text:
    Dorothy J. FAIR, Administratrix of the Estate of Lecia Fair Jones, Deceased, and James Washington, as next of Kin and On behalf of the Wrongful Death Beneficiaries of Lecia Fair Jones, Deceased, Appellants v. TOWN OF FRIARS POINT, Mississippi, and Anthony Smith, in his official capacity as Chief of Police of the Town of Friars Point, Mississippi, Appellees.
    No. 2004-CA-02350-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      Derek D. Hopson, Nancy Allen Wegener, Clarksdale, attorneys for appellants.
    Benjamin E. Griffith, Daniel Judson Griffith, attorneys for appellees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Lecia Fair Jones began a dating relationship with Terry Dukes in 2001. Dukes was out on parole after having served nine years of a fourteen year sentence for aggravated assault committed against his former wife. On December 24, 2001, Jones and Dukes had a physical altercation in which Dukes pushed Jones down through a glass coffee table. Officers Anthony Smith and Vincent Ramirez arrived at the scene, apprehended Dukes, and charged him with simple assault and malicious mischief. A dispatcher then informed Vera Willis, Dukes’ parole officer, of Dukes’ arrest. Dukes was released the next day after posting bond. Dukes appeared before the Friars Point Municipal Court on January 14, 2002, and pled guilty to the simple assault and malicious mischief charges. He was released after paying a fine of $498. On February 5, 2002, Dukes stabbed Jones to death.

¶ 2. On September 9, 2003, the Adminis-tratrix of Jones’ estate and Jones’ next of kin (hereinafter collectively referred to as “Fair”) filed their amended complaint in which they alleged that the town of Friars Point and its chief of police (hereinafter collectively referred to as “Friars Point”) acted with reckless disregard in handling Dukes’ arrest and by allowing him to go free and later murder Jones. Alternatively, Fair argued that Friars Point breached its duty of ordinary care in failing to adhere to several statutory duties. After a hearing on the matter, the trial court entered summary judgment in favor of Friars Point.

ISSUES AND ANALYSIS

I. Whether the trial court abused its discretion in limiting discovery

¶ 3. This Court reviews discovery matters under an abuse of discretion standard. Frye v. Southern Farm Bureau Cas. Ins. Co., 915 So.2d 486, 490(¶ 12) (Miss.Ct.App.2005). Trial courts have broad discretion regarding discovery issues. Hillier v. Minas, 757 So.2d 1034, 1037(¶ 6) (Miss.Ct.App.2000) (citing Clark v. Miss. Power Co., 372 So.2d 1077, 1080 (Miss.1979)).

¶ 4. Fair argues that the trial court abused its discretion in denying her leave to take the deposition of Vera Willis, Duke’s parole officer. On May 21, 2004, Willis swore out an affidavit stating that had she been informed that Dukes was arrested for domestic violence, she would have requested that her supervisor revoke Dukes’ parole. However, Dukes was not arrested for domestic violence. He was arrested for simple assault and malicious mischief. In fact, according to her deposition testimony, Willis originally placed a hold on Dukes after being informed of his arrest, but her supervisor instructed her to remove the hold since he was charged with simple assault.

¶ 5. When the trial court lifted the stay on discovery on January 9, 2004, it ordered Friars Point to provide Fair -with copies of any discoverable evidence it may have received during the stay within ten days. The court granted Fair twenty days from the receipt of any such discovery from Friars Point to supplement her brief in opposition to Friars Point’s second motion to dismiss. The court further ordered that Friars Point would have twenty days from the filing of Fair’s supplementation to supplement their brief if they so desired. There is no indication in the record of the date that Friars Point provided Fair with discovery, but Fair had until February 8, 2004, at the latest to supplement her brief in response to Friars Point’s second motion to dismiss. Fair missed her deadline for filing supplemental briefing, and on April 14, 2004, moved for leave to take the deposition of Willis. On May 6, 2004, the court denied the motion finding that “the depositions sought would not produce relevant information or information reasonably calculated to lead to the discovery of admissible evidence as to defendants’ legal duty or liability.”

¶ 6. In addition to missing the deadline for replying to the Friars Point’s second motion to dismiss, Fair gave no specific reason for her delay in deposing Willis, although the filings show that Fair was aware of Willis’ involvement for at least six months prior to seeking leave. Also, Fair failed to show how Willis’ testimony was relevant to Friars Point’s alleged legal duty or liability. Accordingly, we find that the trial court did not abuse its discretion in denying Fair’s motion for leave to depose Willis.

II. Whether the trial court erred in finding that the Appellees owed no legal duty to Jones

¶ 7. The existence of a legal duty is a question of law. State Farm Auto Ins. Cos. v. Davis, 887 So.2d 192, 194(¶ 7) (Miss.Ct.App.2004). We review questions of law de novo. Harrison County Dev. Comm’n v. Kinney, 920 So.2d 497, 502(¶ 9) (Miss.Ct.App.2006).

¶ 8. Fair cites Mississippi Code Annotated § 11 — 46—9(l)(b), and argues that Friars Point breached its duty of ordinary care owed to Jones, thereby exposing Friars Point to liability. Fair cites several statutes which she claims assign duties to Friars Point, and claims that the failure of Friars Point to conform with these statutes amounted to a breach of ordinary care. The only statute cited by Fair which comes close to providing a ministerial duty, one which Fair claims was owed to Jones as opposed to the general public, is Mississippi Code Annotated § 99-3-7(3)(a), which provides in pertinent part, “Any law enforcement officer shall arrest a person with or without a warrant when he has probable cause to believe that the person has, within twenty-four (24) hours of such arrest, knowingly committed a misdemeanor which is an act of domestic violence ...” (emphasis added). However, Mississippi Code Annotated § 93-21-27 states that,

A law enforcement officer shall not be held liable in any civil action for an arrest based on probable cause, enforcement in good faith of a court order, or any other action or omission in good faith under this chapter arising from an alleged domestic violence incident brought by any authorized party, or an arrest made in good faith pursuant to Section 99-3-7(3), or failure, in good faith, to make an arrest pursuant to Section 99-3-7(3).

Therefore, even if the officers owed a duty to Jones under Mississippi Code Annotated § 99-3-7(3)(a), Mississippi Code Annotated § 93-21-27 specifically provides immunity to the officers.

¶ 9. The Mississippi Tort Claims Act is written in the disjunctive and the subparts “should be read as alternatives separate and apart from one another.” Pearl River Valley Water Supply Dist. v. Bridges, 878 So.2d 1013, 1016(¶ 12) (Miss.Ct.App.2004). If any subpart of Mississippi Code Annotated § 11-46-9(1) applies, immunity exists. Although Fair argues that according to § ll-46-9(l)(b) Friars Point waived immunity because it failed to exercise ordinary care with respect to several statutory duties, Friars Point is entitled to immunity under subpart (c) which provides a reckless disregard standard for police officers and firefighters. Miss.Code Ann. § ll-46-9(l)(c). We now address the issue of whether Friars Point acted in reckless disregard in carrying out its duties.

III. Whether the trial court erred in finding that Appellees did not exhibit reckless disregard in charging Dukes with simple assault and malicious mischief and in failing to investigate and report the incident as domestic violence.

¶ 10. In its order granting summary judgment, the trial court stated that it was unnecessary to reach the issue of immunity because it found that Friars Point owed no specific duty to Jones. However, since summary judgment orders are reviewed de novo, we will discuss the merits of Fair’s final argument.

¶ 11. Fair states in her brief that Friars Point showed reckless disregard by failing to charge Dukes with domestic violence, failing to inform Willis of the nature of the assault, and failing to inform the municipal judge of Dukes’ prior aggravated assault conviction. With respect to § 11 — 46—9(l)(c), reckless disregard is defined as “willful or wanton conduct, i.e., a wrongful act that is knowing and intentional.” Lippincott v. Mississippi Bureau Of Narcotics, 856 So.2d 465, 469(¶ 13) (Miss.Ct.App.2003) (citing Turner v. City of Ruleville, 735 So.2d 226, 230(¶ 19) (Miss.1999)).

¶ 12. As noted above, the officers enjoy immunity under Mississippi Code Annotated § 93-21-27 for failing to arrest Dukes for domestic violence. Nevertheless, the record also illustrates that the officers did not exercise reckless disregard when they chose to charge Dukes with simple assault. At the summary judgment hearing, Officer Ramirez was asked why he and Officer Smith arrested Dukes for simple assault rather than domestic violence. Ramirez responded as follows, ‘Well, because of the fact that — because of the fact that we knew that they didn’t live together, they had lived together previously but they didn’t live together at the time, plus, too, they didn’t have any children together or anything, we come to the conclusion of simple assault.” Accordingly, Officer Ramirez was apparently unaware that an aggressor may be charged with domestic violence if that person commits an assault upon one with whom they formerly resided. Miss.Code Ann. 97-3-7(3).

¶ 13. Fair also failed to present any evidence to show how Friars Point acted in a willful, wanton, or wrongful manner in failing to relay a detailed account of the assault to Willis or by not informing the municipal judge of Dukes’ prior aggravated assault conviction. After reviewing the evidence, we cannot say that the officers knowingly and intentionally failed to charge Dukes with domestic violence, nor did they display reckless disregard in their investigation and reporting of the incident. We, therefore, affirm the trial court’s grant of summary judgment.

¶ 14. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . The motion to dismiss was eventually converted to a motion for summary judgment since the court considered matters outside the pleadings.

      . Mississippi Code Annotated § 11 — 46—9(l)(b) provides that "A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid.”

      . See also Lippincott v. Mississippi Bureau of Narcotics, 856 So.2d 465, 469 (¶ 15) (Miss.Ct.App.2003) (“If the reckless disregard standard is not applied to tort claims against law enforcement officers, then [Mississippi Code Annotated § 11 — 46—9(l)(c)3 becomes meaningless.”)


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Mary C. COLE, Individually, and Robin Smith, Individually, and as Parent/Guardian of Paityn Smith, a Minor, Appellants/Cross-Appellees v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY and Michael Santa Cruz, Appellees/Cross-Appellants.
    No. 2005-CA-00606-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      Jack Lucian Denton, Biloxi, William C. Walker, Jackson, attorneys for appellants.
    James H. Heidelberg, Pascagoula, attorney for appellees.
   BARNES, J.,

for the Court.

¶ 1. Mary Cole, individually, and Robin Smith, individually and as the parent/guardian of Paityn Smith, brought suit against the Mississippi Department of Public Safety and Officer Michael Santa Cruz. In their amended complaint, Cole and Smith alleged that Officer Santa Cruz, while pursuing a vehicle in his patrol car, collided with their vehicle at a busy intersection, proximately causing their injuries. Because Officer Santa Cruz was operating in the course and scope of his employment when the accident occurred, the case was brought under the Mississippi Tort Claims Act. After a bench trial held in the Circuit Court of Jackson County, Mississippi, the trial judge concluded that Officer Santa Cruz had not acted with reckless disregard in causing the collision, and entered a judgment in favor of the defendants. Aggrieved, Cole appeals to this court. We affirm the judgment of the trial court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On or about May 7, 1999, Officer Santa Cruz was patrolling Interstate 10 near the line between Harrison and Jackson counties. As he was driving down the interstate, Officer Santa Cruz received a BOLO radio call that a white vehicle was driving on the interstate at a high rate of speed. Officer Santa Cruz attempted to position his vehicle so as to intercept the oncoming vehicle, but never made contact with it. He then proceeded to a gas station to eat dinner.

¶ 3. He arrived at the gas station and parked his vehicle. As he began to get out of his vehicle, he heard screeching tires as a white vehicle sped out of the parking lot. Believing this to be the same vehicle that was mentioned in the BOLO, Officer Santa Cruz immediately re-entered his vehicle and set off in pursuit. He testified at trial that he turned on his blue lights and his headlights (or “wig-wag lights”) and, headed northbound, he pursued the white vehicle to an intersection. Despite the fact that he was facing a red light, and all of the lanes were occupied by cars, he decided to proceed through the intersection on the right shoulder. As he approached the intersection, he slowed from fifty-five miles per hour to forty-five miles per hour and sounded his fire horn. He stated that he could not see whether cars were approaching the intersection from the east or west, but he also testified that he believed that he could stop if a car entered the intersection. The intersection was clear as he made his approach; however, as he pulled onto the right shoulder, a car entered the intersection from the west. He slammed on his brakes, but was unable to stop in time and collided with the rear passenger’s side of the car. He stated that his speed at the time of the impact was approximately fifteen to twenty miles per hour. At trial he testified that he was only unable to avoid the collision because his car slid on dirt and debris as he applied the brakes.

¶ 4. The car was driven by the plaintiff Mary Cole. Plaintiff Robin Smith was a passenger in the back seat, along with her daughter Paityn Smith. Cole testified that she did not see or hear Officer Santa Cruz’s patrol car until it was upon her and the impact was imminent. She testified that she did not know whether his lights were on, or whether he sounded his fire horn, only that she was unaware of his approach as she traveled through the intersection. She also recounted that she saw dirt and debris flying from Officer Santa Cruz’s car immediately before the impact. Cole claimed that she suffered physical and mental injuries as a result of the accident, while Robin Smith alleged that she and her daughter Paityn suffered only mental injuries. The extent of the injuries sustained by Cole, Robin, or Paityn and directly attributable to the accident was not clearly established at trial. Officer Santa Cruz was unharmed following the accident. There was only a crack on the front bumper of his vehicle, and the impact was not significant enough to cause deployment of his airbag. Cole’s vehicle sustained a dent, although there was no broken glass. The plaintiffs both testified that they believed the collision to be an accident, and that Officer Santa Cruz was courteous and helpful immediately after the collision occurred. Neither Cole nor Smith testified that Officer Santa Cruz was engaged in anything other than an emergency pursuit when the accident occurred.

¶ 5. Cole and Robin, individually and on behalf of Paityn, filed suit on July 11, 2000, against Officer Santa Cruz and the Mississippi Department of Public Safety. An amended complaint was filed on June 25, 2001. Although the complaint and amended complaint were brought under the Mississippi Tort Claims Act, Mississippi Code Annotated section 11-46-1 et. seq. (Supp. 2000), each complaint specifically pled only ordinary negligence claims. On August 23, 2002, the defendants filed a motion for summary judgment on the basis that the plaintiffs had failed to plead reckless disregard, which is required by section 11-46-9(l)(c) for the State to be found liable. The trial court denied the motion, finding that, while the plaintiffs did not specifically plead reckless disregard, the facts alleged in the amended complaint were sufficient to support a finding of reckless disregard.

¶ 6. The case was tried on February 22, 2005. At the conclusion of the bench trial, the trial judge determined that Officer Santa Cruz had not acted with reckless disregard and entered a judgment accordingly. Aggrieved, the plaintiffs appeal to this court urging that the facts presented at trial clearly indicate that Officer Santa Cruz acted with reckless disregard. The plaintiffs also direct our attention to an erroneous finding of fact made by the trial court judge, and posit that this error requires reversal. The defendants maintain that the trial court correctly found that Officer Santa Cruz’s conduct did not rise to the level of reckless disregard, and further cross-appeal, raising the issue that the trial court improperly denied the defendants’ motion for summary judgment. We find that the judgment of the trial court was well supported by the facts and therefore affirm. Because we find in favor of the defendants, we do not address the defendants’ cross-appeal.

STANDARD OF REVIEW

¶ 7. The trial court is the finder of fact in an action brought under the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-13(1) (Rev.2005). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Donaldson v. Covington County, 846 So.2d 219, 222(¶ 11) (Miss.2003). Accordingly, we will not disturb the findings of this trial judge unless she abused her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. See Mississippi Dep’t of Transp. v. Trosclair, 851 So.2d 408, 413(1111) (Miss.Ct.App.2003).

ISSUES AND ANALYSIS

¶ 8. The plaintiffs ahgue that the following conduct on the part of Officer Santa Cruz constituted reckless disregard: (1) operating his police car without a siren, (2) proceeding through a red light, (3) through a very busy intersection, (4) when he knew he could not see the traffic crossing the intersection with the green light, (5) traveling at forty to forty-five miles per hour, (6) knowing he did not know if he could stop, (7) intending not to stop unless he saw a vehicle crossing on the green light, and (8) without applying his brakes until after he saw the Cole vehicle crossing with the green light which vehicle was then thirty to thirty-three feet in front of him. We find that several of these assertions are controverted by the evidence introduced at trial, and the assertions which are undisputed are inadequate to garner reversal when compared with the other evidence introduced at trial.

¶9. The Mississippi Tort Claims Act provides that:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § 11 — 46—9(l)(c) (Rev. 2002). The purpose of Mississippi Code Annotated section 11-46-9 is “to protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.” Maldonado v. Kelly, 768 So.2d 906, 909(¶6) (Miss.2000) (quoting City of Jackson v. Perry, 764 So.2d 373, 379(¶25) (Miss.2000)). Entities engaged in police protection are more likely to be exposed to dangerous situations and/or liability. Id. Public policy therefore requires that they be insulated from simple negligence, and held liable for reckless acts only. Id. Our supreme court has defined reckless disregard as:

the voluntary doing by [a] motorist of an improper or wrongful act, or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such an act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of chance of accident happening without intent that any occur.

Turner v. City of Ruleville, 735 So.2d 226, 229(¶ 11) (Miss.1999). “Reckless disregard is a higher standard than gross negligence by which to judge the conduct of officers.” Davis v. Latch, 873 So.2d 1059, 1062 (Miss.Ct.App.2004) (quoting Turner, 735 So.2d at 229(¶ 11)). Our courts have also held:

The terms ‘willful,’ ‘wanton,’ and ‘reckless’ have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to [these] terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.

Maldonado, 768 So.2d at 910(¶ 8) (quoting Maye v. Pearl River County, 758 So.2d 391, 394(¶ 19) (Miss.1999)).

¶ 10. In the instant case, the trial judge found in her conclusions of law that:

Officer Santa Cruz was driving his patrol car in pursuit of a white vehicle he witnessed driving erratically when he came to the intersection of Highway 609 and Lemoyne Boulevard. Officer Santa Cruz had turned on his blue lights and “wigwag lights” and reduced his speed prior to entering the intersection. Officer Santa Cruz testified that he put on his brakes as soon as he saw the Plaintiffs vehicle but was unable to stop due to the gravel and debris on the road.
The Court finds no indication that Officer Santa Cruz acted with deliberate disregard to the consequences of attempting to cross the intersection. To the contrary, the Court finds that Officer Santa Cruz was aware of the nature of the intersection and took specific steps to avoid the collision. Officer Santa Cruz’s decision to go through the intersection on the right side of the highway did not exhibit a willful or wanton disregard for the safety of others.

These conclusions are supported by the testimony adduced at trial. Officer Santa Cruz testified that he was in pursuit of a white vehicle when the accident occurred. At the outset of the chase, he turned on his blue lights and “wigwag” lights. He approached the intersection knowing that it was a dangerous intersection, and that he would be unable to see vehicles coming from the east and west until he was very close to the intersection. Because of the danger involved, he made the decision to proceed through the intersection on the right shoulder, sounded his air horn, and reduced his speed from approximately fifty-five miles per hour to approximately forty-five miles per hour. He entered the intersection believing he could stop if another car entered the intersection traveling east or west, and he testified that the only reason he was unable to prevent the collision with Cole was because the dirt and debris on the shoulder caused his car to slide when he applied his brakes.

¶ 11. The only evidence introduced at trial which contradicted Officer Santa Cruz’s testimony was the affidavit of a Mr. Tanner, who claimed to be an eyewitness to the accident. In his affidavit, Tanner claimed that Officer Santa Cruz’s vehicle was traveling at fifty to fifty-five miles per hour at the time of the impact, and that Officer Santa Cruz did not have on his emergency lights. However, at trial, Tanner recanted his affidavit, stating that he did not know the speed at which Officer Santa Cruz was traveling at the time of the accident, or whether Officer Santa Cruz was using his emergency lights.

¶ 12. Plaintiffs Cole and Smith offered no testimony which would contradict the testimony of Officer Santa Cruz. In fact, the testimony of Cole was that she saw dirt and debris flying from Officer Santa Cruz’s vehicle immediately before the impact, corroborating his belief that the only reason he was unable to stop was because of dirt and debris located on the right shoulder.

¶ 13. This being the case, we agree with the trial judge’s determination that Officer Santa Cruz did not act with reckless disregard. His actions clearly did not manifest “an entire abandonment of any care,” or “heedless indifference to results which may follow.” Rather, he took specific steps in an attempt to safeguard other vehicles which may have entered the intersection.

¶ 14. The plaintiffs direct out attention to the trial judge’s finding of fact that “Officer Santa Cruz testified that he had slowed to approximately 15-20 miles per hour to allow himself the opportunity to stop should there have been traffic coming through the intersection.” This finding is erroneous, but only in degree. Officer Santa Cruz testified that he slowed to forty-five miles per hour as he approached the intersection, and that at the time of the impact his car was traveling approximately fifteen to twenty miles per hour. In the trial judge’s conclusions of law, she in part based her decision on the fact that Officer Santa Cruz “reduced his speed prior to entering the intersection.” No mention was made in her conclusions of law as to the degree of his speed reduction. The uncontested testimony of Officer Santa Cruz was that he did reduce his speed to forty-five miles per hour prior to entering the intersection. The trial judge’s conclusions of law are therefore undisturbed by this erroneous factual finding, and the error does not require reversal.

¶ 15. Accordingly, we affirm the judgment of the trial court in favor of the Mississippi Department of Public Safety and Officer Santa Cruz. Because we affirm the judgment of the trial court, we do not address the defendants’ cross-appeal.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED AS TO DIRECT APPEAL. THE CROSS-APPEAL IS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS/CROSS-APPELLEES.

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

      . BOLO stands for “be on the lookout for.”

      . The dirt and debris on the shoulder is clearly evident in the post-accident pictures which were admitted into evidence.


author: ISHEE, J.,

text:
    Arthur WILDEE a/k/a Arthur Wilde, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00736-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      Arthur Wildee. Appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Arthur Wildee, a/k/a Arthur Wilde, pled guilty in the Circuit Court of Warren County of one count of murder and two counts of aggravated assault. He later moved to vacate his conviction and sentence, or in the alternative, set aside his conviction and sentence. The Circuit Court of Warren County dismissed the motion, stating that it was a successive application under the Mississippi Post-Conviction Relief Act, and thus barred. Aggrieved, Wildee appeals pro se. Finding no error, we affirm.

FACTS

¶ 2. Wildee pled guilty and was convicted of one count of murder and two counts of aggravated assault in the Circuit Court of Warren County on March 6, 1981. Wil-dee was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. In the case sub judice, Wildee moved to vacate his conviction and sentence or, in the alternative, set aside his conviction and sentence. The record in this case is quite meager, but the trial judge’s order dismissing Wildee’s motion states that Wildee’s motion had previously been ruled on by the court in its orders dated March 5, 1986; September 28, 1987; November 2, 1988; and August 22, 1997. Thus, the circuit court dismissed Wildee’s motion, finding that it was barred as a successive writ under the Mississippi Post Conviction Relief Act. Aggrieved, Wildee appeals pro se. Wildee’s arguments on appeal are quite difficult to decipher from his brief, but the following issues are mentioned: (1) whether the circuit court erred by applying the successive application bar to his post-conviction relief motion; (2) whether there has been an intervening decision by the United States Supreme Court; (3) whether Wildee was denied due process and equal protection of the law.

STANDARD OF REVIEW

¶ 3. We will reverse a trial court’s decision to deny post-conviction relief only where the decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999) (citing State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990)).

ISSUES AND ANALYSIS

I. Whether the circuit court erred by applying the successive application bar to Wildee’s post-conviction relief motion.

¶ 4. Wildee’s arguments are for the most part unclear, but his argument concerning the “successive application” bar and his argument concerning “intervening” Supreme Court cases are best discussed together for the sake of efficiency.

¶ 5. Mississippi Code Annotated Section 99-39-23(6) (Rev.2000) states, in relevant part:

[A]ny order dismissing the prisoner’s motion or otherwise denying relief under this chapter is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this chapter. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate ... that there has been an intervening decision of the Supreme Court of either Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence....

Wildee presents no arguments as to why the successive writ bar should not apply in this case beyond the bare assertion that it should not. He mentions the exception in Section 99-39-23(6) for “intervening Supreme Court” cases, and follows by citing several cases, but provides no arguments beyond the citations as to why the cited cases would adversely affect his conviction or sentence. Wildee cites Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), followed by a parenthetical stating “the right to have a jury determine punishment and impose the punishment upon the accused.” Wildee next cites Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and mentions the Sixth Amendment in a parenthetical. He then cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), followed by a parenthetical stating “proved beyond reasonable doubt.” He thirdly cites Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), followed by a parenthetical stating “sentence of life or death must be submitted to a jury.” It is unclear to us what Wildee believes is “intervening” in the cited cases. “It is the appellant’s duty to provide authority and support for the issues he presents.” Edwards v. State, 856 So.2d 587, 599(¶ 45) (Miss.Ct.App.2003) (citing Rigby v. State, 826 So.2d 694, 707(¶ 44) (Miss.2002); Hoops v. State, 681 So.2d 521, 526 (Miss.1996)). Wildee fails to do so. Merely citing cases without accompanying argument is insufficient. As far as this Court can discern, Wildee appears to be arguing that he had the right, due to these “intervening cases,” to have a jury determine his punishment rather than the judge.

¶ 6. Our supreme court has stated: “[W]e have recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incidental to trial. We have generally included in this class those [rights] secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890.”

Anderson v. State, 577 So.2d 390, 391(¶ 4) (Miss.1991) (citations omitted). “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Hoops v. State, 681 So.2d 521, 537 (Miss.1996). A sentence of life imprisonment for murder is within the limits prescribed by statute. Miss.Code Ann. § 99-3-21 (Rev.2000). This argument is therefore without merit.

II7. It is also possible, judging from the cases cited, that Wildee is arguing that he was entitled to have a jury determine whether he should be sentenced as a habitual offender. See Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury”); Ring, 536 U.S. at 589, 122 S.Ct. 2428 (“Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment”); Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (stating that criminal defendants are “indisputably entitle[d] ... to ‘a jury determination that [they are] guilty of every element of the crime ... charged, beyond a reasonable doubt’ ”). However, each of the cited cases notes that prior convictions are a recognized exception to the requirement of jury determination of enhancing sentencing factors. Ring, 536 U.S. at 600, 122 S.Ct. 2428; Apprendi, 530 U.S. at 482, 120 S.Ct. 2348; Jones, 526 U.S. at 243, 119 S.Ct. 1215. Furthermore, as stated above, life imprisonment is a statutorily permissible sentence for murder. In fact, life imprisonment is the only sentence for murder, so there would be no issue for the jury to decide. See Smith v. State, 922 So.2d 43, 46(¶ 8) (Miss.Ct.App.2006). This issue is thus without merit.

¶ 8. We see no clear error in the trial court’s writ of the successive application bar to Wildee’s post-conviction relief motion. Because none of the cited eases are “intervening” within the meaning of Mississippi Code Annotated Section 99-39-23(6) (Rev.2000), Wildee’s motion did not meet this exception to the successive writ bar. We therefore affirm as to this assignment of error.

II. Whether Wildee was denied due process and equal protection of the law.

¶ 9. Wildee provides no arguments for this issue beyond the bare assertion in his statement of the issues. We can only guess that Wildee argues that these rights were violated by the failure of a jury to determine his sentence. As discussed above, however, that contention is completely without merit.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF DISMISSAL OF MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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


text:
    LEVI STRAUSS & CO. and Old Republic Insurance Company, Appellants v. Staniece STUDAWAY, Appellee.
    No. 2005-WC-01212-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      P. Sharkey Burke, Marsha G. Lay, Ridgeland, attorneys for appellants.
    Michael M. Williams, Jackson, attorney for appellee..
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On January 8, 2002, Staniece Studa-way was injured while handling cartons for her employer, Levi Strauss & Company (Levi). The Mississippi Workers’ Compensation Commission (Commission) determined that Studaway sustained a 50 percent industrial loss of use in her right arm, and awarded her permanent partial disability benefits. The Circuit Court of Madison County affirmed. Aggrieved, Levi and Old Republic Insurance Company (hereinafter collectively referred to as “Employer”) appeal, asserting the following issues:

I. Whether the Commission award is contrary to the law.
II. Whether the award of the Commission was supported by substantial evidence.
III. Whether the award of the Commission was arbitrary and capricious.
IV. Whether the Commission erred in its application of the concept of loss of wage-earning capacity in a scheduled member case.
V. Whether Studaway was entitled to benefits beyond the medical impairment rating cited in the record.
a. Whether the Commission erroneously increased Studaway’s loss of industrial use based on a showing ■that there were other jobs, unrelated to Studaway’s employment at the time of injury, for which Studaway might be qualified.
b. Whether the Commission failed to properly consider that Studaway resumed functioning at the same or a similar job, for the same employer, while earning more money.

¶ 2. After reviewing the record and briefs in this case, we affirm the decision of the circuit court.

FACTS

¶ 3. Studaway was fifty-one years of age at the time of the Commission’s decision. She graduated from high school in 1971 and attended college courses for operating room technicians, but never worked in that field. Prior to her employment with Levi, Studaway worked at the Hinds County Comprehensive Health Center as an assistant to a social worker, but was never trained to be a social worker. Studaway also worked for the Valley North YMCA as a teacher’s assistant in the after-school program. Her duties included watching children from noon until 8:00 p.m., helping them with their homework, feeding them, and supervising their play. The after-school program was federally funded, and the grant ended. For a period of time, Studaway also worked for Syndyne, an automobile supplier that made harnesses for Ford vehicles, however, that employment ended.

¶ 4. Studaway began working for Levi on June 1, 1981. During the course of her employment with Levi, Studaway held numerous positions, including pick packer, receiving clerk, and accuracy auditor. . As a pick packer, Studaway’s duties included filling various orders for clothing items manufactured by Levi; she was required to be able to frequently lift forty pounds, and occasionally up to sixty pounds. Stud-away held this position for approximately six years. Studaway’s next position, receiving clerk, required that she be able to lift up to sixty pounds. She held this job for approximately three years. Studaway then became an accuracy auditor for Levi, where she lifted cartons weighing from fifty to sixty pounds; she held this position for two or three years. Studaway' returned to the pick packer position in 1988, and remained in that position until 1995. She then returned to her position as receiving clerk from 1995 until 2001. For a brief period, Studaway worked as a seconds/irregulars processor; however, this position was eliminated shortly thereafter.

¶ 5. Studaway then moved to the shipping area work station (SAWS) department. Her position in the SAWS department required her to constantly lift and stack cartons weighing up to seventy pounds. She earned $9.89 per hour. On January 8, 2002, Studaway sustained an admittedly compensable injury to her right shoulder throwing a carton across the line.

¶ 6. Studaway’s injury required .surgery and therapy. Her primary care physician, Dr. Barry Munn, performed the shoulder surgery. When Dr. Munn was called into active military service, Dr. Van Temple took over as Studaway’s primary physician. Studaway was released to return to work on October 8, 2002, with the understanding that she was restricted to light duty, with no lifting more than ten pounds frequently and no pushing or pulling more than twenty pounds for a work week of forty hours.

¶ 7. When Studaway returned to work for Levi, she was placed in a different position as a re-inducter in the universal work center (UWC) of the SAWS department. There was only one other worker with Studaway in the UWC. Although Studaway earned $10.81 per hour in her new position, this was due to a union negotiated, across-the-board pay increase. Her new position did not involve lifting, but it did require overtime. When Studaway was scheduled to work overtime, but did not report to work for the overtime, she was sent to her supervisor’s office to be disciplined. Fortunately, her supervisor received confirmation from Dr. Temple that Studaway was restricted to a forty-hour work week.

¶ 8. Studaway testified that, before her injury, she earned grade-three level pay, including overtime pay; since her injury, however, she could not earn overtime pay, and was no longer able to bid for other, higher-paying positions with Levi. Studa-way further testified that she no longer lifts items as she could before her injury, and that she is unable to perform household duties or similar physical activities. Moreover, Studaway testified that overuse of her right arm results in pain, and that she continues to take prescription medication and use an electrical stimulator for her injury.

¶ 9. The administrative judge determined that Studaway sustained a 50 percent industrial loss of use in her right arm, and awarded her permanent partial disability benefits of $271.90 beginning October 10, 2002, and continuing for a period of 100 weeks. The Commission affirmed the order of the administrative judge on November 29, 2004, and the Circuit Court of Madison County entered an order affirming the Commission on May 27, 2005.

STANDARD OF REVIEW

¶ 10. This Court’s scope of review is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Westmoreland, 752 So.2d at 448(¶8); Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997).

ISSUES AND ANALYSIS

I. Whether the Commission award is contrary to the law.

II. Whether the award of the Commission was supported by substantial evidence.

III. Whether the award of the Commission was arbitrary and capricious.

IV. Whether the Commission erred in its application of the concept of loss of wage-earning capacity in a scheduled member case.

¶ 11. For the sake of clarity, we will address the Employer’s first four assignments of error simultaneously. The Employer asserts that the Commission erred in assessing Studaway’s occupational impairment at 50 percent to the upper right extremity. Citing Meridian Professional Baseball Club v. Jensen, 828 So.2d 740, 747(¶ 21) (Miss.2002), the Employer contends that the Commission failed to adhere to the principle that, in order to receive compensation for injury to a scheduled member in excess of the medical impairment rating, the claimant must show that the injury rendered her unable to continue in the position held at the time of the injury, and unable to earn the same wages received at the time of the injury. Because Studaway’s wages increased post-injury, and she did not seek employment outside of Levi, the Employer insists that the Commission’s determination that she suffered a loss of wage-earning capacity was arbitrary and capricious. We disagree.

¶ 12. In Meridian the court held that: [Wjhere a permanent partial disability renders a worker unable to continue in the position held at the time of the injury, we hold that such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury.

Id. at 748(¶ 21). The claimant may establish such inability by showing that she has made a reasonable, but unsuccessful effort to find work in her usual employment, or by presenting evidence of her inability to perform the substantial acts of her usual employment. Id. The presumption of total occupational loss can be rebutted by showing that the claimant is able to earn the same wages after the injury that she did before, or by other relevant evidence of wage-earning capacity, such as the claimant’s age, education and training, or the continuance of pain. Id.

¶ 13. The claimant in Meridian sought benefits for total occupational loss of his left arm. Id. at 743(¶ 3). It was determined that the claimant’s arm sustained a 7 percent functional impairment after maximum recovery. Id. The administrative judge determined that, although Jensen could no longer play professional baseball, he could earn more working part-time while going to college. Id. at 743(¶ 4). Nonetheless, the administrative judge awarded benefits for a 25 percent occupational loss of use to the member. Id. The Commission, affirmed the decision, but the circuit court reversed, finding that Jensen sustained a total occupational loss. This Court reversed the decision of the circuit court and reinstated the order of the Commission, finding that the evidence of wage-earning capacity as a whole supported the Commission’s finding of less than total loss of use. Id. at 743(¶ 6). The supreme court affirmed, holding that the Commission properly looked to the entire factual context of wage-earning capacity, including age, education, and work history to determine whether a total loss of the member had occurred. Id. at 750(¶ 27).

¶ 14. This case is readily distinguishable from Meridian, in that Studaway does not seek benefits for total occupational loss, but for permanent partial disability. The Commission found that Studaway received a 17 percent permanent medical impairment rating. In determining Studa-way’s occupational impairment, the Commission observed that Studaway was restricted to a light level of work with lifting and carrying no greater than twenty pounds, occasional pushing and pulling no greater than twenty pounds, and using both hands to lift more than ten pounds. Moreover, the Commission pointed out the conclusion of Studaway’s treating physician, Dr. Temple, that she could no longer work overtime.

¶ 15. The Commission also considered the testimony of Studaway that, while working in the SAWS department pre-injury, she lifted and stacked cartons weighing up to seventy pounds and received overtime pay. Studaway also testified that she suffers pain if she overuses her right arm, and that she continues to take prescription medication and use an electrical stimulator on her injured shoulder. Taking this evidence into account, the Commission determined that Studaway was unable to perform the substantial acts of the following positions she held with Levi: (1) pick packer, which required lifting up to forty pounds frequently, up to a maximum of sixty pounds; (2) receiving clerk, which required lifting up to sixty pounds; (3) seconds processor, which required occasionally lifting up to forty pounds, with a maximum of forty-three pounds; and (4) accuracy auditor, which required lifting fifty to sixty pounds. After her injury, Studaway continued to work for Levi in the SAWS department, but not in her pre-injury position because she could not lift the cartons or throw them over the line. Although Studaway earned more post-injury, the Commission determined that this was due to a union negotiated, across-the-board pay increase, and that Studaway could average substantially less pay than her current earnings in non-Levi positions.

¶ 16. The Commission considered other evidence of Studaway’s wage-earning capacity, such as the fact that she was fifty-one years of age, and had a high school education. Although Studaway attended community college courses for operating room technicians, the Commission noted that she never worked in that field. Furthermore, the Commission emphasized that the jobs Studaway held before 1981 (when she began working for Levi) no longer existed, such as her position as a teacher’s assistant with the YMCA after-school program, and her position with the automobile supplier, Syndyne.

¶ 17. For Studaway to receive benefits, it is not necessary for her to prove that she actually looked for employment outside of Levi. The supreme court reiterated this view in Meridian, quoting the following language from the concurrence to this Court’s opinion in that case:

[W]hen a claimant seeks benefits based on an enhanced occupational effect of an injury to a schedule member, a variety of evidence is relevant to whether in fact the claimant is unable to perform the substantial acts of the employment ... a worker making this claim must convince the Commission that employment comparable to his occupation prior to the time of injury was no longer attainable.

Id. at 748(¶ 23) (quoting Meridian Prof'l Baseball Club v. Jensen, No.1999-WC-02098-COA, at (¶ 37) (Miss.Ct.App. Oct. 10, 2000) (Southwick, P.J., concurring) (emphasis added)). Consequently, we find that the Commission properly considered a variety of evidence in determining that Studaway suffered a loss of wage-earning capacity and a fifty-percent industrial loss of use to her right upper extremity. We also find that the Commission’s decision to award Studaway benefits for permanent partial disability was supported by substantial evidence. Moreover, it is the longstanding rule of this Court that doubtful cases must be resolved in favor of compensation, so as to fulfill the beneficent purposes of the statute. E.g., Meridian, 828 So.2d at 744-45(¶ 10); Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1010 (Miss.1994). Therefore, the first four issues asserted by the Employer are without merit.

V. Whether Studaway was entitled to benefits beyond the medical impairment rating cited in the record.

a. Whether the Commission erroneously increased Studaway’s loss of industrial use based on a showing that there were other jobs, unrelated to Studaway’s employment at the time of injury, for which Studaway might be qualified.

b. Whether the Commission failed to properly consider that Studa-way resumed functioning at the same or a similar job, for the same employer, while earning more money.

¶ 18. The Employer argues that if the presumption of total occupational loss from Meñdian is rebutted, then the claimant is not entitled to benefits for occupational loss of use of a scheduled member beyond the medical impairment rating, or functional loss. This is not a correct statement of the law established in Meñdian.

¶ 19. As previously stated, the claimant in Meñdian was denied benefits for total occupational loss because the court determined that he suffered no loss of wage-earning capacity. 828 So.2d at 749(¶ 25). The court determined that there was no loss of wage-earning capacity because the claimant could earn more working part-time while going to college than he earned playing baseball before his injury. Id. at 743(¶ 4). Despite the claimant’s ability to earn more wages, the supreme court affirmed the decision to award benefits for an occupational loss of use of 25 percent, which went beyond the claimant’s medical impairment rating of 7 percent. Id. at 750(¶25). Thus, as Me-ñdian makes clear, rebutting the presumption of total occupational loss does not necessarily preclude an award of benefits for occupational loss in excess of functional loss. Therefore, this issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: GRIFFIS, J.,

text:
    TOOL MART, INC., a Mississippi Corporation, and O’Neal Wood, Individually, Appellants/Cross-Appellees, v. BancorpSOUTH BANK d/b/a Credit Card Center, Appellee/Cross-Appellant.
    No. 2004-CA-02315-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      Gregory D. Keenum, attorney for appellants.
    Michael D. Tapscott, Tupelo, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. BancorpSouth sued Tool Mart, Inc., and O’Neal Wood for breach of contract. The circuit court granted BancorpSouth summary judgment, awarding it $8,850 plus interest. On appeal, Tool Mart and Wood argue that there was a genuine issue of material fact. On cross-appeal, Ban-corpSouth claims that it should have been awarded attorney fees. We affirm in part and reverse and remand in part.

FACTS

¶2. On February 19, 1998, Tool Mart entered a Credit Card Merchant Agreement with BancorpSouth, then known as Bank of Mississippi. In the agreement, BancorpSouth agreed to electronically process credit card payments made by customers to Tool Mart, and Tool Mart agreed to pay for this service and to accept all Visa cards. The agreement stated in part:

Merchant [Tool Mart] agrees that any ... telephone order ... is processed at Merchant’s risk, and Merchant is not guaranteed payment from Bank to Merchant. ...
On demand, Merchant will pay the Bank the amount paid ... for, and will indemnify Bank against all ... claims ... whatsoever arising in connection with “Unqualified Sales Slips.” “Unqualified Sales Slips” are any ... Transactions ... in connection with which (i) any term or condition of this Agreement has not been complied with; [or] (ii) there is any dispute or defense (whether or not valid) between Merchant and Cardholder.... Merchant agrees that Bank may charge any Unqualified Sales Slips back to Merchant....
Bank will make provisional payment of the total amount of the transactions electronically processed with the expressed understanding that the Bank reserves all rights of chargeback and recourse ... for failure to comply with the terms and provisions of this agreement. ...
Bank is ... authorized to debit Merchant’s Account from time to time in payment for Bank’s services to Merchant pursuant to this Agreement. Such debits shall include ... charge-backs ... that may be imposed from time to time by ... VISA....
Bank may charge Merchant with all or part of the amount of any sales draft previously paid by the Bank if (a) cardholder makes any claim or disputes the transaction ... (c) merchandise ... has been returned ...(f) Bank determines the transaction is one in which it does not wish to participate; and (g) Merchant fails to comply with any of the terms of this Agreement.
Merchant agrees to indemnify ... Bank ... from any ... claims by any cardholder or third party arising in connection with sale of merchandise, ... and furthermore, agrees to indemnify ... Bank ... from any losses that may arise from a claim ... on the part of the cardholder....
Merchant understands that it must pursue directly with the owner and/or authorized user of an account, any claim ... Merchant may have in connection with sales draft which is in dispute or which has been charged back ... with the Bank incurring no liability thereunder ....
In the event the Bank takes action to enforce this Agreement, Merchant agrees to pay ... reasonable attorney fees ... incurred by the Bank....

Wood, the owner of Tool Mart, signed the Credit Card Merchant Agreement as guarantor in his individual capacity.

¶ 3. The agreement also provided that “Merchant will ... observe and comply with all the applicable Rules and Regulations promulgated by ... VISA....” Visa’s rules and regulations do not allow a merchant to have a no-refund policy unless the Merchant “delivers the purchased goods ... to the Cardholder at the time of Transaction.” All of Tool Mart’s sales were by phone, so the goods were not delivered until after the time of the credit card transaction.

¶4. On March 3, 1999, Tool Mart sold generators to Frank Tropepe. Tropepe paid Tool Mart with his Bank of America Visa card. Eight days later, Tool Mart sold more generators to Tropepe. This time, Tropepe paid with his Citibank Visa card. Tropepe complained that some of the generators were defective, so he wanted a refund. Tool Mart accepted return of thirteen of these generators but refused to give a refund.

¶ 5. Tropepe obtained the refund from his two Visa card companies. On January 23, 2000, Bank of America charged back the $5,000 refund to BancorpSouth. On April 14, Citibank charged back $3,850 to BancorpSouth. BancorpSouth requested reimbursement from Tool Mart, but Tool Mart refused based on its no-refund policy.

STANDARD OF REVIEW

¶ 6. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

ANALYSIS

I. Was there a genuine issue of material fact as to whether Tool Mart owed BancorpSouth $8,850?

¶7. Tool Mart and Wood argue that the existence of Tool Mart’s no-refund policy creates a genuine issue of material fact as to whether they should reimburse BancorpSouth for the chargebacks. They argue that the grant of a summary judgment allows BancorpSouth to change the way Tool Mart does business. Bancorp-South argues that whether or not Tool Mart has such a policy is not material, because it is not a valid defense to the contract. We agree. We also find Tool Mart agreed to change, its no-refund policy with regard to any credit card sales, by signing the agreement with BancorpSouth.

¶ 8. Tool Mart and Wood admit that the Credit Card Merchant Agreement is valid. The agreement clearly stated that, (1) Tool Mart assumes all risks of telephone sales transactions, (2) Tool Mart cannot have a no-refund policy vis-a-vis telephone credit card sales, (3) Tool Mart agreed to indemnify the bank from any dispute, whether valid or not, between Tool Mart and a customer, and to take up that dispute directly with the customer, (4) Tool Mart agreed to reimburse the bank for charge-backs from Visa, (5) Tool Mart agreed to reimburse the bank where the merchandise was returned, and (6) Wood guaranteed Tool Mart’s compliance.

¶ 9. There is no dispute that the charge-backs were a result of telephone sales, paid for by Visa cards. There is no dispute that the chargebacks were the result of a dispute between customer Tropepe and Tool Mart as to whether the generators were defective. Tool Mart and Wood do not dispute that Tropepe’s two Visa card companies refunded $8,850 to him as a result of this dispute, and the companies in turn charged this amount back to Ban-corpSouth. Tool Mart and Wood admit that the generators were returned to Tool Mart. Wood stipulates that he is Tool Mart’s guarantor for any debts owed under the contract.

¶ 10. Given this, BancorpSouth was entitled to a judgment as a matter of law that Tool Mart and/or Wood must reimburse BancorpSouth $8,850. Whether or not Tool Mart had a no-refund policy is not a material issue, because Tool Mart agreed to allow refunds for telephone credit card sales. Tool Mart cannot complain that the bank is changing the way Tool Mart does business, because Tool Mart agreed to this change. Accordingly, we affirm the summary judgment. Tool Mart and Wood, jointly and severally, owe BancorpSouth $8,850 plus interest.

II. Was there a genuine issue of material fact as to whether Tool Mart owed BancorpSouth attorney fees?

¶ 11. BancorpSouth points out that Tool Mart and Wood did not dispute the fact that the contract called for Tool Mart to reimburse the bank for attorney fees. Tool Mart and Wood argue that BancorpSouth did not raise this issue in its summary judgment motion, and therefore, it was waived. We disagree.

¶ 12. The record clearly evinces that BancorpSouth asked for summary judgment to include an award of attorney fees under the contract, both in its original motion and in its reply motion. Tool Mart and Wood acknowledged this in their response, where they stated, “[t]he Plaintiff alleges that it is entitled to a judgment as a matter of law against both Defendants in the amount of $8,850, plus interest and attorney fees. ...” The issue was clearly before the trial court.

¶ 13. The Credit Card Merchant Agreement stated, “[i]n the event the Bank takes action to enforce this Agreement, Merchant agrees to pay ... reasonable attorney fees ... incurred by the Bank.... ” Tool Mart and Wood admit that the contract is valid. It is undisputed that the bank sued Tool Mart and Wood in order to enforce the contract. As set out above, BancorpSouth was so entitled to enforcement.

¶ 14. BancorpSouth is therefore entitled to judgment as a matter of law that it be reimbursed for reasonable attorney fees associated with bringing this action. We reverse the lower court on this issue and remand the case for a determination of attorney fees.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF TISHOMINGO COUNTY IS HEREBY AFFIRMED ON DIRECT APPEAL AND REVERSED AND REMANDED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS/CROSS-APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, ISHEE AND ROBERTS, JJ„ CONCUR. BARNES, J., NOT PARTICIPATING.


author: SOUTHWICK, J.,

text:
    In re The GUARDIANSHIP OF Dae’Tavious Levar WILLIAMS. Dave Anderson, Appellant, v. Laura Hoover, Appellee. In re The Guardianship of Kiyanna Teleshia Anderson. Dave Anderson, Appellant, v. Laura Hoover, Appellee. In re The Guardianship of Claira Shameka Williams. Dave Anderson, Appellant, v. Laura Hoover, Appellee.
    Nos. 2004-CA-01886-COA to 2004-CA-01888COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      Bryant Wandrick Clark, Robert George Clark, attorneys for appellants.
    Dennis C. Sweet, Jackson, attorney for appellees.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. The unmarried mother of three minor children died soon after the birth of her last child. The mother’s sister was appointed guardian of the person and the estate of all the children even though they had always lived with their father. The deceased’s sister and mother arranged for a malpractice suit to be brought on the children’s behalf against various medical providers. After the suit was settled, the children’s father sought to be named as their sole guardian. Instead, he was appointed as co-guardian and the guardianship by the children’s aunt continued. The father appeals, arguing that there is no reason to continue the aunt as a co-guardian. We agree, reverse, and remand.

FACTS

¶ 2. A guardianship for each of the three children was filed as a separate action. Three separate final judgments were entered. The appeals from the separate judgments have been consolidated.

¶ 3. In December 1998, Lakesha Monea Williams died at age twenty due to complications from the birth of her third child. The children’s father, Dave Anderson, has maintained custody of all the children. Anderson and Williams were not married, but there is evidence that the parents had lived together with the children since the birth of the oldest child, who was seven when her mother died. Physical custody of the children is not at issue here.

¶ 4. After Williams’s death, her sister and her mother hired an attorney to pursue a wrongful death and medical malpractice claim against the hospital and physicians who treated Williams. The mother of the deceased, Velma Williams, brought the suit as next friend of the children. From the testimony at the guardianship settlement hearing, we accept that Ms. Williams and the children’s aunt, Laura Hoover, were far more assertive than the father in arranging for the litigation and pursuing it to completion. Anderson made some contacts with the children’s attorney after the litigation commenced and testified that he was told that he need not and in fact could not bring a separate suit on the children’s behalf.

¶ 5. Apparently after a tentative settlement, Laura Hoover filed three separate petitions to be appointed general guardian of the three children on November 18, 2002, in Holmes County Chancery Court. After a hearing, Hoover was appointed general guardian of the children on December 19, 2002. She was authorized to bring a wrongful death suit on behalf of the three wards. In each of the petitions, Hoover stated that notice should be given to David Anderson of her desire to be appointed guardian for the children. Anderson would later allege, though, that notice was not given.

¶ 6. The settlement was approved by the chancellor for $1,230,000. After attorneys’ fees and expenses, plus a reimbursement to the court-appointed guardian for Lake-sha Williams’ funeral costs, there was about $665,000 to be divided among the three children. According to statements in the record, those funds are subject to the oversight of the chancellor and cannot be expended by whoever is guardian without court order.

¶ 7. About eight months after Hoover was named as guardian, Anderson filed motions to remove her and to have himself become the sole guardian of the person and estate of his children. The chancellor denied the motion to remove Hoover but appointed Anderson and Hoover as “co-guardians” of the estates on September 19, 2003.

¶ 8. Anderson appeals, alleging that he should be named as sole guardian in the absence of any basis on which to find that he is unsuitable. He also alleges that the initial appointment of Hoover was defective because he had not received notice of the action.

DISCUSSION

¶ 9. The only allegation of error that we find necessary to address is whether the chancellor should have removed the children’s aunt as guardian and allowed their father to be the only guardian.

¶ 10. Anderson argues there is no meaningful evidence to support that he is unsuitable to serve. Hoover alleges that Anderson is unsuitable because of his lack of diligence when his children’s possible entitlement to wrongful death benefits arose after the death of their mother. The reason the aunt was continued co-guardian was explained this way in one of the chancellor’s orders:

At trial, Dave Anderson testified that he inquired of a lawyer as to whether he could recover for the wrongful death of Lakesha Williams. The lawyer informed him that he could not recover for the wrongful death of Lakesha because they were never married.
Dave Anderson took no action to obtain counsel to represent the children in a wrongful death action of their mother.
Laura Hoover, the maternal aunt, obtained a lawyer and initiated a wrongful death action on behalf of the minor children.
Laura Hoover worked tirelessly to bring the lawsuit to a conclusion. She traveled from the lawyers office; she was deposed; attended the depositions [of] other parties, and did whatever the lawyer required of her.
Dave Anderson was deposed during the litigation of this matter, but he still did not take an active role in the litigation on behalf of his minor children.
Laura Hoover paid $7,500 [of her own money] to bury Lakesha Williams, and she made all of the funeral arrangements.
Although Lakesha Williams and Dave Anderson live[d] together for several years, Dave Anderson did not offer to pay any of the funeral expenses.
Dave Anderson was inconsistent in his testimony, particularly when questioned as whether he was financially providing for his children. Other testimony revealed that Mr. Anderson was receiving aid for dependent children.

¶ 11. The final point in this excerpt from the chancellor’s order concerns testimony from Anderson that he was providing financial assistance to the children. The assistance for the minor children was actually through a federal benefits program entitled Temporary Assistance to Needy Families. The chancellor interpreted Anderson’s testimony as claiming for himself a personal financial contribution to the children that was untrue.

¶ 12. The children’s aunt, Hoover, testified that it was necessary for her to seek appointment as guardian of the children when she realized that Anderson was not going to file suit on their behalf. Anderson gave confusing and perhaps inconsistent testimony as to why he did not pursue the claim. He testified that he contacted an attorney three or four months after Williams’s death, but gave what appeared to be two versions of what the attorney told him. Anderson first testified that the attorney told him that since he had not been married to Williams, a recovery for wrongful death was impossible. Later in his testimony, Anderson says that the attorney told him that because a suit was already pending in the matter, that he could not file a suit.

¶ 13. The lawyer to whom Anderson referred was his counsel in a separate chancery matter in which Velma Williams sought grandparent visitation rights. Anderson testified to having participated in the visitation hearing with counsel and was aware of what transpired as a result of that hearing. Anderson also testified that he had only recently been made aware of the settlement and the guardianship. He specifically denied receiving notice of the guardianship when Hoover sought appointment. Anderson testified that he never gave Hoover consent to seek the guardianship, though he did give her consent to pursue a claim on behalf of the children. A transcript of the hearing on acceptance of the settlement offer reveals Anderson’s testimony that since Hoover was more knowledgeable about the case, she could function as guardian for purposes of that hearing.

¶ 14. The primary reason that the chancellor made Anderson share the guardianship responsibilities with Hoover is that Hoover pursued the wrongful death suit. Different ways in which his lack of zeal with the litigation reflected itself were stated in the chancellor’s findings. He also faded to pay for the expenses for Lakesha Williams’s funeral; Hoover paid them. Finally, Anderson was found not to have been candid about his support for the children, testifying that he was financially supporting them when instead it was a governmental benefits program providing-support. We categorize these perceived shortcomings as a lack of initiative and specifically a failure to assume responsibility.

¶ 15. Mississippi guardianships are controlled by statute. We find it useful to quote in part the one that is the most significant for our purposes:

The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates.... If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent. ... But if any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it appear that such person is unsuitable, and appoint a suitable person.

Miss.Code Ann. § 93-13-1 (Rev.2004). This statute makes a surviving parent the preferred guardian for children. No distinction is made between situations in which the parents had been married and those in which they were not. Only if the parent is “unsuitable” will someone else be named to displace the natural guardianship possessed by natural parents.

¶ 16. Another statute reiterates this point by providing that a guardian other than a parent “shall not be entitled, as against the parent, to the custody of the ward ..- so long as the parent is “suitable” to have custody. Miss.Code Ann. § 93-13-5 (Rev.2004).

¶ 17. From these statutes, we glean the following standards: (1) The father and mother are joint natural guardians of a child, which includes guardianship of their child’s person and estate. (2) When one parent dies, the surviving parent becomes sole guardian of the child’s person and estate. (3) The natural parent will remain as guardian unless adjudicated as unsuitable. (4) If the natural parent is unsuitable, he or she may be removed and a suitable guardian named.

¶ 18. The chancellor’s decision first to name the aunt as sole guardian, potentially without participation in the hearing by the children’s father, and then to force the natural father to share guardianship with the aunt, was reached despite that Anderson has been the custodial guardian of the children ever since their mother’s death. We examine the record to find support for the chancellor’s finding that Anderson is not “suitable to serve as guardian of the estate alone because he failed [to] exhibit to this Court an ability to handle business affairs.” We summarize the chancellor’s concerns as being that Anderson failed to exhibit either ability or interest in handling financial responsibilities, especially the wrongful death suit but other matters too, and had relinquished if not abdicated his responsibilities to Hoover. An unstated but likely factor in the chancellor’s focus on Anderson’s maturity with financial issues is that over $600,000 was available for the children though subject to court control.

¶ 19. The validity of the chancellor’s decision primarily becomes a matter of whether a parent’s “suitability” can be denied in this way. Since Anderson is the natural father and the statutorily-mandated guardian absent a problem with suitability, may shortcomings of this sort prevent his sole supervision of his children and their estate?

¶ 20. Anderson points us to a precedent involving what he argues are far more egregious defects in a natural parent’s conduct which still did not prevent that parent from having custody of her children. In re Guardianship of Brown, 402 So.2d 354 (Miss.1981). In Brown, the natural mother had been found guilty of negligent homicide while serving in the United States Ah- Force; she was court-martialed and sentenced to a military prison. Id. at 355. The mother agreed that the grandparents should be guardians of her children while she was imprisoned. Once released, she petitioned to dissolve that guardianship. The Supreme Court reversed the chancellor’s decision to leave guardianship of the estate of the children with the grandmother. Despite the mother’s crime, there was no evidence that after her release from prison she was unsuitable to be the guardian of either the person or the estate of her children. Id.

¶ 21. A different authority is cited to us by co-guardian Hoover in support of the chancellor’s ruling. In that precedent, the sister of the deceased mother of the children gained custody over their father. Hosey v. Myers, 240 So.2d 252 (Miss.1970). The chancellor’s finding was affirmed that the father was not fit because of his emotional instability and the hostility of the children towards him. The father had been found in contempt after his divorce from the mother of the children, had beaten his second wife, threatened to kill her, and threatened to kill his children. Id. at 253. We do not have comparable evidence here.

¶ 22. Our analysis start with the presumption of the appropriateness of custody by a natural parent. In order to overcome that presumption there must be a clear showing that (1) the parent has abandoned the child, (2) immoral conduct by the parent is detrimental to the child, or (3) the parent is unfit to have custody of the child. Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). This presumption applies not just to physical custody but also to control of the children’s estates, subject to continuing judicial oversight in cases in which that has properly been ordered.

¶ 23. The chancellor’s concern here was that Anderson could not manage the children’s affairs as well as could their aunt. This is similar to a chancellor’s decision that a father was “unprepared” to have custody and was “unsuitable” but without a finding that he was unfit based on abandonment, immoral conduct, or other unfitness. Carter v. Taylor, 611 So.2d 874, 876-77 (Miss.1992). On appeal, the Supreme Court reversed based on inadequate findings to support the ruling. The ease was remanded for specific findings on whether the father was unfit. Id. at 877. We considered giving the same response in this case and remanding. However, we conclude that the problem here is not in the chancellor’s findings but in the evidence. Accepting the chancellor’s conclusions that Anderson exhibited neither good judgment nor willingness to accept responsibility for some of the difficult decisions that fell to him after the death of the children’s mother, he was not shown to be unable to manage his children’s estate. The chancellor found that he was suitable to have physical custody of the children.

¶ 24. We accept that the chancellor was likely correct in her implied finding that the children’s aunt would be better at handling the estates than Anderson would be. That is not enough to deny the natural father his statutory right to guard both the person and the estates of his children. A review of what many parents have done in the handling of financial matters involving their children would likely find a basis for criticism. However, parental deficiencies that do not sink to the level of unfitness are not enough to deny parents the management of minor children’s financial affairs.

¶ 25. Since there is not on this record sufficient evidence of Anderson’s unsuitability, we reverse the judgment and order that he be named the sole guardian of the person and estates of his children. The chancellor’s own management of the judgment funds will be some protection for Anderson’s perceived inadequacies.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF HOLMES COUNTY APPOINTING CO-GUARDIANS IS REVERSED AND IT IS ORDERED THAT APPELLANT DAVE ANDERSON BE NAMED AS SOLE GUARDIAN OF THE PERSON AND ESTATE OF HIS CHILDREN. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: SEE, Justice.

text:
    Ex parte Bryan DAVIS. (In re Lewis Earl Cain v. Conecuh County Commission et al.).
    1040514.
    Supreme Court of Alabama.
    Nov. 18, 2005.

      Daryl L. Masters and Gary L. Willford, Jr., of Webb & Eley, P.C., Montgomery, for petitioner.
    Everette A. Price, Jr., Brewton, for respondent.
   SEE, Justice.

Bryan Davis, a deputy sheriff for Cone-cuh County, petitions this Court for a writ of mandamus directing the trial court to grant Deputy Davis’s motion to dismiss Lewis Earl Cain’s claims against him on the basis that Deputy Davis is entitled to State immunity. We grant the petition and issue the writ.

I.

Because we are reviewing a trial court’s ruling on a motion to dismiss, we treat the allegations in Cain’s complaint as true. See Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002)(“In considering whether a complaint is sufficient to withstand a motion to dismiss, this Court must accept the allegations of the complaint as true.”). Cain asserts that Deputy Davis and another sheriffs deputy known as “Rich” drove onto Cain’s property on March 3, 2003; according to Cain, they were not in “hot pursuit” and did not have a warrant or any other legal authority to come onto his property. Deputy Davis was looking for Cain’s son. Cain asked Deputy Davis to leave his property unless he had a search warrant. Although they did not immediately produce a search warrant, Deputy Davis and Rich nonetheless remained on Cain’s property and searched inside a Chevrolet pickup truck and a Chevrolet Lumina automobile. When Cain objected to the deputies’ searching the pickup truck and the automobile without first producing a search warrant, Deputy Davis pushed Cain to the ground, handcuffed him, and placed him in the back of a Conecuh County Sheriffs Department car. As a result of Deputy Davis’s actions, Cain suffered injuries to his back, shoulder, and wrists. Deputy Davis also confiscated Cain’s pocketknife and Berretta brand pistol. While Cain sat in the sheriffs car, an unknown person arrived with a search warrant. Deputy Davis and Rich then seized the pickup truck and the automobile and took Cain to the Conecuh County jail.

The State charged Cain with resisting arrest and obstructing governmental operations; however, at the close of the State’s case, the trial court directed the entry of a judgment of acquittal on each charge. After the entry of the judgments of acquittal, Cain filed a “Notice of Claim” with the Conecuh County Commission seeking the return of his personal property, but the confiscated items have not been returned.

Cain sued Deputy Davis in his official and individual capacities, alleging false imprisonment, assault and battery, the tort of outrage, wantonness, negligence, trespass, conversion, and various civil-rights violations. Cain also sued the Conecuh County Commission, the Conecuh County Sheriffs Department, and Sheriff Tracey Hawsey, alleging civil-rights violations and negligent hiring, supervising, and retaining in regard to Deputy Davis because of Deputy Davis’s alleged ignorance of the law, his lack of experience and training, and his lack of knowledge of the correct procedures for making arrests.

The action was removed to federal district court, where the Commission, the sheriffs department, Sheriff Hawsey, and Deputy Davis moved to dismiss Cain’s claims against them on the basis of sovereign immunity. The federal district court dismissed all of Cain’s claims against the Commission, the sheriffs department, and Sheriff Hawsey, as well as Cain’s claims brought against Deputy Davis in his official capacity; it remanded Cain’s claims against Deputy Davis in his individual capacity to the Conecuh Circuit Court.

On August 19, 2004, Deputy Davis moved the Conecuh Circuit Court to dismiss Cain’s remaining claims on the ground that he is immune from liability for monetary damages under Art. I, § 14, Constitution of Alabama 1901. The trial court denied Deputy Davis’s motion to dismiss. Deputy Davis then answered Cain’s complaint and moved the trial court to reconsider his motion to dismiss based on State immunity. After the circuit court refused to reconsider his motion, Deputy Davis petitioned this Court for a writ of mandamus.

II.

The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala.1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala.2002).

Deputy Davis petitions this Court for a writ of mandamus directing the circuit court to dismiss the remaining counts of Cain’s complaint against him on the basis of State immunity. Davis argues that he is entitled to immunity under Art. I, § 14, Const, of Ala.1901, because, he says, Cain’s remaining claims seek to recover monetary damages for acts Deputy Davis performed while he was working within the line and scope of his employment as a deputy sheriff for the State of Alabama. “[I]f an action is an action against the State within the meaning of § 14, such a case ‘presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.’ ” Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala.2002)). “Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.” Ex parte Alabama Dep’t of Mental Health & Retardation, 837 So.2d 808, 810-11 (Ala.2002).

III.

Article I, § 14, Const, of Ala.1901, states that “the State of Alabama shall never be made a defendant in any court of law or equity.” “The wall of immunity erected by § 14 is nearly impregnable,” Patterson, 835 So.2d at 142, and bars

(1) claims against the State,
(2) claims against a State agency,
(3) claims against a state official or employee sued in his official capacity as an agent for the State, and
(4) claims against a state official or employee sued in his individual capacity.

The remaining counts of Cain’s complaint allege that Deputy Davis, in his individual capacity, is liable for monetary damages.

Notwithstanding this Court’s language in Patterson, “[sjection 14 does not necessarily immunize State officers and agents from individual civil liability.” Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978). Whether immunity serves as a defense to an action against a state officer or employee sued in his individual capacity depends upon the degree to which the action involves a State interest. “Our cases adhere to the view that the State has an interest such as will prohibit suit against the State official or employee where the action is, in effect, against the State.” Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983).

When determining whether a State interest in an action against a state official or employee in his or her individual capacity is sufficient to trigger the immunity granted by § 14, our cases distinguish between the standards applied to those state agents or employees whose positions exist by virtue of legislative pronouncement and those who serve as the constitutional officers of this State. We have held that State-agent immunity may bar an action against a state agent or employee under the principles announced in Ex parte Cranman, 792 So.2d 392 (Ala.2000). See Ex parte Butts, 775 So.2d 173 (Ala.2000)(adopting, by majority, the Cran-man restatement of the rule governing State-agent immunity). However, this Court has consistently held that a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment. See, e.g., Boshell v. Walker County Sheriff, 598 So.2d 843, 844 (Ala.1992)(“a sheriff, as an executive officer of the State of Alabama, is immune, under Article I, § 14, of the Alabama Constitution, from suit based on state law claims arising out of the execution of the duties of his office”).

“In general, the acts of the deputy sheriff are the acts of the sheriff.” Mosely v. Kennedy, 245 Ala. 448, 450, 17 So.2d 536, 537 (1944). Thus, “it is logical that those acts should enjoy the same immunity covering the sheriffs own acts.” Carr v. City of Florence, 916 F.2d 1521, 1526 (11th Cir.1990). Accordingly, “an action against a sheriff—or a deputy sheriff—for damages arising out of the performance of his duties' is ‘ “essentially a suit against the state.” ’ ” Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004)(quoting Parker v. Amerson, 519 So.2d 442, 445 (Ala.1987), quoting in turn Montiel v. Holcombe, 240 Ala. 352, 354, 199 So. 245, 245 (1940)).

Section 36-22-3(4), Ala.Code 1975, provides:

“It shall be the duty of sheriffs in their respective counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals and, insofar as within their power, to secure evidence of crimes in their counties, and to present a report of the evidence so secured to the district attorney or assistant district attorney for the county.”

The essence of Cain’s complaint is that Deputy Davis is liable for monetary damages because, Cain alleges, he failed to comply with the proper procedures for conducting a search and in performing an arrest. Conducting searches and performing arrests fall within the statutory duties of a sheriff, and § 36-22-3(4), Ala.Code 1975, authorizes the sheriff to entrust the performance of those duties to a deputy sheriff.

Cain does not allege that Deputy Davis’s actions were undertaken for some personal motive to further some personal interest and not as a part of his duties as a deputy sheriff. Instead, in his answer to Deputy Davis’s mandamus petition, Cain concedes that Deputy Davis came to his property on March 3, 2003, “during the course of his duties.” Because “uncontro-verted averments of fact stated in an answer [to a mandamus petition] should be taken as true,” Ex parte Sharpe, 513 So.2d 609, 610 (Ala.1987), Cain’s claims against Deputy Davis are barred by the doctrine of State immunity.

“Under Article I, § 14, of the Alabama Constitution of 1901, the only exceptions to the sovereign immunity of sheriffs are actions brought
“ ‘(1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.’ ”

Alexander v. Hatfield, 652 So.2d 1142, 1143 (Ala.1994) (quoting Parker v. Amerson, 519 So.2d at 443). Cain does not seek injunctive or declaratory relief for the actions he alleges were beyond Deputy Davis’s authority. Therefore, none of the exceptions to State immunity apply to this case. See Alexander v. Hatfield; Karrick v. Johnson, 659 So.2d 77 (Ala.1995). Accordingly, we grant Deputy Davis’s petition for the writ of mandamus and direct the circuit court to dismiss the remaining counts of Cain’s complaint.

PETITION GRANTED; WRIT ISSUED.

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

LYONS, J., concurs in the result.

      . The applicability of the exclusionary rule under these circumstances is not at issue in this case.

      . See Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) ("Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits.”).

      . See Tuscaloosa County, 796 So.2d at 1103 ("This absolute immunity extends to arms or agencies of the state ...."); accord Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277, 1279 (Ala.1996)("Under this provision, the State and its agencies have absolute immunity from suit in any court.”).

      . See Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003)("The State cannot be sued indirectly by suing an officer in his or her official capacity when a judgment against the officer would directly affect the financial status of the State treasury.”); accord Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002)("State agents enjoy absolute immunity from suit in their official capacities.”).

        .See Milton v. Espey, 356 So.2d 1201, 1202 (Ala.1978)("The prohibition of Section 14 cannot be circumvented by suing the official or agent individually.”); accord Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989)(“State officers and employees, in their official capacities and individually, are also absolutely immune from suit when the action is, in effect, one against the State.”).

      . Cain argues that his claims fall within an exception to State immunity because the facts alleged in his complaint show that Deputy Davis's actions were beyond Davis’s legal authority. See Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000)("a state agent shall not be immune from civil liability in his or her personal capacity ... when the State agent acts ... beyond his or her authority"). Deputy Davis’s immunity, however, is derived from the performance of his responsibilities as an adjunct to a constitutional officer of this State. Thus, State-agent immunity and its exceptions are not applicable. See Ex parte Purvis, 689 So.2d 794, 795-96 (Ala.1997) (refusing to apply the exceptions to State-agent immunity to claims made against a constitutional officer).