author: STUART, Justice. LYONS, Justice PARKER, Justice

text:
    Ex parte Father Paul G. ZOGHBY (In re: Linda Ledet v. Catholic Archdiocese of Mobile et al.).
    1050959.
    Supreme Court of Alabama.
    Nov. 9, 2006.

      Vincent F. Kilborn III, David A. McDonald, and W. Perry Hall of Kilborn, Roebuck & McDonald, Mobile, for petitioner.
    Richard H. Holston and W. Lloyd Copeland of Taylor-Martino-Kuykendall, Mobile, for respondent.
   STUART, Justice.

Father Paul G. Zoghby petitions this Court for a writ of mandamus directing the trial court to vacate its order granting Linda Ledet’s motion to compel discovery of documents relating to psychological counseling Zoghby underwent. We deny the petition.

Facts

Linda Ledet and her husband and children were parishioners at St. Mary’s Catholic Church in Mobile from 1995 through 2001. During that time, Zoghby, who was an associate priest at St. Mary’s at that time, developed a friendship with Ledet. According to Ledet, in late 1997 Zoghby began making improper and unwelcome advances toward her, including attempting to physically embrace her in an intimate or sexual manner, touching her on intimate parts of her body in a sexual manner, making lewd and sexually suggestive comments to her, exposing his genitalia to her, and attempting to force her, physically and by command as a priest, to engage in sexual relations with him.

During the summer of 2002, after attending a meeting described as an “open invitation to victims of abuse” sponsored by the Catholic Archdiocese of Mobile, Le-det filed a formal written complaint with the Archdiocese, asserting claims of sexual misconduct against Zoghby. This complaint was reviewed by Archbishop Oscar Lipscomb and Chancellor Michael Farmer. In his deposition testimony, Archbishop Lipscomb explained that when allegations of sexual misconduct are made, the Archbishop is responsible for directing the investigation into the alleged misconduct for the Archdiocese and for making a judgment and disposing of the complaint. He stated that because Ledet requested strict confidentiality in this matter, he investigated her claims himself.

Archbishop Lipscomb stated that when he began his investigation and confronted Zoghby about Ledet’s allegations, Zoghby denied the alleged misconduct and in a written response to Ledet’s complaint accused Ledet of improper conduct, mental instability, and untruthfulness. Archbishop Lipscomb indicated that when he considered Zoghby’s oral denial and his written response, he questioned Zoghby’s veracity, stating: “I just thought he wasn’t telling the truth. It appeared that way from her description of things and from his responses.... I’ve had experience in people telling me the truth. And — it did not [appear to be] the whole truth.” In September 2002, when Archbishop Lipscomb again confronted Zoghby about the allegations and his response, Zoghby recanted his false allegations against Ledet and admitted his misconduct.

After Zoghby admitted his misconduct, the Archdiocese, acting through Archbisht. op Lipscomb, attempted to resolve Ledet’s complaint. Archbishop Lipscomb explained that in resolving an issue of sexual misconduct by a priest in his Archdiocese he first addressed the needs of the victim; he then tried to

“deal with the perpetrator to see is he salvageable and what are the conditions under which you might approach a return to some kind of active ministry. Because [the perpetrator] was going to be out of [the active ministry] for a good long period as a result of [the accusation].”

He stated that to resolve the complaint in this case the Archdiocese entered into an agreement with Ledet pursuant to which the Archdiocese agreed to pay for the therapeutic counseling and treatment necessary to enable her and her family to recover from the emotional and mental trauma of Zoghby’s actions. The Archdiocese further promised Ledet that Zoghby would receive intensive therapy and counseling and that Zoghby would not be placed in a position where he could further harm others. As part of the agreement, Ledet and her family agreed to remain silent about Zoghby’s actions, to not publicize the accusations against Zoghby, and to refrain from filing civil litigation against the parties involved.

In 2003 Ledet learned that Zoghby had returned to active ministry and that he had been “promoted” to the position of pastor over a parish in Foley. She also began “to question” whether Zoghby was actually receiving the therapy and counseling mandated by the agreement. According to Ledet, when she notified Archbishop Lipscomb that she believed the Archdiocese had not fulfilled its part of the agreement, Archbishop Lipscomb threatened her, “stating that publicity surrounding Zoghby’s actions would be harmful to her and to her husband and children and that it would destroy [her] reputation.”

The revelations that Zoghby had not received treatment and that he had been promoted to the position of pastor of a parish triggered “emotional trauma” in Le-det. She underwent treatment for this trauma at several facilities. When she presented the bills for her treatment to the Archdiocese for payment, the Archdiocese refused to pay.

In 2004, Ledet sued the Archdiocese, Archbishop Lipscomb, and Chancellor Farmer, alleging breach of contract and the tort of outrage. Ledet did not name Zoghby as a defendant.

As discovery progressed, Ledet learned that Zoghby had received some counseling under the supervision of Father Benedict Groeschel at Trinity Retreat, a Catholic counseling center in New York state that is connected with a psychiatric hospital, and that Zoghby had authorized the release of the records resulting from that counseling to Archbishop Lipscomb. Le-det requested that the Archdiocese produce all psychiatric records and reports relative to Zoghby’s treatment, including “complete and correct” copies of all psychological and psychiatric testing. The defendants objected, alleging confidentiality and privilege.

Although not a party to the action, Zoghby also objected to Ledet’s production request, claiming that the records of his treatment at Trinity Retreat were privileged under both the psychotherapist-patient privilege, see Rule 503, Ala. R. Evid., and the privilege accorded communications to clergy, see Rule 505, Ala. R. Evid. In support of his objection, Zoghby submitted an affidavit in which he explained the cir-eumstances of his counseling and the confidentiality he understood attached to his release to Archbishop Lipscomb of the documents relating to that counseling. Zoghby averred:

“I have known Archbishop Oscar H. Lipscomb for many years and he is both my bishop and a spiritual advisor. I have entrusted to him many confidential matters over the years concerning my vocation and calling into the priesthood, and I have had many private discussions with him concerning my spiritual growth and discernment and I have always expected these matters of utmost trust would remain confidential. I am certain he feels the same way.

“In the year 2002 and 2003, I participated in counseling with the Archbishop and signed a release authorizing my counselor to send to and give the Archbishop access to my counseling records in order to assist the Archbishop in giving me personal and spiritual guidance. I do not have these records in my personal possession. I simply released them to the Archbishop as a substitute for me getting the records and then forwarding them to the Archbishop. I am generally familiar with the clergyman’s privilege since I am a priest myself. My communications with the Archbishop and my authorization for records to be released directly to the Archbishop constitute communications to the Archbishop in his professional capacity, as my bishop and a spiritual advisor. In my opinion, the communications are covered by the clergyman’s privilege. They were made privately and it was not intended that the communications and the records related thereto be further discussed or given to any other person. The sole purpose of the communications with the Archbishop [was] to advise me as my bishop and a spiritual advisor.”

Ledet moved to compel discovery of the records, claiming Zoghby had waived the psychotherapist-patient privilege by authorizing the release of the documents to Archbishop Lipscomb. Ledet further argued that the released documents were not protected by the clergyman privilege because, she maintained, the documents were not released to Archbishop Lipscomb in his professional capacity as Zoghby’s spiritual advisor, but in his capacity as an administrator for the Archdiocese, investigator of her complaint alleging misconduct, and enforcer of the agreement she had entered into with the Archdiocese.

In support of her motion, Ledet submitted excerpts from Archbishop Lipscomb’s deposition, in which Archbishop Lipscomb explained his relationship with Zoghby and his role in the investigation of her complaint against Zoghby. Archbishop Lipscomb stated that he was a close friend of Zoghby’s, that he considered himself to have played a significant role in Zoghby’s choosing and pursuing the priesthood, and that he was hurt when Zoghby lied to him during the investigation. Archbishop Lipscomb further explained that his discussions with Zoghby during and after the investigation did not address spiritual matters and that he did not consider himself to be Zoghby’s spiritual advisor. Specifically, he stated that Zoghby did not engage in a spiritual confession to him and that he was not Zoghby’s mentor. He admitted that “[he and Zoghby] obviously have discussed things that [he] thought were necessary for [Zoghby’s] healing, and we obviously have discussed a program and the place where that would take ... place. And since [Zoghby’s] return, obviously, we have discussed his role in the parish and my expectations for it.” Indeed, Archbishop Lipscomb explained his role in the process as follows:

“[Counsel]: And you were able to get help for Father Zoghby.
“[Archbishop Lipscomb]: That too. “[Counsel]: And you were able to get him help so that he can go back in the priesthood.
“[Archbishop Lipscomb]: Obviously, it required [that I] see a change in his life.”

Archbishop Lipscomb stated that while Zoghby was being treated in New York, he visited New York on other business and arranged to have a conversation with Zoghby to inquire about how “things” were going. He explained that after Zoghby returned to Alabama, he secured, through a release from Zoghby, the requested documents from Father Groeschel and the treatment facilities in New York. He stated that he relied heavily on the summary of the treatment and the recommendations of Father Groeschel and the doctor in charge of Zoghby’s professional treatment in New York when he decided to promote Zoghby to pastor of his own parish.

The trial court granted Ledet’s motion to compel and entered the following order:

“(1) As to [Ledet’s] motion to compel Defendants to produce psychological treatment records of non-party Zoghby, and the objections filed by Defendants and non-party Zoghby to the production of such records, the court has reviewed the document[s] at issue in camera and grants [Ledet’s] motion and overrules the objections, solely for the purposes of discovery. Defendants are ordered to produce the documents] at issue within 10 days of this order; however, the production is subject to the non-disclosure agreement previously entered into by counsel for [Ledet] and Defendants ....
“(2) As to [Ledet’s] motion for an order suspending the Agreement of NonDisclosure, the motion is denied.
“(3) As to Defendants’ motion for protective order and to enforce non-disclosure agreement, the motion for protective order is denied, and the motion to enforce the non-disclosure agreement is granted.... ”
Standard of Review
“Mandamus is an extraordinary remedy and will be granted only when there is ‘(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.’ Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or du-plicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992).”

Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136-37 (Ala.2003).

Legal Analysis

Zoghby contends that the trial court exceeded the scope of its discretion in ordering the discovery of his psychiatric records and reports because, he says, the documents are privileged pursuant to Rules 503 and 505, Ala. R. Evid. According to Zoghby, the trial court’s order ignores the fact that “the Alabama Rules of Civil Procedure recognize the importance of preserving confidential relationships and confidential information arising therefrom by providing that privileged matters are not subject to discovery.” See Ex parte Rudder, 507 So.2d 411, 413 (Ala.1987).

“Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003). “Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence presented .... ” Ex parte DCH Reg’l Med. Ctr., 683 So.2d 409, 412 (Ala.1996). The standard for reviewing a trial court’s ruling on a privilege issue is whether the trial court exceeded the scope of its discretion. Exxon Corp. v. Department of Conservation & Natural Res., 859 So.2d 1096, 1103 (Ala.2002).

Ledet and Zoghby both agree that the requested discovery was initially protected from disclosure by the psychotherapist-patient privilege. See Rule 503, Ala. R. Evid. Ledet and Zoghby, however, disagree on whether, by releasing the documents to Archbishop Lipscomb, Zoghby waived the psychotherapist-patient privilege.

Zoghby contends, however, that the documents are also protected from disclosure by the privilege accorded communications to the clergy because, he says, the release of the documents was made to Archbishop Lipscomb in his “professional capacity and in a confidential manner.” Therefore, Zoghby maintains that Archbishop Lipscomb has “the privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication.” Rule 505(b), Ala. R. Evid.

Ledet argues that the clergyman privilege does not protect from disclosure the documents she seeks because, she says, at the time Zoghby authorized the documents to be released to Archbishop Lipscomb, Archbishop Lipscomb was not functioning in his professional capacity as Zoghby’s spiritual advisor; rather, he was functioning in his administrative capacity as the investigator of Ledet’s claims and the enforcer of the Archdiocese’s agreement resolving Ledet’s initial complaint against Zoghby.

“The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980).

Rule 505(b), Ala. R. Evid., provides:

“If any person shall communicate with a clergyman in the clergyman’s professional capacity and in a confidential manner, then that person or the clergyman shall have a privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication.”

Thus, for a communication with a clergyman to be privileged, the communication must be made 1) to a clergyman 2) “in the clergyman’s professional capacity” and 3) “in a confidential manner.” Rule 505(b), Ala. R. Evid.

Clergyman is defined in Rule 505(a)(1) as

“any duly ordained, licensed, or commissioned minister, pastor, priest, rabbi, or practitioner of any bona fide established church or religious organization; the term ‘clergyman’ includes, and is limited to, any person who regularly, as a vocation, devotes a substantial portion of his or her time and abilities to the service of his or her church or religious organization.”

Additionally, “[a] communication is ‘confidential’ if it is made privately and is not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” Rule 505(a)(2), Ala. R. Evid.

Rule 505, however, does not define the phrase “in the clergyman’s professional capacity.” Before the promulgation of Rule 505, Ala. R. Evid., the clergyman privilege was limited in scope to communications made in a confessional or of marital nature. See Santmier v. Santmier, 494 So.2d 95, 97 (Ala.Civ.App.1986) (recognizing that the “priest-penitent” communication must involve “making a confession or seeking spiritual counsel or comfort or advice or help with a marital problem”). Rule 505, however, abrogated such limitations to the broader realm of communications made to a clergyman “in the clergyman’s professional capacity.” Thus, we must give effect to the words “in the clergyman’s professional capacity.”

“ ‘ “[T]he construction of rules of court are for the court which promulgated them.” Alabama Public Serv. Comm’n v. Redwing Carriers, Inc., 281 Ala. 111, 115, 199 So.2d 653, 656 (1967). “We start with the basic premise that words used in court rules must be given their plain meaning.” Nieto v. State, 842 So.2d 748, 749 (Ala.Crim.App.2002). In construing a rule promulgated by this Court, effect must be given to “each word, phrase, and clause.” State v. Old West Bonding Co., 203 Ariz. 468, 471, 56 P.3d 42, 45 (Ct.App.2002).’ ”

Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 692 (Ala.2005) (quoting Southeastern Meats of Pelham, Inc. v. City of Birmingham, 895 So.2d 909, 913 (Ala.2004)).

First, we consider the plain meaning of the words in the phrase “in the clergyman’s professional capacity.” A “profession” is “a calling requiring specialized knowledge and often long and intensive academic preparation.” Merriam-Webster’s Collegiate Dictionary 991 (11th ed.2003). “Capacity” is defined as “duty, position, role.” Merriam-Webster’s Collegiate Dictionary at 182. While “clergyman” is defined in Rule 505, the definition of “clergyman” in Rule 505 does not assist in determining the vocation of the clergy. “Clergy” is defined as “a group ordained to perform pastoral ... functions” in a religious organization. Mer-riamWebster’s Collegiate Dictionary at 230. “Pastoral” is defined as “of or relating to spiritual care or guidance esp. of a congregation.” Merriam-Webster’s Collegiate Dictionary at 907.

In Nussbaumer v. State, 882 So.2d 1067 (Fla.Dist.Ct.App.2004), the Florida Court of Appeals addressed the requirement in Florida for the clergyman privilege to apply that the communication be made to a clergyman “in the usual course of his or her practice or discipline,” which is similar to the requirement in Alabama that the communication be made to the clergyman “in the clergyman’s professional capacity.” Recognizing that the language “in the usual course of his or her practice or discipline” was made part of the requirement to expand the scope of the privilege beyond the traditional confessional, the court held that a communication with a pastor during pastoral counseling satisfied the requirement that the communication was made in the usual course of the pastor’s practice.

In reaching its holding, the Nussbaumer court noted:

“The clergy communications privilege does not apply unless the confider consults the member of the clergy ‘for the purpose of seeking spiritual counsel or advice.’ § 90.505(l)(b) [Fla. Statutes (2003) ]. No reported Florida decisions address this requirement of the privilege. Courts from other jurisdictions have interpreted similar statutory provisions to exclude from the operation of the privilege communications made for purposes not related to religious or spiritual concerns. E.g., Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992) (finding privilege inapplicable to defendant’s admission to minister’s accusation of sexual abuse of minors where conversation was initiated by minister for disciplinary purposes and not for spiritual counseling); Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977) (holding defendant could not claim privilege concerning conversational statements to clergy member who was his friend and frequent companion concerning defendant’s intent to kill his wife and her lover); Keenan v. Gigante, 47 N.Y.2d 160, 417 N.Y.S.2d 226, 390 N.E.2d 1151 (1979) (finding privilege inapplicable to defendant’s communications to priest where the communications were made for purpose of securing defendant’s entrance into a work release program). The common thread in such cases ‘is that the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister.’ People v. Carmono, 82 N.Y.2d 603, 606 N.Y.S.2d 879, 627 N.E.2d 959, 962 (1993).”

882 So.2d at 1075.

Thus, considering the plain meaning of the words in the phrase “in the clergyman’s professional capacity” and the observations of the Nussbaumer court, we hold that the phrase means that the clergyman is serving in his professional capacity when he is serving as a specialist in the spiritual matters of his religious organization. In other words, the communication must be made to the clergyman in his role as a provider of spiritual care, guidance, or consolation to the individual making the communication. Whether a communication is made to a clergyman “in the clergyman’s professional capacity” must be examined on a case-by-case basis.

Our interpretation of this phrase is supported by the Advisory Committee’s Note to Rule 505, which provides:

“Section (b). General rule of privilege. The privilege arises only when the person communicates with a clergymen in the latter’s professional capacity. A similar limitation is placed upon the attorney-client privilege when the client consults a lawyer for some purpose other than to secure legal advice. See Ala. R. Evid. 502(a)(1) advisory committee’s notes. ' Communications to the clergyman in furtherance of a crime or a fraud would not qualify as seeking spir itual advice and therefore would not fall within the protection of the privilege .”

(Emphasis added.) See also Tankersley v. State, 724 So.2d 557, 560 (Ala.Crim.App.1998), quoting Advisory Committee’s Notes to Rule 505 (stating that “Rule 505 has explicitly broadened the scope of the privilege to include ‘all conferences where the clergyman is consulted in the professional capacity of spiritual advisor in the broadest sense’ ”).

Here, the parties do not dispute that Archbishop Lipscomb is a clergyman, nor do they dispute that the disclosure to Archbishop Lipscomb of the documents Ledet seeks was made in a confidential manner. Therefore, our analysis focuses on whether the documents were disclosed to Archbishop Lipscomb while he was acting in his professional capacity as a spiritual advisor.

The facts before us establish that at the time Zoghby authorized the release of the documents to Archbishop Lipscomb, Archbishop Lipscomb had dual roles in the church — as a priest and as an administrator in the Archdiocese. Other jurisdictions have confronted situations similar to this one — a privilege is asserted when a communication is made to a clergyman who is serving both as a spiritual advisor and as an administrator.

In Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992), the Supreme Court of Arkansas held that the trial court properly admitted evidence from a pastor; the clergyman privilege did not apply because the communication did not occur while the pastor was serving as a spiritual counselor. In Magar, the parents of two boys told the pastor that Magar, who worked in the music ministry of the church, had sexually abused their sons. The pastor confronted Magar, and Magar admitted that the allegations were true. The court held that even though the pastor and Magar had had counseling sessions before the incident that was the basis of the action, the communication at issue was “disciplinary in nature” and, therefore, was not protected by the privilege.

The Arkansas Supreme Court emphasized that each analysis of the applicability of the clergyman privilege must rest on the facts of the particular case, stating:

“Other courts have considered the privilege of religious communications and determined the applicability of the privilege on the facts of each case. Illustrative of the rationale denying the privilege are United States v. Gordon, 493 F.Supp. 822 (N.D. New York 1980) (citing Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)) (it was emphasized that the privilege between priest and penitent is limited to private communications, a privilege recognizing ‘the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return,’ which facts and circumstances were not present where the challenged conversations related to business matters), and Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977) (the ministerial privilege was not applicable to testimony of reverend, as witness for the state in a homicide prosecution, relating to conversational statements made to him by the defendant regarding the defendant’s intent to kill his wife where the record showed that the statements by the defendant to which the witness testified were not made by the defendant in professing religious faith or seeking spiritual comfort or guidance).
“In comparison, the privilege was upheld in People v. Reyes, 144 Misc.2d 805, 545 N.Y.S.2d 653 (Supp.1989), where a conversation between a priest and the defendant was a privileged communication, which the priest could not testify about before a grand jury, where the defendant was seeking some type of spiritual advice from the priest with the reasonable expectation that the conversation would be kept secret when the defendant went to the priest’s church after a shooting.”

308 Ark. at 383-84, 826 S.W.2d at 223.

In Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992), the Supreme Court of Arkansas again addressed the clergyman privilege, holding that the privilege did not apply to an admission by Bonds when the minister, who was also Bonds’s employer, telephoned Bonds to determine if the allegations that Bonds had sexually abused a 13-year-old girl were true and if he should fire Bonds. The court held that because at the time of the communication there was no evidence of an ongoing counseling relationship between the minister and Bonds and the minister was acting as Bonds’s employer, the minister was not acting in his professional capacity as a spiritual advisor, and the clergyman privilege did not apply.

In State v. Guthrie, 627 N.W.2d 401 (S.D.2000), the Supreme Court of South Dakota held that not every communication to a clergyman was privileged under South Dakota’s clergy privilege, which provides an individual with a privilege to prevent disclosure of confidential statements made to a member of the clergy in his or her professional capacity as a spiritual advisor. In Guthrie, the communication occurred between an executive presbyter pastor and a subordinate pastor about an extramarital affair of the subordinate pastor. The court first focused on the subordinate pastor’s intent in communicating with the executive presbyter pastor. The court concluded that although the subordinate pastor intended his conversation with the executive presbyter pastor to remain in confidence, the communication was not privileged because the evidence established that the communication was not made by the subordinate pastor when he was seeking spiritual advice or counseling from the executive presbyter pastor. The evidence established that the communication was made to assist the executive presbyter pastor in determining whether he should allow the subordinate pastor to continue in his position at the church. The court focused on the fact that the executive presbyter pastor initiated the communication about the subordinate pastor’s affair and that after the communication the executive presbyter pastor permitted the subordinate pastor to remain in his position at the church. Because the facts established that when the communication was made the subordinate pastor was not seeking spiritual advice and the executive presbyter pastor was acting in his supervisory capacity, the court held that the communication was not privileged.

In Kos v. Texas, 15 S.W.3d 633 (Tex. App.2000), a case whose facts are similar to those in the case before us, the Texas Court of Appeals addressed whether the trial court properly admitted testimony from a Catholic priest regarding a communication the priest had had with another Catholic priest who had been accused of sexual misconduct. The accused priest claimed that the communication was privileged under the Texas clergyman privilege, which provides that confidential communications made by an individual to a clergy member in his professional capacity as a spiritual advisor are privileged. The communication occurred when the priest in his role as intervenor in cases where child abuse had been alleged confronted the accused priest about the abuse allegations. The priest testified that the communications with the accused priest were not part of a “Catholic confession” by the accused priest and that the accused priest was not seeking spiritual advice. The priest further stated that at the time of the meeting he was not concerned about the state of the accused priest’s soul but was focusing on conducting a “disciplinary intervention.” The Texas Court of Appeals held that the communications were not privileged, stating:

“[The priest’s] testimony indicates the statements [the accused priest] made during the September 1992 meeting were not made in an effort to obtain some sort of spiritual advice or guidance; to the contrary, the meeting was more in the nature of a disciplinary/administrative meeting, with [the priest] attempting to determine what to do in the face of the abuse allegations. We note, in this regard, that the communications between [the accused priest] and [the priest] were not initiated by [the accused priest]; rather, they were initiated by [the priest] for the specific purpose of obtaining information about the abuse allegations. Although it is true that [the clergyman-privilege rule] does not require for its application that the communicant be the one seeking, summoning, or soliciting the presence of the clergy, see Nicholson v. Wittig, 832 S.W.2d 681, 687 (Tex.App.-Houston [1 Dist.] 1992, orig. proceeding), it nevertheless does require that the communications be made for the purpose of obtaining spiritual guidance or consolation. Because there was evidence presented to the trial court indicating that the communications at issue were not motivated by any religious or spiritual considerations, we conclude the trial court could properly have found that [the accused priest’s] statements were not addressed to [the priest] in his ‘professional character as a spiritual advisor.’ See Tex.R. Evid. 505(b). Under these circumstances, we conclude the trial court did not abuse its discretion in (1) concluding the subject statements were not privileged under rule 505, and (2) admitting the evidence at trial.”

15 S.W.3d at 640.

Here, the trial court was faced with the factual question of whether the documents were released to Archbishop Lipscomb in Archbishop Lipscomb’s professional capacity as Zoghby’s spiritual advisor or in the course of Archbishop Lipscomb’s resolution of Ledet’s complaint against Zoghby. Zoghby averred in his affidavit that he released the documents to Archbishop Lipscomb “to assist the Archbishop in giving [him] personal and spiritual guidance”; evidence offered by Ledet established otherwise. Archbishop Lipscomb’s deposition testimony refutes Zoghby’s statement. Archbishop Lipscomb’s testimony established that before, during, and after the investigation into Ledet’s complaint against Zoghby, he was not acting as Zoghby’s spiritual advisor but as an investigator looking into Ledet’s allegations and a resolver of her complaint. Indeed, Archbishop Lipscomb’s testimony establishes that the counseling with Zoghby about his sexual misconduct was conducted in New York and that he used the documents from that counseling that Zoghby released to him as a major factor in deciding to promote Zoghby to the position of pastor. Zoghby does not deny that when he released the documents to Archbishop Lipscomb it was for the purpose of assisting Archbishop Lipscomb in determining whether Zoghby had “changed his life” and was ready to return to active ministry. Given the totality of the facts in this case, the trial court’s conclusion that the privilege does not apply is supported by evidence indicating that the documents Ledet seeks were released by Zoghby to Archbishop Lipscomb not for the purpose of Zoghby’s receiving spiritual advice from Archbishop Lipscomb, but for the purpose of Zoghby’s establishing his compliance with the Archdiocese’s agreement with Le-det and his readiness to return to active ministry. Thus, Zoghby has not established that the trial court exceeded the scope of its discretion in this matter and has not established that he has a clear legal right to the relief requested.

Zoghby further argues that, even if his records are not protected by the clergyman privilege, the documents remain protected by the psychotherapist-patient privilege because, he says, he did not “objectively manifest a clear intent not to rely on the [psychotherapist-patient] privilege.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 505 (Ala.1993). See Ex parte Pepper, 794 So.2d 340 (Ala.2001); Ex parte T.O., 898 So.2d 706 (Ala.2004). Zoghby’s argument, however, ignores the fact that he expressly released the documents to Archbishop Lipscomb. In his affidavit he admits that he signed “a release authorizing [his] counselor to send to and give the Archbishop access to [his] counseling records.” As previously noted, nothing before us establishes that Zoghby did not intend for the documents to be used to assist in evaluating his readiness to return to active ministry. This express release, which the circumstances establish was for purposes other than counseling or treatment, objectively manifests Zoghby’s clear intent not to rely on the psychotherapist-patient privilege. Therefore, Zoghby has not established that the trial court exceeded the scope of its discretion in holding that these documents are not protected from disclosure.

Lastly, the trial court’s discovery order is tailored to protect the contents of these documents and to prevent unnecessary dissemination of what they contain. The order specifically provides that the documents are to be produced “solely for the purpose of discovery” and that the documents are bound from further disclosure by the parties’ nondisclosure agreement. In light of the facts of this case, the trial court’s restrictions adequately protect Zoghby’s rights.

Conclusion

In light of the pleadings and facts before us, Zoghby has not established that the trial court exceeded the scope of its discretion in compelling the discovery. Consequently, Zoghby has not established a clear legal right to the relief requested; this petition therefore is denied.

PETITION DENIED.

NABERS, C.J., and SEE, HARWOOD, WOODALL, and BOLIN, JJ„ concur.

LYONS, J., concurs specially.

PARKER, J., dissents.

LYONS, Justice

(concurring specially).

I concur fully in the well-reasoned main opinion. I write specially to question the clarity of our precedent establishing the standards by which we review questions regarding the existence of a privilege as whether the trial court exceeded its discretion when it ruled on the privilege issue.

The main opinion cites Exxon Corp. v. Department of Conservation & Natural Resources, 859 So.2d 1096, 1103 (Ala.2002), in which this Court held that the standard for reviewing a trial court’s ruling on a privilege issue is whether the trial court exceeded the scope of its discretion. In Exxon, we reviewed the trial court’s ruling admitting a letter written by a corporate attorney and reversed the trial court’s order finding a waiver of the attorney-client privilege based upon its conclusion that the letter had been distributed in a manner inconsistent with confidentiality. Our analysis was fact intensive, as it should be, based upon Rule 104(a), Ala. R. Evid., which provides as follows:

“(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.”

(Emphasis added.)

The main opinion’s analysis is likewise fact intensive. Under the circumstances, if we were writing upon a clean slate I would prefer to apply as a standard of review whether the trial court’s findings were clearly erroneous. Such an approach comports with treatment of the companion Rule 104(a), Fed.R.Evid. See, e.g., Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). But, under our practice, when the trial court makes factual findings without benefit of live testimony, as was the case here, our review is de novo, not the more circumscribed scope of review where we affirm a judgment based on factual findings unless those findings are clearly erroneous. See Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 70-71 (Ala.2005) (“In a case in which a trial court has not heard live testimony, this Court has held that ‘a reviewing court will not apply the presumption of correctness to a trial court’s findings of fact and that the reviewing court will review the evidence de novo.’ Eubanks v. Hale, 752 So.2d 1113, 1122 (Ala.1999). Our statutory [§ 12-2-7(1), Ala.Code 1975] obligation in a case such as this is to ‘weigh the evidence and give judgment as [we] deem[ ] just.’ ”). Perhaps we could merge the concepts by concluding that the trial court has not exceeded its discretion when its findings of fact are not clearly erroneous or when they survive de novo review. See, with respect to review for clearly erroneous factual finding, State v. Scholz, 432 A.2d 763, 766 (Me.1981), in which the court, applying the comparable Rule 104(a), Me. R. Evid., concluded: “We will not interfere with the court’s exercise of its discretion unless we conclude, as in the case at bar, that those factual findings were clearly erroneous.”

Regardless of whether the trial court’s finding of absence of privilege in this proceeding is reviewed for an excess of discretion, reviewed by this Court de novo, or reviewed to determine whether the trial court’s finding was clearly erroneous, the trial court’s judgment is due to be affirmed for the reasons ably elaborated upon in the main opinion.

PARKER, Justice

(dissenting).

Father Zoghby’s counseling records from his treatment at a counseling clinic in New York state were originally protected by the psychotherapist-patient privilege. However, Linda Ledet, the plaintiff, contends that Father Zoghby waived that privilege when he consented to the release of those records to Archbishop Lipscomb, because, she asserts, the Archbishop’s relationship to Father Zoghby was that of an investigator of her complaint and a supervisor, not a spiritual advisor. I respectfully disagree.

The clergy-parishioner privilege, long recognized and protected under the common law and by statute, was broadened substantially with the adoption of Rule 505(a)(2), Ala. R. Evid.:

“If any person shall communicate with a clergyman in the clergyman’s professional capacity and in a confidential manner, then that person or the clergyman shall have a privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication.”

As observed in Tankersley v. State, 724 So.2d 557, 560 (Ala.Crim.App.1998):

“Although § 12-21-166 [Ala.Code 1975] limited the clergyman privilege to communications that were either confessional or marital in nature, Rule 505 has explicitly broadened the scope of the privilege to include ‘all conferences where the clergyman is consulted in the professional capacity of spiritual advisor in the broadest sense.’ Ala. R. Evid. 505, Advisory Committee’s Notes.”

Asked during deposition whether he had acted as Father Zoghby’s spiritual advisor, Archbishop Lipscomb initially answered in the negative; he then, however, qualified his answer, saying that the term “spiritual advisor” is “very ambiguous” in the vocabulary of the Catholic Church. He went on to say in his deposition that he and Father Zoghby “discussed things that I thought were necessary for his healing” and that in his role as archbishop he had a duty to protect the victims of sexual misconduct by priests, and “[t]hen you try to deal with the perpetrator to see is he salvageable and what are the conditions under which you might approach a return to some kind of active ministry.” He testified that he selected a program of counseling that involved Father Zoghby’s living in a New York monastery and undergoing treatment at a nearby hospital, because he had hoped this treatment could rehabilitate Father Zoghby.

Father Zoghby says in his affidavit that Archbishop Lipscomb has served as his bishop and spiritual advisor, that he has entrusted many confidential matters to Archbishop Lipscomb over the years, and that he has had many private discussions with Archbishop Lipscomb concerning his spiritual growth and discernment.

All of this leads me to conclude that Archbishop Lipscomb was acting “in the clergyman’s professional capacity” as Rule 505(b) requires for the clergyman privilege to apply and that he was a “spiritual advis- or” to Father Zoghby “in the broadest sense” as explained in the Advisory Committee’s Notes to Rule 505. Because of the rehabilitative purpose and nature of Church discipline, I do not believe Archbishop Lipscomb’s roles here as investigator, supervisor, and spiritual advisor can be as neatly compartmentalized as the majority opinion implies.

Rule 505(b) limits the clergyman privilege to situations in which the person who made the communication has “communicate[d] with a clergyman in the clergyman’s professional capacity and in a confidential manner.” In any determination of whether Father Zoghby communicated with Archbishop Lipscomb “in a confidential manner,” Father Zoghby’s perception is critically important.

Because no clergy-parishioner case is directly on point, I shall cite analogous cases involving the parallel attorney-client privilege. In Tankersley, it was noted that the Advisory Committee’s Notes to Rule 505(b) draw a comparison between the two privileges:

“[I]n defining which communications are confidential, the Advisory Committee’s Notes compare the clergyman privilege and the attorney-client privilege: ‘The definition of the term [confidential] is consistent with its use in the attorney-client privilege.’ Under Rule 502(d)(1), Ala. R. Evid., communications in which a client seeks the advice of an attorney for aid in the commission or furtherance of a crime are not privileged. Although Rule 505 does not contain a similar privilege covering communications with clergy that indicate an intention to commit a crime, the Advisory Committee’s Notes again draw a parallel with the attorney-client privilege: ‘Communications to the clergyman in furtherance of a crime or fraud would not qualify as seeking spiritual advice and therefore would not fall within the protection of the privilege.’ Therefore, even though the clergyman privilege of Rule 505 does not specifically list exceptions to the general rule, the Advisory Committee clearly intended that the scope of that privilege would be comparable to the scope of the attorney-client privilege.”

724 So.2d at 561.

As the United States Court of Appeals for the Seventh Circuit observed in Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 n. 14 (7th Cir.1978)(quoting R. Wise, Legal Ethics 284 (1970)): “ ‘The deciding factor is what the prospective client thought when he made the disclosure, not what the lawyer thought.’ ” Westinghouse also quoted McCormick on Evidence § 88, p. 179 (2d ed.1972), as saying that the attorney-client privilege “‘hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.’ ” 580 F.2d at 1319.

Other courts have held that “[i]n determining whether an attorney-client relationship has been created, the focus is on the putative client’s subjective belief that he is consulting a lawyer in his professional capacity, and on his intent to seek professional advice.” Dalrymple v. National Bank & Trust Co., 615 F.Supp. 979, 982 (W.D.Mich.1985). In United States v. Dennis, 843 F.2d 652, 657 (2d Cir.1988), the United States Court of Appeals for the Second Circuit said that the key is the “intent of the client” and whether he or she “reasonably understood” that the disclosure was to be confidential. Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir.1984), held: “The guiding principle ... is the intent of the client.” Callas v. Pappas, 907 F.Supp. 1257, 1262 (E.D.Wis.1995), held that the attorney-client relationship arose when the putative client “reasonably believed” he was consulting with an attorney in the attorney’s professional capacity. Herbes v. Graham, 180 Ill.App.3d 692, 699, 536 N.E.2d 164, 168, 129 Ill.Dec. 480, 484 (1989), held that cases involving the attorney-client privilege “focus on the client’s viewpoint rather than that of the attorney.” And in In re Anonymous, 655 N.E.2d 67, 70 (Ind.1995), the Supreme Court of Indiana held that an “important factor is the putative client’s subjective belief that he is consulting a lawyer in his professional capacity .... ”

In his affidavit, Father Zoghby clearly and unequivocally stated that he signed an authorization releasing his treatment records to Archbishop Lipscomb and to no other person, that he agreed to release the records to Archbishop Lipscomb in Archbishop Lipscomb’s capacity as his bishop and his spiritual advisor, and that it was his clear understanding that the records were protected by the psychotherapist-patient privilege before the release and by the clergy-parishioner privilege after the release. These statements of Father Zoghby are unrefuted.

Because Archbishop Lipscomb acted in a “clergyman’s professional capacity” and as Father Zoghby’s “spiritual advisor in the broadest sense” and because Father Zoghby clearly and reasonably believed when he authorized the release of his records that these records were within the protection of the clergy-parishioner privilege, I believe the records are privileged under Rule 505(b). I further believe that, just as the attorney-client privilege is a deeply rooted common-law principle deemed essential to ensure the client’s right to effective representation of counsel, so also is the clergy-parishioner privilege a deeply rooted common-law principle deemed essential to protect the right of penitents to seek spiritual help and to preserve the integrity of the Church.

I therefore dissent.

      . Archbishop Lipscomb is the Archbishop of the Catholic Archdiocese of Mobile and acts as the administrative and spiritual head of the Archdiocese. Chancellor Farmer is the Chancellor of the Archdiocese and acts as an administrative and spiritual executive for the Archdiocese.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte CINTAS CORPORATION et al. (In re J. Lester Alexander III, as trustee in bankruptcy for Terry Manufacturing Company, Inc., and for Terry Uniform Company, LLC v. Cintas Corporation et al.).
    1050266.
    Supreme Court of Alabama.
    Nov. 17, 2006.

      Alan T. Rogers and Ed R. Haden of Balch & Bingham, LLP, Birmingham; John G. Smith of Balch & Bingham, LLP, Montgomery; and Michael L. Scheier, Jason M. Cohen, and Jennifer J. Morales of Keating, Muething & Klekamp, PLL, Cincinnati, Ohio, for petitioners.
    James R. Pratt III, Bruce J. McKee, and Sandra Payne Hagood of Hare, Wynn, Newell & Newton, Birmingham; and Brent B. Barriere, David L. Patrón, and Catherine E. Lasky of Phelps Dunbar, LLP, New Orleans, Louisiana, for respondent.
   On Application for Rehearing

WOODALL, Justice.

The opinion issued on August 25, 2006, is withdrawn, and the following opinion is substituted therefor.

Certain defendants in an action pending in the Randolph Circuit Court petition this Court for a writ of mandamus directing the circuit court to enforce a forum-selection clause and grant their motion to dismiss. We deny the petition.

Cintas Corporation No. 2 (“Cintas”) rents and sells uniforms throughout the United States. Terry Manufacturing Company, Inc. (“Terry Mfg.”), was a minority-owned business in Randolph County that manufactured uniforms. In 2000, Cintas and Terry Mfg. formed a joint venture to provide uniforms nationwide through a new company, Terry Uniform Company, LLC (“Terry Uniform”), organized under the laws of the State of Delaware. The Cintas-Terry Mfg. joint venture was established by a series of transactional documents (hereinafter referred to collectively as “the contract”).

The contract contained what is commonly referred to as an “outbound” forum-selection clause; that clause is at the center of this dispute. The forum-selection clause provided:

“[Terry Mfg., Terry Uniform,] and Cintas hereby designate all courts of record sitting in Wilmington, Delaware, both state and federal, as forums where any action, suit or proceeding in respect of or arising out of the [contract] or the transactions contemplated thereby shall be prosecuted as to all parties, their successors and assigns, and by the foregoing designations [Terry Mfg.], Cintas and [Terry Uniform] consent to the jurisdiction and venue of such courts. [TERRY MFG.], CINTAS AND [TERRY UNIFORM] WAIVE ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN THE STATE OF DELAWARE FOR THE PURPOSES OF LITIGATION TO ENFORCE SUCH OBLIGATIONS. In the event such litigation is commenced, [Terry Mfg.], Cintas and [Terry Uniform] agree that service of process may be made and personal jurisdiction over [Terry Mfg.], Cintas and [Terry Uniform] obtained by service of a copy of the summons, complaint and other pleadings required to commence such litigation in any manner allowable under applicable laws.”

(Capitalization in original.)

According to the parties, the “parent” entity of Cintas is Cintas Corporation (“Cintas parent”). Scott Farmer and David Jeanmougin, officers of both Cintas and Cintas parent, and Paul Carmichael, an employee of Cintas parent, as well as Roy Terry, Rudolph Terry, and Cotina Terry, officers of Terry Mfg., served on the management committee of Terry Uniform. Farmer, Jeanmougin, and Roger Reed, an officer of Cintas parent, as well as Roy Terry and Rudolph Terry, served on the management committee of SCT Sourcing Company, LLC, another company formed as part of the Cintas-Terry Mfg. joint venture. Sidney Johnson was the bookkeeper for Terry Mfg.

In 2003, Terry Mfg. and Terry Uniform filed for bankruptcy protection. J. Lester Alexander III was appointed bankruptcy trustee for both companies. On October 25, 2004, Alexander, as bankruptcy trustee of both companies, sued Cintas, Cintas parent, Farmer, Jeanmougin, Carmichael, Reed, Roy Terry, Rudolph Terry, Cotina Terry, and Johnson in the Randolph Circuit Court. The lengthy complaint included claims alleging breach of contract, breach of fiduciary duty, and misrepresentation.

Cintas, a party to the contract, and Cin-tas parent, Farmer, Jeanmougin, Reed, and Carmichael, all nonsignatories to the contract, jointly moved to dismiss the bankruptcy trustee’s action on the basis that venue in the Randolph Circuit Court was improper, citing the forum-selection clause in the contract. On October 12, 2005, the trial court denied the motion. On November 23, 2005, Cintas, Cintas parent, Farmer, Jeanmougin, Reed, and Carmichael petitioned this Court for a writ of mandamus directing the trial court to dismiss the case without prejudice so that it can be refiled in Delaware.

“An outbound forum-selection clause — a clause by which parties specifically agree to trial outside the State of Alabama in the event of a dispute— implicates the venue of a court rather than its jurisdiction. See Ex parte CTB, Inc., 782 So.2d 188 (Ala.2000); and O’Brien Eng’g Co. v. Continental Machs., Inc., 738 So.2d 844, 845 n. 1 (Ala.1999).
“ ‘ “The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.” Ex parte National Security Ins. Co., 727 So.2d 788, 789 (Ala.1998). “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).’

“Ex parte CTB, Inc., 782 So.2d at 190.” Ex parte Rymer, 860 So.2d 339, 341 (Ala.2003).

Because the motion to dismiss was filed jointly by a party to the contract and five nonsignatories to the contract, and because the petition filed by those movants seeks a writ of mandamus directing the trial court to dismiss the entire case without prejudice to its refiling in Delaware, we first address the issue whether the nonsignatories are entitled to enforce the forum-selection clause. If they are not entitled to enforce the clause, the petitioners are not entitled to the relief they seek, and this Court need not address any other issue.

This Court has “note[d] an analogy between this Court’s enforcement of arbitration clauses as to nonsignatories to a contract and the enforcement of [a] forum-selection clause.” Ex parte Procom Servs., Inc., 884 So.2d 827, 834 (Ala.2003). The nonsignatories argue that they are entitled to enforce the forum-selection clause under the doctrine of “equitable estoppel” or “intertwining,” a doctrine which has been well developed in this Court’s arbitration cases. See, e.g., Fountain v. Ingram, 926 So.2d 333 (Ala.2005). They also argue that “[b]ecause agents stand in the shoes of their principals, this Court has applied the law of agency to allow nonsignatories to enforce arbitration clauses, even where the clauses are expressly limited to the signatories.” Application for rehearing, at 2. See, e.g., Stevens v. Phillips, 852 So.2d 128 (Ala.2002). However, the nonsignatories’ effort to enforce the forum-selection clause faces an impregnable barrier, namely, an unambiguous clause in the contract that denies them such right or remedy.

“ ‘If a contract is unambiguous on its face, there is no room for construction and it must be enforced as written.’ Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000).” Central Reserve Life Ins. Co. v. Fox, 869 So.2d 1124, 1127 (Ala.2003). “Where ... contracting parties expressly provide that a third party shall have no legally enforceable rights in their agreement, a court must effectuate the expressed intent by denying the third party any direct remedy.” Federal Mogul Corp. v. Universal Constr. Co., 376 So.2d 716, 724 (Ala.Civ.App.1979).

In this case, the parties to the contract were Cintas, Terry Mfg., and Terry Uniform. The contract provided:

“Nothing in this Agreement is intended or shall be construed to give any person (including, but not limited to, the employees of any of the parties to this Agreement), other than the parties hereto, their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.”

This clause unambiguously denies the non-signatories any right or remedy, and, consequently, the nonsignatories are not entitled to enforce the forum-selection clause. The nonsignatories refer to this clause as a “no third-party beneficiary clause.” Application for rehearing, at 8 n. 2. They then argue that they are entitled to enforce the forum-selection clause, not as third-party beneficiaries, but as agents of Cintas. However, their argument must fail, given the contract’s explicit denial of any right or remedy to any of “the employees of any of the parties to this Agreement.” (Emphasis added.) The nonsignatories never address this specific language, and they offer no reason why such a clause should not be enforced. For these reasons, the petitioners are not entitled to the relief they seek, and their petition is denied.

OPINION OF AUGUST 25, 2006, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; PETITION DENIED.

NABERS, C.J., and SEE, LYONS, HARWOOD, STUART, SMITH, BOLIN, and PARKER, JJ., concur.


author: LYONS, Justice.

text:
    Willie “Omar” SMITH v. Jack TILLMAN, individually and in his official capacity as sheriff of Mobile County.
    1051108.
    Supreme Court of Alabama.
    Nov. 17, 2006.

      Jerry Roberson of Roberson & Roberson, Birmingham, for appellant.
    K. Paul Carbo, Jr., of The Atchison Firm, P.C., Mobile, for appellee.
   LYONS, Justice.

The plaintiff below, Willie “Omar” Smith, appeals from the Mobile Circuit Court’s dismissal of his breach-of-contract action against Jack Tillman, sheriff of Mobile County, based on Tillman’s immunity. We reverse and remand.

I. Facts and Procedural Background

In 2002, Smith, an employee of the Mobile County Sheriffs Department, sued Tillman, in both his individual capacity and his official capacity as sheriff of Mobile County, in the United States District Court for the Southern District of Alabama. The action asserted claims under 42 U.S.C. §§ 1981 and 1983, as well as claims under 42 U.S.C. § 2000e, also known as Title VII of the Civil Rights Act of 1964 (“Title VII”). The case was assigned to a United States Magistrate Judge for mediation, and at mediation a settlement was reached. Smith agreed to dismiss his action in exchange for Tillman’s promoting Smith and providing him with certain employment benefits. All parties to the settlement understood that Tillman could not fulfill the conditions of the settlement agreement until October 2003, the beginning of the fiscal year for the sheriffs department. Because a settlement had been reached, the United States District Court entered an order dismissing the action but allowing it to be reinstated within 45 days of its dismissal.

Smith says that in October 2003, more than 45 days after the district court’s dismissal of the action, he first learned that Tillman was in breach of the settlement agreement. Smith joined another action pending against Tillman in the United States District Court for the Southern District of Alabama and sought enforcement of the settlement agreement. Relying on Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (holding that the enforcement of a settlement agreement was more than a continuation of the prior action and requires a separate basis for jurisdiction), the United States District Court dismissed Smith’s claim on the ground that it alleged a breach of contract under state law, for which there was no independent basis for federal jurisdiction.

Smith then sued Tillman, in both his individual and official capacities, in the Mobile Circuit Court, averring a breach of the settlement agreement. Tillman filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, claiming that as sheriff of Mobile County he was immune from suit in his official and individual capacities. The circuit court granted the motion to dismiss, stating that Smith’s “lawsuit in this case does not fall under any of the five exceptions to the sheriffs sovereign immunity. It is not for this Court to create a sixth exception.” Smith appeals.

II. Standard of Review

The standard of review of .an order granting a motion to dismiss was set out in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):

“On appeal, a dismissal is not entitled to a presumption of correctness.... 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 [the pleader] to relief.... In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [the plaintiff] may possibly prevail.... We note that 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.”

III. Analysis

The issue before this Court is whether a state official is barred from asserting the defense of sovereign immunity in a state court action seeking to enforce a settlement agreement between private parties in a Title VII action. Smith argues that the dismissal was improper for two reasons. First, Smith argues, the settlement agreement arises under Title VII, which abrogates Tillman’s sovereign immunity. In the alternative, Smith argues, Tillman waived any affirmative defense to Smith’s federal action, including sovereign immunity, when he voluntarily entered into a settlement agreement.

Congress authorized civil actions against state officials under Title VII to enforce the substantive provisions of the Fourteenth Amendment to the United States Constitution. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). An action against a state or a state official to enforce the Fourteenth Amendment is not subject to the protection from immunity afforded to states by virtue of the Eleventh Amendment. Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 436 (Ala.2001) (“There are only two conditions under which a state may be made a defendant in a federal court: 1) if the state has consented to be sued, by waiving its immunity or 2) if Congress has expressed a clear and unmistakable intent to make the state subject to suit, pursuant to Congress’s right to enforce the 13th, 14th, and 15th Amendments to the United States Constitution.”). Title VII claims are in that category of actions as to which a state has no immunity. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 279, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (describing Fitzpatrick v. Bitzer, supra, as “concluding that Title VII’s authorization of federal-court jurisdiction to award money damages against a state government to individuals subjected to employment discrimination does not violate the Eleventh Amendment since Congress was exercising its § 5 [of the Fourteenth Amendment] remedial powers”).

Smith contends that an action, such as this one, to enforce a settlement agreement in a Title VII action involves a prior waiver of immunity by the state official that cannot be recalled. Citing Klein v. Board of Regents of the University of Wisconsin System, 265 Wis.2d 543, 666 N.W.2d 67 (Ct.App.2003), Smith argues that his claim alleging breach of the settlement agreement arises under Title VII and that Tillman cannot claim sovereign immunity because he abrogated that claim by settling the federal action. In Klein, the Wisconsin court agreed with the reasoning of the United States Court of Appeals for the Seventh Circuit, in EEOC v. Liberty Trucking, 695 F.2d 1038, 1043 (7th Cir.1982), that “because the statutory scheme of Title VII is bottomed on the encouragement of voluntary compliance in the elimination of employment discrimination, enforcement of conciliation and predetermination settlement agreements must be part of the underlying Title VII actions,” thus abrogating a state official’s sovereign-immunity defense. 265 Wis.2d at 552, 666 N.W.2d at 71-72 (emphasis added).

Tillman, however, argues that Klein is distinguishable because the settlement agreement in Klein was reached through EEOC administrative proceedings and was entered into before the lawsuit was filed. See Morris v. City of Hobart, 39 F.3d 1105, 1111-12 (10th Cir.1994) (“Turning to Title VII, we find no suggestion that Congress intended to confer federal question jurisdiction over contract disputes arising out of private settlements.... The jurisdictional grant embodied in Title VII states only that federal courts have jurisdiction over actions ‘brought under’ Title VII.... This case was brought under state contract law, not Title VII.” (footnote omitted)); Langley v. Jackson State Univ., 14 F.3d 1070, 1073 (5th Cir.1994) (“Dr. Langley cannot offer, and we cannot find, any indication that Congress has established an administrative structure evidencing its intent to provide a federal forum for private parties to enforce settlement agreements ending discrimination disputes after a lawsuit has been filed.”) (overruled in part on other grounds by Kokkonen, supra). We agree.

Morris acknowledges in footnote 4 that a number of courts have recognized that “suits involving the breach of conciliation agreements and predetermination settlement agreements negotiated by the Equal Employment Opportunity Commission are ‘brought under’ Title VII.” 39 F.3d at 1111 n. 4 (citing Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515 (11th Cir.1986); Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503 (11th Cir.1985); EEOC v. Henry Beck Co., 729 F.2d 301 (4th Cir.1984); EEOC v. Safeway Stores, Inc., 714 F.2d 567 (5th Cir.1983); and EEOC v. Liberty Trucking Co., supra). Smith relies on the cases cited in footnote 4 of Mortis. However, because Smith has not alleged that the settlement agreement was one negotiated by the EEOC, and, to the contrary, attempts to enforce a settlement agreement reached in mediation proceedings between private parties, these cases are also inapposite. We agree with the United States District Court for the Southern District of Alabama that an action to enforce a settlement agreement reached between private parties in a Title VII action, as opposed to a prelitigation agreement involving the EEOC, does not arise under Title VII.

Smith also relies upon Texas A & M University-Kingsville v. Lawson, 87 S.W.3d 518 (Tex.2002), in which the Texas Supreme Court, enforcing a legislative abrogation of immunity, thwarted a state official’s attempt to renege on a settlement by a subsequent plea of immunity in an action to enforce the settlement. The Texas Supreme Court concluded:

“Lawson was therefore entitled to sue the University for violating the statute and if he prevailed, to hold the University liable. We agree with the trial court that when a governmental entity is exposed to suit because of a waiver of immunity, it cannot nullify that waiver by settling the claim with an agreement on which it cannot be sued. The government cannot recover waived immunity by settling without defeating the purpose of the waiver in the first place.”

87 S.W.3d at 521 (emphasis added). Lawson is distinguishable, as Tillman points out, by reason of the unique provisions of Texas law at issue in that case for which there are no Alabama counterparts. However, deciding that the settlement agreement does not arise under Title VII and that Lawson is distinguishable does dispose of the question whether, under applicable state law on sovereign immunity, Tillman can assert sovereign immunity in a subsequent action brought by Smith in state court to enforce the settlement agreement.

Tillman, in response to Smith’s contention that sovereign immunity is unavailable to him under state law, contends that an action to enforce a settlement agreement, into which a state official voluntarily entered, does not fall under one of the five legislative exceptions to sovereign immunity recognized in Parker v. Amerson, 519 So.2d 442 (Ala.1987). In Parker, this Court recognized the following exceptions to sovereign immunity:

“A sheriff is an executive officer of the State of Alabama, who is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office, except for actions brought (1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.”

519 So.2d at 442-43 (emphasis added). Tillman argues that because his refusal to perform under the terms of the settlement agreement does not fall within one of these five exceptions Smith cannot bring an action against him to enforce the Title VII settlement agreement. We disagree.

Turning to the availability to Tillman of immunity under state law, we conclude that, by entering into a contract, in this case the settlement agreement, Tillman incurred a duty to perform a ministerial act. See State of Alabama Highway Dep’t v. Milton Constr. Co., 586 So.2d 872, 875 (Ala.1991) (“Once the Highway Department has legally contracted under state law for goods or services and accepts such goods or services, the Highway Department also becomes legally obligated to pay for the goods or services accepted in accordance with the terms of the contract. It follows that this obligation is not subject to the doctrine of sovereign immunity and is enforceable in the courts.”). See also Horn v. Dunn Bros., Inc., 262 Ala. 404, 408, 79 So.2d 11, 15 (1955) (“When State officers are required to perform ministerial acts, they derive no comfort or immunity from Section 14[, Ala. Const.1901].”) (citing Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479 (1942), and State v. Clements, 217 Ala. 685, 117 So. 296 (1928)). This exception to immunity is consistent with the grounds stated in Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000), upon which Smith relies, which provide that immunity is not available for Tillman’s willful action contrary to federal or state law or beyond his authority.

The settlement agreement imposed upon Tillman a contractual duty to carry out certain ministerial acts in accordance with its terms. Tillman’s failure to comply with the contractual duties imposed by the settlement agreement is not insulated from litigation by the protections afforded government officials in § 14, Ala. Const.1901. Therefore, under the second exception to immunity established in Parker, Smith may sue Tillman to enforce the Title VII settlement agreement.

Conclusion

The judgment dismissing Smith’s complaint based on the defense of sovereign immunity is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . It is not immediately clear whether the settlement agreement disposed of the §§ 1981 and 1983 claims in addition to the Title VII claims. Smith characterizes -the settlement agreement as a “Title VII agreement,” but Tillman notes that -he has not abrogated any sovereign-immunity defense with regard to the §§ 1981 and 1983 claims.

      . An action under Title VII, not involving the United States as a party, is considered to be an action "between private parties," notwithstanding that one of those parties may be a governmental entity other than the United States. See generally Morris v. City of Hobart, 39 F.3d 1105 (10th Cir.1994) (discussing the circumstances under which a settlement agreement between “private parties” may be enforced in a federal court).

      . Tillman does not contend that federal law makes him immune from the liability he accepted in the settlement. We therefore need not address the issue whether the settlement of the federal action had any res judicata effect on the issue of immunity.


author: SEE, Justice.

text:
    Ex parte George Randall BATEY. (In re George Randall Batey v. State of Alabama).
    1050947.
    Supreme Court of Alabama.
    Nov. 17, 2006.
    George Randall Batey, pro se.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Stephanie N. Mor-man and Andy Scott Poole, asst, attys. gen., for respondent.
   SEE, Justice.

This Court issued the writ of certiorari to review George Randall Batey’s claim asserted in his Rule 32, Ala. R.Crim. P., petition that the trial court used more prior felony convictions than he actually has to enhance his sentence under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975 (“the HFOA”). However, Batey’s arguments in his briefs to this Court largely ignore the issue and focus instead on an argument that the State failed to prove his prior felony convictions the trial court used to enhance his sentence. Because this argument is not jurisdictional and was not raised at trial or on appeal, it is barred by Rule 32.2, Ala. R.Crim. P., and we affirm the judgment of the Court of Criminal Appeals affirming the trial court’s denial of Batey’s Rule 32 petition.

Facts and Procedural History

In 1996, Batey was convicted in the Winston Circuit Court of first-degree sodomy and was sentenced, as a habitual offender, to life imprisonment without the possibility of parole pursuant to the HFOA. In its order sentencing Batey, the trial court stated that “the [SJtate introduced evidence of three or more prior felony convictions. The court asked [Batey] if there were any objections to this evidence, to which [Batey’s] attorney replied: ‘No sir.’ ” Batey appealed; the Court of Criminal Appeals affirmed Batey’s conviction and sentence on direct appeal in an unpublished memorandum. Batey v. State (No. CR-96-0379), 725 So.2d 1078 (Ala.Crim.App.1997) (table).

In January 2005, Batey filed a Rule 32 petition in the Winston Circuit Court, which he amended in February 2005. In the amendment he argued for the first time that the State had failed to prove the prior felony convictions used to enhance his sentence under the HFOA. The trial court denied the petition, and the Court of Criminal Appeals, in an unpublished memorandum, affirmed its decision. Batey v. State (No. CR-04-2534, March 17, 2006), — So.2d - (Ala.Crim.App.2006) (table). Batey petitioned this Court for the writ of certiorari, and we issued the writ to address one ground raised by Batey’s petition. We address Batey’s argument that the State failed to prove the prior felony convictions the trial court used in sentencing him under the HFOA. He argued that the holding in the Court of Criminal Appeals’ unpublished memorandum that his argument was procedurally barred by Rule 32, Ala. R.Crim. P., conflicted with that court’s decisions in McClintock v. State, 773 So.2d 1057 (Ala.Crim.App.2000), and King v. State, 871 So.2d 105 (Ala.Crim.App.2003); in both those cases, the Court of Criminal Appeals held that the defendant was entitled to be resentenced upon proof that one of the prior convictions the trial court had used to enhance his sentence under the HFOA had been set aside.

Standard of Review

The issue in this case is whether Batey’s challenge to the State’s evidence of his prior convictions is procedurally barred by Rule 32.2, Ala. R.Crim. P., because it was first raised in his Rule 32 petition. We review a question of law in a criminal case de novo. Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003).

Analysis

Rule 32.1, Ala. R.Crim. P., lists the grounds on which a convicted defendant may petition for postconviction remedies. One such ground is that the trial court “was without jurisdiction to render judgment or to impose sentence.” Rule 32.1(b), Ala. R.Crim. P. Another is that “[t]he sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.” Rule 32.1(c), Ala. R.Crim. P!

With one exception, postconviction relief is precluded for a claim that could have been, but was not, raised at trial or on appeal. The exception is that a petition alleging that the trial court lacked jurisdiction to render judgment or to impose sentence may be brought at any time, regardless of whether the jurisdiction issue was raised during trial or on direct appeal. Rule 32.2, Ala. R.Crim. P. Alabama courts have applied this exception to allegations of illegal sentencing, holding that “a challenge to an illegal sentence is jurisdictional and can be raised at any time.” Ginn v. State, 894 So.2d 793, 796 (Ala.Crim.App.2004). See also Ex parte Brannon, 547 So.2d 68, 68 (Ala.1989) (“[W]hen a sentence is clearly illegal or is clearly not authorized by statute, the defendant does not need to object at the trial level in order to preserve that issue for appellate review.”).

In his petition for the writ of certiorari, Batey argues that the Court of Criminal Appeals’ unpublished memorandum affirming the trial court’s summary denial of his Rule 32 petition conflicts with that court’s decisions in McClintock and King. Those cases addressed the use of a felony conviction that had been set aside to enhance a defendant’s sentence under the HFOA. As noted, Batey’s argument is not that his sentence was enhanced by the use of a vacated conviction. As McClintock and King demonstrate, such an argument implicates the legality of the sentence imposed under the HFOA. His argument is that the State failed to adequately prove the prior convictions used to enhance his sentence under the HFOA. In response to this argument, the Court of Criminal Appeals’ unpublished memorandum states that the State’s “alleged failure to adequately prove prior felony convictions used for sentence enhancement is not a jurisdictional issue and is, therefore, subject to the procedural bars in Rule 32.2.” The Court of Criminal Appeals cited several cases for this holding, including Franks v. State, 819 So.2d 106 (Ala.Crim.App.2001); Johnson v. State, 675 So.2d 85, 87 (Ala.Crim.App.1995); Nichols v. State, 629 So.2d 51, 57-58 (Ala.Crim.App.1993); and Harrell v. State, 555 So.2d 257, 262 (Ala.Crim.App.1989).

On certiorari review, the State asserts that cases such as McClintock and King are “occasional anomalous decision[s]” that result from the courts’ “broad definition of ‘jurisdiction.’ ” State’s brief at 7. The State further argues that, even if it failed to prove Batey’s prior convictions, the issue is not in fact a jurisdictional issue and that the sentence Batey is challenging is not an “illegal sentence.” We agree.

The State is correct that the failure to prove a prior conviction is not a jurisdictional matter; therefore, consideration of that issue in a Rule 32 petition is precluded. See Hale v. State, 848 So.2d 224, 231 (Ala.2002) (“ ‘The failure to object in the trial court to the State’s method of proving or failure to prove prior convictions precludes consideration of that issue on appeal.’ ” (quoting Nichols v. State, 629 So.2d at 57-58)); Nix v. State, 747 So.2d 351, 356 (Ala.Crim.App.1999) (holding that a defendant’s claim that the State “did not sufficiently prove the prior convictions for purposes of enhancing his sentence” was “not preserved for ... review” because the defendant had not objected at trial). Because the failure to prove a prior conviction is not a jurisdictional issue, any argument that the State failed to prove Batey’s prior convictions is precluded by Rule 32.2 because Batey did not object to the introduction at trial of evidence of the convictions or raise that issue on direct appeal.

A challenge to an illegal sentence, however, is a jurisdictional matter that can be raised at any time. Ginn, 894 So.2d at 796. See also Ex parte Chambers, 522 So.2d 313 (Ala.1987) (holding that a defendant was not procedurally barred from arguing that a trial court applied an illegal sentence when it enhanced his sentence for a felony drug conviction under the HFOA even though the HFOA did not apply to drug offenses); Ex parte Brannon, supra (applying the holding in Chambers); City of Birmingham v. Perry, 41 Ala.App. 173, 175, 125 So.2d 279, 282 (1960) (holding that it was “apparent on the face of the proceedings” that a trial court had “exceeded its power and jurisdiction in assessing punishment at hard labor instead of imprisonment as provided by statute”); Rogers v. State, 728 So.2d 690, 691 (Ala.Crim.App.1998) (holding that the trial court erred by not considering the defendant’s argument that his sentence exceeded the statutory limit and stating: “an allegedly illegal sentence may be challenged at any time, because if the sentence is illegal, the sentence exceeds the jurisdiction of the trial court and is void”); J.N.J. v. State, 690 So.2d 519, 521 (Ala.Crim.App.1996) (“The 5-year probationary period included as part of the appellant’s sentence exceeds that allowed by the Youthful Offender Act.”); and Carter v. State, 853 So.2d 1040 (Ala.Crim.App.2002) (holding that the allegation that a trial court used a misdemean- or conviction instead of a felony conviction to enhance a sentence under the HFOA is a claim that the sentence is illegal and is therefore not procedurally barred).

In McClintock, the trial court had considered three prior felony convictions in enhancing McClintock’s sentence under the HFOA. However, one of McClintock’s prior convictions had been set aside. Therefore, the Court of Criminal Appeals held that McClintock was “entitled to be resentenced” using “only two prior felony convictions ... for enhancement purposes” instead of three. 773 So.2d at 1059. Otherwise, McClintock’s sentence would have exceeded the statutory limits set out in the HFOA.

In King, King argued that his sentence had been improperly enhanced on the basis of three prior felony convictions, when the State had been able to produce evidence of only two prior convictions. The Court of Criminal Appeals remanded the case to the trial court to determine whether King had been properly sentenced and directed the trial court to resentence him if the sentence were incorrect. In remanding the case for a factual finding regarding the number of prior felony convictions King had, the Court of Criminal Appeals cited McClintock, describing the holding in that case in the following parenthetical: “(claim of illegal sentence due to improper number of prior convictions considered for Habitual Felony Offender Act was not procedurally barred).” 871 So.2d at 106.

The defendant in McClintock had argued that his sentence exceeded the statutory maximum and was therefore illegal. It appears, however, that the defendant in King had argued, at least in part, that the State had failed to prove one of his prior convictions.

As we have noted previously, Alabama courts have held that the State’s failure to prove a prior conviction is not a jurisdictional matter, and therefore a claim to that effect in a Rule 32 petition is procedurally barred if it is not raised at trial or on appeal. An illegal sentence, on the other hand, is a jurisdictional matter that can be raised at any time. Although King appears to apply the “illegal sentence” exception to waiver of the preclusion of Rule 32.2 where the defendant argues, at least in part, the adequacy of the State’s proof, we do not understand the King court to be abandoning the well-settled rule that an argument as to the State’s proof of prior convictions is not jurisdictional. King is unclear as to the reason the Court of Criminal Appeals remanded the case to the trial court. The Court of Criminal Appeals stated that the trial court had “ordered King to amend his petition to include this ground, and that the trial court would then rule on the petition.... Accordingly, this case is remanded.... ” 871 So.2d at 105-06. Thus, the case may have been remanded in King to allow the trial court to rule on the issue presented to it, namely whether for HFOA purposes King had only two prior felony convictions.

Alabama courts have repeatedly held that an argument about the adequacy of the State’s evidence is not jurisdictional and is therefore barred by Rule 32.2. Thus, we hold that Batey’s argument concerning the “sufficiency ... of the State’s evidence” of his prior felony convictions for enhancement purposes is procedurally barred.

Batey argues that the State failed to prove one of his prior convictions. The trial court’s order and the Court of Criminal Appeals’ unpublished memorandum indicate that a prior conviction in the Franklin Circuit Court for second-degree sodomy was set aside and that Batey then pleaded guilty to first-degree sexual abuse. But Batey does not argue that his sentence is illegal because the prior felony conviction was vacated. In his brief to this Court, Batey quotes language concerning an illegal sentence and cites both McClintock and King as conflicting with the Court of Criminal Appeals’ unpublished memorandum, but he does not even mention in his petition or his brief that one of the prior felony convictions used to enhance his sentence under the HFOA has been set aside. Instead, he argues that he “only has one or possibly two” prior convictions instead of “three or four” and claims that he “is due the same treatment as King if he proves the State[’]s evidence actually proves he has less than three prior felony convictions.” Batey’s brief at 3 and 5. He explicitly states that he “is challenging the sufficiency of the contents or the substance of the State[’s] evidence that [is] suppose[d] to represent that he has four prior felony convictions.” Batey’s brief at 5. Under Alabama case-law, such a challenge to the sufficiency of the State’s evidence is procedurally barred because Batey did not raise it at trial or on appeal.

Because the issue Batey raises is not a jurisdictional issue, such as an illegal sentence, his argument is procedurally barred by Rule 32.2.

Conclusion

Because Batey’s argument that the State failed to prove his prior felony convictions for purposes of the HFOA does not raise a jurisdictional issue, and because the ground he now asserts was not raised at trial or on appeal, his argument is barred by Rule 32.2, Ala. R.Crim. P. Therefore, we affirm the Court of Criminal Appeals’ judgment affirming the trial court’s denial of his Rule 32 petition for postconviction relief.

AFFIRMED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . Batey's sentence as a habitual offender was enhanced by several prior convictions, one of which was a conviction in the Franklin Circuit Court for second-degree sodomy. In 2004, Batey filed a Rule 32 petition in the Franklin Circuit Court, challenging his guilty plea to second-degree sodomy, on which his conviction in the Franklin Circuit Court had been based. The Franklin Circuit Court granted Batey's Rule 32 petition on the ground that second-degree sodomy is not a lesser-included offense of first-degree sodomy — the offense with which Batey was charged in the indictment. Batey subsequently pleaded guilty in the Franklin Circuit Court to first-degree sexual abuse as a lesser-included offense of first-degree sodomy.

      . This Court recently narrowed the scope of the jurisdictional exception to Rule 32 in Ex parte Seymour, 946 So.2d 536 (Ala.2006), overruling a line of cases that had held that a defect in an indictment is a jurisdictional matter that is not procedurally barred. In Seymour, we held that a defective indictment does not deprive the trial court of jurisdiction to hear the case, and that, therefore, a claim that an indictment is defective is not exempt from the Rule 32 bar. An illegal sentence, however, differs from a defective indictment. As we explained in Seymour, "a trial court derives its jurisdiction from the Alabama Constitution and the Alabama Code.” 946 So.2d at 538. The HFOA, which is a provision of the Alabama Code, specifically vests a court with the authority to enhance a sentence; therefore, the court does not have the authority to impose a sentence that exceeds the scope of the HFOA. In doing so the court would be exceeding its jurisdiction.

      . Batey states the “issue presented for review” as "[w]hether or not the State’s alleged failure to prove three prior felony convictions, fer sentence enhancement purposes, is jurisdictional, and subject to the procedural bars of Rule 32...." Batey's brief at 1.


author: PITTMAN, Judge.

text:
    Dorothy B. BEDELL v. QUALITY CASUALTY INSURANCE COMPANY.
    2050516.
    Court of Civil Appeals of Alabama.
    Nov. 3, 2006.
    Chuck Hunter, Birmingham, for appellant.
    David L. Faulkner, Jr., and John W. Johnson II of Christian & Small, LLP, Birmingham, for appellee.
   PITTMAN, Judge.

Dorothy B. Bedell filed a civil action in the Jefferson Circuit Court, alleging that she had suffered injuries in an automobile collision as a result of the wrongful conduct of both the owner and the operator of a particular motor vehicle that was insured, subject to limitations and exceptions, by Quality Casualty Insurance Company (“QCIC”). Bedell alleged that the operator of the vehicle insured by QCIC had acted negligently or wantonly so as to cause the collision, that the owner of the vehicle had negligently entrusted the vehicle to the operator, and that QCIC had breached a contractual duty owed to her in denying coverage as to the collision based upon a named-operator exclusion. The complaint was served upon QCIC; however, the owner and the operator of the vehicle insured by QCIC were not served with process.

QCIC filed a motion to dismiss for failure to state a claim, alleging that Bedell’s action was a prohibited “direct action” against a liability insurer. Bedell filed a response in opposition to QCIC’s motion to dismiss and filed an affidavit indicating, among other things, that she had incurred medical bills in the amount of $2,520 as a result of the collision. On January 13, 2006, an order was entered granting QCIC’s motion; in that order, the trial court purported to “dismiss” QCIC “without prejudice.” However, because the trial court did not exclude Bedell’s affidavit, that order is properly deemed a summary judgment in favor of QCIC rather than a judgment of dismissal. See Rule 12(b), Ala. R. Civ. P., and Kaufmann & Assocs., Inc. v. Davis, 908 So.2d 246, 249-50 (Ala.Civ.App.2004). Moreover, although the trial court specified in that judgment that the cause would “remain pending as against all remaining [defendants” and then entered an order on February 27, 2006, purporting to dismiss all claims against the unserved owner and operator of the insured motor vehicle, the January 13, 2006, summary judgment constituted a final judgment in favor of QCIC pursuant to Rules 4(f) and 54(b), Ala. R. Civ. P., in that all claims against the only defendant that had properly been served had thereby been adjudicated. Bedell filed a notice of appeal on March 28, 2006.

Ex mero motu, we dismiss Bedell’s appeal on the authority of Williams v. Fox Television Stations of Birmingham, Inc., 959 So.2d 1120 (Ala.Civ.App.2006) (opinion on application for rehearing). In Williams, David Leon Williams named three defendants in his complaint, but he properly served only one of the defendants, Fox Television Stations of Birmingham, Inc. (“Fox6”). Fox6 sought a summary judgment in its favor, and the trial court entered a summary judgment in favor of Fox6 on October 4, 2005; however, the trial court then entered an order on October 19, 2005, purporting to dismiss all claims against the two unserved defendants. Although Williams filed a notice of appeal on November 30, 2005, 42 days after the entry of the October 19, 2005, order, we dismissed that appeal because he did not file a timely notice of appeal from the October 4, 2005, judgment in favor of Fox6, reasoning as follows:

“Because the only defendant who had been served at the time the judgment was entered was Fox6, the summary judgment in favor of Fox6 was a final judgment on October 4, 2005. Rule 4(f), Ala. R. Civ. P. (‘When there are multiple defendants and the summons ... and complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment.’); see Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n. 2 (Ala.1984) (denying, pursuant to Rule 4(f), a motion to dismiss an appeal on the basis that the judgment appealed from was not final when there remained unserved defendants below); Harris v. Preskitt, 911 So.2d 8, 14 (Ala.Civ.App.2005) (stating that an unserved defendant had never been a party to the action and that the judgment was final as to the served defendants without need for a judgment dismissing the unserved defendant). The October 19, 2005, order purporting to dismiss the claims against [the un-served defendants] was mere surplus-age. Dolgencorp, Inc. v. Pounders, 912 So.2d 523, 525 (Ala.Civ.App.2005) (stating that a trial court’s purported certification of a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., was surplus-age because the judgment was otherwise made final by entry of a judgment dismissing the plaintiffs remaining claims against the remaining defendant and, therefore, all claims against all parties had been adjudicated). A trial court cannot divest a final judgment of its finality by taking subsequent action on the case. Horn v. Dunn Bros., Inc., 262 Ala. 404, 408, 79 So.2d 11, 15 (1955); Nichols v. Ingram Plumbing, 710 So.2d 454, 456 (Ala.Civ.App.1998); and Mingledorff v. Falkville Downtown Redev. Auth., 641 So.2d 830, 832 (Ala.Civ.App.1994). Thus, the October 4, 2005, judgment was final at the time it was entered despite the fact that two unserved defendants remained.
“... Williams’s notice of appeal, which he filed on November 30, 2005, was ... untimely because it was filed more than 42 days after the entry of the summary judgment in favor of Fox6. Rule 4(a)(1), Ala. RApp. P. (providing that, in most cases, an appeal must be taken within 42 days of the judgment being appealed from). We therefore dismiss Williams’s appeal as untimely. See Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978) (A timely filing of the notice of appeal is jurisdictional, ... the sanction to be applied for an untimely filing being dismissal.’).”

Williams, 959 So.2d at 1122-23. In this case, Bedell did not file her notice of appeal until more than 42 days had elapsed from the date of the entry of the summary judgment in favor of QCIC; accordingly, we must dismiss the appeal. Rule 2(a)(1), Ala. RApp. P.

APPEAL DISMISSED.

CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, JJ., concur.