author: MYERS, P.J.,

text:
    Zeonia WILLIAMS, Individually and on behalf of the Wrongful Death Heirs of Anthony Williams, Deceased, Appellants, v. Deborah SKELTON, M.D. and Steven J. Patterson, M.D., Appellees.
    No. 2007-CA-00095-COA.
    Court of Appeals of Mississippi.
    April 22, 2008.
    Rehearing Denied Aug. 19, 2008.

      D.L. Jones, Jackson, attorney for appellants.
    Whitman B. Johnson, III, Lorraine Walters Boykin, Rebecca Lee Wiggs, Jackson, attorneys for appellees.
    Before MYERS, P.J., ROBERTS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Zeonia Williams (Williams), individually and on behalf of the wrongful death beneficiaries of Anthony Williams (Anthony), appeals the grant of summary judgment by the Circuit Court of Hinds County. Finding that the circuit court properly granted summary judgment and dismissed Williams’s complaint based upon the failure to comply with Mississippi Code Annotated section 15-1-36(15) (Rev.2003), we accordingly affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Anthony died on September 24, 2003, while undergoing treatment from Drs. Deborah Skelton and Steven J. Patterson. On June 15, 2005, Drs. Skelton and Patterson were notified by letter that Williams, had retained counsel to pursue a wrongful death claim against persons involved in Anthony’s medical care. Less than sixty days later, on July 22, 2005, a complaint was filed in the Hinds County Circuit Court against Drs. Skelton and Patterson, alleging that medical negligence was the proximate cause of Anthony’s death. Process was served on October 19, 2005. Drs. Skelton and Patterson timely answered and also moved for summary judgment, arguing that the plaintiffs failed to comply with the sixty-day notice requirement found in Mississippi Code Annotated section 15-1-36(15). The motion for summary judgment was granted and the complaint was dismissed on December 14, 2006. This appeal followed.

STANDARD OF REVIEW

¶ 3. We are to employ the de novo standard in review of a trial court’s grant or denial of a motion for summary judgment. Arceo v. Tolliver, 949 So.2d 691, 694(¶ 6) (Miss.2006).

DISCUSSION

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND DISMISSING THE COMPLAINT BASED UPON THE FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF MISSISSIPPI CODE ANNOTATED SECTION 15-1-36(15).

¶ 4. Williams asserts that the trial court improperly granted summary judgment based upon the failure to comply with the notice requirements found within Mississippi Code Annotated section 15-1-36(15) prior to filing suit. Specifically, Williams argues that, although the complaint was filed prior to the expiration of the sixty-day period, the defendants had actual notice of the claim against them for the requisite period of time because process was not served until after the sixty-day waiting period. Thus, Williams seeks reinstatement of her lawsuit, asserting her substantial compliance with the statutory notice requirements.

¶ 5. Suits filed against health-care providers after January 1, 2003, are limited by the prerequisite found in Mississippi Code Annotated section 15-1-36(15). This section creates a pre-filing notice requirement, providing in pertinent part: “No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action.” Compliance with the pre-filing notice rule of section 15-1-36(15) tolls the applicable statute of limitations in which “the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others.” Miss.Code Ann. § 15-1-36(15). Our supreme court has required strict compliance with the mandates of Mississippi Code Annotated section 15-1-36 such that failure to satisfy the pre-suit notice requirement mandates dismissal of the plaintiffs complaint. Arceo, 949 So.2d at 695(¶ 8); Pitalo v. GPCH-GP, Inc., 933 So.2d 927, 929 (¶¶ 5-7) (Miss.2006).

¶ 6. The undisputed facts reveal that Williams’s notice of intent to sue was sent to the doctors on June 15, 2005. Suit was filed on July 22, 2005, only thirty-seven days after sending the notice of intent to sue. The premature filing of the suit was in violation of the mandates of section 15-1-36(15), despite the complaint not being served on Drs. Skelton and Patterson until October 19, 2005. Section 15-1-36(15) specifically provides that commencement of the suit, as distinguished from the service of process, cannot begin until after sixty days have passed since the defendants were given notice of the intention to sue. Because Williams did not comply with the requisite sixty-day waiting period provided in Mississippi Code Annotated section 15-1-36(15), the lawsuit for medical negligence was properly dismissed. Accordingly, we find that the trial court did not err in granting summary judgment in favor of Drs. Skelton and Patterson.

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

KING, C.J., LEE, P.J., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., NOT PARTICIPATING.

      . Williams alternatively argues that even if we find the suit was properly dismissed for its failure to comply with the pre-filing requirements, she is entitled to re-file the suit because the statute of limitations was tolled. Our review of the record indicates that the trial judge specifically declined to rule within the judgment of dismissal with regard to the propriety of a subsequent suit. Therefore, without a trial court ruling on this issue, the matter is not properly before this Court at this time.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Lubertha WELCH, Appellant v. BANK ONE NATIONAL ASSOCIATION, as Trustee, Appellee.
    No. 2007-CA-01475-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.

      William Hall Pettey, Gulfport, attorney for appellant.
    Robert T. Schwartz, Biloxi, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court.

¶ 1. This case comes on appeal from the Chancery Court of Harrison County where a final judgment was entered with prejudice against Lubertha Welch, and her subsequent motion to set aside the order was denied. Welch now appeals the chancellor’s order denying her motion. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Welch, an elderly woman, owned, as a co-tenant, certain property located in Harrison County, Mississippi. The other co-tenant was her daughter, Diana Welch (Diana). Welch had a long history of illness, which included the onset of Alzheimer’s disease beginning in 1996. Welch had a deed of trust on her property and, in an effort to make improvements to the property in question, sought refinancing. In October 2000, Welch executed a deed of trust from herself and Diana in favor of Mortgage Electronic Registration Systems, Inc. (MERS). Subsequently, Welch defaulted on the note, and the deed of trust was foreclosed by substituted trustee’s deed on December 7, 2001. Welch claims that all additional funds from the refinancing, other than the repayment on the existing deed of trust, actually went to Diana, not to her.

¶ 3. Welch filed a complaint with the Chancery County of Harrison County on April 29, 2003. The complaint alleged that, as Welch was suffering from Alzheimer’s disease at the time the deed of trust was executed, she lacked the mental capacity to execute the deed of trust, and it should be rendered void. Welch then served process by publication upon MERS. A summons was also filed with the chancery court; however, there is no evidence of service of process, other than by publication. On June 30, 2003, Welch filed a motion for default judgment pursuant to Rule 55(b) of the Mississippi Rules of Civil Procedure. A Judgment Confirming Title was entered on July 1, 2003, which found that Welch was “not of sound and disposing mind at the time of the execution of the instruments”; therefore, the instruments should be cancelled and set aside.

¶ 4. However, on August 19, 2004, Bank One National Association, as trustee, filed a separate answer and affirmative defenses of intervenor in response to Welch’s complaint. In its answer, Bank One asserted that it was the owner of the property in question through a conveyance from MERS, and, in fact, MERS was not the owner at the time the complaint was filed. Simultaneously, Bank One also filed a motion to intervene and to set aside judgment confirming title, which alleged that Welch failed to cause a summons to be issued to MERS and failed to deraign title pursuant to Mississippi Code Annotated section 11-17-35 (Rev.2004). Consequently, Bank One had no notice of the complaint or pending litigation until July 2004. Bank One also asserted that Welch failed to name necessary and indispensable parties in her complaint — namely, Diana, the co-owner of the property, and Susie Bowser, conservator for Welch.

¶ 5. On January 21, 2005, the chancery court entered an order setting aside the default judgment and allowing intervention. The chancellor found that Welch failed to obtain proper service of process upon MERS, as the physical address for MERS was readily available through public records. The order also found that Bank One, Diana, and Bowser were all necessary and indispensable parties to the action; therefore, Welch was ordered to submit an amended complaint within sixty days to include those parties.

¶ 6. On April 29, 2005, Bank One filed a motion to dismiss claiming that Welch was in contempt of the court’s order as she had failed to amend her complaint or affect service of process. On August 17, 2005, a hearing on Bank One’s motion to dismiss was held, and the chancellor granted Welch additional time — until September 15, 2005 — to amend the complaint and serve process on the parties. On August 29, 2005, Hurricane Katrina ravaged the Mississippi Gulf Coast causing severe destruction and loss of life. On April 14, 2006, Bank One filed a supplemental motion to dismiss as Welch had still failed to comply with the court’s orders. A hearing was held on June 13, 2006, regarding the supplemental motion to dismiss; counsel for Welch was not present at the hearing. A final judgment was entered on June 14, 2006, dismissing the complaint with prejudice.

¶ 7. Welch filed a motion to set aside the order on March 16, 2007. In her motion, Welch cited exigent reasons for her failure to comply with the court’s orders, such as the circumstances surrounding Hurricane Katrina. Specifically, the motion stated that the office of Welch’s counsel was severely damaged, and it was difficult to maintain communication between counsel and Welch during this period. Bank One filed a response to Welch’s motion to set aside the order on June 5, 2007. On July 20, 2007, the chancellor denied Welch’s motion to set aside the order, stating that Welch had failed to produce any grounds under Mississippi Rule of Civil Procedure 60 to warrant setting aside or modifying the final judgment.

¶ 8. It is from this order than Welch appeals, requesting this Court to set aside the judgment pursuant to Rule 60. Finding no error, we affirm.

I. Whether the chancery court , erred in denying Welch’s motion to set aside the judgment.

¶ 9. Welch cites Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983) for her argument that due to the circumstances surrounding Hurricane Katrina, the judgment against Welch should be set aside and the case allowed to proceed on the merits. However, we observe, as does Bank One in its brief, that Brown is not relevant to the issue before this Court as Brown addresses summary judgment under Mississippi Rule of Civil Procedure 56, not relief under Rule 60.

¶ 10. Welch also neglects to specify under which prong of Rule 60 she is seeking relief. However, as Rule 60(a) only addresses clerical mistakes, we must assume that Welch is referring to 60(b). Rule 60(b) has six provisions under which relief from a judgment may be granted. As the first five provisions deal with mistakes, inadvertence, newly discovered evidence, and fraud and are, therefore, irrelevant to the case at issue, we must again assume that Welch is requesting relief specifically under Rule 60(b)(6) which states that relief may be granted for “any other reason justifying relief from the judgment.”

¶ 11. A request for relief under Rule 60 is reviewed under an abuse of discretion standard. R.K. v. J.K., 946 So.2d 764, 776(¶ 35) (Miss.2007) (citation omitted). “Relief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966(¶ 12) (Miss.1998). Thus, Rule 60(b) should not be used by litigants as “an escape hatch” in cases where the movant has had “procedural opportunities afforded under other rules” yet has failed to pursue said procedural remedies. City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 986(¶ 5) (Miss.2001).

¶ 12. The chancellor stated at the hearing on the motion to set aside the order that he did not have the authority to set aside the judgment under Rule 60 due to the fact that too much time had expired since the entry of the judgment. We find this reasoning inaccurate. The rule states that there is no specific time frame provided by Rule 60(b)(6) under which a party may bring a request for relief. Mitchell v. Nelson, 830 So.2d 635, 639(¶ 11) (Miss.2002). Nonetheless, “relief must be sought within a reasonable time.” Id. Had the chancellor denied the motion based solely on the time issue, then this Court might have been persuaded to remand for a more thorough examination and findings of fact. However, the order denying the motion elaborated that the main reason for the denial was Welch’s failure to produce any grounds under Rule 60. Based on this reasoning and our review of the record, we agree with the chancellor’s conclusion that Welch failed to produce any reasonable grounds as to why she should be afforded relief under Rule 60(b)(6). Although we understand Welch and her counsel had extremely difficult circumstances befall them, Welch had almost nine months prior to Hurricane Katrina in which to comply with the court’s original orders. In addition, the court waited an additional ten months after the storm before entering its final judgment against Welch, who as we have already noted, failed to appear at the hearing held on June 13, 2006, regarding Bank One’s supplemental motion to dismiss.

¶ 13. Therefore, we find no abuse of discretion in the chancellor’s denial of Welch’s motion to set aside the order and affirm.

II. Whether sanctions requested by Bank One against counsel for Welch are warranted.

¶ 14. In its brief to this Court, Bank One claims that Welch’s failure to cite appropriate legal authority to support her position, and the fact that her claim is “wholly frivolous,” constitutes a “sanction-able event.” We find it ironic that Bank One fails to cite any legal authority for such a claim. “The failure to cite authority in support of an issue precludes this Court from considering the issue on appeal.” Kirkley v. Forrest County Gen. Hosp., 991 So.2d 652, 662(¶ 35) (Miss.Ct.App.2008). Thus, we find that Bank One’s claim is procedurally barred and decline to address the issue of any possible sanctions against Welch.

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

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

      . Specifically Rule 60(b)(6) states: "The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.” M.R.C.P. 60(b)(6).


author: ISHEE, J.,

text:
    Ervin FUNDERBURG and Corner Closet, Inc., Appellants v. PONTOTOC ELECTRIC POWER ASSOCIATION, Appellee.
    No. 2008-CA-00235-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      Jonathan Thomas Crump, Attorney for Appellants.
    David L. Sanders, Columbus, Attorney for Appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Circuit Court of Calhoun County entered an order granting summary judgment in favor of Pontotoc Electric Power Association (Pontotoc Electric). The circuit court dismissed the claims of Ervin Funderburg, Nancy Funderburg, and Pam Burt, individually; Ervin, Nancy, and Pam, collectively, d/b/a Corner Closet, Inc.; Corner Closet, Inc., a dissolved corporation; and Ervin, Nancy, and Pam, collectively, d/b/a C.C. Blouses for the following reasons: (1) Corner Closet, was a dissolved corporation; (2) Ervin admitted to having no interest in the property at issue; and (3) the remaining plaintiffs were barred by the statute of limitations. Aggrieved, the Appellants appeal. They assert the following points of error:

I. The filing of the first complaint should have tolled the statute of limitations for Corner Closet, Inc.
II. The filing of a suit in the name of a dissolved corporation, which has continued to act as a family-run business, should have been treated as a filing on behalf of the business as a partnership.

Finding no error with the circuit court’s grant of summary judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case began on June 14, 2002, when Ervin filed a complaint in the circuit court alleging that on March 2, 2002, employees of Pontotoc Electric entered onto his property located in Calhoun City, Mississippi without his permission and negligently dumped oil and gas onto the property. The complaint was given cause number C2002-082. On January 27, 2004, the circuit court entered an order dismissing the case as stale “for the reason that no step [had] been taken to prosecute or pursue this action for over one year.... ” Thereafter, Ervin filed a motion to reinstate his case, which the circuit court granted. He also filed a motion to amend his complaint to substitute plaintiffs, replacing himself with Corner Closet.

¶ 3. After Corner Closet filed its amended complaint naming itself as plaintiff, Pontotoc Electric filed a motion to dismiss the case because Corner Closet did not exist. As pointed out by Pontotoc Electric, Corner Closet ceased to exist as a corporation after October 8, 1993, when the Mississippi Secretary of State’s Office dissolved the corporation. Since that time, Corner Closet had not sought reinstatement as a corporation. Pontotoc Electric concluded that Corner Closet, was a legal non-entity; therefore, it had no power to bring suit as a corporation. The circuit court agreed, finding that Corner Closet, lacked the power to bring the lawsuit; therefore, it had not stated a claim upon which relief could be granted. On October 26, 2005, the circuit court dismissed Corner Closet’s case without prejudice.

¶ 4. Following the dismissal, a second complaint was filed in cause number C2005-178, alleging trespass and negligence on the part of Pontotoc Electric. Filed on December 2, 2005, the second complaint listed the plaintiffs as Ervin, Nancy, and Pam, individually; Ervin, Nancy, and Pam, collectively, d/b/a Corner Closet; Corner Closet, a dissolved corporation; and Ervin, Nancy, and Pam, collectively, d/b/a C.C. Blouses. Pontotoc Electric again responded with a motion to dismiss or, in the alternative, for summary judgment. This time, the motion alleged that the plaintiffs’ claims were barred by the statute of limitations. The circuit court agreed, noting once again that Corner Closet could not be a plaintiff because it was a dissolved corporation. The circuit court found that Ervin was not a proper plaintiff because he admitted to having no interest in the damaged property. Regarding the remaining plaintiffs, the circuit court found that their claims were barred by the expiration of the statute of limitations because they filed their claims more than three years after the date of the alleged incident.

¶ 5. The circuit court granted the Appellants an additional twenty days during which to file an appeal. Thereafter, the Appellants timely filed the present appeal.

STANDARD OF REVIEW

¶ 6. The granting of a motion for summary judgment is a matter of law; therefore, this Court employs a de novo standard of review regarding such a matter. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893(¶ 4) (Miss.2006).

DISCUSSION

¶ 7. The Appellants put forth two arguments as to why their claim should not be barred because of the expiration of the statute of limitations. The Appellants argue that the circuit court should have treated the complaint filed by Corner Closet as a claim filed by the partnership and allowed the claim to proceed. They also argue that filing the first claim tolled the statute of limitations on behalf of Corner Closet.

I. Whether a lawsuit filed on behalf of a dissolved corporation should have been treated as a suit on behalf of the business as a partnership.

¶ 8. First, the Appellants argue that the circuit court should have treated the case as having been filed on behalf of the partnership even though the named plaintiff was Corner Closet. This issue relates to an order of dismissal without prejudice entered by the circuit court on October 26, 2005. The order dismissed the complaint of Corner Closet, finding that it had no power to sue because it had been dissolved as a corporation since 1993. The Appellants cite no law in support of their argument. Instead, they rely on a public policy argument, arguing that this Court should deem a suit filed on behalf of a dissolved corporation to be filed on behalf of a partnership.

¶ 9. We first note that a party’s “failure to cite any authority in support of a claim of error precludes this Court from considering the specific claim on appeal.” Grenada Living Ctr., L.L.C. v. Coleman, 961 So.2d 38, 37(¶ 14) (Miss.2007). Therefore, in the present case, the Appellants’ failure to cite any authority in support of their argument bars this Court from reviewing this issue. Nevertheless, this issue has some bearing on the Appellants’ second issue; therefore, we will address the merits of the issue.

¶ 10. A corporation is granted the statutory power “[t]o sue and be sued, complain and defend in its corporate name” under Mississippi Code Annotated section 79-4-3.02(1) (Rev.2001). However, the power of a corporation to file a lawsuit in its corporate name expires if the corporation is suspended. Bryant Constr. Co. v. Cook Constr. Co., 518 So.2d 625, 631 (Miss.1987). In Bryant, the supreme court stated that “[a] corporation has the power to sue in the corporate name only insofar as the state grants that power.” Id. “When the corporation is suspended, it loses all rights ‘acquired by the form of the organization.’ ” Id. (quoting Miss.Code Ann. § 27-13-27 (1972)).

¶ 11. Rule 17(a) of the Mississippi Rules of Civil Procedure requires that a claim be filed on behalf of the real parties in interest. Corner Closet could not be such a real party in interest because it had been dissolved more than eight year's before the alleged incident took place. The Appellants admit that Corner Closet was not functioning as a corporation at the time of the alleged incident. Accordingly, the suit could not go forward with Corner Closet as the named plaintiff.

¶ 12. The issue then was whether it was proper for the circuit court to dismiss the case or whether the court should have treated the complaint as having been filed by the Appellants’ partnership. In addition to requiring a suit to be filed in the name of the real party in interest, Rule 17(a) provides the following: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest....” See also Tolbert v. Southgate Timber Co., 943 So.2d 90, 93(¶ 10) (Miss.Ct.App.2006).

¶ 13. In the present case, the Appellants were given such an opportunity to substitute the real party in interest. The first claim initially listed Ervin as the plaintiff. Upon finding that he had no ownership interest in the damaged items, Ervin amended the claim to name Corner Closet as the plaintiff, notwithstanding the fact that the corporation had been dissolved since 1993.

¶ 14. We find nothing in the record to indicate that Corner Closet attempted to substitute the correct plaintiffs following Pontotoc Electric’s motion for summary judgment. The only record of such was a memorandum in support of Pontotoc Electric’s motion for summary judgment in the second case. In the memorandum, Ponto-toc Electric mentioned that Corner Closet was attempting to substitute Ervin as a plaintiff again despite the fact that he admitted that he had no ownership interest in the land or the allegedly damaged property.

¶ 15. Ultimately, we find that this issue is barred from our review because the Appellants failed to cite any authority in support of their argument. Furthermore, for the purposes of the Appellants’ second issue, we find that this issue is without merit.

II. Whether the filing of the first complaint tolled the statute of limitations for Corner Closet.

¶ 16. Whereas the Appellants did not cite any authority in support of the first issue, they did cite one case in support of the second issue. The Appellants argue that the timely filing of a complaint acts to toll the statute of limitations while that suit is pending, and they cite Norman v. Bucklew, 684 So.2d 1246, 1256 (Miss.1996) in support of that proposition.

¶ 17. Norman is distinguishable from the present issue. Narman involved a plaintiff who filed a claim in federal court, asserting various claims having both original and supplemental federal jurisdiction. Id. at 1248. When the district court dismissed the federal claims, finding them to be without merit, the court also dismissed the supplemental state claims without prejudice. Id. at 1249. After Norman filed his state-law claims in circuit court, the court dismissed them as being barred by collateral estoppel and by the statute of limitations. Id. at 1250. On appeal, the supreme court found that the statutes of limitations on Norman’s state-law claims were tolled during the pendency of his federal litigation. Id. at 1256.

¶ 18. The present set of facts present a much different scenario than the one the supreme court addressed in Norman. This case began with Ervin initially filing a claim. After reopening the case, which had been dismissed as stale, Ervin admitted that he had no ownership interest in the land or damaged property and that he was not the proper plaintiff. Accordingly, the circuit court allowed Ervin to substitute Corner Closet as the plaintiff. When Corner Closet’s complaint was dismissed, the Appellants filed the present suit. Unfortunately, they filed suit beyond the three-year statute of limitations.

¶ 19. Of course, a statute of limitations is tolled during any period of time for which a party is enjoined from filing a complaint. See Miss.Code Ann. § 15-1-57 (Rev.2003). However, in this case, aside from Corner Closet, none of the other Appellants were a party to the initial lawsuit. From the date of the incident until the expiration of the three-year statute of limitations, the other Appellants were free to file their own claim or to join in the claim erroneously filed on behalf of Corner Closet. For example, an applicable statute of limitations is not tolled while another related suit is pending on appeal. Townsend v. Estate of Gilbert, 616 So.2d 333, 336 (Miss.1993). The Appellants were not parties to the suit that they argue should have tolled the statute of limitations; therefore, we see no reason why the statute of limitations should have been tolled for them.

¶ 20. Rule 15(c) of the Mississippi Rules of Civil Procedure provides for circumstances in which an amended pleading may relate back to the original pleading and, therefore, avoid being barred by the expiration of the statute of limitations. However, the Appellants receive no reprieve from this rule because they did not amend their complaint. Instead, they filed an entirely new complaint, which included new parties that never had filed a complaint against Pontotoc Electric prior to the expiration of the statute of limitations.

¶ 21. The supreme court has held “that an amendment substituting a plaintiff relates back to the date of the original complaint under Mississippi Rule of Civil Procedure 15(e) if the new plaintiff is the real party in interest.” MS Comp Choice, SIF v. Clark, Scott & Streetman, 981 So.2d 955, 962(¶ 22) (Miss.2008); see also Yazoo Mfg. Co. v. Schaffer, 254 Miss. 35, 47, 179 So.2d 784, 790 (1965) (finding that whether or not an amended coinplaint relates back to the date of the original complaint depends on whether the amended complaint states a new cause of action). However, as we have stated, the present case is distinguishable because it involved an entirely new complaint, not an amended complaint.

¶ 22. Having failed to take any action until December 2, 2005, more than three years from the alleged incident on March 2, 2002, we find no error with the circuit court’s determination that the Appellants’ claims were barred by the expiration of the statute of limitations.

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

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


author: LEE, P.J.,

text:
    Lapriest Corteezes McMILLAN a/k/a Lapriest Cortezees McMillan a/k/a Lapriest Cortezes McMillan, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01999-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. LaPriest Corteezes McMillan was indicted for burglary as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). He was accused of burglarizing a storage building at the Weems Mental Health Center (the Center). On October 9, 2007, a Scott County jury convicted McMillan of business burglary. McMillan was sentenced as a habitual offender to serve seven years in the custody of the Mississippi Department of Corrections without eligibility for parole.

¶ 2. The State presented the testimony of Michael Sanders and Stephanie Niven, who both testified that they observed a truck back up to the storage building on the night of the burglary. Both individuals work for Emergystat ambulance service and were near the Center on the night in question. Sanders called 911 to report the suspicious activity of the truck.

¶3. Officer Joey Hall, with the Forest Police Department, testified that he went to the Center in response to the call made by Sanders. He found McMillan and the truck, which was still backed up to the storage building. The bed of the truck contained two fans and a grill. McMillan stated that the items in the bed of the truck belonged to him. Teont Boyd, an employee of the Center, was summoned to the scene. He identified the items as property of the Center. He also stated that the grill and fans were normally stored in the locked storage building. Officer Will Jones testified that the door of the storage building looked like it had been pried open. Officers found a hammer on top of the grill located in the back of McMillan’s truck.

¶ 4. McMillan testified in his own defense. He claimed that he found the grill and two fans outside the shed, so he put them in his truck. This was when the officers arrived on the scene, questioned him, and arrested him for burglary. McMillan admitted that he intended to sell the items in order to gain money to buy drugs. At trial, McMillan attempted to show that he never broke into the shed but only loaded the items, which were sitting outside the shed, into the bed of his truck.

¶ 5. McMillan now appeals, asserting the following: (1) the trial court erred in sen-tending him as a habitual offender, and (2) the trial coui't erred in denying his motion for a directed verdict, request for a peremptory instruction, and motion for a new trial. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN SENTENCING MCMILLAN AS A HABITUAL OFFENDER?

¶ 6. McMillan contends that he was not properly indicted as a habitual offender; thus, his subsequent enhanced sentence was inappropriate. Uniform Rule of Circuit and County Court 11.03(1) reads:

In cases involving enhanced punishment for subsequent offenses under state statutes:
The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment. The indictment shall not be read to the jury.

¶ 7. McMillan challenges whether the indictment effectively notified him of the habitual-offender enhancement. Page one of the indictment states that the charge against McMillan was “Burglary of Storage Building, Habitual Offender.” Page two of the indictment included detailed information regarding his previous felonies of forgery and burglary of a dwelling and alleged that he was a habitual offender pursuant to Mississippi Code Annotated section 99-19-81. Plus, the language “against the peace and dignity of the State of Mississippi” appears on the end of the second page which is after the detailed information charging McMillan as a habitual offender. Because the indictment charges McMillan as a habitual offender before the words “against the peace and dignity of the State of Mississippi,” it is not faulty. See McNeal v. State, 658 So.2d 1345, 1350 (Miss.1995). The indictment included the principal charge and previous charges in the body of the indictment. Therefore, his enhanced sentence under the habitual-offender statute was proper. This issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING MCMILLAN’S MOTIONS FOR A DIRECTED VERDICT, A PEREMPTORY INSTRUCTION, AND A NEW TRIAL?

A. Denial of Motion for Directed Verdict

¶ 8. A motion for a directed verdict challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of a motion for a directed verdict. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id.

¶ 9. McMillan contends that the State failed to prove essential elements of the crime for which he was convicted. The State had the burden of proving beyond a reasonable doubt that McMillan was guilty of the following:

Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

Miss.Code Ann. § 97-17-33(1) (Rev.2006). The State presented evidence that the fans and grill were the property of the Center. McMillan admitted on the stand that he knew the items did not belong to him and that he was taking the items to sell them for drug money. This is contradictory to the first story he told police when he stated that he owned the property loaded in his truck bed. At trial, he claimed that the items wei’e simply sitting on the ground outside the storage building. However, the State presented additional evidence to contradict this theory. Officer Jones stated that the door handle appeared to have been pried open. Boyd testified that he also saw pry marks on the metal door of the storage building that were not there prior to the evening of the burglary, and the storage building door was always locked when not in use. During cross-examination, Boyd admitted that there were times that the grill remained outside the shed, and he had not personally locked the shed before he went home.

¶ 10. A jury instruction was given for petit larceny, which was consistent with McMillan’s testimony that he never actually broke into the shed. However, the jury found McMillan guilty of burglary. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425(¶ 8) (Miss.Ct.App.1999).

¶ 11. After viewing all the evidence in the light most favorable to the State, we find that the evidence is sufficient to support the finding that McMillan pried the door open on the storage building. The State satisfied its burden of proving this element of burglary beyond a reasonable doubt. This' issue is without merit.

B. Denial of Request for Peremptory Jury Instruction

¶ 12. The standard of review of the denial of a request for a peremptory jury instruction is the same as that for the denial of a motion for a directed verdict. Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss.2001). Considering the evidence presented by the State as discussed above, there was sufficient evidence to support the trial court’s denial of McMillan’s request for a peremptory instruction. Therefore, this issue is without merit.

C. Denial of Motion for a Neiv Trial

¶ 13. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18). This Court will weigh the evidence in the light most favorable to the verdict. Id. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). Rather, it means that this Court, sitting as the “thirteenth juror,” simply disagrees with the jury’s resolution of the conflicting testimony. Id.

¶ 14. In the current case, considering all evidence presented at trial in the light most favorable to the verdict, this Court, sitting as a limited thirteenth juror, cannot say that to allow the verdict to stand would sanction an unconscionable injustice. Therefore, this issue is without merit.

¶ 15. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A STORAGE BUILDING AND SENTENCE AS A HABITUAL OFFENDER OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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


text:
    Daniel WEBSTER, Appellant, v. CITY OF D'IBERVILLE CITY COUNCIL; Mayor of D'Iberville and City Council President, Rusty Quave; City Manager of D'Iberville, Alan Santa Cruz; and D'Iberville Planning Commission, Appellees.
    No. 2008-CA-00203-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.

      Laquetta Maria Golden, attorney for appellant.
    Robert O. Allen, William Robert Allen, Brookhaven, attorneys for appellees.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Daniel Webster owned real property at 10162 Seymour Avenue in D’Iberville, Mississippi. The property contained a dilapidated and hazardous structure. After a public hearing on the matter, the City of Dlberville (the City) issued a resolution which authorized cleanup of the structure. Webster began the initial cleanup of the property.

¶ 2. On February 6, 2001, another public hearing concerning the hazardous structure was held. Webster and his attorney, David Daniels, attended this hearing and gave testimony. The City then issued another resolution requiring Webster to submit architectural and engineering plans indicating how the structure would be repaired or removed.

¶ 3. On February 26, 2001, Webster entered into a contract to sell the property to Danny McDaniel with KDM Development. On March 21, 2001, Webster conveyed the property to McDaniel via a quitclaim deed, and the deed was properly recorded. The next day, the bank handling the transaction informed Webster that the instrument deposited by McDaniel was fraudulent and would not be honored.

¶ 4. In April 2001, the City forwarded a letter to McDaniel and Daniels, Webster’s attorney, stating that the required plans had not been submitted, and the City intended to demolish the structure. Shortly after this, Webster filed a request in the Harrison County Chancery Court for emergency injunctive relief seeking to enjoin the City from demolishing the structure. A hearing was held, and the chancellor ruled that a temporary restraining order would be granted if Webster, Daniels, or McDaniel posted a $5,000 bond by 5:00 p.m. on May 18, 2001. The bond was never posted. The structure was demolished by the City on May 31, 2001.

¶ 5. On April 16, 2002, Webster sent a “notice of claim” letter to the City’s attorney notifying the City of his intent to file suit. On August 29, 2002, Webster filed a complaint against the City of D’Iberville; the City Council; Mayor and City Council President Rusty Quave; the D’Iberville Planning Commission; and City Manager of D’Iberville Alan Santa Cruz (collectively referred to as “the City”). Webster alleged a violation of the Mississippi Tort Claims Act, trespass, the unlawful exercise of police power, a violation of his constitutional rights, and an unlawful taking without compensation and due process of law.

¶ 6. The City moved for summary judgment based upon Webster’s failure to comply with the notice of claim provisions in the Mississippi Tort Claims Act, specifically Mississippi Code Annotated section 11-46-11(2) (Rev.2002), and based upon Webster’s purported admission that he had no claims against the City in connection with the demolition of the structure. The trial judge granted the City’s motion for summary judgment. Webster now appeals, asserting that the trial judge erred in granting the City’s motion for summary judgment.

STANDARD OF REVIEW

¶ 7. In reviewing a trial judge’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547(¶ 13) (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 trial 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). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). This Court also reviews the proper application of the Mississippi Tort Claims Act de novo. Id.

DISCUSSION

¶ 8. In his only issue on appeal, Webster argues that the trial judge erred in granting the City’s motion for summary judgment. Webster contends that his notice of claim was sufficient to meet the notice requirements of section 11 — 46—11(2). Section 11-46-11(2) reads as follows:

Every notice of claim required by subsection (1) of this section shall be in writing, and shall be delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

Webster claims that the information contained in the letter forwarded to the City’s attorney meets the substantial compliance test as discussed in Reaves ex rel. Rouse v. Randall, 97-CA-00982-SCT (Miss. Mar. 26, 1999), and Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999). In Reaves, the supreme court declared that substantial compliance with the requirements of the notice statute would be sufficient to grant the trial court jurisdiction over the case. Reaves, 97-CA-00982-SCT at (¶ 10). The court in Carr further defined substantial compliance by stating that substantial compliance was that which “informs the municipality of the claimant’s intent to make a claim and contains sufficient information” to satisfy the purposes of the statute. Carr, 733 So.2d at 263 (¶ 9) (citations omitted). “The determination of substantial compliance is a legal, though fact-sensitive, question and is, therefore, necessarily decided on an ad hoe basis.” Id. at 265 (¶ 14).

¶ 9. However, in South Central Regional Medical Center v. Guffy, 930 So.2d 1252, 1258 (¶ 19) (Miss.2006), the supreme court ruled that allowing claimants to not comply with any one of the notice factors rendered the concept of substantial compliance “meaningless.” The failure of a claimant to “provide any of the seven statutorily required categories of information,” for example, the failure to give a short and plain statement of the facts or to provide the plaintiffs residential address, “falls short of the statutory requirement and amounts to non-compliance with [section] 11-46-11(2).” Id. at 1258 (¶ 20). If some information is provided in each of the seven required categories, this Court “must determine whether the information is ‘substantial’ enough to be in compliance with the statute. If it is, the result is ‘compliance,’ not ‘substantial compliance’ with the requirements under [section] 11-46-11(2).” Id. See also Parker v. Harrison County Bd. of Supervisors, 987 So.2d 435 (Miss.2008).

¶ 10. In his letter to the City’s attorney, Webster only provides information for two of the required categories, namely the circumstances which brought about the injury and the time and place of the injury. The notice of claim letter fails to provide the extent of the injury suffered, the names of all persons known to be involved, the money damages sought, or Webster’s residential address either at the time of the injury or at the time of filing the notice. Webster admits that his notice contains information only as to some of the required categories, but he argues that, pursuant to Reaves and Carr, his information amounts to substantial compliance. We disagree and find that Webster has failed to meet the notice requirements of section 11-46-11(2). Thus, we affirm the trial judge’s decision to grant summary judgment for the City.

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

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


author: SEE, Justice.

text:
    Ex parte Mike HALE, sheriff of Jefferson County. (In re Emma Jean Jenkins, as the personal representative and administratrix of the estate of Belinda Denise Hodge, deceased v. Mike Hale, individually and in his official capacity as sheriff of Jefferson County, Alabama, et al.).
    1070252.
    Supreme Court of Alabama.
    May 23, 2008.
    As Modified on Denial of Rehearing Oct. 10, 2008.

      Susan J. Walker and Brent G. Grainger of Waldrep Stewart & Kendrick, LLC, Birmingham, for petitioner.
    Silas G. Cross, Jr., and Justin L. Smith of Cross, Poole, Goldasich & Fischer, LLC, Tuscaloosa, for respondent.
   SEE, Justice.

Emma Jean Jenkins, in her capacity as personal representative and administratrix of the estate of Belinda Denise Hodge, filed this action against numerous defendants, including Jefferson County Sheriff Mike Hale, whom she sued individually and in his official capacity. During the course of the litigation, Jenkins dismissed the claims against Sheriff Hale in his official capacity. Sheriff Hale then moved the trial court to dismiss Jenkins’s remaining claims against him bn the basis that he is immune from liability. The Jefferson Circuit Court denied Sheriff Hale’s motion, and Sheriff Hale now petitions this Court for the writ of mandamus directing the trial court to dismiss the claims asserted against him. We grant the petition in part and deny it in part.

Facts and Procedural History

“Because we are reviewing a trial court’s ruling on a motion to dismiss, we treat the allegations in [Jenkinsj’s complaint as true.” Ex parte Davis, 930 So.2d 497, 498 (Ala.2005) (citing Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002)). Jenkins alleges that Sheriff Hale violated Hodge’s constitutional rights following her arrest and detention at the Jefferson County jail and that those violations caused Hodge’s death. Hodge was arrested on August 11, 2004, and was detained in the Jefferson County jail. Four days later, Hodge was taken to Cooper Green Hospital because of pain associated with surgery on Hodge’s back performed several months before her arrest. Hodge was transferred from Cooper Green to the University of Alabama at Birmingham Hospital (“UAB Hospital”), where she was diagnosed with an infection related to her back surgery. Hodge underwent additional back surgery at UAB Hospital and eventually returned to the Jefferson County jail on September 1, 2004. Jenkins alleges that Hodge made a written request for medical care on November 28, 2004, because her lower abdomen was swollen and she was not having bowel movements. Hodge was admitted to Cooper Green on December 18, 2004; she died the next day. Jenkins alleges that when Hodge arrived at Cooper Green in December 2004, Hodge “had been constipated for three weeks, had not voided in three days and had suffered from fever and chills for four to five days.” Jenkins’s brief at 12. The complaint asserts that an autopsy revealed sepsis as the cause of Hodge’s death.

Jenkins filed this action in her capacity as personal representative and administra-trix of Hodge’s estate, asserting two claims against Sheriff Hale in his individual capacity. Jenkins’s first count against Hale is brought under 42 U.S.C. § 1983, in which she alleges that Sheriff Hale violated Hodge’s Eighth and Fourteenth Amendment rights by failing to provide Hodge with adequate medical care. The complaint also asserts a claim alleging breach of contract, specifically that Sheriff Hale’s failure to provide adequate medical care to Hodge violated the terms of Sheriff Hale’s official bond with Western Surety Company. On this count, Jenkins alleges that she is “entitled to recover from ... Western Surety Company for the said breach,” but also “demands judgment against the defendants, jointly and severally, for incidental and consequential damages in an amount to be determined by a struck jury-” Jenkins’s brief at Exhibit 2.

Sheriff Hale moved the trial court to dismiss Jenkins’s claims against him, pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that he was entitled to qualified immunity from Jenkins’s § 1983 claim. The trial court, however, found that Jenkins’s complaint was sufficiently pleaded to establish a § 1983 claim and that Sheriff Hale was not entitled to a dismissal. Sheriff Hale now petitions this Court for the writ of mandamus directing the trial court to dismiss both of Jenkins’s claims against him.

Issues

Sheriff Hale argues that he is entitled to the writ of mandamus on two grounds. First, he argues that he is entitled to immunity under Art. I, § 14, Ala. Const. 1901, on Jenkins’s breach-of-contract claim. Second, Sheriff Hale argues that he is entitled to qualified immunity from Jenkins’s § 1983 claim.

I. Jenkins’s Breach-of-Contract Claim

Sheriff Hale asks this Court to direct the circuit court to dismiss Jenkins’s breach-of-contract claim against him on the basis of State immunity. Sheriff Hale argues that he is entitled to immunity under § 14, Ala. Const.1901, because, he says, Jenkins seeks in her breach-of-contract claim to recover money damages for those acts Sheriff Hale performed while he was working within the line and scope of his employment as a sheriff for the State of Alabama.

A. Standard of Review

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

Ex parte Davis, 930 So.2d at 499. “‘[I]f an action is an action against the State within the meaning of § 14, such a case “presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.” ’ ” Ex parte Davis, 930 So.2d at 499 (quoting Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004), quoting in turn Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala.2002)). “ ‘Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.’ ” Ex parte Davis, 930 So.2d at 499-500 (quoting Ex parte Alabama Dep’t of Mental Health & Retardation, 837 So.2d 808, 810-11 (Ala.2002)). Moreover, this Court may address this argument even if it was not presented to the trial court. See Atkinson v. State, 986 So.2d 408, 411 (Ala.2007) (“The assertion of State immunity challenges the subject-matter jurisdiction of the court; therefore, it may be raised at any time by the parties or by a court ex mero motu.’’).

B. Analysis

Sheriff Hale argues that Art. 1, § 14, Ala. Const.1901, affords him immunity “in his individual capacity for actions taken in the line and scope of his employment as Sheriff.” Sheriff Hale’s petition at 7. He asserts that Jenkins’s breach-of-contract claim “seeks compensation for [the] alleged actions taken [by Sheriff Hale] during the course and scope of Sheriff Hale’s employment as Sheriff of Jefferson County” and, thus, that Sheriff Hale’s State immunity bars Jenkins’s breach-of-contract claim. Sheriff Hale’s petition at 8. Jenkins argues that she does not seek damages from Sheriff Hale but seeks only “to recover on her breach of contract claim through Sheriff Hale’s official bond with Western Surety Company.” Jenkins’s brief at 28.

“Article I, § 14, Const. of Ala.1901, states that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ ‘The wall of immunity erected by § 14 is nearly impregnable.’ ” Ex parte Davis, 930 So.2d at 500 (quoting Patterson, 835 So.2d at 142). This Court has concluded that § 14, Ala. Const.1901, prohibits suits against a sheriff in his official capacity for conduct that occurred in the line and scope of the sheriffs employment. See Parker v. Amerson, 519 So.2d 442, 442-43 (Ala.1987) (“A sheriff is an executive officer of the State of Alabama, who is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office .... ”); Employees of the Montgomery County Sheriff’s Dep’t v. Marshall, 893 So.2d 326, 331 (Ala.2004) (“State immunity immunizes the sheriff in his official capacity from liability for money damages.”).

On the other hand, as this Court noted in Ex parte Davis:

“ ‘Section 14 does not necessarily immunize State officers and agents from individual civil liability.’ Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978). Whether immunity serves as a defense to an action against a state officer or employee sued in his individual capacity depends upon the degree to which the action involves a State interest. ...
“When determining whether a State interest in an action against a state official or employee in his or her individual capacity is sufficient to trigger the immunity granted by § 14, our cases distinguish between the standards applied to those state agents or employees whose positions exist by virtue of legislative pronouncement and those who serve as the constitutional officers of this State. We have held that State-agent immunity may bar an action against a state agent or employee under the principles announced in Ex parte Cranman, 792 So.2d 392 (Ala.2000). See Ex parte Butts, 775 So.2d 173 (Ala.2000) (adopting, by majority, the Cranman restatement of the rule governing State-agent immunity). Hoivever, this Court has consistently held that a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment.’’

930 So.2d at 500-01 (emphasis added).

In this instance, Jenkins has asserted a breach-of-contract claim against Sheriff Hale in his individual capacity; accordingly, Sheriff Hale is not automatically entitled to immunity. See Ex parte Davis, supra. To determine whether Sheriff Hale is entitled to immunity we must determine whether Jenkins’s breach-of-contract claim is, in effect, a claim against the State. Jenkins does not contest that the actions giving rise to her breach-of-contract claim were actions taken by Hale in the execution of his duties as sheriff. Jenkins argues, however, that she seeks to recover on her breach-of-contract claim only on Sheriff Hale’s official bond from Western Surety Company and, thus, that her claim is not a claim against the State. Jenkins’s brief at Exhibit B. We disagree. Although Jenkins alleges that she “is entitled to recover from the defendant Western Surety Company for the said breach,” she also “demands judgment against the defendants, jointly and severally, for incidental and consequential damages in an amount to be determined by a struck jury .... ” Jenkins’s brief, Exhibit B. Jenkins’s second amended complaint clearly seeks a monetary award from Sheriff Hale in his individual capacity; thus, under our holding in Ex parte Davis, Sheriff Hale is entitled to State immunity on Jenkins’s breach-of-contract claim.

II. Jenkins’s § 1983 Claim

Jenkins alleges that Sheriff Hale, as the supervisor of the jail, is liable for the alleged violations of Hodge’s constitutional rights. “ ‘Supervisory liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation.’ ” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.1999). Sheriff Hale argues that he is entitled to qualified immunity from liability on Jenkins’s § 1983 claim because, he says, Jenkins’s complaint is insufficiently pleaded. Jenkins argues, however, that the pleadings are sufficient to defeat Sheriff Hale’s claim of immunity.

A. Standard of Review

“A petition for a writ of mandamus ‘is an appropriate means for seeking review of an order denying a claim of immunity.’ ” Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000)).

“ ‘While the defense of qualified immunity is typically addressed at the summary judgment stage of a case, it may be, as it was in this case, raised and considered on a motion to dismiss. See Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.2001). The motion to dismiss will be granted if the “complaint fails to allege the violation of a clearly established constitutional right.” Id. (citing Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.1997)). Whether the complaint alleges such a violation is a question of law that we review de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiffs favor. Id.’

Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 402-03 (Ala.2003) (emphasis omitted) (quoting St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.2002)).

B. Analysis

Under our standard of review, the primary issue this Court must address with regard to Sheriff Hale’s qualified-immunity defense is whether Jenkins’s “complaint fails to allege the violation of a clearly established constitutional right.” Ex parte Alabama Dep’t of Youth Servs., supra. Inherent in this analysis are two questions: (1) whether “the applicable law was clearly established at the time of the challenged action,” Adams v. Franklin, 111 F.Supp.2d 1255, 1263-64 (M.D.Ala.2000), and (2) whether the complaint alleges the violation of that right. It does not appear that Sheriff Hale disputes that “the applicable [Fourteenth Amendment right] was clearly established at the time of the challenged action.” See Adams, supra. Therefore, whether Sheriff Hale is entitled to qualified immunity from Jenkins’s § 1983 claim turns on whether the “complaint ... allege[s] the violation of [that] clearly established constitutional right.” See Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 402-03.

i. Sheriff Hale’s personal participation

Jenkins argues that her second amended complaint alleges that Hodge’s medical condition while she was at the Jefferson County jail was serious, that Sheriff Hale was aware of Hodge’s condition, and that Sheriff Hale failed or refused to obtain medical treatment for Hodge. The complaint further states that “[o]n or about November 28, 2004, [Hodge] made a written request for immediate medical care because her lower abdomen was extremely swollen and because her bowels were not moving.” Jenkins’s brief at 12-13. She also alleges that at the time Hodge was taken to the emergency room, Hodge “had been constipated for three weeks, had not voided in three days and had suffered from fever and chills for four to five days.” Jenkins’s brief at 12. The complaint further alleges that “[Sheriff Hale] ... [was] aware of Hodge’s condition but intentionally, knowingly, and/recklessly denied Hodge medical treatment for the condition” and that “[Sheriff] Hale ... [was] aware that Hodge had a serious and/or life threatening medical condition but failed to provide Hodge with medical treatment for her said condition.” Jenkins’s brief at 13. Finally, Jenkins alleges that “the failure of the above named defendants [including Sheriff Hale] to provide Hodge with medical care proximately caused Hodge’s death.” Jenkins’s brief, Exhibit B.

“The case law [has] made it clear that an official acts with deliberate indifference when he knows that an inmate is in serious need of medical care, but he fails or refuses to obtain medical treatment for the inmate.” Lancaster v. Monroe County, 116 F.3d 1419, 1425 (11th Cir.1997). As noted above, in determining whether Jenkins has “allege[d] the violation of [this] clearly established constitutional right” we look to the complaint, “accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiffs favor.” See Ex parte Alabama Dep’t of Youth Servs., 880 So.2d at 403 (emphasis omitted).

The matter before us is Sheriff Hale’s clear legal right under Rule 12(b)(6), Ala. R. Civ. P., to have the § 1983 claim against him dismissed for failure to state a claim on which relief can be granted; therefore, we do not address the merits of the claim. On a motion to dismiss a § 1983 claim because of qualified immunity, this Court looks to the complaint to determine only whether the “ ‘ “complaint ... allege[s] the violation of a clearly established constitutional right.” ’ ” Alabama Dep’t of Youth Servs., 880 So.2d at 402 (quoting St. George, 285 F.3d at 1337, quoting in turn Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.2001)). “[A] jail official violates a pre-trial detainee’s Fourteenth Amendment right to due process if he acts with deliberate indifference to the serious medical needs of the detainee,” Lancaster, 116 F.3d at 1425 (footnote omitted). Jenkins has alleged in her complaint that Hodge had a serious medical need, that Sheriff Hale was aware of that need, and that he acted with deliberate indifference to that need. Therefore, we cannot conclude at this stage of the proceedings that Sheriff Hale is entitled to a dismissal of that portion of Jenkins § 1983 claim in which she alleges that Sheriff Hale personally deprived Hodge of her Fourteenth Amendment rights because her complaint alleges the violation of a clearly established constitutional right.

ii. Sheriff Hale’s supervisory liability

“ ‘Supervisory officials are not liable under section 1983 on the basis of respondeat superior or vicarious liability.’ They may, however, be liable under section 1983 ‘when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation.’ ” Belcher v. City of Foley, 30 F.3d 1390, 1396-97 (11th Cir.1994) (citations omitted). As the United States Court of Appeals for the Eleventh Circuit stated in Hartley v. Parnell, 193 F.3d at 1269:

“ ‘The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.’ ”

(Quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990).) The Eleventh Circuit Court of Appeals also noted that “the causal connection may be established and supervisory liability imposed where the supervisor’s improper ‘custom or policy ... result[s] in deliberate indifference to constitutional rights.’ ” Hartley, 193 F.3d at 1269 (quoting Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir.1991)).

a. Widespread abuse

With respect to a history of widespread abuse, Jenkins alleges in her complaint that Sheriff Hale, as the supervisor of the jail, is liable for the alleged violations of Hodge’s constitutional rights because, she argues, “[Sheriff] Hale ... [was] on notice that a widespread problem existed wherein inmates of the County Jail were not receiving medical treatment for serious medical needs.” Jenkins’s brief, Exhibit B. Jenkins further alleges that the constitutional deprivations were “obvious, flagrant, rampant and/or of continued] duration.” In her complaint, Jenkins supports the allegations with references to statements made by Sheriff Hale in his March 2007 complaint for a declaratory judgment in the Jefferson Circuit Court in Hale v. Jefferson County et al. (CV-2007-01040) (“the DJA”). These references in her complaint allege that, in the complaint in the DJA, Sheriff Hale admitted to a “troubling pattern” with respect to inmate health care at the county jail. Jenkins’s complaint then identifies, from the DJA complaint, eight “lawsuits or notices of claims [that have been] filed ... [that] demonstrate that [Sheriff] Hale is fully aware this troubling pattern exists.” She alleges in her complaint that “[s]ome of these instances and others ... placed [Sheriff Hale] ... on notice of widespread problems of inadequate medical care in the County Jail and his need to correct the inmates’ constitutional deprivations” and that “[Sheriff Hale] ... failed to correct the widespread problems and constitutional deprivations.” Jenkins’s brief, Exhibit B (emphasis omitted). Jenkins concludes that “[Sheriff Hale’s] ... conduct proximately caused Hodge’s death.”

Sheriff Hale argues that “by interjecting the DJA into these proceedings, [Jenkins] has plead[ed] herself out of the litigation.” Sheriff Hale’s petition at 20. Sheriff Hale argues that the DJA demonstrates that the problem of inmate medical care was not widespread, given the fact that the complaint in the DJA references only nine incidents over a three-year period, one of which is the incident involving Hodge. Furthermore, Sheriff Hale argues that not all of these incidents occurred before December 2004 and, thus, would not serve as notice of the alleged widespread violations. Finally, Sheriff Hale asserts that the existence of the DJA proves that he was, in fact, attempting to improve inmate health care.

This matter is before us because the trial court declined to dismiss the § 1983 claim against Sheriff Hale, not because of the denial of a summary-judgment motion; therefore, we do not address whether Jenkins’s reference to the DJA would constitute substantial evidence of her claim. We agree with Jenkins that she has sufficiently pleaded this issue to avoid a Rule 12(b)(6) dismissal. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 791 (Ala.2007) (“ ‘In making this determination, [whether the pleader could prove any set of circumstances that would entitle her to relief under 12(b)(6), Ala. R. Civ. P.,] this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail.’ ” (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993))). Jenkins’s complaint alleges the existence of widespread constitutional violations, alleges that those violations were “obvious, flagrant, rampant and of continued duration, rather than isolated occurrences,” and alleges that Sheriff Hale was aware of those violations and failed to take corrective action. Hartley, 193 F.3d at 1269. Therefore, Jenkins’s “complaint ... allege[s] the violation of a clearly established constitutional right,” Alabama Dep’t of Youth Servs., 880 So.2d at 402. Thus, in light of Jenkins’s allegation of widespread abuse with respect to medical care for inmates, Sheriff Hale has not demonstrated that he is entitled to a dismissal based on qualified immunity or that he has a clear legal right to mandamus relief on this issue.

b. Custom or policy

Jenkins also alleges that Sheriff Hale had in place at the jail the following four specific policies and/or customs that, she alleges, proximately resulted in Hodge’s death:

“(a) policy and/or custom of failing to adequately staff the jail with medical personnel; (b) policy and/or custom of failing to train deputies and/or jail personnel on how to respond to an inmate’s request for medical attention; (c) policy and/or custom in place of failing to administer the correct dosage of medications and/or antibiotics to inmates of the County Jail; (d) policy and/or custom of failing to monitor and/or properly treat inmates of the County Jail who have known serious medical problems.”

Jenkins’s brief, Exhibit B. Sheriff Hale argues:

“As set out in the DJA, Jefferson Metropolitan Health Care Authority and/or Jefferson County d/b/a Cooper Green Hospital and/or Jefferson Health System controlled the provision of inmate healthcare at the Jails. Therefore, these entities that were responsible for providing inmate healthcare enacted the customs or policies relating thereto.
“Because the aforementioned entities undertook and controlled the provision of inmate healthcare, Sheriff Hale did not establish or promulgate policies or customs regarding the provision of inmate healthcare at the Jails.”

Sheriff Hale’s petition at 24. In support of this argument, Sheriff Hale cites Williams v. Limestone County, 198 Fed.Appx. 893 (11th Cir.2006), an unpublished decision of the United States Court of Appeals for the Eleventh Circuit, in which that court noted that “supervisory officials are entitled to rely on medical judgments made by medical professionals responsible for prisoner care.” 198 Fed.Appx. at 897. However, even if this Court were to find Williams persuasive, at least one of the policies alleged by Jenkins to have enabled Jefferson County jail officials to allegedly deprive Hodge of her constitutional rights, that is, the “policy and/or custom of failing to train deputies and/or jail personnel on how to respond to an inmate’s request for medical attention,” is not related to “medical judgments made by medical professionals responsible for prisoner care.” Williams, supra.

Sheriff Hale also cites Fretwell v. Deese, No. 2:04cv878-WHA (M.D.Ala. July 25, 2006)(not reported in F.Supp.2d), an unpublished order adopting the findings of the magistrate judge, in which the district court recognized that “[t]he law does not impose upon correctional officials a duty to directly supervise health care personnel, to set treatment policy for the medical staff, or to intervene in treatment decisions where they have no actual knowledge that intervention is necessary to prevent a constitutional wrong.” Again, however, at least one of the policies Jenkins alleges contributed to the alleged deprivation of Hodge’s constitutional rights was unrelated to medical treatment, medical care, or medical judgment. Therefore, neither Williams nor Fretwell demonstrates that Sheriff Hale is entitled to a dismissal of Jenkins’s § 1983 claim under Rule 12(b)(6).

Under Hartley, Jenkins was required to plead that Sheriff Hale’s “improper ‘custom or policy ... resulted in deliberate indifference to constitutional rights,’ ” Hartley, 193 F.3d at 1269. In her complaint, Jenkins alleges that “[Sheriff Hale] ... had policies and/or customs in place that caused medical treatment to be denied to inmates of the County Jail” and that “the failure of [Sheriff Hale] ... to correct these policies and/or customs ... enabled Sheriffs Deputies, jail personnel and/or medical personnel to deprive Hodge ... of [her] constitutional right.” Jenkins’s brief, Exhibit B. Jenkins’s “complaint ... allege[s] the violation of a clearly established constitutional right,” Alabama Dep’t of Youth Servs., 880 So.2d at 402. Therefore, at this stage of the proceedings, Sheriff Hale is not entitled to a dismissal of Jenkins’s § 1983 claim against him based on qualified immunity and, thus, is not entitled to mandamus relief on this issue.

Conclusion

We conclude that Sheriff Hale is entitled to State immunity under § 14, Ala. Const. 1901, on Jenkins’s breach-of-contract claim. Therefore, we grant his petition as to that claim and direct the trial court to dismiss Jenkins’s breach-of-contract claim against Sheriff Hale. However, we conclude that Jenkins’s complaint sufficiently alleges a violation of Hodge’s constitutional rights and that at this stage in the proceedings Sheriff Hale is not entitled to a dismissal of Jenkins’s § 1983 claim based upon Sheriff Hale’s, qualified immunity. Therefore, we deny Sheriff Hale’s petition on that ground.

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

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

      . The materials before this Court do not indicate to whom such a request is made, only that Hodge made her request for "immediate medical care” to "Sheriff Hale and other defendants.”

      . 42 U.S.C. § 1983 provides:
      "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

      .Rule 12(b)(6), Ala. R. Civ. P., provides:
      “Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... 6) failure to state a claim upon which relief can be granted ...

      . Our holding leaves Western Surety Company as a defendant in Jenkins’s breach-of-contract claim. Dixon v. American Liberty Insurance Co., 332 So.2d 719, 721 (Ala.1976), allowed an action brought by a widow, individually and as next friend of her minor son, and as administratrix of the estate of her deceased husband, to proceed against a surety on the bond of a sheriff on the ground that the decedent died as a result of the failure of the sheriff to provide him with adequate medical treatment while he was in jail. Neither party in the case before us asks this Court to address whether such an action is . permissible or to revisit the holding in Dixon.

      . Sheriff Hale also asserts that Jenkins's § 1983 claim against him should be dismissed because, he argues, Jenkins’s claim fails to meet the "heightened pleading standard" applied by "the federal courts" to § 1983 claims against government officials. In support of this position, he relies exclusively on caselaw from the United States Court of Appeals for the Eleventh Circuit and states that this Court is required to abide by those decisions. However, "the correct rule, briefly stated, is that '[t]his Court may rely on a decision of any federal court, but it is bound by the decisions of the United States Supreme Court.’ ” Weems v. Jefferson-Pilot Life Ins. Co., 663 So.2d 905, 913 (Ala.1995) (quoting Ex parte Gurganus, 603 So.2d 903, 908 (Ala.1992) (Shores, J„ concurring specially)(emphasis omitted; emphasis added)). Because we are not bound by the decisions of the Eleventh Circuit and because Sheriff Hale has not asked us to adopt the "heightened pleading standard” applied by the Eleventh Circuit, we do not address whether this standard is applicable under Alabama law, nor do we apply such a heightened pleading standard in this case.

      . Jenkins argues that Sheriff Hale violated Hodge's Eighth and Fourteenth Amendment rights. However, the parties agree that because Hodge was a pretrial detainee, the Eighth Amendment is inapplicable. See Jenkins’s brief at 29 ("Jenkins conceded in the trial court that since [Hodge] was a pre-trial detainee at the time of her death, her § 1983 claims against [Sheriff] Hale should only be brought under ... the Fourteenth Amendment.”).

      . See Phillips v. Thomas, 555 So.2d 81, 86 (Ala.1989) ("This Court has held that qualified immunity from suit for negligence arising out of a discretionary act is an affirmative defense which must be raised and proved by the defendant. See Bell v. Chisom, 421 So.2d 1239 (Ala.1982); and Hickman [v. Dothan City Bd. of Educ.], 421 So.2d 1257 (Ala.1982). As such, a plaintiff's complaint against a state official or employee, seeking damages for personal injury arising out of the negligent performance of the defendant’s official duties, does state a valid cause of action, and, as such, will survive the defendant’s motions to dismiss and for judgment on the pleadings, even if the defendant raises the affirmative defense of qualified immunity. The summary judgment stage, then, becomes the step at which the court must determine whether the case should proceed forward, and at which the defendant must meet his burden of showing that the alleged negligence arose out of a discretionary or nonministerial act, in order to avail himself of qualified immunity from suit.”).

      . Sheriff Hale cites McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.2004), and Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir.1985). Both involve § 1983 claims against municipalities, and both essentially state the same requirement that we recite above from Hartley — that the “causal connection may be established and supervisory liability imposed where the supervisor's improper 'custom or policy ... result[s] in deliberate indifference to constitutional rights.' ” See McDowell, 392 F.3d at 1289 ("[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.”); Fundiller, 777 F.2d at 1442 ("[LJiability [of a municipality] may be predicated upon a showing that a government employee’s unconstitutional action 'implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,’ or is ‘visited pursuant to governmental "custom” ....’ Regardless whether the basis of the claim is an officially promulgated policy or an unofficially adopted custom, it must be the 'moving force behind the constitutional deprivation before liability may attach.' ”).


author: BOLIN, Justice.

text:
    John Trotman CARROLL v. Alton D. WILLIAMS.
    1060832.
    Supreme Court of Alabama.
    Sept. 12, 2008.

      James R. Fuqua of Fuqua & Kominos, Ozark, for appellant.
    Bryant F. Williams, Jr., Ozark, for ap-pellee.
   BOLIN, Justice.

John Trotman Carroll appeals from a default judgment entered in favor of Alton D. Williams on Williams’s cross-claim against Carroll. We affirm.

Facts and Procedural History

On April 12, 2004, Southern Sports, Inc., which operated a retail sporting-goods store, executed a promissory note for $141,761.56 in favor of The Commercial Bank of Ozark (“Commercial Bank”), which was secured by a mortgage in favor of Commercial Bank on the store premises. Additionally, Southern Sports’ shareholders, Carroll and Williams, executed individual personal guarantee agreements guaranteeing Southern Sports’ obligation on the indebtedness owed Commercial Bank.

On August 5, 2005, Commercial Bank sued Southern Sports and Carroll and Williams, as individual guarantors, to recover the deficient balance of $103,730.68 on the promissory note plus interest and a reasonable attorney fee. Southern Sports, Carroll, and Williams were served with the complaint on August 8, 2005.

On September 16, 2005, Commercial Bank filed with the trial court an “Application, Affidavit, and Entry of Default and Default Judgment” seeking a default judgment against Carroll. On October 3, 2005, the trial court entered a default judgment in favor of Commercial Bank and against Carroll in the amount of $120,444.05.

On December 16, 2005, Williams cross-claimed against Carroll alleging breach of contract, breach of a fiduciary relationship, and conversion. Carroll was served with a copy of the cross-claim complaint on January 11, 2006. Carroll failed to answer the cross-claim or otherwise to defend against the cross-claim.

On September 13, 2006, Williams moved the trial court for a default judgment pursuant to Rule 55, Ala. R. Civ. P. Williams supported his motion for a default judgment with his deposition and other documents, which indicated the following: Williams and Carroll were shareholders in Southern Sports, a corporation that operated a retail sporting-goods store. Williams became a shareholder in August 1995, after purchasing for $20,000 49 shares of Southern Sports’ 99 authorized shares. Williams served as Southern Sports’ secretary; he wrote checks, made bank deposits, and completed tax forms, including employee income-withholding and FICA forms. Williams was required to execute a personal guarantee on the $141,761.56 promissory note with Commercial Bank, which was also secured by a mortgage on Southern Sports’ property and its inventory. Additionally, store vendors required Williams to execute personal guarantees on purchases of store inventory. Carroll assured Williams that the personal guarantees would never be an issue because he would satisfy those obligations from Southern Sports’ earnings and that “in the worst case ... [Carroll] would pay it if it ever came to that.” Williams subsequently discovered that Carroll was taking money from Southern Sports. Carroll would take money from the cash register at the Southern Sports’ store and write himself checks from Southern Sports’ bank account. He would also pay personal debts and expenses out of Southern Sports’ bank account. On one occasion Carroll borrowed $10,000 from Peoples Bank, supposedly to apply against Southern Sports’ debts; however, Carroll kept the money for himself and then repaid the loan from Southern Sports’ funds. When Williams confronted him, Carroll responded by saying, “[W]hat [are you] going to do about it?”

Williams stated that Carroll refused to pay vendors, that he discarded bills in the garbage, and that he refused to pay the state and federal income-withholding and FICA taxes. In October 2003, Carroll denied Williams access to Southern Sports’ bank accounts and prevented him from signing checks and paying bills. Williams states that, in addition to being sued by Commercial Bank, he was sued on his personal guarantee by several vendors, and he remains liable for a substantial tax debt and penalty.

On September 25, 2006, the trial court entered a default judgment in favor Williams. The trial court awarded Williams $114,110 on the breach-of-contract claim; $89,635- on the breach-of-fiduciary-relationship and conversion claims; and $100,000 in punitive damages.

On October 24, 2006, Carroll moved the trial court to set aside the default judgment, stating as grounds:

“1. That [Carroll’s] default is excused by reason of fact that he was unrepresented by an attorney at the time the suit was initially filed or when the Cross-Claim was filed by [Williams];
“2. That [Carroll] did not realize that he had to respond to the Cross-Claim;
“3. That [Carroll] thought that the case was over with when he paid his share of the note to Commercial Bank on or about May 17, 2006, as evidenced by the judgment release attached hereto and marked Exhibit A.
“4. That [Carroll] was under the misunderstanding that the payment to The Commercial Bank resolved all issues in the above styled cause.
“5. That [Carroll] has a meritorious defense against Count 1 in that he did not breach a contract with [Williams]. Further, [Carroll] is not guilty of breach of any contract with [Williams],
“6. [Carroll] has a meritorious defense against Count 2 in that he did not breach a fiduciary relationship to [Williams]. Further, that the award of . punitive damages are based upon evidence that is inadmissable and not true.
“7. [Carroll] has a meritorious defense against Count 3 in that he did not convert Two hundred thousand ($200,000) Dollars of [Williams’s] money to his own use.
“8. [Carroll] represents into this Court that he can provide evidence to disprove statements made in the affidavits supporting said default judgment and the ultimate award of damages as set out in the default judgment entered by this court on September 25, 2006.”

The only evidence presented by Carroll in support of the motion was a “judgment release” indicating that Carroll’s original obligation to Commercial Bank had been satisfied.

Carroll’s motion to set aside the default judgment was originally set for a hearing on December 18, 2006. Subsequently, the hearing on Carroll’s motion to set aside the default judgment was continued on several occasions by motion of both parties. The motion to set aside was denied by operation of law on January 22, 2007. See Rule 59.1, Ala. R. Civ. P. Carroll filed this appeal on March 2, 2007.

Standard of Review

This Court has stated:

“A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988). In reviewing an appeal from a trial court’s order refusing to set aside a default judgment, this Court must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process established in Kirtland.
“We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala.1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: ‘1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ 524 So.2d at 605.”

Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala.2006).

Discussion

Carroll argues on appeal that because his motion to set aside the default judgment was denied by operation of law, the trial court did not apply the analysis set forth above from Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). Therefore, he contends, the default judgment entered in favor of Williams must be reversed and the case remanded so that the trial court can conduct an evidentiary hearing and apply the Kirtland analysis.

The law is well settled in Alabama that the defaulting party has the initial burden of demonstrating the existence of the three Kirtland factors. Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 899-900 (Ala.2005); Phillips v. Randolph, 828 So.2d 269, 278 (Ala.2002); and Kirtland, 524 So.2d at 605-08. The only Kirtland factor addressed by Carroll in his motion to set aside the default judgment was the meritorious-defense factor. Carroll’s claims— that he was not represented by counsel; that he was unaware that a response to the cross-claim was required; that he thought the case was over; and that he was under a misunderstanding — are completely irrelevant to the Kirtland analysis. With regard to a meritorious defense in the context of a Kirtland analysis, this Court has stated:

“[A] defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury....
“The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity — namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations would constitute a ‘plausible defense.’ ”

Kirtland, 524 So.2d at 606 (emphasis added).

Carroll has failed to argue, or even to allege, that Williams would not be unfairly prejudiced if the default judgment is set aside and that the default judgment was not a result of Carroll’s own culpable conduct. Carroll’s assertion that he has a meritorious defense to Williams’s claim is nothing more than a bare legal conclusion unsupported by affidavit or other evidence. The sole piece of evidence presented by Carroll in support of his motion was the “judgment release” indicating that he had satisfied his original obligation to Commercial Bank. However, that document has no significance whatsoever to the claims asserted by Williams against Carroll. Accordingly, we conclude that Carroll has failed to meet his initial burden under the Kirtland analysis. Because Carroll has failed to satisfy his initial burden under the Kirtland analysis, we will not hold the trial court in error for allowing Carroll’s motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis. See Rudolph v. Philyaw, 909 So.2d 200 (Ala.Civ.App.2005).

Conclusion

The default judgment in favor of Williams is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, WOODALL, and STUART, JJ., concur.

      . It appears from the record that Commercial Bank offered to release Williams from any further obligation under the guarantee agreement upon payment of one-half of the judgment. Williams executed a promissory note for $50,000 in favor of Commercial Bank on December 14, 2005. It appears that Carroll satisfied the balance of the judgment in May 2006.

      . On February 22, 2007, the parties purported to file, pursuant to Rule 59.1, Ala. R. Civ. P., a joint motion to extend the time to rule on Carroll’s motion to set aside the default judgment. However, the extension of the 90-day period provided for in Rule 59.1 ‘‘must be of record before the 90-day period expires, because any purported extension after the 90 days is a nullity.” Ex parte Caterpillar, Inc., 708 So.2d 142, 143 (Ala.1997).