author: BARNES, J.,

text:
    Richard BECKER a/k/a Richard Edward Becker, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00055-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.
    Rehearing Denied Sept. 21, 2010.
    Certiorari Denied Jan. 6, 2011.
    Richard Becker, appellant, pro se.
    Office of the Attorney General by John R. Henry, Jr., Attorney for Appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Richard Becker, appearing pro se, appeals the Circuit Court of Harrison County’s denial of his motion for post-conviction relief. We find no error and affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In December 2006, a grand jury of the first judicial district of Harrison County returned a three-count indictment against Becker for touching a child for lustful purposes, on or between June 2006 and August 2006, when he occupied a position of trust as the victim’s parent, in violation of Mississippi Code Annotated section 97-5-23(2) (Rev. 2006). In August 2007, Becker entered a plea of guilty to two of the three counts, with the third count passed to the file. The trial court sentenced Becker to twelve years for each count, with the sentences to run concurrently, in the custody of the Mississippi Department of Corrections (MDOC), with four years suspended and four years of post-release supervision. The trial court also recommended that Becker receive any mental treatment or counseling that the MDOC has to offer.

¶ 3. On September 25, 2007, Becker filed a motion to reconsider his sentence. The motion was a form in which Becker had filled in the blanks. He stated the following reasons why he wanted the court to reconsider his sentence: he had not been “properly barganized”; he had not been convicted of any prior crimes; he had served in the military; he requested psychiatric help; and he wanted to prove he could be a productive member of society. The trial court denied the motion. On January 22, 2008, Becker moved to amend his motion to reconsider, claiming that at the time he entered his guilty plea he was suffering from “mental health problems due to the nature of the charge.” This motion was not a form motion; rather, it was a handwritten motion. He argued that his “diminished mental capacity” was an “appropriate consideration for downward sentence departure.” The trial court found no evidence that Becker was mentally incompetent at the time he entered his guilty plea and denied the motion.

¶ 4. On June 10, 2008, Becker filed a pro se motion for post-conviction relief in the trial court, claiming that two of his defense attorneys were ineffective because Becker was obviously mentally incompetent before and during the time he pleaded guilty and his attorneys did not request a competency hearing. Specifically, Becker stated he was “stressed out to the point of suicide at all times.” Becker had a total of three attorneys during the proceedings before the trial court. Becker made allegations against his first attorney, Kay Wilkerson, as well as Eric Geiss, the attorney who represented him at his plea hearing. Becker also alleges that the trial court erred in failing to conduct a sua sponte competency hearing since he “appeared at what was believed to be a Preliminary Hearing in a suicidal garment.” The trial court found, however, that Becker offered no evidence to support his allegations that he was mentally incompetent at the time he entered his plea, or his counsel was ineffective. Accordingly, the trial court denied his motion for post-conviction relief. Becker now appeals.

STANDARD OF REVIEW

¶ 5. The reviewing court will not disturb the trial court’s denial of a motion for post-conviction relief unless the trial court’s findings of fact are found to be clearly erroneous. However, questions of law are reviewed de novo. Lambert v. State, 941 So.2d 804, 807 (¶ 14) (Miss.2006) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

ANALYSIS OF THE ISSUES

¶ 6. Becker raises, in effect, two issues regarding why his guilty plea and sentence should be set aside: two of his attorneys were ineffective as Becker was mentally incompetent before and during the time of his guilty plea and the attorneys did not request a competency hearing and did “nothing” but coerce him into pleading guilty, and the trial court failed to conduct a competency hearing sua sponte.

¶ 7. The State, however, argues that Becker’s motion for post-conviction relief is barred as a successive writ pursuant to Mississippi Code Annotated section 99-39-23(6) (Rev. 2007). We agree in part and in result. We find the trial judge properly treated Becker’s first motion as a motion to reconsider his sentence, not as a motion for post-conviction relief. This Court has held: “The circuit court does not have jurisdiction to hear a motion regarding sentencing unless it is made within the term of court, the motion is pending at the end of the term under section 11-1-16, or the trial court retains jurisdiction pursuant to section 47-7-47.” Ducote v. State, 970 So.2d 1309, 1313 (¶ 8) (Miss.Ct.App.2007). Here, the trial court sentenced Becker on September 10, 2007, and Becker filed a pro se motion to reconsider his sentence on September 25, 2007. The term of court had commenced on the first Monday of September 2007 and continued for four weeks. The trial court correctly addressed the motion to reconsider in its own right, as the motion was filed within the term of court, and the trial court had jurisdiction to hear the motion as styled and not as a motion for post-conviction relief. The trial court denied the motion to reconsider on October 16, 2007. However, Becker moved to “amend” his motion to reconsider on January 22, 2008, which was several months after the end of the term of court in which Becker had been sentenced, as well as several months after the trial court had denied Becker’s original motion to reconsider. In his motion to amend, Becker raised his competency issues for the first time. The trial court should have considered the motion to amend as a motion for post-conviction relief, as the court had no jurisdiction otherwise to hear the motion. Accordingly, as submitted by the State, the current motion for post-conviction relief is barred as a successive writ by section 99-39-23(6).

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Becker gives no further explanation; we assume a "suicidal garment” is a type of suicide-prevention garment.

      . State of Mississippi Judiciary Directory and Court Calendar (2007).


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    James C. HENRY, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2009-CC-01132-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      James C. Henry, Appellant, pro se.
    Leanne F. Brady, Albert B. White, Madison, attorneys for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. James C. Henry, appearing pro se, appeals the decision of the Circuit Court of DeSoto County affirming the Mississippi Department of Employment Security’s (MDES) denial of his unemployment compensation benefits and dismissal of his case after a determination that he had abandoned his appeal. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Henry was employed as a people greeter at Walmart for approximately four years before being discharged on July 10, 2008. In support of his discharge, Wal-mart claimed he had violated company policy prohibiting dishonesty by returning a DVD left by a customer as if it were a DVD that he had purchased. Henry, however, maintained that he had purchased the DVD with a friend, but the friend changed her mind and asked Henry to return the DVD for a refund.

¶ 3. Thereafter, Henry applied for unemployment benefits effective July 15, 2008. The MDES investigated Henry’s application to determine his eligibility for the benefits requested. The MDES ultimately concluded that Henry had made a fraudulent refund of the DVD in question and, hence, had committed misconduct which disqualified him from receiving unemployment benefits.

¶ 4. Henry timely filed an appeal to the Board of Review of the MDES (Board). He was mailed a Notice of Telephonic Hearing (Notice) on October 20, 2008, advising him that a telephonic hearing regarding his appeal was scheduled to be held on October 31, 2008, before an Administrative Judge (AJ) with the MDES. Included in the Notice was language stating: “[I]f the appealing party is not available for the hearing, the appeal is dismissed and the original determination upheld.”

¶ 5. On the day of the telephonic hearing, the AJ attempted to contact Henry but was unable to reach him at the number he had provided. The AJ left a voice-mail message advising Henry he had a limited time in which to return the AJ’s call and participate in the hearing. The record reflects that Henry did not return the call within the allotted amount of time, and the AJ concluded that Henry had abandoned his appeal. Consequently, the AJ dismissed Henry’s claim.

¶ 6. Shortly thereafter, Henry appealed the AJ’s decision to the Board. In a Board of Review Decision (Decision) dated December 23, 2008, the Board affirmed and adopted the AJ’s findings that Henry’s workplace misconduct had disqualified him from receiving unemployment benefits and that he had abandoned his appeal. Henry then appealed the decision to the Circuit Court of DeSoto County, which affirmed the Board’s ruling on June 5, 2009. Henry now appeals.

STANDARD OF REVIEW

¶ 7. With regard to appeals of the Board’s decisions, Mississippi Code Annotated section 71-5-531 provides that the Board’s findings of fact are conclusive, subject to substantial evidentiary support and absent any indication of fraud. Miss. Code Ann. § 71-5-531 (Supp.2009). Thus, appellate court jurisdiction over an MDES claim is confined to the review of questions of law. Id. Additionally, there exists a rebuttable presumption in favor of decisions of the Board, with the burden of proof lying with the challenging party. Allen v. Miss. Employment Sec. Comm’n., 639 So.2d 904, 906 (Miss.1994).

DISCUSSION

I. Whether Henry Abandoned His Appeal by Failing to Contact the Administrative Judge Conducting the Telephonic Hearing Within the Required Amount of Time

¶ 8. Mississippi Code Annotated section 71-5-525 designates the MDES as its own rule-making authority. Miss.Code Ann. § 71-5-525 (Supp.2009). Accordingly, the MDES has adopted Benefit Appeal Regulations (Regulations) which govern all MDES appeals. See, e.g., Miss. Dep’t of Employment Sec. v. Johnson, 977 So.2d 1273, 1276 (¶ 6) (Miss.Ct.App.2008). The Regulations provide that appellants may be afforded a hearing on their appeal and that notice of said hearing shall be executed by mail. Id. The Regulations further stipulate that failure to appear and participate in an appellate hearing provides the Board with ample authority to dismiss a claim under the theory of abandonment. Id.

¶ 9. In this case, Henry was notified of the telephonic hearing by mail eleven days before the hearing was to take place. Included in the Notice were the date and time of the hearing and instructions of how to phone into the hearing should Henry fail to receive a telephone call from the AJ. Also included in the Notice was language advising him that failure to participate would constitute effective dismissal of his case and reinstatement of the Board’s original Decision.

¶ 10. MDES’s call-recording system shows Henry was called by the AJ at the date and time listed in the Notice, but Henry did not answer the phone call. The record reflects that the AJ left Henry a voice-mail message informing him he must return the AJ’s call within an allotted amount of time in order to participate in the telephonic hearing. The MDES call-recording system further shows that Henry returned the AJ’s call after the allotted amount of time had expired. Accordingly, the AJ dismissed the case for Henry’s failure to participate.

¶ 11. This Court has previously addressed the issue of whether the dismissal of an MDES appeal is appropriate when the appealing party fails to participate in the appellate hearing. Johnson, 977 So.2d at 1276 (¶ 7). First, we have concluded that the adoption of the Regulations by the MDES is well within the authority granted to the MDES by Mississippi Code Annotated section 71-5-525. See, e.g., Id. at 1276 (¶ 6). Second, after reviewing the applicable Regulations, we have determined that an appealing party’s failure to participate in a scheduled hearing may properly be deemed abandonment of the appeal and, therefore, grounds for dismissal. Id. at 1275-76 (¶ 6). Accordingly, we find that this issue lacks merit.

II. Whether Substantial Evidence may be Found in the Record to Support the MDES Determination that Henry Had Committed Misconduct Such That He Was Disqualified from Receiving Unemployment Compensation Benefits

¶ 12. Because we affirm both the circuit court’s determination that Henry had abandoned his appeal and the circuit court’s decision to allow for the Board’s original Decision to be reinstated, we do not address the issue of whether the original Decision disqualifying him from receiving unemployment benefits is supported by substantial evidence. Therefore, this issue is moot.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED.

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

      . Mississippi Code Annotated section 71-5-531 was repealed as of July 1, 2010, but it was reenacted by the Mississippi legislature in the 2010 regular session without textual change. Miss. Gen. Laws Ch. 559 § 44.


text:
    Sedric MEDLOCK, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01613-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Sedric Medlock, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Sedric Medlock was indicted by a Tate County grand jury on three counts of sale of a controlled substance and one count of possession of a firearm as a convicted felon. The Circuit Court of Tate County remanded Count I, sale of a controlled substance, to the file and Medlock pled guilty to Counts II and III, sale of a controlled substance, and to Count IV, possession of a firearm as a convicted felon. The circuit court sentenced Medlock to serve four years on Counts II and III and five years on Count IV, all in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively. Medlock timely filed a motion for post-conviction relief (PCR), which the circuit court dismissed. Med-lock now appeals, alleging the following errors: (1) the circuit court erred in dismissing Medlock’s PCR motion without an evidentiary hearing; (2) Medlock was denied his constitutional right to a speedy trial; (3) Medlock’s plea was entered involuntarily; and (4) Medlock was denied effective assistance of counsel prior to the entry of his guilty plea. As Medlock’s third and fourth issues are related, we will address them together. Finding no error in the judgment of the circuit court, we affirm the dismissal of Medlock’s PCR motion.

STANDARD OF REVIEW

¶ 2. This Court will not disturb a circuit court’s dismissal of a PCR motion unless the decision is clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. Necessity of an Evidentiary Hearing

¶ 3. Medlock argues that he was entitled to an evidentiary hearing on his PCR motion. If, after a circuit court’s complete review of the record, the circuit court finds that it is clear that there is no entitlement to relief, the Court may enter an order dismissing the action without an evidentiary hearing. Caston v. State, 949 So.2d 852, 855 (¶ 5) (Miss.Ct.App.2007) (citing Miss.Code Ann. § 99-39-11(2) (Rev. 2000)). “A post-conviction claim for relief is properly dismissed without the benefit of an evidentiary hearing where it is manifestly without merit.” Id.

¶ 4. In his PCR motion, Medlock alleged that: he was denied his constitutional right to a speedy trial; his plea was entered involuntarily; and he received ineffective assistance of counsel. The circuit court found that Medlock’s PCR motion was “overwhelmingly belied by unimpeachable documentary evidence in the record.” Our review of the record reveals the same. Therefore, we find that Medlock was not entitled to an evidentiary hearing. This issue lacks merit.

II. Speedy Trial

¶ 5. Medlock also argues that he was denied his constitutional right to a speedy trial because his guilty plea occurred 281 days after he was arrested. “[A] valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in the indictment or information against the defendant.” Reeder v. State, 783 So.2d 711, 720 (¶ 36) (Miss.2001). With the entry of Medlock’s guilty plea, Medlock waived any speedy-trial violations. Therefore, this issue is without merit.

III. Voluntariness of Plea

¶ 6. Finally, Medlock argues that he involuntarily entered his guilty plea. He submits that his counsel did not raise the alleged speedy-trial violations prior to his guilty-plea hearing.

¶ 7. We are to review claims regarding the voluntariness of a plea under the clearly erroneous standard. Wilcher v. State, 921 So.2d 400, 401 (¶ 3) (Miss.Ct.App.2006). Further, in order to demonstrate that his guilty plea was involuntary, the burden of proof rests with “the prisoner [to show] by a preponderance of the evidence that he is entitled to relief.” Miss. Code Ann. § 99-39-23(7) (Rev.2007).

¶ 8. Medlock executed a sworn waiver of indictment, and then he pleaded guilty. There is no support in the record for Med-lock’s allegation that he did not knowingly enter the guilty plea, nor is there any indication in the record that he was denied effective assistance of counsel. Therefore, this issue is without merit.

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

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


text:
    Michael GIBSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01966-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Michael Gibson, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Michael Gibson, appearing pro se, appeals the Circuit Court of Jackson County’s denial of his motion for post-conviction relief. Finding no error, we affirm.

FACTS

¶ 2. On February 2, 2006, Gibson pleaded guilty to robbery and shooting into a dwelling. He was sentenced to eight years for the charge of robbery and eight years for the charge of shooting into a dwelling, all in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run concurrently. The sentence included four years suspended and four years to serve, with three years of Post-Release Supervision (PRS). The sentencing order specifically stated the following:

Failure of the defendant to comply with the terms and conditions of Post-Release Supervision shall be grounds for this court to terminate the period of Post-Release Supervision and recommit the defendant to the correctional facility from which he was previously released for a period not to exceed the full term of Post-Release Supervision stated in this order.

¶ 3. On August 31, 2007, the trial court revoked Gibson’s PRS due to his failure to comply with the PRS terms and conditions. In the revocation order, the trial court sentenced him to the remainder of his “original sentence.” On September 25, 2007, Gibson’s attorney filed a motion to correct and clarify the revocation order, alleging Gibson could only be revoked to a maximum term of three years. The trial court denied the motion on the ground that the sentencing order did not specifically limit the amount of time which could be revoked. The trial court further clarified that Gibson was to serve the remainder of his original eight-year sentence.

¶ 4. Gibson then filed a pro se motion, again asserting that his sentence could only be revoked to a maximum of three years and that to order otherwise would be a breach of an alleged plea-bargain agreement. He also claimed ineffective assistance of counsel, arguing that his attorney had advised him that his sentence could not be revoked to serve the remainder of his eight-year sentence, but rather the four-year suspended term. The trial court denied the motion. In its order, the trial court indicated that any questions as to Gibson’s revocation period were previously ruled upon and that the motion was, therefore, a successive writ and without merit. Aggrieved, Gibson now appeals.

STANDARD OF REVIEW

¶ 5. This Court will not disturb a trial court’s denial of a motion for post-conviction relief unless the decision is clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). Nonetheless, questions of law are reviewed de novo. Id.

DISCUSSION

¶ 6. According to Mississippi Code Annotated section 99-39-23(6), second or successive motions for post-conviction relief are barred as a matter of law. Unless a prisoner can show the existence of newly-discovered evidence that would alter the outcome of the prisoner’s sentence; an intervening decision from the United States Supreme Court or State of Mississippi; or, in the case of a prisoner who has filed a prior petition requesting DNA testing, DNA test results that were not previously presented or available, then successive motions for post-conviction relief are prohibited. Miss.Code Ann. § 99-39-23(6) (Supp.2009).

¶ 7. Gibson’s most recent pro se motion for post-conviction relief reiterates arguments asserted in his prior motion to correct/clarify the revocation order. Both motions contain identical requests for post-conviction relief. The record and the trial court’s order denying Gibson’s pro se motion reflect that the motion was a second, or successive, motion for post-conviction relief. Therefore, Gibson’s pro se motion is statutorily barred.

¶ 8. Additionally, Gibson’s arguments regarding an alleged breach of a plea-bargain agreement and alleged ineffective assistance of counsel are without merit. Accordingly, we find the trial court’s denial of Gibson’s pro se motion for post-conviction relief proper.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


author: LEE, P.J.,

text:
    Bertha MADISON, Appellant v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. 2009-CA-01723-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Alben Norris Hopkins Jr., attorney for appellant.
    Edward C. Taylor, Gulfport, Christopher Howell Murray, attorneys for appel-lee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 6, 2000, Ronnie Powell (Ronnie) and Bertha Madison (Madison) were driving in Gulfport, Mississippi, when their vehicles collided. The car driven by Ronnie was owned and insured by his mother, Mary Powell (Mary). Ronnie informed Madison that he had no driver’s license and was uninsured. The parties led the police to believe that Mary was the driver of the vehicle driven by Ronnie. Thus, the accident report erroneously listed Mary as the driver.

¶ 2. On June 17, 2003, Madison filed a complaint in the County Court of Harrison County against Mary for negligence. The complaint stated that Mary was the driver of the vehicle. Ronnie’s name was not mentioned in the complaint. Mary filed an answer denying that she was the driver. Discovery proceeded, and the depositions of Madison and Mary were taken. Mary testified that she came to the scene of the accident before the police arrived. When the police questioned her, she told them she was the driver of the vehicle. Madison testified that she overheard Mary tell the police this, but she did not object despite knowing Ronnie was the driver. The insurance policy held by Mary specifically stated that Ronnie was an excluded driver. On July 8, 2004, Madison filed an amended complaint naming Ronnie as a defendant. The amended complaint alleged that Mary negligently entrusted the vehicle to Ronnie. It also alleged that Ronnie was the tortfeasor in fact. On November 30, 2004, a default judgment was entered against Ronnie.

¶ 3. Madison continued to pursue her case against Mary for negligent entrustment. On July 29, 2008, the parties agreed to a settlement whereby Mary’s insurer would pay the policy limit of $10,000 based on Mary’s negligent entrustment of her vehicle to Ronnie.

¶ 4. On September 26, 2008, Madison filed a claim against Geico General Insurance Company in the Harrison County Circuit Court under the provisions of her uninsured/underinsured-motorist coverage. Madison had been told that she would need surgery costing approximately $30,000 to $35,000. Geico moved for summary judgment, arguing that the three-year statute of limitations had passed. Miss.Code Ann. § 15-1 — 19 (Rev.2003). On May 11, 2009, the circuit court granted the motion for summary judgment, finding that the latest date the action could have accrued was November 30, 2004, the date the default judgment was entered against Ronnie. This action was filed on September 26, 2008, nearly four years after that date.

¶ 5. Madison subsequently filed a motion for reconsideration of the order of summary judgment. Madison asserted that the circuit court had erroneously relied on the default judgment, which was later set aside by agreement of the parties on March 9, 2005. The motion was denied.

¶ 6. Madison now appeals, asserting that the circuit court erred in granting Geico’s motion for summary judgment. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 7. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 18) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶ 8. A cause of action against an insurer for uninsured-motorist benefits is subject to a three-year statute of limitations. Miss.Code Ann. § 15-1-49. See Mitchell v. Progressive Ins. Co., 965 So.2d 679, 683 (¶ 13) (Miss.2007). The issue in this case is when the statute of limitations began to run.

¶ 9. In Jackson v. State Farm Mutual Automobile Insurance Co., 880 So.2d 336, 343 (¶ 21) (Miss.2004), the Mississippi Supreme Court held that the statute of limitations for an uninsured-motorist claim begins to run when it can be reasonably known that the damages suffered exceed the limits of insurance available to the alleged tortfeasor.

¶ 10. The circuit court found that the statute of limitations began to run, at the latest, on November 30, 2004, the date the default judgment was entered against Ronnie. The circuit court reasoned that, at this point, Madison was aware of her damages and the default judgment was proof that Ronnie was uninsured. Madison asserts that this is erroneous. Madison argues that the statute of limitations began to run on July 29, 2008, when the settlement was reached with Mary’s insurance company. She argues that, until the settlement was reached, she had a reasonable uncertainty as to whether or not there was adequate insurance. She filed her complaint approximately two months after the settlement was reached. Thus, she argues that she was well within the limitations period.

¶ 11. At the time the default judgment was entered, Madison was pursuing a claim against Mary’s insurance company. However, Madison’s claim was not made through any insurance policy that covered Ronnie. Madison’s suit was based strictly on Mary’s negligent entrustment of her vehicle to Ronnie, who had no driver’s license and was specifically excluded by the insurance policy. Even assuming that Madison could somehow recover from Ronnie through Mary’s insurance, the policy limit was $10,000. Thus, the maximum benefit from the policy still left Madison at least $20,000 short of her medical bills. Madison’s case against Ronnie concluded once the default judgment was entered against him naming him as a tortfeasor in fact. At this point, Madison was free to pursue Geico to recover under her own uninsured-motorist policy. The default judgment was entered on November 30, 2004. The suit against Geico was filed nearly four years later on September 26, 2008, outside the three-year statute of limitations.

¶ 12. Even if we were to determine that the statute of limitations did not begin to run until after the default judgment was set aside, Ronnie was deposed on July 5, 2005, and admitted that he had no insurance coverage of his own. Mary’s insurance specifically excluded Ronnie, and there was no mention of any other insurance policy. If it was not clear earlier, Madison was put on notice at this point that she would need to pursue a claim under the uninsured-motorist provision of her Geico insurance policy. The claim was filed more than three years after Ronnie’s admission under oath that there was no insurance available.

¶ 13. Madison’s counsel sent notice to Geico on two occasions notifying it that Madison was aware of the possibility of an uninsured-motorist claim. A letter dated September 3, 2002, to Geico states: “Please accept this correspondence as notification of a potential UM. claim....” And a letter dated January 7, 2004, states: “Please accept this letter as a formal notice of my representation and notice of uninsured[-]motorist claim.” We find Madison’s argument that an uncertainty existed as to whether adequate insurance would be available is without merit.

¶ 14. We find that Madison’s claim against Geico is barred by the statute of limitations. This issue is without merit.

¶ 15. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MYERS, P.J., AND MAXWELL, J., NOT PARTICIPATING. '


author: PER CURIAM. PARKER, Justice MURDOCK, Justice

text:
    Ex parte M. Greg McCABE. (In re M. Greg McCabe v. Deanna McCabe).
    1071681.
    Supreme Court of Alabama.
    Feb. 4, 2009.
    Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for petitioner.
    John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for respondent.
   PER CURIAM.

WRIT GRANTED IN PART (AS TO THIRD GROUND ONLY); DENIED IN PART.

LYONS, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

PARKER and MURDOCK, JJ., concur in part and dissent in part.

PARKER, Justice

(concurring in part and dissenting in part).

I concur in granting the petition on the ground that the Court of Civil Appeals’ decision conflicts with Parker v. Parker, 946 So.2d 480 (Ala.Civ.App.2006), on the issue whether gifts are included in gross income for the purpose of determining child support. I dissent from the denial of certiorari review of the alleged conflict of that decision with Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and McQuinn v. McQuinn, 866 So.2d 570 (Ala.Civ.App.2003), on whether the court order unduly interfered with or limited a father’s fundamental right of visitation with his children.

MURDOCK, Justice

(concurring in part and dissenting in part).

I concur in granting certiorari review as to the issue whether the decision of the Court of Civil Appeals is in conflict with the decision in Parker v. Parker, 946 So.2d 480 (Ala.Civ.App.2006). In addition, however, I would grant certiorari review because I believe this Court should consider the allegations of conflict between the substantive due-process principles recognized in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and McQuinn v. McQuinn, 866 So.2d 570 (Ala.Civ.App.2003), on the one hand, and the trial court’s involvement in certain details of the father’s parenting of his children during periods of visitation, on the other hand. See Part I.A. of my special writing in McQuinn, 866 So.2d at 578-80 (Murdock, J., concurring in part; concurring in the result in part; and dissenting in part).


author: ESDALE, Clerk.

text:
    OPINION OF THE CLERK.
    Opinion No. 55.
    Supreme Court of Alabama.
    Oct. 1, 2009.
   RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION

ESDALE, Clerk.

Clerk’s Opinion No. 55 issued on September 14, 2009, is withdrawn, and the following is substituted therefor:

The Honorable Michelle M. Thomason, a district judge of the 28th Judicial Circuit, has submitted the following question, seeking an opinion of the clerk:

“I have read Opinions [of the Clerk No.] 37[, 403 So.2d 891 (Ala.1981) ], 43[, 450 So.2d 1094 (Ala.1984) ], and 44[, 450 So.2d 804 (Ala.1984) ], regarding whether or not a new filing fee is required in certain domestic relations proceedings. Specifically, Opinion [No.] 43 [holds] that if a motion is filed in a pending case to hold a party in contempt for violations of an interlocutory or temporary order in that same case, a new case number need not be assigned, nor a filing fee assessed. However, my question is whether a new filing fee needs to be paid where there is a pending post-judgment motion to modify (in this case, custody), and the defendant, upon filing an answer, also files a motion requesting relief that is unrelated to the initial motion or pending case — a motion for contempt for violations of the original [judgment] (in this case, for nonpayment of alimony and child support). Most likely, regardless of whether the issues are related or whether separate case numbers are assigned, they will all be heard as one proceeding and tried together.”

This question requires an interpretation of Rule 7, Aa. R. Jud. Admin., which reads:

“Rule 7. Fees for Miscellaneous Filings “Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes unless the payment of a docket or filing fee is specifically waived by law.”

The term “consolidated fee structure” in Rule 7 means the list of fees prescribed in § 12-19-71(a), Ala.Code 1975. The terms “[a]ny filing” and “as an original filing for cost purposes,” as used in Rule 7, are to be read in conjunction with the term “cases filed,” appearing in § 12-19-71(a). Opinion of the Clerk No. 52, 826 So.2d 108 (Ala.2001); Opinion of the Clerk No. 49, 613 So.2d 882 (Ala.1993). The word “case” has been defined as a “ ‘state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice.’ ” State v. Montevallo Coal Mining Co., 29 Ala.App. 318, 322, 197 So. 82, 85 (1940) (quoting appellee’s brief (emphasis omitted)); see also Opinion of the Clerk No. 42, 445 So.2d 905 (Ala.1984).

The consolidated fee structure in § 12-19-71(a) does not specifically provide a cost for filing the contempt motion described in Judge Thomason’s request; however, because the motion seeks to hold a party in contempt for violating a portion of the judgment not at issue in the initial postjudgment motion, it is a “case” that presents a “state of facts which furnishes occasion for the exercise” of a court’s jurisdiction. The filing of the contempt motion confers lawful jurisdiction in the district court so that it may “ ‘entertain [the contempt motion], consider the merits, and render a binding decision thereon.’ ” Opinion of the Clerk No. 49, 613 So.2d at 883 (quoting Ex parte Dothan-Houston County Airport Auth., 282 Ala. 316, 320-21, 211 So.2d 451, 454 (1968)).

Therefore, it is my opinion that, in a postjudgment proceeding in a domestic-relations case, initiated by the filing of a motion to modify a custody provision in the final judgment, the filing of a contempt motion alleging nonpayment of child support is the “filing” of a case, within the meaning of Rule 7, Ala. R. Jud. Admin., which requires the payment of a docket fee pursuant to Rule 7. Further, it appears the filing of the contempt motion under these circumstances falls under § 12-19-71(a)(7):

“(7) Two hundred forty-eight dollars ($248) for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order.”

Thus, my answer to the question is that a filing fee is to be charged when a respondent to a petition to modify a custody provision of a final judgment in a domestic-relations case files an answer that includes a motion for contempt for nonpayment of child support, and that fee is $248, as required by § 12-19-71(a)(7).

Additionally, with regard to the authorities cited in Judge Thomason’s request, I note that Opinion of the Clerk No. 37, 403 So.2d 891 (Ala.1981), was explicitly overruled by Opinion of the Clerk No. 49, 613 So.2d 882 (Ala.1993). Opinion of the Clerk No. 44, 450 So.2d 804 (Ala.1984), was decided on the authority of Opinion of the Clerk No. 37; therefore, Opinion of the Clerk No. 44 is hereby overruled.


author: STUART, Justice.

text:
    Ex parte DIRECTORY ASSISTANTS, INC. (In re Directory Assistants, Inc. v. Cooke, Cameron, Travis and Company, P.C.).
    1080852.
    Supreme Court of Alabama.
    Nov. 25, 2009.

      Benjamin S. Goldman of Hand Arendall LLC, Birmingham; and Douglas L. McCoy of Hand Arendall LLC, Mobile, for petitioner.
    Robert W. Shores, Fultondale, for respondent.
   STUART, Justice.

Cooke, Cameron, Travis and Company, P.C. (“CCT”), sued Directory Assistants, Inc., a Connecticut corporation, in the Jefferson Circuit Court seeking a judgment declaring void a contract between CCT and Directory Assistants because, CCT alleged, Directory Assistants was not qualified to do business in Alabama at the time the contract was executed. Directory Assistants filed a limited appearance in the trial court for the sole purpose of moving the trial court to dismiss the action based on a provision in the disputed contract providing that disputes between it and CCT would be resolved through arbitration. After the trial court denied Directory Assistants’ motion to dismiss and ordered it to file an answer to CCT’s complaint, Directory Assistants appealed to this Court.

On November 21, 2008, this Court issued a show cause order, stating:

“A copy of the record on appeal having been submitted and considered by this Court, and it appearing that the appeal may be from an order that is not appeal-able, the appellant is directed to provide this Court, in writing, within 10 days, its reasons why this appeal should not be dismissed. [Directory Assistants] is specifically directed to address whether. the trial court’s order dated April 3, 2008 (record at page 60), incorrectly showing Erik L. Kuselias as the defendant, is a denial of its motion to compel arbitration and is an appealable order pursuant to Rule 4(d), Alabama Rules of Appellate Procedure. The appellee, Cooke, Cameron, Travis and Company, P.C., may file a response within seven days after the filing of [Directory Assistants’] arguments.”

Consistent with this order, Directory Assistants filed an answer on December 1, 2008, and CCT filed its response on December 8, 2009. On December 17, 2008, this Court transferred the appeal to the Court of Civil Appeals.

On March 25, 2009, the Court of Civil Appeals dismissed Directory Assistants’ appeal with an order, Directory Assistants, Inc. v. Cooke, Cameron, Travis & Co., P.C. (No. 2080256, March 25, 2009), 46 So.3d 29 (Ala.Civ.App.2009) (table), stating:

“It appearing to the court that the appeal is taken from an order of the trial court denying a motion to dismiss, rather than an order granting or denying a motion to compel arbitration, and that the order is, therefore, an interlocutory order rather than a final judgment or order that will support appellate review under Ala.Code 1975, § 12-22-2, or Rule 4(d), Ala. R.App. P., see Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala.2003), and Ex parte Walker Regional Med. Ctr., Inc., 825 So.2d 741, 744 n. 1 (Ala.2001) (holding that Rule 4(d), Ala. R.App. P., ‘would not encompass’ an order deferring a ruling on a motion to compel arbitration until after discovery could take place);
“It is therefore ORDERED that the appeal be dismissed.”

Pursuant to Rule 39(a)(1)(D), Ala. R.App. P., Directory Assistants then petitioned this Court for a writ of certiorari, arguing that the order of the Court of Civil Appeals dismissing its appeal was in conflict with previous decisions of this Court. On June 9, 2009, we granted Directory Assistants’ petition. We now reverse and remand.

Directory Assistants argues that the trial court’s denial of its motion to dismiss is tantamount to a denial of a motion to compel arbitration because, it says, the ground for the motion, which the trial court clearly understood, was that the issues raised in CCT’s complaint were subject to mandatory arbitration pursuant to the unambiguous terms of the contract between the parties. Because Rule 4(d), Ala. R.App. P., specifically provides that an order denying a motion to compel arbitration is appealable as a matter of right, Directory Assistants argues that the Court of Civil Appeals erred by dismissing its appeal. We agree.

On the first page of the motion to dismiss Directory Assistants filed with the trial court, Directory Assistants stated that the purpose of the motion was to prevent the litigation of the issues raised by CCT “because they are subject to mandatory arbitration.” Moreover, the heading of Directory Assistants’ first argument in that motion was “CCT’s claims, if viable at all, are subject to arbitration and therefore must be dismissed by this court.” Directory Assistants then argued that “the ‘arising out of or relating to’ language of the [Directory Assistants]/CCT contract is broad enough to encompass and require arbitration of CCT’s claims brought in this lawsuit....” Directory Assistants concluded its motion by stating that “[CCT’s] claims as brought herein, if viable, are subject to arbitration.”

The purpose of Directory Assistants’ motion was not lost on the trial court; its order denying that motion acknowledged that “[CCT] contends (1) [Directory Assistants’] claims are subject to arbitration. ...” Accordingly, the trial court’s order denying Directory Assistants’ motion to dismiss CCT’s case was a rejection of Directory Assistants’ argument that CCT’s claims were subject to mandatory arbitration. Importantly, the trial court’s order did not merely defer a decision on whether arbitration was appropriate; rather, it effectively denied Directory Assistants its right to arbitration and ordered it to file an answer and to litigate the case. Thus, the circumstances in this case are different from those in Ex parte Walker Regional Medical Center, Inc., 825 So.2d 741, 744 n. 1 (Ala.2001), in which this Court stated:

“The provisions of Rule 4(d)[, Ala. R.App. P.,] would not encompass the order entered by the trial judge in this case ... because the trial court had not ruled on the motion to compel arbitra1 tion. If a party desires appellate review of a trial court’s order continuing a motion to compel arbitration in order to permit discovery, whether the order was entered before or after the effective date of Rule 4(d), a petition for a writ or mandamus would be the appropriate vehicle in such a case.”

Accordingly, because the trial court’s order denying Directory Assistants’ motion to dismiss was effectively a denial of a motion to compel arbitration and because such an order is appealable as a matter of right pursuant to Rule 4(d), Ala. R.App. P., the Court of Civil Appeals erred by dismissing the appeal filed by Directory Assistants. Therefore, its judgment is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . Pursuant to § 12-2-7(6), Ala.Code 1975, this Court may transfer to the Court of Civil Appeals certain civil cases for determination by that court.

      . In fact, Directory Assistants asserts that the issues raised by CCT in its complaint have already been the subject of an arbitration proceeding that was conducted in Connecticut. Directory Assistants asserts that CCT participated in that arbitration; CCT denies participation and states that its involvement in that arbitration consisted of only one letter it wrote to the altemative-dispute-resolution agency. Ultimately, that arbitration produced a judgment in favor of Directory Assistants and against CCT in the amount of $33,421.32.


author: PITTMAN, Judge.

text:
    DIRECTORY ASSISTANTS, INC. v. COOKE, CAMERON, TRAVIS AND COMPANY, P.C. Cooke, Cameron, Travis and Company, P.C. v. Directory Assistants, Inc.
    2080256 and 2081186.
    Court of Civil Appeals of Alabama.
    April 16, 2010.

      Benjamin S. Goldman of Hand Arendall LLC, Birmingham; and Douglas L. McCoy of Hand Arendall LLC, Mobile, for appellant Directory Assistants, Inc., in case no. 2080256.
    Richard M. Gaal and Amelia T. Driscoll of McDowell Knight Roedder & Sledge, LLC, Mobile, for appellee Directory Assistants, Inc., in case no. 2081186.
    Robert W. Shores, Fultondale, for appel-lee/cross-appellant Cooke, Cameron, Travis and Company, P.C.
   PITTMAN, Judge.

These consolidated appeals arise out of a dispute between an Alabama accounting firm, Cooke, Cameron, Travis and Company, P.C. (“the accounting firm”), and a Connecticut advertising-consulting firm, Directory Assistants, Inc. (“the consulting firm”). In June 2006, the accounting firm and the consulting firm entered into a three-page written agreement pursuant to which the consulting firm agreed to help the accounting firm to “identify business factors”; to “diselos[e] information, cost saving suggestions, theories, options, and advice” to be considered by the accounting firm in contracting for its printed and online telephone-directory advertising; to assist the accounting firm with advertising design and placement; to review and verify advertising placement; and to review and verify current advertising costs and forecast future costs. The consulting firm agreed to perform those actions for three years in consideration for payment of a fee based upon cost savings inuring to the accounting firm. The contract further contained the following provisions regarding to resolution of disputes:

“The parties agree to resolve any dispute arising out of or relating to this contract through confidential binding arbitration conducted pursuant to the Federal Arbitration Act and agree to choose a mutually agreeable arbitration service, location and choice of law forum. In the event the parties are unable to agree on an arbitration service, location or choice of law forum for the arbitration, or if one party refuses to participate in choosing, the party filing the demand shall have the sole right to choose the arbitration service, the location of the arbitration and the choice of law forum and both parties hereby expressly consent to and waive any and all objections to the arbitration service, all jurisdictional issues or the choice of law forum chosen. “The arbitration will be administered under the chosen service’s most expedited commercial arbitration rules. The parties agree the total arbitrator compensation will not exceed $2,500.00 total and that each side will be limited to two witnesses. The [alternative dispute resolution] service will render an award within forty-five days of the appointment of an arbitrator. Within two weeks of a demand being filed, [the consulting firm] agrees to provide the [accounting firm] with its complete file and the [accounting firm] agrees to provide [the consulting firm] with all its advertising contracts and confirming orders for the past three years. Failure to do so will waive any objection to [the consulting firm’s] damage[s] calculation. The parties agree that if the arbitrator finds there is a contract, he/she is required to award [the consulting firm] all its attorney’s fees, all arbitration costs and all interest from the date the first book in the baseline program closes.
“The parties also agree the arbitrator will have no authority to award punitive damages, will not render any ‘middle ground’ or ‘compromise awards’ and must hold the parties to the terms of the contract. A judgment upon an arbitration award may be obtained and entered upon the award in any court in either Connecticut or the home state of the [accounting firm], at the option of the prevailing party, and both parties hereby expressly consent to and waive any objection to the jurisdiction of the court selected by the prevailing party for purposes of seeking a judgment on any arbitration award.”

The contract bears signatures of representatives of both parties that are dated June 8, 2006.

At some point after the contract was signed, representatives of the accounting firm notified one of the consulting firm’s agents that the accounting firm would need no services provided by the consulting firm because the accounting firm would no longer be advertising in commercial telephone directories in Alabama. Although the consulting firm issued an invoice to the accounting firm seeking payment for consulting services, the accounting firm refused to pay the invoice, denying that the accounting firm owed any monetary obligation to the consulting firm. The consulting firm then notified the accounting firm that the consulting firm would be initiating arbitration proceedings. In December 2007, an arbitrator held a hearing and then rendered a decision as to the parties’ dispute in which it was determined that the parties’ contract was “valid and enforceable,” that the parties’ dispute was arbitrable, and that the accounting firm was due to pay the consulting firm liquidated damages of $23,716.80 plus late fees, copying costs, and arbitration costs.

While the arbitration proceedings were taking place, the accounting firm filed a complaint in the Jefferson Circuit Court. The accounting firm sought a declaratory judgment that, among other things, determined the alleged contract between the parties to be void on the authority of Alabama’s “door-closing” statute, Ala.Code 1975, § 10-2B-15.02, which prohibits foreign corporations that fail to qualify to do business within Alabama from enforcing contracts in the state, and averred that there had been no meeting of the parties’ minds so as to cause the formation of a valid contract. The action filed by the accounting firm, which we will call the declaratory-judgment action, was assigned case no. CV-07-902773 by the trial court.

In February 2008, the consulting firm entered a limited appearance in the declaratory-judgment action and filed a motion to dismiss for lack of subject-matter jurisdiction, averring that the accounting firm’s claims were barred, the consulting firm said, because they were subject to mandatory arbitration, because they were barred or precluded by the previous arbitration decision, and because venue was allegedly improper in the Jefferson Circuit Court. The consulting firm filed a number of evidentiary exhibits in support of its motion to dismiss tending to show that the parties had agreed to arbitration, that arbitration proceedings had been initiated and completed in Connecticut in which the consulting firm had been awarded $33,421.32 plus interest, and that confirmation of the arbitral award by a Connecticut trial court was expected. The accounting firm filed a response in opposition to the consulting firm’s motion to dismiss. After a hearing, the trial court entered an order on April 3, 2008, denying the motion to dismiss the declaratory-judgment action, citing the door-closing statute and concluding that “[i]f the contract is void, the right to select [a] forum for arbitration would also not be enforceable.”

On May 6, 2008, the consulting firm filed a notice of appeal to the Alabama Supreme Court from the trial court’s April 3, 2008, order; in its docketing statement, the consulting firm admitted that the order did not dispose of all claims against all parties and that the trial court had not directed the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., but the consulting firm claimed that the appeal was “taken pursuant to Rule 4(d) of the Alabama Rules of Appellate Procedure, which provides for appeals as a matter of right from an order denying a motion to compel arbitration.” On November 21, 2008, after all briefs had been filed, the Alabama Supreme Court entered an order that provided, in pertinent part:

“A copy of the record having been submitted and considered by this Court, and it appearing that the appeal may be from an order that is not appealable, the [consulting firm] is directed to provide this Court, in writing, within ten (10) days, its reasons why this appeal should not be dismissed. The [consulting firm] is specifically directed to address whether the trial court’s order dated April 3, 2008 ... is a denial of [a] motion to compel arbitration and is an appealable order pursuant to Rule 4(d), Alabama Rules of Appellate Procedure.
“The [accounting firm] may file a response within seven (7) days after the filing of the [consulting firm’s] arguments.”

The parties then filed responses to the Alabama Supreme Court’s order; however, before the Alabama Supreme Court made a ruling on the matter, it transferred the appeal to this court on the basis that it fell within this court’s jurisdiction (presumably because the aggregate amount awarded in the Connecticut arbitration proceeding did not exceed $50,000). That appeal was then assigned case no. 2080256 by this court. Although this court initially dismissed the consulting firm’s appeal for lack of jurisdiction after determining from the record and the parties’ briefs that Rule 4(d), Ala. R.App. P., did not apply to that interlocutory appeal, see Directory Assistants, Inc. v. Cooke, Cameron, Travis & Co. (No. 2080256, March 25, 2009), 46 So.3d 29 (Ala.Civ.App.2009) (table), our judgment of dismissal was itself reversed by the Alabama Supreme Court, and the cause has been remanded for further proceedings. Ex parte Directory Assistants, Inc., 49 So.3d 1172 (Ala.2009).

During the pendency of the declaratory-judgment action, the Superior Court of the Judicial District of Hartford, Connecticut, confirmed the December 2007 arbitration award and entered a judgment in favor of the consulting firm for $33,421.32 plus interest. After filing its notice of appeal in the declaratory-judgment action, the consulting firm commenced an action in the Jefferson Circuit Court to register the Connecticut judgment pursuant to the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), Ala.Code 1975, § 6-9-230 et seq., filing in support thereof a certified copy of the Connecticut judgment and affidavit of its counsel verifying the validity and enforceability of, and the circumstances leading to the entry of, that Connecticut judgment. The judgment was registered on June 11, 2009, and a judgment was entered by the Jefferson Circuit Court on that judgment on that date.

On July 10, 2009, the accounting firm filed a motion to set aside the Alabama judgment entered on the registered Connecticut judgment in which it noted the pendency of the declaratory-judgment action and of the pending appeal therein and contended that the contract upon which the arbitration award and the Connecticut judgment were based was void. No affidavits or other evidentiary exhibits were filed in support of the accounting firm’s motion. In response to the accounting firm’s motion, the consulting firm filed a response positing that the accounting firm’s motion should be denied because no showing had been made that the Connecticut judgment had been entered in the absence of jurisdiction to act. The Jefferson Circuit Court denied the accounting firm’s motion to set aside that court’s judgment in the registration action on July 21, 2009, and the accounting firm appealed to this court. That appeal was assigned ease no. 2081186. On the motion of the accounting firm, case nos. 2080256 and 2081186 have been consolidated by this court, and the accounting firm has indicated that it will rely upon its arguments in its briefs filed in the appeal in the declaratory-judgment action regarding the claimed invalidity of the parties’ agreement as authority for reversal of the trial court’s judgment in the registration action.

Before we reach the merits of the appeal in case no. 2080256, which concerns whether the accounting firm stated a valid claim for a declaratory judgment with respect to the parties’ rights and obligations under their contract, we note that the consulting firm has advanced the argument, in its appellee’s brief filed in the appeal in the registration action, that the entry of a final judgment by the Connecticut court confirming the award renders moot the questions presented in the appeal in the declaratory-judgment action. We agree with the consulting firm that the Connecticut court’s entry of a judgment on the arbitration award significantly alters the parties’ litigation playing field, and we deem it prudent to address the appeal in the registration action first as an analytical matter.

As the consulting firm correctly notes, “[w]hen a party seeks domestication of a valid foreign judgment under the UEFJA, the only basis to challenge domestication is that the foreign court did not have jurisdiction to enter the judgment.” Filer v. Owings, 975 So.2d 996, 1000 (Ala.Civ.App.2007); accord Feore v. Feore, 627 So.2d 411, 413 (Ala.Civ.App.1993) (if the foreign court’s jurisdiction is “not lacking,” full faith and credit must be extended to a judgment of that court). We have held that the authentication and filing of a foreign court’s judgment with an Alabama circuit court pursuant to the UEFJA “creates a rebuttable presumption that the court rendering that judgment had jurisdiction to do so and shifts to the party challenging that judgment the burden of producing evidence to rebut the presumption.” Cambria, Inc. v. Worldwide Custom Materials, Inc., 10 So.3d 615, 617 (Ala.Civ.App.2008). Cambria further holds that when the party challenging the judgment “produce[s] no evidence to ... rebut the presumption that the [foreign] court had jurisdiction to enter [its] judgment,” there is no valid basis for an Alabama circuit court to set aside its judgment based upon the foreign registered judgment. Id.

On appeal, the accounting firm does not contest the subject-matter jurisdiction of the Connecticut superior court. Rather, the accounting firm says in its reply brief that the accounting firm executed the contract in Alabama, that its representatives never traveled to Connecticut, that it contracted for services referable only to advertising to be placed in Alabama for business to be solicited in Alabama, that it never paid moneys by mail to Connecticut, and that it never purposefully availed itself of the jurisdiction of Connecticut courts. However, the accounting firm fails to acknowledge that those contentions, like the unsworn allegations we deemed insufficient in Cambria to rebut the presumption of jurisdiction, are completely devoid of evidentiary support. To the contrary, the parties’ contract itself provides (a) that a judgment upon an arbitration award may properly be entered in any court in Connecticut or the accounting firm’s home state, at the election of the prevailing party; and (b) that all contracting parties consent to, and waive any objection to, the jurisdiction of the court selected by the prevailing party for purposes of seeking a judgment on such an arbitration award. Despite the accounting firm’s contention that sufficient contacts with Connecticut were lacking to support the exercise of personal jurisdiction by the court there, Connecticut law is clear that a contractual waiver of personal-jurisdiction objections, such as that appearing in the parties’ contract, is enforceable in Connecticut courts. See Doctor’s Assocs., Inc. v. Keating, 72 Conn.App. 310, 313-15, 805 A.2d 120, 122-23 (2002) (consent to arbitration in Connecticut amounted to consent to personal jurisdiction of Connecticut courts), aff'd on other grounds, 266 Conn. 851, 836 A.2d 412 (2003).

Having determined that the accounting firm did not meet its burden of proof as to its personal-jurisdiction challenge to the Connecticut court’s judgment entered on the arbitration award, it follows that we must conclude that the Jefferson Circuit Court properly afforded the Connecticut court’s judgment full faith and credit in refusing to set aside the registration judgment. Under Filer and Feore, the substantive merits of a foreign judgment such as the Connecticut judgment are not susceptible to reexamination by an Alabama court upon a motion to set aside the registration of the foreign judgment. Tongue, Brooks & Co. v. Walser, 410 So.2d 89, 90 (Ala.Civ.App.1982) (“Full faith and credit prohibits an inquiry into the merits of the original cause of action.”). We thus affirm the Jefferson Circuit Court’s registration judgment presented for review in case no. 2081186.

Having affirmed the registration judgment, we turn next to the question whether the trial court’s refusal to dismiss the accounting firm’s declaratory-judgment action challenging the validity of the contract (and arbitration provision) at issue remains ripe for this court’s review. An appeal is due to be dismissed as moot if an event occurring after the trial court has entered its order or judgment makes determination of the appeal unnecessary or makes the granting of effectual relief impossible. Estate of Mollett v. M & B Builders, LLC, 749 So.2d 466, 469 (Ala.Civ.App.1999). Our conclusion that the consulting firm has a valid and outstanding Alabama judgment against the accounting firm based upon the arbitration award giving rise to the Connecticut judgment prevents the Jefferson Circuit Court from granting contrary declaratory relief in the manner sought by the accounting firm in its complaint. “ ‘There must be a justicia-ble controversy between the parties where legal rights are thwarted or affected to warrant proceedings under the Declaratory Judgment statutes.’ ” Rogers v. Alabama Bd. of Educ., 392 So.2d 235, 237 (Ala.Civ.App.1980) (quoting Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis added). Because the parties’ legal rights can no longer be “thwarted or affected” in light of our affirmance in case no. 2081186, we dismiss the appeal in case no. 2080256 as moot, and we likewise instruct the Jefferson Circuit Court to dismiss the accounting firm’s declaratory-judgment action as moot.

2080256 — APPEAL DISMISSED WITH INSTRUCTIONS.

2081186 — AFFIRMED.

THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.

BRYAN, J., concurs in the result, without writing.

      . Evidentiary exhibits may be freely submitted in support of, or in opposition to, a motion to dismiss that challenges the trial court's subject-matter jurisdiction or venue. See, e.g., Williams v. Skysite Commc'ns Corp., 781 So.2d 241, 245 (Ala.Civ.App.2000).


author: /s/ Sue Bell Cobb Sue Bell Cobb Chief Justice /s/ Champ Lyons, Jr. Champ Lyons, Jr. /s/ Thomas A. Woodall Thomas A. Woodall /s/ Lyn Stuart Lyn Stuart /s/ Patricia M. Smith Patricia M. Smith /s/ Michael F. Bolin Michael F. Bolin /s/ Tom Parker Tom Parker /s/ Greg Shaw Greg Shaw Associate Justices /s/ Glenn Murdock Glenn Murdock Associate Justice

text:
    OPINION OF THE JUSTICES.
    No. 384.
    Supreme Court of Alabama.
    March 10, 2010.
   Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

We have received Senate Resolution No. 72, requesting an opinion of the Justices as to whether the “Sanford Amendment,” which the Alabama Senate has adopted and which amends Senate Bill 121 (“S.B. 121”) now pending before the Alabama Legislature, would, if the constitutional amendment proposed by S.B. 121 is ratified, violate certain clauses of the United States Constitution.

The questions posed by Senate Resolution No. 72 are as follows:

“1. Does the Sanford Amendment to S.B. 121, or any part thereof, violate the commerce clause of the United States Constitution, Article I, Section 8, Clause 3?
“2. Does the Sanford Amendment to S.B. 121, or any part thereof, violate the privileges and immunities clause of the United States Constitution, Article IV, Section 2, Clause 1?
“3. Does the Sanford Amendment to S.B. 121, or any part thereof, violate the Equal Protection Clause of the United States Constitution, Fourteenth Amendment?”

S.B. 121 proposes an amendment to the Constitution of Alabama of 1901. The Sanford Amendment amends S.B. 121. S.B. 121, with the language added by the Sanford Amendment emphasized, reads, in pertinent part:

“Beginning in the fiscal year ending September 30, 2011 and continuing through the fiscal year ending September 30, 2020, the Legislature shall appropriate from the Alabama Trust Fund the amount of one hundred million dollars ($100,000,000) in each fiscal year. The appropriation may be made in either the general appropriations act or a separate appropriations act, and the funds shall be distributed as provided in subdivisions 1 and 2 below. Not less than twenty-five percent of this amount shall be used for maintenance and repairs.
“(1) Seventy-five percent of the appropriation from the Alabama Trust Fund shall be distributed to the Department of Transportation for state highways, roads, and bridges and other transportation allocated as follows:
“a. At least five million ($5,000,000) of this amount shall be used in each congressional district in this state as these districts exist on the effective date of this amendment. For the fiscal year ending September 30, 2011 and 2012, the funds allocated to the Fifth Congressional district shall be further allocated to the City of Huntsville for infrastructure supporting the growth and expansion related to the Defense Base Closure and Realignment Commission (BRAC).
“b. One million ($1,000,000) of this amount shall be distributed to the Alabama Shortline Railroad Infrastructure Rehabilitation Fund established by Act No. 2008-382 in the 2008 Regular Session. These funds shall be granted in a manner which will enhance economic development and growth by providing for the proper rehabilitation and upgrading of shortline railroads. In order to be eligible to receive grant funds from this allocation an eligible grantee must provide matching funds equal to 20% of the amount of the grant award which shall be allocated for the same purposes for which the grant is made.
“c. The department shall not distribute any funds to any company or corporation providing transportation products or services unless the company or corporation certifies to the department that it is an Alabama based company or corporation employing only Alabama residents.
“(2) The remaining twenty-five (25%) shall be distributed to the counties and municipalities to be used for new construction and maintenance and repair. This amount shall be allocated as follows:
“a. Forty-five percent (45%) shall be allocated equally among the sixty-seven counties of the state.
“b. Fifty-five percent (55%) shall be allocated among the sixty-seven counties of the state on the basis of the ratio of the population of each county to the total population of the state according to the then next preceding federal decennial census.
“c. Ten percent of the total amount allocated to each county in accordance with subdivisions (2)a. and b. of this amendment shall be distributed among the municipalities within the county on the basis of the ratio of the population of each municipality to the total population of all municipalities in the county according to the then next preceding federal decennial census except that in the fiscal year ending September 30, 2011 and 2012, any funds allocated to Madison County under subsection (a) and (b) shall be further allocated to the City of Huntsville for infrastructure supporting the growth and expansion related to the Defense Base Closure and Realignment Commission (BRAC).
“d. A county or municipality shall not distribute any funds to any company or corporation providing transportation products or services unless the company or corporation certifies to the county or city that it is an Alabama based company or corporation employing only Alabama residents.
“Section 2. In order to compensate for the reduction in interest earnings to local governments due to the transfer of funds from the Alabama Trust Fund, the following additional transfers shall be made from the Alabama Trust Fund in each of the following fiscal years to be divided equally between the Municipal Government Capital Improvement Fund created in Code of Alabama 1975, Section 11-66-4 and the County Government Capital Improvement Fund created in Code of Alabama 1975, Section 11-29-4.
“FY 2011 — $1 million
“FY 2012 — $2 million
“FY 2013 — $3 million
“FY 2014 — $4 million
“FY 2015 — $5 million
“FY 2016 — $6 million
“FY 2017 — $7 million
“FY 2018 — $8 million
“FY 2019 — $9 million
“FY 2020 and each fiscal year thereafter — $10 million.
“Section 3. Each company awarded a contract funded by the proceeds from this amendment shall employ 50 percent of all new hires from state unemployment rolls. The unemployment roll hires shall have been on the rolls for a minimum of 26 weeks and shall be placed on the company payroll within 60 days of receiving project funds.”

In Opinion of the Justices No. 382, 907 So.2d 1022 (Ala.2005), this Court recognized:

“Section 12-2-10, Ala.Code 1975, provides that ‘... either house of the Legislature, by a resolution of such house, may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions.’ An advisory opinion is an opinion of the individual Justices signing the opinion; an advisory opinion is not issued by the Alabama Supreme Court acting in its judicial capacity and, therefore, is not binding precedent. Opinion of the Justices No. 381, 892 So.2d 375 (Ala.2004).
“In 1923, the members of the Supreme Court responded to the first request for an advisory opinion. The Justices considered the constitutionality of Act No. 43, Ala. Acts 1923, the Advisory Opinion Act, now codified at § 12-2-10, and stated:
“ ‘Interpreting the act according to its manifest effects, these conclusions must, of necessity prevail: (a) That the act does not at all contemplate the advice or the advisory opinions of the Justices upon any matter relating to the wisdom, desirability, or policy of prospective legislative or executive action; (b) that the merely advisory opinions contemplated are those of the individual Justices, not the Supreme Court of Alabama in its judicial capacity; (c) that specific inquiries, within the intent of the act, must involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature, as distinguished from questions involved in the ascertainment or declaration of private right or interest; (d) and that responses to questions within the purview of the act are designed to be advisory, consultative only, not concluding or binding the Governor or the House or Houses propounding inquiries or the Justices responding thereto.’
“Opinion of the Justices No. 1, 209 Ala. 593, 594, 96 So. 487, 488-89 (1923).
“The Justices of the Supreme Court have consistently restricted advisory opinions to questions on the constitutionality of proposed legislation ‘arising under a stated section or sections of the Constitution.’ Opinion of the Justices No. 219, 294 Ala. 604, 605, 320 So.2d 622, 628 (1975)....
“Advisory opinions are ‘usually given in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties and to protect the officers and departments of the state in the performance of their duties under enacted legislation.... ’ Opinion of the Justices No. 160, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957). Advisory opinions are rendered ‘outside the normal adversary system wherein pertinent facts from the record of a trial court would be presented, and the issues would be briefed by attorneys and most times orally argued before the Court.’ Opinion of the Justices No. 289, 410 So.2d 388, 391-92 (Ala.1982). Because of the nature of advisory opinions, the Justices are limited to answering questions regarding the facial constitutionality of pending legislation.”

907 So.2d at 1024-25.

With these principles in mind, we consider the questions propounded by the Senate:

Question number 1 asks the members of this Court to determine whether the Sanford Amendment to S.B. 121 violates the Commerce Clause of the United States Constitution.

Initially, we must determine whether the State in the Sanford Amendment is seeking to affect commercial transactions as a “regulator” or as a “market participant.” The United States Supreme Court in Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976), recognized that the Commerce Clause addresses mainly state taxes and regulatory measures blocking free, private trade in the national market and that it does not limit a state’s ability to operate in the free market. Thus, when a state enters the market as a participant it is not limited by the Commerce Clause. For example, in White v. Massachusetts Council of Construction Employers, 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983), the United States Supreme Court held that the City of Boston was acting as a market participant, not a regulator, when the city implemented a mayoral executive order providing that at least 50% of all construction projects funded in whole or in part by city funds must be performed by a workforce at least one-half of whom were residents of Boston. The United States Supreme Court held that the city was a market participant because the executive order did not restrict the operation of construction companies, it merely provided that if a company was awarded a construction project funded by the city, the company must employ a certain quota of Boston residents for the city-funded project. The United States Supreme Court reasoned that because the mayor’s executive order made the city a market participant, the Commerce Clause was not implicated.

Unlike the mayor’s executive order in White, which did not regulate the construction market and did not implicate the Commerce Clause, the Sanford Amendment appears to regulate the construction market. The Sanford Amendment provides that for a company or corporation to be awarded funds under the constitutional amendment proposed by S.B. 121 the company or corporation must certify that it is an “Alabama based company or corporation employing only Alabama residents.” The Sanford Amendment does not limit the company or corporation’s employ of Alabama residents to the projects funded by the constitutional amendment proposed by S.B. 121 but broadly provides that to be eligible to participate the company or corporation cannot employ any nonresident employees. It is of no effect that the nonresident employees are not working on the project funded by S.B. 121; the company or corporation cannot employ any nonresident employees to be eligible for funds under S.B. 121. Such broad language regulates the construction market by limiting whom a company or corporation can employ, regardless of whether the employee is working on a project funded by S.B. 121. Placing such a restriction on construction companies or corporations constitutes market regulation, not market participation.

Additionally, the Supreme Court in White held that the mayor’s executive order did not violate the Commerce Clause even though the projects were funded by both city and federal moneys. To reach this conclusion, the Supreme Court examined the applicable federal statutes and recognized that “if the restrictions imposed by the city on construction projects financed in part by federal funds are directed by Congress then no dormant Commerce Clause issue is presented.” 460 U.S. at 213, 103 S.Ct. 1042. The Supreme Court held that “the federal regulations for each program affirmatively permit the type of parochial favoritism expressed in the order.” Id.

Because the question presented rests merely upon the language of the Sanford Amendment to S.B. 121 and does not indicate whether funding for the anticipated transportation-infrastructure projects will also be provided by federal, private, or other moneys, we cannot discern whether the Sanford Amendment is violative of the Commerce Clause in this regard.

Because we conclude that the State, in light of the broad language of the Sanford Amendment, is regulating the market rather than merely participating in it, we must determine whether the Sanford Amendment places a burden on interstate commerce that is permitted by the Commerce Clause.

In Maine v. Taylor, 477 U.S. 131, 137-38, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986), the United States Supreme Court stated:

“The Commerce Clause of the Constitution grants Congress the power ‘[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ Art. I, § 8, cl. 3. ‘Although the Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade.’ Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 35 (1980).... The limitation imposed by the Commerce Clause on state regulatory power ‘is by no means absolute,’ and ‘the States retain authority under them general police powers to regulate matters of “legitimate local concern,” even though interstate commerce may be affected.’ Id., at 36.
“In determining whether a State has overstepped its role in regulating interstate commerce, this Court has distinguished between state statutes that burden interstate transactions only incidentally, and those that affirmatively discriminate against such transactions. While statutes in the first group violate the Commerce Clause only if the burdens they impose on interstate trade are ‘clearly excessive in relation to the putative local benefits,’ Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), statutes in the second group are subject to more demanding scrutiny. The Court explained in Hughes v. Oklahoma, 441 U.S. [322], 336 [ (1979) ], that once a state law is shown to discriminate against interstate commerce ‘either on its face or in practical effect,’ the burden falls on the State to demonstrate both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means. See also, e.g., Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 957 (1982); Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 353 (1977); Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951).”

The United States Supreme Court has made it clear that railroads, highways, and bridges constitute instrumentalities of interstate commerce that Congress can regulate under the Commerce Clause. The Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914) (railroads); Alstate Constr. Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745 (1953) (highways); Overstreet v. North Shore Corp., 318 U.S. 125, 129, 63 S.Ct. 494, 87 L.Ed. 656 (1943) (intrastate bridge over navigable waters).

The Sanford Amendment requires that the funds provided in the constitutional amendment proposed by S.B. 121 for the construction, maintenance, and repair of state highways, roads, bridges, and railroads be distributed to “Alabama based companies] or corporation^] employing only Alabama residents.” Such language on its face discriminates against interstate trade by providing differential treatment between in-state businesses and out-of-state businesses desiring to work on state highways, roads, bridges, and railroads. In-state businesses are benefited; out-of-state businesses are burdened. Therefore, we conclude that the Sanford Amendment affirmatively discriminates. Our inquiry, however, does not end here.

“Discriminatory laws motivated by ‘simple economic protectionism’ are subject to a ‘virtually per se rule of invalidity,’ Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978), which can only be overcome by a showing that the State has no other means to advance a legitimate local purpose, Maine v. Taylor, 477 U.S. 131, 138 (1986).”

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338-39, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007). Therefore, we must determine whether the Sanford Amendment serves a “legitimate local purpose” that “cannot be served as well by available nondiscriminatory means.” Maine, 477 U.S. at 138, 106 S.Ct. 2440.

In today’s economic climate with the State of Alabama’s high rate of unemployment, it is easy to discern that the Sanford Amendment attempts to fulfill a “legitimate local purpose,” namely, providing jobs for Alabama’s citizens. Indeed, this State has a vested interest in having its citizens employed. However, it is equally true that the employment of Alabama’s citizens can be achieved through other reasonable nondiscriminatory means that do not interfere with interstate commerce. For example, the constitutional amendment proposed by S.B. 121, without the Sanford Amendment, would, as a practical matter, if ratified, cause substantial sums of money to be spent throughout Alabama and thereby promote Alabama businesses and employees to a degree sufficient to qualify as an alternative means to further local interest without a discriminatory impact on interstate commerce. Therefore, because we can envision means of providing jobs for Alabama’s citizens that achieve a “legitimate local purpose” and are nondiscriminatory, we conclude that the Sanford Amendment violates the Commerce Clause of the United States Constitution.

We therefore answer question number 1 in the affirmative. Because the answer to question number 1 is dispositive, we need not address whether the Sanford Amendment is also violative of the Privileges and Immunities Clause or the Equal Protection Clause of the United States Constitution. We, therefore, respectfully decline to answer questions number 2 and 3.

QUESTION NUMBER 1 ANSWERED; QUESTIONS NUMBER 2 and 3 DECLINED.

Respectfully Submitted,

/s/ Sue Bell Cobb Sue Bell Cobb Chief Justice

/s/ Champ Lyons, Jr. Champ Lyons, Jr.

/s/ Thomas A. Woodall Thomas A. Woodall

/s/ Lyn Stuart Lyn Stuart

/s/ Patricia M. Smith Patricia M. Smith

/s/ Michael F. Bolin Michael F. Bolin

/s/ Tom Parker Tom Parker

/s/ Greg Shaw Greg Shaw Associate Justices

Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

I have received Senate Resolution No. 72, requesting an advisory opinion as to whether the “Sanford Amendment,” which amends Senate Bill 121, would violate, among other provisions, the Commerce Clause of the United States Constitution. The other Justices in an advisory opinion issued today have determined that it would. I decline to answer the question.

I am not persuaded that the distinction the advisory opinion of the other Justices seeks to draw between the type of entities with which the government chose to deal in White v. Massachusetts Council of Construction Employers, 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983), and the type of entities with which the government would choose to deal here makes a difference to the reasoning and holding of White. I therefore have declined to join in the advisory opinion concerning the Commerce Clause signed today by the other members of this Court.

QUESTIONS DECLINED.

Respectfully Submitted,

/s/ Glenn Murdock Glenn Murdock Associate Justice