author: MAXWELL, J.,

text:
    Sherley ADAMS, et al., Appellants v. MISSISSIPPI STATE OIL & GAS BOARD, U.S. Oil and Gas Association, Murphy Oil USA, Inc. d/b/a Spur Oil and Gas Corporation, Fina Oil & Chemical Company, Union Pacific Resources, Exxon, Mobil, Amoco Corporation, Marathon Oil Company, Successor to TXO Production Company, Appellees.
    No. 2010-CA-00598-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      Stacey L. Sims, attorney for appellants.
    Jeffery P. Reynolds, Howard 0. Leach, Hazlehurst, attorneys for appellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This is an appeal of the Mississippi State Oil & Gas Board’s 2000 adoption of Statewide Rule 68, which governs the storage of radioactive waste generated during oil and gas production. The appellants are landowners, including Sherley Adams (collectively Landowners), who object to the rule. We do not address the merits of the Oil and Gas Board’s decision. Instead, the question before this court is purely procedural.

¶ 2. At issue is the authority of the chancery court, while sitting as the appellate court, to dismiss the Landowners’ appeal. The record does not show any notice was given to the Landowners prior to dismissal, which is required before dismissing an appeal under Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure. Because the chancellor lacked authority to dismiss the appeal without first giving the Landowners prior notice, the April 2009 order of dismissal is void. And because the dismissal is void, the chancellor erred by not granting the Landowners’ motion to reinstate the appeal. We reverse the denial of the Landowners’ motion to reinstate the appeal and remand the appeal to the chancery court with instructions that the court decide the appeal based on the record and briefs already submitted.

PROCEDURAL HISTORY

¶ 3. In February 2000, the Landowners filed an appeal in Lincoln County Chancery Court of the Oil and Gas Board’s decision to approve Statewide Rule 68. The Oil and Gas Board, along with oil and gas companies that had intervened in this case (Intervenors), filed a motion to dismiss for the Landowners’ failure to comply with Mississippi Code Annotated section 53-l-39(a) (Rev.1999), the statute governing appeals from the Oil and Gas Board to the chancery court. The chancery court granted dismissal.

¶ 4. This court reversed the dismissal and remanded the appeal to the chancery court for further proceedings. Adams v. Miss. State Oil and Gas Bd., 854 So.2d 7 (Miss.Ct.App.2003). In light of the “directive to the circuit and chancery courts, when sitting as appellate courts, to look to the Mississippi Rules of Appellate Procedure for direction,” this court held “the filing of the notice of intention to appeal directly with the chancery court was enough to perfect the appeal.” Id. at 10 (¶ 12) (applying M.R.A.P. 4(a)).

¶ 5. After remand, the special chancellor appointed to hear the appeal recused, and a new special chancellor was appointed. In August 2007, the Landowners finally filed the Oil and Gas Board record with the chancery court. The Landowners filed their brief in September 2007; the Inter-venors filed their brief in October 2007; and the Oil and Gas Board filed its brief in November 2007. The chancery court record neither contains a reply brief by the Landowners nor a request for or notice of oral arguments.

¶ 6. Instead the next recorded action in the chancery court was an order of dismissal signed by the special chancellor and entered April 2, 2009. The order stated the matter was brought by the clerk’s motion to dismiss for failure to prosecute under Rule 41(d)(1) of the Mississippi Rules of Civil Procedure. Although Rule 41(d)(1) requires mailed notice to the attorneys of record in order to allow parties to show cause why the action should not be dismissed, the record contains no evidence notice was given. See M.R.C.P. 41(d)(1).

¶ 7. On January 20, 2010, the Landowners filed a “Motion to Reinstitute Appeal,” citing the chancery clerk’s failure to give them notice prior to dismissal. On March 24, 2001, the special chancellor denied the motion to reinstate for two alternative reasons: (1) because his authority as special chancellor ended with the order of dismissal, he lacked jurisdiction to reinstate the appeal; and (2) the motion was not timely filed under Rule 60(b)(2) because it was filed more than six months from the entry of the order of dismissal. See M.R.C.P. 60(b)(2). On April 6, 2010, the Landowners timely filed a notice of appeal of the order denying reinstatement.

DISCUSSION

I. Application of Rule 2(a)(2)

¶ 8. The procedural nature of this case is atypical. Rarely do chancery courts serve as appellate courts. In Adams, this court acknowledged:

There is not a large body of detailed rules governing procedure when the chancery (or circuit) court sits in an appellate capacity reviewing an action of a state agency. Rather than adopt a lengthy set of rules for that situation, the Mississippi Supreme Court has said that the reviewing court may, when appropriate, refer to the Mississippi Rules of Appellate Procedure for guidance. Van Meter v. Alford, 774 So.2d 480[, 432] (¶ 3) (Miss.2000); American Investors, Inc. v. King, 733 So.2d 830[, 832] (¶ 4) (Miss.1999).

Adams, 854 So.2d at 9-10 (¶ 11) (holding, based on M.R.A.P. 4(a), the Landowners’ notice of appeal was sufficient).

¶ 9. In American Investors, the Mississippi Supreme Court held that Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure governed the circuit court’s dismissal of an appeal from the county court. American Investors, 733 So.2d at 832 (¶ 4) (applying M.R.A.P. 2(a)(2)). Rule 2(a)(2) states:

An appeal may be dismissed upon motion of a party or on motion of the appropriate appellate court (i) when the court determines that there is an obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with these rules. When either, court, on its own motion or on motion of a party, determines that dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after notification, the appeal shall be dismissed by the clerk of the Supreme Court. The attorney for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official.

M.R.A.P. 2(a)(2). It is understandable that a diligent chancery clerk, trying to shed stale cases from the docket, would erroneously conclude Rule 41(d)’s failure-to-prosecute procedures, versus Rule 2(a)(2)’s appeal-dismissal procedures, applied to this appeal. See M.R.C.P. 41(d) (A clerk may move for involuntary dismissal of case where no action of record has been taken for over a year.).

¶ 10. But even Rule 41(d), like Rule 2(a)(2), requires the clerk of the court to give notice to the delinquent party and an opportunity to correct the deficiency before the case is dismissed. Compare M.R.C.P. 41(d)(1) with M.R.A.P. 2(a)(2). The record contains no evidence the prior notice was given in compliance with Rule 2(a)(2).

¶ 11. Further, it is not clear from the record what deficiencies existed. By November 2007, the record from the Oil and Gas Board had been submitted to the chancery court, and all parties had filed their briefs. Neither side requested oral argument. M.R.A.P. 34(b). The record indicates the appeal was ripe for a decision. All that was left to conclude this appeal was for the special chancellor to render an opinion based on the merits.

II. Effect of Failure to Comply with Rule 2(a)(2)

¶ 12. The special chancellor held the Landowners’ motion to reinstate, filed nine months after the entry of the order of dismissal, was untimely filed because Rule 60(b)(2) required a post-judgment motion based on a mistake to be brought within six months. M.R.C.P. 60(b)(2). The special chancellor relied on Walker v. Parnell, 566 So.2d 1213, 1217 (Miss.1990) to hold the failure to give notice under Rule 41(d) was a mere mistake.

¶ 13. First, we highlight that Walker dealt solely with Rule 41(d), not Rule 2(a)(2). Walker, 566 So.2d at 1216. And in Van Meter, the Mississippi, Supreme Court held the failure to comply with Rule 2(a)(2) was not merely a mistake but a deprivation of the appellant’s due-process rights. Van Meter, 774 So.2d at 432 (¶ 4).

¶ 14. Second, we find the special chancellor’s interpretation of Walker was too limited. In Walker, the issue was not a lack of compliance with Rule 41(d) but ineffective compliance due to the clerical mistake of sending notice to the wrong address. Walker, 566 So.2d at 1215-16. Because the Walkers filed their motion to reinstate within six months, the supreme court held the trial court should have reinstated their case based on the clerical mistake. Id. at 1217. Thus, the supreme court did not reach the Walker’s alternative argument that the mistake rendered the judgment void for lack of notice. Id. at 1215, 1217; see M.R.C.P. 60(b)(4) (setting no time limit to reconsider void judgments). But the supreme court did acknowledge that the Walkers’ “due process rights had been stomped on” due to the “procedural error of failing to give notice to the Walkers prior to dismissal of them case.” Walker, 566 So.2d at 1218.

¶ 15. We find the failure to give the Landowners notice prior to dismissing the appeal rendered the April 2009 order of dismissal void. “[A] judgment is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Overbey v. Murray, 569 So.2d 303, 306 (Miss.1990) (quoting Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss.1986)). And the dismissal of an appeal without “an official notice of deficiencies in his appeal by the circuit clerk” deprives the appellant of due process. Van Meter, 774 So.2d at 432 (¶ 4). Thus, we find the dismissal is void for failure to provide due process. And the Landowners’ January 2010 motion to reinstate the appeal was not untimely filed because “no amount of time or delay may cure a void judgment.” Overbey, 569 So.2d at 306 (citations omitted).

¶ 16. The special chancellor also held he lacked jurisdiction to hear the Landowners’ post-dismissal motion because his order of appointment had ended with the dismissal. He relied on Barton v. Barton, 726 So.2d 163, 166 (¶¶ 14-15) (Miss.1998), which held the authority of a special chancellor appointed to hear a divorce ended with the final judgment of divorce. But in Barton, neither party disputed the divorce judgment’s finality or filed a motion to reconsider. Instead, the Bartons brought before the special chancellor new issues that had arisen post-divorce, which the supreme court held were outside the scope of the chancellor’s special appointment. Id. at 166 (¶ 15).

¶ 17. Here, the order of appointment was to hear the Landowners’ appeal. So the special chancellor did have authority to reconsider the dismissal of the appeal. And because the order of dismissal is void, the special chancellor’s appointment to hear the appeal never properly ended. Thus, on remand, the special chancellor is authorized to consider the record and briefs before him and is instructed to rule on the Landowners’ appeal.

CONCLUSION

¶ 18. The special chancellor erred in holding both his authority to hear the appeal ended with the order of dismissal and, alternatively, the Landowners’s motion to reinstate was untimely filed. The record clearly shows the chancery clerk did not provide the Landowners notice of any deficiency in the appeal and an opportunity to cure before the special chancellor dismissed the appeal. This lack of notice voids the dismissal. Thus, the special chancellor’s appointment to hear the appeal had not ended. Further, the Landowners’ nine-month delay in requesting the appeal be reinstated was not untimely because “no amount of time or delay may cure a void judgment.” Overbey, 569 So.2d at 306. With the record and briefs submitted, all that remains is for the special chancellor to issue a decision. We remand this case to the chancery court for such a ruling.

¶ 19. THE JUDGMENT OF THE LINCOLN COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Matt BROWN and Holli Brown, Appellants v. RP AUTO, LLC and Randy Wayne Parks, Appellees.
    No. 2010-CA-01624-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      Seth Wesley Pounds, Booneville, attorney for appellants.
    Regan S. Russell, New Albany, attorney for appellees.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Randy Wayne Parks, owner of RP Auto, LLC, performed repairs on a 2006 Ford Expedition owned by Matt and Holli Brown. The Browns later filed suit against Parks and RP Auto, alleging negligent repair of their vehicle. Following a bench trial, the Union County Circuit Court found for Parks and RP Auto. Feeling aggrieved, the Browns appeal and argue that: (1) the circuit court’s judgment is legally insufficient and against the weight of the evidence; (2) the circuit court erred in finding that there was inadequate proof of the vehicle’s value; and (3) the circuit court made erroneous factual findings.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In 2009, the Browns’ vehicle began making a “rattling” noise. The Browns took the vehicle to Long-Lewis, a Ford dealership in Corinth, Mississippi. Long-Lewis determined that the vehicle’s cam phasers were defective and quoted the Browns $1,750 to replace them.

¶ 4. Unhappy with the quote they received from Long-Lewis, the Browns took their vehicle to Parks, an independent mechanic doing business as RP Auto in New Albany, Mississippi. Parks agreed to replace the cam phasers for $1,000. Parks performed the work; however, he determined that the source of the noise had been the timing-chain tensioner rather than the cam phasers. The Browns paid Parks $1,200, which included the additional cost of the tensioner replacement.

¶5. The same day the Browns picked the vehicle up, they took it on a trip to Louisiana, a distance of approximately three hundred miles. On the way home, the engine began “clattering and shaking,” which was a new problem. The Browns returned the vehicle to Parks. Parks worked on the vehicle for over three weeks, but was unable to remedy the issue. Parks concluded that the vehicle had “electrical problems,” and as the Browns were unwilling to pay him for any of the additional work, he recommended that they take their vehicle to a Ford dealership.

¶ 6. The Browns took the vehicle back to Long-Lewis. The dealership’s mechanics completed over $3,100 worth of repairs on the vehicle. Long-Lewis determined that, after its repairs, the engine was mechanically sound, but the vehicle still suffered from a short circuit. Long-Lewis opined that the source of the problem was damage from negligent repair, and it recommended a full replacement of the engine and various wiring assemblies at a cost of approximately $8,500. The Browns declined. Later, the engine “locked up” or “blew up” as the Browns were driving the vehicle to meet an interested buyer. Ultimately, they traded the vehicle in at Long-Lewis and used the proceeds to purchase another vehicle.

¶ 7. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. “The standard of review of a judgment entered following a bench trial is well-settled [sic].” City of Jackson v. Presley, 40 So.3d 520, 522 (¶ 9) (Miss.2010). A circuit judge sitting without a jury is “entitled to the same deference accorded to a chancellor, that is, we will uphold the [circuit judge’s] findings of fact, so long as they are supported by ‘substantial, credible, and reasonable evidence.’ ” Id. (quoting City of Jackson v. Brister, 838 So.2d 274, 277-78 (¶ 13) (Miss.2003)). However, questions of law are reviewed de novo. Id.

¶ 9. While the Browns raise multiple issues on appeal, those issues are related to the single issue of whether the circuit court’s judgment is supported by substantial evidence, and we will focus our discussion accordingly.

¶ 10. At trial, the Browns were represented by counsel, but Parks appeared pro se. Parks limited his defense to cross-examining witnesses; he did not testify or offer evidence. Nonetheless, the circuit court found that the Browns had failed to present sufficient proof that Parks had caused the damage to their vehicle. Because the Browns had alleged that Parks negligently repaired their vehicle, they carried the burden of proving the four basic elements of a negligence claim: (1) duty, (2) breach of that duty, (3) causation, and (4) damages. Weathersby Chevrolet Co. v. Redd Pest Control Co., 778 So.2d 130, 133 (¶ 8) (Miss.2001).

¶ 11. Other than their own testimony, the Browns offered a single witness: Benny Carter, the shop foreman at Long-Lewis. Carter testified as an expert “master mechanic” and opined that the damage to the Browns’ vehicle was the result of negligent repair. However, he further testified that he did not know who had worked on the vehicle before the Browns brought it back to Long-Lewis. Further, Carter admitted that even after Long-Lewis’s extensive repairs, an electrical problem remained and that the vehicle could not be returned to good working order. Carter explained that the vehicle’s engine wires were cut and crushed, presumably by someone attempting to locate a short circuit. However, Carter admitted that replacement of the cam phasers would not require a mechanic to “play[ ] with the wires.”

¶ 12. The circuit court concluded that the cause of the vehicle’s ultimate engine failure had never been identified, and, therefore, the Browns had failed to establish a causal connection between the damage to their vehicle and Parks’s work. Based on our review of the record, we find that the circuit court’s decision is supported by substantial evidence. Thus, the circuit court did not err in finding that Parks and RP Auto were not negligent. This issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.


author: ISHEE, J.,

text:
    Ronnie D. CONNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00439-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      Ronnie D. Conner, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, Scott Stuart, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Ronnie D. Conner, pro se, files this motion for post-conviction relief (PCR) claiming the Rankin County Circuit Court erred when it dismissed his PCR motion pursuant to Mississippi Code Annotated section 99-39-11(2) (Supp.2011). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 14, 2009, Conner pleaded guilty to six counts of sale of a controlled substance, all as a subsequent drug offender, and one count of conspiracy to sell cocaine. At the plea hearing, the State made sentencing recommendations pursuant to Conner’s plea agreement. At the hearing, Conner acknowledged the recommendations were consistent with plea-bargain discussions. On March 29, 2010, a sentencing hearing was held. The State offered revised-sentence recommendations, suggesting a total sentence of ten years less than the original recommendations. At the sentencing hearing, Conner again acknowledged the new recommendations reflected the plea-bargain discussions. The trial court followed the State’s sentence recommendations. Conner was sentenced to fifteen years each for four counts of sale of a controlled substance; fifteen years for one count of conspiracy to sell cocaine; six years for one count of sale of a controlled substance; and sixty years for one count of sale of a controlled substance, with Conner subject to release after serving fifteen year’s of that sentence. The sentences were ordered to run concurrently; thus, Conner effectively received a total sentence of fifteen years to serve on the seven counts.

¶ 3. On January 11, 2011, Conner filed a PCR motion in the trial court. He argued: he was “paroled out” on February 3, 2010; the sentence did not comply with the plea agreement; and he did not properly understand the State’s sentencing recommendations. The trial court found it plainly appeared from the face of the PCR motion that Conner was not entitled to any relief and dismissed the motion pursuant to Mississippi Code Annotated section 99-39-11(2). From that ruling, Conner appeals.

STANDARD OF REVIEW

¶ 4. When considering a trial court’s decision to dismiss a PCR motion, “we review the trial court’s findings of fact for clear error.” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (citation omitted). Any questions of law are reviewed de novo. Id.

DISCUSSION

¶ 5. On appeal, Conner asserts he was “paroled out” on February 3, 2010, after fifty-five days of incarceration. He claims he was informed by the state parole board that the State had no interest in pursuing the charges any further. Conner also claims his sentence did not reflect the plea agreement, and his status as a subsequent drug offender was not part of the plea agreement. He further argues he was not provided a status hearing or allowed to proofread the plea agreement; accordingly, he contends he did not properly understand the State’s sentencing recommendation.

¶ 6. The trial court dismissed Conner’s PCR motion pursuant to Mississippi Code Annotated section 99-39-11(2), which states: “If it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified.” Trial courts are permitted to rely upon an appellant’s sworn testimony from a plea hearing which contradicts assertions made in the PCR motion. Tolliver v. State, 802 So.2d 125, 127-28 (¶ 11) (Miss.Ct.App.2001). After a review of the records and prior proceedings, it is clear Conner is not entitled to any relief.

¶ 7. Conner asserts he was “paroled out” on February 3, 2010; however, the record is void of any parole records. Furthermore, he was ineligible for parole on that date because he was not sentenced until March 29, 2010. Parole eligibility depends on, among other things, the length of one’s sentence; thus, it is impossible that Conner was released on parole for these charges before the sentencing hearing. See Miss.Code Ann. § 47-7-3(1) (Rev. 2011).

¶ 8. The record also reflects the sentence recommendations in Conner’s plea agreement required him to serve a total of twenty-five years. The State’s recommendations at the plea hearing complied with that sentence. At the sentencing hearing, the State even reduced their sentence recommendations by ten years, thereby recommending a sentence to serve a total of fifteen years. At both hearings the trial judge asked Conner: “[I]s that the recommendation you expected to hear?” To which Conner replied: “Yes, sir.” Conner also agreed to his status as a subsequent drug offender at the plea hearing. The trial judge explained the potential sentence enhancements for each count due to his status as a subsequent drug offender. Every time the trial judge explained the sentence enhancement for a count, the trial judge asked Conner if he understood the sentence enhancement. Each time Conner replied: “Yes, sir.” He was also asked during both the plea hearing and the sentence hearing: “Do you have any questions?” Each time Conner replied: “No, sir.”

¶ 9. The record reflects Conner agreed to the plea agreement, testified he understood the agreement, and actually received ten years less than the plea agreement dictates. Thus, Conner’s claims are contradicted by the record and his own sworn testimony during both the plea hearing and the sentencing hearing. Accordingly, we affirm the trial court’s dismissal of the PCR motion.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


text:
    Arthur Lee BROWN and Linda Jackson Brown, Appellants v. James ANDERSON Jr. and Laura Anderson, Appellees.
    No. 2010-CA-01827-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      David Neil McCarty, Brandi Denton Gatewood, Ocean Springs, attorneys for appellants.
    Pieter John Teeuwissen, Lara E. Gill, Ridgeland, attorneys for appellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Arthur and Linda Brown sued James and Laura Anderson for breach of contract and tortious breach of contract stemming from the Browns’ purchase of the Andersons’ house. After the Browns presented their case to a jury, the Hinds County Circuit Court granted the Andersons’ motion for a directed verdict. The circuit judge held, because Arthur signed a release stating the house’s systems were in good working order at closing, Arthur could not prove the Andersons breached the sales contract by conveying the house without working electrical, plumbing, HVAC, and hot water. On appeal, the Browns argue the circuit court erroneously applied the release. We find Arthur was bound by the release. And based on the language of the contract and release, we find the Browns failed to present a claim for breach of contract and tortious breach of contract. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Linda contacted her realtor about showing her the Andersons’ home in By-ram, Mississippi. After visiting the home several times, Linda and Arthur decided to make an offer on the house. On June 22, 2002, Linda signed the contract using Arthur’s name. Although warranting that the plumbing, electric, heating and air-conditioning systems would be in working order on the closing date, the contract encouraged Arthur to perform a pre-clos-ing inspection because the contract stated Arthur had inspected the property and, subject to the inspection allowed in the contract, “accepts property ‘as is.’ ” The contract also contained a handwritten contingency that stated “all plumbing, electrical, hot water heater, appliances, central heat and central air [would be] in good working order at closing.”

¶ 3. Though the Browns claim their realtor and mortgage broker told them the inspection would be taken care of, the Browns admit they did not have the house inspected before closing. On the day of the closing, July 23, 2002, Arthur signed a “walk-thru inspection release.” This release states that Arthur had inspected the property and “found the following items, evidenced by a check mark to be in good working ORDER and or normal condition .... ” The release contained check marks next to “heating unit,” “air conditioner,” “electrical,” “water heater,” and “plumbing,” as well as other items. Arthur went through with the closing, and the Browns took possession of the home.

¶ 4. The Browns claim that they discovered, within a few weeks of closing, they had bought a “hell house” with faulty electrical, plumbing, HVAC, and hot water. Several weeks after the closing they paid for a home inspection. The inspection revealed problems with each of these systems. On December 31, 2002, Linda and Arthur sued their mortgage company, their realtor, the Andersons’ realtor, and the Andersons based on eighteen different theories of liability. During the ensuing eight years of litigation, most parties and claims were dismissed. But the breach of contract and tortious breach of contract claim against the Andersons survived and were finally tried in August 2010.

¶ 5. On their breaeh-of-contract claim, the Browns had the burden to prove by a preponderance of the evidence that: (1) a valid and binding contract existed; (2) the Andersons breached the contract; and (3) the Browns were damaged monetarily. Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992). To establish tortious breach of contract, the Browns had to prove breach of contract “coupled with ‘some intentional wrong, insult, abuse, or negligence so gross as to constitute an independent tort.’ ” Robinson v. S. Farm Bureau Cas. Co., 915 So.2d 516, 520 (¶ 14) (Miss.Ct.App.2005) (quoting Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 66 (¶ 40) (Miss.2004)).

¶ 6. After the Browns presented their case in chief to the jury, the circuit judge granted the Andersons’ motion for a directed verdict. The circuit judge found there had been no evidence presented that the Andersons committed an intentional wrong, insult, abuse, or gross negligence to support its tortious breach claim. Though the evidence showed Arthur had entered a binding contract with the Andersons, Arthur was likewise bound by the release he had signed, which stated he had inspected the property and accepted the electrical, plumbing, HVAC, and hot water as being in “good working order.” Therefore, the circuit judge found there was no evidence the Andersons breached the contract by not providing these systems in good working order.

STANDARD OF REVIEW

¶ 7. We review the grant of a directed verdict de novo, considering the evidence in the light most favorable to the non-moving party and giving that party all reasonable favorable inferences from the evidence presented at trial. Houston v. York, 755 So.2d 495, 499 (¶ 12) (Miss.Ct.App.1999) (citation omitted). If the facts and inferences “create a question of fact from which reasonable minds could differ,” a trial court should not grant a directed verdict but instead submit the matter to the jury. Ducksworth v. Wal-Mart Stores, Inc., 832 So.2d 1260, 1262 (¶2) (Miss.Ct.App.2002).

DISCUSSION

¶ 8. The Browns argue the circuit judge erroneously relied on the release to hold that they failed to create a jury question on whether the Andersons had breached the contract. But we find the circuit judge was correct that Arthur was bound both by the contract, wherein he agreed he “accepts property ‘as is,’ ” and by the release, which stated he had inspected the home’s systems and found them in “good working order.” Because Arthur acquiesced to the fulfillment of the contract’s contingencies that the house would be in good working order at closing, he could not later assert an inconsistent position that the Andersons had breached the contract by failing to convey the house in working order.

I. Arthur’s Representations in the Contract and Release

¶9. Both home buyers and home sellers are responsible for knowing the terms of sales contracts. “Under Mississippi law, ... parties to a contract have an inherent duty to read the terms of a contract prior to signing; that is, a party may neither neglect to become familiar with the terms and conditions and then later complain of lack of knowledge, nor avoid a written contract merely because he or she failed to read it or have someone else read and explain it.” MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 177 (¶31) (Miss.2006).

¶ 10. This contract gave Arthur the opportunity to have the home inspected before closing to ensure it was in good working order. The specific contract provision states: “Purchaser represents that Purchaser has inspected Property as of the date of this Purchase Agreement, and subject to the inspections allowed herein, accepts property ‘as is.’ ”

¶ 11. In Crase v. Hahn, 754 So.2d 471, 475-76 (¶¶ 11-13) (Miss.Ct.App.1999), this court affirmed a directed verdict in favor of a home seller based on a binding “as is” clause in a sales contract. Like Arthur, Patricia Crase was given the opportunity to inspect a home prior to closing and to refuse to close if the home was not in satisfactory condition. Id. at 475 (¶ 9). At closing, Crase learned the house had been previously cut in half, transported, and reassembled in its current location. But Crase still decided to close on the house. Id. Only after closing did Crase perform a closer inspection and discover problems. In affirming the directed verdict, this court held that Crase “fail[ed] to appreciate the effect that the ‘as is’ clause has on the entire transaction.” Id. at 475 (¶ 8). Here, as clearly evidence by the “as is” clause, the contract stated the time for inspection was prior to closing — not several weeks after.

¶ 12. Arthur’s contract also included as a contingency to closing that “all plumbing, electrical, hot water heater, appliances, central heat and central air [be] in good working order at closing.” As the undisputed trial evidence showed, Arthur completed the closing without complaining any of these contingencies had not been met. He also represented in the release that he had inspected all of these systems and found them to be “in good working order.”

¶ 13. But the Browns argue: (1) the release only applied to the Andersons’ realtor, Ruth Epps Realty Inc., and not the Andersons; and (2) Arthur created a jury issue by testifying that, even though he signed the release, he did not inspect the items on the checklist.

¶ 14. While the release expressly relieved only Ruth Epps Realty Inc. from any further liability and responsibility, Arthur represented in the release that he had personally inspected the house and found all of these systems to be in good working order. Thus, it was not specifically the relief-from-liability clause that the circuit court enforced against Arthur but instead his representations just prior to closing about the “working order” of the home’s various systems.

¶ 15. Further, we find no jury issue surrounding the effect of Arthur’s representations in the contract and release. Arthur did not deny he authorized Linda to sign the contract on his behalf. And it is undisputed that Arthur signed the release and went through with the closing without a single complaint that the contingencies to closing — the good working order of “all plumbing, electrical, hot water heater, appliances, central heat and central air” — had not been met. The circuit court correctly rejected Arthur’s trial testimony that was inconsistent with his representations in the release. Having acquiesced to the working order of the home in order to go through with the closing, Arthur was estopped from denying the veracity of his representations made at closing. Bailey v. Estate of Kemp, 955 So.2d 777, 782 (¶ 21) (Miss.2007).

II. Linda’s Claim

¶ 16. The Browns further argue the release could not have been used against Linda’s claim for breach of contract because Linda did not sign the release. But this argument overlooks the crucial fact that Linda did not enter the contract with the Andersons. The contract solely listed “Arthur Lee Brown” as the purchaser. No where does it mention “Linda Jackson Brown.” While Linda testified she was the one who physically signed the contract, she admitted she signed “Arthur L. Brown,” on Arthur’s behalf. Thus, the contract did not create any contractual duties of the Andersons to Linda, either as a party or third-party beneficiary. Burns v. Washington Sav., 251 Miss. 789, 796, 171 So.2d 322, 325 (1965) (holding that in order to maintain an action for breach of contract as a third-party beneficiary to the contract, “the right of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself’). And because Linda was not a party or third-party beneficiary to the contract, she had no right to maintain a cause of action based on the contract. Id. at 798-99, 171 So.2d at 326. The circuit judge properly granted a directed verdict dismissing Linda’s claim against the Andersons.

CONCLUSION

¶ 17. Viewing the facts in the Browns’ favor, we find they failed to create a factual issue as to why the Andersons should be liable for the Browns’ dissatisfaction with the home they purchased. The Andersons gave Arthur the opportunity to forego closing on the house if an inspection revealed the house’s systems were not in working order. The Andersons also completed the closing based on Arthur’s representation that the house’s systems were in working order.

¶ 18. Arthur accepted the home “as is” without a home inspection. And he presented no evidence that the Andersons contributed in any way to his failure to obtain a home inspection prior to closing. Thus, the circuit court correctly held the Browns failed to provide any evidence the Andersons had breached the sales contract.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . Section 14 of the contract for sale provided:
      PRE-CLOSING INSPECTION: Seller warrants that all plumbing, electric, heating and air conditioning systems, all equipment and appliances which convey with the property will be in working order on closing date or upon possession, whichever occurs first, unless specifically excluded herein. Purchaser has the right and is encouraged to make a pre-closing inspection to determine their working order. The Purchaser acknowledges that he has not relied upon any statements or representations by the undersigned Seller, Listing Firm or Selling Firm which are not herein expressed. Purchaser represents that Purchaser has inspected Property as of the date of this Purchase Agreement, and subject to the inspections allowed herein, accepts properly “as is." ...

      (Emphasis added).

      . The release stated Arthur "relievefd] RUTH EPPS REALTY, INC. from any further liability and responsibility now or in the future in regards to this property.”


text:
    Thomas WILLIAMS and Donald Williams, Appellants/Cross-Appellees v. CLAIBORNE COUNTY SCHOOL DISTRICT, Geronimo Hardwood Timber, LLC a/k/a Good Hope Timber, Inc., and Anderson-Tully Company, Appellees/Cross-Appellants.
    No. 2010-CA-01408-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.

      Wren C. Way, Vicksburg, attorney for appellants.
    Everett T. Sanders, Robert C. Latham, Natchez, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal arises from a July 30, 2010 judgment of the Claiborne County Chancery Court finding Ross Road, a road located in Port Gibson, Mississippi, is a public road and granting the Appellees’ petition for right-of-way. Thomas Williams and Donald Williams (the Williamses) argue the chancery court abused its discretion and misrepresented the law in finding Ross Road is a public road. The Claiborne County School District cross-appeals arguing the chancery court erred by failing to award damages.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 19, 2009, the Claiborne County School District (the school district), Good Hope Timber Inc., and Anderson-Tully Company filed a petition in the chancery court to confirm right-of-way. They sought a right-of-way for Ross Road against Thomas. Donald, Thomas’s brother, was added later as a party. The school district, in a separate claim, sought damages against the Williamses for the inability to lease its land located on Ross Road because of the lack of access to the land. The Williamses then filed a counterclaim arguing the portion of Ross Road running through their properties was abandoned by the Claiborne County Board of Supervisors (the Board) and is, therefore, no longer a public road.

¶ 3. A portion of Ross Road ran through properties owned by Thomas and Donald. Ross Road is the dividing line between each brother’s separate property. Over the years, two gates were erected on Ross Road, which the Williamses currently use to control cattle. One gate was in place prior to 1965, when the Williamses’ father obtained the properties, and the other gate was erected by the Williamses’ father in the 1970s. The two gates inhibit travel on the road and are the reason for of the petition for right-of-way.

¶ 4. Ross Road is a public road listed in the Claiborne County Road Registry. On June 27, 2000, pursuant to Mississippi Code Annotated section 65-7-4 (Rev. 2005), the Board adopted a road registry, which listed all public roads in the county. The following description was provided in the road registry for Ross Road:

Ross Road is located in the Northeast corner of Claiborne County in Township 13 North, Range 4 East and 5 East and being more particularly described as follows:
Beginning at the approximate Northeast corner of Section 26, T13N, R4E and runs in a Southeast direction through Section 27, Section 26, Section 7, and Section 18 to its point of terminus in the Northwest quarter of said Section 18.

A public hearing was held prior to the County’s adoption of the road registry. Pursuant to section 65-7-4(3), notice of the hearing was provided through publication. The Williamses neither attended the public hearing nor ever objected to Ross Road being listed as a public road.

¶ 5. After a trial on the merits, the chancellor entered a judgment on July 30, 2010. The chancellor found the evidence clearly established Ross Road as a public road and not the Williamses’ private property. The chancellor further found there was “no credible evidence to establish that the county has voluntarily abandoned any part of Ross Road.” Thus, the chancellor ordered the Williamses to remove the existing gates and barriers that prevent the Appellees and the public from accessing Ross Road. From that ruling, the Williamses appeal. Although the school district sought damages in the petition for right-of-way, the chancellor failed to address the issue of damages. Thus, the school district cross-appeals on that issue.

DISCUSSION

¶ 6. As a general rule, only a final judgment is subject to appeal. Jackson v. Lowe, 65 So.3d 879, 881 (¶ 6) (Miss.Ct.App.2011) (citing M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006)). A final judgment is defined as “a judgment adjudicating the merits of the controversy which settles all issues as to all the parties.” Estate of Volmer v. Patterson, 914 So.2d 1278, 1280 (¶ 9) (Miss.Ct.App.2005) (citations omitted). Although neither party addresses this jurisdictional issue on appeal, we must address it on our own initiative. Jackson, 65 So.3d at 881 (¶ 5).

¶ 7. Due to the chancellor’s failure to address the issue of damages, the ruling in this case is not considered a final judgment. However, in the absence of a final judgment, an issue may still be subject to appeal pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. Rule 54(b) states:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

¶ 8. There was no Rule 54(b) certification in this case. “Without the entry of a Rule 54(b) certificate, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action, is interlocutory.” Jackson, 65 So.3d at 881 (¶ 7) (quoting M.W.F., 926 So.2d at 900 (¶4)). Because there is no Rule 54(b) certification in this case, the case is “only appealable if the Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of Appellate Procedure[.]” Id. at 881-82 (¶ 7) (citation omitted). Otherwise, as is the case at hand, this Court has no jurisdiction to hear the case. Id.

¶ 9. The school district sought damages in the amount of $120,000 in their petition for right-of-way. At trial, the school district introduced evidence and testimony to establish the amount of damages. However, the chancellor neither addressed the issue of damages nor entered a judgment on the issue. Although the chancellor ruled on the right-of-way issue, he failed to rule on the issue of damages; thus, there was no final adjudication of all of the claims. We cannot assume the chancellor’s silence regarding the issue of damages is a final decision to deny damages.

¶ 10. The chancellor’s judgment did not adjudicate the school district’s claims for damages; therefore, the judgment is an interlocutory order. Accordingly, we are without jurisdiction to hear the appeal. Both the direct appeal and cross-appeal are dismissed for lack of jurisdiction.

¶ 11. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS/CROSS-APPEL-LEES AND APPELLEES/CROSS-AP-PELLANTS.

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

      . Claiborne County School District, Geróni-mo Hardwood Timber LLC, and Anderson-Tully Company are the Appellees involved in this appeal.

      . The petition was amended later to substitute Gerónimo Hardwood Timber LLC in place of Good Hope Timber Inc.


author: MAIN, Justice.

text:
    ALABAMA TITLE LOANS, INC. v. Kimberly C. WHITE. Accurate Adjustments, LLC, and Kevin Scott Sanders v. Kimberly C. White.
    1091642 and 1091677.
    Supreme Court of Alabama.
    July 15, 2011.
    Rehearing Denied Sept. 16, 2011.

      Caroline T. Pryor, Craig W. Goolsby, and Sarah C. Blackwood of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, for appellant Alabama Title Loans, Inc.
    Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellants Accurate Adjustments, LLC, and Kevin Sanders.
    Gregory B. Breedlove, Lucy E. Tufts, and David G. Wirtes, Jr., of Cunningham Bounds, LLC, Mobile, for appellee.
   MAIN, Justice.

Alabama Title Loans, Inc., Accurate Adjustments, LLC, and Kevin Scott Sanders, defendants in an action pending in the Mobile Circuit Court (sometimes referred to collectively as “the title-loan parties”), appeal from the trial court’s order denying their motions to compel arbitration of claims filed against them by the plaintiff, Kimberly C. White. We reverse and remand with directions.

I. Factual Background and Procedural History

On May 29, 2009, White borrowed $1,700 from Alabama Title Loans, securing the loan with a security interest in her automobile, a 2006 Nissan Sentra. Alabama Title Loans required White to surrender to it the original certifícate of title to the Nissan and a key to the Nissan and to sign a title-loan agreement. The title-loan agreement contained an arbitration clause that stated, in pertinent part:

“14. ARBITRATION PROVISION: The Arbitration provision describes when and how a Claim (as defined below) may be arbitrated. Arbitration is a method of resolving disputes in front of one or more neutral persons, instead of having a trial in court in front of a judge and/or jury. It can be a quicker and simpler way to resolve disputes. As solely used in the Arbitration Provision, the terms ‘we’, ‘us’ and ‘our’ mean the Pawnbroker (listed on the top of the first page of this Agreement), its parent companies, wholly or majority owned subsidiaries, affiliates, successors, assigns and any of their employees, officers and directors, and ‘you’ means Pledgor (listed on the top of the first page of the Agreement). These terms for the purposes of this Arbitration Provision also mean any third party providing any goods and services in connection with the origination, servicing and collection of this Agreement if such third party is named as a party by you in any lawsuit between you and us.
“(b) What Claims Are Covered: ‘Claim’ means any claim, dispute, or controversy between you and us that in any way arises from or relates to this Agreement or the Vehicle (excluding either party’s right to file and maintain a claim in an appropriate small claims court) securing this Agreement. ‘Claim’ has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). Subject to paragraph (f) below, it also includes disputes about the validity, enforceability, arbi-trability or scope of this Arbitration Provision or this Agreement. However, ‘Claim’ does not include (i) our right to enforce our security interest and to obtain possession of the Collateral by seeking a replevin judgment or by using self-help, provided such action seeks only possession of the Collateral and not a personal monetary judgment against you, or (ii) any individual action in court by one party that is limited to preventing the other party from using a self-help remedy and that does not involve a request for damages or monetary relief of any kind. But if that Claim is transferred, removed or appealed to a different court, we then have the right to choose arbitration. The parties agree that this Arbitration Agreement is not applicable to ‘small claims’ meaning those claims that either party is entitled to file and maintain in an appropriate small claims court, or your State’s equivalent. However, if that small claim is transferred, removed or appealed to a different court, we then have the right to choose arbitration.
“(1) Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts oived under this Agreement, any legal proceeding, or any use of a self-help remedy by us to collect a debt owed by you to us.... ”

(Emphasis added.)

On June 30, White paid the interest of $425 plus a late fee of $23.33 on the May loan and signed a new title-loan agreement for $1,698.33, the balance of the principal remaining on her May loan. The June title-loan agreement contained an arbitration clause identical to the one in the title-loan agreement White signed in May. On July 30, White made another interest payment of $425 and signed a new title-loan agreement for $1,697.91, the balance of the principal remaining on her June loan. The July title-loan agreement contained an arbitration clause identical to the arbitration clauses in the title-loan agreements White signed in May and June.

On August 17, 2009, White says she went to Alabama Title Loan’s office and told the employee behind the counter that she was ready to pay her loan in full. The employee told her that she would begin to prepare the paperwork, White says, and also told her to come back later in the day to pick up her original certificate of title and the key to her automobile. All the title-loan agreements White signed included the following provision: “Upon payment in full of this obligation, Pawnbroker will release any recorded lien and return the Certificate of Title to Pledgor.” White states that when she returned she paid her loan in full, using cash, and the employee returned the key and the certificate of title to the Nissan. White says that, when the certificate of title was returned to her, it reflected a discharge of the lien Alabama Title Loans had placed on her Nissan. White insists that she never returned to Alabama Title Loans.

On October 12, 2009, White borrowed $3,627.48 from Harrison Finance Company, a company that is not affiliated with Alabama Title Loans. White secured this loan by providing Harrison Finance with a security interest in her 2006 Nissan Sentra automobile. Harrison Finance obtained a lien on the Nissan and, White says, took possession of her original certifícate of title.

At some time before January 10, 2010, Alabama Title Loans contracted with Accurate Adjustments to conduct a “self-help” repossession of White’s Nissan. On January 10, White says, she happened to look out the window of her house and saw a man in her driveway preparing to attach her Nissan to a tow truck. The man was later identified as Sanders. White says she approached the passenger side of the tow truck, where an unidentified man was sitting. White states that she produced paperwork to show that her automobile title was currently being held not by Alabama Title Loans, but by Harrison Finance to secure her October 2009 loan. White says that, while she was still standing beside the open passenger-side door of the truck explaining her paperwork to the unidentified man on the passenger side, Sanders returned to the driver’s seat of the truck, put the truck in gear, and pressed the accelerator. According to White, she grabbed the passenger-side door in an effort to prevent the truck from running over her, and when she did the man in the passenger seat pulled her into the truck and physically forced her into the backseat. Sanders drove the truck to the repossession lot used by Alabama Title Loans. White says that during the trip to the repossession lot Sanders threatened her. The police were called to the lot, and, according to White, the police required Sanders to release the Nissan to her when Alabama Title Loans failed to produce the title it claimed gave it the right to repossess the Nissan.

White sued the title-loan parties, alleging assault and battery, negligence, wantonness, trespass, wrongful repossession, and conversion and alleging that Alabama Title Loans and Accurate Adjustments were vicariously liable for Sanders’s conduct. The title-loan parties filed motions to compel arbitration in which they argued that the trial court should compel White to arbitrate her claims based upon a title-loan agreement with Alabama Title Loans dated September 30, 2009, and purportedly signed by White. The September title-loan agreement contained an arbitration clause identical to the ones in the title-loan agreements White had signed in May, June, and July. The title-loan parties submitted the September 30 title-loan agreement purportedly signed by White in support of their motions to compel arbitration.

White opposed the title-loan parties’ motions to compel arbitration, contending that she did not execute a title-loan agreement with Alabama Title Loans in September 2009 and that the signature on the document produced by the title-loan parties was not her signature. In support of her opposition, she attached her affidavit, in which she testified that she did not execute a title-loan agreement on September 30, denied that the signature on the document relied on by the title-loan parties was hers, and described in detail the procedure she had followed in repaying her loan on August 17, 2009, and the circumstances surrounding her loan from Harrison Finance on October 12, 2009. White also attached a photocopy of her certifícate of title bearing a signature discharging the lien of Alabama Title Loans dated August 17, 2009. Finally, White attached an affidavit from Karen McGrew, the local branch manager of Harrison Finance, who testified that as of July 1, 2010, the date on which she executed her affidavit, Harrison Finance possessed the original certificate of title to White’s Nissan and that the title had been in the possession of Harrison Finance since October 12, 2009. McGrew also testified that Harrison Finance never would have agreed to loan funds to White if it had not been able to secure a lien on her Nissan and White had not been able to provide Harrison Finance the original certificate of title.

On the day before the hearing on the motions to compel arbitration, Alabama Title Loans filed a reply to White’s opposition to arbitration, along with documents not produced earlier. Those documents included the title-loan agreements White admits she signed in April, May, June, and July, documents purporting to be title-loan agreements signed by White in August and September, and payment receipts from May through September, all purportedly signed by White. Alabama Title Loans argued that it was entitled to demand arbitration of White’s claims based upon any of the title-loan agreements she had signed, not based only on the document dated September 30, 2009. Accurate Adjustments and Sanders joined in Alabama Title Loan’s reply. White says that because the reply was filed in the afternoon before the day the hearing on the motions to compel arbitration was scheduled, she filed her evidence in opposition in open court at the hearing. White submitted at the hearing a photograph of the door of Alabama Title Loan’s office showing its business hours and a photocopy of a record from the probate court reflecting that Harrison Finance Company held the only lien on her Nissan. After hearing argument from the parties and reviewing their supporting documentation, the trial court denied the title-loan parties’ motions to compel arbitration without making any findings of fact.

II. Standard of Review

This Court’s standard of review on an appeal from a trial court’s order granting or denying a motion to compel arbitration is well settled. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala.2003). A direct appeal is the proper procedure by which to seek review of such an order, Rule 4(d), Ala. R.App. P., and this Court will review de novo the trial court’s grant or denial of a motion to compel arbitration. Bowen, 879 So.2d at 1141. The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003). The party seeking to compel arbitration must present some evidence tending to establish its claim. Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003). Once the moving party meets that initial burden, the party opposing arbitration has the burden of presenting evidence tending to show that the arbitration agreement is invalid or that it does not apply to the dispute in question. Bowen, 879 So.2d at 1141. See also Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052-53 (Ala. 2007).

III. Analysis

This case is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”). Section 2 of the FAA provides, in pertinent part:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

“The FAA ‘provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause.” ’ ” Wolff Motor Co., 869 So.2d at 1132 (quoting Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), quoting in turn Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)).

The title-loan parties had the initial burden of producing evidence tending to show that a contract providing for arbitration exists and that the underlying transaction involved interstate commerce. Title Max, 973 So.2d at 1053. White does not dispute that the title-loan agreement involved interstate commerce (see supra note 2). In support of their initial motions to compel arbitration, the title-loan parties produced the September 30, 2009, title-loan agreement they claim White signed, along with evidence indicating that the transaction involved interstate commerce. Once the title-loan parties met their initial burden, White had the burden of presenting evidence tending to show that the title-loan agreement containing the arbitration clause was invalid or that it did not apply to this dispute. Id. White emphatically denied that she executed a title-loan agreement with Alabama Title Loans in September 2009, and she asserted that the signature on the document produced by the title-loan parties was forged. She offered affidavit testimony that she paid her loan in full in August 2009 and that she later obtained a loan from Harrison Finance that required that she surrender her original certificate of title and that any prior liens on her automobile must have been discharged for Harrison Finance to make the loan. After White argued that the September title-loan agreement was a forgery, the title-loan parties produced other title-loan agreements and payment receipts purportedly signed by White on which they attempt to rely. White insists that she did not sign any title-loan agreements after July 2009, that she repaid her loan in full in August 2009, and that she did not sign any payment receipts after August 17, 2009.

The title-loan parties contend that the repossession of White’s Nissan was a result of the relationship between Alabama Title Loans and White that was established through the various title-loan agreements executed by White from May through September, without which, they say, there never would have been a repossession. They maintain that each title-loan agreement from May through September contains a valid arbitration clause and that White does not dispute that she executed the agreements dated May, June, and July. Therefore, the title-loan parties argue, even if White repaid her loan on August 17, she still should be compelled to arbitrate her claims pursuant to the arbitration clause in the May, June, or July title-loan agreement because the subsequent repossession is a result of the relationship between the parties established by the various title-loan agreements and relates back to each title-loan agreement and transaction to which White and Alabama Title Loans were parties. The title-loan parties argue that they are entitled to enforce the arbitration clause contained in any of the agreements White admits to having signed. White argues that she cannot be compelled to arbitrate her claims pursuant to the arbitration clause contained in the May, June, or July title-loan agreement because, she argues, each of those contracts was extinguished when she either paid the interest and signed a new title-loan agreement for another month or paid the amount due on the loan in full. She contends that a general arbitration clause in an expired contract cannot be used to compel arbitration in a dispute that did not arise during the term of the contract or did not involve a right that accrued under the contract. She also argues that she cannot be compelled to arbitrate her claims pursuant to the September title-loan agreement because a trial court must first determine whether that agreement is a forgery or a valid contract.

The dispositive questions in this case are whether the arbitration clause in the May, June, or July title-loan agreement is valid and enforceable against WTiite, who admitted having signed each of those title-loan agreements, and, if so, whether the language of the arbitration clause is broad enough to encompass White’s claims against the title-loan parties. We answer both questions in the affirmative.

“Where contract terms are unambiguous, we do not look beyond the plain language of the contract to second-guess the intentions of the parties; nor will we speculate about what may have been the subjective expectations of the parties. See Harbison v. Strickland, 900 So.2d 385, 391 (Ala.2004) (‘ “[I]t is elementary that it is the terms of the written contract, not the mental operations of one of the parties, that control its interpretation.” ’ (quoting Kinmon v. J.P. King Auction Co., 290 Ala. 323, 325, 276 So.2d 569, 570 (1973))); Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004) (‘ “[A] court should give the terms of the agreement their clear and plain meaning and should presume that the parties intended what the terms of the agreement clearly state.’” (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998)))....”

Title Max, 973 So.2d at 1054-55 n. 1.

The arbitration clause provides that it “shall survive the repayment of all amounts owed under this Agreement,” thus evidencing the intent of the parties that any dispute that might arise between them should be arbitrated regardless of whether the amount borrowed pursuant to the title-loan agreement had been repaid. Therefore, the title-loan parties were entitled to seek to compel arbitration pursuant to any title-loan agreement White admitted signing, and we need not decide whether the August or September title-loan agreements presented by Alabama Title Loans were valid contracts.

“[The] language of the arbitration provision in this case is not ambiguous. Under the plain language of the provision, [the plaintiffs] agreed to arbitrate all disputes ‘arising from or relating to’ the contract. ‘This Court has held [that] where a contract signed by the parties contains a valid arbitration clause that applies to claims “arising out of or relat ing to ” the contract, that clause has a broader application than an arbitration clause that refers only to claims “arising from” the agreement.’ ”

Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 505 (Ala.1999) (quoting Reynolds & Reynolds Co. v. King Autos., Inc., 689 So.2d 1, 2-3 (Ala.1996)). The arbitration clause contained in each of the title-loan agreements White signed or that the title-loan parties say she signed defines the term “claim” not only as “any claim, dispute, or controversy between you and us that in any way arises from or relates to this Agreement ...,” but also as “any claim, dispute, or controversy between you and us that in any way arises from or relates to ... the Vehicle.” The broad language of the arbitration clause in this case makes no distinction between claims that arise from or relate to either the agreement or the vehicle; all such claims are included within the provision. Furthermore, “ ‘[t]he federal policy favoring arbitration is so strong that, as a matter of law, “any doubts concerning the scope of arbitrable issues should be resolved in. favor of arbitration.” ’ ” Parkway Dodge, Inc. v. Hawkins, 854 So.2d 1129, 1132 (Ala.2003) (quoting Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458, 463 (Ala.2002), quoting in turn Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).

As this Court has recently stated:

“The freedom of parties to contract is an important public policy written into the state constitution and adopted by the people of Alabama. It is a significant liberty interest that is expressly protected in the constitution. This Court has recognized that ‘ “the state constitution protects contractual obligations from impairment by the legislature or the judiciary, and the right of freedom of contract is a cherished one that courts are bound to protect.” ’ Ex parte Life Ins. Co. of Georgia, 810 So.2d 744, 751 (Ala.2001) (quoting Sutton v. Epperson, 631 So.2d 832, 835 (Ala.1993)).
“ ‘Even under what may seem to be the most compelling circumstances, [courts] may not “refine away the terms of the contract that are expressed with sufficient clarity to convey the intent and meaning of the parties.” Kinnon v. Universal Underwriters Ins. Co., 418 So.2d [887,] 888 [ (Ala.1982) ]. “It is not a function of the courts to make new contracts for the parties, or raise doubts where none exist.” Commercial Union Ins. Co. v. Rose’s Stores, 411 So.2d 122, 124 (Ala.1982).’ ”

Title Max, 973 So.2d at 1055 n. 1 (quoting Johnson v. Cervera, 508 So.2d 257, 259 (Ala.1987)).

We conclude that White’s claims fall squarely within the purview of the broadly worded arbitration clause in the title-loan agreements executed by White and that the trial court erred when it denied the title-loan parties’ motions to compel arbitration of White’s claims against them. We therefore pretermit consideration of the other arguments raised by the parties.

IV. Conclusion

Based upon the broad language of the arbitration clause in the title-loan agreements executed by White, we hold that the trial court should have granted the title-loan parties’ motions to compel arbitration. We therefore reverse the trial court’s order denying those motions and remand the case for that court to enter an order granting the title-loan parties’ motions to compel arbitration.

1091642 — REVERSED AND REMANDED WITH DIRECTIONS.

1091677 — REVERSED AND REMANDED WITH DIRECTIONS.

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

      . White had borrowed $500 from Alabama Title Loans on April 30, 2009, and had executed a title-loan agreement. It is undisputed that she paid both the interest and principal on the April loan in full before she entered into the loan arrangement on May 29 that began the series of events underlying these appeals.

      . The title-loan parties also submitted in support of their motions to compel arbitration an affidavit from an officer of Alabama Title Loans detailing the ways in which the business activities of Alabama Title Loans affect interstate commerce. Because White does not argue that the transactions at issue in this case do not affect interstate commerce, it is unnecessary for this Court to discuss the effect of the transactions on interstate commerce.

      . White contends' that the August title-loan agreement and the payment receipts dated August 31 and September 30 were forged. The title-loan parties dispute her contention as to these documents as well.

      . We note that Accurate Adjustments and Sanders argue in their brief that, as nonsigna-tories to the title-loan agreements, they are nevertheless entitled to compel White to arbitrate her claims against them. White does not argue that Accurate Adjustments and Sanders are not entitled to compel arbitration pursuant to a valid agreement; therefore, we need not address this argument.


author: MURDOCK, Justice.

text:
    Ex parte Ernest Larry DONALDSON and Harris Huffman, Jr. (In re Marie Jemison v. Ernest Larry Donaldson et al.).
    1100768.
    Supreme Court of Alabama.
    Sept. 16, 2011.

      C. Winston Sheehan, Jr., and Kathryn W. Drey of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitioners.
    Paul W. Patterson II of Patterson Comer Law Firm, Tuscaloosa, for respondent.
   MURDOCK, Justice.

Dallas County Sheriff Harris Huffman, Jr., and Dallas County Deputy Sheriff Ernest Larry Donaldson petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its order denying their motion to dismiss a complaint filed by Marie Jemison alleging multiple claims against them in their individual capacities. We grant the petition and issue the writ.

I. Facts and Procedural History

Jemison alleged that on August 23, 2008, she was traveling on Lauderdale Avenue in Selma while, at the same time, Deputy Donaldson “was operating a motor vehicle in the line and scope of his agency and/or employment with the Dallas County Sheriffs Department.” According to Jemison, as she entered the intersection of Lauder-dale Avenue and Dallas Avenue, she was struck by Deputy Donaldson’s vehicle and, as a result, sustained serious personal injuries.

Jemison sued Deputy Donaldson, Donaldson’s supervisor Sheriff Huffman, the Dallas County Sheriffs Department, and the Dallas County Commission. Among other claims, Jemison alleged negligence and wantonness against Deputy Donaldson for the manner in which he operated his vehicle, negligent entrustment and negligent hiring, training, supervision, and retention against Sheriff Huffman, and vicarious liability against the Dallas County Sheriffs Department and the Dallas County Commission.

The defendants filed a motion to dismiss all claims, asserting a lack of subject-matter jurisdiction and a failure to state a claim upon which relief could be granted. Deputy Donaldson and Sheriff Huffman contended that they were immune from suit under the doctrine of State immunity, as well as under the doctrine of State-agent immunity. The Dallas County Sheriffs Department argued that it was not a suable entity. The Dallas County Commission contended that Deputy Donaldson was employed by Sheriff Huffman, not by the Commission, and that, therefore, the Commission could not be liable for Deputy Donaldson’s actions.

The Dallas Circuit Court granted the motion to dismiss in part, dismissing all Jemison’s claims against the Dallas County Sheriffs Department and the Dallas County Commission. The circuit court refused to dismiss Jemison’s claims against Deputy Donaldson and Sheriff Huffman and offered no explanation for the refusal.

Deputy Donaldson and Sheriff Huffman petition this Court for a writ of mandamus, arguing that they have a clear legal right to dismissal of the claims against them based on State immunity or, alternatively, on State-agent immunity.

II. Standard of Review)

“A 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)). “It is well established that mandamus will lie to compel a dismissal of claim that is barred by the doctrine of sovereign immunity.” Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004). “A ruling on a motion to dismiss is reviewed without a presumption of correctness.” Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.2003).

III. Analysis

Deputy Donaldson and Sheriff Huffman contend that Jemison’s claims against them are barred by the doctrine of State immunity. Before analyzing this contention, we note that Jemison does not contest their contention with respect to Sheriff Huffman. Therefore, we proceed to examine whether Deputy Donaldson possesses State immunity as to the claims Jemison asserted against him. In order to do so, we must first examine the nature of the immunity afforded sheriffs under Alabama law.

“Article I, § 14, Const, of Ala.1901, states that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ This constitutional provision ‘has been described as a “nearly impregnable” and “almost invincible” “wall” that provides the State an un-waivable, absolute immunity from suit in any court.’ Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872 (Ala.2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994)).
“Article V, § 112, Ala. Const.1901, provides in part that ‘[t]he executive department’ of the State of Alabama ‘shall consist of a governor ... and a sheriff for each county.’ Based on §§ 14 and 112 of the Alabama Constitution, this Court concluded in Parker v. Amerson, 519 So.2d 442, 442-43 (Ala.1987), that, aside from certain recognized exceptions not applicable here, ‘[a] sheriff is an executive officer of the State of Alabama, who is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office....’”

Ex parte Shelley, 53 So.3d 887, 890-91 (Ala.2009) (footnote omitted).

This Court recently noted:

“Generally, sheriffs enjoy State immunity under § 14 from actions against them in their individual capacities for acts they performed in the line and scope of their employment. [Ex parte ] Davis, 930 So.2d [497,] 500-01 [(Ala.2005) ] (noting in an action against a deputy sheriff that ‘a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment’); see also [Ex parte ] Hale, 6 So.3d [452,] 457 [(Ala.2008)] (holding that acts by a sheriff, which gave rise to the plaintiffs claim against him, were taken ‘in the execution of his duties as sheriff,’ and, thus, the sheriff was immune under § 14 from an action seeking damages against him in his individual capacity). This immunity is not unlimited and, in certain instances, § 14 does not protect sheriffs from an action against them in their individual capacity.”

Suttles v. Roy, 75 So.3d 90, 94 (Ala.2010) (emphasis omitted).

“A sheriff is entitled to State immunity because of his status as a constitutional officer as detailed in Art. V, § 112, Ala. Const.1901. Suits against such officers for actions taken in the line and scope of their employment inherently constitute actions against the State, and such actions are prohibited by § 14. See [Ex parte ] Haralson, 853 So.2d [928,] at 932 [ (Ala.2003) ] (reiterating that ‘[a] sheriff is an executive officer of this State pursuant to the Alabama Constitution of 1901, Art. V, § 112 [and a]s an executive officer, a sheriff is immune from being sued in the execution of the duties of his office under Art. I, § 14, Alabama Const.1901’).”

Shelley, 53 So.3d at 895.

As to deputy sheriffs, this Court has held that

“deputy sheriffs are immune from suit to the same extent as sheriffs. ‘In general, the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the sheriff.’ Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (11th Cir.1990), quoted with approval in Drain v. Odom, 631 So.2d 971, 972 (Ala.1994), and Wright v. Bailey, 611 So.2d 300, 303 (Ala.1992). ‘[Under Alabama law, a] deputy is legally an extension of the sheriff. If the deputy’s acts are generally considered the acts of the sheriff, it is logical that those acts should enjoy the same immunity covering the sheriffs own acts.’ Carr, at 1526, quoted with approval in Wright v. Bailey, at 303.”

Alexander v. Hatfield, 652 So.2d 1142, 1144 (Ala.1994). See also Shelley, 53 So.3d at 891-92 (explaining the alter ego status of deputy sheriffs as the basis for extending to them State immunity under § 14 of the Alabama Constitution).

Deputy Donaldson notes that Jemison’s complaint repeatedly acknowledges that the accident occurred while Donaldson was acting in the line and scope of his employment as a deputy sheriff. In the “Statement of the Parties” in the complaint, Je-mison declared that

“[a]t all times relative to the actions which are the basis of the claims made in this complaint, Defendant Ernest Larry Donaldson[ ] was employed by the Defendant Dallas County Sheriffs Department and/or Office and Dallas County Commission as an officer — and was acting within the line and scope of his employment.”

(Emphasis added.) In the “Statement of Fact[s]” in the complaint, Jemison stated that “[o]n or about August 28, 2008, Ernest Larry Donaldson was operating a motor vehicle in the line and scope of his agency and/or employment with the Dallas County Sheriffs Department and/or Office in Selma, Alabama.” (Emphasis added.) In count 1 of the complaint — alleging negligence/wantonness — Jemison explained that “[o]n or about August 23, 2008, on a public roadway, Lauderdale Avenue at the intersection of Dallas Avenue in Dallas County, Alabama, Defendant Ernest Larry Donaldson was operating a vehicle for Dallas County Sheriffs Department and/or Office.” (Emphasis added.) She also stated that at the time of the accident

“Defendant, Ernest Larry Donaldson, was an agent, servant and/or employee of the Defendant, Harris Huffman, Jr., Dallas County Sheriffs Department and/or Office and Dallas County Commission, and was acting within the line and scope of his agency, service and/or employment for the Defendant, so that the Defendant is vicariously liable for the said negligence and wantonness that caused injury and harm to [Jemison].”

(Emphasis added.) In count 3 of the complaint — alleging negligent hiring, supervision, training, and retention — Jemison likewise averred that Deputy Donaldson was acting “within the line and scope of his agency, service and/or employment with the Defendants, Harris Huffman, Jr., Dallas County Sheriffs Department and/or [Office] and/or Dallas County Commission.” (Emphasis added.) Finally, in count 6 of the complaint — alleging respon-deat superior/vicarious liability — Jemison alleged that

“[t]he Defendants, Harris Huffman, Jr., Dallas County Sheriffs Department and/or Office and/or Dallas County Commission, is liable to [Jemison] under the respondeat superior doctrine and vicarious liability. At all times, Defendant Donaldson was acting in the line and scope of his employment with Dallas County Sheriff’s Department and/or Office, Harris Huffman, Jr., and/or Dallas County Commission.”

(Emphasis added.)

Because sheriffs are constitutional officers and because deputy sheriffs act on behalf of sheriffs as alter egos, a claim for monetary damages made against a deputy sheriff in his or her individual capacity is barred by the doctrine of State immunity whenever the acts that form the basis of the alleged liability were being performed within the line and scope of the deputy sheriffs employment. Jemison admitted in her complaint that Deputy Donaldson was acting in the line and scope of his employment as a Dallas County sheriffs deputy when his vehicle collided with her vehicle. Therefore, Deputy Donaldson is entitled to State immunity for the action that is the basis of Jemison’s claims against him. As Deputy Donaldson observes, Ex parte McWhorter, 880 So.2d 1116 (Ala.2003), and Ex parte Haralson, 871 So.2d 802 (Ala.2003) — both of which also involved motorist collisions with deputy sheriffs who were acting in the line and scope of their employment when the accidents occurred — support this conclusion.

Jemison contends that this conclusion does not follow because Deputy Donaldson is not entitled to State-agent immunity as articulated in Ex parte Cranman, 792 So.2d 392 (Ala.2000). Jemison’s argument is limited specifically to the fact, according to Jemison, that Deputy Donaldson acted “beyond his authority” when he failed to “clear the intersection” because, in doing so, he “failfed] to discharge duties pursuant to detailed rules and regulations, such as those stated on a checklist.” Jemison’s brief, at 23 (citing Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).

In making this argument, Jemison misunderstands our immunity law.

“The doctrine of State immunity under § 14 of the Alabama Constitution, insofar as it operates to provide absolute immunity to certain State actors with respect to suits against them in their individual capacity for money damages, is a doctrine that is applicable to constitutional officers. Distinguishing between the immunity afforded in this regard by the doctrine of State immunity and that afforded by the doctrine of State-agent immunity, this Court has observed:
“ ‘When determining whether a State interest in an action against a state official or employee in his or her individual capacity is sufficient to trigger the immunity granted by § 14, our cases distinguish between the standards applied to those state agents or employees whose positions exist by virtue of legislative pronouncement and those who serve as the constitutional officers of this State. We have held that State-agent immunity may bar an action against a state agent or employee under the principles announced in Ex parte Cranman, 792 So.2d 392 (Ala.2000).... However, this Court has consistently held that a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment.’
“Ex parte Davis, 930 So.2d 497, 500-01 (Ala.2005) (emphasis added).”

Shelley, 53 So.3d at 887. As this Court also has explained:

“This State immunity afforded sheriffs and deputies is not affected by this Court’s decision on State-agent immunity in Ex parte Cranman, 792 So.2d 392 (Ala.2000): ‘We do not deal here with the absolute immunity of witnesses, judges, prosecutors and legislators, nor do we overrule Ex parte Purvis, 689 So.2d 794 (Ala.1996).’ 792 So.2d at 396 n. 2; see also Ex parte Haralson, 853 So.2d [928,] 930 n. 1 [(Ala.2003)] (‘In Cranman, although we restated the rule governing State-agent immunity, we did not address the State immunity afforded to sheriffs and deputy sheriffs for actions taken while working in the line and scope of their employment, and we did not overrule Ex parte Purvis, 689 So.2d 794 (Ala.1996).’).”

Ex parte Sumter County, 953 So.2d 1235, 1239-40 (Ala.2006).

In other words, whether a deputy sheriff would be entitled to State-agent immunity is immaterial to the question whether a deputy sheriff is entitled to State immunity. State immunity and State-agent immunity are “two different forms of immunity,” and those who qualify for State immunity “are treated differently under Alabama law” because they are constitutional officers. Suttles, 75 So.3d at 93-94. Thus, Jemison’s attempt to incorporate the analysis required for determining State-agent immunity into the analysis for determining State immunity is fruitless.

IV. Conclusion

Under the circumstances of this case, in which it is undisputed that Deputy Donaldson was acting in the line and scope of his employment when he performed the actions that are the basis of Jemison’s claims against him, Deputy Donaldson is entitled to State immunity. Therefore, the trial court erred in failing to grant the motion to dismiss all Jemison’s claims against Deputy Donaldson and Sheriff Huffman.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, BOLIN, and WISE, JJ., concur.

      . Exceptions to State immunity for sheriffs (and their deputies) that have been recognized — but that are not applicable in this case — include actions brought
      " ‘(1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.’ ”

        Alexander v. Hatfield, 652 So.2d 1142, 1143 (Ala.1994) (quoting Parker v. Amerson, 519 So.2d 442, at 443 (Ala.1987)). In addition,
      "[o]ur decisions have recognized another category of actions against State officials in which the official is not shielded from immunity, i.e., ' "valid inverse condemnation actions brought against State officials in their representative capacity.” ' Alabama Dep't of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 840 (Ala.2008) (other citations omitted). It does not appear that this Court has ever had occasion to consider whether this latter category would, in an appropriate circumstance, apply to a sheriff.”

        Shelley, 53 So.3d at 891 n. 4.


author: WOODALL, Justice.

text:
    ROBERT S. GRANT CONSTRUCTION, INC., et al. v. FRONTIER BANK.
    1100565.
    Supreme Court of Alabama.
    Sept. 16, 2011.
    Jim Pino of Jim Pino & Associates, P.C., Pelham, for appellants.
    C. Lee Reeves, George M. Neal, Jr., and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham; and J. Frank Head of Wallace, Ellis, Fowler & Head, Columbia-na, for appellee.
   WOODALL, Justice.

Robert S. Grant Construction, Inc. (“the corporation”), Robert S. Grant (“RSG”), and Pam E. Grant (“PEG”) (the corporation, RSG, and PEG are hereinafter collectively referred to as “the Grants”) appeal from an order striking their jury demands in an action commenced by Frontier Bank (“the bank”) against the Grants and others alleging breach of contract, fraud, and the fraudulent conveyance of real estate. We dismiss the appeal.

This case arises out of a loan from the bank to the corporation. The loan ultimately involved a number of related agreements, including a construction-loan agreement (“the agreement”) between the corporation and the bank and a series of “continuing guaranties” (“the guaranties”), whereby RSG personally guaranteed repayment of the loan. Each of the guaranties contained the following provision:

“24. JURY TRIAL WAIVER. LENDER AND GUARANTOR HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS GUARANTY.”

(Capitalization in original.) The agreement contained a similar provision:

“24. JURY TRIAL WAIVER. BORROWER AND LENDER HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS AGREEMENT.”

(Capitalization in original.)

On May 19, 2010, Frontier sued the Grants. As last amended, its complaint essentially alleged (1) breach of contract obligations and default on the loan against the corporation; (2) breach of the guaranties against RSG; (3) liability under the Alabama Uniform Fraudulent Transfer Act, Ala. Code 1975, § 8-9A-1 et seq. (“the Act”); (4) misrepresentation and suppression against RSG; and (5) fraud and conspiracy against RSG and PEG. The Grants filed an answer “demanding] a trial by [a] struck jury as to all issues in this case.”

Frontier moved, largely on the basis of the waiver provisions in the guaranties and the agreement, to strike the jury demands of the corporation and RSG as to all Frontier’s claims against'them. It also moved to strike the jury demand of PEG as it related to the claim against her under the Act. On January 13, 2011, the trial court granted Frontier’s motion and purported to certify the order granting the motion as a final judgment pursuant to Ala. R. Civ. P. 54(b). From that order, the Grants appealed.

On appeal, the Grants concede that the waiver provisions in the guaranties and the agreement preclude a jury trial on the breach-of-contract claims. They contend, however, that the tort claims neither “arise out of’ nor are “based on” the guaranties or the agreement. They also insist that the claims asserting liability under the Act are triable to a jury. However, we are unable to reach the merits of the Grants’ contentions, and we dismiss the appeal because, despite the invocation of Rule 54(b), the trial court’s order is not final and appealable.

It is well settled that, “[i]f an order does not completely dispose of or fully adjudicate at least one claim, a court’s Rule 54(b) certification of the order is not effective.” Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001) (emphasis added). It is clear to this Court that a jury demand is not a “claim.” See Sledge v. IC Corp., 47 So.3d 243 (Ala.2010). See also Howard v. Parisian, Inc., 807 F.2d 1560, 1566 (11th Cir.1987) (“Because an order denying a jury demand does not dispose entirely of a claim but leaves the claim pending for a bench trial, it is an interlocutory order.... Therefore, the order was not subject to certification under Rule 54(b)[, Fed R.Civ.P.].”). Because a jury-trial demand is not a claim contemplated to be made final by Rule 54(b), the purported certification order was ineffective to confer appellate jurisdiction over this case.

It is only in the context of an otherwise final and appealable judgment that an interlocutory order denying a jury demand merges with the final judgment and becomes reviewable by way of appeal. In other words, “[a] ‘party may have review of the denial of a jury on an appeal from the final judgment.’ ” Bowdry v. United Airlines, Inc., 58 F.3d 1483, 1489 (10th Cir.1995) (quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 2322, at 175 (1995)) (“[T]he summary judgment in this case disposed of these appellants’ only remaining claim, completely terminating their action. Once certified under Rule 54(b), that judgment was final. All prior interlocutory judgments affecting these appellants merged into the final judgment and became appealable at that time.”). See also Nationwide Mut. Fire Ins. Co. v. Pabon, 903 So.2d 759, 765 (Ala.2004) (“This Court has addressed the denial of a jury demand on appeal. See Poff v. Hayes, 763 So.2d 234 (Ala.2000) (on appeal from a judgment entered after a bench trial, this Court held that the trial court erred in striking the plaintiffs demand for a jury trial); Baggett v. Sims, 387 So.2d 792 (Ala.1980) (on appeal from a judgment entered after bench trial, this Court held that the trial court erred in overruling the plaintiffs demand for a jury trial). Under the procedural posture of this case [appeal from a judgment entered on a jury verdict], the trial court was within its right to revise the earlier order setting the coverage issue for a nonjury trial.”).

This case is clearly distinguishable from Pabon, Poff, and Sims in that this appeal does not come to us in the context of an otherwise final judgment. Because the Rule 54(b) certification was ineffective to confer appellate jurisdiction on this Court, the appeal is dismissed.

APPEAL DISMISSED.

MALONE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . See James v. Rane, 8 So.3d 286, 288 (Ala.2008) (absence of a final judgment deprives the appellate court of jurisdiction); Ex parte PinnOak Res., LLC, 26 So.3d 1190, 1198 (Ala.2009) (appellate courts notice the absence of jurisdiction ex mero motu).