text:
    Robert ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-01120-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Janies D. Minor Sr., Oxford, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Robert Robinson was convicted in March 2006 in the Bolivar County Circuit Court of four counts of possession of a controlled substances. Robinson was sentenced to the following: thirty years in the custody of the Mississippi Department of Corrections (MDOC) and to pay a $1,000,000 fine for Count I, possession of ecstasy or methylenedioxymethampheta-mine (MDMA); eight years in the custody of the MDOC and a $100,000 fíne for Count II, possession of cocaine; three years in the custody of the MDOC and a $6,000 fine for Count III, illegal possession of marijuana; and one year in the custody of the MDOC and a $1,000 fíne for Count IV, illegal possession of alprazolam, all as a habitual offender without eligibility for parole or probation. Robinson then timely filed an appeal. This Court affirmed the circuit court’s conviction and sentence of Robinson on October 30, 2007. Robinson v. State, 967 So.2d 695 (Miss.Ct.App.2007). On January 15, 2009, Robinson received permission from the Mississippi Supreme Court to proceed with a PCR motion in the circuit court. Shortly thereafter, Robinson filed a motion for post-conviction relief (PCR) in the circuit court. The circuit court subsequently denied Robinson’s PCR motion. Robinson now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶2. On March 2, 2005, Robinson was pulled over for speeding in Bolivar County by Mississippi Highway Patrolman Dan Rawlinson. Officer Rawlinson testified that upon reaching the vehicle, he detected the smell of “raw marijuana” coming from the passenger’s area where Robinson’s nephew, William Wilson, was sitting. Furthermore, Officer Rawlinson noted the vehicle’s inspection sticker was expired, and later he discovered the vehicle identification number located inside the ear had been stripped and did not match the car’s description.

¶ 3. Officer Jacob Lott and his drug-sensing dog arrived at the scene at the request of Officer Rawlinson shortly after Robinson was pulled over. The dog alerted Officer Lott on two occasions to the presence of drugs inside the vehicle. After searching the vehicle, Officer Raw-linson discovered a bag in the trunk containing the following four controlled substances: ecstasy, cocaine, marijuana, and alprazolam. Robinson was arrested and charged with four counts of possession of a controlled substance.

¶4. Trial was set in the circuit court, and on May 4, 2006, a suppression hearing was held regarding Robinson’s motion that the evidence seized from his vehicle should be suppressed. Robinson’s counsel asserted that Officer Lott’s drug-sensing dog did not alert Officer Lott as to the drugs specifically found in the trunk of the car. Robinson’s counsel alleged the controlled substances were seized illegally because the officers were not authorized to search the trunk.

¶ 5. The circuit judge heard testimony from Officers Rawlinson and Lott. Officer Rawlinson testified that he smelled marijuana upon arriving at the driver’s door, and Officer Lott stated his dog sensed drugs on both the driver’s side and the passenger’s side of the vehicle. The circuit judge denied Robinson’s motion on the basis that the officers had probable cause to search the trunk for evidence of the crime of using illegal drugs.

¶ 6. Two days before the May 12, 2006 trial, the State moved to amend Robinson’s indictment to reflect that he was a habitual offender; therefore, Robinson was subject to a sentence enhancement under the habitual-offender statute. On the morning of the trial, the circuit court granted the State’s motion. The circuit court then proceeded with the trial, and the jury returned a verdict of guilty on all counts. After a pre-sentencing investigation and hearing, the circuit court sentenced Robinson on all four counts.

¶ 7. Robinson filed the instant PCR motion in the circuit court alleging the following errors: (1) he was improperly charged under Count I of the indictment against him; (2) his trial counsel was ineffective by failing to object to the circuit judge’s sentencing; and (3) his appellate counsel was ineffective by failing to assign error in the direct appeal regarding the circuit judge’s sentencing and admitting into evidence the search of Robinson’s vehicle, and for failing to exhaust all state-court remedies, such that Robinson was unable to pursue potential federal relief through a writ of habeas corpus.

¶ 8. The circuit court issued a nineteen-page order denying Robinson’s PCR motion on June 1, 2010. Robinson now appeals, alleging that: he was improperly charged under Count I; his trial counsel was ineffective by failing to object to his sentence; and his appellate counsel was ineffective by failing to raise three issues requested by Robinson to be raised in his direct appeal.

DISCUSSION

I. Improper Indictment

¶ 9. Robinson claims he was improperly charged under Count I for possession of ecstasy or MDMA. He asserts the language in his indictment referencing MDMA did not match the language of the statute that controls illegal possession of MDMA. “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court.” Nguyen v. State, 761 So.2d 873, 874 (¶ 3) (Miss.2000) (citation omitted).

¶ 10. However, Robinson admits that he failed to raise this issue either in his direct appeal or in his PCR motion. Instead, he urges this Court to invoke the “plain-error doctrine” under by Mississippi Rule of Evidence 103(d). Rule 103(d) states a court may, of its own accord, take “notice of plain errors affecting substantial rights although they were not brought to the attention of the court.” It is within the discretion of this Court whether reversal under the plain-error doctrine is appropriate. Id. (at cmt. (d)).

¶ 11. Robinson claims the language contained in his indictment did not properly meet the legal requirements for specificity because it did not include statutory language regarding the sale of MDMA. Robinson’s indictment reads as follows:

That ROBERT LEE ROBINSON, ... on or about March 2, 2005; ... did unlawfully, wilfully and feloniously, and without authority of law, have in his possession a certain controlled substance, to-wit: ecstasy or methylenedi-oxymethamphetamine (MDMA), a Schedule I controlled substance as listed in Section 41-29-113(c)(4) of the Mississippi Code of 1972 Annotated, as amended, in an amount greater than 40 dosage units....

Mississippi Code Annotated section 41-29-113(c)(4) (Rev.2001) was the applicable statute in effect at the time of Robinson’s indictment and convictions and listed the following as the Schedule I drug in question: “3,4-methylenedioxymethampheta-mine (MDMA).”

¶ 12. In support of his argument that his indictment was fatally flawed, Robinson draws our attention to Copeland v. State, 423 So.2d 1333 (Miss.1982). In Copeland, James Copeland was charged with “unlawfully selling, ‘a quantity of me-thylenedioxy amphetamine, a controlled substance.’ ” Id. at 1336. After Copeland was convicted by a jury, he appealed claiming the indictment did not meet specificity requirements. Id. Copeland asserted that the statute under which he was convicted stated the controlled substance at issue as “3, 4 methylenedioxy amphetamine,” and not merely “methylenedioxy amphetamine.” Id. He argued the indictment’s failure to list the appropriately scheduled drug invalidated the indictment and, hence, his conviction. Id. The Mississippi Supreme Court agreed and held “the indictment failed to charge a crime and is therefore void.” Id. at 1337.

¶ 13. While the facts of Copeland are similar to those in the present case, there is one striking difference. Contrary to Copeland, Robinson’s indictment specifically stated that he had violated Mississippi Code Annotated section 41-29-113(c)(4), which is the applicable statute and subsection listing “3,4-methylenediox-ymethamphetamine (MDMA)” as an illegal controlled substance. Because Robinson’s indictment explicitly referenced the statute under which he was convicted, we cannot find that it failed to include all material facts necessary to charge Robinson with the crime at hand. This issue is without merit.

II. Trial Counsel’s Failure to Object to Sentencing

¶ 14. It is well settled that the standard of review when discussing a claim of ineffective assistance of counsel is the two-prong analysis originally set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prove ineffective assistance of counsel, Robinson must show: “First, ... that counsel’s performance was deficient. ... Second, ... that the deficient performance prejudiced the defense.” Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss.2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Furthermore, “[i]n considering a claim of ineffective assistance of counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. at 219 (¶ 6) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 15. Robinson asserts that he received ineffective assistance of counsel when his trial counsel failed to object to the circuit court’s imposition of the maximum sentences for each count of which Robinson was convicted. Because Robinson was classified as a habitual offender, his sentence was subject to enhancement under Mississippi Code Annotated section 99-19-81 (Rev.2000). Section 99-19-81 reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 16. The statute clearly states that a trial judge “shall” impose the maximum term of imprisonment detailed for each offense once a defendant has been deemed a habitual offender. Id. Accordingly, the circuit judge in the instant case was required to sentence Robinson to the maximum amount of jail time allotted for each offense. While the statute is silent as to any imposition of fines, the circuit judge in this case assessed fines within the prescribed limits of each count’s governing statute.

¶ 17. This Court has stated, “the three factors to look at when determining whether a sentence is proportional are: ‘(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction^] and (3) the sentences imposed for commission of the same crime in other jurisdictions.’ ” Gray v. State, 926 So.2d 961, 979 (¶ 63) (Miss.Ct.App.2006) (quoting Willis v. State, 911 So.2d 947, 951 (¶ 17) (Miss.2005)). Furthermore, “when sentences are within the limits of the statute, the imposition of such sentences is within the sound discretion of the trial court, and [an appellate court] will not reverse them.” Presley v. State, 474 So.2d 612, 620 (Miss.1985) (citations omitted).

¶ 18. In sum, Robinson’s sentences of imprisonment and fines were proper. The circuit judge was required to sentence Robinson to the maximum amount of imprisonment for each count of his conviction. The fines issued by the circuit judge fell within the permitted statutory fine amounts for each count of Robinson’s conviction. As such, we find Robinson’s ineffective-assistance-of-counsel allegation is without merit.

III. Appellate Counsel’s Ineffective Assistance of Counsel

A. Failure to Assign Error in the Direct Appeal

¶ 19. Our aforementioned analysis regarding Robinson’s claim that the circuit judge improperly sentenced him is disposi-tive to Robinson’s first assignment of error that his appellate counsel was ineffective in failing to raise the proportionality of his sentence on direct appeal. Accordingly, we incorporate our prior discussion regarding ineffective assistance of counsel with respect to Robinson’s sentences and find his first assignment of error as to his appellate counsel is without merit.

¶ 20. Robinson next claims his appellate counsel committed reversible error by failing to argue that the circuit court erred in allowing into evidence the drugs found during Officers Rawlinson and Lott’s search of Robinson’s trunk. In the circuit judge’s order denying Robinson’s motion to suppress, the judge stated that “under the automobile exception, [the] police may conduct a warrantless search of an automobile and any containers therein if they have probable cause to believe that it contains contraband or evidence of crime.” This Court has recently reiterated that “[s]mell can be the basis for probable cause,” with respect to illegal drugs. Cowan v. Miss. Bureau of Narcotics, 2 So.3d 759, 766 (¶ 29) (Miss.Ct.App.2009) (quoting Townsend v. State, 681 So.2d 497, 502 (Miss.1996)). Cowan dealt with a similar set of facts: the defendant had been stopped for speeding; an officer approached the vehicle and smelled marijuana; and the officer then conducted a search of the vehicle wherein he discovered illegal drugs. Id. We held that once the officer in Cowan smelled the marijuana, he had probable cause to search the vehicle for controlled substances. Id.

¶ 21. Likewise, the circuit court was correct in ruling that the search of the vehicle in the instant case was proper. As such, it was not reversible error for Robinson’s appellate counsel to fail to raise the issue on direct appeal. Robinson’s appellate counsel’s actions do not rise to the level required to fulfill the Strickland test for ineffective assistance of counsel.

B. Failure to Exhaust All State Court Remedies

¶ 22. In Robinson’s appeal, he references his counsel’s failure to seek final review from the Mississippi Supreme Court in the form of a motion for rehearing or writ of certiorari. He claims that failure to do so prevented him from pursuing habeas corpus relief in federal court. Specifically, Robinson’s entire argument on the issue is as follows:

The point of Appellant’s argument relates to 29 U.S.C. [section] 2241 and related sections dealing with habeas corpus in the federal court system. The allegation was the Appellant’s counsel was directed to seek final review from the Mississippi Supreme Court so that he could file a federal court petition. See Davis v. State, 954 So.2d 530 (¶ 4) (Miss. [Ct.] App.2007). Whether or not this Court would have concluded that the two-prong test adopted in Alexander v. State would have caused this Court to reverse the ruling in Robinson v. State, it is clear that Appellant was prejudiced to the extent that he could not pursue remedies in federal court.

Having reviewed 29 United States Code section 2241, Robinson’s argument fails. The section referenced was repealed in November 1998 and dealt with “Technology Related Assistance for Individuals with Disabilities” and “Training and Demonstration Projects” therein. However, 28 United States Code section 2254 is titled “State custody; remedies in Federal courts,” and governs habeas corpus petitions filed in federal court concerning state-court convictions. Therein, the statute mandates that all applicants for federal habeas corpus relief must have “exhausted the remedies available in the courts of the State.” Id.

¶ 23. Here, we acknowledge that Robinson’s appellate counsel failed to file a motion for rehearing or a writ of certiorari with the Mississippi Supreme Court following this Court’s denial of Robinson’s direct appeal. Our research reflects that it is possible the failure to seek review of a direct appeal through a motion for rehearing or writ of certiorari may equate to a failure to exhaust state remedies as required by 28 United States Code section 2254(c). See Towner v. Waller, 2006 WL 2514121 (S.D.Miss.2006). However, we have also found that “failure to exhaust is not a jurisdictional or inflexible bar to the grant of federal habeas relief to a state prisoner.” Gilbert v. Kelley, 2009 WL 260792, slip op. at 3 (N.D.Miss.2009) (citing Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987)). The United States Supreme Court has held “there are some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion [of state-court remedies.]” Granberry, 481 U.S. at 131, 107 S.Ct. 1671. “Although there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies, his failure to do so is not an absolute bar to appellate consideration of his claims.” Id.

¶ 24. Additionally, the case of Jackson v. Johnson, 217 F.3d 360 (5th Cir.2000), provides substantial direction on the issue at hand. In Jackson, Stevie Don Jackson was convicted in a Texas state court of aggravated assault and later filed a federal writ of habeas corpus that was denied by the federal district court. Id. at 361. The United States Circuit Court of Appeals for the Fifth Circuit reviewed Jackson’s case solely on the issue of “whether Jackson’s attorney rendered ineffective assistance of counsel because he failed to file a timely motion for rehearing from Jackson’s first appeal of right.” Id. In its analysis, the Fifth Circuit concluded:

Jackson cannot have received constitutionally deficient counsel on his motion for rehearing, however, if he had no constitutional right to counsel for purposes of filing a rehearing motion. “A criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals.” When a state grants a criminal defendant an appeal of right, the Constitution requires only that the defendant’s claims be “once ... presented by a lawyer and passed upon by an appellate court.” Not only does a motion for rehearing come after the appellate court has passed on the claims; there can be no question that the granting of a motion for rehearing lies entirely within the discretion of a court of appeals. Rehearing at that point is by no means an appeal of right. We conclude that a criminal defendant has no constitutional right to counsel on matters related to filing a motion for rehearing following the disposition of his case on direct appeal.”

Id. at 364-65 (internal citations and footnotes omitted). As such, we cannot find error in the circuit court’s determination that Robinson’s appellate counsel’s actions did not rise to the level of constitutionally ineffective assistance of counsel. This issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.

      . We must note that Robinson is represented by different counsel in his current appeal than in all prior proceedings.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant v. William COLLINS, Appellee.
    No. 2010-SA-01671-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Jane L. Mapp, Mary Margaret Bowers, Katherine Lester Trundt, attorneys for appellant.
    Matthew Stephen Lott, Pascagoula, Hanson Douglas Horn, attorneys for ap-pellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Public Employees’ Retirement System (PERS) appeals the Hinds County Circuit Court’s judgment to reverse PERS’s decision that William Collins was ineligible for disability benefits based on coronary artery disease (CAD). Finding that substantial evidence supported PERS’s decision, we reverse the judgment of the circuit court and render to reinstate the PERS’s decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. Collins is a fifty-seven-year-old man from the Hurley community in Jackson County, Mississippi. After graduating from high school, he worked for International Paper for twenty-five years. When the International Paper plant shut down, Collins began working for the Jackson County School District as a maintenance worker.

¶ 3. During April 2006, Collins underwent his first angioplasty procedure, during which two stents were used to improve blood flow to Collins’s heart. Collins’s cardiologist, Dr. Georges Feghali, prescribed aspirin, Plavix, lisinopril, and Lipitor. Collins returned for a follow-up visit in May 2006. He reported that he was doing fine but he felt fatigue. He also reported that he had stopped taking Lipitor. Dr. Fe-ghali adjusted Collins’s medications and scheduled a return visit for six months later.

¶ 4. During September 2006, Collins had an appointment with Dr. Mahmoud Zayed, another cardiologist. Collins reported that he felt worse than he did before the angioplasty. Dr. Zayed noted that the stent had produced excellent results, although Collins had borderline blockage of the right coronary artery. Dr. Zayed adjusted Collins’s medications. Dr. Feghali saw Collins again on September 21, 2006. He reported some improvement and attributed it to having stopped taking Plavix. Dr. Feghali noted that he believed Collins was experiencing anxiety and depression because Collins believed he was limited due to having been diagnosed with CAD. Dr. Feghali told Collins to return to his previous level of activity with no limitation.

¶ 5. In July 2007, Collins injured his back at work while installing cabinets. He later underwent physical therapy. During his sessions, he complained of lower back pain and pain in his leg and knee. Collins told his physical therapist that he was not taking Plavix and was only taking aspirin on a daily basis. Collins was released from physical therapy in December 2007.

¶ 6. In March 2008, Collins had an appointment with Dr. Feghali. Dr. Feghali noted that Collins had failed to report for several appointments and had taken himself off of all medications except aspirin. Collins reported that he began having chest pain when he exerted himself. He further reported that he began experiencing chest pain approximately two months earlier. Test results were normal, but Dr. Feghali recommended a heart catheterization, which indicated that one of Collins’s blood vessels was significantly diseased. As a result, Collins underwent another angioplasty procedure. Dr. Feghali prescribed aspirin and statins for the remainder of Collins’s life, Plavix for a year or two, and cardiac rehabilitation — including diet and exercise education.

¶ 7. When Collins returned for a followup appointment with Dr. Feghali, he reported that he was doing fine. He denied that he had any chest pain or shortness of breath. However, in May 2008, Collins returned to Dr. Feghali’s office and complained that he experienced periodic chest pain — mainly when at work. He also explained that he felt he could no longer work after his surgery. Even so, Collins reported that he sometimes jogged or did heavy work without experiencing any chest pain. A subsequent “Perfusion Study” of Collins’s heart returned no negative results. During another appointment with Dr. Feghali later that month, Collins reported that he had not been working, and he was feeling better.

¶ 8. In May 2008, Collins underwent a Perfusion Study of his heart, which returned positive results. When Collins returned to his cardiologist and reported fatigue, his cardiologist noted there were no negative indications on the treadmill or scan. Following the stent, Collins reported that his chest pain was resolved, but he experienced shortness of breath and fatigue.

¶ 9. On June 6, 2008, Collins applied for non-duty related disability based on coronary artery disease. When his employment ended on June 30, 2008, Collins had five and one half years of service credit. Dr. Feghali and Dr. Zayed prepared “Form 7” reports for Collins. Neither cardiologist listed any permanent impairments.

¶ 10. Dr. Sam Peeples, a general practitioner, performed an independent medical evaluation on July 30, 2008. Dr. Peeples saw Collins for a total of fifteen minutes. After reviewing Collins’s medical records, Dr. Peeples noted that Collins had CAD, but he discounted Collins’s complaints as being psychiatric in nature. Dr. Peeples concluded he could not find Collins was physically or psychologically disabled to the point that resulted in permanent and likely total occupational disability.

¶ 11. In July 2008, Collins had another appointment with Dr. Feghali. Neither the EKG nor the catheterization that followed indicated that any further surgical procedures were warranted. Dr. Feghali noted Collins should be treated for depression if the catheterization did not explain Collins’s fatigue — which it did not.

¶ 12. Dr. Feghali wrote a memo dated September 11, 2008, in which he stated that he had treated Collins for CAD since 2006 and that he had pulled Collins from work due to unstable angina and re-stent-ing due to restenosis. Dr. Feghali also noted that Collins continued to have shortness of breath of chest pain at work due to physical activity.

¶ 18. The PERS Medical Board denied Collins’s disability claim. Collins appealed, and in November 2008, he went before the PERS Disability Appeals Committee (the Committee) for a hearing. The Committee recommended that the Board of Trustees (the Board) deny Collins’s claim. The Board accepted the Committee’s recommendation and adopted its findings of fact and conclusions of law. Collins then appealed to the Hinds County Circuit Court. The circuit court found that the Committee’s decision was arbitrary and capricious and that it was unsupported by the substantial evidence in Collins’s favor. Accordingly, the circuit court reversed the Committee’s decision. Aggrieved, PERS appeals.

STANDARD OF REVIEW

¶ 14. “Judicial review of an administrative agency’s decision is severely limited. As long as the reviewing court finds that the board’s decision was supported by evidence and absent of fraud, they shall render the board’s decision conclusive.” Pub. Employees’ Ret. Sys. v. Smith, 880 So.2d 348, 350-51 (¶ 12) (Miss. Ct.App.2004). When reviewing an administrative agency’s decision, it is necessary to review the full record before deciding whether the agency’s findings were supported by substantial evidence. Id. at 351 (¶ 13). However, “[t]here is a rebuttable presumption in favor of a PERS ruling. Neither this Court nor the circuit court is entitled to substitute [its] judgment for that of PERS, and it is impermissible for a reviewing court to reweigh the facts of the case.” Id. This Court only overturn the Board’s decision if it was either “(1) unsupported by substantial evidence, (2) arbitrary and capricious, (3) beyond the agency’s authority to make, or (4) in violation of a statutory or constitutional right of the applicant.” Id. at 350 (¶ 12).

ANALYSIS

¶ 15. Collins claimed that he was entitled to disability benefits for CAD, which he did not sustain in the course and scope of his employment. Mississippi Code Annotated section 25 — 11—113(l)(a) (Rev.2010) provides:

Upon the application of a member or his employer, any active member in state service who ... has at least four (4) years of membership service credit ... may be retired by the board of trustees ... provided that the medical board, after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, certifies that the member is mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired.

Section 25 — 11—113(l)(a) defines “disability” as:

[T]he inability to perform the usual duties of employments or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

PERS has the sole responsibility of assessing the evaluations by medical personnel and determining which evaluations to rely upon. Pub. Employees’ Ret. Sys. v. Lewis, 954 So.2d 440, 446 (¶ 13) (Miss.Ct.App.2006).

¶ 16. In adopting the Committee’s recommendation, the Board found as follows:

Mr. Collins is claiming that he has a disability because of heart disease as evidenced by his stents and that he has been told by his doctors that he is a very sick man and cannot work any longer. He specifically denies any psychiatric problems like depression or anxiety. Mr. Collins says he has angina and fatigue and that he cannot take his statin medications because they make him feel worse. This Committee, which is composed of two physicians and a nurse/at-torneyf,] were able to discuss Mr. Collins’s medical records and symptoms with him. We were able to watch him. It is clear that Mr. Collins believes he can no longer work. But the problem lies with the medical evidence that Mr. Collins provided. The evidence seems to be eomplete[,] but the problem is that the evidence, while supporting the premise that Mr. Collins does have CAD, it does not support that Mr. Collins has debilitating CAD. Mr. Collins clearly has had several stents placed in the arteries that supply blood to his heart. But, with this technology and the skills of the doctors, he has never suffered heart damage because of the disease. And what the stents do is open the diseased vessels so that they are functioning fairly normally. This Committee does note that Mr. Collins’[s] stenting procedures have been very successful even though he had to have one stent redone. But, possibly one of the reasons for that may be that Mr. Collins has not been the most compliant [person] with his medications. And, it also seems that Mr. Collins is not making a serious change in his lifestyle.
This Committee has seen the note from Dr. Feghali that Mr. Collins is unable to work. But, this memo is not supported by his many tests and the medical records. In fact, at the time of termination, Dr. Feghali, a cardiologist, was unable to identify a disabling problem with Mr. Collins’s heart. Mr. Collins says he was told that his heart is very sick. This Committee agrees that Mr. Collins has CAD, but his heart is perfectly functional at this time. This Committee submits that a diagnosis does not equal a disability. Mr. Collins never followed up with a psychiatrist to be evaluated for the possibility of depression or anxiety. He clearly stated that he did not have emotional problems. But it seems to this Committee that there is also no clear or persuasive evidence that Mr. Collins is disabled from his CAD. We would note several doctors’ records that refer to depression or anxiety as the cause of shortness of breath or chest pain. Why he never went to be evaluated for those possibilities, this Committee cannot be sure.
The job of this Committee is to evaluate the evidence before it to look for persuasive proof that Mr. Collins is disabled from a medical condition that is permanent and likely total. It is not here. That being the case, this Committee recommends that Mr. Collins[’s] claim for disability be denied.

The circuit court reversed Board’s decision. In so doing, the circuit court held that “PERS presented no evidence that [Collins] was not disabled while performing his job duties[;] thus, PERS[’s] conclusion was not based on substantial evidence. The record reflects there is substantial evidence to support the finding that [Collins] has debilitating [CAD].”

¶ 17. However, during the hearing before the Committee, one physician member of the committee noted that Collins’s medical records demonstrated Collins did not have permanent damage to his heart and the stents had restored blood flow to Collins’s heart. That Committee member concluded Collins “could do whatever [he] wanted to do at this point in time.” Another physician member of the Committee noted that Collins’s most recent evaluation by a cardiologist indicated Collins had a “clean bill of health with regard to [his] heart.” None of the medical professionals involved with Collins’s treatment and the review of his claim were able to explain Collins’s symptoms. It is noteworthy that the Committee stated it looked for “persuasive proof that Mr. Collins is disabled from a medical condition that is permanent and likely total.” Even so, the Committee was not able to find any such evidence. Based on the record, we are compelled to find that there was substantial evidence to support the Committee’s conclusion. Moreover, we cannot find that the Committee’s decision was arbitrary or capricious. Therefore, we reverse the judgment of the circuit court and render a judgment to reinstate the Board’s decision.

¶ 18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED, AND JUDGMENT IS RENDERED TO REINSTATE THE DECISION OF THE BOARD OF TRUSTEES OF THE MISSISSIPPI PUBLIC EMPLOYEES’ RETIREMENT SYSTEM. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., AND CARLTON, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Clyde CAMPBELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00655-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Clyde Campbell, appellant, pro se.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Clyde Campbell, pro se, files this motion for post-conviction relief (PCR), claiming the Adams County Circuit Court erred when it dismissed his PCR motion as procedurally barred by Mississippi Code Annotated section 99-39-5(2) (Supp.2011). Finding the circuit court lacked jurisdiction to hear Campbell’s PCR motion, we affirm the court’s dismissal on other grounds.

FACTS AND PROCEDURAL HISTORY

¶ 2. Campbell was found guilty of aggravated assault and sentenced on July 20, 1990, to life in the custody of the Mississippi Department of Corrections (MDOC), as a habitual offender, without eligibility for parole or probation. This Court affirmed his conviction on direct appeal in an unpublished opinion. Campbell v. State, 704 So.2d 465 (Miss.Ct.App.1997). Campbell had thrown gasoline on his girlfriend, Barbara Dukes, and deliberately lit a cigarette lighter, causing her to be engulfed in flames. Dukes did not die from the accident, but she did suffer serious injuries.

¶ 3. At the sentencing hearing, the State presented evidence to support Campbell’s habitual-offender status. He pleaded guilty in 1974 to assault and battery with intent to kill after shooting a police officer with the Natchez Police Department. The officer lost an eye as a result of the shooting, and he later died as an indirect result of the injuries. Campbell was sentenced to serve five years in the custody of the MDOC, but he served a little more than a year in prison. The State also showed that Campbell had a previous conviction in 1981 for carrying a concealed weapon by a felon. For that crime, Campbell was sentenced to five years in the custody of the MDOC and again served a little over a year in prison.

¶ 4. Campbell’s trial counsel objected to the introduction of the evidence, arguing that the convictions had occurred more than ten years before the current charge; therefore, they could not be considered for purposes of determining habitual-offender status. The circuit court overruled the objection, noting that the rule Campbell’s trial counsel referenced applied to evidence used during the course of the trial, but it was not applicable to habitual-offender status in sentencing. Thus, the evidence was permissible to use for sentencing purposes.

¶ 5. Campbell was sentenced to life in the custody of the MDOC as a habitual offender, without eligibility for parole or probation. Almost nineteen years later, on February 24, 2009, Campbell filed a PCR motion in the circuit court, claiming he had received ineffective assistance of counsel during the sentencing hearing, and as a result of the deficient representation, his sentence as a habitual offender was illegal.

¶ 6. The circuit court denied Campbell’s request for relief and dismissed the PCR motion as being time-barred pursuant to Mississippi Code Annotated section 99-39-5(2). The circuit court also noted that Campbell did not allege nor make any showing of a statutory exception to the time bar. Campbell now appeals.

DISCUSSION

¶ 7. When a case is affirmed on direct appeal, permission from the Mississippi Supreme Court must be obtained in order to seek post-conviction relief in the circuit court. Miss.Code. Ann. § 99-39-7 (Supp. 2011). “This procedure is not merely advisory, but jurisdictional.” Caldwell v. State, 9 So.3d 432, 433 (¶ 6) (Miss.Ct.App.2008) (citation omitted).

¶ 8. Campbell’s application for leave to proceed in the circuit court was denied by the supreme court in August 1998. Because Campbell was denied permission by the supreme court to seek post-conviction relief, the circuit court lacked jurisdiction to entertain his PCR motion. Although the circuit court lacked jurisdiction, this Court has appellate jurisdiction to address the merits of the circuit court’s judgment. See M.R.A.P. 16. See also Miss.Code Ann. § 9-4-3 (Rev.2002).

¶ 9. Campbell was convicted and sentenced on July 20, 1990, but he waited almost nineteen years to fíle a PCR motion. As such, the circuit court dismissed his PCR motion as time-barred. See Miss. Code Ann. § 99-39-5(2). However, we find the circuit court lacked jurisdiction in this matter as the supreme court had denied Campbell’s request for leave to file a PCR motion in the circuit court. It is well-settled law that on appeal this Court may affirm a circuit court’s ruling for different reasons than those offered by the circuit court. Robinson v. State, 19 So.3d 140, 143 n. 1 (Miss.Ct.App.2009) (citations omitted). Accordingly, we affirm the circuit court’s dismissal of Campbell’s PCR motion, but on the grounds that the circuit court lacked jurisdiction.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.


author: WOODALL, Justice.

text:
    Monica WARE v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2.
    1100822.
    Supreme Court of Alabama.
    June 17, 2011.
    Rehearing Denied Aug. 5, 2011.

      Kenneth J. Lay and Rhonda Steadman Hood, Birmingham, for appellant.
    Greggory M. Deitsch and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham, for appellee.
   WOODALL, Justice.

Monica Ware appeals from a summary judgment in favor of Deutsche Bank National Trust Company, as trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2 (“the trustee”), in the trustee’s ejectment action against her. We affirm.

I. Factual and Procedural Background

The essential facts are undisputed. On May 17, 2008, and for two successive weeks thereafter, a notice was published in the Alabama Messenger, a newspaper published in Birmingham, stating, in pertinent part:

“NOTICE OF FORECLOSURE SALE
“Default having been made in payment in the payment of the indebtedness secured by that certain mortgage executed by Monica S. Ware and spouse, Gerald James Ware,[] to Option One Mortgage Corporation on July 29, 2005, said mortgage being recorded in the office of the Judge of Probate of Jefferson County, Alabama, in Instrument No. 200511/1622, and subsequently transferred and assigned to Deutsche Bank National Trust Company as trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2; Deutsche Bank National Trust Company as trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, under and by virtue of the power of sale contained in said mortgage, will sell at public outcry to the highest bidder for cash in front of the main entrance of the Jefferson County Courthouse, in Birmingham, Alabama, on June 4, 2008, during the legal hours of sale, the following described real estate, situated in Jefferson County, Alabama. ...
“[Description of property.]
“... This sale is made for the purpose of paying the indebtedness secured by said mortgage, as well as the expense of foreclosure.
“Deutsche Bank National Trust Company as Trustee for HSI Asset Secu-ritization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, Transferee.”

(Emphasis added.)

On June 4, 2008, an instrument was executed reading, in pertinent part:

“FORECLOSURE DEED “KNOW ALL MEN BY THESE
PRESENTS, That whereas heretofore on July 29, 2005, Monica S. Ware and spouse, Gerald James Ware, executed a certain mortgage on the property hereinafter described to Option One Mortgage Corporation, which said mortgage was recorded in the Office of the Judge of Probate of Jefferson County, Alabama, as Instrument No. 200511/1622; and
“WHEREAS, in and by said mortgage the mortgagee was authorized and empowered in case of default in the payment of the indebtedness thereby secured according to the terms thereof, to sell said property before the Jefferson County Courthouse door in the City of Birmingham, Alabama, after giving notice of the time, place and terms of said sale in some newspaper published in said city by publication once a week for three consecutive weeks prior to said sale at public outcry for cash to the highest bidder, and said mortgage provided that in case of sale under the power and authority contained in same, the mortgagee or any person conducting said sale for the mortgagee was authorized to execute title to the purchaser at said sale; and it was further provided in and by said mortgage that the mortgagee may bid at the sale and purchase said property if the highest bidder therefor; and
“WHEREAS, default was made in the payment of the indebtedness secured by said mortgage, and the said Option One Mortgage Corporation did declare all of the indebtedness secured by said mortgage due and payable and did give due and proper notice of the foreclosure of said mortgage by publication in the Alabama Messenger, a newspaper published in Jefferson County, Alabama, and of general circulation in Jefferson County, Alabama, in its issues of May 17, May 24, and May 31, 2008; and
“WHEREAS, on June 4, 2008, the day-on which the foreclosure was due to be held under the terms of said notice, between the legal hours of sale, said foreclosure was duly and properly conducted, and Option One Mortgage Corporation did offer for sale and sell at public outcry in front of the Jefferson County Courthouse in the City of Birmingham, Alabama, the property hereinafter described; and
“WHEREAS, Scott J. Humphrey was the auctioneer who conducted said foreclosure sale and was the person conducting said sale for the said Option One Mortgage Corporation; and
“WHEREAS, the highest and best bid for the property described in the aforementioned mortgage was the bid of Deutsche Bank National Trust Company, as Trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, in the amount of $465,375.00, which sum of money Option One Mortgage Corporation offered to credit on the indebtedness secured by said mortgage, and the said Option One Mortgage Corporation, by and through Scott J. Humphrey, as auctioneer conducting said sale and as attorney-in-fact for Option One Mortgage Corporation, does hereby GRANT, BARGAIN, SELL AND CONVEY unto the said Deutsche Bank National Trust Company, as Trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, the following described property situated in Jefferson County, Alabama, to-wit:
“SEE ATTACHED EXHIBIT ‘A’
“TO HAVE AND TO HOLD the above described property to Deutsche Bank National Trust Company, as Trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, and its successors and assigns; subject, however, to the statutory right of redemption on the part of those entitled to redeem as provided by the laws of the State of Alabama.
“IN WITNESS WHEREOF, Monica S. Ware and Gerald James Ware, and Option One Mortgage corporation have caused this Instrument to be executed by and through Scott J. Humphrey, as auctioneer conducting said sale and as their attorney-in-fact, and Scott J. Humphrey, as auctioneer conducting said sale, has hereto set his hand and seal on this the 4th day of June, 2008.”

(Emphasis added.)

On August 29, 2008, the trustee filed a complaint seeking to eject the Wares from the property, pursuant to Ala.Code 1975, § 6-6-280. It claimed to be entitled to immediate possession of the property by virtue of its purchase pursuant to a foreclosure sale. Ware filed her answer to the complaint on June 1, 2009, containing a general denial of all allegations, but stating no affirmative defenses or counterclaims.

On July 9, 2009, the trustee filed a motion for a summary judgment. The motion was accompanied by a copy of the foreclosure deed and the affidavit of Connie White, assistant vice president of the trustee, who verified the deed. She stated that she was “in charge of the books and records of the [trustee] regarding the account made the basis of this action” and that she “ha[d] personal knowledge of the facts set forth in [the] affidavit.” She stated: “[The trustee] avers that by virtue of foreclosure on ... June 4, 2008, of that certain mortgage originally between [the Wares] and [Option One], [the trustee became] the owner of the ... real property.” She stated that the Wares had “failed and refused to vacate the ... property despite [the trustee’s] demands to do so.” A hearing on the summary-judgment motion was scheduled for September 10, 2009.

On September 8, 2009, Ware’s counsel requested additional time in which to respond to the summary-judgment motion and filed an affidavit stating the reasons for the request. See Rule 56(f), Ala. R. Civ. P. On September 10, 2009, the trial court stayed the hearing on the motion for a summary judgment.

Meanwhile, on September 9, 2009, Ware filed an amended answer asserting counterclaims. The trustee moved to strike the counterclaims, contending that they were untimely and that they were barred by the statute of limitations. On November 17, 2009, the trial court granted the trustee’s motion, stating: “After hearing the oral arguments of counsel and reviewing the pleadings, the court finds that [Ware’s] counterclaims are barred by the statute of limitations. Accordingly, [Ware’s] amended pleadings are due to be stricken.”

On January 12, 2010, Ware filed a response to the summary-judgment motion. Her response included a “narrative statement of material facts,” which stated, in pertinent part:

“4. The demand for possession ... was made by Plaintiff, [trustee].
“5. However, according to the actual publication in the Alabama Messenger of the notice of foreclosure sale, ... [the trustee ] was the entity that was going to conduct the foreclosure sale on June 4, 2008....
“6. The record owner of the mortgage and Lender at the time of the foreclosure sale was Option One.
“7. Paragraph 21 of the mortgage dated July 29, 2005, between Option One and the [Wares] provides that in the event ... the Lender invokes the power of sale due to default, ‘Lender [emphasis in Ware’s response] shall publish the notice of sale.... ’
“8. Clearly the notice of foreclosure was not published by Option One, the record owner and Lender at the time the power of sale was invoked and notice published.... Instead, it was published by [the trustee].”

(Emphasis added except as otherwise noted.) Ware asserted that “a sale under the power in a mortgage ... must be conducted in strict compliance with the terms of the power” and that “ ‘[a]ll sales of real estate, made under powers contained in mortgages ... contrary to the provisions of this article, shall be null and void.’ ” (Quoting Ala.Code 1975, § 35-10-9.) Therefore, she argued, “because the Lender, Option One, did not publish the notice,” the mortgage was breached, which breach rendered the foreclosure sale invalid.

Ware had also filed a copy of the “Pooling and Servicing Agreement” (“the PSA”), which created the HSI Asset Secu-ritization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2 (“the trust”). In her response to the motion for a summary judgment, Ware argued that the purported acquisition of her property through the foreclosure deed violated certain terms of the PSA, and she contended that the foreclosure sale was therefore void. However, on January 22, 2010, the trial court entered a summary judgment for the trustee.

Ware then filed a motion to alter, amend, or vacate the judgment and requested a hearing. The trial court neither ruled on Ware’s motion nor held a hearing, and the motion was deemed denied by operation of Rule 59.1, Ala. R. Civ. P. Ware appealed. On appeal, Ware challenges (1) the timing and propriety of the summary judgment, (2) the order striking her counterclaims, and (3) the trial court’s refusal to hold a hearing on her motion to alter, amend, or vacate the judgment.

II. Discussion

In objecting to the dismissal of her counterclaims, Ware conceded that the issue as to the merits of her counterclaims “boils down to one very simple question: ‘did the [trustee] have the right to foreclose upon the [Wares’] property?’ ... This case will rise and fall upon the [trustee’s] having the [right] to foreclose.” Thus, we first address the arguments directed to the summary judgment.

A. Summary Judgment

Ware challenges both the timing and the merits of the summary judgment. As for the timing, Ware contends that “[t]he trial court erred when it ignored Ware’s [Rule] 56(f)[, Ala. R. Civ. P.,] filing and granted summary judgment before discovery could be conducted and completed.” Ware’s brief, at 64.

“Rule 56(f) allows a party opposing a summary-judgment motion to file an affidavit alerting the trial court that it is presently unable to present ‘facts essential to justify the party’s opposition.’ The Committee Comments to August 1, 1992, Amendment to Rule 56(c) and Rule 56(f) state that ‘[s]uch an affidavit should state with specificity why the opposing evidence is not presently available and should state, as specifically as possible, what future actions are contemplated to discover and present the opposing evidence.’ The disposition of a request made pursuant to Rule 56(f) is discretionary with the trial court.”

Scrushy v. Tucker, 955 So.2d 988, 1007 (Ala.2006).

Following Ware’s Rule 56(f) filing in this case, the trial court stayed indefinitely the hearing on the summary-judgment motion. On December 8, 2009, the court set January 15, 2010, as the new date for a hearing on the motion. Ware did not renew her request for additional time. Instead, she responded to the trustee’s summary-judgment motion on the merits, relying on (1) the provisions of the PSA and (2) the alleged discrepancy between the notice and the deed. During the four-month interval between her Rule 56(f) filing and her response to the motion on the merits, she did not serve any written discovery requests. Thus, there was no discovery pending when the trial court ruled on the summary-judgment motion. Moreover, Ware does not inform this Court of what further materials she needed to bolster her case. Put simply, she does not allege that she has been prejudiced by the timing of the summary judgment. For these reasons, she has failed to demonstrate that the trial court exceeded its discretion in ruling on the summary-judgment motion when it did.

As for the merits of the summary judgment, Ware first contends that the trustee failed to carry its threshold burden and that a summary judgment was therefore inappropriate.

“ ‘ “ ‘[T]he manner in which the [summary-judgment] movant’s burden of production is met depends upon which party has the burden of proof ... at trial.’ ” ’ Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala.2002) (quoting Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999), quoting in turn Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). If the movant is the plaintiff with the ultimate burden of proof, his ‘ “proof must be such that he would be entitled to a directed verdict [now referred to as a judgment as a matter of law, see Rule 50, Ala. R. Civ. P.] if this evidence was not controverted at trial.” ’ Ex parte General Motors, 769 So.2d at 909 (quoting Berner, 543 So.2d at 688).
“ ‘The first prerequisite for [a summary judgment] in favor of a movant who asserts a claim ... is that the claim ... be valid in legal theory, if its validity be challenged. See Driver v. National Sec. Fire & Gas. Co., 658 So.2d 390 (Ala.1995). The second prerequisite for [a summary judgment] in favor of such a movant, who necessarily bears the burden of proof, American Furniture Galleries v. McWane, Inc., 477 So.2d 369 (Ala.1985), McKerley v. Etowah-DeKalb-Cherokee Mental Health Board, Inc., 686 So.2d 1194 (Ala.Civ.App.1996), and Oliver v. Hayes International Corp., 456 So.2d 802 (Ala.Civ.App.1984), is that each contested element of the claim ... be supported by substantial evidence. See Driver, supra, and McKerley, supra. The third prerequisite for [a summary judgment] in favor of such a movant is that the record be devoid of substantial evidence rebutting the movant’s evidence on any essential element of the claim.... See Driver, supra, and First Fin. Ins. Co. v. Tillery, 626 So.2d 1252 (Ala.1993). Substantial rebutting evidence would create an issue of fact to be tried by the finder of fact and therefore would preclude [a summary judgment]. See Driver, supra, and First Financial, supra. [Summary judgment] in favor of the party who asserts the claim ... is not appropriate unless all three of these prerequisites coexist. See Driver, supra, and First Financial, supra, McKerley, supra, and Oliver, supra.

Ross v. Rosen-Rager, 67 So.3d 29, 35 (Ala.2010) (quoting Ex parte Helms, 873 So.2d 1139, 1143 (Ala.2003)). Ware relies on certain provisions of the PSA, as well as on the alleged discrepancy between the notice and the deed, arguing that these matters preclude a summary judgment for the trustee.

1. PSA

According to Ware, the trust is a “New York common law trust,” which “pooled numerous mortgages into a trust and converted [them] into mortgage-backed securities ... that can be bought and sold by investors — a process known as securitization,” whereby the “underlying promissory notes of each and every mortgage held by [the] trust serve as [a] potential income stream for investors.” Ware’s brief, at 58.

According to the PSA, which was dated February 1, 2006, the parties to that agreement are:

“HSI ASSET SECURITIZATION CORPORATION, as depositor (the ‘Depositor’), OPTION ONE MORTGAGE CORPORATION, a California Corporation, as originator (in such capacity, the ‘Originator’) and servicer (in such capacity, the ‘Servicer’), WELLS FARGO BANK, N.A. a national banking association, as master servicer (in such capacity, the ‘Master Servicer’) as securities administrator (in such capacity, the ‘Securities Administrator’) and as custodian (in such capacity, ‘the Custodian’), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as trustee (the ‘Trustee’).”

Ware contends that various provisions of the PSA preclude the acquisition of her property by the trust and, consequently, that the purported acquisition is invalid. Specifically, she construes the PSA as requiring the acquisition of all trust assets by no later than 90 days after the “closing date” of February 28, 2006, that is, on or before May 29, 2006. Thus, she argues that the purported acquisition of the foreclosure deed dated June 4, 2008, was outside the parameters of permissible acquisitions. At the very least, she insists, there is a question of fact as to when — or if — the trustee acquired an assignment of the mortgage within the prescribed period.

However, the trustee argues that “Ware does not have standing” to invoke the provisions of the PSA, because “she is neither a party nor a third party beneficiary of the PSA.” Trustee’s brief, at 38-39. Indeed, Ware is neither a party to the PSA nor a “certificateholder.” See PSA, § 2.02 (assets are held “in trust for the exclusive use and benefit of all present and future Cer-tificateholders”).

Ware does not respond to this argument and fails to cite any authority for the proposition that one who is neither a party to, nor an intended beneficiary of, a contract has standing to enforce its provisions.

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s ... brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ The effect of a failure to comply with Rule 28(a)(10) is well established:
“ ‘It is settled that a failure to comply with the requirements of Rule 28(a) ([10]) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘ “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research. Rule 28(a) ([10]); Spradlin v. Birmingham, Airport Authority, 613 So.2d 347 (Ala.1993).”
‘City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).’ ”

University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala.2004) (quoting Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)). For these reasons, we pretermit further discussion of the effect of alleged violations of the PSA.

2. Discrepancy Between Notice and Deed

Ware also contends that the summary judgment was inappropriate because, she insists, an issue of material fact was presented by the incongruence between the notice and the deed. Specifically, she says that it was the trustee that purported to post notice of the upcoming foreclosure sale claiming to be the holder of the mortgage by assignment, while it was Option One that purported to conduct the sale with the trustee being the grantee on the deed. She insists that the combination of the notice and the deed presents a disputed factual issue “as to who owned the note and mortgage and who had the power to conduct a foreclosure sale.” Ware’s brief, at 24. “If the publication is correct,” so her argument goes, “then Option One would no longer have the authority to foreclose”; the sale was invalid; and the trustee did not have the right to bring an action in ejectment. Ware’s brief, at 57 (footnote omitted). In this connection, she also argues that the “foreclosing entity failed to follow the notice requirement in accordance with Ala.Code § 35-10-8 (Ala. 2001) when it failed to list the correct information regarding the name of the entity and who was the current holder or owner of the ... mortgage and who was conducting the foreclosure sale.” Ware’s brief, at 54.

However, these arguments are made for the first time on appeal. In fact, rather than urging this position in the trial court, Ware conceded in her response to the trustee’s motion for a summary judgment that “it was undisputed that the record owner of the mortgage at the time of foreclosure was Option One.” (Emphasis added.) In other words, she conceded in that court the absence of an issue of fact as to the owner of the mortgage at the time of foreclosure.

“It is well known that ‘we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal.’ ” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008) (quoting Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 285 (Ala.2005)).

Moreover, we have searched Ware’s briefs in vain for the argument that she actually made in the trial court, namely, that the foreclosure was “null and void [simply] because the foreclosure was noticed by ... [the trustee] rather than the owner of the mortgage!,] Option One.” That argument has, therefore, been waived. See Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2008) (“An argument not made on appeal is abandoned or waived. Bettis v. Thornton, 662 So.2d 256, 257 (Ala.1995). ‘Issues not argued in the appellant’s brief are waived.’ Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994).”).

Ware also contends that the trustee failed to carry its threshold summary-judgment burden because, she insists, the affidavit of Connie White, which was presented by the trustee in support of its motion, did not comply with Rule 56(e), Ala. R. Civ. P., in a number of respects. However, she did not challenge this affidavit in the trial court.

“Concerning affidavits and exhibits offered in support of or in opposition to a motion for a summary judgment, this Court has stated:
“ ‘Rule 56(e), Ala. R. Civ. P., generally requires that “[s]worn or certified copies” of documents referred to in an affidavit offered supporting or opposing a motion for a summary judgment be attached to the affidavit. However, if an affidavit or the documents attached to an affidavit fail to comply with this rule, the opposing party must object to the admissibility of the affidavit or the document and move to strike. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312-13 (Ala.2001) (noting that a party must object to evidence submitted in support of a motion for a summary judgment that does not comply with Rule 56(e), Ala. R. Civ. P.); Chatham v. CSX Transp., Inc., 613 So.2d 341, 344 (Ala.1993) (“A party must move the trial court to strike any nonad-missible evidence that violates Rule 56(e). Failure to do so waives any objection on appeal and allows this Court to consider the defective evidence.”).’

SSC Selma Operating Co. v. Gordon, 56 So.3d 598, 602 (Ala.2010) (emphasis added) (quoting Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 4-5 (Ala.2007)). Because Ware did not move to strike White’s affidavit in the trial court, she cannot object to it on appeal as a ground for challenging the factual basis for the summary judgment.

“Actions in ejectment or actions in the nature of an action in ejectment are governed by § 6-6-280[, Ala.Code 1975].... ” Steele v. Federal Nat’l Mortgage Ass’n, 69 So.Bd 89, 92 (Ala.2010). An ejectment plaintiffs threshold burden consists of allegations — supported by substantial evidence — “ ‘that the plaintiff was possessed of the premises or has the legal title thereto, properly designating or describing them, and that the defendant entered thereupon and unlawfully withholds and detains the same.’” Id. (quoting § 6-6-280(b), Ala.Code 1975). White’s affidavit and accompanying documentation purported to supply this evidence, and Ware’s challenge to the affidavit fails for the reasons stated above.

B. Counterclaims

Because this case concededly turns on the propriety of the summary judgment — which we affirm — Ware is not entitled to a reversal of the order striking her counterclaims. Consequently, the trial court’s order disposing of Ware’s counterclaims is also affirmed.

C. Absence of a Hearing

Finally, Ware contends that the trial court erred in failing to conduct a hearing on her postjudgment motion as she requested. Rule 59(g), Ala. R. Civ. P., provides that motions filed pursuant to Rule 59(e) “shall not be ruled upon until the parties have had opportunity to be heard thereon.” In other words, “when a hearing is requested pursuant to Rule 59(g), the trial court errs in not granting a hearing.” Unicare, Inc. v. Hood, 823 So.2d 1252, 1253 (Ala.2001).

As this Court has often stated, however, error occasioned by the absence of a hearing is not always reversible:

‘““Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.” ’ ”

Hollander v. Nichols, 19 So.3d 184, 197 (Ala.2009) (quoting Kitchens v. Maye, 623 So.2d 1082, 1088-89 (Ala.1993), quoting in turn Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989)). Nor is Rule 59 to be a vehicle by which to raise new arguments or theories not previously asserted in the trial court. American Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir.1985).

As explained in this opinion, Ware has presented nothing for review on the merits. A remand for purposes of Rule 59(g) would serve no purpose other than to afford her “a second bite at the apple.” Thus, in the posture in which we find this case, we deem the trial court’s failure to hold a hearing on Ware’s Rule 59(e) motion to be harmless error.

HI. Conclusion

In conclusion, Ware has not demonstrated that the trustee failed to carry its initial summary-judgment burden and has not rebutted the evidence produced by the trustee. Consequently, the trial court’s judgment is due to be affirmed.

AFFIRMED.

COBB, C.J., and BOLIN and MAIN, JJ., concur.

MURDOCK, J., concurs in the result.

      . No issues in this appeal involve Gerald James Ware.

      . The judgment was stayed pending the outcome of the appeal.

      . For the purposes of this appeal, we accept this definition as accurate.


author: PER CURIAM.

text:
    Ex parte DELTA INTERNATIONAL MACHINERY CORPORATION. (In re Brandon Landrum v. Delta International Machinery Corporation et al.).
    1091049.
    Supreme Court of Alabama.
    July 29, 2011.
    Joseph P.H. Babington and D. Andrew Stivender of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for petitioner.
    S. Mark Andrews and Joseph Daniel Talmadge of Morris, Cary, Andrews, Tal-madge & Driggers, LLC, Dothan, for respondent.
   PER CURIAM.

The petitioner, Delta International Machinery Corporation (hereinafter “Delta”), the defendant below, seeks a writ of mandamus directing the Geneva Circuit Court to vacate an order granting the motion filed by the plaintiff, Brandon Landrum, seeking access to certain technology purportedly in Delta’s control and seeking to inspect any device incorporating that technology. We grant the petition and issue the writ.

Facts and Procedural History

On December 21, 2006, Landrum was operating a portable bench saw manufactured by Delta. Landrum’s hand came into contact with the blade of the saw, resulting in the amputation of Landrum’s index finger and injuries to other fingers as well as to his hand.

In December 2007, Landrum sued Delta seeking damages under the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”) and alleging that the saw was defective and unreasonably dangerous. The parties agreed to a protective order, and the trial court entered that order on January 9, 2009. The protective order set forth certain safeguards for confidential materials that would be disclosed during discovery; it specifically forbade certain confidential materials from being released to Stephen Gass, Landrum’s expert witness, who apparently was employed by a corporation that was a competitor of Delta’s.

On December 21, 2009, Landrum filed, pursuant to Rule 26, Ala. R. Civ. P., a motion to inspect. Landrum alleged that a joint venture consisting of numerous power-tool manufacturers, which included Delta (hereinafter “the joint venture”), had developed a technology known as “flesh-sensing technology.” According to Land-rum, a saw with flesh-sensing technology can recognize when its blade comes into contact with human flesh, and the blade will automatically be diverted or stopped in an effort to avoid further injury. In his motion to inspect, Landrum requested that he be permitted to inspect “all saws equipped with any flesh-sensing technology as developed by the Joint Venture” and “any and all flesh sensing technology developed by the Joint Venture.”

The saw that injured Landrum is a 10-inch portable bench saw manufactured in the 25th week of 2004. In opposition to the motion to inspect, Delta argued that the flesh-sensing technology developed by the joint venture and any device developed by the joint venture incorporating the flesh-sensing technology were not discoverable because they did not exist at the time the saw was manufactured and were thus not relevant to Landrum’s case. The flesh-sensing technology under development by the joint venture, Delta asserted, was highly confidential and of a potentially high commercial value. Delta argued that the goal of the joint venture was merely to research flesh-sensing technology and not to incorporate such technology into existing saws. The device developed by the joint venture was not similar to the saw at issue in this case; it was merely a test device. Delta contended that technology developed by the joint venture did not exist when the saw by which Landrum was injured was manufactured and that it was not feasible to retrofit that saw to use the flesh-sensing technology. Thus, Delta argued, Landrum’s motion to inspect sought “irrelevant, confidential, and valuable information from a non-party entity over which [the trial] court lacks control or jurisdiction.” Delta also objected to allowing Stephen Gass to have access to the joint venture’s technology.

On February 9, 2010, the trial court granted Landrum’s motion to inspect. The trial court determined that the evidence sought by the motion to inspect was relevant; that even if the flesh-sensing technology was a trade secret it was nonetheless discoverable; that Delta did have control over the items sought to be inspected; and that the trial court did have control and jurisdiction over the members of the joint venture. The trial court also held that Stephen Gass would have access to the technology and would be permitted to inspect any device incorporating the technology. Delta filed a motion for a protective order relating to Landrum’s motion to inspect, which the trial court denied; Delta subsequently filed this petition for a writ of mandamus.

Standard of Review

“ ‘A writ of mandamus will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).’
“Ex parte Horton Homes, Inc., 774 So.2d 536, 539 (Ala.2000). Regarding discovery matters specifically, this Court has stated:
“ ‘Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991). Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.
“‘Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order.’
“Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (footnote omitted). In Ocwen, this Court identified ‘four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus.’ Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1137 (Ala.2003) (citing Ocwen). Those circumstances include:
“ ‘(a) [W]hen a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-15 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplica-tive documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992).’
“Dillard, 879 So.2d at 1137.”

Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1225-26 (Ala.2009).

Discussion

Citing Ex parte Miltope Corp., 823 So.2d 640 (Ala.2001), Rule 26, Ala. R. Civ. P., and Rules 401 and 402, Ala. R. Evid., Delta argues that the flesh-sensing technology and the device incorporating that technology developed by the joint venture amount to trade secrets and are also not relevant in this case, because they did not exist when the saw that injured Landrum was built. Delta contends that it should not be required to disclose such confidential technology when the technology has no relevance to Landrum’s claims. We agree.

In Miltope, we discussed the relevancy of potentially discoverable evidence:

“Rule 26(b), Ala. R. Civ. P., defines the scope of discovery as follows: ‘Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.’ Even material that would be inadmissible at trial is discoverable, provided that the material ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ Id. In determining whether the information sought by a party ‘appears reasonably calculated to lead to the discovery of admissible evidence,’ a court must consider the nature of the plaintiffs claim and whether, in light of the claim, the plaintiff has demonstrated a particularized need for the discovery being sought. See Ex parte First Nat’l Bank of Pulaski, 730 So.2d 1160, 1162 (Ala.1999).”

823 So.2d at 643.

In the instant case, the trial court, in its February 9 order, discussed the relevancy of the flesh-sensing technology:

“The Court finds that [Landrum’s] request for an inspection of the [joint venture’s] technology and devices developed from the technology is reasonably calculated to lead to the discovery of admissible evidence. [Landrum] may well be able to establish that ... the technology was feasible when the subject saw was manufactured based upon the inspection. [Landrum] presented testimony from Ted Gogall,[] one of the joint venture representatives for Delta, that the component parts of the [joint venture’s] device were technologically available in 2004 and the people that really understood the devices probably could have combined components together for this type application in 2004. [Landrum] has presented testimony from Gogall where Mr. Gogall has testified that the Joint Venture technology ‘probably’ could have been developed and available in the 25th week of 2004 if the industry ‘had wanted to do this or there was a need to do this.’ Mr. Gogall explained that it is possible that ‘the experts in this particular industry1, i.e., the tool industry, ‘could have spent the money and funded a project and put resources on [flesh-sensing technology] and developed [flesh-sensing technology].’ Gogall also testified the technology which [Land-rum] seeks to inspect could ‘certainly’ be transferred to portable table saws as small as the 60 pound DeWalt model 744 saw. This testimony is important because of Delta’s contention that the subject 40 pound saw was too small to accommodate flesh sensing technology. Finally, Gogall testified that the way the [joint venture’s] device functions is ‘hard to explain without seeing it.’ ”

(Citations omitted; some alterations in original.)

In its petition, Delta contends that the trial court misstated the content of Ted Gogoll’s testimony. We agree. The materials before us reveal that Gogoll did not testify that all the components of the flesh-sensing device were available when the saw that injured Landrum was manufactured. He specifically testified that the “algorithm” for the device, which was apparently necessary “to develop the control system,” was not available in 2004. Additionally, although several components for a flesh-sensing device were available in 2004, Gogoll agreed during his deposition “that those had not been compiled together for this type of application” at the time the saw that injured Landrum was made. He said that there were people who “probably” could have assembled the components and that it was “possible” that those people “could have” spent money to develop such a device, but he did not “really know” because he was not an expert in that area:

“[Counsel for Landrum:] Okay. So my question would be is could those items have been combined in that manner in 2004, in the 25th week in 2004 when this saw was made?
“[Gogoll:] No, because nobody had done it.
“[Counsel for Landrum:] Is there any other reason why?
“[Gogoll:] By that time, I think the technological ideas were there. If someone was going to put the resources together to develop them, that’s just— that’s just a blue sky question.
“[Counsel for Landrum:] Explain your answer a little bit more.
“[Gogoll:] Well, you have to — the people that really understand these devices are the people that probably could have done it. The experts in this particular industry, if they had wanted to do this or there was a need to do this, it’s possible they could have spent the money and funded a project and put resources on it and developed it.
“[Counsel for Landrum:] In the 25th week of 2004 or before that time?
“[Gogoll:] You know, I really don’t know. It’s possible, but I don’t know the state of the art of that type of device. I’m not an expert in that type— in that industry.
“I am guessing that the state of the art might have been there, but I really don’t know. I’m not an expert in that particular area.
“[Counsel for Landrum:] Sir, have you understood my questions?
“[Gogoll:] I understood your questions. And I really can’t answer them. As I said, I’m not — I’m not an expert in that particular type of business.”

Although Gogoll expressed an uncertain opinion that flesh-sensing technology could possibly have been developed in 2004, when the saw that injured Landrum was manufactured, as discussed below Gogoll confirmed that such technology did not actually exist for this particular type of saw at the time the saw was manufactured.

The trial court stated that “Gog[o]ll also testified the technology which [Landrum] seeks to inspect could ‘certainly’ be transferred to portable table saws as small as the 60 pound DeWalt model 744 saw. This testimony is important because of Delta’s contention that the subject 40 pound saw was too small to accommodate flesh sensing technology.”

However, as to the saw involved in this accident, Gogoll specifically stated that such technology was not available even at the time of his deposition:

“[Counsel for Landrum:] Right. My question, though, was does the Joint Venture think the technology it has developed will be transferable to the portable ten-inch bench saw like was involved in this accident?
“[Gogoll:] I honestly don’t know. There may or may not be a saw like that in the future depending on where we get.
“[Counsel for Landrum:] In other words, the model, that ten-inch bench saw may not even be manufactured?
“[Gogoll:] It certainly might — it might be different. That has not been a project yet.
“[Counsel for Landrum:] Why not?
“[Gogoll:] Why? Because the comp— the technology’s complicated enough to try to figure it out on something where you have a stable platform.
“[Counsel for Landrum:] Here’s my question. If those smaller saws, whatever models they are that make up the bulk of the market, if those are the number-one sellers, why hasn’t this technology been tested for those saws?
“[Gogoll:] ... [R]ight now the technology is, is tough enough to develop right now on a stable platform that, you know, it isn’t even totally developed on that kind of platform.”

Finally, Gogoll was asked the following question at his deposition: “Do you intend to tell the jury that in the 25th week of 2004 that flesh-sensing technology existed?” He answered: “I would not say that, particularly because there was not flesh-sensing technology available for this type of saw.”

Contrary to the trial court’s order, Go-goll’s testimony simply does not indicate that the flesh-sensing technology was available for the saw at issue in this case at the time it was manufactured. It is therefore unclear how the trial court could have determined from Gogoll’s testimony that flesh-sensing technology existed at the time the saw was manufactured and that that technology could have been incorporated into the saw. Thus, the trial court based its ruling on the erroneous premise that the flesh-sensing technology held by the joint venture and any device incorporating that technology is relevant to Land-rum’s case.

In response to the petition for the writ of mandamus, Landrum contends that his claims

“include that Delta could have included flesh sensing technology since it was available and feasible if Delta had only taken the steps they have taken all too late. Specifically ... [Gogoll] testified under oath that the flesh-sensing technology as developed by the Joint Venture, ‘probably’ could have been developed and available in the 25th week of 2004....
“Accordingly, since [Landrum’s] claims are that [Delta] should have incorporated flesh-sensing technology into portable bench top saws manufactured in the 25th week of 2004 on which Mr. Brandon Landrum was injured, and since [Delta’s] own expert and corporate representative has clearly testified that such technology ‘probably’ could have been made available at least as early as the 25th week of 2004, and could be incorporated into a 60 pound portable bench saw, inspection of the [joint venture’s] device is both relevant and necessary in order to proceed with additional discovery as may be determined following the inspection.”

As noted above, Gogoll clearly testified that the joint venture’s current technology cannot be incorporated into the saw that injured Landrum and that the technology did not exist in 2004. Delta contends that Landrum’s argument is essentially that Delta had a duty to develop and invent flesh-sensing technology at the time the saw by which he was injured was manufactured. However, under the AEMLD, Landrum has the burden of showing that a safer, practical, alternative design was available, not whether such an alternative could have been designed. Beech v. Outboard Marine Corp., 584 So.2d 447, 450 (1991) (“We decline to hold, as a matter of law, that simply because ‘a feasible propeller guard could have been designed by a proper use of the manufacturer’s resources’ that an ‘alternative design’ existed.”).

Delta contends that not only is the joint venture’s flesh-sensing technology not relevant, but it also is a trade secret; thus, it argues, disclosure of that technology could lead to irreparable harm. In Miltope, we noted the definition of a “trade secret”:

“The information Miltope seeks to avoid disclosing qualifies as a trade secret. Section 8-27-2(1), Ala.Code 1975, states that a ‘trade secret’ is information that:
“ ‘a. Is used or intended for use in a trade or business;
“ ‘b. Is included or embodied in a formula, pattern, compilation, computer software, drawing, device, method, technique, or process;
“‘c. Is not publicly known and is not generally known in the trade or business of the person asserting that it is a trade secret;
“ ‘d. Cannot be readily ascertained or derived from publicly available information;
“‘e. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and “‘f. Has significant economic value.’ ”

Miltope, 823 So.2d at 644.

Landrum argues that the flesh-sensing technology was not a trade secret under this definition for several reasons. First, Landrum contends that the flesh-sensing device built by the joint venture was not intended for use in a trade or business and was, instead, created “in response to litigation.” Further, he argues, the device is not intended to be sold. However, it is readily apparent from the materials before us that the device was built to incorporate flesh-sensing technology for use by the members of the joint venture in their trade or business.

Landrum also contends that because the joint venture consists of several power-tool companies, the flesh-sensing technology is not a secret inside the tool industry. However, Delta provided evidence indicating that the five companies within the joint venture have signed confidentiality agreements; that only a few individuals within those companies actually have access to the flesh-sensing technology; and that the flesh-sensing technology remains highly confidential.

Finally, Landrum contends that the information is readily ascertainable from the trial record of unrelated litigation in Massachusetts and from patent records. Delta included examples of the testimony and notes that the evidence in the unrelated litigation was generic and — like the patents — did not include numerous details regarding the properties of the flesh-sensing technology. Thus, those details remain unascertainable to the public. We agree that the flesh-sensing technology remains a trade secret.

In Miltope, this Court noted the sensitive nature of trade secrets and concerns regarding the disclosure of such information in the discovery process:

“ ‘If a trial court orders the discovery of trade secrets and such are disclosed, the party resisting discovery will have no adequate remedy on appeal. The proverbial bell cannot be unrung and an appeal after final judgment on the merits will not rectify the damage.’ Gibson-Myers & Assocs. v. Pearce, (No. 19358, Oct. 27, 1999) (Ohio Ct.App.1999) (unpublished). Trade secrets should receive greater protection from discovery because they ‘derive[] economic value from being generally unknown and not readily ascertainable by the public.’ Nester v. Lima Mem’l Hosp., 139 Ohio App.3d 883, 888, 745 N.E.2d 1153, 1157 (2000) (Walters, J., dissenting). ‘Once the information becomes available through the discovery process, a subsequent appeal, even if successful, cannot restore the valuable secretive nature.’ Id. Disclosure of a trade secret could cause ‘irreparable harm.’ Binkley v. Allen, (No.2000-CA-00160, Feb. 5, 2001) (Ohio Ct.App.2001) (unpublished).... We conclude that the trial court abused its discretion in compelling Miltope to produce the requested documents, because of the risk of harm to Miltope caused by disclosure of its trade secrets.”

Miltope, 823 So.2d at 644-45 (footnotes omitted).

In the instant case, the materials before us reveal that the flesh-sensing technology both was a trade secret and was not relevant to Landrum’s claims. Given the unique facts of this case, we conclude that the trial court exceeded its discretion in allowing discovery of that technology and any device incorporating the technology and in allowing access to the technology and the device by Delta’s competitor.

Conclusion

The petition is granted, and the trial court is directed to vacate its order granting Landrum’s motion to inspect.

PETITION GRANTED; WRIT ISSUED.

WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

COBB, C.J., concurs in the result.

      . The motion further sought to allow Land-rum to inspect any technology that was “equal to, or superior to, SawStop technology.” "SawStop” is apparently a product developed by Stephen Gass’s company incorporating the flesh-sensing technology.

      . The materials before us variously describe the saw as weighing either 29, 30, or 40 pounds.

      . The Power Tool Institute, the organization that formed the joint venture, filed an ''opposition” to allowing Stephen Gass access to the technology, contending that Gass worked for a competitor and that he had several patents and patent applications regarding similar technology. The Power Tool Institute contended that Gass might amend his patents and patent applications to cover the joint venture’s technology, thus denying the members of the joint venture their investments. The trial court overruled this opposition.

      . It appears from the record that Ted Gogall's last name is actually spelled "Gogoll.”