author: BARNES, J.,

text:
    Kendrick Darnell CONNER a/k/a Rudy Talley, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00293-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.
    Rehearing Denied Nov. 3, 2009.
    Certiorari Denied Jan. 28, 2010.

      Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. On May 23, 2007, a jury sitting before the Lowndes County Circuit Court convicted Kendrick Darnell Conner of two counts of armed robbery. The circuit court sentenced Conner as a habitual offender to two concurrent sentences of thirty-five years each in the custody of the Mississippi Department of Corrections (MDOC). Following unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) and for a new trial, Conner now appeals. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On May 21, 2006, Stacie Schaffer (Stacie) and her daughter, Melissa Her-rion-Schaffer (Melissa), were working at the Family Market in Columbus, Mississippi when a robber entered the store wearing a “do-rag” that covered only the left half of his face. As he entered the store, a customer who was leaving the store acknowledged him and referred to him as “Booty.” Stacie testified that the robber wore a ripped, orange and white plaid shirt, while Melissa testified that he wore an orange and white striped shirt. He approached Stacie first, pulled out a gun, and demanded that she give him the money from her register. While Stacie was emptying her register, the store’s air conditioner turned on, creating a gust of air which lifted the “do-rag,” causing the robber’s face to be exposed. He next turned his gun on Melissa, also forcing her to give him the money from her register. He put the money in one of the store’s paper sacks, warned the women not to call the police, and then exited the store. After the robber left, Stacie locked the front door and told Melissa to get her things. Stacie then took Melissa home and walked to the corner store next to their house to call the police.

¶ 3. After calling the police, Stacie returned to the store to meet the officers. There, Stacie gave a description of the robber and a statement of what had transpired to Officer Bill Smith of the Columbus Police Department. However, Melissa did not give a statement to the police until the following day. On May 24, 2006, Stacie and Melissa were given separate photographic lineups and asked to point out the robber if they saw his photograph among the group. When presented with the photographic lineup, which consisted of the booking photos of the six different men, Stacie pointed out Conner as the robber. When Melissa was asked to identify the robber using the same set of pictures, she used a small piece of paper to cover the left side of Conner’s face in the photograph. Melissa also identified Conner as the robber. Conner is known to answer to his alias, Rudy Talley. Stacie testified that it was possible that the name she heard the customer call Conner was “Rudy” and not “Booty.”

¶ 4. Conner was indicted for armed robbery on August 23, 2006. He pleaded not guilty, and a three-day trial began on May 21, 2007. At trial, Conner took the stand in his own defense. He unequivocally stated that he did not rob Stacie and Melissa at the Family Market. He claimed that, while he had been at the Family Market on the day of the robbery, he was not at the store at the time the robbery occurred. He testified that on that day he was wearing pajama pants, a t-shárt, and a tie around his neck. The jury found Conner guilty of both counts of armed robbery. The circuit court sentenced Conner to two concurrent thirty-five-year sentences, as a habitual offender, in the custody of the MDOC. Conner filed unsuccessful motions for a JNOV and, alternatively, for a new trial.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 5. Conner claims that his trial counsel should not have introduced the photographic lineup into evidence; therefore, he contends that his counsel’s representation was ineffective. In order to succeed on a claim of ineffective assistance of counsel, Conner must prove, using the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that counsel’s overall performance was deficient and that this deficiency prejudiced his defense. McCarty v. State, 752 So.2d 414, 415(¶ 4) (Miss.Ct.App.1999). “To show prejudice, the claimant must demonstrate that, but for his attorney’s errors, there is a reasonable probability that a different result would have occurred.” Id. There is, however, a presumption that a trial attorney’s performance is competent. Edwards v. State, 615 So.2d 590, 596 (Miss.1993).

¶ 6. Conner’s only contention that his trial counsel was ineffective is that she introduced the photographic lineup into evidence. In Mississippi, however, there is a presumption that decisions made by trial counsel are strategic. Edwards, 615 So.2d at 596. Therefore, conscious decisions by counsel to try a case in a certain manner “ ‘fall within the ambit of trial strategy’ and do not give rise to an ineffective assistance of counsel claim.” Pruitt v. State, 807 So.2d 1236, 1240(¶ 8) (Miss.2002) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). Upon review, we find that Conner’s defense counsel definitely submitted the photographic lineup into evidence for strategic purposes. Stacie testified that the robber had a “full scraggy beard.” The booking photograph, which was apparently taken the day after the robbery, showed Conner with a goatee. Defense counsel stated in closing arguments: “[TJhat’s why I put this in.... I submit to you that this booking photo submitted does not match the description that they gave.” The photograph used in the photographic lineup was, thus, submitted in an attempt to establish that Conner could not have been the man who had robbed the store. While Conner’s appellate counsel disagrees with the trial counsel’s strategy, that does not mean that trial counsel’s performance was ineffective.

¶ 7. Conner further contends that he was unduly prejudiced by the photographic lineup because it was impermissi-bly suggestive. Conner asserts that, of the six men pictured in the photo array, his picture was distinguishable because he was the only man with a bald head. In Dennis v. State, 904 So.2d 1134, 1135(¶ 8) (Miss.Ct.Apio.2004), this Court acknowledged that “[a] photographic lineup is im-permissibly suggestive when the accused is ‘conspicuously singled out in some manner from others....’” (citing York v. State, 413 So.2d 1372, 1383 (Miss.1982)).

¶ 8. Upon review of the photographs used in this case, we do not find that the minor differences in hair length among the photographs are so distinctive as to improperly distinguish Conner or single him out from the group. All of the men pictured have almost shaven hair. All pictures in the lineup have the same format. The men in the photographs seem to be of similar complexion. Consequently, we do not find that the photographic lineup in this case was impermissibly suggestive. Moreover, the testimony and evidence before the jury, as laid out above, shows that the two victims identified Conner outside of court from a photographic lineup, and they also made in-court identifications of Conner as the man who had robbed them at gunpoint. Given the amount of evidence against Conner and the photographic identification by the two victims, we find no reasonable possibility that a different result would have occurred. Accordingly, Conner has not met either of the required prongs of the Strickland test outlined above. The alleged deficient performance by Conner’s attorney does not rise to the level required for a finding of ineffective assistance of counsel. This assertion of error is without merit.

II. Whether the evidence was legally sufficient to support the verdict.

¶ 9. Conner also asserts that the evidence presented at trial was legally insufficient to support the jury’s guilty verdict. When reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render only if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty[.]” Brown v. State, 965 So.2d 1023, 1030(¶25) (Miss. 2007) (quoting Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)). The evidence will be deemed sufficient if “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]” Id. Thus, “the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. at (¶ 26) (quoting Bush, 895 So.2d at 843(¶ 16)).

¶ 10. This Court considers the evidence in the light most favorable to the State. Bush, 895 So.2d at 843(¶ 16). The State also receives the benefit of all favorable inferences that may reasonably be drawn from the evidence. Wilson v. State, 936 So.2d 357, 363(¶ 16) (Miss.2006) (citing Hawthorne v. State, 835 So.2d 14, 22(¶ 32) (Miss.2003)).

¶ 11. Conner was indicted and convicted under Mississippi Code Annotated section 97-3-79 (Rev.2006), which directs that an individual is guilty of armed robbery if he “take[s] or attempt[s] to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon[.]” Conner claims that, under these guidelines, the State failed to prove beyond a reasonable doubt that he was guilty of two counts of armed robbery.

¶ 12. To substantiate his claim, Conner asserts that the two victims’ eyewitness testimonies were insufficient to support the jury’s guilty verdict. Specifically, he argues that the time in between the robbery and the photographic lineup identifications was long enough for Stacie and Melissa to misidentify him as the robber. As discussed above, he also argues that the photographic lineup itself was unduly prejudicial because his photograph was distinguishable from the other photographs because of his bald head.

¶ 13. We find, however, that the evidence in this ease, when viewed in the light most favorable to the State, was legally sufficient. We have repeatedly stated, “[Cjonvictions based on eyewitness identifications at trial following a pretrial identification by photographs will be set aside ‘only if the photographic procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” Purnell v. State, 878 So.2d 124, 127(¶7) (Miss.Ct.App.2004) (citation omitted). In accordance with the analysis above, the photographic procedure used to identify Conner was not im-permissibly suggestive. Further, both Stacie and Melissa were placed in fear of immediate injury as the gun was pointed at each woman to induce her to hand over the money from her cash register. In Towner v. State, 812 So.2d 1109, 1114(¶ 23) (Miss.Ct.App.2002), this Court found that the robbery of two restaurant employees of one sum of money constituted two robberies. “This is because ... robbery is a crime against persons[,]” not a crime against property. Id. Thus, two counts of armed robbery were justified in this case.

¶ 14. We find that the evidence in the instant case was legally sufficient. This assignment of error is without merit.

III. Whether the verdict was against the overwhelming weight of the evidence.

¶ 15. On a question of overwhelming weight of the evidence, this Court has stated the standard of review is as follows:

[Tjhis Court must accept as true the 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. Only when the verdict of the jury is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will we disturb that verdict on appeal.

Montgomery v. State, 830 So.2d 1269, 1273(¶ 16) (Miss.Ct.App.2002) (citation omitted).

¶ 16. Based upon the facts previously discussed, we find that Conner’s guilty verdict is not so contrary to the evidence as to constitute an unconscionable injustice. Furthermore, the evidence does not weigh heavily against the jury’s verdict. Accordingly, we find that Conner’s conviction was not against the overwhelming weight of the evidence.

CONCLUSION

¶ 17. Based on the foregoing, we find no error and affirm.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY, AND COUNT II, ARMED ROBBERY, AND SENTENCE OF THIRTY-FIVE YEARS AS A HABITUAL OFFENDER FOR BOTH COUNTS I AND II, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The dissent in Towner argued that there should have been only one count of armed robbery due to the fact that the indictments attributed the same sum of money to both victims. Id. at 1117 (¶¶ 36-38) (King, P.J., dissenting). However, the dissent’s argument in Towner is not applicable here as both victims, Stacie and Melissa, were deprived of money from their individual cash registers. Therefore, there were two separate sums of money involved for the two separate counts.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Paris Anthony WOODFIN, Appellant, v. Mary Lee WOODFIN, Appellee.
    No. 2008-CA-01443-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2010.

      John Robert White, Jr., Pamela Guren Bach, Ridgeland, attorneys for appellant.
    Thomas Wright Teel, Biloxi, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Paris and Mary Woodfin were granted a divorce on the ground of irreconcilable differences. They agreed to submit certain issues to the chancellor for adjudication. Paris asserts that the chancellor: (1) abused his discretion in finding Paris in contempt, (2) improperly distributed the marital debts and Paris’s retirement assets, (3) failed to apply the correct legal standard in determining periodic alimony, (4) abused his discretion in requiring Paris to provide insurance indefinitely for Mary, (5) awarded child support in a manner not supported by the record and set without reference to guidelines, and (6) erred because the combined awards of spousal and child support are per se unreasonable because they do not allow Paris to maintain a decent standard of living.

FACTS

¶ 2. Paris and Mary were married on December 10, 1985. They separated on June 24, 2005. They have four children, one daughter and three sons. Two children attend Auburn University, and two children live with Mary.

¶ 3. When they married, Paris was a high school graduate with a business certificate from a technical college, and Mary had completed one year of college. During the marriage, Paris served in the United States Army until 1994; then he worked as a field engineer and attended Embry-Riddle Aeronautical University for a bachelor’s degree. Mary was primarily a housewife and held a few part-time jobs in the beginning of the marriage.

¶ 4. At the time of the separation, Paris was a field engineer for Lockheed Martin, and he was pursuing his masters degree from Embry-Riddle; Mary was a part-time sales associate for a clothing store. Paris has chronic pulmonary obstructive disease, high blood pressure, high cholesterol, and a service-related knee injury.

¶ 5. On August 16, 2005, Paris filed a complaint for divorce based on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences.

¶ 6. On March 14, 2007, the parties entered into an Agreed Temporary Order (the “Temporary Order”). In the Temporary Order, the parties agreed to joint legal custody of the children, with Mary having primary physical custody and temporary child support; spousal support was paid to Mary. The order also required each party to pay for one-half of the children’s medical expenses not covered by insurance.

¶ 7. On July 25, 2007, Mary filed a motion for citation of contempt. Mary claimed Paris had failed to pay child support, spousal support, and his half of the children’s medical bills.

¶8. The hearing for divorce and the motion of contempt was set for November 27, 2007. Prior to the hearing, Paris paid $2,500 of the child support arrearage. At the hearing, the parties agreed to a divorce on the ground of irreconcilable differences. They executed a consent to adjudicate and written stipulation agreement (the “Agreement”). The Agreement included the following provisions: (1) Mary and Paris would have joint legal custody of the children, with Mary having primary physical custody; (2) Paris agreed to pay $1,200 per month in child support, tuition to a four-year college for each child at a state-supported school, and the children’s medical insurance; (3) each party agreed to pay one-half of the children’s non-eov-ered medical costs; (4) they divided some of the personal property; and (5) they agreed that Mary would receive alimony. The parties consented to allow the chancellor to adjudicate the following issues: (1) the amount of periodic alimony, (2) contempt as to temporary support and medical bills, and (3) attorney’s fees for contempt and divorce.

¶ 9. At the hearing through oral stipulation, Paris and Mary requested that the chancellor also determine the ownership of the couple’s personal property, which was in storage.

¶ 10. Mary submitted the following medical bills of the children in support of the motion for contempt:

Dameon August 6, 2006 $ 265.23
Paris August 30,2007 $ 442.86
Aundrea June 26, 2007 $ 430.50
Dameon June 26, 2007 $ 430.50
Dijon June 26,2007 $ 446.25
Paris June 26, 2007 $ 430.50
Total $2,445.84

¶ 11. On July 21, 2008, the chancellor entered a judgment that awarded Mary a house in Alabama (which had been purchased after the separation with HUD assistance); $700 per month as periodic alimony; $1,200 per month as child support; half of the children’s college expenses for an in-state school; half of Paris’s retirement accounts in the sum of $9,000; and the chancellor ordered Paris to maintain Mary’s medical insurance to the maximum amount allowed under COBRA and to pay the children’s insurance. The chancellor ordered that the medical bills not covered under insurance be split equally between Mary and Paris.

¶ 12. On the motion for contempt, the chancellor ordered Paris to pay the amount owed under the temporary order which was $1,400. Further, the chancellor found Paris in contempt for not paying the children’s medical bills and gave him sixty days to pay the medical bills. The chancellor ordered Paris to pay Mary’s attorney’s fees of $2,500 for the cost of executing the contempt motion and withholding order. It is from this judgment that Paris now appeals.

STANDARD OF REVIEW

¶ 13. “This Court will affirm the decision of the chancellor when it is supported by substantial evidence unless the chancellor abused his discretion, the decision was manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard.” Pool v. Pool, 989 So.2d 920, 923(¶ 9) (Miss.Ct.App.2008).

ANALYSIS

1. Whether the chancellor abused his discretion in finding Paris in contempt of the Temporary Order.

¶ 14. Paris argues that he did not willfully and deliberately ignore his obligation to pay support; thus, he was not in contempt. Paris also contends that it was error for the chancellor to find Paris in contempt for not paying the medical bills for the children because Paris and Mary had agreed to divide the costs of the children’s medical bills. Also, Paris claims that one medical bill was incurred prior to the Temporary Order and that Mary should have submitted it prior to the Temporary Order.

¶ 15. The March 14, 2007, Temporary Order required Paris to pay temporary spousal support and child support, and it ordered Mary and Paris each to pay for one-half of the children’s medical expenses not covered by insurance. By July 2007, Paris was $3,900 behind in support payments. Mary’s motion for citation of contempt sought to recover Paris’s arrearage and his share of the children’s medical bills.

¶ 16. Civil contempt is the willful refusal of a party to comply with an order, and not the mere inability to pay. McCardle v. McCardle, 862 So.2d 1290, 1293(¶ 10) (Miss.Ct.App.2004). A payor’s failure to comply with a court order is prima facie evidence of contempt. Id. “A party may, however, exonerate the contempt citation on proven grounds of inability to pay.” Id. at (¶ 11).

¶ 17. Since Paris failed to pay Mary the ordered amount of separate maintenance and child support, he had the burden of proving his inability to pay through clear and convincing evidence. He failed to do so. Paris’s Rule 8.05 financial declaration showed that his gross income is $6,746.37 per month with a net income of $5,146.37 per month. The record indicates that Paris had the funds to pay temporary alimony and temporary child support.

¶ 18. At the November hearing, Paris testified that he could not comply with the Temporary Order because he owed other debts and because his funds were inadequate to cover the debts and the support payments. Though Paris owed several debts in addition to the child support and maintenance payments, Paris failed to establish with particular evidence his inability to comply with the Temporary Order. Since Paris failed to exonerate himself by proving his inability to pay, the chancellor properly found Paris in contempt of the Temporary Order.

¶ 19. The chancellor also found Paris in contempt for “not paying the children’s medical bills which were submitted into evidence” at the November 27, 2007, hearing. At issue is: (1) whether Paris should be found in contempt for the entire costs of the medical bills, and (2) whether he should be liable for the medical expense that was incurred on August 2, 2006, prior to the Temporary Order.

¶ 20. “The purpose of civil contempt is to compel parties to obey orders of the court.” Bounds v. Bounds, 935 So.2d 407, 410(¶ 8) (Miss.Ct.App.2006) (citing Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987)). The chancellor held Paris in contempt for not paying all the children’s medical bills that were submitted into evidence, yet the Temporary Order stated that Paris and Mary were to pay one-half of the children’s medical expenses not covered by insurance. We find that the chancellor was in error.

¶ 21. Because the Temporary Order stated that Paris and Mary were each responsible for one-half of the children’s medical bills not covered by insurance, Paris is only liable for one-half of the children’s medical bills.

¶ 22. Also, Mary submitted a statement evidencing a past-due bill for Dameon that was labeled in big letters, “This is not a bill,” and dated August 2, 2006. Paris claims that he is not liable for this expense because Mary failed to submit it at the January 26, 2007, hearing, which was held prior to the Temporary Order. Mary did not address this issue in her brief.

¶23. The chancellor did not discuss whether Paris was responsible for the medical bill incurred prior to the Temporary Order. In Clements v. Young, 481 So.2d 263, 270 (Miss.1985), the supreme court decreased an award of medical expenses that could have been decided at an earlier proceeding. The supreme court held that: “[I]f there was a problem about medical or dental bills prior to [the earlier contempt proceeding], the matter could have and should have been litigated then. The decree.... is res judicata with respect to all claims that were presented or may reasonably have been presented at that time.” Id.

¶ 24. The expense was incurred over six months prior to the Temporary Order. Accordingly, Mary should have presented the medical bills at the January 26, 2007, hearing and the March 14, 2007, Temporary Order is res judicata with respect to the claims that should have been presented. Accordingly, we find that Paris is not responsible for the August 6, 2006, medical expense, but he is liable for one-half of the bills incurred since March 14, 2007, which total $1,090.31.

2. Whether the chancellor improperly distributed the parties’ marital debts and retirement funds.

¶ 25. Paris next argues that the chancellor erred in the division of marital debts and Paris’s retirement funds. Paris claims that the Agreement contained the parties’ terms for the division of debts and marital property. Mary contends in her brief that the chancellor correctly analyzed the distribution of the marital property under the Ferguson factors.

¶ 26. In the Agreement, Mary agreed to pay the debts owed to Capital One, Wells Fargo, and TBW (mortgage), while Paris agreed to pay the rest of the debts. The parties also stipulated that Mary is “entitled to one-half of Mr. Woodfin’s Boeing DRS retirement/401 (k) [and].... to 15 percent of his Lockheed retirement to date, and that’s computed on six years over the life of the marriage and work divided by one-half of savings, stocks, and bonds.” Accordingly, the only property issue left for the chancellor to determine was the ownership of some personal property in storage.

¶ 27. However, the chancellor went beyond the matters stipulated when he modified the amount of debt that Mary agreed to pay and the disbursement of Paris’s retirement funds. Instead of assigning Mary the debt regarding Capital One, Wells Fargo, and TBW (mortgage), the chancellor assigned her the “Capital One debt or account; Colorvision; her Wells Fargo account or debt and her car debt and any other outstanding debts, bills or claims that Mary has created after the parties’ separation.” The chancellor further modified their agreement by re-allocating the retirement funds and awarded one-half (½) of Paris’s retirement accounts “at Boeing/DRS and Lockheed Martin.... [and] one-half (½) of Parisfs] ESP or savings plans which had a value of $18,000 so that Mary is entitled to the sum of $9,000.”

¶ 28. The supreme court historically enforces property agreements. In East v. East, 493 So.2d 927, 931 (Miss.1986), the supreme court stated:

We have also historically recognized that parties may upon dissolution of their marriage have a property settlement incorporated in the divorce decree, and such property settlement is not subject to modification. A true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.

Absent fraud, duress, or unconscionability, property agreements that divide property are enforced by this Court. McManus v. Howard, 569 So.2d 1213, 1215 (Miss.1990).

¶ 29. Here, the chancellor made no finding of fraud, duress, or unconscionability which is required for the chancellor to modify the property agreement. Since the chancellor made no finding of fraud, duress, or unconscionability and the chancellor’s decision is not supported by substantial evidence, we reverse the chancellor’s decision and reinstate the parties’ property agreement.

3. Whether the chancellor erred in 'using the incorrect legal standard and whether he emd in awarding periodic alimony.

¶ 30. The chancellor awarded Mary $700 per month as periodic alimony. Paris argues that the chancellor erred because: (1) the chancellor used the wrong legal standai’d by not correctly applying the Armstrong factors; (2) the award was excessive; and (3) Mary should have been awarded rehabilitative alimony. Because the last two issues overlap, we have combined them.

¶ 31. Mary claims that the chancellor correctly determined Mary’s alimony award because: (1) the chancellor used the correct legal standard by listing the pertinent Armstrong factors; (2) the chancellor’s award was not excessive; and (3) she was entitled to periodic alimony.

¶ 32. Paris agreed at the November 27th hearing that Mary was entitled to alimony, and both consented to adjudicate the matter as to which type of alimony and the amount. However, Paris argues that rehabilitative alimony is the correct award because Mary is not limited by her lack of education and experience and because his disabilities limit his long-term earning potential.

a. Whether the chancellor used the correct legal standard.

¶ 33. With any type of alimony award, the chancellor considers the following factors: (1) “[t]he income and expenses of the parties”; (2) “[t]he health and earning capacities of the parties”; (3) “[t]he needs of each party”; (4) “[t]he obligations and assets of each party”; (5) “[t]he length of the marriage”; (6) “[t]he presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care”; (7) “[t]he age of the parties”; (8) “[t]he standard of living of the parties, both during the marriage and at the time of the support determination”; (9) “[t]he tax consequences of the spousal support order”; (10) “[fjault or misconduct”; (11) “[wjasteful dissipation of assets by either party”; or (12) “[a]ny other factor deemed by the court to be ‘just and equitable’ in connection with the setting of spousal support.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 34. “Alimony awards are within a chancellor’s discretion, and we will not reverse an award of alimony on appeal unless the chancellor abused her discretion in her fact-finding or misapplied the law.” Elliott v. Elliott, 11 So.3d 784, 786(¶7) (Miss.Ct.App.2009). This Court has stated:

When the chancellor fails to address all factors on-the-record, we are not required to remand the case, and should not, so long as all facts are available to us so as to allow an equitable determination to be made. Thus, a lack of an on-the-record consideration of the Armstrong factors by a chancellor in making his determination of the appropriateness of an alimony award will only be reversed if, after a review of all facts and application of the Armstrong factors, it appears that the chancellor’s failure to make findings of fact and corresponding conclusions of law constitutes manifest error.

Goellner v. Goellner, 11 So.3d 1251, 1258(¶ 24) (Miss.Ct.App.2009) (quoting Dorsey v. Dorsey, 972 So.2d 48, 54(¶ 17) (Miss.Ct.App.2008)) (internal citation omitted).

¶ 35. Though the chancellor discussed a few Armstrong factors in this case, he did not make specific findings of fact. The chancellor discussed three Armstrong factors which were: (1) the income and expenses of the parties, (2) the presence or absence of the minor children in the home, and (3) any other factor deemed by the court to be “just and equitable.” Also, the chancellor discussed the tax consequences of the spousal order and the wasteful dissipation of assets by either party in the Ferguson analysis. Since the chancellor addressed several of the factors and sufficient facts are available to this Court, we find that there was enough evidence in the record to support the chancellor’s finding. However, in following the holding of the Dorsey Court, we will review all the facts and apply the Armstrong factors to determine if it appears the chancellor’s findings constitute manifest error. Dorsey, 972 So.2d at 54(¶ 17).

1. Income and Expenses of the Parties

¶ 36. The record supports the chancellor’s finding of a disparity in income between Paris and Mary. In 2007, Mary made $9,200 per year working part time as a sales associate, and Paris made $62,235 per year working as a field engineer. Pri- or to the couple’s separation, Mary had not worked for more than ten years. Although Paris contends that Mary is not limited by her lack of education and lack of experience, there is nothing in the record to show that she has any skills that would increase her income.

2. Health and Earning Capacities of the Parties

¶ 37. Mary suffers from occasional optical migraines and claims to suffer from depression, but there are no records to support that she does suffer from depression. Paris testified that he has chronic pulmonary disease, high blood pressure, diabetes, and high cholesterol. He contends that his life earning capacity is diminished because of these health problems.

3. Needs of Each Party

¶ 38. It appears from the record that there are no special needs of either of the parties besides the debts listed on each party’s Rule 8.05 financial statement.

I. Obligations and Assets of Each Party

¶ 39. Paris’s Rule 8.05 financial statement reflects a total monthly income of $6,746.37 and a net monthly pay of $5,146.37 with total living expenses of $2,886.77; and Mary’s Rule 8.05 financial statement reflects a total monthly income of $902 and a net monthly pay of $800 per month with total monthly expenses of $2,792.83.

5. Length of Marriage

¶ 40. At the time of divorce, the couple had been married for twenty-two years.

6. Presence or Absence of Minor Children in the Home

¶ 41. Paris and Mary had four children during their marriage. Two are in college, and two live with Mary.

7. Age of the Parties

¶ 42. At the time of divorce, Mary was forty-seven years old, and Paris was forty-four.

8. Standard of Living of the Parties, Both During the Marriage, and at the Time of Separation

¶ 43. There is not much information in the record concerning the standard of living of the parties prior to the separation for either party. They rented their home, and Paris was able to support the family on his income alone.

¶ 44. At the time of separation, Paris moved into an apartment, while Mary stayed in their home before she left for Alabama. From December 2005 to March 2006, Mary lived off of FEMA funds, which were given to her after Hurricane Katrina. Mary works part time as a sales associate, and Paris stayed at the same job he had prior to the separation. She now owns a home in Alabama and pays a mortgage, while Paris still rents an apartment. One of the children has quit college for a term to work and to help Mary with their bills.

9. Tax Consequences of the Spousal Support Order

¶ 45. Neither party has raised any argument concerning their tax obligations. The chancellor found that no evidence was introduced by either party related to this factor.

10. Fault or Misconduct

1146. Although Paris contends that fault should be considered because he alleges that Mary had an affair seventeen years ago that caused the divorce. This Court has found that a spouse who resumes an intimate relationship after learning of the other’s adultery has condoned or forgiven the offense. Fulton v. Fulton, 918 So.2d 877, 881(¶ 11) (Miss.Ct.App.2006). No matter what happened seventeen years ago, Paris resumed the marriage. Accordingly, Paris is barred from bringing Mary’s affair into the evidence to establish fault as a factor to lower the alimony award.

11. Wasteful Dissipation of Assets by Either Party

¶ 47. Paris claims that Mary wastefully spent the $15,000 in FEMA funds, but the chancellor found that neither party expended, withdrew, or otherwise disposed of marital assets.

12. Any Other Factor Deemed by the Court to be Just and Equitable in Connection with the Setting of Support

¶ 48. The record is void of any other relevant evidence in connection with support.

¶ 49. After considering the twelve factors and the facts in the record, we find that the chancellor was not manifestly wrong, nor did he abuse his discretion when he awarded Mary alimony.

b. Whether the chancellor erred by awarding Mary periodic alimony.

¶ 50. Paris contends that rehabilitative alimony is the appropriate award because of his poor health and that the chancellor erred in not allowing Paris to submit more evidence regarding alimony.

¶ 51. In Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995), the supreme court explained that rehabilitative alimony “is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Periodic alimony is awarded on the basis of need and “automatically terminates at the death of the obligor or the remarriage of the obligee.” West v. West, 891 So.2d 203, 212(¶ 21) (Miss.2004). In light of our review of the Armstrong factors, we find substantial evidence to support the chancellor’s award of periodic alimony.

¶ 52. Mary had completed one year of college and was working prior to the marriage, but she quit the workforce to become a stay-at-home wife ten years ago. Paris had a business certificate from a technical college. Since they have been married, Paris served in the United States Army and has returned to school and earned his bachelor’s degree.

¶ 53. Following Hurricane Katrina, Mary and the children moved to Alabama and now have a home there. At the hearing, it was determined through testimony that the parties’ incomes were disproportionate with Paris working as a field engineer and Mary working part time as a sales associate. She currently earns roughly $900 per month and takes home $800 per month as a retail sales associate and has $2,792.83 in total living expenses. Paris makes $6,746.37 per month and takes home $5,146.37 per month as a field engineer and has $2,886.77 in total living expenses. Without periodic alimony, Mary would become destitute. Mary needs periodic alimony to support herself.

¶54. When comparing the factors to the facts hei'e, the decision to award periodic alimony and the amount of $700 per month to Mary is neither an abuse of discretion nor manifestly erroneous. See Voda v. Voda, 731 So.2d 1152, 1155(¶ 11) (Miss.1999) (affirming alimony award where chancellor did not delineate all factors but all facts in the record supported the award); Marsh v. Marsh, 868 So.2d 394, 398(¶ 17) (Miss.Ct.App.2004) (affirming the denial of alimony in the absence of findings of fact). Paris has not presented any evidence of the chancellor’s abuse of discretion, and we have not found any. Thus, this issue is without merit.

A Whether the chancellor abused his discretion in requiting Pans to provide COBRA insurance for Mary without reference to the cost or specific duration of such coverage.

¶ 55. The Agreement discussed Paris’s responsibility for Mary’s insurance, which was for Paris to carry Mary through COBRA “as long as it’s available through his employment.” However, the chancellor modified the wording of the Agreement when he ordered Paris to keep Mary on his employer’s medical insurance plan through COBRA “as long as permitted by applicable law.”

¶ 56. Though Paris contends that the chancellor increased his support obligation, the effect of the Agreement and the judgment are the same. Under COBRA, if an employee loses his job, he still keeps his same plan and pays the same amount under COBRA for eighteen months after his employment ends. 29 U.S.C. § 1162 (2006). Accordingly, “for as long as that’s available through his employment” and “as long as the law allows” would both last up to eighteen months after Paris is unemployed. Since the chancellor did not change the agreement, his order was not an abuse of discretion, and this issue is without merit.

5. Whether the amount of child support awarded is unsupported by the record, and the chancellor abused his discretion by setting the award ivithout reference to the child support guidelines.

¶ 57. Paris contends that the chancellor should have made specific, written findings supporting the child support award pursuant Mississippi Code Annotated section 43-19-101(4) (Rev.2009).

¶ 58. Paris and Mary agreed to the amount of child support in the Agreement. Mary’s attorney read the Agreement aloud at the hearing. Both parties agreed that:

as far as child support, it will be $1,200 a month. Mr. Woodfin will provide medical insurance for the children, and then one-half the noncovered costs will be paid [by] each of them.... On college, the husband is going to pay for a four-year college for the children at a state-supported school in either Alabama or Mississippi, together with books, fees, tuition, the normal costs of college outlined in the college’s normal book showing what the costs are ... the parents and children should use their best efforts to obtain Pell grants, scholarships, and financial aid for each child for college .... [T]he child support can be reevaluated each time a child reaches the age of 21 or becomes emancipated.

¶ 59. The chancery court has the authority to modify the provisions of an agreement regarding child support in a divorce action. Barton v. Barton, 790 So.2d 169, 172(¶10) (Miss.2001). Here, the court ordered Paris to pay $1,200 in child support until all children reach the “age of majority, become self supportive [sic] or until further order of this Court.” Also, Paris “shall maintain medical coverage for the children and pay the full premium for said coverage, as well as one-half the medical bills not covered by the insurance.” The chancellor modified the agreement by ordering Paris to pay only “one-half of college education for the children, while minors under Mississippi law, at a state-supported school in Alabama or Mississippi, including books, fees, tuition, room, and normal costs of tuition.”

¶ 60. Though the chancellor actually reduced Paris’s responsibility for the children’s college expenses, Paris still asserts that the support award is excessive and is unsupported by the record. “Absent any showing that the final written order [does] not reflect the agreement announced in court, or any identification of a matter cognizable under [Mississippi] Rule 60 [of Civil Procedure] that could lead to setting aside a consent decree after being entered ... the parties [are] bound by their agreement.” McDonald v. McDonald, 850 So.2d 1182, 1189(¶26) (Miss.Ct.App.2002).

¶ 61. Here, the parties agreed to the amount of child support in the Agreement which was read in open court. The chancellor merely recited the Agreement and reduced Paris’s contribution to the children’s college expenses by half. Accordingly, Paris is bound to the provisions in the Agreement that the chancellor approved.

¶ 62. Paris also claims that the chancellor erred by not applying the child support guidelines when determining child support. While Paris is correct that Mississippi Code Annotated section 43-19-101(2) (Rev.2009) requires that a deviation from the guidelines must be supported by specific findings of fact, such findings are not necessary when the child support order is based on the parties’ agreement. McDonald, 850 So.2d at 1189(¶ 24). Here, Paris and Mary agreed to $1,200 per month in child support. Thus, the chancellor did not need to state the specific findings of fact to support the award. Accordingly, this issue has no merit.

6. Whether the combined awards of spousal support and child support are per se unreasonable because they fail to allow Paris to maintain a decent standard of living.

¶ 63. Paris argues that due to the combined awards, his expenses exceed his income leaving him in hopeless, continuous contempt of court. Paris cites Yelverton v. Yelverton, 961 So.2d 19 (Miss.2007), as support for his argument. However, in Yelverton the chancellor ordered the husband to pay $10,000 per month from his $12,000 monthly income. Id. at 28(1116). The supreme court found the award per se unreasonable as it gave the wife “approximately $12,185.65 a month, although her monthly expenses totaled only $6,000, and [it left the husband] with a negative balance of $4,429 per month.” Id. at (¶ 18).

¶ 64. This case is nothing like the case of Yelverton. Here, Paris makes $6,746.37 and has a net monthly pay of $5,146.37. If he pays the agreed $1,200 in monthly child support and the chancellor-awarded alimony at $700 per month, Paris is left with a balance of $3,246.37. Further, Paris’s argument that the combined awards are unreasonable is weakened by this Court’s decision to reduce the chancellor’s award of medical bills, retirement benefits, and marital debts. The party subjected to alimony and .support payments must live economically and make the ordered payments. Sappington v. Sappington, 245 Miss. 260, 266, 147 So.2d 494, 497 (1962). Paris should be able to live economically and make his support payments. Therefore, this issue is without merit.

¶ 65. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Although the August 6, 2006, statement submitted by Mary is labeled, “This is not a bill,” and the chancellor did not discuss this statement specifically, we will address the issue as a medical expense because the chancellor neither addressed the total amount owed nor which expenses were included from the statements submitted.

      . Mississippi Uniform Chancery Court Rule 8.05.


author: PARKER, Justice.

text:
    Patricia J. HOLT, Charles Holt, and Cori Nicole Howard, a minor, by her grandmother and next friend Patricia J. Holt v. LAUDERDALE COUNTY.
    1050740.
    Supreme Court of Alabama.
    Nov. 7, 2008.
    Rehearing Denied June 19, 2009.

      Robert L. Gonce of Gonce, Young & Collum-Butler, Florence; and William E. Smith, Jr., Florence, for appellants.
    Frank E. Bankston, Jr., of Webb & Eley, P.C., Montgomery; and Christopher A. Smith of Self, Smith, Burdine & Bur-dine, Florence, for appellee.
   PARKER, Justice.

Case History

The genesis of this case is a motor-vehicle accident that occurred on county road 88 in Lauderdale County. On January 11, 2003, Patricia J. Holt and Cori Nicole Howard, Holt’s granddaughter, were traveling to Lexington Elementary School in a vehicle that Holt was driving. To get to the school they had to travel across a narrow bridge over a creek bed. Before arriving at the bridge, Holt’s vehicle crested a hill, entered an “S” curve, which turned to the left and then to the right. As Holt approached the bridge, her car began to slide, apparently on ice, and she lost control of the vehicle. The vehicle hit the end of a concrete barrier on the side of the bridge, overturned, and landed upside down in the creek bed 10 feet below. Paramedics took Holt and Howard to the hospital. Howard was treated and released; however, Holt remained in the hospital for approximately 25 days.

This case originated in the Lauderdale Circuit Court where Holt, her husband Charles Holt, and Howard, a minor, by her grandmother and next friend Patricia J. Holt (hereinafter referred to collectively as “Holt”), sued Lauderdale County and the county engineer, Ken Allamel, alleging negligence in that they breached their duty to maintain county roads in a safe manner, under both Ala.Code 1975, § 23-1-80, and the common law. Specifically, they contend that a guardrail, extending from the edge of the concrete barrier on the bridge, should have been erected and that such a guardrail would have prevented her vehicle from dropping into the creek bed. Both defendants filed motions for a summary judgment. On February 10, 2005, the trial court, with Holt’s consent, granted Allamel’s summary-judgment motion. On January 31, 2006, the trial court entered a summary judgment for Lauderdale County. On March 7, 2006, Holt filed a notice of appeal from the summary judgment for Lauderdale County. We reverse and remand.

Standard of Review

On appeal, this Court reviews a summary judgment de novo, applying the same standard of review as did the trial court. Hornsby v. Sessions, 703 So.2d 932 (Ala.1997). To defeat a summary judgment, the nonmoving party must show substantial evidence creating a genuine issue of material fact. Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999). “Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.” Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997). In a negligence action, the plaintiff must show that a duty existed, that the defendant breached the duty, and that the breach caused the plaintiffs injury. See Bowden v. E. Ray Watson Co., 587 So.2d 944 (Ala.1991); Thompson v. Lee, 439 So.2d 113 (Ala.1983). Lauderdale County contends that Holt has failed to meet her burden as to duty, breach, and causation.

Legal Analysis

A. Duty

“A county, by virtue of its exclusive authority to maintain and control its roads, is under a common law duty to keep its roads in repair and in reasonably safe condition for their intended use.” Mixon v. Houston County, 598 So.2d 1317, 1318 (Ala.1992). A county also has a statutory obligation to maintain the safety of its roadways. Section 23-1-80, Ala.Code 1975, provides that a county has “general superintendence of the public roads ... so as to render travel over the same as safe and convenient as practicable.”

Lauderdale County attempts to limit its general duty, stating that there is “no authority ... that a county has a legal duty to install guardrails or other devices.” Lauderdale County’s brief at 13. Lauder-dale County also contends that no duty exists because at the time the bridge was built the bridge was in compliance with all safety regulations then in effect. Id.

Lauderdale County appears to be arguing that in order to have a duty to perform a specific renovation to a county road, there must be some statutory authority requiring it to do so. However, Lauder-dale County cites no Alabama caselaw that suggests such a rule. It relies instead on a Kansas decision that refers to a line of cases, based upon a since-repealed statute, that held that “failure to place (or replace) a guardrail ... does not constitute a defect unless there is a statutory duty to erect such a ... guardrail.” Schmeck v. City of Shawnee, 232 Kan. 11, 23, 651 P.2d 585, 595 (1982). Alabama does not have the same statutory scheme as did Kansas when Schmeck was decided. To the contrary, this Court has recognized that a county’s duty may require it to do more than is even required by a manual issued by the Sate and regulating roadways. In Jefferson County v. Sulzby, 468 So.2d 112, 114 (Ala.1985), this Court, affirming a judgment against Jefferson County in an action arising out of a one-vehicle accident, said: “Claiming that because the Alabama Manual of Uniform Traffic Control Devices (AMUTCD) does not require edge-of-pavement markings or curve warning signs at the accident site, the County contends that it was under no duty, statutory or otherwise, to install such devices. We disagree.”

In Springer v. Jefferson County, 595 So.2d 1381 (Ala.1992), Jefferson County was sued for negligently failing to erect a guardrail on an allegedly unsafe stretch of road. This Court proceeded on the assumption that if Springer presented substantial evidence indicating that Jefferson County had negligently acted or failed to act and that a guardrail would have prevented the injury, then a summary judgment against Springer was inappropriate. 595 So.2d at 1384. There was no mention as to whether the guardrail was specifically required by statute, but the analysis proceeded under a county’s general duty to keep its roads safe. Clearly, under applicable Alabama law, the lack of explicit statutory obligation does not automatically eliminate a county’s general statutory and common-law duty to maintain safe roadways.

Lauderdale County also cites no Alabama law for the proposition that the appropriate standard for bridge and guardrail construction and safety are the standards applicable at the time of construction of the bridge and not at the time of the accident. Alabama law clearly describes a county’s duty to “ ‘keep its roads in a reasonably safe condition.’ ” Mixon, 598 So.2d at 1318 (quoting Elmore County Comm’n v. Ragona, 540 So.2d 720, 724 (Ala.1989)) (emphasis added). None of the limitations of that duty Lauderdale County proposes are sufficient to defeat its general statutory and common-law duty to keep its roadways in a reasonably safe condition. Thus, it is clear that Lauderdale County had a duty to keep the bridge and the roadway approaching it in a reasonably safe condition.

B. Breach of Duty

Once a duty is established, the question then becomes whether that duty was breached. A county’s “standard of care is to keep its streets in a reasonably safe condition for travel, and to remedy defects in the roadway upon receipt of notice.” Sulzby, 468 So.2d at 114. Constructive notice of a defect, however, is enough to support an action based on a breach of duty. Tuscaloosa County v. Barnett, 562 So.2d 166, 168 (Ala.1990).

Lauderdale County alleges that there was no evidence presented indicating that there was a defect in the roadway. Laud-erdale County’s brief at 11. However, Holt’s expert, in his deposition, noted the speed limit on the road on which the accident occurred, the narrowness of the paved area on the bridge, the raw end of the bridge-barrier rail, and the steepness of the slope to the creek below and concluded that “any of those four factors by themselves would warrant a guardrail, but all four of them combined just almost makes it a necessity.”

Lauderdale County appears to contend that the lack of a guardrail cannot be considered a defect in the roadway. Lauderdale County’s brief at 11. A county could breach its duty by failing to erect a guardrail. Springer, 595 So.2d at 1386 (Houston, J., concurring in the result). This Court has stated: “The duty [to keep streets safe for travel] extends the entire width of the street and one injured by a defect or obstruction outside the prepared part may still be entitled to recover, if the defect is so near the traveled part as to render its use unsafe.” Jacks v. City of Birmingham, 268 Ala. 138, 143, 105 So.2d 121, 126 (1958).

Lauderdale County contends that, even if the lack of a guardrail can be considered a defect, it had no notice of the alleged defect. Lauderdale County’s brief at 11. However, as previously noted, notice can be constructive. Barnett, 562 So.2d at 168. Lauderdale County clearly has maintained control of the bridge since its construction in 1937. Further, Holt’s expert, Dr. Deatherage, testified that “safety and construction standards such as the Roadside Design Guide require the construction of guardrails at points such' as the place where this accident occurred.” Holt’s brief at 6. There is a genuine issue of material fact as to whether Lauderdale County was put on constructive notice that the approach to the bridge was not reasonably safe.

Lauderdale County states that “there is no accident data that would indicate that guardrails should be placed extending back from the end of that bridge,” and it uses the lack of such accident data to support its argument that it had no constructive notice of any defect in the bridge or the approach to the bridge. Lauderdale County’s brief at 5. However, the record reveals that there was no accident data available because Lauderdale County did not release the data. In response to the question, “Are you aware of any accident data that would indicate that guardrails should be placed at this place that we see on exhibit 1,” county engineer Allamel responded with a simple “no.” The transcript of Allamel’s deposition reveals, however, that he was instructed not to disclose any accident data during the deposition, for fear that the State of Alabama would revoke Lauderdale County’s privilege of reviewing accident data in the future. Holt’s expert testified that “the physical evidence would indicate that there have been other impacts at this sight [sic].” But the absence of other accident reports in the record does not offset the testimony of Holt’s expert witness as to the road conditions at the scene of the accident and the existence of those conditions over time, which creates an issue of fact as to whether Lauderdale County had constructive knowledge of this alleged defect. Funera v. Jefferson County, 727 So.2d 818, 822 (Ala.Civ.App.1998).

C. Causation

Lauderdale County also contends that Holt failed to show by substantial evidence that negligence on its part was the cause of her injury. In fact, Lauder-dale County states that “the absence of guardrails extending back from the end of the bridge was not the proximate cause of the accident.” Lauderdale County’s brief at 15. Lauderdale County relies on Jones v. General Motors Corp., 557 So.2d 1259 (Ala.1990), and implies that Holt’s failure to establish why her vehicle left the road makes her claim the “ ‘product of pure supposition, conjecture and guesswork.’ ” Jones, 557 So.2d at 1265 (quoting trial court’s order). Lauderdale County’s reliance on Jones, however, is misplaced. The above-quoted text is from the trial court’s order. Neither in Jones nor subsequently has this Court endorsed the trial court’s rationale. “In Jones, this Court equivocated — saying that ‘we do not necessarily agree with the trial court’s “proximate cause” rationale’ set out in the trial court’s judgment. Jones, 557 So.2d at 1265.” Peters v. Calhoun County Comm’n, 669 So.2d 847, 851 (Ala.1995). Accord Ward v. Mor gan County, 769 So.2d 884, 888 (Ala.2000). In Peters, basically in response to the very same argument presented here, this Court held, in part:

“We find that the circuit court erred in basing the summary judgment upon this ground [that the unreasonable condition of the roadway was the cause of the accident], because Mr. Peters readily concedes that he does not know why his tires dropped off onto the road shoulder and because Mr. Peters’s theory of the Commission’s liability in this case is not based upon the Commission’s having proximately caused his fees to leave the pavement. Mr. Peters seeks to prove, through expert testimony of an accident reconstructionist, that the Commission’s alleged negligent failure to perform necessary shoulder work prevented him, after leaving the road surface for whatever reason, from safely steering back onto Coldwater Road.”

669 So.2d at 850. Similarly, in Ward, this Court held:

“Under the facts of this case, reasonable persons could disagree as to whether it was foreseeable that injury or death could result from Morgan County’s failure to repair the shoulder drop-off on Indian Hills Road or to warn of the drop-off level that existed after the resurfacing. The trial court stated in Morgan County’s summary judgment that it was not foreseeable that any part of Anthony Ward’s vehicle would leave the paved portion of the road in an area where the roadway was straight and during daylight hours. This is tantamount to concluding that it is unforeseeable that a driver will leave the road in an attempt to avoid an object, to avoid a collision with another vehicle, or as a result of simple inadvertence — all of these things, in fact, can happen on a straight road during daylight hours. Why Anthony Ward’s vehicle left the road is not the central issue in this case, given the fact that the complaint alleges that his death occurred because the low shoulder drop-off prevented him from being able to return to the road safely. Moreover, the county’s own engineer testified that it was ‘a known fact’ that vehicles leave the road for various reasons.
“Ward presented substantial evidence from which a jury could conclude that the county knew or should have known that a member of the motoring public might experience difficulty returning a vehicle to the paved portion of Indian Hills Road and might as a result of that difficulty, caused by an unreasonably dangerous shoulder-drop-off level or caused by a failure to warn motorists of that danger, be involved in an accident.”

769 So.2d at 888-89.

Holt is not arguing here that any negligence on Lauderdale County’s pait caused her vehicle to leave the road; instead, she is arguing that Lauderdale County negligently maintained the approach to the bridge by failing to install guardrails. It is this failure, she alleges, that caused her vehicle to roll over into the creek. She maintains, through an expert witness, that had the guardrails been there, her vehicle would have been deflected back toward the road and would not have gone off the bridge into the creek. Holt’s brief at 6. Her proof for this claim goes beyond “mere conclusory allegations.” Brown v. St. Vincent’s Hosp., 899 So.2d 227, 238 (Ala.2004). Her expert stated that, had a guardrail been in place, Holt’s vehicle would have “been deflected back into County Road 88, or spun around to where she would have basically been protected sideways from going off the edge of the bridge,” and he opined that “had those guardrails been in place at the ... bridge, ... the accident would have been much less severe.”

A defendant will not usually be liable for harm that is unforeseeable, even when it is proven that the defendant breached a duty. Thetford v. City of Clanton, 605 So.2d 835, 840 (Ala.1992). The Peters Court stated that “a jury should decide whether Mr. Peters’s leaving the road, under the circumstances, was so far outside the bounds of reasonable driving as to be unforeseeable by the Commission.” 669 So.2d at 850. Applying this same test to the facts here, we conclude that a genuine issue of material fact exists regarding the foreseeability of the vehicle’s leaving the road under the circumstances. The hill and the curves approaching the bridge, the narrow bridge, and the possible ice on the roadway are all pertinent facts that could allow a juror to find that it is reasonable for Lauderdale County to foresee that a vehicle might leave the paved portion of the road.

Conclusion

The trial court’s ruling was in error. In this case, there were genuine issues of material facts, and those issues should have been presented to a jury for its decision. The summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

SEE, LYONS, STUART, and BOLIN, JJ., concur in the result.

      . Exhibit 1 is mentioned in a partial transcript from Allamel's deposition that was attached to Lauderdale County’s motion for a summary judgment. The available portion of the transcript does not say what the exhibit is.


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

text:
    TOWN OF MOUNTAINBORO v. Treva GRIFFIN and Benny E. Griffin. Treva Griffin and Benny E. Griffin v. Town of Mountainboro and City of Boaz.
    1070731 and 1070777.
    Supreme Court of Alabama.
    Jan. 16, 2009.
    Rehearing Denied June 19, 2009.

      James H. Anderson and Ryan Wesley Shaw of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery, for appellant/cross-appellee Town of Mountainboro.
    Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellees/cross-appellants Treva Griffin and Benny E. Griffin.
   MURDOCK, Justice.

The Town of Mountainboro appeals from a judgment against it and the City of Boaz in an action filed by Treva Griffin and Benny E. Griffin contesting the results of an annexation election. The Griffins cross-appeal. As to Mountainboro’s appeal, we reverse and remand; we dismiss the Griffins’ cross-appeal.

Facts and Procedural History

On October 30, 2007, an election was held to determine whether the citizens of Mountainboro favored the annexation of their town into Boaz. The declared result of the election was 82 votes in favor of annexation and 81 votes against annexation.

On November 9, 2007, the Griffins, qualified electors in Mountainboro, timely filed in the Etowah Circuit Court a contest of the annexation election. Mountainboro and Boaz were named as the contestees. The Griffins alleged that illegal votes had been cast in favor of annexation. It is undisputed that the Griffins, as qualified electors of Mountainboro, had the legal right to contest the annexation election in this manner. See § 11-42-2(8), Ala.Code 1975.

In response to the Griffins’ election contest, Mountainboro and Boaz (sometimes collectively referred to as “the contestees”) alleged, among other things, that illegal votes likewise had been cast against annexation and that, if those votes were not considered, the resulting vote totals would favor annexation. The Griffins challenged that response, arguing that “counter-contests can only be commenced by a qualified voter” and that, therefore, the contestees did not have legal standing to defend the pro-annexation election result by challenging the legality of votes cast against annexation.

On December 28, 2007, the trial court held a hearing at which ore tenus evidence was presented. The parties stipulated that one person who had voted against annexation was not a qualified elector of Mountainboro and that her vote should be struck from the total. The Griffins offered testimony and evidence concerning three voters who, according to the Griffins, had cast illegal votes in favor of annexation. Mountainboro offered evidence in rebuttal to the Griffins’ evidence. Also, over the objection of the Griffins, Mountainboro presented evidence indicating that some voters had cast illegal votes opposing annexation. The Griffins responded with evidence that those voters were legally entitled to vote and that their votes against annexation were valid.

On February 5, 2008, the trial court entered a judgment in favor of the Griffins and against Mountainboro and Boaz. The court found that two of the three voters challenged by the Griffins had cast illegal votes in favor of annexation and that their votes must be struck from the vote total. Further, the trial court held that neither municipality was a “qualified elector” and, consequently, that neither was entitled to challenge the legality of votes cast against annexation. The trial court’s rulings resulted in final vote totals of 80 votes in favor of annexation and 80 votes against annexation. Thus, the annexation was not allowed to proceed.

Mountainboro’s Appeal (case no. 1070781)

On appeal, Mountainboro raises a single issue, namely, whether it, as a eon-testee in the Griffins’ annexation-election contest, had standing to submit evidence of allegedly illegal votes east against the annexation of Mountainboro by Boaz. The trial court held that Mountainboro did not have such standing, and we review that holding de novo. “The issue of standing presents a pure question of law, and the trial court’s ruling on that issue is entitled to no deference on appeal.” Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 953 (Ala.2004).

We conclude that the trial court incorrectly reasoned from the fact that the governing statute expressly authorizes “any qualified elector” of Mountainboro to contest the declared outcome of the annexation election on the ground, among others, that illegal votes were cast in favor of the annexation to the conclusion that Mountainboro did not have standing to assert that illegal votes were east against the annexation.

We begin our analysis with the text of the governing statute, § 11-42-2(8). In pertinent part, § 11-42-2(8) reads: “The result of such [annexation] election may be contested by any qualified elector voting at the election in the manner provided for contest of general municipal elections, making the city or town the contestee.” (Emphasis added.)

The initial problem with the trial court’s reasoning is that the first clause of § 11-42-2(8), emphasized above, does not say that, in the event of an election contest, the only party to the contest that can challenge the legality of votes cast for one side or the other is a “qualified elector.” The first clause and its reference to a “qualified elector” is concerned only with who can challenge the declared outcome of an annexation election, not the grounds upon which a challenge to that outcome may be based or the grounds upon which that outcome may be defended. That is, the first clause of § 11-42-2(8) merely constitutes a legislative grant of authority to “any qualified elector” to initiate and prosecute an election contest.

The trial court conflated the threshold question of who may properly initiate the annexation-election contest itself with the separate and different question of what grounds may be asserted and proven by that contestant in an effort to change the outcome of the election. This in turn led to apparent confusion as to the corollary question of what grounds thereafter may be asserted and proven by a contestee in an effort to prevent a change in the outcome of the election. These latter questions, as well as who may serve as a proper “contestee” in the effort to prevent a change in the outcome of the election, are questions not addressed by the first clause of the first sentence of § 11-42-2(8) and its reference to qualified electors. To answer these latter questions, we turn to the balance of that sentence.

The balance of the first sentence of § 11-42-2(8) expressly provides that a contest of an annexation election is to be conducted “in the manner provided for contest of general municipal elections .... ” “The contest of general municipal elections” is governed by Chapter 46 of Title 11, Ala.Code 1975. Section 11-46-69 provides that the grounds for contesting an election include the counting of illegal votes in favor of the winning side, see § ll-46-69(a)(3), Ala.Code 1975; the rejection of legal votes in favor of the losing side, see § 11 — 46—69(a)(4); and/or one or more of three other grounds, see § 11-46-69(a)(1), (2), and (5), Ala.Code 1975. The question before us in this case is whether Mountainboro had the right not only to defend against the attempt by the Griffins, as contestants, to prove that illegal votes were cast in favor of the winning side, which, if deducted from the declared vote total in favor that side, would yield a different outcome in the election, but also to counter whatever success the Griffins may have in proving such illegal votes with evidence of illegal votes in favor of the losing side, which, if deducted from the final vote total for that side, would preserve the declared outcome of the election.

Again, we turn to the text of the statute. Section 11-42-2(8) expressly provides that the contest of an annexation election is to be conducted in the same manner as the contest of a general municipal election. In that regard, we find instructive this Court’s analysis in Eubanks v. Hale, 752 So.2d 1113, 1134 (Ala.1999), a case involving a contest of the 1998 election for sheriff of Jefferson County, in which Mike Hale had been declared the winner over Jim Woodward:

“The contestants now argue that the contestee is not entitled to present any evidence because he did not file a cross-contest, but the contestee correctly points out that the statutes do not require that he file an independent ‘cross-contest.’ Section 17-15-1, Ala.Code 1975, provides:
“ ‘The election of any person declared elected to ... any office which is filled by the vote of a single county ... may be contested.... ’
“(Emphasis added [in Eubanks ].) Under the language of the statute, then, only the election of a ‘person declared elected’ may be contested. Because Woodward had not been declared the winner of the sheriffs race, the statute did not authorize Hale to file an election contest. Section 17-15-32, Ala.Code 1975, provides:
“ ‘If, on the trial of the contest of any election, ... it shall appear that any person other than the one whose election is contested, received or would have received, had the ballots intended for him and illegally rejected been received, the highest number of legal votes, judgment must be given declaring such person duly elected....’
“In light of these statutes, we conclude that the contestee is not prohibited from introducing such evidence of votes cast illegally for [the losing side]. Neither are the contestants foreclosed from offering any other evidence of illegal votes that they claimed were cast for [the winning side].”

(Final emphasis added.)

As in Eubanks v. Hale, the applicable statutes in this case — §§ 11-42-2(8) and ll-46-69(a), which in all material respects is worded the same as the statute at issue in Eubanks — do not require the filing of a cross-contest. As in that case, “we conclude that the contestee is not prohibited from introducing ... evidence of votes cast illegally for [the losing side].” 752 So.2d at 1134. That is, we conclude that Moun-tainboro, as a properly named contestee in this case, had standing to try to preserve the declared outcome of the election both by rebutting the evidence of illegal votes cast in favor of the proposed annexation offered by the contestants and by submitting evidence of illegal votes east against the proposed annexation.

Our conclusion finds support in common sense, reason, and fairness. As was stated in Ex parte Hayes, 405 So.2d 366, 370 (Ala.1981) (quoting State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 233-34, 66 So.2d 726, 731 (1953)): “ ‘If a statute is susceptible of two constructions, one of which is workable and fair and the other unworkable and unjust, the court will assume that the legislature intended that which is workable and fair.’ ” Our understanding of the statutory scheme created by the legislature for contesting annexation elections avoids a construction that is unworkable and unjust in favor of one that is workable and just. It avoids a construction whereby one side in an election contest can have removed from the vote totals illegal ballots cast against it but the other side cannot and thus recognizes the fundamental importance of the right to vote and is consistent with fundamental principles regarding the integrity of elections.

Moreover, we cannot conclude that the legislature, in adapting § 11-46-69 to an annexation election in § 11-42-2(8), intended to establish a process by which a contestant can obtain a binding judgment from a court of law establishing the legality or illegality of an annexation election by naming someone as a “contestee,” or defendant, who cannot fully defend the outcome of that election. If the otherwise properly named defendants in such a proceeding lack the necessary standing to fully and fairly defend the outcome of the election, one may question not only the integrity of the outcome achieved in such a proceeding but, indeed, whether the proceeding enjoys the necessary adverseness of parties to make for a “case” over which the court has subject-matter jurisdiction in the first place. Cf. Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998) (“ ‘The absence of adversary or the correct adversary parties is in principle fatal’ ” to justiciability and thus to subject-matter jurisdiction. (emphasis omitted; emphasis added) (quoting Rogers v. Alabama Bd. of Educ. 392 So.2d 235, 237 (Ala.Civ.App.1980))).

We therefore conclude that the judgment of the trial court is due to be reversed. The cause is remanded for the trial court to evaluate, consistent with this opinion, the evidence introduced at trial by Mountainboro of the illegality of certain votes cast against annexation and to enter a new judgment that takes that evaluation into consideration.

The Griffins’ Cross-Appeal (case no. 1070777)

In their cross-appeal, the Griffins complain that the record contains no evidence indicating that a prior annexation into Mountainboro of an area known as Sky-land subdivision had ever been “pre-cleared” by the Justice Department under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Therefore, according to the Griffins, voters who reside in that area should not have been included in the current election. The Griffins also complain that there had been no Justice Department preclearance of a strip of land previously annexed into Boaz that physically connects Moun-tainboro with Boaz, establishing the connection necessary for the annexation. Mountainboro responds by pointing out that the Griffins did not include their objection to these votes in their complaint in the election contest and did not make these arguments at trial, raising them for the first time in a posttrial motion.

In any event, according to Moun-tainboro, the trial court was without jurisdiction to entertain a case involving an interpretation and application of the federal Voting Rights Act. It cites Singer v. City of Alabaster, 821 So.2d 954, 957 (Ala.2001) (quoting Mitchell v. City of Prichard, 538 So.2d 1, 2 (Ala.1988), which involved a disputes over the validity of certain purported municipal annexations and de-annexations), for the proposition that “ ‘cases involving the interpretation of the preclearance requirements of Section 5 of the federal Voting Rights Act are within the exclusive jurisdiction of the federal courts.’ ” Based on Singer and Mitchell, the Griffins cross-appeal is due to be dismissed. Any relief the Griffins may seek under § 5 of the Voting Rights Act should be pursued in federal court.

1070731 — REVERSED AND REMANDED WITH INSTRUCTIONS.

1070777 — APPEAL DISMISSED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.

LYONS, J., concurs specially.

WOODALL, STUART, and BOLIN, JJ., dissent.

LYONS, Justice

(concurring specially).

When the legislature dictates that a statute applicable to one circumstance shall apply to a different circumstance, we are confronted with challenging issues of statutory construction. Although I am not unmindful of our obligation to construe strictly laws governing election contests, I am satisfied that the main opinion correctly adheres to legislative intent.

Section 11-42-2(8), Ala.Code 1975, expressly provides that the town or city seeking to annex the property is properly named as the “contestee” in a contest of an annexation election. Section 11-42-2(8) also contemplates that the contest is to be conducted in the same manner as the contest of a general municipal election.

I consider the legislature’s use of the word “contestee” in § 11-42-2(8), when coupled with the incorporation of procedures governing general municipal elections, as sufficient indicia of intent to confer upon a municipality named in a contest of an annexation election the same prerogative of challenging illegal votes as enjoyed by a party also described as a “contestee” in several instances in Title 17, Chapter 16, Ala.Code 1975, who, as a candidate for office, is of necessity a qualified elector. Had the legislature been disinclined to permit a municipality the prerogative available to a contestee under the general-election-contest statute, then it could easily have phrased § 11-42-2(8), in which the general-municipal-election-contest statute is made applicable, without describing the municipality as a “contestee.”

WOODALL, Justice

(dissenting).

“This Court has been unequivocal in stating that elections normally do not fall within the scope of judicial review.” Sears v. Carson, 551 So.2d 1054, 1056 (Ala.1989). “An election contest is a statutory matter, and the statute governing the election must be strictly observed and construed.” Long v. Bryant, 992 So.2d 673, 680 (Ala.2008). “ ‘An election contest being purely statutory, the courts are limited in their investigation to such subjects as are specified in the statutes.’” Longshore v. City of Homewood, 277 Ala. 444, 446, 171 So.2d 453, 455 (1965)(quoting 29 C.J.S. Elections § 247). In my opinion, the Court has ignored these well established principles; consequently, I respectfully dissent.

The Court holds that Mountainboro, the municipality that conducted the annexation election, has the legal right to challenge the legality of certain votes cast in the election. However, this holding is not supported by the applicable statutes. Having considered the unambiguous language in both § 11-42-2(8), Aa.Code 1975, and § ll-46-69(a)(3), Aa.Code 1975, it is clear to me that only a “qualified elector” has standing to challenge the legality of votes cast in an annexation election. Any other conclusion violates the principle that “the statute[s] governing the election must be strictly observed and construed.”

I disagree with the Court’s conclusion that the analysis in Eubanks v. Hale, 752 So.2d 1113 (Ala.1999), is instructive in this case. In its judgment, the trial court stated:

“Hale held that once a contest is filed, it is not necessary for the contestees to file an independent ‘cross-contest’ in order to challenge votes themselves. In Hale, however, the contestant and the respondent/contestee were both ‘qualified electors.’ So, Hale is not instructive on the key issue of [Mountainboro’s] standing in the case at bar.”

The trial court correctly distinguished Hale, and that case does not support today’s holding.

For the foregoing reasons, I would affirm the judgment of the trial court in Mountainboro’s appeal. The Griffins in their cross-appeal, of course, have argued that the judgment is due to be affirmed. Consequently, I would dismiss their cross-appeal as moot.

STUART and BOLIN, JJ., concur.

      . Section 11-42-2(8) provides:
      "Whenever the council [of a city or town] shall pass a resolution to the effect that the public health or public good requires that certain territory ... shall be brought within the limit of the city or town:

      "(8) The result of such election may be contested by any qualified elector voting at the election in the manner providing for contest of general municipal elections, making the city or town the contestee.”
      No party disputes that both Boaz and Moun-tainboro were properly named by the Griffins as contestees in this case.

      . We have not been presented in this case with the issue whether an election-contest procedure whereby one side can have removed from the vote totals illegal ballots cast against it but the other side cannot would raise equal-protection or due-process concerns.

      . Mounlainboro argues in its brief that to hamstring the contestee in the manner proposed by the Griffins ‘‘defies logic.”