author: LEE, P.J.,

text:
    Lakenta Markee PEARSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00707-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.
    Carol L. White-Riehard, attorney for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Lakenta Pearson, Anthony Edwards, and Lavar Brady were indicted by the Washington County Grand Jury for armed robbery. Brady received a plea bargain for his testimony against Pearson and Edwards. Pearson and Edwards were jointly tried and, on January 26, 2005, found guilty by a Washington County Circuit Court jury of armed robbery. They were sentenced by the judge to ten years, with five years suspended, to be served in the custody of the Mississippi Department of Corrections. Pearson filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was denied by the trial court. Aggrieved, Pearson now appeals to this Court asserting only one issue: the trial court erred in failing to grant his motion for a new trial because the verdict was against the overwhelming weight of the evidence. Finding no merit, we affirm.

FACTS

¶ 2. On November 26, 2003, at approximately 1:35 a.m., three males wearing black ski masks entered and robbed Ting’s Grocery in Greenville, Mississippi. According to Cheryl Lim, the cashier at Ting’s during the robbery, the first man entered the store and told her to get on the ground; the second man came in, jumped over the counter, and began taking money from the cash register; and the third man stood by the door holding a rifle. Lim took the ski mask off the man taking money from the cash register, but was unable to see his face. Al Lim, Cheryl’s father and the owner of Ting’s, was in the back of the store during this time and did not witness the robbery. He testified that he ran out into the store’s parking lot after the robbers left and observed a white SUV with a spare tire on the back and no license plate driving away.

¶ 3. Greenville Police Investigator Eric Sutton arrived at Ting’s around 1:40 a.m. and, after viewing the surveillance video footage, was able to identify Anthony Edwards as the individual who jumped across the counter and had his mask removed during the robbery. Sutton subsequently left Ting’s with the intention of locating the white SUV seen fleeing the scene. At approximately 2:12 a.m. he spotted a vehicle matching the description provided by Mr. Lim and stopped it to conduct an investigative stop. The sole occupant of the vehicle was Lavar Brady, who was arrested and charged with armed robbery. Brady gave the police a voluntary statement identifying Anthony Edwards and Lakenta Pearson as accomplices to the robbery. Pearson and Brady have completely different versions of the events surrounding the armed robbery at Ting’s. Pearson denies any involvement in the crime, while Brady claims Pearson was the person wielding the rifle during the robbery.

Brady’s Version

¶ 4. Brady stated that he accompanied three friends to Pearson’s house between 12:30 and 1:00 a.m. Brady also stated that he had never been to Pearson’s house pri- or to that night. Brady, Pearson, and Edwards were in the front of the house talking, while Pearson’s sister, his girlfriend, Junior Clark, and two other people were playing cards in a room in the back of the house. Brady listened as Pearson and Edwards discussed a plan to rob Ting’s. Brady was ultimately convinced to participate in the robbery. Edwards took the tag off Brady’s SUV, Pearson picked up the- rifle from somewhere outside, and then Brady drove them to Ting’s. Brady entered the store first and told everybody to get down. Edwards came in next, jumped over the counter, and took $12 from the cash register before having his mask removed by the cashier. Pearson entered the store last and stood in the doorway with the rifle. Brady drove Pearson and Edwards back to Pearson’s house and dropped them off there. He did not pick up Clark, but drove back in the direction of Ting’s. He was pulled over by Officer Sutton shortly thereafter.

Pearson’s Version

¶ 5. Pearson denied involvement, stating that he was at his mother’s house with his girlfriend, Natasha Jackson, during the robbery. Pearson testified that he had played spades earlier in the evening with several friends at his house, -but that Brady, Edwards, and Clark never came over to his house that night, nor did he ever see them that night. Pearson testified that he was not friends with either Brady or Edwards and had never heard of Junior Clark. According to Pearson, he knew Brady from high school, where they were both seniors and had a few classes together, and he was friends with one of Brady’s cousin. Pearson was acquainted with Edwards, but had only “seen him around.” Pearson did not own or possess a firearm at the time of the armed robbery. Pearson had three witnesses testify on his behalf, all who stated that he did not rob Ting’s.

DISCUSSION OF ISSUES

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 6. Pearson’s only issue on appeal is that the guilty verdict was against the overwhelming weight of the evidence. However, Pearson also claims that the evidence was not “sufficient” and asks the court to “reverse and render this case because the verdict was against the overwhelming weight of the evidence and contrary” (emphasis added). He fails to understand the distinction between the legal sufficiency and the weight of the evidence. A motion for judgment notwithstanding the verdict tests the legal sufficiency of the evidence, while a motion for a new trial asks that the jury’s guilty verdict be vacated on grounds related to the weight of the evidence. May v. State, 460 So.2d 778, 780-81 (Miss.1984). “These motions are separate and distinct and perform differ-ént offices within our criminal procedural system, although ... the distinction is frequently blurred.” Id. at 780. “If the evidence is found to be legally insufficient, then discharge of the defendant is proper.” Collier v. State, 711 So.2d 458, 461 (Miss.1998). By contrast, if “the verdict is against the overwhelming weight of the evidence, then a new trial is proper.” Id.

¶ 7. By asking the Court to “reverse and render,” Pearson is implicitly disputing the legal sufficiency of the evidence, appealing the trial judge’s denial of his JNOV motion, and asking this Court to discharge him. By alleging that his guilty verdict is against the overwhelming weight of the evidence, Pearson is appealing the trial court’s denial of his motion for a new trial. Since Pearson does not argue that the trial court erred in denying his JNOV motion and fails to cite any authorities in support of that argument, this Court is under no obligation to consider this assignment of error. McClain v. State, 625 So.2d 774, 781 (Miss.1993) (“[Fjailure to cite any authority may be treated as a procedural bar.”). Therefore, this opinion will only address Pearson’s assignment of error relating to the trial court’s denial of his motion for a new trial.

¶ 8. In determining whether a jury verdict is against the overwhelming weight of the evidence the court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). The court will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Benson v. State, 551 So.2d 188, 193 (Miss.1989) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). “Factual disputes are properly resolved by the jury and do not mandate a new trial.” Benson, 551 So.2d at 193 (citing Temple v. State, 498 So.2d 379, 382 (Miss.1986)).

¶ 9. Pearson challenges the weight of the evidence by arguing that the jury’s guilty verdict was based solely on the uncorroborated testimony of an accomplice, Lavar Brady, and that Brady’s testimony was unreasonable, self-contradictory and substantially impeached. The supreme court has held that the testimony of an accomplice must be viewed “with great caution and suspicion. Where it is uncorroborated it must also be reasonable and not improbable, self-contradictory or substantially impeached.” Jones v. State, 368 So.2d 1265, 1267 (Miss.1979) (citations omitted). See also Blocker v. State, 809 So.2d 640, 645(¶ 17) (Miss.2002). “If the uncorroborated accomplice testimony does not suffer from these infirmities, such testimony may be found to adequately support a conviction.” Johns v. State, 592 So.2d 86, 88 (Miss.1991).

¶ 10. Pearson’s argument lacks merit because Brady’s testimony was partially corroborated, and only slight corroboration of an accomplice’s testimony is required to sustain a conviction. Feranda v. State, 267 So.2d 305, 307 (Miss.1972). Brady testified that Anthony Edwards participated in the robbery and was the one who jumped over the counter and removed the money from the cash register. This testimony was corroborated by Investigator Eric Sutton, who testified that he made a positive identification from Ting’s surveillance video of Anthony Edwards as the individual who jumped across the counter and had his mask removed. Brady’s description of the robbery also corresponded exactly with Cheryl Lim’s description. Additionally, Brady’s testimony was corroborated by the fact that he was able to identify some of the people playing cards at Pearson’s house and by the fact that he knew they were playing spades.

¶ 11. The supreme court has stated that “jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness.” Groseclose, 440 So.2d at 300. The credibility and reasonableness of Brady’s testimony was for the jury to determine. Young v. State, 425 So.2d 1022, 1024 (Miss.1983). The jury found Brady’s testimony credible and reasonable, rather than the testimony of Pearson and his alibi witnesses.

¶ 12. The jury was made aware of the plea bargain Brady received in exchange for his testimony against Pearson and Edwards, and the trial court granted the following instruction concerning accomplice testimony:

A person criminally involved with others in a crime is an accomplice. The testimony of an accomplice is to be considered and weighed with great care and caution and suspicion. You may give it such weight and credit as you deem it is entitled.

¶ 13. Considering the court’s precautionary instruction and accepting Brady’s testimony as true, the verdict of the jury was not against the overwhelming weight of the evidence, and the trial court did not abuse its discretion in refusing to grant a new trial.

¶ 14. Finding the assignment of error to be without merit, we affirm.

¶ 15. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS TO SERVE FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION AND PAY $250 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    GULFPORT-BILOXI REGIONAL AIRPORT AUTHORITY, Appellant v. MONTCLAIR TRAVEL AGENCY, INC. d/b/a Montclair Travel and Peter A. Zimmermann, Individually and as Agent of Montclair Travel, Appellees.
    No. 2005-CA-00904-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      Cy Faneca, Halil Suleyman Ozerden, Gulfport, attorneys for appellant.
    Montclair Travel Agency, Inc. (Pro Se), Peter A. Zimmermann (Pro Se), attorney for appellees.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Gulfport-Biloxi Regional Airport Authority (GBRAA) filed suit against the Montclair Travel Agency, Inc. and its agent, Peter A. Zimmermann (collectively referred to as “Montclair”), in the Circuit Court of Harrison County. The circuit court granted Montclair’s motion for directed verdict. Aggrieved by this decision, GBRAA appeals. Finding error, we reverse and remand.

FACTS

¶ 2. In 1999, Ken Spirito, the Assistant Executive Director of GBRAA, saw an advertisement in the newspaper about a Concorde flight out of the Mobile Regional Airport. After conducting some research, Spirito contacted Montclair by telephone and spoke with Zimmermann. Spirito described the “diverse economy” of the area to Zimmermann, and he expressed his interest in having the Concorde fly out of Gulfport-Biloxi International Airport (GBIA); Zimmermann stated that he would be in touch. On November 29, 2001, Zimmermann sent a letter to GBRAA stating that, “during the past 14 years, [Mont-clair] has operated a number of ten to fifteen day trips to London and/or Paris featuring the Concorde and Queen Elizabeth 2.” Zimmermann enclosed a copy of a recent brochure with the letter. He further stated: “we are interested in the possibility of operating a one-time British Airways or Air France Concorde flight from London to Gulfport on September 18, 2002.” Zimmermann requested that GBRAA reply with a letter or facsimile if it was interested and approved of the proposed flight. Additionally, Zimmermann explained that there must be “a minimum number of participants for the Concorde to fly into Gulfport.” In closing, Zimmer-mann stated that Montclair would “act as the intermediary between [the GBRAA], British Airways or Air France.”

¶ 3. On December 7, 2001, Spirito sent a letter to Zimmermann “welcoming the opportunity to host the Concorde visit to the Gulfport-Biloxi International Airport.” Spirito requested that Zimmermann contact him at his “earliest convenience to coordinate the sales effort and marketing of this once in a lifetime opportunity.” Spirito testified that, during a conversation with Spirito to follow-up the December 7 letter, Zimmermann stated that ninety-five tickets needed to be sold in order for the Concorde to fly out of GBIA. Spirito further testified that Zimmermann mentioned no other conditions, but that he advised him that Montclair would contact the GBRAA in April of 2002 to begin coordinating the trip.

¶ 4. Regarding the April 2002 communications, Spirito testified that Zimmermann requested that he “rally the local travel agents in the area so that he can distribute his brochure to and keep contact with the travel agents in order to sell” the trip. Spirito further testified that he explained to Zimmermann some of the marketing efforts being made by the GBRAA in order to sell ninety-five seats on the Concorde. Those marketing efforts included newspaper advertisements in various areas, including Baton Rouge, Slidell, New Orleans, Jackson, Hattiesburg, Mobile, Pensacola, and the Mississippi Gulf Coast. According to Spirito, from April 2002 until he learned that the Concorde would not fly out of Gulfport, he had weekly conversations with Zimmermann during which he updated Zimmermann on GBRAA’s advertising campaign. Regarding GBRAA’s willingness to incur advertising expenses, Spirito testified that having the Concorde fly out of GBIA was an economic development and public relations venture. He also intended for the Concorde flight to be a part of GBRAA’s twenty-fifth anniversary celebration, which it was celebrating in the fall of 2002. Spirito testified that he informed Zimmermann that GBRAA expected to benefit from the positive media attention that would be generated from a Concorde flight out of GBIA.

¶ 5. In August of 2002, Spirito was informed by Zimmermann that ninety-five seats on the Concorde had been sold. On August 5, 2002, Zimmermann sent a letter to Spirito expressing Montclair’s satisfaction with the progress of the Gulfport-Biloxi Concorde/Queen Elizabeth 2 promotion, thanking Spirito for his cooperation, and repeating Montclair’s invitation to Spirito and his wife to join the trip as Montclair’s guests. Zimmermann also stated that “we hope we will receive enough upper-end bookings in the time remaining.”

¶ 6. Spirito testified that, after receiving the August 5 letter, he contacted Zimmermann for an explanation of the never-before-mentioned “upper-end” booking requirement. According to Spirito, Zimmermann explained that the Concorde could still fly out of GBIA, but that a certain amount of upper-end bookings on the Queen Elizabeth 2 must be purchased in order for it to do so. Spirito testified that, when asked, Zimmermann could not tell him how many upper-end bookings were needed. The conversation with Zimmermann prompted Spirito to conduct additional investigation.

¶ 7. Spirito contacted British Airways and Air France, and he discovered that Montclair did not have a contract with either company. He also obtained a business report on Montclair from the Better Business Bureau. The report stated that the Better Business Bureau had received several complaints against Montclair regarding overseas travel packages. Some of the complainants alleged that they felt misled by Montclair’s advertising regarding the Concorde when they discovered that the Concorde had been grounded. When asked by the Better Business Bureau whether Montclair informed its customers that the Concorde had been grounded, Montclair responded that “[o]ur sales staff is instructed to advise clients, if asked, that the Concorde is not flying.”

¶ 8. After conducting his investigation, Spirito concluded that the Concorde would not be available for charter anywhere inside the United States, no matter how many seats were sold. Spirito testified that, since a Concorde’s crash in 2000, the Concorde’s only United States departure was from JFK International' Airport in New York City with service to London, England or Paris, France. When Spirito contacted Zimmermann to inform him of his conclusions, Zimmermann stated that he was unaware that the Concorde would not have been available. On August 28, 2002, Frank Genzer, the Chairman of GBRAA, sent a letter to Zimmermann stating that “[i]t has come to my attention that Montclair Travel does not have a contract with either Air France or British Airways to conduct chartered operations with the Concorde.” Genzer requested that Montclair verify in writing its intentions to accommodate the customers who had paid to fly on the Gulfport-Biloxi Concorde. Genzer also stated that $24,000 had been spent on advertising for the Gulf-port-Biloxi Concorde.

¶ 9. Even though the Concorde was not available for a flight out of GBIA, ninety-three of the ninety-five ticket holders ultimately flew on the Concorde to Europe. The passengers were required to fly on a regular, domestic commercial airline from GBIA to New York City, where they boarded the Concorde. A single Concorde aircraft was unavailable to accommodate all of the passengers on the trip; thus, some passengers flew directly into London, while others flew into Paris, and then took another flight to London.

¶ 10. Spirito testified that GBRAA incurred a total of $30,932.45 in advertising expenses for the Concorde promotion. He further testified that GBRAA would not have undertaken any of those expenses had Montclair disclosed that it did not have a contract with British Airways or Air France. According to Spirito, GBRAA also would not have undertaken any of the advertising expenses had Montclair disclosed that neither British Airways nor Air France had flown the Concorde into any United States city other than New York since July of 2000. Zimmermann testified that Montclair spent a total of $647,931 for promotion of the Gulfport-Biloxi Concorde connection. ' He further testified that Montclair’s total gross receipts amounted to $807,143. Accordingly, Montclair made a $159, 212 profit from the promotion.

¶ 11. On December 23, 2002, GBRAA filed suit against Montclair and Zimmer-mann, individually and as an agent of Montclair. GBRAA alleged that Montclair was liable for damages on numerous grounds, including: breach of implied or quasi-contract, quantum meruit, unjust enrichment, breach of the duty of good faith and fair dealing, grossly negligent and/or intentional misrepresentations and/or fraud in the inducement, equitable and/or promissory estoppel, and breach of fiduciary duties. The case was tried without a jury by the Harrison County Circuit Court on October 18, 2004. At the close of GBRAA’s case-in-chief, Montclair moved for a directed verdict. The circuit court granted Montclair’s motion. In his ruling from the bench, the judge found that “there are no physical documents or emails which memorialize [an] agreement or impose a duty upon Montclair for the Concorde to physically appear in Gulfport.” The judge also found, although the Concorde was never going to be available, GBRAA failed to prove that Montclair and/or Zimmermann had personal knowledge of that fact. Furthermore, the judge found that the practices of Montclair “could possibly be perceived by the ordinary citizen in any community, much less south Mississippi, as misleading, dubious, untrue, and fraudulent.” Nonetheless, the judge concluded that those practices imposed no legal duty on Montclair. A judgment consistent with this ruling was entered on November 23, 2004. On April 15, 2005, the circuit court denied GBRAA’s motion for a new trial.

¶ 12. From that decision, GBRAA appeals. GBRAA raises the following issues for this Court’s review:

I. Whether the lower court erred in granting Montclair’s motion for directed verdict following the close of GBRAA’s case-in-chief, and Montclair should have been required to put on a defense to the case, since based on the unrebutted evidence presented during GBRAA’s case-in-chief, GBRAA has shown its right to relief by proving the essential elements of each of its claims.
II. Whether the lower court erred in denying GBRAA’s motion for a new trial since, based on the unrebutted evidence in the record, the failure to grant GBRAA a new trial will result in a miscarriage of justice.

STANDARD OF REVIEW

¶ 13. We must first note that, although the circuit court granted Mont-clair’s motion for directed verdict, the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal, pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure. Rule 41(b) provides in relevant part that “[a]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant ... may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” The standard of review for a motion for involuntary dismissal is different than that for a motion for directed verdict. Stewart v. Merchants Nat’l Bank, 700 So.2d 255, 259 (Miss.1997) (citing Century 21 Deep South Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992)). A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant. Id. (emphasis added). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” Id. In reviewing a trial court’s grant or denial of a Rule 41(b) motion for involuntary dismissal, we apply the substantial evidence/manifest error standards. Id.

ISSUES AND ANALYSIS

I. Whether the lower court erred in granting Montclair’s motion for directed verdict following the close of GBRAA’s case-in-chief, and Mont-clair should have been required to put on a defense to the case, since based on the unrebutted evidence presented during GBRAA’s case-in-chief, GBRAA has shown its right to relief by proving the essential elements of each of its claims.

II. Whether the lower court erred in denying GBRAA’s motion for a new trial since, based on the unrebutted evidence in the record, the failure to grant GBRAA a new trial will result in a miscarriage of justice.

¶ 14. Before addressing the issues presented by GBRAA, we must note that Montclair has failed to file a brief with this Court. We have long held that an appellee’s failure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error. Varvaris v. Perreault, 813 So.2d 750, 752(¶ 5) (Miss.Ct.App.2001) (citing Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). “Automatic reversal is not required where appellee fails to file a brief.” Id. (citing N.E. & R. v. L. H., 761 So.2d 956(¶ 14) (Miss.Ct.App.2000)). In order to merit reversal, “the appellant’s argument ‘should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the' case should be affirmed.’ ” Id. (citing Selman v. Selman, 722 So.2d 547, 551(¶ 13) (Miss.1998)).

¶ 15. GBRAA asserts that it established a prima facie case of fraudulent/intentional misrepresentations, grossly' negligent/negligent misrepresentations, quasi-contract/quantum meruit/unjust enrichment, promissory estoppel, and equitable estop-pel. According to GBRAA the record shows that Montclair knew or should have known that the Concorde would not be available for a GBIA departure and that Montclair misrepresented that fact. GBRAA further argues that Montclair misrepresented that it was acting as the agent of British Airways and Air France. Moreover, GBRAA asserts that the record is void of any evidence to rebut the conclusion that Montclair was at least negligent, if not grossly negligent, in making the representations that it did to GBRAA.

¶ 16. We find that the record unequivocally shows that Montclair did hold, itself out as an agent of British Airways and Air France, as evidenced by Mont-clair’s brochure for the promotion. The brochure specifically stated that “Mont-clair Travel is acting as agent for British Airways, P.L.C. of London, England; Air France of Paris, France ... the principals in the operation of the trip.” According to Spirito, GBRAA would not have undertaken any of the advertising expenses to promote the trip had Montclair revealed that it did not have a contract with British Airways or Air France to sell seats on a Concorde flight from GBIA.

¶ 17. Regarding GBRAA’s assertion that Montclair knew or should have known about the Concorde’s unavailability, we find that the record supports this assertion. During examination by the court, Zimmermann conceded that he was in a special position to know whether the Concorde was available. Furthermore, although Zimmermann testified that Mont-clair had “been following the Concorde being put back into service very closely,” he also testified that he did not bother to find out whether the Concorde was resuming flights into cities other than New York City. Particularly relevant to this issue is the circuit court’s finding that the practices of Montclair “could possibly be perceived by the ordinary citizen in any community, much less south Mississippi, as misleading, dubious, untrue, and fraudulent.”

¶ 18. After conducting a thorough review of the record, and after carefully considering GBRAA’s brief and Mont-clair’s lack thereof, we cannot say with confidence that the trial court did not err. Consequently, we find that the trial court committed manifest error in granting the motion for directed verdict, which we view under the standard of review for a motion for involuntary dismissal. Therefore, we reverse and remand this case for a new trial.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ„ CONCUR.

      . The actual date scheduled for the fourteen-day trip was set for October 18, 2002.

      . The total capacity of the Concorde was one-hundred passengers.

      . Zimmermann testified that, before sending the November 2001 letter to GBRAA, he was aware of complaints against Montclair regarding the advertising of Concorde promotions and the unavailability of the Concorde.

      . Zimmermann testified that he was aware of one exception: "on November the 7, of 2001 there was a Concorde charter from London to Washington, D.C. which carried Tony Blair.” Zimmermann conceded that Montclair was not involved in the Tony Blair trip. He further admitted that he did not bother to find out whether the Concorde was resuming flights into cities other than New York City.

      .During examination by the court, Zimmer-mann conceded that he was in a special position to know whether the Concorde would fly out of a city in the United States other than New York City. Nonetheless, he testified that he did not know of the Concorde's unavailability.


author: ROBERTS, J.,

text:
    Robin D. BARNES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01684-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      Robin D. Barnes (pro se), attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.-
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Robin Deshonda Barnes was indicted of burglary of a dwelling on March 9, 2005, and subsequently plead guilty to same. His court appointed attorney, Thomas Welch, failed to appear at his sentencing hearing and the judge replaced Welch with an unsuspecting alternative, William Goodman. In a sentencing order, filed on June 17, 2005, the Circuit Court of Pike County sentenced Barnes, in pertinent part, to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), further ordering that Barnes serve the first eight years of the sentence with the MDOC and the remaining seventeen years on post-release supervision. The sentencing order went on to order the first five years of the post-release supervision be served on a reporting basis under the supervision of the MDOC and remaining twelve years be served on a non-reporting basis. This sentence was to run consecutively with a sentence Barnes was already serving.

¶ 2. Barnes then filed his motion for change of plea on July 18, 2005, and stated therein that he had been sentenced to twenty-five years in prison and requested that his guilty plea be changed, arguing that his guilty plea was not voluntarily given and that he received ineffective of counsel. In an order denying Barnes’s motion, the Circuit Court of Pike County explained that Barnes was not sentenced to twenty-five years in prison, but listed the specifics of his sentence, as detailed above. The order further stated that Barnes’s other allegations were without merit as Barnes showed no proof to support his allegations. Barnes now appeals and asserts the lower court erred by: (1) not abiding by the recommended sentence contained in Barnes’ plea agreement and (2) not holding an evidentiary hearing to determine what the proper sentence should have been, in accordance with his plea agreement.

¶ 3. As stated supra, Barnes filed a motion for change of plea, but this Court will treat his attempt to change his plea as a request for post-conviction collateral relief. Absent a statute to the contrary, a circuit court has no power to alter or vacate its judgment once the term in which the case was terminated has ended. Moody v. State, 915 So.2d 1130(¶ 4) (Miss.Ct.App.2005) (citing Presley v. State, 792 So.2d 950(¶ 18) (Miss.2001)). Barnes plea hearing was held June 2, 2005, and his sentencing hearing was held June 17, 2005. The term of the Circuit Court of Pike County, relevant to Barnes’s motion, was the first Monday in June 2005, which turned out to be June 6, for a term of two weeks, or through June 17. Barnes filed his motion for change of plea on July 18, 2005, well past the term of court in which he pled guilty or was sentenced. Therefore, the trial court had no authority to grant Barnes’s motion, and said motion must reviewed in accordance with Mississippi Code Annotated § 99-39-1, et seq., (Rev.2000). Additionally, as evidence of Barnes’s intent that said motion be viewed as a request for post-conviction collateral relief, in his motion for change of plea he stated, “The petitioner is without competent [sic] legal representation but seeks post conviction relief....”

STANDARD OF REVIEW

¶4. Our appropriate standard of review has been oft stated. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Miss, v. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

ISSUES AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING BARNES’ MOTION FOR POST-CONVICTION RELIEF.

¶ 5. “It is elementary that a party seeking reversal of the judgment of a trial court must present this Court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved.” Hansen v. State, 592 So.2d 114, 127 (Miss.1991). An order denying post-conviction relief is presumed correct. Nelson v. State, 919 So.2d 124, 126(¶ 6) (Miss.Ct.App.2005) (citing Branch v. State, 347 So.2d 957 (Miss.1977)). Mississippi Code Annotated § 99-39-9 (Rev.2005) states, in pertinent part, that:

(1) A motion under this chapter shall name the state of Mississippi as respondent and shall contain all of the following:
(d) A separate statement of the specific facts which are within the personal knowledge of the prisoner and which shall be sworn to by the prisoner.
(e).... Affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion....

¶ 6. Barnes failed to provide this Court with affidavits of those who would testify to the ascertations he made within his brief on appeal. Additionally, he failed to provide this Court with his own affidavit, as required by statute. This Court can only consider those facts that are found in the record, Colenburg v. State, 735 So.2d 1099(¶ 6) (Miss.Ct.App.1999), and cannot rely on mere allegations contained within a petitioner’s brief. Henderson v. State, 783 So.2d 769(¶ 4) (Miss.Ct.App.2001). There is no indication within the record Barnes provided this Court that the an error was committed when the lower court dismissed his motion for change of plea.

¶ 7. Notwithstanding this deficiency, the record was amended with transcripts of Barnes’s plea hearing and sentencing hearing and a review of those proceedings revealed that Barnes received the benefit of his alleged bargain. Though no plea agreement was provided by Barnes, or even listed as have ever being filed on the general docket, if we take Barnes at his word that a plea agreement was entered between himself and the prosecution in which the prosecution agreed that in exchange for his plea of guilty they would recommend a four year prison sentence, Barnes’s appeal must still be dismissed. At Barnes’s plea hearing, after Barnes assured the judge that he was entering his plea of guilty freely and voluntarily, in the absence of any promises or threats, and with full knowledge of those rights and privileges he was waiving, the prosecution did make a recommendation. The State recommended, “twenty-five years, twenty-one years suspended for five years post-release supervision.... ” Additionally, the State agreed to remand Cause No. 05-183-PKS, another pending charge against Barnes, to the file in exchange for his plea. As is clear, the State recommended Barnes spend four years as a guest of the MDOC, but, in sentencing Barnes, the judge was not bound by the State’s recommendation. Christie v. State, 915 So.2d 1073(¶ 7) (Miss.Ct.App.2005). At sentencing, the trial judge reviewed the report of Barnes’s pre-sentence investigation that revealed that he had several felony charges, two prior felony convictions, had his probation revoked twice, and several misdemeanors under his belt. The assistant district attorney representing the State admitted ignorance of Barnes’s criminal convictions at the time of the recommendation and stated that the court “just made us aware” of the convictions. Given the judge’s discretion in sentencing, and the realization by the trial court of Barnes’s convictions, we find that this issue is without merit.

II. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING.

¶8. Pursuant to Mississippi Code Annotated § 99-39-19(1) (Rev.2000), a prisoner is entitled to an evidentiary hearing on his post-conviction motion if, after a review of the record, a judge determines it is required. Mere allegations are insufficient to require the court to hold an evi-dentiary hearing. Campbell v. State, 611 So.2d 209, 210 (Miss.1992). A review of the record, as discussed above, shows that no evidentiary hearing was required. As such, we affirm the lower court’s judgment denying Barnes post-conviction relief.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DISMISSING BARNES’S MOTION FOR POST-CONVICTION RELIEF AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: CHANDLER, J.,

text:
    Michael DELOACH a/k/a Michael De'Loach, a/k/a Michael Tyrone Deloach, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01067-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.
    Michael Deloach (Pro Se), attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On March 17, 2005, Michael Deloach filed a motion for post-conviction relief (PCR) pertaining to his November 4, 2004 conviction of the sale of cocaine. On May 5, 2005, the Circuit Court of Oktibbeha County dismissed Deloach’s PCR. Deloach appeals. Deloach alleges that he was provided ineffective assistance of counsel and the indictment was invalid.

PROCEDURAL HISTORY

¶ 2. Deloach was charged with two counts of the sale of cocaine and two counts of the sale of marijuana. On November 4, 2004, Deloach pled guilty to the sale of cocaine, Count 1 of the indictment. Deloach was sentenced to sixteen years in the custody of the Mississippi Department of Corrections with five years post-release supervision. On March 15, 2005, Deloach filed his PCR alleging ineffective assistance of counsel and an invalid indictment. The circuit court dismissed the PCR, holding the motion was facially without merit. Deloach assigns the following errors on appeal:

I. WHETHER DELOACH WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL

II. WHETHER THE INDICTMENT WAS INVALID

¶ 3. We affirm. We find that Deloach’s PCR was properly dismissed.

STANDARD OF REVIEW

¶ 4. According to Mississippi Code Annotated section 99-39-11(2) (Rev.2000), a circuit court may summarily dismiss a PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Pursuant to section 99-39-11(2), after subjecting the PCR to de novo review, this Court must affirm the circuit court’s dismissal of the PCR if the movant has failed to present a claim which substantially shows that he was denied a state or federal right. Myers v. State, 583 So.2d 174, 176 (Miss.1991).

LAW AND ANALYSIS

I. WHETHER DELOACH WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 5. The standard of review for claims of ineffective assistance of counsel is the two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that (1) counsel’s performance was deficient and (2) that the deficiency prejudiced the defense. The burden is on Deloach to prove both prongs. Edwards v. State, 615 So.2d 590, 596 (Miss.1993). For Deloach to challenge his guilty plea on the ground of ineffective assistance of counsel, he must show that counsel’s errors proximately resulted in the guilty plea and, but for counsel’s errors, he would not have entered the guilty plea. Reynolds v. State, 521 So.2d 914, 918 (Miss.1988). This Court must look at the overall performance of counsel when determining the adequacy of counsel’s performance. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

¶ 6. Deloach claims that he received ineffective .assistance of counsel because counsel did not request discovery, or investigate the background of the police informant. Deloach argues that, had counsel performed adequately, counsel would have discovered that the informant had a criminal record. The lower court found this issue to be without merit because De-loach’s criminal court file contained counsel’s motion for discovery and because, had Deloach gone to trial, the informant’s background would have been relevant only for impeachment purposes. In his petition to enter a guilty plea, Deloach swore that his attorney had counseled him and advised him about the nature of the charge and all possible defenses. In his PCR, Deloach made no showing beyond mere allegations that the informant had a criminal record which counsel failed to discover. Deloach has failed to show that he would not have pled guilty but for a failure by counsel to discover the informant’s criminal record. Therefore, he has not demonstrated that counsel’s overall performance was deficient and that the deficiency proximately resulted in the guilty plea. This issue is without merit.

II. WHETHER THE INDICTMENT WAS INVALID.

¶ 7. Deloach claims that the indictment was invalid because it failed to state an essential element of the crime, specifically, the quantity of cocaine sold by Deloach. Deloach correctly argues that his guilty plea did not waive any failure of the indictment to charge an essential element of the offense. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). However, Deloach’s indictment charged him with the essential elements of sale of cocaine. The statute proscribing sale of cocaine, under which Deloach was indicted, is Mississippi Code Annotated section 41-29-139(a) (Rev.2005). Section 41-29-139(a) does not specify a certain quantity or impose different penalties based upon the quantity of cocaine sold. Accordingly, this Court has held that the quantity of cocaine sold is not an essential element of the crime of sale of cocaine under section 41-29-139(a). Carroll v. State, 755 So.2d 483, 487(¶ 12) (Miss.Ct.App.1999). Deloach was properly charged with the essential elements of the crime.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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


author: WOODALL, Justice. NABERS, Chief Justice BOLIN, Justice

text:
    STATE of Alabama v. REDTOP MARKET, INC.
    1041740.
    Supreme Court of Alabama.
    March 10, 2006.
    Troy King, atty. gen., arid Kevin New-som, deputy atty. gen., and Alyce S. Robertson, asst. atty. gen., for appellant.
    Jon B. Terry of Bains & Terry, Bessemer, for appellee.
   WOODALL, Justice.

The State appeals from a judgment for Redtop Market, Inc. (“Redtop”), in the declaratory-judgment action filed by Red-top seeking a determination regarding the legality of certain video-gaming machines Redtop desired to place on its premises. The State’s appeal, however, was untimely filed; therefore, the appeal must be dismissed.

Neither the State nor. Redtop mentions the untimeliness of the appeal. However, their failure to raise it as an issue is immaterial.

“Even if [one of the appellees had] not pointed out the untimeliness of the appeal of [a] ruling, ‘[i]t is the duty of this Court to take notice of the filing date of an appeal and, if finding the appeal to be untimely, to dismiss it ex mero motu. Stewart v. Younger, 375 So.2d 428 (Ala.1979).’ Lewis v. State, 463 So.2d 154, 155 (Ala.1985).”

Bagley v. Mazda Motor Corp., 864 So.2d 301, 317 (Ala.2003).

The trial court heard the declaratory-judgment action on January 14, 2004. On February 3, 2004, the trial court entered a final judgment in favor of Redtop, finding that the operation of the video-gaming machines in question would not violate Alabama law. On February 27, the State filed a timely motion for a new trial. See Ala. R. Civ. P. 59(b).

The trial court scheduled a hearing on the motion for a- new trial for May 14, 2004. However, on May 12, the trial court entered the following order: “Case is passed by agreement of the parties. Motion for new trial or rehearing is reset to August 11, 2004 at 8:15 a.m.” On May 27, 2004, the 90-day period during which a postjudgment motion may remain pending expired pursuant to Rule 59.1, Ala. R. Civ. P. The hearing on the motion for a new trial was postponed eight more times and was ultimately held on April 20, 2005. On July 5, 2005, the trial court denied the motion. On August 11, the State filed its notice of appeal.

The dispositive issue is whether the State’s motion for a new trial was denied on May 27, 2004, by operation of law pursuant to Rule 59.1. Rule 59.1 states, in pertinent part:

“No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of the parties, which consent shall appear of record.... A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

Thus, unless the State and Redtop expressly consented to extend the time within which the trial court could rule on the State’s motion for a new trial beyond the 90-day period allowed by Rule 59.1 and that consent appears of record, then that motion was denied by operation of law on May 27, and the 42-day period provided by Rule 4, Ala. R.App. P., for filing an appeal from the declaratory judgment after the postjudgment motion was denied expired on July 8, 2004, more than a year before the State filed its notice of appeal. If the declaratory judgment was final and not subject to an appeal when the trial court entered its order of July 5, 2005, then the trial court did not have jurisdiction to enter that order purporting to deny the motion. “ ‘If the trial court allows a post-trial motion to remain pending, and not ruled upon, for 90 days, then the motion is denied by operation of law and the trial court loses its jurisdiction to further entertain that motion.’ ” Ex parte Chamblee, 899 So.2d 244, 247 (Ala.2004)(quoting Ex parte Johnson Land Co., 561 So.2d 506, 508 (Ala.1990)).

Before the expiration of the 90-day period, the trial court, on May 12, entered an order indicating that the parties had agreed to postpone the hearing on the motion for a new trial until August 11, 2004. However, there is no indication in that order, or anywhere else in the record, of the parties’ express consent to extend the pendency of the motion for a new trial beyond the 90-day period.

“Since 1979, the law has been well settled that an agreement to continue a hearing is not the same as an agreement to extend the time during which a post-judgment motion can remain pending. In Ex parte Bodenhamer, 904 So.2d 294, 295 (Ala.2004), this Court reiterated:
“ ‘In Harrison v. Alabama Power Co., 371 So.2d 19 (Ala.1979), this Court addressed the same issue presented here: whether express consent to extend the time allowed under Rule 59.1 for a hearing on a postjudgment motion, without express consent also to extend the time for ruling on that motion, extends the time for ruling on the postjudgment motion. In Harrison, we held that it did not. As we stated, “consent or assent to a continuance of a hearing does not satisfy the requirement that the record show the parties’ express consent to an extension of the 90-day period.” Harrison, 371 So.2d at 20-21. (Emphasis omitted.)
“ ‘In accordance with Harrison, we hold that consent to extend the time for a hearing on a postjudgment motion does not equate to consent to extend the pendency of the post-judgment motion beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P.’ ”

Ex parte Bolen, 915 So.2d 565, 569 (Ala.2005).

Because the State’s motion for a new trial was denied by operation of law on May 27, 2004, the State’s notice of appeal, filed on August 11, 2005, is untimely. Therefore, this appeal must be dismissed, precluding this Court’s review of its merits.

APPEAL DISMISSED.

SEE, LYONS, and HARWOOD, JJ., concur.

NABERS, C.J., and STUART, SMITH and BOLIN, JJ., concur specially.

PARKER, J., recuses himself.

NABERS, Chief Justice

(concurring specially).

I concur in the opinion of the Court; I also join Justice Bolin’s special concurrence.

The substantive issues presented by this appeal are of paramount concern to the people of Alabama. I find it hard to fathom that in a case of such importance, the State’s motion for a new trial lingered below for over a year before a hearing was held on its merits. That, however, is what happened, and, unfortunately, as a result of the failure of the State to timely file this appeal, the critical issues presented here cannot now be reviewed.

In dismissing the State’s appeal, we rely on a distinction between an agreement of the parties to continue a hearing on a postjudgment motion and an agreement of the parties to extend the pendency of that motion. Since this Court decided Harrison v. Alabama Power Co., 371 So.2d 19 (Ala.1979), we have held that only the latter — the express consent of the parties appearing of record to allow the motion to remain pending beyond the 90-day period- — is sufficient to satisfy the requirements of Rule 59.1, Ala. R. Civ. P. Justice Maddox wrote persuasively in his dissent in Harrison when he concluded that our interpretation of Rule 59.1 is “too technical, and, therefore, unjust.” 371 So.2d at 21 (Maddox, J., dissenting). I agree with Justice Bolin that we should reconsider this troubled area of our civil procedure.

Regrettably, however, this is not the case in which to do so. Even if we were inclined to overrule Harrison and its progeny and conclude that an express agreement of the parties to continue the hearing on a postjudgment motion is sufficient to satisfy the provision of Rule 59.1 allowing an extension of the 90-day period upon the express consent of the parties, the result in this case would not change. Assuming each of the many continuances in this case satisfied this alternative approach to Rule 59.1, the last date to which the parties agreed to continue the hearing was June 3, 2005, and the State’s appeal on August 11, 2005, would nevertheless be untimely. We have no choice, therefore, but to dismiss this appeal.

Although our inability to review the decision below is lamentable, I agree with the other members of the Court that our hands are tied.

STUART, J., concurs.

BOLIN, Justice

(concurring specially).

Although I agree with the majority that, based on Rule 59.1, Ala. R. Civ. P., and relevant caselaw for the past 27 years, the State’s appeal was untimely and should be dismissed, I write specially concerning two troubling aspects of this case.

The first aspect has to do with our strict interpretation of Rule 59.1, Ala. R. Civ. P. In a dissent in Harrison v. Alabama Power Co., 371 So.2d 19 (Ala.1979), a case holding that a consent to a continuance of a hearing does not satisfy the requirement that the record show the parties’ express consent to the extension of the 90-day period during which a postjudgment motion can remain pending, Justice Maddox stated:

“Rule 59.1 was designed to force the trial judge to rule on post-trial motions. It was not designed as a trap by which a party could ‘consent’ to a continuance, and then raise, by motion to dismiss, that the appeal was not timely.
“Rule 1, [Ala. R. Civ. P.], states that the civil rules are to be construed ‘to serve the just, speedy and inexpensive determination of every action.’ I believe today’s decision is too technical, and, therefore, unjust.”

This warning, given not long after the adoption of the Alabama Rules of Civil Procedure, should have been heeded or at least rendered less critical in the almost 27 years since it was given, but the very fact that this appeal is being dismissed without any adjudication on the merits indicates that Justice Maddox’s words are still pertinent, and that Rule 59.1 is still a trap for the unwary.

The Committee Comments on 1973 Adoption of Rule 59.1 state that “[t]his Rule is designed to remedy any inequities arising from the failure of the trial court to dispose of post-trial motions for unduly long periods.” However, Rule 59.1 itself allows for the 90-day period during which a postjudgment motion can remain pending to be extended if all parties consent of record to the extension. Just as the continuance of any trial, hearing, or other matter carries with it the implied pen-dency of the underlying matter, so also should the agreement of all parties whose consent appears of record to continue a hearing on a motion for a new trial carry with it the pendency of the underlying motion itself. I agree with Justice Maddox’s words of dissent in Harrison, supra, when he wisely notes that the interpretation given Rule 59.1 in Harrison is “too technical, and, therefore, unjust.” Harrison, 371 So.2d at 21. I suggest that this Court reexamine its decision in Harrison or amend Rule 59.1 to eliminate the trap.

The second aspect of this writing concerns the practical outcome of dismissing the appeal in accordance with the precedent established in Harrison. Redtop Market, Inc., filed this declaratory-judgment action on July 1, 2003, in the Bessemer Division of the Jefferson Circuit Court, seeking a determination that its “video-arcade machines” were not “gambling devices” subject to confiscation under state law. The defendant, the State of Alabama, filed an answer through District Attorney Arthur Green, and a trial was begun on January 14, 2004. A judgment was rendered on February 3, 2004, and entered on February 10, 2004, declaring that video-arcade machines known as “Fruit Holder,” “Respin 7,” and “Funny Fruit” were not games of chance and ordering that law enforcement “abstain from seizing or charging criminally any individuals operating or possessing” those machines.

On February 27, 2004, the State filed a “Motion for New Trial or Rehearing,” which was summarily denied on March 8, 2004. Thereafter, on March 30, 2004, the March 8 order was set aside, and a hearing on the “Motion for New Trial or Rehearing” was set for May 14, 2004, 77 days after the motion was originally filed and within the 90-day period of Rule 59.1. However, on May 12, 2004, the trial court entered a bench note that stated that the “[cjase is passed by agreement of the parties. Motion for new trial or rehearing is reset to August 11, 2004 at 8:15 a.m. Dan C. King, III, Judge.” This entry made no mention of any express agreement of the parties to allow the motion to remain pending past the Rule 59.1 90-day period, which expired on May 27, 2004.

Thereafter, the motion was continued and reset eight more times, five of which continuances stated that they were by agreement of the parties and three of which were simply reset by the court. Before an order was rendered by the trial court on July 5, 2005, numerous other motions were filed by the parties and the trial court on June 16, 2004, added another video-gaming machine, the “Nudge,” as a fourth approved video-gaming machine, even though no hearing was apparently held as to that machine and the expert testimony from the original hearing concerned only the “Fruit Holder” machine.

The hearing on the State’s “Motion for New Trial or Rehearing” was finally held on April 20, 2005, and the trial court issued an order on July 5, 2005, purporting to deny the motion. However, each and every action taken by the parties and the trial court after May 27, 2004, occurred after the trial court lost jurisdiction to entertain the motion.

In the present case, the unfortunate and regrettable result of the holding in Harrison that “consent or assent to a continuance of a hearing does not satisfy the requirement that the record show the parties’ express consent to an extension of the 90-day period,” 371 So.2d at 20-21, is that there will be no appellate review of this very important issue, i.e., whether these video-gaming machines were gambling devices. Also, the actions taken after May 27, 2004, when the trial court lost jurisdiction over this case, were a waste of time and judicial resources.

It has been almost 27 years since Ham-son was decided, and we are still describing, as Justice Maddox foretold, Rule 59.1 as a trap for the unwary, and we continue to contradict the requirement of Rule 1 that the Rules of Civil Procedure are to be construed “to secure the just, speedy and inexpensive determination of every action.” Rule 1(c), Ala. R. Civ. P. (emphasis added).

NABERS, C.J., and SMITH, J., concur.

      . A cursory review of Alabama appellate cases since Harrison was decided in 1979 reveals numerous appellate decisions in which the issue was whether the parties timely consented to an extension of the 90-day time period pursuant to Rule 59.1. See, e.g., Ex parte Bolen, 915 So.2d 565 (Ala.2005); Ex parte Bodenhamer, 904 So.2d 294 (Ala.2004); Ex parte Babyak, 895 So.2d 198 (Ala.2004); Parsons v. Aaron, 849 So.2d 932 (Ala.2002); Ex parte Davidson, 782 So.2d 237 (Ala.2000); Ex parte Caterpillar, Inc., 708 So.2d 142 (Ala.1997); Ex parte Sherer Timber Co., 612 So.2d 467 (Ala.1992); Schiesz v. Schiesz, [Ms. 2041024, May 5, 2006] - So.2d - Ala.Civ.App.2006); Moore v. Moore, 910 So.2d 137 (Ala.Civ.App.2004); A.M.K. v. E.D., 826 So.2d 889 (Ala.Civ.App.2002); Brown v. Brown, 808 So.2d 40 (Ala.Civ.App.2001); HealthSouth Coip. v. Brookwood Health Servs., Inc., 814 So.2d 267 (Ala.Civ.App.2000); Coastal Bail Bonds, Inc. v. Cope, 697 So.2d 48 (Ala.Civ.App.1996); McCurry v. Gold Kist, Inc., 647 So.2d 732 (Ala.Civ.App.1993); Scheilz v. Scheilz, 579 So.2d 674 (Ala.Civ.App.1991); and Simmons v. Simmons, 390 So.2d 622 (Ala.Civ.App.1980).

      . On April 20, 2005, the trial court entered another bench note, purporting to sever the claim as to the "Nudge” from this case and giving it a new case number.

      . The trial court in its order referred to this motion as a motion to alter, amend, or vacate, or, in the alternative, for a new trial.


author: SEE, Justice.

text:
    Ex parte ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION et al. (In re Terri Sanders, as guardian of Charles "Marty" Green v. Alabama Department of Mental Health and Mental Retardation et al.).
    1041172.
    Supreme Court of Alabama.
    March 10, 2006.

      Troy King, atty. gen., and Courtney W. Tarver, deputy atty. gen. and gen. counsel, Alabama Department of Mental Health & Mental Retardation, for petitioners.
    Kenneth J. Mendelsohn, Thomas E. James, and Ellenann B. Yelverton of Jemi-son, Mendelsohn & James, P.C., Montgomery, for respondent.
   SEE, Justice.

The Alabama Department of Mental Health and Mental Retardation (“DMHMR”); its acting commissioner, John H. Houston; two former directors of the J.S. Tarwater Development Center; and five former employees of the J.S. Tar-water Development Center petition this Court for a writ of mandamus directing the trial court to enter a summary judgment in their favor on the grounds of sovereign immunity and State-agent immunity. We grant the petition in part and deny it in part.

Facts

Charles “Marty” Green was, at the time of the incidents giving rise to this action, a mentally retarded resident of the J.S. Tar-water Development Center (“the Tarwater Center”). On May 11, 2000, Lonnie Floyd, an employee of the Tarwater Center, assaulted Green. Then, on January 16, 2002, Ernest Holmes, another employee of the Tarwater Center, assaulted Green. It is undisputed that, at the time of each assault, Green was under the care, custody, and control of the Tarwater Center and DMHMR.

Terri Sanders, as Green’s guardian, sued Holmes and Floyd in their individual capacities. Sanders also sued DMHMR and its then commissioner Kathy Sawyer, in her individual and official capacities. The original action also named as defendants Dr. Ellen Gillespie, the director of the Tarwater Center at the time the assaults took place, and her successor, Judith Johnston, in their individual and official capacities. Sanders later added as defendants, in their individual and official capacities, Tommy Judd, Joan Owens, and Doretta Strength, who were involved in hiring Floyd and/or Holmes. Sanders also added as defendants, in both their individual and official capacities, Bridgette Johnson and Teresia Marshall, employees of the Tarwater Center who witnessed the assault by Holmes. Sanders requested monetary damages from DMHMR, and she requested monetary damages from all the other defendants in their individual and official capacities.

In October 2008, DMHMR, former commissioner Sawyer, Gillespie, and Johnston petitioned this Court for a writ of mandamus directing the trial court to enter a summary judgment in their favor on the ground that DMHMR is entitled to sovereign immunity and that former commissioner Sawyer, Gillespie, and Johnston are each entitled to sovereign and State-agent immunity. They also requested that we direct the trial court to vacate a scheduling order because, they said, Sanders had allowed all the discovery deadlines to pass without taking any action. By order, this Court denied the petition based on procedural considerations no longer present. Ex parte Alabama Dep’t of Mental Health & Mental Retardation (No. 1030036, October 30, 2003).

The trial court subsequently entered a summary judgment in favor of former commissioner Sawyer, Gillespie, and Johnston in their individual capacities, leaving Sanders’s claims against (1) DMHMR; (2) former commissioner Sawyer, Gillespie, Johnston, Judd, Owens, Strength, Johnson, and Marshall in their official capacities; and (3) Judd, Owens, Strength, Johnson, and Marshall in their individual capacities.

Asserting sovereign immunity, DMHMR moved for a summary judgment on Sanders’s claims against it, and former commissioner Sawyer, Gillespie, and Johnston moved for a summary judgment on Sanders’s remaining claims against them in their official capacities. Judd, Owens, Strength, Johnson, and Marshall moved for a summary judgment on Sanders’s claims against them in their official and individual capacities on the grounds of sovereign immunity and State-agent immunity. The trial court held a hearing and denied the summary-judgment motion.

DMHMR, acting DMHMR commissioner John H. Houston, Gillespie, Johnston, Judd, Owens, Strength, Johnson, and Marshall (collectively “the DMHMR defendants”) petition this Court for a writ of mandamus directing the trial court to enter a summary judgment in their favor on Sanders’s claims seeking monetary relief against them in their official capacities based on sovereign immunity. Judd, Owens, Strength, Johnson, and Marshall also assert that they are entitled to a writ of mandamus directing the trial court to enter a summary judgment in their favor on Sanders’s claims seeking monetary relief against them in their individual capacities based on State-agent immunity.

Standard of Review

Although the denial of a motion for a. summary judgment is generally not reviewable, “ ‘the denial of a motion for summary judgment grounded on a .claim of immunity is renewable by a petition for writ of mandamus.’ ” Ex parte City of Tuskegee, 932 So.2d 895, 900 (Ala.2005) (quoting Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000)). “““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 Vance, 900 So.2d 394, 397 (Ala.2004) (quoting Ex parte Sears, Roebuck and Co., 895 So.2d 265 (Ala.2004), quoting other cases). The standard of review applicable to a mandamus petition challenging the denial of a summary-judgment motion grounded on a claim of immunity is as follows:

“If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment.”

Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (citing Ex parte Rizk, 791 So.2d at 912).

Analysis

I. Sovereign Immunity

DMHMR contends that it is entitled to a summary judgment on the ground of sovereign immunity as to Sanders’s claims against ■ it seeking monetary damages. Commissioner Houston, Gillespie, Johnston, Judd, Owens, Strength, Johnson, and Marshall also contend that they are entitled to a summary judgment on the ground of sovereign immunity on Sanders’s claims for monetary damages against them in their official capacities. We agree.

Sovereign immunity is a jurisdictional bar that deprives a court of subject-matter jurisdiction. Ex parte Alabama Dep’t of Mental Health & Mental Retarda tion, 837 So.2d 808, 810-11 (Ala.2002). The principle of sovereign immunity, set forth in Article I, § 14, Alabama Constitution of 1901, is a wall that is “nearly impregnable.” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). The implications of sovereign immunity are “‘not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.’ ” Patterson, 835 So.2d at 142 (quoting State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932)).

Sovereign immunity bars claims against State agencies on the rationale that a damages award against a State agency would result in a monetary loss to the State treasury. Ex parte Davis, 930 So.2d 497, 500 (Ala.2005). For this reason, DMHMR, as a State agency, is entitled to absolute immunity against Sanders’s claims for monetary damages. Ex parte Alabama Dep’t of Mental Health, 837 So.2d at 810-11 (holding that DMHMR was entitled to absolute sovereign immunity and that former commissioner Sawyer was entitled to sovereign immunity on claims for monetary damages) (citing Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358 (Ala.2001), and Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277 (Ala.1996)).

Sanders’s claims for monetary damages against Commissioner Houston, Gillespie, Johnston, Judd, Owens, Strength, Johnson, and Marshall in their official capacities are also barred by the doctrine of sovereign immunity because “[a] complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by Art. I, § 14, Alabama Constitution of 1901.” Ex parte Butts, 775 So.2d 173, 177 (Ala.2000) (citing Ex parte Alabama Dep’t of Forensic Sciences, 709 So.2d 455, 457 (Ala.1997)); see also Ex parte Alabama Dep’t of Mental Health, 837 So.2d at 810-11 (holding that former commissioner Sawyer was entitled to sovereign immunity on claims for monetary damages) (citing Larkins, supra, and Ex parte Franklin County Dep’t of Human Res., supra).

Thus, DMHMR and Commissioner Houston, Gillespie, Johnston, Judd, Owens, Strength, Johnson, and Marshall have demonstrated a clear legal right to a summary judgment in their favor on the ground of sovereign immunity on the claims brought against DMHMR and against the individual defendants in their official capacities. We grant their petition and direct the trial court to enter a summary judgment in their favor on Sanders’s claims for monetary damages against DMHMR and the individual defendants in their official capacities on the ground of sovereign immunity.

II. State-agent Immunity

Sanders also sought monetary damages from Judd, Owens, Strength, Johnson, and Marshall in their individual capacities. These five defendants ask this Court to issue the writ of mandamus directing the trial court to enter a summary judgment in their favor on those claims based on State-agent immunity.

In analyzing cases in which a defendant presents the trial court with a State-agent-immunity claim on a summary-judgment motion, this Court applies a burden-shifting analysis based on the evidence presented to the trial court. Ex parte Wood, 852 So.2d at 709 (citing Ryan v. Hayes, 831 So.2d 21, 28 (Ala.2002)). In order to establish State-agent immunity, the party seeking to assert the defense must present evidence indicating that the claims asserted against him or her arise from the performance of a discretionary act. Ex parte Wood, 852 So.2d at 709 (quoting Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268-69 (Ala.2000)). We restated the standard for determining whether an act is discretionary for purposes of determining the applicability of State-agent immunity in Ex parte Cranman, 792 So.2d 392 (Ala.2000). If the defendant establishes that the conduct made the basis of the claim against him or her falls within a category of conduct giving rise to State-agent immunity, then the burden shifts to the plaintiff to show that the defendant acted in a manner that precludes the application of State-agent immunity. Ex parte Wood, 852 So.2d at 709 (quoting Ryan v. Hayes, 831 So.2d at 28); see also Cranman, 792 So.2d at 405 (“a State agent shall not be immune from civil liability in his or her personal capacity ... when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law”).

In order for Judd, Owens, Strength, Johnson, and Marshall to have carried their burden on the summary-judgment motion, each of them must have demonstrated that Sanders’s claims arose from the performance of a discretionary function giving rise to State-agent immunity. If we conclude that a defendant carried his or her burden to show that Sanders’s claims arose from the performance of a discretionary function that gives rise to State-agent immunity, then the burden shifted to Sanders to show that the defendant’s actions are not protected by State-agent immunity. See Ex parte Wood, 852 So.2d at 709 (quoting Ryan v. Hayes, 831 So.2d at 28); see also Ex parte Spivey, 846 So.2d 322, 333 (AIa.2002).

A. Owens and Judd’s Hiring of Floyd

Owens and Judd argue that they are entitled to State-agent immunity because, they argue, in hiring Floyd they were performing a discretionary function. This Court stated in Cranman that a State agent is entitled to immunity when the conduct made the basis of the claim against the agent is based upon the agent’s “exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as ... hiring, firing, transferring, assigning, or supervising personnel.” Cranman, 792 So.2d at 405.

Floyd was hired in May 1998 to work at the Tarwater Center. At that time, Judd was the personnel director of the Tarwater Center and Owens was a personnel specialist. Owens’s duties included interviewing potential mental-health workers, and she interviewed Floyd for an opening at the Tarwater Center for a mental-health worker. The DMHMR defendants attached to their summary-judgment motion Owens’s deposition testimony in which she states that she reviewed Floyd’s application, interviewed Floyd, and requested a background check and that nothing in the information she gathered indicated that Floyd was unsuitable for employment at the Tarwater Center. Therefore, Owens recommended to Judd that Floyd be employed as a mental-health worker at the Tarwater Center. The DMHMR defendants do not present deposition testimony by Judd. However, Owens indicates in her deposition testimony that Judd reviewed Floyd’s application materials and Owens’s recommendation. Floyd was subsequently hired to work at the Tarwater Center.

This Court has declined to hold that a defendant was entitled to State-agent immunity when he “[had] not presented to the trial court ... evidence dealing specifically with the activities ... that [were] made the basis of [the] action.” Ex parte Wood, 852 So.2d at 711. The evidence presented to the trial court on the motion for a summary judgment deals specifically with Floyd’s hiring — the action that is made the basis of Sanders’s action. The evidence showed that Judd and Owens reviewed Floyd’s application, interviewed Floyd, and requested a background check before exercising their judgment in hiring him. Judd and Owens carried their burden of showing that their decision to hire Floyd falls within a category of conduct for which immunity is available. See Cranman, 792 So.2d at 405 (State-agent immunity is available “when the conduct made the basis of the claim against the agent is based upon the agent’s ... exercising his or her judgment in the administration of a department or agency of government, in-eluding, but not limited to, examples such as ... hiring, firing, transferring, assigning, or supervising personnel”).

Once Owens and Judd satisfied their burden, the burden then shifted to Sanders to demonstrate that Owens and Judd acted in a manner that precludes State-agent immunity, that is, that they acted “ ‘fraudulently, willfully, maliciously, or in bad faith.’ ” Ex parte Wood, 852 So.2d at 709 (quoting Ryan v. Hayes, 831 So.2d at 28). Sanders argues in her answer to the petition for the writ of mandamus that Owens and Judd are not entitled to State-agent immunity because, she says, Floyd had been convicted of domestic violence and DMHMR policy prohibits DMHMR’s hiring anyone with a history of violent criminal offenses. In opposition to the DMHMR defendants’ summary-judgment motion, Sanders presented Johnston’s and Owens’s deposition testimony indicating that, if a job applicant had been convicted of domestic violence, he or she cannot be hired as a mental-health worker. However, Sanders did not, in opposition to the summary-judgment motion, present to the trial court evidence supporting her allegation that Floyd had been convicted of domestic violence. Nor did Sanders present the trial court with any evidence indicating that either Owens or Judd was aware of the alleged conviction. There was no evidence before the trial court indicating that Floyd had been, in fact, convicted of domestic violence, that Owens or Judd was aware of any such conviction, or that Owens and Judd acted “willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law,” Cranman, 792 So.2d at 405, in hiring Floyd. We cannot conclude that Sanders carried her burden to show that Judd and Owens are not entitled to State-agent immunity.

Judd and Owens carried their burden on their summary-judgment motion to show that they are entitled to State-agent immunity as to Sanders’s claims regarding the hiring of Floyd, and Sanders did not meet her burden to show otherwise.

B. Owens and Strength’s Hiring of Holmes

Owens and Strength contend that they are entitled to State-agent immunity because in hiring Holmes they were “exercising ... judgment in the administration of a department or agency of government, including, but not limited to ... hiring, firing, transferring, assigning, or supervising personnel.” Cranman, 792 So.2d at 405.

Holmes was hired to work at the Tarwa-ter Center in 2001. When Holmes was hired, Owens had replaced Judd as the personnel director for the Tarwater Center and Strength was a personnel assistant. Strength stated in her deposition, attached to the DMHMR defendants’ summary-judgment motion, that she interviewed Holmes for the position of mental-health worker. She testified that she did not notice anything peculiar about Holmes during their interview and that he did not mention anything about his religious beliefs or attitude toward mental retardation and that she never heard of his beliefs and attitude during his employment at the Tar-water Center. Deposition testimony presented to the trial court in support of the DMHMR defendants’ summary-judgment motion indicates that Owens and Strength hired Holmes as a mental-health worker based on a review of his application, a background check, and an interview. Based on the evidence presented, Owens and Strength carried their burden of showing that they are entitled to State-agent immunity in the hiring of Holmes because they were exercising their discretion in the hiring of personnel for DMHMR. See Cranman, 792 So.2d at 405.

Thus, the burden then shifted to Sanders to show that Owens and Strength were not entitled to State-agent immunity because in hiring Homes they had acted “willfully, maliciously, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of the law,” Cran man, 792 So.2d at 405. See Ex parte Wood, 852 So.2d at 709. Sanders contends in her answer to the DMHMR defendants’ petition that Owens and Strength are not entitled to State-agent immunity in regard to Holmes’s hiring because, she says, Holmes was unqualified to work as a mental-health worker based on his alleged belief that mental retardation is the result of demonic possession and that physical violence is the best form of treatment for such a condition. Sanders argues that a proper screening and interview process would have alerted Owens and Strength to Holmes’s beliefs and that, because they failed to discern those beliefs during the hiring process, they acted outside their discretionary authority in hiring Holmes. However, Sanders did not, in her response to the DMHMR defendants’ summary-judgment motion, provide the trial court with any evidence indicating where, she had learned of Holmes’s alleged beliefs regarding mental retardation or that Holmes actually holds such beliefs or that hiring someone with such beliefs would be an act not protected by State-agent immunity. We cannot conclude that Sanders presented evidence to the trial court indicating that Owens and Strength’s hiring of Holmes was willful, malicious, fraudulent, in bad faith, or beyond their authority. See Cranman, 792 So.2d at 405. Therefore, Sanders did not carry her burden of showing that Owens and Strength are not entitled to State-agent immunity.

Owens and Strength carried their burden of showing that their actions fall within a category of conduct protected by State-agent immunity under Cranman, and Sanders failed to present facts showing that Owens and Strength’s hiring of Holmes constitutes conduct that falls outside the protection of State-agent immunity. Therefore, applying the burden-shifting analysis articulated in Ex parte Wood, 852 So.2d at 709, we hold that Owens and Strength have established a clear legal right to a summary judgment based on State-agent immunity on Sanders’s claims against them relating to the hiring of Holmes.

C. Johnson and Marshall

Johnson and Marshall contend that they are entitled to State-agent immunity for Sanders’s claims seeking monetary damages against them in their individual capacities. Sanders alleges that Johnson and Marshall violated DMHMR policy because they were present when Holmes assaulted Green, but they failed to intervene on Green’s behalf.

Johnson and Marshall assert that they are entitled to State-agent immunity because, they say, their actions fall within a category of immune conduct. Johnson and Marshall argue that they are entitled to State-agent immunity because in not intervening in the incident involving Holmes and Green they were merely discharging the duties imposed upon them. Johnson and Marshall state both in the petition for the writ of mandamus and in the summary-judgment motion that in not intervening they were

“ ‘discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“ ‘... exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.’ ”

Ex parte Butts, 775 So.2d at 178 (quoting Cranman, 792 So.2d at 405). In neither document do Johnson and Marshall support this quotation or their conclusory statements with specific facts regarding their failure to become involved in Holmes’s assault of Green nor do they demonstrate that in refusing to interfere they were adhering to a specific rule or regulation applicable to the incident involving Holmes and Green.

Johnson and Marshall contend in the summary-judgment motion and in the petition for the writ of mandamus that their conduct was a method of resolving “competing caretaker interests.” In support of this contention, they present deposition testimony by former commissioner Sawyer that “policies and procedures ... speak to the individual nature or the individuality of the situation.” However, Sawyer’s testimony does not explain what those competing caretaker interests were and why Johnson and Marshall resolved those competing interests in favor of noninterference.

Johnson and Marshall also attach deposition testimony from former Tarwater director Johnston stating that although DMHMR policy dictates that Johnson and Marshall should have intervened on Green’s behalf, “there may have been extenuating circumstances at that moment in time that prevented their following to the letter of the law the policy on physical assistance.” Johnston does not point to any rule or regulation that allows Johnson and Marshall to exercise such discretion. Nor does Johnston’s deposition testimony explain what extenuating circumstances would justify Johnson and Marshall’s nonintervention, and Johnson and Marshall do not provide details pertaining to extenuating circumstances. We held in Ex parte Wood that, when a defendant asserting State-agent immunity “states in conclusory terms that his duties required him to exercise his judgment and diseretion[,] ... yet fail[s] to state his involvement or his adherence to a rule or regulation governing the exercise of his duties, in the actions underlying the claims asserted against him,” there was insufficient evidence to support a conclusion that the defendant was entitled to State-agent immunity. 852 So.2d at 711-12. Similarly, in this case, Johnson and Marshall failed to carry their burden of establishing that their conduct in not intervening in Holmes’s assault on Green fell within the ambit of State-agent immunity.

Johnson and Marshall do not show that their actions fall within the performance of a function that clearly entitles them to State-agent immunity. Therefore, they are not entitled to a writ of mandamus directing the trial court to enter a summary judgment in their favor on Sanders’s claims for monetary damages against them in their individual capacities.

Conclusion

We grant the petition in part, deny it in part, and issue the writ. As to DMHMR and Commissioner Houston, Gillespie, Johnston, Judd, Owens, Strength, Johnson, and Marshall, in their official capacities, we grant the petition and direct the trial court to enter a summary judgment in their favor on Sanders’s monetary claims against them on the ground of sovereign immunity. As to Judd, Owens, and Strength, in their individual capacities, we grant the petition and direct the trial court to enter a summary judgment in their favor on Sanders’s claims for monetary damages against them on the ground of State-agent immunity. As to Marshall and Johnson’s request that this Court direct the trial court to enter a summary judgment in their favor on Sanders’s claims for monetary damages against them in their individual capacities, we deny the petition for the writ of mandamus.

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

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

      . The Tarwater Center closed on January 15, 2004.

      . Holmes was found guilty of criminal charges related to the assault and was sentenced to one year's imprisonment. In this civil action, the trial court severed the claims against Holmes, tried him in absentia, and awarded Sanders a default judgment against Holmes in the amount of $1,000,000 in compensatory and punitive damages. Sanders states in her answer to the mandamus petition that she is continuing to move forward with her case against Floyd.

      . Gillespie resigned as the director of the Tar-water Center in January 2002. Johnston succeeded Gillespie and was the director of the Tarwater Center when it closed in 2004.

      . Sanders also requested injunctive relief against DMHMR, Sawyer, and the Tarwater Center directors in their official capacities, but she later withdrew those claims.

      . Our denial of the previous mandamus petition has no res judicata effect on this current petition. See Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala.2000) ("[Bjecause of the extraordinary nature of a writ of mandamus, the denial of relief by mandamus does not have res judicata effect.”); see also EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502 (Ala.2005).

      .Sawyer retired from her position as commissioner of DMHMR in Februaiy 2005. DMHMR's acting commissioner, John H. Houston, was automatically substituted as a party pursuant to Rule 25(d)(1), Ala. R. Civ. P. ("When a public officer is a party to an action in an official capacity and during its pen-dency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.”).

      . All the defendants also request that the writ of mandamus direct the trial court to enter a . summary judgment on Sanders’s claims for injunctive relief. However, as noted earlier, Sanders abandoned her claims for injunctive relief. See note 4.

      . Although Cranman was a plurality decision, this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000), adopted the test for determining State-agent immunity as restated in Cranman. Butts, 775 So.2d at 177-78 ("We today adopt this new test suggested in Cranman.").

      . Owens worked as a personnel specialist at the Tarwater Center until 1999. She is currently a personnel specialist in DMHMR's central office.

      .In deposition testimony attached to the DMHMR defendants’ summary-judgment motion, Owens stated that, to her knowledge, neither she nor Judd was ever informed that Floyd had been convicted of domestic violence. Owens further testified in her deposition that Floyd did not state in his interview that he had pleaded guilty to or had been convicted of domestic violence. Owens also testified at her deposition that, because the results of the background check usually are not received until after a recently hired employee begins work, if Floyd’s background check had in fact contained a conviction for domestic violence, then Judd, as personnel director, would have dismissed Floyd for falsifying his application once he became aware of the conviction.

      . Johnston was asked ''[i]f there’s a charge or conviction of a violent offense, would that automatically exclude an employee from being hired?” and she responded, "Absolutely.” Owens was asked: "Would a conviction for domestic violence preclude somebody from being hired as a Mental Health Worker I?” Owens responded: “Yes.” However, we also note that, in the pages from Owens’s depositions that Sanders submitted to the trial court, Owens testified that there is no written DMHMR policy prohibiting hiring someone who has been convicted of a violent crime.

      . Sanders asserts that the DMHMR defendants’ refusal to produce the results of Floyd's background check is evidence that Floyd’s background check contains information per-taming to a domestic-violence charge she alleges Floyd had been convicted of. However, as the DMHMR defendants point out in their reply brief, state law prohibits DMHMR from disclosing the contents of the background checks it conducts on potential employees. DMHMR defendants’ reply to Sanders’s answer, p. 5. See also § 22-50-91, Ala.Code 1975.

      . We note that, at the hearing on the DMHMR defendants' summary-judgment motion, Sanders's counsel argued that Floyd had testified in deposition that he had been previously convicted of domestic violence. However, nothing before us indicates that Sanders offered any such testimony by Floyd to the trial court. Argument of counsel is not evidence. We also note that counsel for the DMHMR defendants argued that, although he could not produce Floyd’s background check without a court order (which Sanders had not sought), there was no domestic-violence conviction on it.

      . We note that, at the hearing on the DMHMR defendants' summary-judgment motion, Sanders's counsel stated that Holmes, in a deposition, was “open'' about his beliefs. However, there is no indication that Sanders submitted Holmes's alleged testimony to the trial court in the form of evidence. Argument of counsel is not evidence.

      . We note that in reviewing a denial of a summary-judgment motion grounded on a claim of immunity we must view the record in the light most favorable to Sanders as the nonmovant and accord Sanders all reasonable favorable inferences from the evidence. Ex parte Wood, 852 So.2d at 708. However, even if we were to proceed under the inference that the averments in Sanders's answer to the DMHMR defendants' petition were the same as the ones made to the trial court, her claim that Owens and Strength are not entitled to State-agent immunity is still unsubstantiated by the evidence. Sanders contends, without offering evidence, that Holmes did not believe mental retardation was a legitimate condition and that he was convinced that mental retardation was the result of “demon possession.” Sanders alleges that Holmes believed physical violence is a better form of treatment for mentally retarded patients than the procedures promulgated by DMHMR. According to Sanders, Holmes was very'open about his beliefs. However, even under the generous standard of review applicable to the denial of a summary-judgment motion, Sanders’s conclusory assertion in her answer that "[i]t is obvious that Defendant Holmes was not properly interviewed and/or screened during the application process prior to his hiring because he would have gladly shared his thoughts on mental retardation and the treatment for the 'demon possessed,' " Sanders's answer, p. 13, does not show that Owens and Strength acted willfully, maliciously, in bad faith, or beyond their authority in hiring Holmes. See Cranman, 792 So.2d at 405.