author: CARLTON, J„

text:
    Khader Hanna ISTIPHAN, Appellant v. CITY OF MADISON, Appellee.
    No. 2010-KM-01785-COA.
    Court of Appeals of Mississippi.
    March 6, 2012.

      Minor F. Buchanan, Jackson, attorney for appellant.
    John Hedglin, Madison, attorney for ap-pellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   CARLTON, J„

for the Court:

¶ 1. Khader Hanna Istiphan appeals his conviction and sentence for driving under the influence (DUI), first offense. Isti-phan raises the following assignments of error: whether (1) he was denied effective assistance of counsel in violation of his constitutional rights; (2) the verdict is against the overwhelming weight of the evidence; (3) the trial court erred in disallowing into evidence the toxicology report of serum and urine samples taken from Istiphan at St. Dominic’s Hospital on January 8, 2009, at 3:54 a.m., approximately three hours after his traffic stop; (4) the failure to admit into evidence the toxicology report effectively denied Istiphan of a fair trial in violation of his constitutional rights; (5) a verdict of guilty by the court being against the overwhelming weight of the evidence effectively denied him a fair trial in violation of his constitutional rights; and (6) the lower court erred in not granting a motion for a new trial. Finding no error, we affirm.

FACTS

¶ 2. On January 8, 2009, at approximately midnight, Istiphan was traveling eastbound on Hoy Road in Madison, Mississippi, when he was stopped by Madison Police Department Officer James Craft. Officer Craft testified that, while on patrol, he observed Istiphan’s vehicle weaving in the roadway and crossing over the center lane markings. Officer Craft said when he approached the vehicle, he asked Istiphan, the driver of the vehicle, for his driver’s license and proof of insurance. As this was taking place, Officer Craft testified that he smelled the odor of alcohol emitting from inside the vehicle. Officer Craft testified that he questioned Istiphan as to if he had been drinking, to which Istiphan replied he had consumed two drinks approximately two hours before he was stopped. Officer Craft asked Istiphan to step out of the vehicle, and Istiphan complied. Officer Craft stated that he then attempted to administer a preliminary breath test (PBT), the horizontal gaze nys-tagmus test (HGN), and the walk-and-turn test; however, Istiphan would not cooperate and exhibited an argumentative demeanor. Officer Craft also testified that he again smelled the odor of alcohol coming from Istiphan during the attempted administration of the PBT, and Officer Craft observed that Istiphan demonstrated coordination impairment while he was trying to get Istiphan to complete the walk- and-turn test. After determining that he was not going to be able to successfully administer any of the sobriety tests, Officer Craft placed Istiphan under arrest for DUI and transported him to the City of Madison Police Department.

¶ 3. Officer Craft testified that, once at the police department, Istiphan notified him that he was having an anxiety attack and needed medical attention. Officer Craft called Madison Rescue and AMR who arrived shortly thereafter and conducted an examination of Istiphan. While at the police department, Officer Craft also asked Istiphan to take the Intoxilyzer test, but Istiphan refused. Istiphan was charged with careless driving, DUI, first offense, and DUI refusal. Istiphan then requested permission to go to the hospital to receive medical treatment, and he was released. Istiphan testified that upon admission to St. Dominic’s Hospital, he requested a blood sample be drawn and tested for the presence of alcohol; however, the trial court found the toxicology report to be inadmissible at trial.

¶ 4. Istiphan entered a plea of nolo con-tendere in the Municipal Court of Madison County for DUI, first offense, and careless driving. He appealed his DUI conviction to the County Court of Madison County, where he received a trial de novo by the county court judge sitting without a jury. The county court ultimately found Istiphan guilty of DUI, first offense, in violation of Mississippi Code Annotated section 63 — 11— 30(l)(a) (Supp.2011). The county court judge then imposed a forty-eight hour suspended sentence, and ordered Istiphan to pay a fine of $900 and costs and assessments. He also ordered Istiphan to complete the Mississippi Alcohol Safety Education Program. Istiphan filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial, which the county court denied. Istiphan then appealed to the Circuit Court of Madison County. The circuit court, sitting as an appellate court, affirmed the judgment of the county court. Subsequent to the circuit court’s ruling, Istiphan requested a finding of a constitutional question of the circuit court, which was denied.

¶ 5. Feeling aggrieved of his conviction and sentence, and the circuit court’s denial of the existence of a constitutional question, Istiphan filed his notice of appeal with the Mississippi Supreme Court, and the supreme court assigned the case to this Court.

DISCUSSION

I. SUFFICIENCY & WEIGHT OF THE EVIDENCE

¶ 6. Istiphan argues that the trial court erred in denying his motion for a directed verdict because the evidence is insufficient to support his conviction of DUI, first offense, under Mississippi Code Annotated section 63-ll-30(l)(a). Istiphan also argues that the trial court erred by denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence. Istiphan further claims that the guilty verdict by the court being against the overwhelming weight of the evidence denied him a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 3, Sections 14 and 26 of the Mississippi Constitution.

¶ 7. “In a criminal proceeding, motions for a directed verdict and a JNOV challenge the legal sufficiency of the evidence supporting the guilty verdict.” Bas-kin v. State, 39 So.3d 959, 962 (¶ 6) (Miss.Ct.App.2010) (quoting Croft v. State, 992 So.2d 1151, 1157 (¶ 24) (Miss.2008)). “Because a motion for a directed verdict and a motion for a JNOV both require consideration of the evidence before the trial court when the decision to grant or deny was made, this Court only reviews the ruling on the last occasion that the challenge was made.” Id. (citations omitted). Thus, we will review Istiphan’s challenge to the sufficiency of the evidence as pertaining to his motion for a JNOV. In determining whether the evidence is sufficient to sustain a conviction, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The relevant question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We will determine the evidence to be sufficient if the evidence against the defendant is such that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]” Id. (citations omitted).

¶ 8. “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.” Id. at 844 (¶ 18) (citation omitted)). “The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). We weigh the evidence, however, in the light most favorable to the verdict. Id. (citation omitted)).

¶ 9. Istiphan was convicted under Mississippi Code annotated section 63 — 11— 30(l)(a) (Supp.2011), which makes it “unlawful for any person to drive or otherwise operate a vehicle within this state who ... is under the influence of intoxicating liquor[.]” Section 63 — 11—30(l)(a) is commonly referred to as “common law DUI.” Knight v. State, 14 So.Sd 76, 79 (¶ 6) (Miss.Ct.App.2009) (quoting Gilpatrick v. State, 991 So.2d 130, 133 (¶ 18) (Miss.2008)). Common law DUI can be proven “[i]n cases where the ‘defendant’s blood-alcohol results are unavailable but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol[.]” Id. (citation omitted).

¶ 10. Here, ample evidence was offered by the City in support of Istiphan’s DUI conviction. Officer Craft testified to the following: he observed Istiphan’s vehicle weaving in the roadway and crossing over the center lane markings; he smelled alcohol emanating from Istiphan’s person and vehicle; Istiphan admitted that he had been drinking; Istiphan exhibited an uncooperative and argumentative demeanor; Istiphan demonstrated coordination impairment when attempting to complete the walk-and-turn test; and Istiphan refused the Intoxilyzer test. We recognize that “[i]f a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action under this chapter.” Miss.Code Ann. § 63-11-41 (Rev.2004). “This Court has found that evidence of a defendant’s refusal to submit to a breathalyzer test is relevant and admissible under Mississippi Rule of Evidence 402.” Knight, 14 So.3d at 80 (¶ 12) (citing Starkey v. State, 941 So.2d 899, 901 (¶5) (Miss.Ct.App.2006)). Additionally, a video recording of the traffic stop and the events that occurred in the booking room at the police department was admitted into evidence without objection, which allowed the judge to make an independent and neutral determination as to Istiphan’s actions and demeanor, separate and apart from the testimony presented at trial.

¶ 11. Viewing these facts in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Istiphan committed the crime of DUI, first offense, and he did so under such circumstances that every element of the offense existed. Furthermore, we find that the evidence did not preponderate so heavily against the verdict that allowing the verdict to stand would sanction an unconscionable injustice. See Cummings v. State, 29 So.3d 859, 862 (¶¶ 9-10) (Miss.Ct.App.2010). Accordingly, we find this issue is without merit.

II. TOXICOLOGY REPORT & INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 12. Istiphan argues the trial court erred in denying into evidence his toxicology report taken by a medical provider at St. Dominic’s Hospital approximately three hours after his traffic stop. Istiphan contends that in accordance with Rule 803(6) of the Mississippi Rules of Evidence, he adequately identified the toxicology report and established it as his medical record. Istiphan further claims that the trial court should have considered the toxicology report if for no other reason than for its extreme probative value. Isti-phan argues that his trial counsel’s failure to admit the toxicology report into evidence effectively denied him a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments to. the United States Constitution and Article 3, Sections 14 and 26 of the Mississippi Constitution.

¶ 13. “The standard of review applied to a trial court’s decision to admit or deny evidence is abuse of discretion.” Walker v. State, 55 So.3d 212, 216 (¶ 14) (Miss.Ct.App.2011) (citing Robinson Prop. Group, L.P. v. Mitchell, 7 So.3d 240, 243 (¶ 9) (Miss.2009)). “However, we will not reverse a trial court’s decision ‘unless the error adversely affects a substantial right of a party.’ ” Id.

¶ 14. Rule 803(6) allows the admission of:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

At trial, Istiphan presented no testimony, other than his own, in seeking admission of his toxicology report into evidence. Isti-phan testified to the following:

SAVANT: Now, we see in the video where you deal with the medical personnel, and then you choose to be transported to the hospital, correct?
ISTIPHAN: Yes. Yes.
SAVANT: You went to St. Dominic’s Hospital?
ISTIPHAN: Yes.
SAVANT: What happened once you got there?
ISTIPHAN: I was checked in, you know, anxiety — I had chest pain.... I immediately asked them to take a blood test—
SAVANT: Why did you do that?
ISTIPHAN: — for alcohol level. Because I knew — I realized that I’m in trouble, you know, as far as the DUI charge, and I wanted to prove that because I felt that I wasn’t under the influence of alcohol, I wanted them to take a test and see how much alcohol is in my system and prove to the [c]ourt.
SAVANT: Did you, in fact, have that test done?
ISTIPHAN: Yes, sir.
SAVANT: Did you receive the results of it?
ISTIPHAN: Yes, sir.
SAVANT: And what was detected at whatever time the blood was drawn?
HEDGLIN: Objection. Lack of proper predicate.
COURT: Well, he can answer the question.
SAVANT: Based on your knowledge of what transpired and what- you were told by your doctors, what level of alcohol was found in your body?
HEDGLIN: Objection. Hearsay.
COURT: I think it is hearsay.
SAVANT: Let me show you a document, Mr. Istiphan, and ask if you recognize that.
ISTIPHAN: Yes, sir.
SAVANT: Does it have any identifying information on it as far as your information?
ISTIPHAN: Yes, sir. It has my name, my—
SAVANT: What else as far as identifying information?
ISTIPHAN: My age, my account number at St. Dominic [sic],
SAVANT: Now, was there blood drawn from you?
ISTIPHAN: Yes, sir.
SAVANT: Does that document indicate what time the blood was drawn from you?
ISTIPHAN: Yes. It says at 3:18 a.m.
SAVANT: On what day?
ISTIPHAN: On January the 8th.
SAVANT: And did you receive that document as part of your discharge from St. Dominic’s Hospital?
ISTIPHAN: Yes.
SAVANT: And did they test for your blood alcohol level based on what’s contained in that document?
ISTIPHAN: Yes, sir.
SAVANT: All right. Does it indicate how much, if any, alcohol was in your system based on the blood draw at 3:18 a.m., on January 8th, 2009?
ISTIPHAN: Yes. It indicates this.
HEDGLIN: I object to this entire line of questioning, lack of proper predicate.
COURT: I’ll allow that question and that answer.
SAVANT: You stated that it does indicate whether or not you had alcohol in your system. Without saying what it says, it does indicate whether or not you had alcohol in your system at 3:18 a.m., correct?
ISTIPHAN: Yes. Yes.
SAVANT: And you were given that when you were released from the hospital?
ISTIPHAN: Yes.
SAVANT: Okay. When were you released?
ISTIPHAN: Actually, I slept that night in the hospital. I was moved to upstairs in the heart unit to monitor my heart, but this was given to me that same night at the emergency room because I requested this. This is not part of their procedure.
SAVANT: And you produced that document to me to be used in your defense on this DUI charge, correct?
ISTIPHAN: Yes.
SAVANT: What does it indicate as far as any alcohol in your system?
ISTIPHAN: None—
HEDGLIN: Objection.
ISTIPHAN: — detected.
SAVANT: Let him finish his objection.
HEDGLIN: Objection. Lack of proper predicate. Don’t have witnesses here.
COURT: Mr. Savant?
SAVANT: I do not, Your Honor.
COURT: I’m sorry.
SAVANT: I do not have as far as physicians or anyone who drew blood or anything like that. In fact, the document indicates that they do not perform chain of custody control on their specimens. I withdraw that question .... May I proceed?
COURT: Are you proceeding to try to—
SAVANT: To get this in?
COURT: Yes.
SAVANT: No, your Honor.
COURT: Are you seeking to make a proffer?
SAVANT: Yes, Your Honor, just for purposes of the record, yes. I get confused somewhat without a jury here. You are the finder of fact. We would like it to be considered for purposes of the record, proffered testimony as to what it does indicate.
COURT: Well, with respect to making it a proffer, at this point[,] I feel like I have to sustain the objection....

The court then proceeded to hear arguments by both attorneys as to the admissibility of the toxicology report into evidence before again determining that Istiphan’s testimony as to the toxicology report’s admissibility should be limited to a proffer.

¶ 15. After reviewing the record, we find Istiphan’s testimony insufficient to satisfy the requisite predicate as stated in Rule 803(6). As stated above, Rule 803(6) requires the sponsoring testimony of a “custodian or other qualified witness” that the report was “made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation .... ” Istiphan, through his testimony, failed to satisfy this burden. Furthermore, Istiphan does not argue that the toxicology report is self-authenticating, nor do we find any basis for such an assertion. Therefore, we find no abuse of discretion in the trial court’s determination as to the inadmissibility of the toxicology report. This issue is without merit.

¶ 16. The alternative argument made by Istiphan is that his trial counsel rendered ineffective assistance in violation of the Sixth and Fourteenth Amendment of the United States Constitution and Article 3, Section 14 of the Mississippi Constitution. Specifically, Istiphan alleges that his trial counsel had the toxicology report at his disposal and knew it to be persuasive in the absence of any other reliable evidence of intoxication as to be conclusive of innocence, but his counsel failed to obtain the necessary witness to authenticate the report for admission into evidence. Is-tiphan further asserts his trial counsel erred by never in fact offering the toxicology report into evidence; instead, he limited its offer to that of a proffer. In making this argument, however, Istiphan admits that the record shows a discussion between Istiphan’s trial counsel and the trial judge which indicated that the trial judge considered the admissibility of the toxicology report into evidence.

¶ 17. Speaking to the issue of ineffective-assistance-of-counsel claims brought on direct appeal, the Mississippi Supreme Court has stated:

Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983).
However, this Court may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record. M.R.A.P. 22; see also Havard v. State, 928 So.2d 771, 786 (Miss.2006).

Gowdy v. State, 56 So.3d 540, 543 (117) (Miss.2010) (quoting Archer v. State, 986 So.2d 951, 955 (Miss.2008)). Because Istiphan’s allegations do not fall within the exceptions for addressing the issue on direct appeal, we find that Istiphan’s claim of ineffective assistance of counsel would be more appropriately raised in a motion for post-conviction relief. See Fluker v. State, 44 So.3d 1029, 1034 (¶ 13) (Miss.Ct.App.2010). Accordingly, we deny Istiphan relief on this issue without prejudice to allow him to pursue post-conviction relief is he desires to do so.

¶ 18. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS SUSPENDED IN THE CUSTODY OF MADISON COUNTY, MISSISSIPPI, AND TO PAY A FINE OF $900 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND FAIR, JJ„ CONCUR. MAXWELL, J„ CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. RUSSELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . For clarity’s sake, we have consolidated several of Istiphan's assignments of error in our discussion.

      . Istiphan’s mother, Antoanette Staphan, was a passenger in the vehicle.

      .Officer Craft also testified that he asked Istiphan during the roadside stop if he was taking any medication, to which Istiphan responded, "he was — pain medication for his back, and then he said he wasn’t taking it.” At trial, Istiphan denied taking any pain medication on the night in question, but he admitted that he had taken anti-stress medication at 5:30 p.m. on January 7, 2009.

      . Officer Craft had a dash-mounted video camera in his vehicle which recorded the events that occurred during the roadside stop; the video recording was admitted into evidence at trial without objection. Officer Craft testified that the walk-and-turn test is not seen on the video recording because of the way Istiphan parked and the angle of the video camera.

      . Istiphan was charged with DUI pursuant to Mississippi Code Annotated section 63 — 11— 30(l)(a) & (b) (Supp.2011). These statutory sections state: "(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle!.]" Miss.Code Ann. § 63-11-30(a), (b).

      .A video recording of the events that took place in the booking room at the City of Madison Police Department was entered into evidence at trial without objection.

      .The Mississippi Supreme Court in Jones v. City of Ridgeland, 48 So.3d 530, 535 (¶ 7) (Miss.2010) recently declared the three-court rule in Mississippi Code annotated section 11-51-81 (Rev.2002) to be unconstitutional. In describing the unconstitutionality of the rule, the supreme court explained that the three-court rule deprived appellate courts of jurisdiction where the case originated in justice or municipal court and was then appealed to both county and circuit court, unless the appeal involved a federal or state constitutional question or the circuit court judge or supreme court justice allowed the appeal. Id. at 534 (¶ 6) (citing Miss.Code Ann. § 11-51-81)). Therefore, with the three-court rule no longer in force, we have jurisdiction to consider the entirety of this appeal.

      . While Istiphan frames this issue in his appellate brief in terms of the overwhelming weight of the evidence, he also argues that the court erred in denying his motion for directed verdict. Thus, we will review both the sufficiency and weight of the evidence in our discussion.

      . The record shows Istiphan referred to his motion for directed verdict as a "motion to dismiss” when making his argument at trial.

      . We recognize that “the test results of an HGN test have been declared inadmissible for purposes of proving that a person was under the influence of alcohol." Blake, v. State, 825 So.2d 707, 708 (¶ 7) (Miss.Ct.App.2002) (citation omitted). Therefore, we decline to include Officer Craft's testimony concerning the administration of the HGN results in our review of the weight and sufficiency of the evidence.

      . The toxicology report proffered by Istiphan indicated Istiphan’s ethanol level as "none detected.”

      . Tommy Savant represented Istiphan during the trial in county court.

      . John Hedglin served as counsel for the State.

      . While we recognize Istiphan cites Jones v. Jones, 43 So.3d 465, 483-84 (¶¶ 48-51) (Miss.Ct.App.2010), as an analogous case where this Court found the lower court did not abuse its discretion in admitting medical records under the Rule 803(6) business-records exception, that case is distinguishable from the present case insofar as the director of medical records for COPAC was presented at trial and testified as to the authenticity of the COPAC records and COPAC's regular practice of maintaining the medical records.


source: Caselaw Access Project

author: BARNES, J., ROBERTS, J.,

license: Public Domain

text:
    Mindy Phillips McFARLAND and Robin Phillips, Appellants v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2010-CA-01647-COA.
    Court of Appeals of Mississippi.
    March 6, 2012.

      John Newton Satcher II, Gary Dale Thrash, attorneys for appellants.
    Mark D. Morrison, Ridgeland, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. Mindy Phillips McFarland was driving on State Highway 27 in Copiah County, Mississippi, when she drifted over the highway’s fog line, causing the car’s right wheels to drop onto the low shoulder. In her attempts to return to the roadway, she crashed the vehicle and sustained several physical injuries. McFarland and Robin Phillips, McFarland’s mother and the owner of the car, filed a complaint, alleging that the Mississippi Department of Transportation (MDOT) was negligent for its failure to identify and repair the dangerous condition. The circuit court granted summary judgment in favor of the MDOT on the basis of immunity under the Mississippi Tort Claims Act (MTCA). Finding no error, we affirm the judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 18, 2008, at approximately 5:45 p.m., McFarland was driving Phillips’s Nissan Sentra on Highway 27 when she crossed over the fog line, and the car’s tires dropped onto the shoulder of the highway. As the shoulder was approximately three inches or more below the elevation of the road, McFarland had difficulty re-entering the roadway. On her third attempt, she lost control of the vehicle and shot across the road and hit a tree. McFarland suffered multiple physical injuries, and the car was totally destroyed.

¶ 3. McFarland and Phillips (the Appellants) filed a complaint for negligence against MDOT for its failure to identify the deficiencies in the roadway and shoulder and its failure to repair and maintain Highway 27. MDOT filed a motion for summary judgment, contending that it is a governmental agency performing a discretionary function under the MTCA and thus, immune from liability. The circuit court granted the motion and entered a “Final Judgment of Dismissal with Prejudice” on September 13, 2010. The Appellants now appeal.

STANDARD OF REVIEW

¶ 4. A court’s order granting or denying summary judgment is reviewed de novo. Pettis v. Miss. Transp. Comm’n, 44 So.3d 425, 426 (¶ 5) (Miss.Ct.App.2010) (citing Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992)). Under Mississippi Rule of Civil Procedure 56(c), a circuit court may grant summary judgment “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.”

Whether MDOT is entitled to immunity under Mississippi Code Annotated section 11 — 46—9(l)(d).

¶ 5. Section ll-46-9(l)(d) of the Mississippi Code Annotated (Rev.2002) provides that a governmental agency is immune from liability for any act “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]” The intent of this exception “is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Wiltshire v. Miss. Fairgrounds Comm’n, 75 So.3d 563, 567 (¶ 10) (Miss.Ct.App.2011) (citing Jones v. Miss. Dept. of Transp., 744 So.2d 256, 260 (¶ 10) (Miss.1999) (overruled on other grounds)). Thus, to determine whether governmental conduct is discretionary, a court must address two questions: “(1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 968 (¶ 19) (Miss.Ct.App.2009) (quoting Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16 (¶ 18) (Miss.2006)). “Only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Wiltshire, 75 So.3d at 567 (¶ 10) (quoting Jones, 744 So.2d at 260 (¶ 10)).

¶ 6. The Appellants’ argument concerns the second prong of the test. They contend that MDOT did not furnish proof that its failure to repair the shoulder of the highway involved a social, economic, or political policy. Specifically, the Appellants allege that the decision was not based on any economic policy since the evidence demonstrated “that MDOT had the equipment, materials and/or men on duty to repair the dangerous road condition prior to McFarland’s accident.” The Appellants refer to deposition testimony by Lucy Hurst, the MDOT assistant district engineer of maintenance, to support their argument.

Q. And if they were to put a box blade out there on Section 160 to do shoulder repair work, it wouldn’t cost MDOT any extra money — people on salary. They’re just charging their man-hours back and putting them in the report, correct?
A. Correct.
Q. [I]t didn’t cost MDOT an extra penny to put somebody out on a road grader or even a box blade and just use the existing materials and level it up against the highway, correct?
A. That is correct.
Q. Okay. Would you agree that MDOT had the equipment, either in the form of the box blade or grader, to go out there and pull the existing material back level with the road back in 2008?
A. Yes.

The Appellants also note reports by the MDOT Highway Maintenance Superintendent for that area for the months preceding and following the accident, which indicate a “shoulder drop-off” on Highway 27. Thus, they claim that MDOT was negligent in its failure to identify and repair the condition.

¶ 7. “[I]t is well settled that the maintenance of state highways is a discretionary functionf.]” Lee v. Miss. Dep’t. Of Transp., 37 So.3d 73, 81 (¶22) (Miss.Ct.App.2009). None of the statutes concerning MDOT’s duty to maintain highways “impose any specific directives ‘as to the time, manner, and conditions for carrying out’ ” said duty. Id at 77 (¶ 9) (quoting Knight, 10 So.3d at 970 (¶ 27)). “In fact, all the statutes require that MDOT use its judgment and discretion in carry out the duties prescribed therein.” Id. at 77-78.

¶ 8. Furthermore, “[ajpplication of the public policy prong of the discretionary function test does not require proof of the thought processes of pertinent decision-makers.” Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 328 (¶ 16) (Miss.Ct.App.2006) (citing Elder v. U.S., 312 F.3d 1172, 1182 (10th Cir.2002)). In Hurst’s testimony, she remarked that while the county superintendent for MDOT in that area had access to the equipment and material to fix the shoulder, “he also ha[d] other jobs ... and he has to prioritize his work.” She continued:

One thing I would like to mention, though — you see these five employees? That’s all we have for the entire county of Copiah County, which has a major interstate that runs through it and several other U.S. routes plus secondary routes. So we have several routes that these five men maintain day in and day out.

As this Court observed in Lee, “MDOT must use its discretion and judgment when determining the order in which roads will be resurfaced or repaired.” Lee, 37 So.3d at 78 (¶ 9). While MDOT may have had the resources available to repair the shoulder, scheduling of the repair and using its five workers in Copiah County, was a judgment involving social and economic policy. It was MDOT’s policy decision how to utilize its resources most effectively.

¶ 9. Accordingly, we agree with MDOT that the mere fact it possessed sufficient resources to repair the alleged defects on the highway is “irrelevant.” The maintenance of highways remains a discretionary function; MDOT’s decision how to prioritize and employ its resources involves social and economic policy. Therefore, we find that MDOT was immune from liability under section ll-46-9(l)(d). Finding no error, we affirm the circuit court’s granting of summary judgment.

¶ 10. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. ROBERTS, J., DISSENTS JOINED BY LEE, C.J., AND RUSSELL, J.

ROBERTS, J.,

dissenting:

¶ 11. With utmost respect for the majority, I dissent. The majority’s resolution of this appeal turns on the “discretionary function” immunity provision of the Mississippi Tort Claims Act. Mississippi Code Annotated section 11^46-9(l)(d) (Rev.2002) states:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]

To determine whether an act or a failure to act is a discretionary function, we use the following two-part test: “(1) whether the activity involved an element of choice or judgment, and if so; (2) whether the choice or judgement [sic] in supervision involves social, economic or political policy alternatives.” Barr v. Hancock County, 950 So.2d 254, 257 (¶10) (Miss.Ct.App.2007). “Conversely, conduct will be considered ministerial, and, therefore, immunity will not apply, if the obligation is imposed by law leaving no room for judgment.” Id.

¶ 12. The majority cites Lee v. Mississippi Department of Transportation, 37 So.3d 73, 81 (1122) (Miss.Ct.App.2009) for the principle that “maintenance of state highways is a discretionary function.” The majority accurately quotes a portion of the conclusion of this Court’s opinion in Lee. However, Lee pertained to maintenance of state highways in the form of resurfacing the actual surface of the highway. That is, in Lee it was “undisputed that the area of highway on which the accident occurred had areas of indentation, or was ‘rutted out,’ ” which contributed to “water pooling on the highway.” Id. at 77 (¶ 8). In that case, Richard Lee, the District Engineer for [the Mississippi Department of Transportation (MDOT) ], stated in a sworn affidavit that “the District is allotted a finite amount of funds annually for road maintenance. At the discretion of the Agency, those finite available funds are used where the Agency believes they are needed most, particularly on the roads of the State in the most need of repair.” Id. at 78 (¶ 9). This ease does not involve the maintenance of a highway in the form of a major resurfacing project. Mindy Phillips McFarland’s claim is related to MDOT’s alleged failure to perform routine maintenance by simply “grading” the shoulder of Highway 27 in Copiah County. The majority accurately relates the facts that led to McFarland’s injuries and her claim. According to McFarland, the drop-off from the surface of Highway 27 to the shoulder was so significant it prevented her from safely reentering the right-of-way.

¶ 13. The parties took numerous pretrial depositions. Those depositions were exhibits were introduced as exhibits during the summary judgment proceedings. Lucy Hurst, MDOT’s assistant district engineer of maintenance for District 3, testified by deposition. According to Hurst, MDOT had made a policy decision to upgrade the shoulders of Mississippi highways. Specifically, Hurst explained:

What has happened over the State of Mississippi, since about 2000, we have noticed that if we have room out there to add two more feet of extra pavement— and this was a decision made out of the Jackson tenth floor — that we — it would be prudent for us to put out two more feet of paved shoulder in order to keep drop-offs from happening, if you have to room to start with. So at that time, once any job c[a]me up for an overlay, if it had the required width, we were allowed to put two extra feet out there for a shoulder.

When asked why MDOT made that decision, Hurst responded, “[bjecause of us always having to repair shoulders and spending lots and lots of money on grading the shoulders. It was noted that we could save a lot of money to go ahead and pave them if we had room.” Hurst went on to testify that the funds for the upgrade of Highway 27 were to be paid for by the American Assistance and Recovery Act.

¶ 14. However, Hurst also testified that a shoulder drop-off of greater than three inches should be repaired within a month of recognition of the problem. Hurst went on to testify, “[i]f the shoulder drop-off is bad enough ... [the maintenance crew] will then go out immediately and take mixture and put [it] out there.” According to Hurst, the maintenance crew has “to blade the shoulders once a year every year. It’s mandatory.” According to Hurst, standard operating procedures dictate what equipment and materials are necessary to repair shoulder drop-offs. McFarland’s expert, George M. Hammitt, PhD, PE, opined that the shoulder where McFarland was unable to re-enter the roadway dropped off three inches or more for approximately four hundred feet. Robert Broadwater, the “Highway Maintenance Superintendent 2” for Copiah County, among others, testified that he personally inspects Highway 27 once each month. The record contains Broadwater’s monthly maintenance inspection reports. Broadwa-ter’s maintenance inspection report from February 2008 notes that there was a shoulder drop-off of unspecified depth that needed to be rectified as one travels south on Highway 27 approximately 3.1 miles from the Copiah county line. The record does not contain Broadwater’s March 2008 maintenance inspection report, but for the next four months, Broadwater reported unsatisfactory shoulder drop-offs at the same exact location on Highway 27. Broadwater’s August 2008 report did not indicate that there was a shoulder drop-off at the same location. Coincidentally, that was the same month as McFarland’s crash. However, Broadwater’s September, October, and November 2008 reports note that shoulder drop-offs required remedying approximately two-tenths of a mile from the earlier 2008 shoulder drop-off on Highway 27. In the context of a motion for summary judgment, we are required to view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Accordingly, I find we should conclude that MDOT was not rectifying shoulder drop-offs within the prioritized one-month time frame expressed by Hurst.

¶ 15. The record also contains a summary compilation of MDOT’s Copiah County maintenance crew’s activity log for August 21, 2007, through June 9, 2008 — a period of almost one year before McFarland’s accident. Despite Broadwater’s repeated monthly notations of the need for repair of shoulder drop-offs at the same reference point of Highway 27, the activity log indicates that the MDOT county maintenance crew spent one day in April 2008 conducting “Other Shoulder & Approach Maintenance” on Highway 27. Hurst explained that “Other Shoulder & Approach Maintenance” was in reference to “[m]is-eellaneous activities pertaining to the shoulder and approach maintenance not identified as a specific function. This includes crack repair and concrete surface replacement.” Hurst further explained that “Other Shoulder and Approach Maintenance” did not include what she described as “mandatory” annual grading of the shoulders to eliminate unsafe drop-offs. Thirteen days after the maintenance crew performed “Other Shoulder & Approach Maintenance,” Broadwater still noted that shoulder drop-off maintenance was necessary beginning at the same exact location. It is undisputed that the MDOT maintenance crew for Copiah County had the materials, equipment, and manpower to have timely repaired the drop-off prior to McFarland’s accident. In the context of the review we must conduct, I find that it is necessary to conclude that the maintenance crew was not remedying the shoulder drop-offs that Broadwater consistently noted. Other than that single entry, the maintenance crew’s activity log makes no mention of repairing any substandard or dangerous shoulder drop-offs. Instead, the maintenance log indicates that the maintenance crew repaired one or more signs, mowed the grass, and sprayed weeds along Highway 27.

¶ 16. While it is true that MDOT has limited funds and limited manpower, all governmental agencies face the same limitations. Even so, the Mississippi Legislature did not give MDOT unqualified blanket immunity when it comes to all aspects of maintenance of state highways. The circuit court granted summary judgment exclusively on the discretionary function immunity exemption to the waiver of sovereign immunity found in section 11-46-9(l)(d). Discretionary immunity does not allow discretion without reason. Given the precise circumstances of this case, reviewed within the bounds of the appropriate standard of review, I detect no economic policy behind the decision to neglect Hurst’s stated standard of repairing significant shoulder-drop offs within one month. I interpret the majority opinion as conveying the discretion for MDOT to do what it wants when it wants without requiring any explanation beyond claiming limited resources in the form of manpower and time.

¶ 17. It is very well possible that, if this matter were remanded for a bench trial on the merits, the circuit court would consider the exact same conflicting evidence and conclude that the weight of the evidence falls in MDOT’s favor. Even so, we must consider a motion for summary judgment with a skeptical eye. Ratliff v. Ratliff 500 So.2d 981, 981 (Miss.1986). It is better to err on the side of denying the motion. Id. Given the fact that the manpower, equipment, and materials were available to the maintenance crew at all times — combined with Hurst’s testimony that, once discovered, a drop-off of three inches or more should be repaired within a month; Broad-water’s near constant monthly notations regarding drop-offs in the same locations; and the maintenance crew’s activity log showing only one instance of remedying such drop-offs, I do not find that the circumstances of this case demonstrate that the choice or judgment in supervision involved any social, economic, or political policy alternative. The MTCA does not provide unqualified and absolute immunity in this particular case. I would reverse the judgment of the circuit court and remand this matter for a trial before the circuit court, sitting without a jury. Accordingly, I respectfully dissent.

LEE, C.J., AND RUSSELL, J„ JOIN THIS OPINION.


author:
MALONE,
      MURDOCK, Justice

text:
    Ex parte TATE & LYLE SUCRALOSE, INC. (In re William C. Anderson, Jr. v. Tate & Lyle PLC et al.).
    1100404.
    Supreme Court of Alabama.
    Sept. 30, 2011.

      Halron W. Turner and Marc E. Bradley of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, PA, Chatom, for petitioner.
    C. Daryl Drinkard of Wilson & Drin-kard, Grove Hill, for respondent.
   MALONE,

Chief Justice.

Tate & Lyle Sucralose, Inc. (“TLS”), petitions this Court for a writ of mandamus directing the Washington Circuit Court to vacate its December 1, 2010, order denying TLS’s motion to dismiss and to enter an order dismissing as time-barred the negligence and wantonness claims asserted by William C. Anderson, Jr., against TLS. We conclude that Anderson failed to exercise due diligence in ascertaining TLS’s identity and that that failure bars his attempt to amend his complaint to substitute TLS for a fictitiously named defendant so as to avoid the application of the statute of limitations to bar his negligence claims. We also conclude that, as to Anderson’s wantonness claims, the limitations period has not yet expired. We therefore grant the petition in part and deny it in part and issue the writ.

Facts and Procedural History

On or about November 8, 2006, Anderson allegedly was injured by toxic fumes while he was employed at an industrial plant in McIntosh (“the McIntosh plant”). Anderson filed his complaint on November 4, 2008, in the Washington Circuit Court, naming as defendants Tate & Lyle PLC (“TLP”), a corporation based in London, England, and several fictitiously named defendants. Anderson asserted a variety of claims under theories of negligence and wantonness.

On January 5, 2009, TLP filed a motion to dismiss Anderson’s claims against it for lack of personal jurisdiction under Rule 12(b)(2), Ala. R. Civ. P., and requested that the trial court certify the dismissal as final pursuant to Rule 54(b), Ala. R. Civ. P. Accompanying the motion was an affidavit of TLP’s secretary and general counsel. The affiant testified that TLP did not own the McIntosh plant, did not own any property of any kind in Alabama, did not have an agent for service of process in Alabama, and did not conduct any business in Alabama.

The trial court scheduled a hearing on TLP’s motion for February 16, 2010. On February 5, 2010, without having filed any response to TLP’s motion, Anderson moved to continue the hearing. The trial court granted Anderson’s motion and rescheduled the hearing for August 10, 2010. On August 9, 2010, still without having filed any response to TLP’s motion, Anderson amended his complaint to substitute TLS, a Delaware corporation with its principal place of business in Illinois, for one of the fictitiously named defendants. The hearing on TLP’s motion to dismiss was held on August 10, and the trial court granted the motion by an order entered the same day. On September 3, 2010, the trial court directed the clerk to enter the judgment and assessed costs against Anderson.

TLS filed its own motion to dismiss on September 20, 2010. TLS based its motion on the expiration of the two-year statute of limitations in Ala.Code 1975, § 6-2-38(0. On October 29, 2010, TLS filed an affidavit of an officer of TLS who had knowledge of the “Tate & Lyle family of companies.” The officer testified that TLP and TLS are “separate and distinct corporations” and that TLS owned and operated the McIntosh plant at all times relevant to Anderson’s complaint.

The trial court heard TLS’s motion to dismiss on November 2, 2010, and entered an order denying TLS’s motion without explanation on December 1, 2010. TLS filed its petition in this Court on January 10, 2011.

Standard of Review

“ ‘ “A writ of mandamus is an extraordinary remedy, and it ‘will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ” ’
“Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003)_ A writ of mandamus is the proper means by which to seek review of a denial of a motion to dismiss filed by a party originally listed as a fictitiously named defendant ‘when “the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” ’ Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596-97 (Ala.2005) (quoting Ex parte Snow, 764 So.2d 581, 537 (Ala.1999))....”

Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1289-90 (Ala.2008).

Analysis

Because Anderson’s negligence claims are subject to the two-year statute of limitations in § 6-2-38(l), in order for those claims to survive, Anderson’s amended complaint filed on August 9, 2010, must relate back to his original complaint filed on November 4, 2008. Thus, as to Anderson’s negligence claims, the question presented by this petition is whether Anderson’s amended complaint substituting TLS for a fictitiously named defendant relates back to the filing of the original complaint, thereby bringing Anderson’s negligence claims against TLS within the applicable two-year statute of limitations. Rules 9(h) and 15(c)(4), Ala. R. Civ. P., “ ‘allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.’ ” Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala.2005) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Rule 9(h) provides:

“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

Rule 15(c)(4) states: “An amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).”

To avoid the bar of a statute of limitations when a plaintiff amends a complaint to identify a fictitiously named defendant, the plaintiff

“(1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued.”

Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala.1996). This Court has further stated that the original complaint must adequately describe the fictitiously named defendant. Fulmer, 654 So.2d at 46. TLS does not dispute that Anderson stated a cause of action or that he adequately described TLS’s roles relating to the McIntosh plant in his initial complaint, when TLS was identified only as a fictitiously named defendant.

Finally, for a plaintiff to be deemed ignorant of the identity of a fictitiously named defendant, the plaintiff must have exercised due diligence to identify the party intended to be sued:

“A plaintiff is ignorant of the identity of a fictitiously named defendant when, after exercising due diligence to ascertain the identity of the party intended to be sued, he lacks knowledge at the time of the filing of the complaint of facts indicating to him that the substituted party was the party intended to be sued. Likewise, to invoke the relation-back principle of Rule 15(c), a plaintiff, after filing suit, must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendant and to amend his complaint accordingly.”

Ex parte FMC Corp., 599 So.2d 592, 593-94 (Ala.1992). The test for determining whether a plaintiff exercised due diligence to obtain the identity of a fictitiously named defendant is “whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously.” Davis v. Mims, 510 So.2d 227, 229 (Ala.1987).

As evidence of due diligence, this Court looks to, among other things, whether the plaintiff has conducted formal or informal discovery. “Although it is true that formal discovery is not the only method of determining the identity of a fictitiously named defendant, it commonly is vital to demonstrating due diligence because it provides objective evidence of the plaintiffs case activity.” Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1004 (Ala.2008). The conducting of formal discovery does not necessarily prove due diligence, however. See, e.g., Jones v. Resorcon, Inc., 604 So.2d 870, 373 (Ala.1992) (finding a lack of due diligence where the plaintiff failed to seek a court order permitting inspection of a fan after the defendant refused to allow the plaintiffs requested access to the fan; inspection of the fan that allegedly caused the plaintiffs injury would have revealed the name of the fan’s manufacturer).

This Court has found a lack of due diligence even when a plaintiff has conducted both formal and informal discovery. See, e.g., Ex parte Mobile Infirmary Ass’n, 74 So.3d 424 (Ala.2011) (finding a lack of due diligence where the plaintiff had inquired informally of defense counsel as to who should be the proper defendants, had searched the Alabama Secretary of State’s Web site, and had propounded interrogatories directed at determining the proper identities of the defendants, but waited until after the limitations period had expired to amend the complaint). See also Crowl v. Kayo Oil Co., 848 So.2d 930 (Ala.2002) (finding a lack of due diligence where the plaintiff was relying on interrogatories to determine the identities of the defendants, and the defendants never answered the interrogatories).

To support the contention that his attorney exercised due diligence to obtain the identity of the owner and operator of the McIntosh plant before filing his initial complaint, Anderson states that his attorney reviewed correspondence, newspaper articles, and magazine articles given to him by Anderson showing the owner of the facility as “Tate & Lyle PLC.” Anderson also states that his attorney reviewed an employee handbook provided to employees at the McIntosh plant that referred to “Tate & Lyle” but never specifically to TLS. Anderson states that his attorney was thereby “satisfied” at the time of filing the original complaint that TLP was the owner and operator of the McIntosh plant.

Anderson then states:

“During the pendency of this action, [Anderson’s attorney] continued to work on this case and didn’t become privy to any information which would lead him to believe that Tate & Lyle[ ] PLC wasn’t the correct record owner of the McIntosh plant.... During the time leading up to the hearing set for August 10, 2010, [Anderson] had reviewed the file and pleadings and was ignorant of the fact that Tate & Lyle PLC was not the correct party defendant.”

In Ex parte Mobile Infirmary and Crowl, this Court concluded that a plaintiffs conducting discovery — formal and informal — will not, in some instances, constitute due diligence. “Continuing to work on” a case by reviewing the file and the pleadings to determine the identity of a fictitiously named defendant without otherwise attempting discovery or investigation of any kind, as Anderson states his attorney did, would not likely constitute due diligence in any instance.

Further, TLP filed its motion to dismiss on January 5, 2009, seeking dismissal expressly on the ground it was not the owner or operator of the McIntosh plant and therefore was not a correct party defendant. Thus, Anderson’s attorney was in fact privy to information at that point that put him on notice that TLP might not be the owner of the McIntosh plant. A motion to dismiss filed by the only named defendant in Anderson’s personal-injury action should have commanded the attention of Anderson’s attorney and elicited a reasonably diligent response. Instead, Anderson states in his brief that his attorney was unaware of the substance of TLP’s motion to dismiss while the motion was in the attorney’s possession for 18 months.

Viewing the facts asserted by Anderson in his brief in light of the pleadings filed in the trial court, we conclude that Anderson failed to exercise due diligence in ascertaining the true identity of the owner and operator of the McIntosh plant. Anderson’s lack of due diligence prevents the amended complaint from relating back to his original complaint. The two-year statute of limitations for negligence claims therefore was not tolled, and those claims against TLS are time-barred.

Although our resolution of the relation-back issue disposes of Anderson’s negligence claims, it does not resolve his wantonness claims. This Court has applied to wantonness claims both the two-year limitations period provided in Ala. Code 1975, § 6—2—38(i), see, e.g., Boyce v. Cassese, 941 So.2d 932, 945 (Ala.2006), and the six-year period provided in Ala.Code 1975, § 6-2-34(1), see McKenzie v. Killian, 887 So.2d 861 (Ala.2004). To resolve this discrepancy, this Court, in Ex parte Capstone Bldg. Corp., [Ms. 1090966, June 3, 2011] (Ala.2011), overruled McKenzie to the extent it held that the six-year statute of limitations found in § 6-2-34(1) applied to a claim of wantonness and “reaf-fírm[ed] the proposition that wantonness claims are governed by the two-year statute of limitations now embodied in § 6-2-38(l).” We specified in Capstone, however, that “litigants whose causes of action have accrued on or before the date of this decision [i.e., June 3, 2011] shall have two years from today’s date to bring their action unless and to the extent that the time for filing their action under the six-year limitations period announced in McKenzie would expire sooner.” Because Anderson’s wantonness claims accrued on November 8, 2006, the six-year statute of limitations announced in McKenzie does not expire until November 8, 2012. Therefore, for purposes of his wantonness claims there is no relation-back issue and Anderson’s amended complaint filed on August 9, 2010, was timely filed.

Mandamus relief is granted only when the petitioner has a clear legal right to the order sought. TLS cannot have a legal right to dismissal of Anderson’s wantonness claims on the ground that they are time-barred because the statutory limitations period governing those claims has not yet expired.

Because of our disposition of this appeal on the above-stated grounds, we pretermit discussion of the other issues raised on appeal.

Conclusion

Based on the foregoing, we conclude that TLS has met the requirements for the issuance of a writ of mandamus as to its negligence claims. TLS has demonstrated a clear legal right to have Anderson’s negligence claims against it dismissed as time-barred under the applicable two-year statute of limitations. The trial court had a duty to dismiss Anderson’s negligence claims against TLS because Anderson did not exercise due diligence in ascertaining TLS’s identity before or after he filed his original complaint. As to the negligence claims, TLS does not have another adequate remedy. Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000) (an appeal is not an adequate remedy in “a narrow class of cases involving fictitious parties and the relation-back doctrine” when a defendant argues that the plaintiffs claims are barred by the statute of limitations). TLS has properly invoked the jurisdiction of this Court. Anderson’s wantonness claims, however, are not time-barred, and TLS is not entitled to mandamus relief as to those claims.

Accordingly, we grant the petition in part and deny it in part, and we issue the writ directing the Washington Circuit Court to vacate its December 1, 2010, order denying TLS’s motion to dismiss and to enter an order granting TLS’s motion to dismiss Anderson’s negligence claims against it as time-barred.

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

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

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. I write separately to note that it appears from the materials before us that neither the trial court nor this Court has been presented with the issue whether the factual requirements necessary to invoke Rule 15(c)(3), Ala. R. Civ. P., were satisfied in this case. Compare Ex parte Empire Gas Corp., 559 So.2d 1072 (Ala.1990); see also Peacock v. Clay, 831 So.2d 33 (Ala.Civ.App.2001).

      . For all that appears in the materials before us, Anderson’s attorney relied exclusively on documents and information provided to him by Anderson to determine the identity of the correct defendant and did no investigation of his own into official property, tax, or corporation records. Such a practice does not rise to the level of due diligence in light of TLP’s January 2009 motion to dismiss that put Anderson's attorney on notice that he might not have correctly identified the defendant. See, e.g., Ex parte Hensel Phelps, 7 So.3d at 1003 (”[I]t is incumbent upon the plaintiff to exercise due diligence to determine the true identity of defendants both before and after filing the original complaint.”).