author: IRVING, J.,

text:
    Troy Leon FISACKERLY, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00410-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2004.

      William Michael Mallette, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Troy Leon Fisackerly was convicted in the Circuit Court of Webster County of statutory rape and sentenced to twenty years, in the custody of the Mississippi Department of Corrections with five years suspended. Aggrieved by this conviction and sentence, Fisackerly has perfected this appeal and raises the following issues as error: (1) whether the circuit court erred when it allowed the State to introduce certain audiotapes containing incriminating statements and allegations of prior bad acts committed by him, and (2) whether the circuit court erred in allowing the minor to testify concerning prior acts committed by him with the minor.

¶ 2. We find no reversible error; therefore, we affirm the decision of the circuit court.

FACTS

¶ 3. Prior to June 15, 2001, Troy Leon Fisackerly and Shirley Jones had lived together approximately eight years although they were not married. Three minor children, including J.J. lived with them. Fisackerly was not the father of J.J. although he was the father of one of the children.

¶4. On June 15, 2001, Fisackerly and Shirley got into an argument and Shirley took her children to Cindy Reeves’s house. Fisackerly later picked up J.J. and her younger brother and transported them to the home of his brother, Billy Fisackerly. That night, Fisackerly slept in the same room with the children. Initially Fisackerly shared the bed with J.J.’s brother. However, later on during the night, Fi-sackerly moved to the bed where J.J. was located and started feeling on her vagina. He later had intercourse with J.J. until he had an orgasm. Fisackerly then got up from the bed, looked to see if his brother was awake, and returned to the bed where J.J.’s brother was sleeping.

¶ 5. Shortly after this incident, Shirley heard from her sister that Fisackerly may have raped J.J. Consequently, she and her three minor children moved out of the residence with Fisackerly without informing him as to their new location. Shirley, however, continued to talk to Fisackerly by telephone.

¶ 6. After moving out of the residence with Fisackerly, Shirley contacted Officer Roger Miller of the Mathison Police Department and informed him about the rape allegations. Officer Miller referred Shirley to Beverly Baker at the Department of Human Services in Webster County. Baker, in turn, referred Shirley to the Webster County district attorney’s office. William Blackmon, the domestic violence investigator for the district attorney, met with Shirley and advised her that, based on J.J.’s statements alone, there was not enough evidence to charge Fisackerly. Investigator Blackmon further instructed Shirley that more evidence would need to be gathered, particularly tape-recorded, self-incriminating statements from Fisack-erly.

¶ 7. Subsequently, Shirley produced and turned over to Investigator Blackmon a collection of micro-cassette tapes which she had recorded of conversations between her and the children and Fisackerly. She later signed an affidavit charging Fisack-erly with the June 15, 2001 statutory rape of J.J. who, at the time of the incident, was twelve years old.

¶ 8. Fisackerly was indicted and convicted of the charge, resulting in this appeal after his post-trial motion for new trial or judgment notwithstanding the verdict was denied by the circuit court.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. Our standard for reviewing the decisions of a circuit court is well-established. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.” Palmer v. City of Oxford, 860 So.2d 1203, 1207-08(¶ 10) (Miss.2003) (quoting McIlwain v. State, 700 So.2d 586, 590 (Miss.1997)).

1. Admission of the Audiotapes

¶ 10. Issues one and two are interrelated; therefore, we combine them for discussion. With respect to the tapes, Fisackerly first argues that his right against self-incrimination was violated when the circuit court allowed the jury to consider both audiotapes and transcripts of the tapes of his telephone conversations with various members of Shirley’s family. He explains that, because Shirley was instructed by the office of the district attorney as to the type of evidence that was needed to bring charges against him and the method for acquiring such information, Shirley and her children became agents of the State. According to Fisackerly, the Joneses as agents of the State, should have been subject to the same Miranda requirements as law enforcement officers when they engaged in investigative activities to obtain incriminating statements from him. Citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Hopkins v. State, 799 So.2d 874 (Miss.2001), Fisackerly concludes that the jury verdict should be reversed because the trial court admitted the audiotapes and transcripts without determining whether the Joneses had met the Miranda requirements.

¶ 11. The circuit court considered Fi-sackerly’s objection to the tape evidence. After receiving confirmation from both counsel that Fisackerly was not in police custody at the time that he made his statements on the audiotapes, the circuit judge gave the following response:

Miranda applies to custodial interrogations or statements, and it does not apply to statements when he is not in custody and has the liberty to come and go as he pleases, which from what y’all have told me, is the situation in this ease. So that motion is overruled.

¶ 12. We agree with the circuit court that the manner by which the Joneses obtained the audiotapes from which the transcripts were made does not preclude their admission into evidence. The evidence does not show, nor does Fisackerly argue, that he was in the custody of the police while his girlfriend recorded their conversations. He does assert, as stated earlier, that the Joneses acted as agents of the State when they produced the audiotapes. We, however, are unconvinced by this argument and do not find that Fisack-erly was under “interrogative custody” when the Joneses recorded their telephone conversations with him.

¶ 13. Alternatively, Fisackerly argues that his giving of statements to the Joneses was not voluntary. We likewise find this contention to be meritless. While the Joneses recorded their conversations with Fisackerly, we do not see how their actions deprived Fisackerly of his freedom of action in any significant way. Fisackerly voluntarily talked to the Joneses by telephone and gave incriminating statements which they recorded. Their motive, though not communicated to Fisackerly, is immaterial. And they certainly were not law enforcement officials. Further, Fi-sackerly has not alleged or shown that his statements were extracted as a result of threats or force by anyone, much less a law enforcement official.

¶ 14. Fisackerly next argues that the circuit court erred and violated Rules 403 and 404(b) of Mississippi Rules of Evidence when it admitted both the audiotapes and J.J.’s testimony because the tapes and J.J.’s testimony contained allegations of prior bad acts committed by him.

¶ 15. The State offered both the audiotapes and the testimony of J. J. as evidence to demonstrate that Fisackerly had sexual contact twice with J.J. between two to three years before June 15, 2001. Counsel for Fisackerly contemporaneously objected to this evidence. The circuit court overruled the objection and allowed the State to introduce the tapes for the limited purpose of showing Fisackerly’s lustful and lascivious disposition towards J.J. Contemporaneously with the playing of the audiotapes, the court gave a limiting instruction. At the close of the evidence, the court also gave a written limiting instruction.

¶ 16. In making his Rule 404(b) argument, Fisackerly correctly acknowledges that similar evidence has been admitted for the purpose of showing the lustful and lascivious disposition of the accused towards the victim. Crawford v. State, 754 So.2d 1211(¶ 23) (Miss.2000); Tompkins v. State, 759 So.2d 471 (¶¶ 8-11) (Miss.Ct.App.2000). However, he attempts to distinguish Crawford and Tompkins in several aspects.

¶ 17. First, Fisackerly argues that Crawford and Tompkins are distinguishable because they involved evidence of “patterned” or “continuing” sexual conduct between the accused and the victim that occurred in the months immediately preceding the charged crimes. Citing Darby v. State, 538 So.2d 1168 (Miss.1989), Fi-sackerly argues that evidence of an ongoing or continuous pattern of sexual conduct between himself and J.J. first had to be shown before such evidence could be admitted to demonstrate his lustful and lascivious disposition towards J.J.

¶ 18. Fisackerly’s reliance on Darby, is misplaced. Darby does not deal with prior sexual acts between an accused and a minor victim. Darby addresses prior bad acts evidence generally under Rule 404(b), while Tompkins and Crawford speak to prior acts of sexual conduct between an accused and a minor victim. We find Tompkins and Crawford, rather than Darby, controlling. Neither Tompkins nor Crawford holds that the prior sexual acts, between the victim and the accused, and the charged conduct must be ongoing or very recent in time before evidence of the prior sexual encounters may be admitted into evidence in the trial of the accused on the charged conduct. Both Tompkins and Crawford state that evidence of prior sexual contact between the defendant and the victim may be admitted for the limited purpose of showing the lustful and lascivious disposition of the accused towards the victim. Tompkins, 759 So.2d at 474(¶ 9); Crawford, 754 So.2d at 1220(¶ 23). We do not address whether the time interval between the past sexual acts, involving the accused and the minor victim, and the charged sexual acts, between the accused and the victim, may never be relevant or material in a trial of the accused for the latter sexual acts. We simply find that neither Tompkins nor Crawford addresses this issue, and there is no need for us to address it either. But, even if we were to address the relevancy of the passage of time, we would find that the passage of time here does not bar admission of the evidence regarding the past sexual encounters between Fisackerly and J.J. As already mentioned, J.J. was twelve years old at the time of the incident charged in the indictment. She testified that she and Fi-sackerly had engaged in sexual encounters at least twice before, when she was ten and eleven years old.

¶ 19. Fisackerly next attempts to draw a distinction between cases involving sexually-based assaults on a victim and those involving sexual intercourse between the accused and the victim. According to Fi-sackerly, the State’s demonstration of the lustful and lascivious disposition of Fisack-erly toward J.J. would only been appropriate if the case against him had been a charge of sexual assault against the victim. Because the charge against him involves sexual intercourse with the victim, Fisack-erly explains that the evidence of his prior sexual intercourse with the victim only succeeded in demonstrating that he acted in conformity with his prior bad acts.

¶20. We note that Fisackerly cites no authority to support his argument of a distinction between evidence of prior sexual assaults against a victim by an accused and evidence of prior sexual intercourse between an accused and a minor victim, as it relates to demonstrating the lustful and lascivious disposition of an accused toward his minor victim. We therefore need not address his argument. Byrom v. State, 863 So.2d 836, 863(¶ 84) (Miss.2003).

¶ 21. Fisackerly’s next argument is that the circuit court applied the wrong legal standard when it conducted its Rule 403 analysis regarding the evidence of prior sexual acts committed by Fisackerly against J.J. According to Fisackerly, “The correct legal standard as laid out in Rule 403 is that the probative value must substantially outweigh the prejudicial effect.”

¶ 22. We first observe that Fisackerly failed to make a contemporaneous objection as to the standard used by the circuit judge in ruling that the audiotapes and J.J.’s testimony would be admitted. Therefore, we need not address this issue. Jones v. State, 857 So.2d 740, 745(¶ 17) (Miss.2003). Notwithstanding this procedural bar, we find no merit in Fisackerly’s position.

¶ 23. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403.

¶ 24. Our standard of review of a circuit judge’s decision to admit certain evidence is an abuse of discretion standard. As we have already noted, the circuit judge admitted the audiotapes and testimony of J.J. for the limited purpose of showing that Fisackerly exhibited a lustful and lascivious disposition towards the victim. This ruling is in accord with the holdings in Crawford and Tompkins. In making his ruling, the circuit judge said, “I find that the probative value does outweigh the prejudicial effect because it does show the lustful, lascivious or tends to show the lustful, lascivious disposition of the Defendant toward the victim.” Mindful of our standard of review, we cannot say that the circuit judge abused his discretion. Further, based upon our review of the circuit judge’s ruling, we find no merit in Fisack-erly’s claim that the circuit judge utilized the wrong legal standard in deciding that the probative value of the prior sexual acts evidence was not substantially outweighed by the danger of unfair prejudice.

¶ 25. We, therefore, affirm Fisackerly’s conviction and sentence.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF WEBSTER COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      . In order to protect the identity of the minor victim, we have substituted fictitious names for her and her mother. The mother is referred to as Shirley Jones and the victim as ''J.J.”


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Leo POINDEXTER, Appellant v. SOUTHERN UNITED FIRE INSURANCE COMPANY, Appellee.
    No. 2003-CA-01483-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2004.

      Gary L. Geeslin, Columbus, attorney for appellant.
    Thomas L. Segrest, Columbus, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. Leo Poindexter filed a complaint against Southern United Fire Insurance Company in the Circuit Court of Lowndes County. On August 27, 2001, the complaint was dismissed with prejudice and Poindexter appealed to the Mississippi Supreme Court. On February 27, 2003, in Poindexter v. Southern Fire Ins. Co., 838 So.2d 964 (Miss.2003), the supreme court held that Southern United’s refusal to recognize responsibility for storage and towing costs was not a denial of “coverage,” but reversed and remanded to allow Poin-dexter leave to amend his complaint pursuant to Mississippi Rules of Civil Procedure Rule 15. The trial judge dismissed Poin-dexter’s amended complaint, and it is from that dismissal that Poindexter appeals, and asserts the following issues, which we quote verbatim:

I. The trial judge erred, as a matter of law, in dismissing Plaintiffs First Amended Complaint alleging that Defendant’s bullying tactics and economic coercion constituted intentional infliction of emotional distress upon Plaintiff.

II. The trial judge erred, as a matter of law, in holding that Plaintiffs Motion to Compel Discovery was moot.

STATEMENT OF FACTS

¶ 2. On June 20, 2000, Leo Poindexter’s vehicle was damaged in a collision with a vehicle driven by Elby Fields. Fields was insured under a policy of automobile liability insurance issued by Southern United Fire Insurance Company (Southern United). At the direction of the investigating officer, Poindexter’s vehicle was towed from the scene of the accident. The vehicle was later determined to be a total loss, and has since been stored at the premises of the tow truck operator. Poindexter refused to accept Southern United’s offer of settlement, because Southern United refused to include the towing or storage expenses incurred as a result of the accident.

¶ 3. On March 8, 2001, Poindexter brought suit against Fields and Southern United to seek compensation for the damages to his vehicle, and a Mississippi Rule of Civil Procedure Rule 57(b)(2) declaratory judgment to determine that his towing and storage expenses were covered under Fields’ liability insurance policy. Poindex-ter also claimed that he was entitled to actual and punitive damages as a result of Southern United’s “bad faith refusal to settle.”

¶ 4. Southern United sought a Rule 12(b)(6) dismissal of the complaint, and Poindexter moved to amend his complaint to aver that Southern United’s “bad faith refusal to settle,” bullying tactics, and economic coercion constituted outrageous conduct which was actionable as intentional infliction of emotional distress.

¶ 5. On August 20, 2001, a preliminary hearing was conducted pursuant to Southern United’s request under Rule 12(d), and the trial judge heard Poindexter’s motion to compel discovery, motion for leave to amend the complaint, and Southern United’s Rule 12(b)(6) motion to dismiss. Po-indexter’s direct claims against Southern United were claims for: (1) a Rule 57(b)(2) declaratory judgment to determine whether the towing and storage fees were covered under the Southern United policy, (2) a claim for “bad faith” refusal to pay towing and storage fees, and (3) a claim for punitive damages. At the hearing, the trial judge dismissed the direct claims against Southern United, but did not dismiss claims Poindexter may have against Fields.

¶ 6. Poindexter appealed this dismissal to the Mississippi Supreme Court in Poindexter v. Southern United Fire Ins. Co., 838 So.2d 964 (Miss.2003). The supreme court affirmed in part and reversed in part. The opinion affirmed the portion of the trial judge’s order dismissing Poindex-ter’s declaratory judgment action, and held that Southern United’s refusal to recognize responsibility for towing and storage charges was not a denial of “coverage.” The Court reversed and remanded the portion of the trial judge’s opinion which denied Poindexter’s right to amend his complaint.

¶ 7. On remand, Poindexter filed an amended complaint, which was identical to his original complaint, except it alleged that Southern United had committed the independent tort of intentional infliction of emotional distress, rather than his original “bad faith to settle” claim. Poindexter contended that Southern United’s use of bullying tactics and economic coercion to refuse to pay his alleged damages, including the towing and storage costs of his vehicle, constituted the independent tort of intentional infliction of emotional distress.

¶8. On June 6, 2003, the trial judge dismissed Poindexter’s amended complaint holding that “the facts in the first amended complaint clearly amount to nothing more than a simple dispute between the plaintiff and Southern United Fire Insurance Company over the amount of damages plaintiff is entitled to recover from the co-defendant Fields,” and subsequently holding “[t]he law imposes upon Southern United Fire Insurance no duty to settle plaintiffs claims against its insured and by simply refusing to pay the sum of money which plaintiff has demanded, Southern United Fire Insurance Company is not guilty of intentional infliction of emotional distress.”

¶ 9. Aggrieved by this dismissal Poin-dexter has perfected his appeal.

ISSUES AND ANALYSIS

I.

The trial judge erred, as a matter of law, in dismissing Plaintiffs First Amended Complaint alleging that Defendant’s bullying tactics and economic coercion constituted intentional infliction of emotional distress upon Plaintiff.

¶ 10. Poindexter contends that the trial judge erred in granting Southern United’s motion to dismiss because he had a viable claim for intentional infliction of emotional distress. Poindexter asserts that his proof comports with his claim, that Southern United committed the independent tort of intentional infliction of emotional distress against him by using economic coercion and bullying tactics to attempt to force him into a less than favorable settlement. Poindexter contends that his pleading put Southern United on notice of his claim, and that the matter should be put before a jury for development of that claim.

¶ 11. The standard of review that this Court employs for a denial of a motion to dismiss under Rule 12(b)(6) is to conduct a de novo review of questions of law. Varvaris v. Perreault, 813 So.2d 750, 752(¶ 4) (Miss.Ct.App.2001). “Upon a motion for dismissal pursuant to Rule 12(b)(6), the pleaded allegations of the complaint must be taken as true, and a dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief.” Id. (citation omitted).

¶ 12. Reviewing the matter de novo, as we are required to do, we look to the allegations of Poindexter’s pleadings and accept them as true. First, Poindex-ter contends that Fields’ negligence caused the accident in which his vehicle suffered $3,000 worth of damage. Second, he contends that Fields was insured by an automobile policy issued by Southern United which was in full force and effect on the day of the accident. Third, he contends that he has incurred a towing charge of $75, and storage charges of $15 per day since June 30, 2000, and since that day he has lost the use of his truck valued at $29.99 a day. Fourth, he contends that Southern United made one offer to settle, but it was unacceptable, as it did not include the towing and storage charges for his vehicle. Fifth, Poindexter contends that Southern United knew that he suffered from acute diabetes which resulted in the amputation of both of his feet, and that as a result he undergoes kidney dialysis three times a week. Sixth, Poindexter contends that Southern United knew that as a result of his illness he was in financial distress and could not pay the storage and towing fees. Finally, he contends that Southern United is guilty of economic coercion because it knew of his physical and financial condition, and in light of that told him to “either take it or leave it,” with regards to the settlement offer. Poindexter also contends that Southern United made statements to him that if he did not like the offer he could sue, but since he did not have any money and the amount of the claim was so small that he would not likely be able to hire an attorney. Under these circumstances, Poindexter contends that Southern United committed intentional infliction of emotional distress by its refusal to pay his storage and towing expenses, because it had a duty to pay these costs as a result of its insured’s negligence.

¶ 13. While we are sympathetic to Poindexter’s situation, we do not find that the unfortunate frustration and annoyances caused by Southern United rose to the heightened level of intentional infliction of emotional distress. To recover damages for intentional infliction of emotional distress, the conduct must have been, “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Brown v. Inter-City Federal Bank for Sav., 738 So.2d 262, 265(¶ 9) (Miss.Ct.App.1999), citing Pegues v. Emerson Elec. Co., 913 F.Supp. 976, 982 (N.D.Miss.1996). “The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities.” Id., citing Lawson v. Heidelberg Eastern, 872 F.Supp. 335, 338 (NJD.Miss.1996). “[I]t is the nature of the act itself — as opposed to the seriousness of the consequences— which gives impetus to legal redress.” Brown, 738 So.2d 262, 265(¶ 9) citing Pegues, 913 F.Supp. at 982.

¶ 14. Contrary to Poindexter’s assertions, Southern United had no duty to him, but only to its insured. We agree with the trial judge, and find the matter between Southern United and Poindexter to be a pay dispute, and nothing more, and while not condoning the behavior of Southern United, we do not find that its conduct was so egregious as to “shock the conscience.”

¶ 15. Accordingly, we find that Poindex-ter’s assertion, that he suffered the independent tort of intentional infliction of emotional distress, is not supported by his complaint or brief.

II.

The trial judge erred, as a matter of law, in holding that Plaintiffs Motion to Compel Discovery was moot.

¶ 16. The resolution of Issue I renders moot issue II. However, we feel compelled to mention that Poindexter had an obligation to provide specific facts, which indicated that his claim was viable, rather than depending upon a fishing expedition, in hopes of establishing a claim. There is no mention in either his complaint or his brief of any specific facts, aside from those above-mentioned, with which to convince a jury, or the trial judge in the motion to dismiss, that Southern United had indeed intentionally inflicted emotional distress upon him. In our review of the record, all we have are bald assertions of Southern United’s denial of payment of his towing and storage expenses.

¶ 17. Accordingly, this issue lacks merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

BRIDGES, P.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.


text:
    Douglas GREEN, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-01143-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2004.

      Douglas Green, Jr., appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. Douglas Green, Jr. appeals an order denying his motion for post-conviction collateral relief entered by the Pearl River County Circuit Court. On November 26, 2002, Green pled guilty to attempted possession of precursor chemicals. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended, five to serve, and five years of post-release supervision. Green was ordered to undergo alcohol and drug treatment, pay a fine, and pay court costs.

¶ 2. On May 27, 2003, Green filed á pro se motion for post-conviction collateral relief. The motion was dismissed. On appeal, Green raises the following issues which we cite verbatim:

I. That the trial court erred in allowing Green to plea[d] guilty to a non-existent statu[t]e of attempted possession of precursor chemicals.

II. That Green entered an unintelligent and involuntary plea of guilty.

III. That Green was denied effective assistance of counsel.

IV. That the court erred in accepting Green’s guilty plea where no factual basis was established of Green’s guilt.

V. The court erred in that the record is void of the elements of the alleged charged [sic] of attempted possession of precursor chemicals and that the court failed to inform Green of the elements and/or have such elements explained by the prosecuting attorney, nor are such elements listed anywhere in the records.

FACTS

¶ 3. On September 6, 2002, Green was indicted for (1) possession of precursor chemicals while in possession of a firearm and for (2) possession of a weapon by a convicted felon pursuant to Mississippi Code Annotated Sections 41-29-313 (Supp. 2003), 41-29-152 (Rev.2001), and 97-37-5 (Rev.2000) respectively. The parties reached a plea agreement. On November 26, 2002, Green, represented by a public defender, filed a petition to enter a guilty plea to a charge of attempted possession of precursor chemicals.

¶ 4. During his guilty plea hearing on December 3, 2002, the trial judge questioned Green to determine whether his plea to the charge of attempted possession of precursor chemicals was knowingly and voluntarily made. Green testified that he understood the nature of the charge and the consequences of his plea.

¶ 5. The trial judge questioned Green regarding whether his attorney had explained the contents of the guilty plea petition to him. Green indicated that his attorney went over the information with him and had explained the charges to him. The trial judge asked if Green’s attorney had advised him of the maximum and minimum sentences required by law, to which he answered affirmatively. The trial judge then asked Green if his attorney had explained what the prosecutors must prove to show that he was guilty. Green stated that his attorney had explained this to him. The trial judge questioned Green to determine if he had been advised of his constitutional rights. Green indicated that he had been advised of these rights and the consequences of waiving these rights by pleading guilty. The trial judge asked Green if anyone had threatened him or promised him anything in regard to his plea. Green testified that he had not been threatened or promised anything. According to Green, he pled guilty because he was in fact guilty, and that the facts relating to the charge of attempted possession of precursor chemicals were true and correct.

¶ 6. Based upon Green’s responses to his questions, the trial judge determined that Green’s plea was knowingly and voluntarily made. The trial judge accepted Green’s guilty plea.

STANDARD OF REVIEW

¶ 7. In reviewing a trial court’s decision to deny a petition for post-conviction collateral relief, “this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595(¶ 6) (Miss.1999) (citation omitted). Where questions of law are raised, the applicable standard of review is de novo. Id.

ISSUES AND ANALYSIS

¶ 8. Because.issues I and V are interrelated, we have addressed them together.

I.

Whether Green entered a guilty plea to a valid statute offense.

¶ 9. Green claims that he pled guilty to a non-existent offense. He alleges that the charge of attempted possession of precursor chemicals does not exist, thereby making his plea invalid. While an attempt to commit a crime is a separate and distinct offense from the crime itself, a defendant may be charged with attempting to commit the principal offense when the attempt statute is coupled with the statute of the principal offense. Harden v. State, 465 So.2d 321, 323 (Miss.1985).

¶ 10. Pursuant to Mississippi Code Annotated Section 97-1-7 (Rev.2000), “[e]very person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense,” shall be punished for a period or for an amount of time not greater than is prescribed for the actual commission of the offense so attempted.

¶ 11. Mississippi Code Annotated Section 41-29-313 makes possession of precursor drugs or chemicals unlawful. This statute lists the types of drugs or chemicals which are considered precursor drugs. Both Mississippi Code Annotated Sections 97-1-7 and 41-29-313, when viewed together give the elements of the crime charged, attempted possession of precursor drugs or chemicals.

¶ 12. The transcript reveals that Green was aware of the State’s request to have the charge amended to attempted possession of precursor chemicals and that his attorney had discussed this change with him. “[A] valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or information against a defendant.” Harris v. State, 819 So.2d 1286(¶ 11) (Miss.Ct.App.2002) (citation omitted). The trial judge questioned Green regarding his knowledge of the charge and whether it had been explained to him. Green answered that the charge had been explained to him, and that he understood it.

¶ 13. Green stated under oath that he was in fact guilty of the crime charged and that he understood the nature of the crime charged. Therefore, Green was aware of what he was pleading guilty to. Green’s declaration was made under oath, in open court, and carries a strong presumption of verity. Baker v. State, 358 So.2d 401, 403 (Miss.1978). We find this issue to be without merit.

II.

Whether Green’s plea was voluntary.

¶ 14. Green argues that his plea was unintelligent and involuntary because he did not understand the law concerning the amended charge of attempted possession of precursor chemicals. He claims that he was deceived because he thought that he was pleading guilty to a charge that carried a lesser sentence.

¶ 15. Green further maintains that his plea was involuntary because the “attempt” statute was not mentioned during his plea hearing and he was not adequately advised of the amended charge. Rule 8.04(A)(3) and (4) of the Uniform Circuit and County Court Rules states:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.
4. Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;
c. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/ her if (s)he is indigent.

¶ 16. Green’s petition to enter a guilty plea and the transcript reflect that he was aware that he would be pleading guilty to the amended charge of attempted possession of precursor chemicals, and that his attorney had gone over both the petition to enter a guilty plea and the amended charge with him.

¶ 17. Green also claims that he was assured by his attorney that he would be placed on probation. When asked by the trial judge had he been promised anything, Green indicated that he had not been promised anything. The trial judge determined that Green’s plea was voluntary based upon his responses to the court’s questions regarding his plea. “Trial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Templeton v. State, 725 So.2d 764(¶ 10) (Miss.1998). Therefore, we find that the trial judge complied with Uniform Circuit and County Court Rule 8.04(A)(3) and (4). This issue is without merit.

III.

Whether Green received effective assistance of counsel.

¶ 18. Green contends that he received ineffective assistance of counsel because his attorney erroneously advised him that attempted possession of precursor drugs or chemicals carried a lesser sentence. Green asserts that he would have chosen a jury trial had he not been misinformed.

¶ 19. To establish a claim of ineffective assistance of counsel, Green must show (1) a deficiency of counsel’s performance (2) sufficient to constitute prejudice to the defense. Walker v. State, 703 So.2d 266(¶ 8) (Miss.1997). Assuming arguendo that Green’s attorney performed deficiently, Green has failed to show that the outcome of his trial would be different.

¶ 20. This Court notes that Green’s attorney negotiated an agreement which allowed his second count to be nolle prose-quied and Green received a sentence of five years to serve pending successful completion of five years of post-release supervision upon release from the Mississippi Department of Corrections’ custody. This would appear to be advantageous to Green rather than detrimental.

¶21. At the guilty plea hearing, the trial judge asked whether Green was satisfied with the services of his attorney. Green indicated satisfaction with his attorney’s services. This Court is entitled to rely upon solemn statements made under oath. Gable v. State, 748 So.2d 703(¶ 11) (Miss.1999); Baker v. State, 358 So.2d 401, 403 (Miss.1978).

¶22. This Court finds that Green has not provided any evidence to suggest that his attorney’s performance was deficient to the degree of being prejudicial to his defense. This issue is without merit.

IV.

Whether there was a factual basis to support the charge of attempted possession of precursor drugs or chemicals.

¶ 23. Green contends that no evidence exists which links him to the gun or precursor chemicals found at the house he was visiting.

¶ 24. However, a review of the record indicates that Green stated that he was pleading guilty because he was guilty and that the facts stated in the amended charge were true and correct. URCCC 8.04(A)(3). Green now contradicts his testimony. As noted previously, this Court is entitled to rely on solemn statements previously given under oath. Gable, 748 So.2d at (¶ 11). We find that, in the face of the evidence of the guilty plea hearing transcript, Green has failed to show that the contradiction in his testimony warrants a reversal.

¶ 25. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J, CONCURS IN RESULT ONLY. BARNES, J., NOT PARTICIPATING.


author: MYERS, J.,

text:
    Monica R. (Jones) HENLEY, Appellant v. Brian Kendall JONES, Appellee.
    No. 2002-CA-01859-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2004.

      J. Tyson Graham, Columbus, attorney for appellant.
    C. Michael Malski, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Monica R. (Jones) Henley appeals from the decision of the Chancery Court of Monroe County, Mississippi. The sole issue on appeal is the amount of child support to be paid by Monica to Brian Kendall Jones, her ex-husband.

¶ 2. When the parties divorced in 2000, they entered into a consent decree which provided that they would share actual joint physical custody of their two children, with the children living with one parent for seven days and the other for seven days. This arrangement lasted until Monica remarried and moved to Alabama, some two to two and a half hours away. Monica filed for a modification of custody. The court found, using Albright v. Albright, 437 So.2d 1003 (Miss.1983), that both parents were loving, excellent care givers, but that, with all other factors being equal, that Brian should have custody based on the home, school and community record of the children. Monica was granted extensive visitation. Monica will have the children 152 days of the 365 days of the year or approximately 42% of the time.

¶ 3. Monica was also ordered to pay child support of 20% of her adjusted gross income each month, amounting to $650 per month. Monica contends that the lower court erred in requiring her to pay continuous child support of 20% of her income when she will have the children 42% of the year. She argues that the court should have either reduced child support or eliminate it during the time she has the children for extended periods of time.

¶ 4. In support of her argument, Monica cites Sumrall v. Munguia, 757 So.2d 279 (Miss.2000). In that case, the Mississippi Supreme Court held that the non-custodial parent could be relieved of paying his monthly child support payments of $1,200 for his two college-age children for six months of the year while they were in school. In addition to the child support, the non-custodial parent was also paying college tuition and the living expenses of his two children, amounting to approximately one-half of his adjusted gross income. The non-custodial parent also successfully argued that the original divorce decree provided for such a reduction in child support. We fail to see how this case provides any helpful comparison to the present case.

¶ 5. In Sumrall, we do find the following:

The standard of review in domestic relations cases is well-settled: Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994); Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). In other words, “[o]n appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986). This is particularly true in the areas of divorce, alimony and child support. Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). The word “manifest,” as defined in this context, means “unmistakable, clear, plain, or indisputable.” Black’s Law Dictionary 963 (6th ed.1990). Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997) (quoting Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)). Clark v. Clark, 754 So.2d 450 (Miss.1999).

Sumrall, 757 So.2d at 282 (¶ 12).

¶ 6. Applying the applicable standard of review, we do not find that the chancellor abused her discretion in the award of child support and affirm that decision.

¶ 7. THE JUDGMENT OF THE CHANCERY COURT OF MONROE COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.


author: STUART, Justice.

text:
    UNITED WISCONSIN LIFE INSURANCE COMPANY and American Medical Security, Inc. v. Susan N. TANKERSLEY et al.
    1021128.
    Supreme Court of Alabama.
    Oct. 10, 2003.
    F.A. Flowers III, James E. Fleenor, Jr., and Harlan F. Winn III of Burr & For-man, LLP, Birmingham, for appellants.

      Steve Olen, S. Russ Copeland, and Michael A. Youngpeter of Olen, Nicholas & Copeland, P.C., Mobile, for appellees.
   STUART, Justice.

United Wisconsin Life Insurance Company and American Medical Security, Inc., appeal from the trial court’s denial of their motions to compel arbitration. We affirm.

Background

United Wisconsin is an insurance underwriter and the issuer of the health-insurance policies involved in this action. Its principal place of business is in Wisconsin. American Medical serves as the administrator of the United Wisconsin policies; American Medical’s principal place of business is also in Wisconsin. The plaintiffs in the underlying action, Ruth Shun-iak, Susan N. Tankersley, Nathaniel Miller, Debbie Miller, and Gregory Shockley (hereinafter referred to collectively as “the plaintiffs”) are all individual residents of Alabama.

On March 5, 1996, Ruth Shuniak completed an application for health insurance under a group policy with United Wisconsin. American Medical approved the application in Wisconsin and sent an insurance certificate entitled “Certificate of Group Insurance” and a group insurance policy to Shuniak shortly after she had completed her application. Shuniak renewed the insurance policy annually.

At some point, United Wisconsin issued a rider to Shuniak’s policy; the rider added an arbitration provision to the policy. From March 14, 2000, until the present, Shuniak’s policy has included the following language:

“CLAIMS PROVISIONS
“The ‘Legal Actions’ provision is deleted from the ‘Claims Provisions’ section of
Your certificate.
“GENERAL PROVISIONS
“The following provision is added to the ‘General Provisions’ section of Your certificate.
“LEGAL ACTIONS
“You may not bring any legal action
against:
“1. Us; or
“2. Our Representative,
“until 60 days after the date when an appeal procedure is completed.
“Unless otherwise required by law, legal action means dispute resolution through the arbitration process. Legal action applies to actions at law or in equity.
“You may not bring any legal action against:
“1. Us; or
“2. our Representative,
“unless You do so within three years from the date when written Proof of Loss is required.
“Any further legal action beyond arbitration is limited only to enforcement of the arbitration decision. Enforcement:
“1. will be made in an appropriate court of law; and
“2. must be brought within the time period provided by applicable state or federal law. If no such time period is established, then enforcement must be brought no later than one year after the date when the arbitration award is rendered.
“The following provision is added to the ‘General Provisions’ section of Your certificate:
“ARBITRATION
“AFTER EXHAUSTION OF AN APPEAL PROCEDURE, ANY FURTHER DISPUTE OR CAUSE OF ACTION OF WHATEVER KIND OR NATURE ARISING OUT OF OR RELATING TO:
“1. THE POLICY;
“2. CERTIFICATE; OR
“3. OUR INSURANCE PRACTICES AS THEY RELATE TO THIS INSURANCE,
“MUST BE RESOLVED BY ARBITRATION.”

(Capitalization in original.)

On December 9, 1996, Susan N. Tank-ersley applied for health insurance under a group policy with United Wisconsin. American Medical approved the application and shortly thereafter sent a certificate of group insurance and a group insurance policy to Tankersley.

On January 8, 2001, Tankersley requested a different co-pay option on her policy. American Medical processed this request and, according to American Medical, it issued another health-insurance certificate that was effective February 1, 2001. This health-insurance certificate included a rider, which added an arbitration provision to Tankersley’s policy; the arbitration provision was identical to the one added to Shuniak’s policy.

On November 24, 1998, Nathaniel Miller and Debbie Miller applied for health-insurance coverage under a group policy with United Wisconsin, requesting insurance effective December 1, 1998. In connection with their application, Nathaniel Miller signed a document, which the parties refer to as an “Acknowledgment of Arbitration Agreement.” The Acknowledgment of Arbitration Agreement form originated with the Alabama Department of Insurance. However, United Wisconsin modified the Department’s suggested form. Wherever the Department of Insurance form used the word “policy,” United Wisconsin changed the word to “coverage.” The Acknowledgment of Arbitration Agreement signed by Nathaniel Miller provided as follows:

“IMPORTANT NOTICE ABOUT THE INSURANCE COVERAGE FOR WHICH YOU HAVE APPLIED
“THIS DOCUMENT AFFECTS YOUR LEGAL RIGHTS
“READ THE FOLLOWING INFORMATION CAREFULLY.
“1. The coverage for which you have applied includes a binding arbitration provision.
“2. The arbitration provision requires that any disagreement related to this coverage must be resolved by arbitration and not in a court of law.
“3. The results of the arbitration are final and binding on you and the insurance company.
“4. In an arbitration, the arbitrator(s), who is an independent, neutral party, give a decision after hearing the positions of the parties.
“5. When you accept this insurance coverage, you agree to resolve any disagreement related to the coverage by binding arbitration instead of a court proceeding, including a trial by judge or jury.
“6. Except for enforcement of the arbitration decision, the decision of the arbitrators) cannot be reviewed in a court proceeding by a judge or jury.
“ACKNOWLEDGMENT OF ARBITRATION AGREEMENT
“I have read this notice. I understand that I am voluntarily surrendering the right to have any disagreement between the insurance company and me, or other insured party, resolved in court. This means I am waiving the right to a trial by a judge or jury.
“I understand that upon receipt of the certificate, I should read the arbitration provision contained in the certificate. I have the right to reject the insurance coverage within three (3) days of the date of delivery if I do not accept the requirement for arbitration.
“I understand that similar types of insurance may be available through an insurance company that does not require coverage-related disagreements to be resolved by binding arbitration.”

(Capitalization in original.)

American Medical processed the Millers’ application and sent the Millers a certificate of group insurance and a group insurance policy. The policy contained an arbitration provision identical to the one added by rider to Shuniak’s and Tankersley’s policies.

On December 28, 1999, Gregory Shockley applied for health insurance with United Wisconsin, requesting that the insurance policy be effective February 15, 2000. In connection with that application, Shockley signed an “Acknowledgment of Arbitration Agreement.” The acknowledgment signed by Shockley was identical to the one signed by Nathaniel Miller. American Medical processed Shockley’s application in Wisconsin and shortly thereafter sent Shockley a certificate of group insurance and a group insurance policy. Shockley’s insurance policy contained an arbitration provision identical to the one contained in Shuniak’s, Tankersley’s, and the Millers’ policies.

Plaintiffs' Claims

On April 10, 2001, Evelyn E. Saucier sued United Wisconsin, American Medical, and others in the Mobile Circuit Court. By the end of May 2002, Saucier’s initial complaint had been amended several times and plaintiffs had been added and deleted. Saucier was no longer a party to the action, but Shuniak, Tankersley, the Millers, and Shockley, along with several others, had been made parties to the action.

In their complaint, the plaintiffs allege that they are all current or former policyholders of a United Wisconsin group health-insurance policy, namely “Master Policy Number AB 2000.” The plaintiffs allege that United Wisconsin and American Medical, or presumably their agents, marketed this policy to the plaintiffs by representing that it was a group insurance policy and that the premiums charged the plaintiffs were or would be based on the group’s claims experience. The plaintiffs allege that beginning in 1998 and continuing throughout 2002, United Wisconsin and/or American Medical increased their premiums at various times in a manner that was not based upon the group’s claims experience but upon their individual claims experience. They assert claims of intentional, reckless, and/or negligent misrepresentation; suppression; fraudulent concealment; conspiracy to mislead the plaintiffs concerning the premium increases and the actual basis of the premium charges, conspiracy to constructively cancel the policies of certain policyholders who made certain claims or who suffered from certain medical conditions, and conspiracy to improve the profit margin on the policies; breach of fiduciary duty; and breach of contract.

On August 30, 2002, United Wisconsin and American Medical moved to compel arbitration of the plaintiffs’ claims. In support of that motion, they submitted the affidavit of Joseph W. Keen, the director of regulatory affairs for American Medical. They also submitted copies of the insurance application and the insurance policy for each of the plaintiffs.

On March 19, 2008, the plaintiffs filed their opposition to United Wisconsin and American Medical’s motion to compel arbitration. As exhibits to their opposition, the plaintiffs filed excerpts from United Wisconsin’s health-insurance policy, more specifically, the policy’s administrative appeal procedure and the policy’s arbitration provision; the affidavit of Nathaniel Miller; a copy of the Acknowledgment of Arbitration Agreement signed by Gregory Shockley, as modified by United Wisconsin; and a blank copy of the Acknowledgment of Arbitration Agreement, which, it is undisputed, is a form suggested by the Alabama Department of Insurance. The plaintiffs subsequently submitted the affidavit of Susan Tankersley in opposition to the motion to compel arbitration.

On April 10, 2003, the Mobile Circuit Court denied United Wisconsin and American Medical’s motion to compel arbitration. United Wisconsin and American Medical appeal, asserting that all of the prerequisites of 9 U.S.C. § 1 et seq., the Federal Arbitration Act (“the FAA”), have been met and that, therefore, the trial court erred in denying their motion to compel arbitration and to stay the proceedings.

Standard of Review

This Court’s review of an order granting or denying a motion to compel arbitration is de novo. First American Title Ins. Corp. v. Silvernell, 744 So.2d 888, 886 (Ala.1999); Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999).

Discussion

The FAA mandates arbitration of a claim where a valid contract containing a written agreement calling for arbitration exists and where the contract evidences a transaction involving interstate commerce. 9 U.S.C. § 2. In this case, the plaintiffs do not contest that the insurance policies are valid contracts containing a written agreement calling for arbitration and that the transactions involved interstate commerce. The issue before us is whether the arbitration provisions are broad enough to encompass the plaintiffs’ claims.

As the Court has previously recognized:

“The strong federal policy favoring the enforceability of arbitration contracts is designed to place arbitration agreements on the same footing as any other contract. Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Like any other contract, an arbitration agreement must be enforced in accordance with its terms; both federal and state courts have consistently recognized that the duty to arbitrate is a contractual obligation and that a party cannot be required to arbitrate any dispute that he or she has not agreed to arbitrate. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); AG. Edwards & Sons v. Clark, 558 So.2d 358 (Ala.1990). Whether an arbitration agreement applies to a dispute between the parties is to be determined by the language of the contract entered into by the parties. Blount Int’l, Ltd. v. James River-Pennington, Inc., 618 So.2d 1344 (Ala.1993).”

Koullas v. Ramsey, 683 So.2d 415, 416-17 (Ala.1996). See also Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001) (“It is black-letter law that arbitration agreements must be enforced according to general standards of contract law.”); Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So.2d 271, 274 (Ala.1999) (“Because arbitration is a creature of contract, ordinary contract rules govern the interpretation of arbitration provisions.”).

In United Wisconsin Life Insurance Co. v. Beaty, 775 So.2d 191 (Ala.2000), the Alabama Supreme Court interpreted the same arbitration provision at issue in this case and applied it to claims identical to those alleged in this case. Like the plaintiffs here, the plaintiffs in Beaty were insureds under a group health-insurance policy issued by United Wisconsin. The plaintiffs alleged that they were told the premiums would be based upon the group’s experience but that subsequently United Wisconsin increased their premiums on some other basis. The plaintiffs sued, alleging that the premium increases constituted a breach of contract. The remaining counts arose out of activities related to the sale of the policy, including fraudulent inducement, misrepresentation, and suppression.

United Wisconsin sought to compel arbitration based upon arbitration provisions identical to the ones included in Shuniak’s, Tankersley’s, the Millers’, and Shockley’s policies. The trial court denied that motion, and United Wisconsin appealed.

On appeal, the Alabama Supreme Court quoted extensively from the trial court’s order and adopted that order as its own:

“ ‘[According to the language of the subject rider, the scope of the arbitration agreement [is] too narrow. Under the heading “GENERAL PROVISIONS” in the rider, there are references to (1) an “appeal procedure,” (2) legal action, meaning “dispute resolution through the arbitration process,” and (3) not being allowed to bring any legal action unless [it is brought] “within three years from the date when written proof of Loss is required.” [More specifically, the rider provides:
“ ‘ “GENERAL PROVISIONS
“ ‘ “The following provision is added to the ‘General Provisions’ section of Your [policy]
“ ‘ “LEGAL ACTIONS
“ ‘ “You may not bring any legal action against
“ ‘ “1. Us; or
“ ‘ “2. Our Representative,
“ ‘ “until 60 days after the date when an appeal procedure is completed.
“ ‘ “Unless otherwise required by law, legal action means dispute resolution through the arbitration process. Legal action applies to actions at law or in equity.
“ ‘ “You may not bring any legal action against:
“ ‘ “1. Us; or
“ ‘ “2. our Representative,
“ ‘ “unless You do so within three years from the date when written Proof of Loss is required.”]
“ ‘Under the heading of “ARBITRATION,” it expressly states that “[ajfter exhaustion of an appeal procedure, any further dispute ... must be resolved by arbitration.” The appeal procedure, as set forth on page 18 of the document designated “CE-0003-00-1-AB 10/91,” is a system whereby [United Wisconsin] required that an insured administra tively appeal any initial decision to deny a claim before bringing legal action.
“ ‘The use of the phrase “after exhaustion of an appeal procedure” in the arbitration agreement narrows its scope. While the Supreme Court has typically given broad effect to “arising out of or relating to” language in an arbitration agreement, [United Wisconsin] specifically [limited] the “arising out of [or] relating to” language by the inclusion of the phrase “after exhaustion of an appeal procedure.” Therefore, because the policy states that the administrative appeal procedure applies only to benefit claims that are submitted by an insured and denied by [United Wisconsin], only disputes over disputed or denied benefit claims must be arbitrated. All disputes not subject to [United Wisconsin]’s administrative appeal procedure, including disputes involving the sale of the subject policy and the amount of the premium, may be judicially resolved.’ ”

Beaty, 775 So.2d at 193-94 (capitalization in original).

Because the Beaty Court found that the scope of the arbitration agreement was limited to disputes regarding only claims for benefits made under the policy, the Court affirmed the trial court’s holding that the plaintiffs’ claims arising from the sale of the policies and how the premiums were calculated were not subject to arbitration.

As we noted earlier, the language of the arbitration provision considered in Beaty is identical to the language of the arbitration provisions at issue in this appeal. Also, the facts and the claims asserted in Beaty are virtually identical to those of this case. We adopt the rationale of Beaty in this case. The arbitration provision here is not broad enough to encompass the plaintiffs’ claims.

United Wisconsin and American Medical argue that Beaty was wrongly decided. They allege that the references in the arbitration provisions to “after exhaustion of an appeal procedure” render the arbitration provisions ambiguous and that ambiguous arbitration provisions should be construed in favor of arbitration. They emphasize that the reach of the arbitration provision could not be any broader because it includes the language “[a]fter exhaustion of an appeal procedure,- any further dispute or cause of action of whatever kind or nature arising out of or relating to 1. the policy; 2. certificate; or 3. our insurance practices as they relate to this insurance, must be resolved by arbitration.”

We disagree with United Wisconsin and American Medical. The flaw in their argument is that they attempt to ignore the first clause of the sentence — “[a]fter exhaustion of an appeal procedure” — which provides the context for the remainder of the sentence. United Wisconsin’s policy contains the following claim-appeal procedure:

“CLAIM APPEAL PROCEDURE
“In accordance with the provision of the Employee Retirement Income Security Act of 1974 (ERISA), We have established an extensive appeal procedure that You may use, if You have any questions or disagree with a decision made on a claim.
“You should send a written request to Us within 60 days of the date You received the written claim denial or ‘Explanation of Benefits.’ In Your request, be sure to include proper identification, including all insurance numbers that appear on Your claim I.D. card, and a copy of the claim denial. Please state the reasons You feel the claim should not have been denied, and include any other documentation (for example, medical or dental records) You believe supports Your claim.
“Normally, We will review the initial claim denial and notify You in writing of Our decision within 60 days of Our receipt of Your appeal request. Special circumstances may require up to 120 days.
“If You are still dissatisfied with the results, You may request review by a special panel. You must request this second appeal in writing within 60 days of the date You receive written notice of the last decision. As before, You must include proper identification and a copy of the latest notification. You may provide additional explanations and documentation.
“Normally, the panel will review the pri- or decision and notify You in writing of Our final decision within 60 days of Our receipt of Your second appeal request. Special circumstances may require up to 120 days. In some cases, You may be afforded an additional appeal directly to Your insurance company. In any case, You must exhaust all available appeals before taking any legal action against Us.”

This entire section of the United Wisconsin policy addresses the procedure to be followed when an insured disagrees with the insurer’s resolution of a claim. Thus, the clause “after exhaustion of an appeal procedure” places arbitration in the context of a disputed claim.

Moreover, this is not the only reference in the arbitration provision to a disputed claim. We find that the rider adding the arbitration provision is replete with references to arbitration only within the context of a disputed claim. For example, a legal action means the arbitration process; the appeal procedure is applicable only to a disputed claim; a policyholder may not institute legal action (which means an arbitration proceeding) until 60 days after the appeal procedure (which applies only to a disputed claim) has been completed; a policyholder may not institute legal action/arbitration more than three years from the date when written proof of loss (which applies only to a claim) is required; and finally, after exhaustion of the appeal procedure (which applies only to a disputed claim), any further dispute must be resolved by arbitration. Beaty was not wrongly decided.

Additionally, United Wisconsin and American Medical argue that the acknowledgment form signed by the Millers and Shockley somehow enlarged the scope of the arbitration provisions in the policies. Again, we disagree. We find nothing in the language of the acknowledgment that expands the scope of the arbitration provision. In fact, the Acknowledgment of Arbitration Agreement specifically refers to arbitration of coverage-related disputes. This language was drafted by United Wisconsin and American Medical. They specifically changed the language of the acknowledgment to refer to arbitration of coverage-related disputes rather than disputes related more generally to the policy. This further supports the language of the arbitration provision found in the policy itself.

We conclude that the arbitration provision contained in the plaintiffs’ United Wisconsin policies is not broad enough to encompass the plaintiffs’ claims relating to the sale of the subject policies and the calculation of the premiums. We affirm the trial court’s order denying the motions to compel arbitration.

AFFIRMED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

SEE, J., dissents.

      . Although the second amended complaint, filed on May 29, 2002, lists numerous other plaintiffs, the motion to compel arbitration filed jointly by United Wisconsin and American Medical addressed only the claims asserted by Shuniak, Tankersley, Nathaniel Miller, Debbie Miller, and Gregory Shockley. Therefore, whether the claims asserted by the other plaintiffs in this action are subject to arbitration is not an issue before us.


author:
JOHNSTONE, Justice.
      HARWOOD, Justice

text:
    Ex parte ALABAMA DEPARTMENT OF YOUTH SERVICES and J. Walter Wood, Jr. (In re Jane Doe 1, a minor child who sues by her grandmother D.M. as her next friend, and Jane Doe 2, a minor child who sues by her mother M.T. as her next friend v. Alabama Department Of Youth Services et al.)
    1020480.
    Supreme Court of Alabama.
    Oct. 10, 2003.

      Kenneth L. Thomas, H. Lewis Gillis, Valerie L. Acoff, James L. Richey, and Tamica C. Richard of Thomas, Means, Gil-lis & Seay, P.C., Birmingham; and William J. Samford, Alabama Department of Youth Services, Mount Meigs, for petitioners.
    Karen Sampson Rodgers and Kenneth Shinbaum of McPhillips, Shinbaum & Gill, LLP, Montgomery, for respondents.
   JOHNSTONE, Justice.

The Alabama Department of Youth Services (“DYS”) and J. Walter Wood, Jr., petition this Court for a writ of mandamus directing Judge Tracy S. McCooey to grant their Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss the claims against them. We grant the petition in part and deny the petition in part.

Jane Doe 1 and Jane Doe 2, by and through their respective next friends (“Doe plaintiffs”), sued DYS employees Jimmie Jenkins, John Zeigler, and Kenneth Green for committing various sexual assaults on the Doe plaintiffs and for sexually harassing them while the Doe plaintiffs were in the custody of DYS at its Chalkville campus. Jenkins, Zeigler, and Green are not parties to this petition.

The Doe plaintiffs sued DYS for violating Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U.S.C. § 1681 et seq., by failing “to respond and/or their inadequate response to” a “sexually hostile education environment and sexual abuse and harassment.” Against DYS, the Doe plaintiffs seek in-junctive relief, compensatory and punitive damages, and attorneys’ fees.

The Doe plaintiffs sued executive director of DYS J. Walter Wood, Jr., under various legal theories. All were based on Wood’s, and certain other supervisory defendants’, being “entrusted with the security of elementary students like the minor plaintiffs who are placed by operation of law into their charge.”

The Doe plaintiffs alleged a claim against Wood under 42 U.S.C. § 1983 for deliberate indifference to their “right[s] to personal safety, security and privacy, guaranteed by the Fourteenth Amendment” while Wood was “acting under color of state law.” The Doe plaintiffs alleged that Wood “failed to develop, implement or administer procedures or policies reasonably designed to provide protection for the minor Plaintiffs from sexual harassment and abuse”; failed “to prevent male employees of DYS from sexually abusing and harassing them”; failed “to investigate pri- or complaints” against Green, Jenkins, and Zeigler; and failed “to protect the Plaintiffs from harm and from further harm after [Wood] received notice of the sexual harassment and abuse and the potential for sexual harassment of”' them. The Doe plaintiffs seek compensatory and punitive damages, “equitable relief,” attorneys’ fees, and costs. The prayer for relief does not specifically seek an injunction.

The Doe plaintiffs also alleged state-law claims against Wood, in his individual and official capacities, for “intentionally and recklessly causing] them to suffer extreme emotional distress by [his] outrageous misconduct” and for negligently or wantonly hiring, supervising, investigating, and monitoring Green, Jenkins, Zeigler, and their supervisor, the principal of the school. The Doe plaintiffs alleged that Wood’s acts or omissions in the torts alleged in these two claims were “malicious and intended to injure.” The Doe plaintiffs also claimed against Wood in his individual and official capacities for “willfully, recklessly, and/or mistakenly represent[ing] to Plaintiffs a material existing fact, which the Plaintiffs relied on said false representation that caused damage to the Plaintiff[s] as a proximate result.” The Doe plaintiffs asked for compensatory and punitive damages and costs for all of these claims.

DYS and Wood moved to dismiss the Doe plaintiffs’ claims against them. DYS asserted that the claims against it should be dismissed on the ground that DYS is an agency of the State of Alabama entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution and Art. I, § 14, Alabama Constitution of 1901. Wood asserted that he is entitled to a dismissal of the claims against him in his official capacity on the ground of sovereign immunity under Art. I, § 14, Alabama Constitution of 1901, and that he is entitled to a dismissal of the claims against him in his individual capacity on the grounds of federal qualified immunity and state-agent immunity. Both DYS and Wood asserted that they are entitled to dismissal of the federal § 1983 claims against them on the ground that § 1983 precludes respondeat superior liability. The Doe plaintiffs responded in opposition to the motion to dismiss. After a hearing, the trial court denied the motion to dismiss filed by DYS and Wood.

Inasmuch as the issue before us is whether the trial court correctly denied a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, “[t]his Court must accept the allegations of the complaint as true.” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Moreover, as the defendants sought only a Rule 12(b)(6) dismissal without resort to facts supplied by affidavit or other eviden-tiary material outside the allegations of the complaint, and as the trial court accordingly treated the motion only as what it was, a motion to dismiss and not a motion for summary judgment with evidentiary materials outside the allegations of the complaint, those allegations themselves are the only potential source of factual support for the defendants’ claims of immunity. Rule 12(b), Ala. R. Civ. P.; Mooneyham v. State Bd. of Chiropractic Examiners, 802 So.2d 200 (Ala.2001); Garris v. Federal Land Bank of Jackson, 584 So.2d 791 (Ala.1991); Hales v. First Nat’l Bank of Mobile, 380 So.2d 797 (Ala.1980).

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).... Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

“The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted). Accord Cook v. Lloyd Noland Found., Inc., 825 So.2d 83, 89 (Ala.2001), and C.B. v. Bobo, 659 So.2d 98, 104 (Ala.1995). “We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003). “[A] motion to dismiss is typically not the appropriate vehicle by which to assert [federal] qualified immunity or State-agent immunity and ... normally the determination as to the existence of such a defense should be reserved until the summary-judgment stage, following appropriate discovery.” Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 813-14 (Ala.2002).

Eleventh Amendment Immunity

DYS contends that, because it is an agency of the State of Alabama, it is entitled to Eleventh Amendment immunity and to the dismissal of all claims against it. The complaint shows, and the Doe plaintiffs concede, that the only claim against DYS is a Title IX, 20 U.S.C. § 1681 et seq., claim.

Title IX provides, in pertinent part: “No person ... shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

42 U.S.C. § 2000d-7(a), provides:
“(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of ... title IX of the Education Amendments of 1972 [20 U.S.C. § 1681 et seq.] .... “(2) In a suit against a State for violation of a statute referred to in paragraph (1), remedies (including remedies both at law and equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.”

Eleventh Amendment immunity from a Title IX claim is governed by federal substantive law. Powers v. CSX Transp., Inc., 105 F.Supp.2d 1295, 1299 n. 2 (S.D.Ala.2000), and Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432 (Ala.2001). DYS is a state agency entitled to the same Eleventh Amendment immunity available to the State of Alabama. See Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985).

The Eleventh Amendment to the United States Constitution provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”

Decisions of the United States Supreme Court have extended the applicability of the Eleventh Amendment to suits by citizens against their own respective states. Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).

The Supreme Court has “repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause[, Article I, § 8, cl. 1].” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In Alden v. Maine, 527 U.S. 706, 741, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the United States Supreme Court addressed “[wjhether Congress has authority under Article I to abrogate a State’s immunity from suit in its own courts,” which it noted was “a question of first impression.” The Supreme Court held that

“[a]s it is settled doctrine that neither substantive federal law nor attempted congressional abrogation under Article I bars a State from raising a constitutional defense of sovereign immunity in federal court, ... our decisions suggesting that the States retain an analogous constitutional immunity from private suits in their own courts support the conclusion that Congress lacks the Article I power to subject the States to private suits in those fora.”

Alden, 527 U.S. at 748, 119 S.Ct. 2240. However, in Garrett, supra, addressing whether the Eleventh Amendment immunizes states against suits pursuant to Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 through § 12117, the Supreme Court explains:

“Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment’s applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 669-670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73, 120 S.Ct. 631.
“We have recognized, however, that Congress may abrogate the States’ Eleventh .Amendment immunity when it both unequivocally intends to do so and act[s] pursuant to a valid grant of constitutional authority.’ 528 U.S., at 73, 120 S.Ct. 631....
“Congress may not, of course, base its abrogation of the States’ Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra, at 79, 120 S.Ct. 631. (‘Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress’ Article I commerce power, the private petitioners in today’s cases cannot maintain their suits against their state employers’); Seminole Tribe, supra, at 72-73, 116 S.Ct. 1114, (‘The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction’); College Savings Bank, supra, at 672, 119 S.Ct. 2219,” Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 636, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); Alden v. Maine, 527 U.S. 706, 730-733, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), however, we held that ‘the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment’ Id., at 456, 96 S.Ct. 2666 (citation omitted). As a result, we concluded, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power. See ibid. Our cases have adhered to this proposition. See, e.g., Kimel, supra, at 80, 120 S.Ct. 631. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation.
“Section 1 of the Fourteenth Amendment provides, in relevant part:
“ ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’
“Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting ‘appropriate legislation.’ See City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Congress is not limited to mere legislative repetition of this Court’s constitutional jurisprudence. ‘Rather; Congress’ power “to enforce” the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath_ of conduct, including that which is not itself forbidden by the Amendment’s text.’ Kimel, supra, at 81, 120 S.Ct. 631; City of Boerne, supra, at 536, 117 S.Ct. 2157.
“City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U.S., at 519-24, 117 S.Ct. 2157....”

531 U.S. at 363-65, 121 S.Ct. 955 (footnote omitted; emphasis added).

The Garrett Court ultimately held that § 5 of the Fourteenth Amendment did not authorize Congress to enact Title I of the Americans with Disabilities Act insofar as that legislation would purport to authorize a state employee to sue the state for money damages for failing or refusing to accommodate that employee’s disabilities for the purposes of the state employment. The bases for this conclusion were twofold. The first basis was that the Congressional findings cited in support of this feature of the legislation “f[e]ll far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based.” Garrett, 531 U.S. at 370, 121 S.Ct. 955. The second basis was that the remedy of money damages in favor of a “private individual” state employee against the state to redress its failure or refusal to accommodate the employee’s disabilities would not “be congruent and proportional to the targeted violation.” Garrett, 531 U.S. at 374, 121 S.Ct. 955. Garrett held, therefore, that Title I of the Americans with Disabilities Act did not abrogate the Eleventh Amendment immunity of the states against such suits. Garrett, 531 U.S. at 374 n. 9, 121 S.Ct. 955.

The defects in or limitations on Title I of the Americans with Disabilities Act, however, are not common to the Title IX legislation now before us. Both the pattern of unconstitutional sexual discrimination targeted by Title IX and the appropriateness of the remedy of money damages for the sexual discrimination are well recognized. Davis, supra; Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1991); North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Moreover, even Garrett recognizes that the Eleventh Amendment does not immunize the states against actions “by private individuals ... for injunctive relief’ from discrimination. Garrett, 531 U.S. at 374 n. 9, 121 S.Ct. 955.

The United States Supreme Court has expressly held that “[i]n the Rehabilitation Act Amendments of 1986, 100 Stat. 1845, 42 U.S.C. § 2000d-7, Congress abrogated the States’ Eleventh Amendment immunity under Title IX [of the Education Amendments of 1972, supra].... ” Franklin v. Gwinnett County Public Schools, 503 U.S. at 72, 112 S.Ct. 1028. “ ‘Title IX [addressing sex discrimination]’ ... ‘was patterned after Title VI of the Civil Rights Act of 1964 [addressing racial discrimination].’ ” Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (quoting Cannon, 441 U.S. at 694, 99 S.Ct. 1946). Thus, the United States Supreme Court has held that “[s]ection 1003 of the Rehabilitation Act Amendments of 1986, 100 Stat. 1845, 42 U.S.C. § 2000d-7, expressly abrogated States’ sovereign immunity against suits brought in federal court to enforce Title VI” of the Civil Rights Act of 1964 also. Alexander, 532 U.S. at 280, 121 S.Ct. 1511 (emphasis added).

While the United States Supreme Court, in Franklin, supra, expressly recognized that Title IX was enacted by Congress pursuant to its powers under Article I of the United States Constitution, the United States Supreme Court, in Mississippi University for Women v. Hogan, 458 U.S. 718, 732, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), also recognized that Title IX was enacted by Congress pursuant to its Fourteenth Amendment, § 5, power. On this topic, the Franklin Court wrote:

“Franklin argues that, in any event, Title IX should not be viewed solely as having been enacted under Congress’ Spending Clause powers and that it also rests on powers derived from § 5 of the Fourteenth Amendment. See Brief for Petitioner 19, n. 10. Because we conclude that a money damages remedy is available under Title IX for an intentional violation irrespective of the constitutional source of Congress’ power to enact the statute, we need not decide which power Congress utilized in enacting Title IX.”

503 U.S. at 75 n. 8, 112 S.Ct. 1028.

While neither Franklin nor Alexander, supra, undertakes to reconcile their respective holdings that Title IX (sex discrimination) and Title VI (racial discrimination) abrogate the Eleventh Amendment immunity of the states with the other United States Supreme Court cases holding that federal legislation based (like Title IX and Title VI) on the Article I powers of Congress does not abrogate the Eleventh Amendment immunity of the states, e.g., Alden and Garrett, supra, Garrett does seem to reconcile the apparent conflict. Garrett explains that an exception has emerged to the general rule that Congress cannot “base its abrogation of the States’ Eleventh Amendment immunity upon the powers enumerated in Article I,” Garrett, 531 U.S. at 364-65, 121 S.Ct. 955. The exception is that legislation enacted by Congress not only pursuant to its Article I powers but also “pursuant to a valid exercise of its § 5[, Fourteenth Amendment,] power” may subject nonconsenting states to suit in federal court or state court for money damages as well as injunctive relief for violation of the federal legislation. Garrett, 531 U.S. at 364-65, and 374 n. 9, 121 S.Ct. 955. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 79, 80-82, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala.2001).

Therefore, because Congress enacted Title IX not only pursuant to its Article I powers, Davis and Franklin, supra, but also pursuant to its Fourteenth Amendment, § 5, power, Hogan, supra, Congress successfully abrogated the Eleventh Amendment immunity of the states from suits in federal and state courts for violations of Title IX. Garrett, 531 U.S. at 364-65, 121 S.Ct. 955, and Franklin, 503 U.S. at 72, 112 S.Ct. 1028. See Alexander, 532 U.S. at 280, 121 S.Ct. 1511; Kimel, 528 U.S. at 79, 80-82, 120 S.Ct. 631; Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114; Bitzer, 427 U.S. at 456, 96 S.Ct. 2666; Larkins, 806 So.2d at 363. Accordingly, DYS is not entitled to Eleventh Amendment immunity from the Doe plaintiffs’ Title IX claim.

Federal Qualified Immunity

Wood argues that he is entitled to federal qualified immunity from the Doe plaintiffs’ federal § 1983 claim against him.

“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “Qualified immunity is designed to allow government officials to avoid the expense and disruption of going to trial, and is not merely a defense to liability.” Hardy v. Town of Hayneville, 50 F.Supp.2d 1176, 1189 (M.D.Ala.1999). “An official is entitled to qualified immunity if he is performing discretionary functions and his actions do ‘ “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” ’ ” Hardy, 50 F.Supp.2d at 1189 (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1424 (11th Cir.1997)).

“While the defense of qualified immunity is typically addressed at the summary judgment stage of a case, it may be, as it was in this case, raised and considered on a motion to dismiss. See Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). The motion to dismiss will be granted if the ‘complaint fails to allege the violation of a clearly established constitutional right.’ Id. (citing Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.1997)). Whether the complaint alleges such a violation is a question of law that we review de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor. Id.”

St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.2002) (emphasis added).

‘Supervisor liability [under § 198S] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established ivhen a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he [she] fails to do so. The deprivations that constitute widespread abuse sufficient to notice the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.’ ”

Braddy v. Florida Dep’t of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir.1998) (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990) (citations omitted and emphasis added)). Accord George v. McIntosh-Wilson, 582 So.2d 1058, 1062-63 (Ala.1991).

In C.B. v. Bobo, supra, this Court stated, in pertinent part:

‘If the Constitution protects a schoolchild against being tied to a chair or against arbitrary paddlings, then surely the Constitution protects a schoolchild from physical abuse ... by a public schoolteacher. [The teacher’s] sexual abuse of Jane Doe ... is not contested by the defendants. Thus, Jane Doe clearly was deprived of a liberty interest recognized under the substantive due process component of the Fourteenth Amendment. [Footnote omitted.] It is uncontrovertible that bodily integrity is necessarily violated when a state actor sexually abuses a schoolchild and that such misconduct deprives the child of rights vouchsafed by the Fourteenth Amendment. Obviously, there is never any justification for sexually molesting a schoolchild, and thus, no state interest, analogous to the punitive and disciplinary objectives attendant to corporal punishment, ivhich might support it.’

“(Emphasis added [in C.B.].)”

659 So.2d at 103-04 (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450-52 (5th Cir.1994)).

The Doe plaintiffs’ complaint alleges Wood’s violation of their clearly established constitutional right to “bodily integrity” pursuant to the Fourteenth Amendment to the United States Constitution, see C.B. v. Bobo, 659 So.2d at 104. The Doe plaintiffs’ complaint further alleges that Wood failed “to protect the plaintiffs from harm and from further harm after he received notice of the sexual harassment and abuse and the potential for sexual harassment” (emphasis added) committed by DYS employees against the plaintiffs. Therefore, Wood has not shown a clear legal right to a dismissal of the Doe plaintiffs’ § 1983 claim on the ground of federal qualified immunity.

Section H Sovereign Immunity

DYS asserts that Art. I, § 14, Alabama Constitution of 1901, sovereign immunity entitles DYS to a dismissal of the federal Title IX claim. Article I, § 14, provides: “That the State of Alabama shall never be made a defendant in any court of law or equity.” “Under this provision, the state and its agencies have absolute immunity from suit in any court.” Alabama State Docks v. Saxon, 631 So.2d 943, 945-46 (Ala.1994).

“[DYS] appears to assume that its state law sovereign immunity directly bars the plaintiff[s] federal claims brought against it .... It does not. Rather, the Eleventh Amendment alone prescribes the parameters of the state’s sovereign immunity from such a claim in federal fora. State law sovereign immunity is relevant only as it indicates whether the state considers the entity to be part of the state. It is at best only a rough, overly inclusive gauge of arm-of-the-state status under the Eleventh Amendment, as the Alabama Constitution provides sovereign immunity to entities that do not possess Eleventh Amendment immunity. Compare, e.g., Carroll v. Hammett, 744 So.2d 906, 910 (Ala.1999) (county boards of education are protected by state law sovereign immunity) with Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1501 (11th Cir.1990) (Alabama county board of education has no immunity under the Eleventh Amendment).”

Powers, 105 F.Supp.2d at 1299 n. 2. The law of Eleventh Amendment immunity, not of state constitutional sovereign immunity, governs a Title IX claim brought against a state. Id. Therefore, DYS is not entitled to a dismissal of the Doe plaintiffs’ Title IX claim on the ground of Art. I, § 14, sovereign immunity.

Wood argues that he is entitled to sovereign immunity from the state-law claims against him in his official capacity. “State officers and employees, in their official capacities and individually, also are absolutely immune when the action is, in effect, one against the state.” Saxon, 631 So.2d at 946.

“The State cannot be sued indirectly by suing an officer in his or her official capacity when a judgment against the officer would directly affect the financial status of the State treasury....
“This constitutionally guaranteed principle of State immunity acts as a jurisdictional bar to an action against the State by precluding a court from exercising subject-matter jurisdiction. Therefore, if Lyons is protected by State immunity, we must dismiss the action against him for lack of subject-matter jurisdiction.”

Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003) (citations omitted). “[A]n indirect action against the State by suing a State official ... imper-missibly seeks funds from the State treasury.” Id. Consequently, Wood has shown a clear legal right to a dismissal of the Doe plaintiffs’ state-law claims against him in his official capacity.

State-agent Immunity

Wood argues that he is entitled to a dismissal of the Doe plaintiffs’ state-law claims against him in his individual capacity on the ground of state-agent immunity because, he says, he “was clearly engaged in discretionary functions at the time of the alleged acts.” Petition, p. 19. “Ex parte Cranman, 792 So.2d 392 (Ala.2000), recounts the evolution of State-agent immunity,” Ex parte Rizk, 791 So.2d 911, 913 (Ala.2000), and restates the law on that topic:

“We therefore restate the rule governing State-agent immunity:
“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000). “This restatement was adopted by our decisions in Ex parte Risk, [supra,] and Ex parte Butts, 775 So.2d 173 (Ala.2000).” Ex parte Blankenship, 806 So.2d 1186, 1189 (Ala.2000).

The second paragraph of exceptions to state-agent immunity in Cranman expressly denies state-agent immunity for conduct that is willful, malicious, or fraudulent. 792 So.2d at 405. Each one of the plaintiffs’ state-law claims against Wood expressly alleges that his conduct was either malicious, willful, “intended to injure the minor plaintiffs,” or fraudulent. Some of the state-law claims allege a combination of these exceptions. Therefore, the allegations do not show, and Wood has not shown, that he has a clear legal right to a dismissal of any of these state-law claims on the basis of state-agent immunity.

Conclusion

Accordingly, we grant the petition only to the extent that we will issue our writ of mandamus directing the trial court to dismiss only the state-law claims against Wood in his official capacity. We deny the petition insofar as it seeks a writ directing the dismissal of the federal Title IX claim against DYS, the federal § 1983 claim against Wood, and the state-law claims against Wood in his individual capacity. Our opinion in this case does not address any defense other than the petitioners’ claims of immunity and does not foreclose a reassertion of the immunity claims by way of a motion for summary judgment after appropriate discovery.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

HOUSTON, BROWN, and STUART, JJ., concur.

LYONS, HARWOOD, and WOODALL, JJ., concur in the rationale in part and concur in the result.

HARWOOD, Justice

(concurring in the rationale in part and concurring in the result).

I concur in the result as to the part of the opinion entitled “Eleventh Amendment Immunity.” I concur fully in the remainder of the opinion.

LYONS and WOODALL, JJ., concur.

      . The Doe plaintiffs also sued other state officials who are not parties to this petition.