author: ISHEE, J.,

text:
    James K. TRIPLETT as the Administrator of the Estate of Jean B. Triplett, Deceased: Andrew Maxwell Triplett, Appellant/Cross-Appellee v. RIVER REGION MEDICAL CORPORATION, John Adams, M.D., Patty Stone, CRNA, Appellees/Cross-Appellants.
    No. 2008-CA-01173-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Timothy W. Porter, Patrick C. Malouf, Ridgeland, John T. Givens, Jackson, attorneys for appellant.
    R.E. Parker Jr., Vicksburg, Penny B. Lawson, attorneys for appellees.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On January 6, 2004, Jean Triplett (Triplett) underwent an elective hip-replacement surgery due to her struggles with bilateral degenerative hip disease. Approximately one day after the surgery, Triplett suffered from a stroke and eventually died on October 25, 2006. Triplett’s heirs and estate (Triplett’s heirs) filed suit in the Circuit Court of Warren County, Mississippi. River Region Medical Corporation, William C. Porter Jr., M.D., John Adams, M.D., Patty Stone, CRNA, Gladys Howard, R.N., and John and Jane Does 1-20 (River Region), were named as Defendants. Prior to the jury trial, River Region filed a motion for summary judgment, which was granted as to Dr. Porter, Howard, and River Region regarding any liability for Dr. Lamar McMillin, the physician who performed the surgery, under the theory of respondeat superior. At the close of the trial, the jury returned a verdict in favor of River Region, after which Triplett’s heirs filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied; and Triplett’s heirs timely appealed, alleging the following errors: (1) the circuit court 'committed reversible error by granting summary judgment to River Region as to Dr. McMillin based on a determination that Triplett’s heirs failed to provide qualified expert testimony establishing the proper standard of care under which Dr. McMillin should have been operating; (2) the circuit court committed reversible error by declining to strike a juror who was employed by a law firm that had performed legal work for River Region; (3) the circuit court committed reversible error by denying a motion for a mistrial after allegedly prejudicial remarks were made by River Region in opening statements; (4) the circuit court committed reversible error by prohibiting a surgical consent form from being introduced into evidence and by allowing an expert affidavit to be introduced into evidence; and (5) the circuit court committed reversible error by denying and granting certain jury instructions. River Region timely filed a cross-appeal, regarding the circuit court’s denial of a motion in limine. We find no error in the circuit court’s decisions and, therefore, hold that Triplett’s heirs’s issues are without merit. Additionally, we find that, given our ruling, River Region’s cross-appeal is moot.

FACTS AND PROCEDURAL HISTORY

¶ 2. Triplett suffered from bilateral degenerative hip disease for many year's pri- or to her death in 2006. In 1997, Triplett was diagnosed with bilateral carotid steno-sis and was recommended for a carotid endarterectomy. Triplett refused the surgery, and by 1999, her stenosis had progressed such that she finally consented to and underwent a right carotid endarterec-tomy. She refused to consent to a left carotid endarterectomy, despite medical warnings that her failure to undergo the surgery, coupled with her forty-one-year smoking habit, would place her at an extremely high risk of stroke. She was evaluated by several cardiovascular surgeons in 2002, all of whom informed her that she had severe artherosclerotic vascular disease and strongly recommended that she undergo a bilateral carotid endarterecto-my, and advising her that failure to undergo the surgery would place her at continued high risk of stroke.

¶ 3. In 2003, Dr. Porter, a Vicksburg orthopedic surgeon, evaluated Triplett regarding her ongoing hip pain. Due to her increasing pain, Triplett chose to undergo elective hip-replacement surgery. Prior to the surgery, Dr. Porter referred Triplett to Dr. McMillin, a family practitioner, for a pre-operative history and physical exam. During the exam, Triplett allegedly failed to inform Dr. Adams, an anesthesiologist, Drs. Porter and McMillin, and the certified nurse anesthetist, Stone, that she had been suffering from a severely occluded stenotic internal carotid artery for several years. She further allegedly misrepresented medical conditions that arose after the 1999 right carotid endarterectomy. Specifically, she failed to inform her doctors that she had severe atherosclerotic vascular disease and that she had been advised that she was at a high risk of stroke if she did not have a bilateral endarterectomy. Furthermore, Dr. Adams and Stone advised Triplett that one risk of anesthesia was death. Despite this warning, Triplett proceeded with the surgery.

¶ 4. On the morning of January 6, 2004, Dr. Adams and Stone prepared the seventy-one-year-old Triplett for surgery and noted elevated blood-pressure readings, but they attributed this to surgical anxiety. Triplett emerged from the surgery without incident and was admitted to a regular room on the evening of January 6, 2004. She allegedly greeted family and visitors the evening of her surgery, and she appeared normal into the morning after her surgery. In the early morning of January 7, 2004, nurses noted that Triplett “continue[d] to rest quietly with no signs or symptoms of distress.” Later in the morning, however, Triplett began exhibiting slurred speech and left-sided weaknesses and was eventually diagnosed as having suffered a stroke.

¶ 5. At trial, the parties were in dispute regarding the type of stroke Triplett had experienced. Triplett’s heirs presented testimony that the stroke was a direct result of the surgery. River Region countered with testimony that the stroke was not induced by the surgery, but it was embolic in nature, caused from Triplett’s underlying right-side stenosis and her forty-one-year history of continued smoking. Regardless of the nature of the stroke, Triplett passed away on October 25, 2006.

¶ 6. Prior to Triplett’s death, she filed suit against River Region, Dr. Porter, Dr. Adams, Stone, Howard, and John and Jane Does 1-20. The complaint alleged theories of negligence, medical malpractice, re-spondeat superior, breach of contract, and asked for punitive damages. After Triplett’s death, the heirs filed a “Suggestion of Death,” substituting themselves as plaintiffs in the case.

¶ 7. Before the jury trial began, River Region filed a motion for summary judgment. The circuit court initially denied the motion and granted Triplett’s heirs additional time to provide qualified expert witness testimony to support their theory of the case. However, after the heirs filed a supplemental affidavit of their expert witness, River Region requested that the court reconsider their original motion for summary judgment in light of the newly filed expert-witness affidavit. The court agreed and, after a hearing on the matter, determined that Triplett’s heirs had failed to provide qualified expert testimony sufficient to establish the proper standard of care, breach of the standard of care, and a causal connection between the alleged breach and the claimed injury. Accordingly, the circuit court granted summary judgment as to Dr. Porter, Howard, and River Region regarding Dr. McMillin’s treatment.

¶ 8. Thereafter, on May 12, 2008, a jury trial commenced. During voir dire, a juror informed the circuit court that she worked for an attorneys’ office that had performed some legal work for River Region. However, the juror stated that she was not familiar with the work in question nor had she participated in the work in question. She further stated that she was not biased in favor of River Region or any other party. Triplett’s heirs moved to strike the juror for cause, a motion which was denied. Triplett’s heirs declined to use a peremptory strike, and the juror was placed on the jury panel.

¶ 9. During opening statements at trial, counsel for River Region made the following statement: “a doctor from Virginia is the only one, apparently, [that Triplett’s heirs] could find in the whole United States to testify against [River Region].” The circuit court sustained an objection from Triplett’s heirs and advised the jury to disregard the statement. However, it was not until the next morning, after arguing an unrelated motion to the circuit judge in chambers, that counsel for the heirs stated: “I think a mistrial is warranted based upon the comment [in opening statements], but[,] at a minimum, I think I should be allowed to designate a local expert.” The circuit court treated counsel’s remark as a motion for a mistrial and denied it, holding that motions for mistrial must be made contemporaneously with the correlative objection.

¶ 10. After Triplett’s heirs rested their case, River Region presented their case-in-chief and called several witnesses, including Dr. Adams, Triplett’s anesthesiologist. During the heirs’ cross-examination of Dr. Adams, River Region objected to the attempted use of Dr. Adams’s surgical consent form, which Triplett had reviewed and signed prior to the surgery. However, after a bench conference, the circuit court determined that because lack of informed consent was not in the pretrial order, it was not at issue and, therefore, not relevant to the case. Triplett’s heirs then made a proffer of the evidence outside the presence of the jury, thus preserving the issue for appeal.

¶ 11. Thereafter, River Region called another witness, Dr. Ahmed E. Badr. An affidavit of Dr. Badr had been filed by River Region at the beginning of litigation. At trial, during cross-examination, Triplett’s hems questioned Dr. Badr while simultaneously reading parts of his affidavit into evidence. Upon re-direct examination, River Region introduced the affidavit into evidence over the objection of Triplett’s heirs.

¶ 12. At the close of trial, certain instructions were given to the jury. Triplett’s heirs asserted that the exclusion of their instruction P-25 and the granting of River Region’s instruction D-1B constituted reversible error. Instruction P-25 advised the jury of the so-called “eggshell-skull doctrine,” wherein liability exists for damages stemming from aggravation of prior injuries or conditions. River Region contested Triplett’s heirs’ instruction P-25 based on the assertion that the instruction’s explanation of the eggshell-skull doctrine did not apply to the case because it did not address Triplett’s failure to advise her physicians of her precarious medical conditions prior to the surgery. The issue, according to River Region, was whether Triplett’s misrepresentations of and omissions about her medical conditions to her physicians contributed to her subsequent medical problems and whether, if the physicians had known of the medical conditions, the surgery would have proceeded.

¶ 13. On May 20, 2008, the jury returned a verdict in favor of River Region by a vote of eleven to one. After denying Triplett’s heirs’ motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, an order was entered for River Region on June 17, 2008. Three days later, Triplett’s heirs appealed. Thereafter, River Region filed a cross-appeal on July 3, 2008, regarding the circuit court’s denial of a motion in limine.

DISCUSSION

I. Summary Judgment in Favor of River Region

¶ 14. This Court reviews de novo the grant or denial of summary judgment; and therefore, “the lower court’s decision is reversed only if it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party.” Slatery v. Ne. Miss. Contract Procurement, Inc., 747 So.2d 257, 259 (¶ 4) (Miss.1999) (citing Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999)). Additionally, with regard to summary judgment in medical-malpractice cases, “expert testimony is generally required to survive summary judgment and establish the negligence of a physician.” Sheffield v. Goodwin, 740 So.2d 854, 856 (¶ 6) (Miss.1999) (citations omitted). A circuit judge’s “determination as to whether a witness is qualified to testify as an expert is given the widest possible discretion and that decision will only be disturbed when there has been a clear abuse of discretion.” Id. at 856 (¶ 6).

¶ 15. Prior to the trial, River Region filed a motion for summary judgment alleging that Triplett’s heirs had failed to provide adequate expert witness testimony sufficient to establish a standard of care, breach of the standard of care, and a causal connection between the breach and the claimed injury. The circuit court initially denied River Region’s motion and allowed Triplett’s heirs additional time to provide qualified expert-witness support for their theory of the case.

¶ 16. After the heirs filed their supplemental expert affidavit, River Region requested that the circuit court reconsider its original motion for summary judgment. The court agreed and, after conducting a hearing on the motion, granted summary judgment as to several parties, including River Region with regard to Dr. McMillin. The court based its decision on the Triplett heirs’s failure to provide an expert who was qualified to articulate the standard of care applicable to several medical providers, including Dr. McMillin.

¶ 17. The supreme court has held that testifying experts are to demonstrate familiarity with a specialty, not merely a particular subject. Hubbard v. Wansley, 954 So.2d 951, 958 (¶ 17) (Miss.2007). Furthermore, admissibility of expert testimony depends on the scope of an expert’s knowledge and experience. Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (¶ 17) (Miss.2007).

¶ 18. Specifically, the circuit court held that the Triplett heirs’ expert witness failed to establish, either through knowledge or experience, the specific standard of care applicable to Dr. McMillin. The court found the expert witness appeared to provide merely vague, conclusory statements, including asserting that Dr. McMil-lin should have conducted “further testing to determine the risk of perioperative stroke.” However, at no point does it appear that the expert witness informed the court of specific testing or procedures Dr. McMillin should have conducted.

¶ 19. Additionally, the record indicates that prior to providing his expert opinion, the Triplett heirs’ expert witness failed to review the records of Triplett’s cardiovascular physicians. Triplett’s cardiovascular physicians had advised her to undergo a bilateral endarterectomy or face continued high risk of stroke. Nonetheless, the heirs’ expert witness asserted that his opinion was a “valid opinion,” regardless of any additional medical records which may exist as to Triplett’s case. However, the expert witness later admitted that Triplett should have told Dr. McMillin about the complications and risks surrounding her carotid arteries and about her refusal to undergo the recommended surgery.

¶ 20. We find that the record provides ample support for the circuit court’s granting of summary judgment in favor of River Region, even when viewed in a light most favorable to Triplett’s heirs. This issue is without merit.

II. Motion to Strike a Juror for Cause

¶ 21. As stated previously by this Court: “[d]espite circumstances that tend to indicate a potential for bias on the part of a juror, a juror’s promise that he [or she] will be able to be fair and impartial is entitled to considerable deference.” Smith v. State, 989 So.2d 973, 982 (¶ 30) (Miss.Ct.App.2008) (citing Toyota Motor Corp. v. McLaurin, 642 So.2d 351, 356-57 (Miss.1994)). Additionally, “[t]he determination of whether a juror is fair and impartial is a judicial question that will not be set aside unless there is a finding that such determination clearly appears wrong.” Bennett v. State, 933 So.2d 930, 942 (¶ 31) (Miss.2006) (internal quotations omitted).

¶ 22. During voir dire, it was discovered that a potential juror was employed by a law firm which had previously handled work for River Region. Questioning of the juror revealed that she had neither worked on the project involving River Region nor did she know anything about the project. The juror also affirmatively stated that she had no problem serving on the jury and was not biased toward River Region.

¶ 23. Triplett’s heirs moved to strike the juror for cause. The circuit court declined to do so, and the heirs did not use a peremptory strike against her. Accordingly, the juror was placed on the jury.

¶ 24. The Triplett heirs cite cases such as Berbette v. State, 109 Miss. 94, 67 So. 853, 854 (1915), and Louisville, N.O. & T. Ry. Co. v. Mask, 64 Miss. 738, 2 So. 360, 361 (1887), for the proposition that employees of a party may not be empaneled on a jury hearing a case involving that party. However, in this case, the juror was not an employee of River Region. Rather, her employer was a law firm. While she admitted that an attorney at the firm had performed legal work in at least one case for River Region, she also stated that she was unfamiliar with the case and the work performed. She further informed the court that she would not feel pressured to favor River Region Medical Corporation or any other party and could competently serve as a juror.

¶ 25. Accordingly, we find no error on the part of the circuit court; therefore, this issue is meritless.

III. Motion for a Mistrial

¶ 26. This Court reviews failure to declare a mistrial under an abuse-of-discretion standard. Coho Res., Inc. v. McCarthy, 829 So.2d 1, 18 (¶ 50) (Miss. 2002). Here, at the commencement of the jury trial, River Region’s counsel remarked in the opening statement that the heirs were “apparently” unable to find another expert witness in the entire United States to support their theory of the case. The Triplett heirs’ counsel objected, and the circuit court sustained the objection and directed the jury to disregard the remarks.

¶27. On the morning after opening statements were made, counsel for both parties met in the circuit judge’s chambers to discuss an unrelated motion. After the motion was argued, the Triplett heirs’ counsel stated: “I think a mistrial is warranted based upon the comment, but, at a minimum, I think I should be allowed to designate a local expert.” The circuit judge deemed counsel’s remarks equivalent to a formal motion for a mistrial and denied the motion. The judge stated that the motion should have been made contemporaneously with the objection pursuant to the “contemporaneous-objection rule.”

¶ 28. Indeed, the Mississippi Supreme Court has stated, in no uncertain terms: “a judge can only make a determination of prejudice if the defendant makes a timely objection and motion for a mistrial. Strictly speaking, timeliness means the objection and motion must be made contemporaneously with the allegedly improper utterance.” Meena v. Wilburn, 603 So.2d 866, 874 (Miss.1992).

¶ 29. The record is clear that not only was the Triplett heirs’ motion for a mistrial untimely, but the circuit court also took it upon itself to advise the jury to disregard the statements at the time the statements were made. We find the circuit court did not abuse its discretion in denying the motion for a mistrial. This issue is without merit.

TV. Introduction of Certain Pieces of Evidence

¶ 30. “When reviewing the [trial] court’s decision to admit or exclude evidence, [the appellate court is] bound by an abuse of discretion standard of review.” Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 654 (¶ 28) (Miss.2009).

¶31. During River Region’s case-in-chief, several witnesses were called, including Dr. Adams, Triplett’s anesthesiologist. Prior to Triplett’s surgery, Dr. Adams presented Triplett with a surgical consent form that described the procedure and the potential risks. The record indicates Triplett reviewed and signed the document prior to her surgery.

¶ 32. On cross-examination of Dr. Adams, Triplett’s heirs attempted to introduce the surgical consent form into evidence. River Region objected on the basis that Triplett’s heirs had not introduced a lack of informed consent theory into their case-in-chief and that River Region had not raised the issue in their direct examination of Dr. Adams. After a bench conference on the matter, the circuit court ruled that the surgical consent form was inadmissible because lack of informed consent was not listed as a theory of the case in the pretrial order and, therefore, was not a valid issue in the case. Triplett’s heirs then made a proffer of the surgical consent form.

¶ 33. The record supports the circuit court’s determination that the Triplett heirs did not introduce the issue of lack of informed consent into their case-in-chief, nor was it listed in the pretrial order. River Region did not make any mention of lack of informed consent during the trial until Triplett’s heirs attempted to introduce the surgical consent form. Thus, the circuit court did not abuse its discretion by preventing the surgical consent form from being introduced into evidence.

¶ 34. River Region also called expert witness, Dr. Badr. Prior to the commencement of the trial, Dr. Badr executed an affidavit as to his opinion of the case. During cross-examination, the Triplett heirs began questioning Dr. Badr regarding the medical care provided to Triplett, while simultaneously reading into evidence parts of Dr. Badr’s affidavit. Upon redirect examination, River Region moved to place the affidavit into evidence. The circuit court allowed the affidavit to be introduced into evidence over a hearsay objection made by the Triplett heirs.

¶ 35. Under Mississippi Rule of Evidence 801(d)(1)(A), a statement is not hearsay if it is a prior statement made by the witness which is “inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceedings, or in a deposition ... [and][t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.” Additionally, “[ujnder Rule 801(d)(1)(A) the prior inconsistent statements may be admissible as substantive evidence if they were made under oath, e.g., at a deposition or at a judicial proceeding.” M.R.E. 801(d)(1)(A) cmt. Accordingly, the Triplett heirs’ use of the affidavit in an attempt to show inconsistency in Dr. Badr’s testimony brought the affidavit into the realm of admissibility. Therefore, the circuit court did not abuse its discretion in allowing the affidavit of Dr. Badr to be admitted into evidence. We find both allegations of error regarding the admissibility of evidence to be without merit.

V. “Eggshell Skull Doctrine”

¶ 36. When reviewing the grant or denial of jury instructions, “two questions should be asked: Does the instruction contain a correct statement of law and is the instruction warranted by the evidence?” Franklin Corp. v. Tedford, 18 So.3d 215, 239 (¶ 48) (Miss.2009) (citations omitted). Furthermore, “defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole, fairly — although not perfectly — announce the applicable primary rules of law.” Id.

¶ 37. The Triplett heirs’ assert that the exclusion of their instruction P-25 and the granting of River Region’s instruction D-13 constituted reversible error. Instruction P-25 advised the jury of the so-called “eggshell-skull doctrine,” wherein liability exists for damages stemming from aggravation of prior injuries or conditions.

¶ 38. River Region argues that the Triplett heirs’ explanation of the eggshell-skull doctrine did not apply to the case because it did not address Triplett’s alleged failure to advise her physicians of her precarious medical conditions prior to the surgery. The issue, according to River Region, was whether Triplett’s failure to fully inform her physicians, and the misrepresentations she made to her physicians, contributed to her ultimate medical problems and whether, if the physicians had known the full extent of Triplett’s medical conditions, the surgery would have proceeded.

¶ 39. Specifically, the Triplett heirs’ instruction P-25 read, in part, as follows:

If you find form [sic] a preponderance of the evidence that the Plaintiff had any pre-existing physical or mental condition which became aggravated as a proximate result of the Defendant’s negligence, then he [sic] is entitled to recover for any of the elements of damages which you find from a preponderance of the evidence have resulted from the aggravation of such condition, if any. You are not authorized, however, to apportion or diminish any damages you find to have proximately resulted from the accident sued upon based on any pre-exist-ing condition.

¶ 40. Conversely, River Region’s instruction D-13 stated as follows:

If you find from a preponderance of the evidence in this case that Jean B. Triplett failed to seek further medical treatment in a timely manner or failed to report to her doctors or medical professionals physical symptoms and conditions that would or could affect the medical professional’s treatment of her or that Mrs. Triplett misrepresented to Dr. McMillin that she was having no symptoms for her carotid stenosis or failed to report to Dr. McMillin the (extensive) stenosis of her right carotid artery, and if you find that such failure on the part of Jean B. Triplett, if any, caused her to endure certain medical conditions or incur certain bills that she otherwise could have avoided by seeking timely medical treatment or reporting to her doctors and medical professionals physical symptoms and conditions that would or could affect the medical professionals treatment of her, then you are instructed that Jean B. Triplett’s heirs are not entitled to recover damages for those medical conditions and/or medical bills that she would have avoided by seeking timely medical treatment or reporting to her doctors and medical professionals physical symptoms and conditions that would or could affect the medical professional’s treatment of her based on information provided to her by ... [River Region],

¶ 41. In this case, the Triplett heirs’ proposed jury instruction P-25, which discussed the general theories of law surrounding the eggshell-skull doctrine, would not have fully informed jurors of the applicable law. Indeed, the eggshell-skull doctrine, as explained by Triplett’s heirs in instruction P-25, would not apply to a case such as this, where a patient had a duty to advise her physicians of her medical condition prior to surgery, yet she failed to do so. If Triplett had provided this information to her physicians and the surgery was nonetheless conducted, perhaps we would have a different analysis and conclusion. However, jurors were entitled to an accurate portrayal of the law as applied to this case. Therefore, we find the circuit court’s denial of instruction P-25 and granting of instruction D-13 to be proper. This issue to be without merit.

VI. Motion in Limine

¶ 42. Because all findings of the circuit court are affirmed, River Region’s cross-appeal is moot.

¶ 43. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED ON DIRECT APPEAL, AND THE CROSS-APPEAL IS RENDERED MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

license: Public Domain

text:
    Darrian RAGLAND, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01558-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Phillip Broadhead, Oxford, Allan D. Shackelford, Clarksdale, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On July 14, 2009, Darrian Ragland was convicted in the Circuit Court of Coa-homa County of burglary of a dwelling and petit larceny. Ragland appeals his conviction and asks this Court to consider whether he was denied effective assistance of counsel and whether the circuit court erred in denying his motion for a judgment not withstanding the verdict or new trial, alleging the verdict of the jury was against the overwhelming weight of the evidence. Finding no reversible error, we affirm.

FACTS

¶2. On March 27, 2004, Ragland, a nighttime intruder, broke and entered through the window of the dwelling of Kimberly Yarbrough. Ragland slipped into Yarbrough’s bedroom and then her bed. Yarbrough’s children were also in the bedroom. Ragland began running his hands through Yarbrough’s hair and along her leg and demanded, in no uncertain terms, sexual intercourse. Yarbrough jumped out of the bed and grabbed a small pistol from a drawer. By this time, Yarbrough’s children were awake, crying, and screaming, and, after a short struggle for the gun, Ragland left the house taking Yarbrough’s gun with him.

¶ 3. At trial, the police presented three witnesses; Yarbrough, who testified she recognized Ragland and furnished his name to police; Norman Starks, Sergeant of Investigations with the Clarksdale Police Department, and the first to interview Yarbrough; and Joseph Wide, a Clarks-dale police officer, who testified that he had witnessed Ragland on Barnes Street (the street where the incident occurred) approximately two hours before the break-in.

¶ 4. During Starks’s initial interview with Yarbrough, it was discovered that a cooler was stacked on top of a chair leading to the living room window. The window, approximately ten feet above the ground, was discovered to be propped open with a stick and the window-screen had been cut. The bedroom lamp, normally kept on the bedside table, had been unplugged and removed from the table.

¶ 5. At the close of the State’s evidence, Ragland moved for a directed verdict on the ground that the State had failed to prove each element of the case. This motion was denied. After being advised of his right to testify, Ragland, against the advice of his attorney, insisted on testifying. He asserted a general denial defense and further claimed that he was not in the State of Mississippi, but rather in Ohio. Ragland claimed that he had been living in Ohio for the past six years.

¶ 6. A jury returned a unanimous guilty verdict as to both the burglary charged in count I and the larceny charged in count II. Ragland was subsequently sentenced to twenty-five years for the burglary, and six months for the larceny. Ragland then filed a motion for judgment notwithstanding the verdict, claiming the verdict was against the overwhelming weight of the evidence. This motion was also denied. Aggrieved, he now files this appeal.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 7. Ragland argues that he received ineffective assistance of counsel. He raises the issue for the first time on appeal. Ragland asserts that his trial counsel committed twelve errors of both commission and omission sufficient to render his representation at trial ineffective.

¶ 8. While this Court may consider the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because “[w]e are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim.” Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003) (citing Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002)). The Mississippi Supreme Court instructs that, on direct appeal, the entire record should be reviewed. Read v. State, 430 So.2d 832, 841 (Miss.1983). This Court will reach the merits of an ineffective-assistance claim only in instances where: “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Wilcher, 863 So.2d at 825 (¶ 171) (citations omitted). Where the record is insufficient to support a claim of ineffective assistance of counsel, “[t]he appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Aguilar, 847 So.2d at 878 (¶ 17) (citing Read, 430 So.2d at 837).

¶ 9. Here, there is no stipulation made by the parties as to the record. Our review then is focused on determining whether the record affirmatively demonstrates that Ragland was denied the effective assistance of counsel. The relevant inquiry is whether the representation of Ragland was “so lacking in competence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice.” Ransom v. State, 919 So.2d 887, 889 (¶ 9) (Miss.2005) (quoting Parham v. State, 229 So.2d 582, 583 (Miss.1969)).

¶ 10. To prove a claim of ineffective assistance of counsel, a defendant must show: (1) that his defense counsel’s performance was deficient, and (2) that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Swington v. State, 742 So.2d 1106, 1114 (¶ 22) (Miss.1999). “The determination of whether counsel’s performance was both deficient and prejudicial must be determined from the ‘totality of the circumstances.’ ” Cole v. State, 666 So.2d 767, 775 (Miss.1995) (citation omitted). The defendant bears the burden of proving both prongs of the Strickland test and faces a rebuttable presumption “that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic.” Edwards v. State, 615 So.2d 590, 596 (Miss.1993) (citing Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985)). To rebut this presumption, “the defendant must show that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 11. The record does not affirmatively show ineffective assistance of counsel to a degree of constitutional dimensions. Ragland’s allegations of fault as to his attorney could be classified as trial strategy. Regardless, even if Ragland’s attorney’s actions were not part of trial strategy, Ragland is still unable to show prejudice. A complaint regarding counsel’s failure to ask certain questions, or make certain objections, falls within the ambit of trial strategy. Houston v. State, 887 So.2d 808, 815 (¶34) (Miss.Ct.App.2004) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). As this Court generally defers to counsel’s judgment at trial, we are reluctant to define counsel’s trial strategy as ineffective assistance of counsel in such matters. Id. Further, because we cannot address several of Ragland’s ineffective-assistance-of-counsel allegations due to lack of evidence in the record, we find that his ineffective-assistance claim would be more appropriately brought in a petition for post-conviction relief, if he chooses to do so. Accordingly, we deny relief on this issue without prejudice.

II. Legal Sufficiency and Weight of the Evidence

¶ 12. The trial court denied Rag-land’s motion for directed verdict and his motion for a judgment notwithstanding the verdict. Aggrieved, Ragland now appeals those denials, asserting that no rational trier of fact could have found that the State proved every element of the crime with which he was charged, or, in the alternative, that the verdict returned is against the overwhelming weight of the evidence. We find no merit to either claim.

¶ 13. A trial court’s denial of a motion for directed verdict challenges the legal sufficiency of the evidence presented. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the non-movant, consider only the evidence that supports the verdict, and give the benefit of all favorable inferences that may be reasonably drawn from the evidence. Dilworth v. State, 909 So.2d 731, 737 (¶20) (Miss.2005). If the evidence was sufficient to establish guilt beyond a reasonable doubt and support a guilty verdict, the denial of the motion for a directed verdict is affirmed. Shelton v. State, 853 So.2d 1171, 1186 (¶ 48) (Miss.2003).

¶ 14. 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 v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). We have stated that on a motion for new trial;

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.

Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Bush, 895 So.2d at 844 (¶ 18). A reversal on the ground that the verdict is against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

¶ 15. In denying Ragland’s motion for a directed verdict and his motion for a judgment notwithstanding the verdict, the trial court correctly held that the question of Ragland’s identity and intent was a jury question. The jury is under no obligation to believe Ragland’s alibi defense. “Rather, an alibi defense simply raises an issue of fact to be resolved by the jury.” Hughes v. State, 724 So.2d 893, 896 (¶ 18) (Miss.1998).

¶ 16. The resolution of the conflict between the State’s evidence and Ragland’s alibi defense was a question of fact for the jury to resolve. The State’s evidence was ample to support the jury’s verdict, and the jury is not required to accept his alibi defense. There is no merit to these assignments of error.

¶ 17. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTY-FIVE YEARS; AND COUNT II, PETIT LARCENY, AND SENTENCE OF SIX MONTHS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHO-MA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . In all, Ragland asserts twelve errors: (1) failure to exclude prior convictions; (2) failure to move for a speedy trial; (3) failure to object to jury composition; (4) failure to give opening statement; (5) withdrawal of valid objections; (6)failure to renew objection with regard to "victim”; (7) reprimanded for over-aggression toward witness; (8) interviewed witness on the morning before trial; (9) introduced incriminating evidence; (10) failure to mount effective defense; (11) failure to object to closing statement; and (12) closing statement changed defense.


author: SHAW, Justice.

text:
    Steven KNOEDLER and Katherine Knoedler v. Leslie BLINCO et al.
    1081124.
    Supreme Court of Alabama.
    April 23, 2010.
    John W. Parker, Daphne, for appellants.
    Mark A. Newell of Masterson <& Newell, L.L.C., Mobile, for appellees Leslie Blinco and Kathleen Blinco.
    C. Robert Gottlieb, Jr., Mobile, for ap-pellee Avalon Homeowners POA, Inc.
    Carroll H. Sullivan and Carter R. Hale of Scott, Sullivan, Streetman & Fox, P.C., Mobile, for appellee Ranee Reehl, individually and d/b/a Reehl Properties, Inc.
   SHAW, Justice.

Steven Knoedler and Katherine Knoe-dler, the plaintiffs below, appeal from a summary judgment entered in favor of defendants Leslie Blinco and Kathleen Blinco and a summary judgment in favor of defendant Avalon Homeowners POA, Inc. (“the homeowners association”), on the Knoedlers’ claims alleging nuisance, negligence, and wanton misconduct, and seeking injunctive relief related to the Blineos’ alleged violation of restrictive covenants imposed in the Avalon subdivision developed by Avalon Development, L.L.C. The Knoedlers also appeal from a summary judgment entered in favor of defendant Ranee Reehl (both individually and doing business as Reehl Properties, Inc.) on the Knoedlers’ fraud claim.

Facts and Procedural History

The Knoedlers and the Blincos own adjacent lots in Avalon, a residential subdivision in Daphne. In June 2005, the Blincos met with Reehl, a real-estate developer and one of the developers of the Avalon subdivision, regarding their desire to construct a residence on the property located in Avalon. During that initial meeting, Reehl discussed the existence of a restrictive covenant regarding the storage of a recreational vehicle (“RV”) on property in Avalon. The applicable covenant provides as follows:

“4.11 No house trailer or mobile home shall be permitted on any Lot at any time. No more than one camper, motor van or similar recreational vehicle, nor more than one boat and boat trailer may be stored on the Lot at any time, nor shall any such camper, motor van or other recreational vehicle or boat and boat trailer be permitted to be parked or stored on the front or side lawn of the Lot but shall be stored to the rear of the Lot as inconspicuously from the street as practicable. In addition, notwithstanding anything to the contrary herein, any camper, motor van or similar recreational vehicle or boat and boat trailer to be stored on any Lot must be approved by the [architectural review] committee. Automobiles may not be parked on the front or side lawn of any Lot.”

Based upon Reehl’s assurances that the covenant permitted a single RV to be stored on the property, the Blincos entered into a purchase agreement for the property. Thereafter, the Blincos’ house plans, which included dedicated water and electrical hook-ups for their RV, were approved by the developers, and the house was constructed in accordance with the approved plans. The Blincos closed on their house on September 19, 2006, and moved in on September 20, 2006.

On September 25, 2006, the Knoedlers participated in a walk-through in conjunction with their purchase of a house that abuts the Blinco property. On that occasion, the Knoedlers observed an RV parked in the Blincos’ driveway. According to the Knoedlers, when they questioned their real-estate agent, John Fowler, and the builder, James Ray, both of whom were present, about the RV, Fowler indicated that he was unfamiliar with the RV but would attempt to obtain additional information. However, the Knoedlers assert that Ray informed them that the Blin-cos had just returned from a long trip and that the RV was parked there only temporarily and that it would be gone within 10 days. The Knoedlers subsequently closed on the property; they admit that, at least one to two weeks before closing, they were provided with and read a copy of the restrictive covenants applicable to the property.

When the Knoedlers’ subsequently occupied their new residence, the RV was still present on the Blinco property. The Knoedlers made repeated complaints to the homeowners association, Reehl, and Fowler regarding the RV; a dispute ensued, and the Knoedlers repeatedly made requests of both the Blincos and the homeowners association that the RV be removed. In response to those complaints, and at the request of the developers, the Blincos ultimately constructed a privacy fence to conceal the RV. According to Reehl, one of the developers of Avalon, the fence, which obscured the RV from the street and the front of the property, brought the Blincos into compliance with § 4.11 of the restrictive covenants. The board of directors of the homeowners association later confirmed that the Blin-cos had received both oral and written approval from Reehl to store the RV on the lot and that the presence of the RV was, therefore, not a violation of § 4.11. Those findings were conveyed to homeowners in Avalon by means of a letter dated November 7, 2007. Despite the board’s conclusion, and because of the continued complaints regarding the visibility of the Blincos’ RV, the board nonetheless recommended that the Blincos either extend their driveway behind their residence or move the RV to an RV-storage facility. In compliance with the Board’s request, the Blincos subsequently extended their driveway to the rear of their property in order that the RV might be stored as near to the rear of the property as possible.

In May 2008, the Knoedlers filed the underlying action against the Blincos and the homeowners association, seeking damages and injunctive relief and alleging both that the Blincos’ RV constituted a private nuisance and that it violated § 4.11 of the restrictive covenants of the Avalon subdivision. The Knoedlers also asserted a fraud claim against “Reehl, through his agents, servants, or employees, individually and doing business as Reehl Properties, Inc.,” on grounds that Reehl either knowingly, recklessly, or mistakenly represented to the Knoedlers that the Blincos’ RV was only temporarily present on the Blincos’ property, which misrepresentation the Knoedlers purportedly relied on in purchasing their residence.

On June 30, 2008, the Blincos filed both an answer to the Knoedlers’ complaint and a counterclaim seeking damages based on allegations of invasion of privacy, intentional infliction of emotional distress, and the tort of outrage. All the defendants filed separate motions seeking a summary judgment on the various claims asserted against them in the Knoedlers’ complaint. On February 17, 2009, the trial court granted the defendants’ motions for a summary judgment by means of three separate orders. None of those orders included specific findings of fact. On March 17, 2009, the Knoedlers filed a motion to alter, vacate, or amend the trial court’s summary-judgment orders on grounds that there remained genuine issues of material fact. The trial court denied that motion on April 28, 2009. The Knoedlers appeal.

Discussion

Although no party to the present appeal questions the subject-matter jurisdiction of this Court, as we have previously stated, “we ‘are not confined to the arguments of the parties in our subject-matter-jurisdiction analysis because subject-matter jurisdiction cannot be waived by the failure to argue it as an issue.’” Bon Harbor, LLC v. United Bank, 20 So.3d 1263, 1265 (Ala.2009) (quoting Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009)). “The general rule is that a trial court’s order is not final [for purposes of appeal] unless it disposes of all claims as to all parties.” Dickerson v. Alabama State Univ., 852 So.2d 704, 705 (Ala.2002) (emphasis added).

“The one exception is that where the court has completely disposed of one of a number of claims, or one of multiple parties, and has made an express determination that there is no just reason for delay, the court may direct the entry of judgment on that claim or as to that party.”

Committee Comments on 1973 Adoption of Rule 54(b), Ala. R. Civ. P. (emphasis added).

Despite representations in the notice of appeal and the case-action summary that the underlying matter has been disposed of in its entirety, we hold that we do not have subject-matter jurisdiction over the Knoedlers’ appeal. As previously mentioned, on June 30, 2008, the Blincos filed a counterclaim asserting claims alleging invasion of privacy, intentional infliction of emotional distress, and the tort of outrage against the Knoedlers. However, the trial court’s February 17, 2009, order granting the Blincos’ summary-judgment motion, which referenced only the claims asserted in the Knoedlers’ complaint, neither mentioned nor awarded damages as to that pending counterclaim, nor did it certify as final the partial summary judgment entered in favor of the Blincos as to the Knoedlers’ claims. In fact, despite a review of the record, this Court is unable to find any further reference to the Blinco counterclaim subsequent to the Knoedlers’ answer. The trial court’s summary-judgment orders left pending the Blincos’ counterclaim, and there is no Rule 54(b), Ala. R. Civ. P., certification that the judgments are final. Consequently, the summary-judgment orders are nonfinal judgments, which will not support an appeal. See Bon Harbor, LLC v. United Bank, supra (dismissing appeal on grounds that trial court’s summary-judgment order, which left pending defendants’ counterclaims, was, at best, an order entering a partial summary judgment and not a “final, ap-pealable judgment”); Hill v. Huntsville West Ltd. Partnership, 847 So.2d 375, 376 (Ala.Civ.App.2002) (holding that because trial court’s order did not dispose of [the defendant’s] counterclaim, that “order was not a final judgment that would support an appeal”).

APPEAL DISMISSED.

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

      . Fowler is employed by Reehl's agency, Reehl Properties, Inc., Coldwell Banker.

      . The record reflects that the members of the board of directors of the homeowners association were first elected and governance of the Avalon subdivision turned over to the homeowners association by Avalon Development, LLC, in September 2007, and that the board held its first official meeting on October 3, 2007. During that meeting, the RV dispute was first brought to the board’s attention and, in an effort to discern all the facts, the board subsequently scheduled meetings with both the Blincos and the Knoedlers in October 2007. Before surrendering the matter to the board, Reehl indicated that, as a result of the Blincos' efforts to conceal the RV, the developers felt the matter had been resolved.

      . The record on appeal does not include a transcript of any summary-judgment proceedings conducted by the trial court.


author: LYONS, Justice. MURDOCK, Justice

text:
    VOLVO TRUCKS NORTH AMERICA, INC. v. DOLPHIN LINE, INC. Volvo Trucks North America, Inc. v. Dolphin Line, Inc.
    1081277 and 1081713.
    Supreme Court of Alabama.
    April 23, 2010.

      James W. Lampkin II of Alford, Clausen & McDonald, LLC, Mobile, for appellant.
    William G. Chason of McDowell Knight Roedder & Sledge, LLC, Mobile, for ap-pellee.
   LYONS, Justice.

Volvo Trucks North America, Inc. (“Volvo Trucks”), appeals from an arbitration award entered against it in favor of Dolphin Line, Inc. (“Dolphin”). We affirm.

Factual Background and Procedural History

In April 2006, Dolphin sued Volvo Trucks, Volvo Group North America, Inc. (“Volvo Group”), and Kenworth of Mobile, Inc., d/b/a Volvo Trucks of Mobile (“Ken-worth”), in the Mobile Circuit Court. In its complaint, Dolphin alleged that it had entered into an agreement with Volvo Trucks, Volvo Group, and Kenworth (collectively “the defendants”) whereby Dolphin agreed to purchase several vehicles from the defendants on the condition that the defendants would subsequently repurchase the vehicles at a specified price. Dolphin alleged that the defendants subsequently failed to repurchase the vehicles and that Dolphin suffered financial injury as a result. Dolphin stated claims of breach of contract, misrepresentation, unjust enrichment, and promissory estoppel.

Kenworth moved to stay the action and to compel arbitration, arguing, based on certain predispute agreements with Dolphin, that arbitration was required under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”). Subsequently, Volvo Trucks and Volvo Group jointly moved to stay the action and to compel arbitration based on related arguments. The trial court denied the defendants’ motions, and the defendants appealed the trial court’s decision to this Court. In Kenworth of Mobile, Inc. v. Dolphin Line, Inc., 988 So.2d 534 (Ala.2008), this Court reversed the trial court’s decision and directed the trial court to enter an order staying the action and compelling Dolphin to arbitrate its claims against the defendants.

Subsequently, on April 25, 2008, the parties entered an agreement they styled “Post Dispute Arbitration Agreement.” That agreement provided, in relevant part:

“[Dolphin], Volvo North America, Inc.[] and [Volvo Trucks] (collectively Volvo’), and [Kenworth], through counsel, agree to arbitrate all disputes set forth in the Demand (and any amendments thereto) under 1975 Code of Alabama, § 6-6-1, et seq., according to the following terms and conditions:
“3. In making any award, the Arbitrator shall follow controlling Alabama laws and precedents.”

Pursuant to the agreement, the dispute was presented to an arbitrator on November 18 and 19, 2008. It is undisputed that Kenworth and Dolphin had by that time reached a settlement agreement and that Kenworth did not participate in the arbitration. On May 28, 2009, the arbitrator issued a decision awarding Dolphin $1,245,348 against Volvo Group and Volvo Trucks.

On June 26, 2009, Volvo Trucks filed a notice of appeal to this Court from the arbitrator’s decision; that appeal was assigned case no. 1081277. Also on June 26, 2009, Volvo Group, stating that it had been incorrectly identified as Volvo Trucks, filed a motion with the Mobile Circuit Court to alter, amend, or vacate the arbitrator’s award under Rule 59 and Rule 71B, Ala. R. Civ. P. Volvo Group argued that the arbitrator’s decision conflicted with Alabama law and, citing this Court’s decision in Birmingham, News Co. v. Horn, 901 So.2d 27 (Ala.2004), overruled by Hereford v. D.R. Horton, Inc., 13 So.3d 375 (Ala.2009), argued that the award should be set aside as being in manifest disregard of the law.

Dolphin responded to Volvo Group’s motion and subsequently moved the trial court to enter the arbitrator’s decision as a final judgment under Rule 71C, Ala. R. Civ. P. The trial court did so on August 14, 2009. On the same day, Volvo Group renewed its motion to alter, amend, or vacate the arbitrator’s decision under Rule 59. On August 17, 2009, the trial court denied “Defendants’ Motion to Vacate, Alter and/or Amend Award Entered by Arbitrator,” expressly concluding that manifest disregard of the law was not a valid basis upon which it could review the arbitrator’s decision. Subsequently, on September 3, 2009, Volvo Trucks filed a second notice of appeal; that appeal was assigned case no. 1081713.

Analysis

Section 6-6-14 of the Alabama Arbitration Act, § 6-6-1 et seq., Ala.Code 1975 (“AAA”), provides:

“An award made substantially in compliance with the provisions of this division is conclusive between the parties thereto and their privies as to the matter submitted and cannot be inquired into or impeached for want of form or for irregularity if the award determines the matter or controversy submitted, and such award is final, unless the arbitrators are guilty of fraud, partiality, or corruption in making it.”

On appeal, Volvo Trucks argues that, in addition to the grounds of fraud, partiality, and corruption identified in § 6-6-14, arbitration awards under the AAA may be set aside based on a finding that the arbitrator’s decision is in manifest disregard of the law. Volvo Trucks argues that the trial court erred in concluding otherwise with regard to Volvo Group’s post-judgment motion and that the arbitrator’s decision is in manifest disregard of Alabama law on several points.

Volvo Trucks bases its argument on this Court’s decision in Birmingham News, supra. In that case, this Court considered appeals from arbitration awards involving claims governed by the FAA. 901 So.2d at 30. This Court noted that the appellant, the Birmingham News Company (“the News”), did not raise any arguments based on the grounds set forth in § 6-6-14, stating:

“The News does not argue that the arbitration awards in this appeal were the product of fraud, partiality, or corruption on the part of the arbitrators. It contends, however, that our review of the awards should be governed by the standards prescribed by the FAA, as well as by several ‘nonstatutory’ grounds, including allowing an arbitration award to be vacated when the arbitrators have been guilty of a ‘manifest disregard of the law.’ ”

901 So.2d at 42-43. In addressing the appellees’ argument that only those grounds stated in § 6-6-14 should apply to this Court’s review of the arbitrators’ awards, this Court stated:

“The AAA has had throughout its history, until the last decade, a field of operation only with respect to post-dispute agreements to arbitrate....
“... [I]t is well established that the standards set out in the FAA for reviewing an arbitrator’s award are applicable to our review in this case.
“To the extent that the limited grounds listed in § 6-6-14 (fraud, partiality, or corruption) might arguably govern judicial review of an arbitrator’s award resulting from a post-dispute agreement to arbitrate when the parties have voluntarily opted for arbitration with full knowledge of the contours and significance of their dispute, those grounds do not provide adequate review of arbitrators’ decisions in the numerous and varied commercial- and consumer-transaction disputes now being channeled to arbitration in this State through predispute agreements for arbitration.”

901 So.2d at 44-46. This Court then concluded: “This Court has adopted 9 U.S.C. § 10 [of the FAA] as applicable to an appeal of an arbitration award in this state, and we see no need to retreat from that position,” 901 So.2d at 46-47, noting subsequently that the grounds for review stated in § 10 of the FAA included the grounds set forth in § 6-6-14.

This Court in Birmingham News then considered the availability of manifest disregard of law as a ground for reviewing the arbitration awards before it. This Court reviewed the history of the standard in the federal courts and in the appellate courts of other states and then concluded: “This Court joins the majority of other state appellate courts that have considered the matter in now recognizing ‘manifest disregard of the lav^ as a ground available for reviewing an arbitration award.” 901 So.2d at 50.

Subsequently, in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), the United States Supreme Court rejected manifest disregard of the law as an available ground for reviewing arbitration awards under the FAA. In Hereford v. D.R. Horton, Inc., 13 So.3d 375, 380 (Ala.2009), this Court explained: “[T]he Supreme Court of the United States, in [Hall Street Associates ] rejected the conclusion that it had adopted manifest disregard of the law as an additional, nonstatutory ground for relief from an arbitrator’s decision.” Based on Hall Street Associates, this Court then overruled its earlier decision in Birmingham News, stating:

“Under the Supreme Court’s decision in Hall Street Associates, therefore, manifest disregard of the law is no longer an independent and proper basis under the [FAA] for vacating, modifying, or correcting an arbitrator’s award. In light of the fact that the [FAA] is federal law, and in light of the Supremacy Clause of the Constitution of the United States, Art. VI, we hereby overrule our earlier statement in Birmingham News that manifest disregard of the law is a ground for vacating, modifying, or correcting an arbitrator’s award under the [FAA], and we also overrule any such language in our other cases construing federal arbitration law.”

13 So.3d at 380-81.

Volvo Trucks contends that this Court’s adoption of the manifest-disregard-of-law standard in Birmingham News was broad enough to apply not only to arbitration awards governed by the FAA, but also to those governed solely by the AAA. Volvo Trucks notes that, in overruling Birmingham News, this Court in Hereford referenced only the FAA, not the AAA. Based on this language, Volvo Trucks argues that this Court in Hereford overruled Birmingham News only insofar as it relates to arbitration awards entered under the FAA, not arbitration awards governed solely by the AAA. Volvo Trucks therefore argues that the manifest-disregard-of-law standard remains a viable basis upon which our courts may set aside arbitration awards governed solely by the AAA. We disagree.

In reaching its conclusion in Birmingham News, this Court made clear in response to the appellees’ arguments that its decision was governed by the FAA, not the AAA. See 901 So.2d at 44-47. Furthermore, this Court indicated that the manifest-disregard-of-the-law standard would not fall within the statutory grounds stated by § 6-6-14, stating:

“To the extent that the limited grounds listed in § 6-6-14 (fraud, partiality, or corruption) might arguably govern judicial review of an arbitrator’s award resulting from a post-dispute agreement to arbitrate when the parties have voluntarily opted for arbitration with full knowledge of the contours and significance of their dispute, those grounds do not provide adequate review of arbitrators’ decisions in the numerous and varied commercial- and consumer-transaction disputes now being channeled to arbitration in this State through predispute agreements for arbitration.”

901 So.2d at 46.

Accordingly, when viewed in its entirety, this Court’s decision in Birmingham News may not be read to adopt the manifest-disregard-of-law standard with respect to cases governed by the AAA. Furthermore, the standards stated in § 6-6-14 are exclusive, and this Court has no authority to rewrite the statute to embrace the broader standard of manifest disregard of the law. See, e.g., Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1, 6 (Ala.2001) (“The Court is not at liberty to rewrite statutes, Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 794 (Ala.2000), or ‘to substitute its judgment for that of the Legislature.’ Baptist Health Sys., Inc. v. City of Midfield, 792 So.2d 1095, 1097 (Ala.2001) (internal quotations omitted).”).

To support its position, Volvo Trucks, in its reply brief on appeal, also relies on this Court’s decisions in Jenks v. Harris, 990 So.2d 878 (2008), and H & S Homes, L.L.C. v. McDonald, 910 So.2d 79 (2004), and the Court of Civil Appeals’ decision in Sanderson Group, Inc. v. Smith, 809 So.2d 828 (2001). However, none of those decisions supports, the conclusion that an arbitration award governed by the AAA may be set aside based on a manifest disregard of the law.

In Jenks and H & S Homes, decided after Birmingham News and before Hereford, this Court considered appeals from arbitrators’ awards to determine whether the awards had been entered in manifest disregard of the law. However, the awards at issue in Jenks and H & S Homes resulted from predispute arbitration agreements governed by the FAA. Similarly, Sanderson Group, a case decided by the Court of Civil Appeals before this Court’s decision in Birmingham News, which reviewed an arbitration award to determine whether it was entered in manifest disregard of the law, involved a predispute arbitration agreement governed by the FAA. Accordingly, none of the cases Volvo Trucks relies on involve postdispute arbitration agreements governed solely by the AAA.

Volvo Trucks, therefore, has not shown that, under the AAA, our courts have authority to set aside an arbitration award on the basis of manifest disregard of the law. By the plain language of the statute, the grounds for review of an arbitration award stated in § 6-6-14 of the AAA are exclusive; we have not been directed to any authority showing otherwise. As previously noted, the plain import of this Court’s statement in Birmingham News critical of the scope of the grounds in § 6-6-14 is that the grounds are so narrowly drawn as not to embrace manifest disregard of law. Because the availability of the manifest disregard of the law as a ground for review is the foundation of Volvo Trucks’s remaining arguments on appeal, we need not consider those arguments.

Conclusion

Based on the foregoing, we affirm the trial court’s entry of the arbitration award as a final judgment under Rule 71C, Ala. R. Civ. P.

1081277 — AFFIRMED.

1081713 — AFFIRMED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

This case concerns awards by arbitrators made pursuant to post-dispute arbitration agreements. As to such awards, Volvo Trucks North America, Inc., argues in its appeals to this Court that the decision in Birmingham News Co. v. Horn, 901 So.2d 27 (Ala.2004), recognizes “a manifest disregard of the law” as a basis for judicial review that is not prohibited by the limitations contemplated by § 6-6-14, Ala.Code 1975. Volvo Truck’s appeals are based solely on its reading of this Court’s decision in that case. Because I agree with the main opinion’s understanding of the decision in Birmingham News, I concur in the result.

      . It is unclear whether Volvo North America, Inc., and Volvo Group are the same entity. However, Volvo Group later participated in the resulting arbitration and in stating his decision the arbitrator expressly named "Volvo Group North America, Inc.”

      . The notices of appeal in both case no. 1081277 and 1081713 name "Volvo Trucks North America, Inc.” as the appellant. The appellant's briefs on appeal refer generally to the appellant as "Volvo.” In several motions filed in this Court, the appellant refers to itself as "Volvo Group North America, Inc.” For purposes of these appeals, we are assuming that Volvo Trucks and Volvo Group are a single entity.


author: STUART, Justice.

text:
    Ex parte Attorney General Troy KING et al. (In re Justin Price et al. v. Attorney General Troy King et al.).
    1090295.
    Supreme Court of Alabama.
    April 23, 2010.
    Troy King, atty. gen., and Corey L. Maze, James W. Davis, and William G. Parker, Jr., asst, attys. gen., for petitioners.
    Edgar C. Gentle III, K. Edward Sexton II, Mark Englehart, and Diandra De-brosse Burnley of Gentle, Turner & Sexton, Birmingham, for respondents.
   STUART, Justice.

Justin Price, Charles D. James, Colonel Stone Johnson, James Armstrong, Georgia Gray Hampton, Walter Brown, Jr., Tommie Lee Houston, Frederick D. Richardson, Jr., and Kenneth P. Marshall (“the plaintiffs”), purporting to represent a class made up of Alabama voters, sued, in their official capacities, Attorney General Troy King, Lieutenant Governor Jim Folsom, Jr., President Pro Tempore of the Alabama Senate Hinton Mitchem, Speaker of the Alabama House Seth Hammett, and Secretary of State Beth Chapman (hereinafter collectively referred to as “the State defendants”), alleging that they failed to ensure that the current Alabama Constitution (“the 1901 Constitution”) was ever properly ratified. In fact, the plaintiffs allege, ratification of the 1901 Constitution was obtained only through voter fraud, and they therefore argue that, under 42 U.S.C. § 1983, the 1901 Constitution should be declared void and that an injunction should be entered prohibiting the State defendants from enforcing the provisions of the 1901 Constitution. The trial court denied the State defendants’ motion to dismiss the plaintiffs’ action; the State defendants now petition this Court for a writ of mandamus directing the trial court to dismiss the action. We grant the petition and issue the writ.

I.

On February 4, 2009, the plaintiffs initiated this action by filing a complaint in the Bessemer Division of the Jefferson Circuit Court. The gravamen of their complaint was the allegation that, in 1901, election officials in 12 “black belt counties” manipulated election returns to ensure that the 1901 Constitution received sufficient votes to be ratified. The plaintiffs supported their complaint with the affidavit of Wayne Flynt, a professor of history at Auburn University. Flynt stated in his affidavit that the goal of the Constitutional Convention of 1901 was to produce a new constitution to maintain white supremacy in the government of Alabama and that the constitution drafted at the convention sought to achieve that end by disenfranchising African-American citizens through the use of poll taxes and residency, literacy, and property-owning requirements. The 1901 Constitution was ultimately ratified by a statewide vote of 108,613 to 81,734 on the strength of the vote in 12 black belt counties that voted in favor of ratification 36, 224 to 5,471, notwithstanding the fact that the majority of voters in those counties at that time was African-American and that the ratification of the 1901 Constitution was largely contrary to the interests of African-Americans. Flynt states that African-Americans in other parts of Alabama voted overwhelmingly against the ratification of the 1901 Constitution and that it is far more likely that the election returns in the 12 black belt counties were the product of fraud than a desire on the part of the African-American voters in those black belt counties, in effect, to disenfranchise themselves. He accordingly concludes that the 1901 Constitution was never properly ratified, and the plaintiffs in their complaint have adopted his argument and reasoning, asking the court to declare the 1901 Constitution void and to issue a permanent injunction prohibiting the State defendants from seeking to enforce its provisions.

Upon receiving the plaintiffs’ complaint, the State defendants moved to transfer the action to the Montgomery Circuit Court and, after the plaintiffs consented to the transfer, the trial court transferred the case on April 28, 2009. The State defendants thereafter filed an answer and moved to dismiss the complaint, arguing generally that the trial court lacked subject-matter jurisdiction and that the plaintiffs had failed to state a claim upon which relief could be granted. On October 7, 2009, the trial court entered an order granting the State defendants’ motion to dismiss; however, on October 9, 2009, the trial -court vacated that order and scheduled a hearing for November 3, 2009. On October 16, 2009, the plaintiffs filed a motion opposing the State defendants’ motion to dismiss and, on October 30, 2009, the State defendants filed their reply brief. At the conclusion of the November 3, 2009, hearing, the trial court entered an order denying the State defendants’ motion to dismiss.

On November 24, 2009, the State defendants petitioned this Court to issue a writ of mandamus directing the trial court to dismiss the plaintiffs’ action. On January 27, 2010, we ordered the plaintiffs to file a response. The plaintiffs filed their response on February 11, 2010, the day after filing an amended complaint in the trial court modifying the putative class to include only African-American voters in Alabama, and identifying with more particularity the injuries they alleged they had suffered. The State defendants filed their response to the plaintiffs’ petition on February 17, 2010.

II.

“As this Court has consistently held, the writ of mandamus is a

“ ‘ “drastic and extraordinary writ that 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 Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘ “In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review....” ’ Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003)).

“Tn Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”
“ ‘878 So.2d at 1148-49.’ “Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So.2d at 58.”

Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 20-21 (Ala.2007).

III.

In their petition for the writ of mandamus, the State defendants argue that the trial court erred in failing to dismiss the plaintiffs’ complaint because, they allege, the trial court does not have subject-matter jurisdiction. The trial court lacks subject-matter jurisdiction, the State defendants argue, because: (1) the plaintiffs lack standing; (2) there is no statute that authorizes an “election contest” such as this; and (3) the complaint raises a nonjus-ticiable political question. As explained subsequently, we agree that the plaintiffs lack standing; accordingly, we need not consider the State defendants’ latter two arguments at this time.

In Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004), this Court explained the standing requirement as follows:

“ ‘To say that a person has standing is to say that that person is the proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.’ Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996). ‘Standing ... turns on “whether the party has been injured in fact and whether the injury is to a legally protected right.” ’ [State v. Property at] 2018 Rainbow Drive, 740 So.2d [1025,] 1027 [ (Ala.1999) ] (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)) (emphasis omitted). In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala.2003) (‘The power of the judiciary ... is “the power to declare finally the rights of the parties, in a particular case or controversy....” ’ (quoting Ex parte Jenkins, 723 So.2d 649, 656 (Ala.1998))); Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (‘[T]he law of Art. Ill standing is built on a single basic idea — the idea of separation of powers.’).”

Traditionally, Alabama courts have focused primarily on the injury claimed by the aggrieved party to determine whether that party has standing; however, in 2003 this Court adopted the following, more precise, rule regarding standing based upon the test used by the Supreme Court of the United States:

“A party establishes standing to bring a [constitutional] challenge ... when it demonstrates the existence of (1) an actual, concrete and particularized ‘injury in fact’ — ‘an invasion of a legally protected interest’; (2) a ‘causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be ‘redressed by a favorable decision.’ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party must also demonstrate that ‘he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.’ Worth [v. Seldin ], 422 U.S. [490,] 518, 95 S.Ct. 2197 [(1975)].”

Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala.2003). Accordingly, we first consider whether the plaintiffs have demonstrated the existence of an actual, concrete, and particularized injury in fact.

In paragraph 30 of their amended complaint, the plaintiffs describe their alleged injuries as follows:

“Plaintiffs and the class, as a result, have been deprived of the right to vote on their form of State Government in violation of the Fifteenth Amendment and have been deprived of their Fourteenth Amendment procedural due process and equal protection rights in never being allowed to effectively vote on the invalid constitution. Plaintiffs and the class have been deprived of their Fourteenth Amendment right to equal protection in other ways as well in that the racially-motivated and fraudulent or fraudulently-procured ratification of the 1901 constitution effectively excluded blacks from participation in elections; and even after the legal removal of the formal barriers to blacks voting in elections, the 1901 constitution’s perpetuation causes plaintiffs and the class stigmatic and representational or expressive harms, by continuing to stigmatize plaintiffs and the class, to incite racial hostility, to reinforce racial stereotypes (such as that plaintiffs and the members of the class think alike, share the same political interests, and will prefer the same candidates at the polls), and to signal to elected representatives that they represent the white majority and not their constituency (including plaintiffs and the class) as a whole.”

Thus, the plaintiffs essentially allege that they have suffered two distinct injuries: (1) that they have been deprived of a constitutional right to vote on the constitution establishing their form of state government; and (2) that they have suffered “stigmatie and representational or expressive harms” inasmuch as, they allege, the perpetuation of the 1901 Constitution stigmatizes all African-American voters, incites hostility against them, reinforces stereotypes, and signals to elected officials that they do not represent their African-American constituency. The State defendants argue that neither of these claimed injuries are actual, concrete, and sufficiently particularized so as to provide the plaintiffs with standing.

The first injury alleged by the plaintiffs does not provide a basis for standing because it is readily apparent that the alleged injury is, in fact, no injury at all. There is no right that would grant to each generation of Alabamians the opportunity to vote on the then existing constitution any more than there is a right given to each generation of Americans to vote on the United States Constitution. Although there may be evidence indicating that the voting rights of some African-American voters in Alabama were infringed in connection with the ratification vote in 1901, we may safely conclude, based upon the passage of time, that none of those voters are presently before this Court. Accordingly, because none of the plaintiffs or members of the putative class had their own voting rights infringed in 1901, none of them have suffered a particularized injury that affects him or her “in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). See also In re African-American Slave Descendants Litigation, 471 F.3d 754, 759 (7th Cir.2006) (“[T]he wrong to the ancestor is not a wrong to the descendants.”).

The second injury the plaintiffs allege is the stigmatie and representational harms they claim to have suffered as a result of the perpetuation of the 1901 Constitution. In support of their argument that these injuries are sufficiently concrete and particularized to provide them with standing, the plaintiffs cite a series of decisions by the Supreme Court of the United States concerning gerrymandering and congressional redistricting in which these types of harms are discussed. Shaw v. Reno, 509 U.S. 630, 647-48, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), is representative of these cases:

“A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group— regardless of their age, education, economic status, or the community in which they live — think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. See, e.g., Holland v. Illinois, 493 U.S. 474, 484, n. 2 (1990) (‘[A] prosecutor’s assumption that a black juror may be presumed to be partial simply because he is black ... violates the Equal Protection Clause’ (internal quotation marks omitted)); see also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630-631 (1991) (‘If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury.’). By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.
“The message that such districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole.”

The State defendants appear to concede that, in certain circumstances, stigmatic and representational harms may be sufficient to support standing; however, they argue that those circumstances do not exist in the instant case because the plaintiffs are essentially arguing that they are being stigmatized as a result of certain African-American voters having been deprived of their equal-protection rights in 1901, not as a result of the plaintiffs themselves being deprived of those rights. Indeed, the State defendants argue, the plaintiffs cannot claim that they personally were deprived of them voting rights in 1901 because they were not voters at that time. We agree. In cases where stigma has been recognized as an injury for standing purposes, it is the plaintiff who has suffered discrimination or who has been denied equal protection. The Supreme Court of the United States articulated this principle in Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), when it stated:

“Neither do [the appellees] have standing to litigate their claims based on the stigmatizing injury often caused by racial discrimination. There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing. See Heckler v. Mathews, 465 U.S. 728, 739-740 (1984). Our cases make clear, however, that such injury accords a basis for standing only to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct, ibid.”

(Emphasis added.) The Supreme Court has discussed stigmatic harm on several occasions since Allen; however, as one author has noted, “[i]n the twenty-three years since it was decided, Allen has never been openly questioned by the Court.” Thomas Healy, Stigmatic Ham and Standing, 92 Iowa L.Rev. 417, 431 (2007). Therefore, because the plaintiffs were not “personally denied equal treatment,” they have not suffered the particularized injury that standing requires, and their action against the State defendants should, accordingly, be dismissed.

IV.

The plaintiffs sued the State defendants alleging that the State defendants had failed to ensure that the 1901 Constitution was ever properly ratified. The State defendants moved to dismiss the action, arguing, among other things, that the plaintiffs lacked standing to bring their claims. The trial court denied that motion; however, as discussed supra, the trial court erred by doing so because the State defendants have established a clear legal right to the relief they seek. The State defendants’ petition for a writ of mandamus is accordingly granted, and the trial court is hereby directed to vacate its order denying the State defendants’ motion to dismiss and to enter an order granting the motion and dismissing the action.

PETITION GRANTED; WRIT ISSUED.

LYONS, WOODALL, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ„ concur.

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

      . The 12 black belt counties are not identified in the materials submitted to this Court.

      . The filing of a petition for the writ of mandamus does not divest the trial court of jurisdiction or stay the case. State v. Webber, 892 So.2d 869, 871 (Ala.2004).

      . Before the trial court, the State defendants also argued that the plaintiffs’ complaint should be dismissed on several nonjurisdic-tional grounds as well. However, their petition to this Court raises only the previously made jurisdictional arguments.

      . The plaintiffs argue that this Court has applied the three-pronged standing test adopted in Henri-Duval on only limited occasions and has instead largely continued to use the simpler traditional test of " ‘whether the party has been injured in fact and whether the injury is to a legally protected right.' ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999) (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)). See, e.g., Ex parte Synovus Trust Co., N.A., 41 So.3d 70 (Ala.2009). Accordingly, the plaintiffs urge this Court to apply that traditional test in this case and to, in effect, not consider the latter two prongs of the test articulated in Henri-Duval.

      However, although the plaintiffs are correct that, even post-Henri-Duval, this Court has sometimes addressed only the injury-in-fact prong of the three-pronged test articulated in Henri-Duval, we have clearly indicated on at least two occasions that the three-pronged test is the appropriate test for determining standing in Alabama. See Muhammad v. Ford, 986 So.2d 1158, 1162 (Ala.2007) (stating that, in Henri-Duval, “this Court adopted a more precise rule regarding standing”); and Town of Cedar Bluff, 904 So.2d at 1256 ("In [Henri-Duval'], this Court effectively restated the standard [for standing]_”). In Ex parte Synovus Trust Co. and other cases decided post-Henri-Duval in which only the injury-in-fact prong of the test is addressed, it is generally because the only question at issue in those cases was whether the plaintiff had suffered a particularized injury in fact.

      . The State defendants argue that we should conduct our standing analysis based on the plaintiffs’ original complaint as opposed to their amended complaint because, they argue, jurisdictional defects cannot be cured by amending the complaint. In support of their argument they cite Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008), in which we stated that “[t]he jurisdictional defect resulting from the plaintiff’s lack of standing cannot be cured by amending the complaint to add a party having standing.” However, Cadle is inapposite here because the plaintiffs have not amended their complaint to add parties; rather, they have amended it to subtract parties. Importantly, all the plaintiffs included in the amended complaint were included in the original complaint.