jacks appealed.

Standard of Review

“In reviewing a trial court’s findings of fact based on ore tenus evidence, this Court presumes those findings to be correct.” Hensley v. Poole, 910 So.2d 96, 100 (Ala.2005). “Nevertheless, this principle is not applicable where the evidence is undisputed, or where the material facts are established by the undisputed evidence.” Salter v. Hamiter, 887 So.2d 230, 234 (Ala.2004); see also Kershaw v. Kershaw, 848 So.2d 942, 949 (Ala.2002). Fur thermore, “on appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.” Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).

Analysis

On appeal, Lucky Jacks contends that the trial court erred in concluding that the lease agreement was voidable and not illegal and void. As it did before the trial court, Lucky Jacks bases its argument on this Court’s decision in Walker, supra. In Walker, the parties entered into a lease agreement by which the lessees were to use the leased premises to operate an office, warehouse, and trucking terminal “ ‘and for no other different object or purpose.’ ” 283 Ala. at 552, 219 So.2d at 380. At the time the lease was executed, the parties did not know that the required use was prohibited by local zoning laws. Upon discovering the restriction, the parties unsuccessfully attempted to have the property rezoned. The lessees then vaeat-ed the premises, and the lessor sued for uncollected rent.

After noting that “the entire property was rendered useless because of the lease’s terms and the zoning of the property,” this Court explained:

“The general rule in a case such as we have here is stated most clearly in 32 Am.Jur., Landlord & Tenant, § 229, p. 212:
..Where, however, the lease permits the lessee to use the premises for only a single purpose, a prohibition of law against such use will, according to the weight of authority, annul or terminate the contract and relieve the tenant of obligation thereunder....’”

283 Ala. at 553, 219 So.2d at 381. This Court in Walker went on to quote Wilson v. MeKleroy, 206 Ala. 342, 89 So. 584 (1921), overruled on other grounds by Cross v. Rudder, 380 So.2d 766 (Ala.1979), which involved the improper sale of the property of a minor. This Court stated:

“ ‘When both parties, acting under a mistake of law, make a contract which the law forbids, then the principals are not liable thereunder .... It is a mistake of law, known in law, yet probably unknown in fact, to the parties to the contract at the time of its execution.’”

283 Ala. at 553-54, 219 So.2d at 381 (quoting Wilson, 206 Ala. at 348, 89 So. at 588-89). Based on these rules, this Court in Walker affirmed the trial court’s judgment for the defendant, concluding that the plaintiff was not entitled to recover on the lease agreement.

Consistent with the rules stated in Walker and Wilson, this Court has also explained: “We believe that it is a sound principle that when premises are leased for the express purpose of enabling the lessee to accomplish an unlawful purpose, the agreement is void and there can be no recovery at the suit of either party against the other.” Ex parte Rice, 258 Ala. 132, 136, 61 So.2d 7, 9 (1952). In Rice, this Court determined that this rule was a valid defense to an action seeking the specific performance of a lease agreement that allegedly furthered an unlawful restraint of trade. Under the facts presented, however, this Court concluded that the defendant had not sufficiently pleaded the defense.

In this case, it is undisputed that the lease agreement between Jopat and Lucky Jacks Entertainment required that the premises be used for the operation of a video-sweepstakes center. It is also undisputed that in Barber, supra, this Court determined that such operations were unlawful under § 13A-12-27, Ala.Code 1975, a statute enacted before the execution of the lease and never construed in light of the facts applicable to the operations of Lucky Jacks Entertainment. At the time the parties executed the lease agreement, this Court had not yet decided the question whether video-sweepstakes operations were unlawful under § 13A-12-27. However, this Court long ago explained that such circumstance — the resolution of a question of first impression as to the meaning of a statute — does not excuse the parties from compliance with the statute so as to render void contracts enforceable. In Prince v. Prince, 67 Ala. 565 (1880), under the circumstances presented, this Court determined that a mortgage was void as violating constitutional and statutory provisions prohibiting the encumbrance of a wife’s property for the debt of her husband. The parties contended that, “at the time this compromise was effected, this court had not announced its conclusion holding such mortgages to be void, and that it presented a grave matter of doubt among members of the legal profession.” 67 Ala. at 569. This Court explained:

“The facts, however, were undisputed, and the only doubt was as to the law. The statutes on this subject were then as fully promulgated as now. Every one was required to know their proper construction, and neither ignorance nor doubt was any excuse. — Ignorantia facti excusat; ignorantia juris non excusat.”

Similarly, here, the facts were undisputed, the only doubt was as to the law. Section 13A-12-27 was in force when Jopat and Lucky Jacks Entertainment executed the lease agreement, and they were required to know its proper construction. More recently, in Griffin v. Unocal Corp., 990 So.2d 291, 313 (Ala.2008), in what could be viewed as a relaxation of this standard, this Court quoted the plurality opinion in McCullar v. Universal Underwriters Life Insurance Co., 687 So.2d 156, 165 (Ala. 1996), which, in turn, quoted Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Huson, the United States Supreme Court reaffirmed principles establishing the eligibility for nonretroactivity of a decision by referring to whether the decision establishes “a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” 404 U.S. at 106-07, 92 S.Ct. 349 (citations omitted). We do not view the decision in Barber as establishing a new principle of law, justifying nonre-troactivity. Accordingly, the premises leased by Lucky Jacks Entertainment were “leased for the express purpose of enabling the lessee to accomplish an unlawful purpose,” and the lease agreement was void and unenforceable from its inception based on the then existing statutory law of this state. See Rice, supra.

On appeal, Jopat relies on Lucas v. Lyle, 807 So.2d 546, 548-49 (Ala.Civ.App.2001), the case relied on by the trial court. In Lucas, the lease agreement required that the premises be used as a hairstyling salon, a use prohibited by local zoning laws. The evidence did not disclose the lessor’s knowledge, but showed that the lessee mistakenly believed that the use was legal. The lessee had the property rezoned and occupied the premises as a hamstyling salon. Some time later, the parties canceled the lease and executed a release discharging each other from liability.

The lessee later sued the lessor, alleging a breach of the covenant of quiet enjoyment and seeking damages for rent paid before the property was rezoned. Based on Walker, the lessee argued that the release of liability did not apply because, the lessee argued, the lease was void while the use of the premises as a hairstyling salon was prohibited. The trial court entered a summary judgment for the lessor. The Court of Civil Appeals affirmed the judgment. That court’s opinion distinguished Walker, stating that, unlike Walker, in Lucas there was no evidence indicating that both parties were mistaken as to the legality of the lease agreement. Furthermore, based on general contract law regarding the effect of a mutual mistake of the parties, the opinion concluded: “the holding of Walker is that the lease was voidable at the option of the lessee.” 807 So.2d at 549.

Based on the construction of Walker stated in Lucas, Jopat contends that the lease agreement was voidable, not void, and that, as a result, Lucky Jacks Entertainment was required to comply with the termination provision. However, the decision of the Court of Civil Appeals in Lucas is not binding on this Court. Furthermore, in plain language this Court’s decision in Walker states:

“ ‘Where, however, the lease permits the tenant to use the premises for only a single purpose, a prohibition against that use will ... annul or terminate the contract and relieve the tenant of obligation thereunder.’ ”

283 Ala. at 553, 219 So.2d at 381 (quoting 32 Am.Jur. Landlord & Tenant § 229), and

“ ‘When both parties, acting under a mistake of law, make a contract which the law forbids, then the principals are not liable thereunder .... It is a mistake of law, known in law, yet probably unknown in fact, to the parties to the contract at the time of its execution.’”

283 Ala. at 553-54, 219 So.2d at 381 (quoting Wilson, 206 Ala. at 348, 89 So. at 588-89). Based on this language, which is consistent with other decisions of this Court, e.g., Rice, supra, we reject the Court of Civil Appeals’ construction of Walker in Lucas. As this Court stated in Rice, supra: “We believe that it is a sound principle that when premises are leased for the express purpose of enabling the lessee to accomplish an unlawful purpose, the agreement is void and there can be no recovery at the suit of either party against the other.” Rice, 258 Ala. at 136, 61 So.2d at 9.

Accordingly, the lease agreement between Lucky Jacks Entertainment and Jo-pat is void in its entirety, including the termination provision. As a result, the trial court erred in entering a judgment for Jopat holding that Lucky Jacks Entertainment should have complied with that provision in terminating the lease and awarding damages to Jopat based on that provision. We, therefore, reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . Section 13A-12-27 provides, in part:
      "(a) A person commits the crime of possession of a gambling device if with knowledge of the character thereof he manufactures, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of:
      'll) A slot machine; or
      “(2) Any other gambling device, with the intention that it be used in the advancement of unlawful gambling activity.”

      . Jopat’s argument that the lease agreement was impossible to perform is inconsistent with its argument before the trial court that Lucky Jacks Entertainment could have obtained an alternate use of the premises under that portion of the limited-use provision prohibiting other uses "without the prior written consent of Lessor.” Therefore, we will consider the issues presented to us without regard to the effect, if any, of that language.

      . Cf. Thompson v. Wiik, Reimer & Sweet, 391 So.2d 1016, 1020 (Ala.1980) (“As a general principle, a party may not enforce a void or illegal contract either at law or in equity.”); Bankers & Shippers Ins. Co. of New York v. Blackwell, 255 Ala. 360, 366, 51 So.2d 498, 502 (1951) (" ‘[Cjontracts specially prohibited by law, or the enforcement of which violated a law, or the making of which violated the law ... [arel void and nonenforceable ... (and) Whenever a party requires the aid of an illegal transaction to support his case, he cannot recover.’ "(quoting Ellis v. Batson, 177 Ala. 313, 318, 58 So. 193, 194 (1912))).

      . Before the trial court, Lucky Jacks's counsel stated that the lease agreement “subsequently became illegal” after the agreement was signed. However, Jopat does not argue that Lucky Jacks is precluded by its statement from asserting otherwise on appeal, as it has in fact done by arguing illegality from inception. Moreover, Lucky Jacks is not estopped from taking a different view on appeal because it did not obtain a favorable ruling in the trial court. See Ex parte First Alabama Bank, 883 So.2d 1236, 1244-45 (Ala.2003) (embracing the elements of judicial estoppel as stated in New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), including “(2) the party must have been successful in the prior proceeding ... ”). Jopat, in fact, correctly argued to the trial court that this Court in Barber did not “declare any new rule of law.”

      . Jopat also argues that, at the time Jopat and Lucky Jacks Entertainment entered into the lease agreement, the parties knew that this Court could determine that video-sweepstakes operations were unlawful and that they, therefore, agreed to allocate the risk of such an outcome as stated in the lease agreement. However, because the purpose to be accomplished by the lease agreement is illegal, the entire lease agreement is void, and we cannot honor a provision in that agreement attempting to allocate risks stemming from the illegal conduct. In the trial court, Jopat also relied on a force majeure provision in the lease agreement, but the trial court did not rely on that provision in its judgment. Although Jo-pat refers to the provision in its summary of the argument before this Court, on the same reasoning, i.e., the invalidity of the entire lease agreement, we decline to reach the issue of its applicability.