author: WILSON, J.,

text:
    Jeffrey Lance HILL a/k/a Jeffrey L. Hill a/k/a Jeff Hill a/k/a Jeffrey Hill a/k/a Jeffrey Scott Hill, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00918-COA
    Court of Appeals of Mississippi.
    DISPOSITION: 04/04/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN E. PRIDGEN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART

      BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. A jury in the Oktibbeha County Circuit Court found Jeffrey Hill guilty of possession of a firearm on educational property in violation of Mississippi Code Annotated section 97-37-17 (Rev. 2014). Hill was a student at Mississippi State University and a resident of the Aiken Village student apartment complex at the time of the offense. He was convicted of possessing a firearm in his apartment at Aiken Village. The court sentenced Hill to three years in the custody of the Mississippi Department of Corrections (MDOC). Hill was then released immediately based on credit for time served.

¶2. Hill’s conviction follows his third trial on the charge. Hill’s first trial ended in a mistrial because of a hung jury. In Hill’s second trial, the jury found him guilty, but the Mississippi Supreme Court reversed the conviction after concluding that the trial court’s rulings requiring appointed counsel to remain as advisory counsel despite a conflict of interest violated Hill’s right to counsel. Hill v. State, 134 So.3d 721, 729-30 (¶ 35) (Miss. 2014). On remand, Hill was tried and convicted again.

¶ 3. Hill’s appointed counsel in the present appeal filed a “Lindsey brief,” certifying that she has examined the record thoroughly and identified no arguable issues to raise on appeal. See Lindsey v. State, 939 So.2d 743 (Miss. 2005). Hill subsequently filed a pro se brief alleging numerous errors. Having made our own independent and thorough review of the record, we find that Hill’s arguments are without merit and that there are no other issues that warrant reversal. Accordingly, we affirm Hill’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 4. Relevant facts and procedural history related to Hill’s first two trials were recounted in the majority opinion and concurring opinion in Hill’s prior appeal to the Mississippi Supreme Court:

In September 2010, the Mississippi State University Police Department received a report that Hill possibly was in possession of a firearm at Aiken Village Apartments on the campus of Mississippi State University. The department sent Detective Steve Westbrook and two other officers to investigate the report. When the officers arrived at Hill’s apartment, Hill’s roommate allowed them to enter. Once the officers were inside, Hill entered the room and spoke with the officers. Out of concern for officer safety, Westbrook asked Hill if there were any weapons in his bedroom, and Hill responded that he had a rifle in his closet. Westbrook and Hill retrieved the weapon together. Hill was then arrested for having a firearm on campus property. Hill told the officers that he had no other firearms, but that he ... had ammunition in his vehicle.

Hill, 134 So.3d at 722 (¶ 4).

Hill’s first court-appointed attorney [ (Mark Williamson) ] was allowed to withdraw after Hill had filed a bar complaint and accused [Williamson] of attempting to “sabotage” his case. [Stephanie] Mallette was appointed in [Williamson’s] stead, and Hill continued to file various pro se motions and letters, as he had from the beginning of the case. The first trial was set for January 31, 2012, and on January 9, 2012, [Hill] filed several documents with the circuit court, including a letter indicating that he was “firing” his attorney. In the letter, Hill made numerous accusations against Mallette, alleging, among other things, that she had filed motions on his behalf without his consent, that she had refused to interview his witnesses, and that she had allegedly accused him of murdering two men. ... Hill wrote, “I will not be seeking another public defender. I choose to seek my own counsel.”
On January 25, 2012, Mallette requested that she be allowed to withdraw and that Hill be permitted to obtain his own counsel. Her motion cited a personal conflict of interest based on the letter’s accusations and Hill’s having filed a complaint against her with the Mississippi Bar. The trial court granted Mal-lette’s motion in an “Order Allowing Withdrawal.” The order noted that there had been a hearing on the matter and announced that Mallette “is withdrawn from her representation of Hill.” Yet, the very next sentence read, “Stephanie Mallette is hereby appointed to represent ... Hill as standby counsel and assist him with legal and procedural matters as necessary!.]”
The order ... granting Mallette’s motion to withdraw and then appointing her as standby counsel was entered on January 31, 2012, the day of Hill’s first trial ....

Id. at 728 (¶¶ 29-31) (Kitchens, J., concurring) (footnotes omitted).

¶ 5. Hill represented himself at his first trial, with Mallette serving as court-appointed advisory counsel. The trial ended in a mistrial because of a hung jury. Hill also represented himself, and Mallette served as advisory counsel, at his second trial in May 2012. His second trial proceeded as follows:

There was no dispute that Hill was in possession of a World War II Era Russian Mosin Nagant rifle, in working condition, and 440 rounds of ammunition, while living at the Aiken Village Apartments. Hill’s defense at trial centered completely on his belief that Aiken Village Apartments were not located on the campus of Mississippi State University (MSU).
During its case-in-chief, the State displayed a campus map and established that Aiken Village Apartments were represented on the map. ... Vicky Gallegos, the Housing Assignment Specialist for MSU Housing and Residence Life, [testified] that any student obtaining housing through the university must go online, access his personal student account with his student ID and password, read the housing contract and terms and conditions, then select that the terms have been read and agreed to. Further, the student is instructed to read the “Rules and Regulations” and “Prohibited Items” sections of the web page, which includes the instruction that no firearms, ammunition, and other forms of weapons are allowed on any part of the campus, including student housing. The State admitted evidence demonstrating how these rules were displayed to the student. Gallegos confirmed that Hill could not have applied for housing without reading and acknowledging these rules and that the university received electronic confirmation when Hill acknowledged the terms and regulations. She also provided that the documents explain the complete applicability of the rules to overflow housing.
On cross-examination, Hill sought to show that he was never given a housing contract that specifically stated that Aiken Village Apartments were part of the overflow accommodations or that the apartments were owned by the university. Testimony revealed that Hill was asked by the university and consented to being moved to an overflow accommodation. Exhibits were entered into evidence indicating that Hill had signed his inventory form for Aiken Village, which displayed the university’s name on the form. Also revealed was the fact that Hill’s housing costs were paid from Hill’s student account with the university. Photos also were introduced showing the apartment’s sign including the term “University Housing.”
Hill testified at trial to his belief that he did not live on university property by the fact that the apartments had a Starkville, Mississippi, mailing address, unlike residence halls, which have a Mississippi State, Mississippi, address, with different zip codes. Among other reasons, Hill claimed the apartments did not have the strict parking signs seen on campus, yet he had received a parking ticket for not having a parking decal. He also stated that Aiken Village appears to be outside of campus because he passed the ten-foot wall displaying “Mississippi State University” en route to the apartments, which gave him the impression that he was exiting the campus. Further, he explained that he knew firearms were prohibited on campus, so he had never before brought the rifle from his home in Arkansas until he moved into Aiken Village because of his belief that he was not on university property. Hill stated that he had obtained the rifle for hunting, but testimony from Detective West-brook confirmed that Hill did not have a hunting license.
Also during the trial, it became known for the first time that a confidential informant originally had alerted the police about Hill’s possible possession of the firearm. Once the existence of a confidential informant became known, Mal-lette argued to the trial court the validity of keeping the informant’s identity and statement confidential. Mallette also raised the issue of a discovery violation, since the existence of the informant never before -had been mentioned. The State responded that it did not have to reveal the identity of the informant, because Detective Westbrook was the eyewitness to the crime. Prior to the incident, the informant merely had reported to authorities that Hill was possibly in possession of a firearm. After much debate, the trial court ultimately ruled that no discovery violation had occurred and ordered that the police report be provided to the defense after any information regarding the identity of the informant had been redacted. The trial court ordered that a nonredaeted copy would be preserved for the record under seal. The State, however, failed to properly redact a portion of the report that was given to Mallette, thereby revealing to Mallette that the informant was Hill’s roommate.
Afterward, Mallette moved the trial court to allow her to withdraw from representing Hill. The trial court heard Mallette’s motion in chambers, on the record. Mallette told the trial court that she could not fulfill her ethical obligation to Hill and as well as her ethical obligation to the trial court not to reveal the informant’s identity as Hill’s roommate. She said she would have advised Hill to call his roommate as a witness, had she been given the report before the trial began. Mallette also explained that Hill previously had consulted with her about when to rest his case, and she was concerned that if he asked her again she would have to advise him to move for a mistrial in order to call the roommate as a witness.
At that point, the trial court considered appointing new advisory counsel, and called in another public defender, Mark Williamson, to represent Hill through the end of trial. The trial court informed Williamson of the conflict that had arisen in Mallette’s representation of Hill, and informed him of what his role would be as Hill’s advisory counsel. Williamson informed the trial court that his first advice for Hill, as his attorney, would be to ask for a mistrial, because he could not act as Hill’s advisory counsel knowing nothing about the case. The court then instructed Mallette that she would remain as advisory counsel and that she should inform Hill that, because of a conflict, she could not advise him on whether to rest his case, if he asked her that specific question.

Id. at 723-24 (¶¶6-12). After both sides finally rested, the jury found Hill guilty of possessing a firearm on educational property. On appeal, the Supreme Court reversed and remanded for a new trial, finding that the trial court’s- rulings deprived Hill of his right to conflict-free counsel. See id. at 726-27 (¶¶ 24-25).

¶ 6. On remand, the trial court appointed Ben Lang as Hill’s new attorney. Within two months, Hill filed numerous bar complaints against Lang, as well as a pro se motion alleging ineffective assistance of counsel. Lang moved to withdraw as counsel, and the trial court granted the motion and appointed Donna Smith to represent Hill.

¶ 7. Smith subsequently filed a motion to withdraw as counsel for Hill. She reported that Hill refused to meet with her or discuss the facts of the case. Hill also refused to tell Smith whether he wanted her to represent him at trial or to act as advisory counsel only. Hill also filed three bar complaints against Smith and “fired” her three times. The trial court granted Smith’s mo~ tion and appointed Marlin Stewart in her stead.

¶ 8. Hill’s case proceeded to trial on May 4-5, 2015. Hill again represented himself, with Stewart serving as advisory counsel. The evidence and Hill’s defense were similar to the second trial, and Hill was again convicted of possessing a firearm on educational property. He was sentenced to serve three years in MDOC custody, with credit for time served, and fined $1,200. As Hill had already served three years, he was released. Hill filed a pro se motion for judgment notwithstanding the verdict or a new trial, which was denied.

¶9, The Indigent Appeals Division of the Office of the State Public Defender was appointed to represent Hill on appeal. Hill’s appellate counsel filed a timely notice of appeal and subsequently filed a Lindsey brief certifying that she had made a diligent search of the record but could not identify any arguable issues that could be presented to this Court in good faith. Hill subsequently filed a pro se brief that purports to raise thirty-three separate issues. Hill also notes that he has filed fifteen bar complaints against his appellate counsel. The State identifies and responds to forty-seven issues raised in Hill’s pro se brief; however, the State maintains that most of Hill’s claims are procedurally barred because they were not raised in the trial court and/or because Hill’s pro se brief fails to provide reasons, record citations, or relevant authorities to support his arguments.

ANALYSIS

¶ 10. We agree with the State that most of Hill’s claims on appeal are procedurally barred. The argument section of Hill’s pro se brief is a disorganized series of cursory and repetitive assertions of error with few citations to the record or relevant legal authorities. Hill thus fails to comply with the requirement that assignments of error must be supported by “the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(7). Arguments that do not comply with Rule 28(a)(7) are “procedurally barred.” Cowart v. State, 178 So.3d 651, 666 (¶ 39) (Miss. 2015). “While pro se litigants are afforded some leniency, they must be held to substantially the same standards of litigation conduct as members of the bar.” Sumrell v. State, 972 So.2d 572, 574 (¶ 6) (Miss. 2008) (quotation marks omitted); accord Thornton v. State, 141 So.3d 5, 12 (¶ 28) (Miss. Ct. App. 2014). Therefore, although we afford Hill some “leniency,” our opinion will specifically address only those issues that are presented in a reasonably intelligible manner. However, pursuant to Lindsey, we have also “conducted an independent and thorough review of the record, and we conclude that there are no issues that warrant reversal.” Taylor v. State, 162 So.3d 780, 787 (¶ 18) (Miss. 2015).

I. Possession of a Firearm on “Educational Property”

¶ 11. Several of Hill’s claims on appeal relate to his contention that MSU did not own Aiken Village. He complains that the State failed to produce or that his attorneys failed to obtain relevant land records. He also complains that the trial court excluded unauthenticated deeds that he says prove that MSU did not own the property. He further claims that Aiken Village was not “educational property because it was not owned by MSU and, therefore, his conviction must be reversed. The State responds that Aiken Village was “educational property” within the meaning of the statute regardless of whether it was owned by MSU. The statute defines “educational property” as

any public or private school building or bus, public or private school campus, grounds, recreational area, athletic field, or other property owned, used or operated by any local school board, school, college or university board of trustees, or directors for the administration of any public or private educational institution or during a school-related activity

Miss. Code Ann. § 97-37-17(l)(a).

¶ 12. The evidence at trial did not conclusively establish ownership of Aiken Village. The State’s witnesses testified that it was owned by MSU and was part of MSU’s campus, but no land records were introduced into evidence. Regardless, the evidence clearly established that the apartment complex was open only to MSU’s students and was managed and operated by MSU’s Department of Housing and Residence Life. Therefore, if nothing else, Aiken Village was “other property ... operated” by MSU. Accordingly, Hill’s arguments related to ownership are without merit, and there was sufficient evidence to convict him of unlawful possession of a firearm on educational property.

II. The Statute’s “Posting” Requirement

¶ 13. Mississippi Code Annotated section 97-37-17(8) provides that “[a]ll schools shall post in public view a copy of the provisions of this section.” Although witnesses testified at trial that Hill received notice that firearms were prohibited on campus and in student housing, no witness had personal knowledge that a copy of 97-37-17 was posted at Aiken Village or elsewhere on campus. Hill argues that this requires reversal of his conviction. However, subsection (2) is effective regardless of whether a school complies with subsection (8). Proof that notice was posted is not an element of the crime defined by subsection (2). Hill’s argument is without merit.

III. The Roommate

¶ 14. Hill makes a number of arguments related to the fact that his former roommate, Andrew Hatten, did not testify at trial. Hill raised the issue prior to trial, and the State responded that it did not know how to contact Hatten and did not intend to call him as a witness. Hill called Hatten as a witness at trial, but Hatten had not been subpoenaed and was not present. Hill argues that the State or his attorneys were obligated to locate Hatten and secure his attendance at trial and that his conviction cannot stand without Hat-ten’s testimony. These arguments are without merit. Hill certainly had a right to subpoena “anyone he desired,” but the State had no obligation to track down potential witnesses for him or provide information that it did not possess. See Brown v. State, 969 So.2d 865, 862 (¶ 21) (Miss. 2007). Moreover, Hatten’s testimony would have been of little significance to the case, and Hill suffered no prejudice from his absence. Hill admitted that he possessed a infle in his apartment, so the only contested issue at trial was whether Aiken Village was educational property. Thus, Hill’s several arguments related to Hatten are all without merit.

IV. Alleged Fourth Amendment Violation

¶ 15. Hill argues that his Fourth Amendment rights were violated because university police lacked probable cause or a warrant to enter his apartment. However, the evidence showed that Hatten invited Detective Westbrook into the apartment and then, when asked, Hill told Westbrook that he had a rifle in his closet. Because Hatten consented, Westbrook’s presence in the common area was permissible and constitutional. See Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Loper v. State, 330 So.2d 265, 266-67 (Miss. 1976). Once Hill admitted to Westbrook that he had a rifle in his closet, Westbrook clearly was entitled to accompany Hill to the closet to retrieve the rifle, both for his own safety and because possession of the rifle was a crime. See Washington v. Chrisman, 455 U.S. 1, 6, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982); United States v. Roberts, 612 F.3d 306, 310-11 (5th Cir. 2010). Accordingly, Hill’s argument is without merit. There was no Fourth Amendment violation.

CONCLUSION

¶ 16. We have specifically addressed those issues that Hill presented in a manner sufficient to preserve appellate review. Also, pursuant to Lindsey, we have independently reviewed the record and concluded that there are no issues—whether asserted by Hill or otherwise—that warrant reversal. Accordingly, we affirm Hill’s conviction and sentence.

¶ 17. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A WEAPON ON EDUCATIONAL PROPERTY AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CREDIT FOR TIME SERVED, AND TO PAY A FINE OF $1,200, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ, CONCUR.

      . After remand and prior to the third trial, the court twice advised Hill in accordance with Rule 8.05 of the Uniform Rules of Circuit and County Court Practice and found that he was exercising his right to represent himself knowingly and voluntarily.

      . The record is unclear as to exactly how long Hill was previously incarcerated or on parole. An MDOC representative advised the court in open court that Hill had already served his sentence based on credit for time served.


source: Caselaw Access Project

author: WILSON, J., CARLTON, J.,

license: Public Domain

text:
    Glory RIGSBY, Appellant v. AMERICAN CREDIT COUNSELORS, INC., Appellee
    NO. 2016-CA-00749-COA
    Court of Appeals of Mississippi.
    04/04/2017

      ATTORNEY FOR APPELLANT: JASON GRAEBER
    ATTORNEY FOR APPELLEE: REGINALD PAUL HARRION
   WILSON, J.,

FOR THE COURT:

¶ 1. Glory Rigsby, an elderly Gulfport resident on Social Security disability, alleges that she is the victim of a “debt relief scheme” perpetrated by American Credit Counselors Inc. (“ACCI”), a Florida corporation with its principal place of business in Boca Raton, Florida. Rigsby filed a complaint against ACCI in county court, alleging that she had paid ACCI more than $1,000 and received nothing in return. ACCI moved to dismiss the complaint based on a forum selection clause contained in its “Program Guidelines,” which Rigsby had received and signed. The county court granted ACCI’s motion to dismiss, and the circuit court affirmed. For the reasons discussed below, we hold that ACCI’s forum selection clause is unenforceable. Therefore, we reverse and remand the case to the county court,

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 23, 2013, Rigsby entered into an “Agreement” with Henry Portner P.C. (“Portner P.C.”), a New Jersey professional corporation with its offices in Coconut Creek, Florida. Henry Portner (“Portner”) is a Florida attorney who is not licensed to practice in Mississippi. He is the president and “managing attorney” of Portner P.C. The Agreement refers to Rigsby as the “Client” and to Portner P.C. as the “Law Firm” or the “Attorney.” The Agreement provides in part:

1. Retention of Services. Subject to the terms and conditions set forth herein, Client hereby requests that Attorney provide information, recommendations, and an action plan regarding Client’s current debt obligations, with the express understanding that Attorney does not hold himself out for representation on any issues involving the interpretation and/or application of any specific state law. At all times, Law Office shall employ counsel licensed in Mississippi, to facilitate the achievement of client objectives. In addition, Client understands that Attorney may use associate attorneys, legal assistants and other third parties (supervised by Attorney at all times) to assist in rendering services under this Agreement. If Attorney identifies an FDCPA violation for which client desires representation, Attorney shall provide said representation at no out of pocket cost to Client. In the event of a settlement, Attorney shall be entitled to forty percent (40%) of the remaining settlement, along with reimbursement for any costs advanced by Attorney.
2. Attorney Fees. Client shall pay Law Office Seventy Five Dollars ($75.00) upon [Client’s receipt and implementation of Attorney’s analysis and recommended action plan. Attorney shall provide a specific action plan consistent with [Client’s goals. Client shall also pay a monthly retainer fee equal to Twenty Nine Dollars ($29.00) per month for so long as this Agreement remains in effect. Said fee is to keep Law Office on retainer and include ongoing representation and supervision of any recommended action plan. Ongoing monthly retainer is optional and [C]lient may discontinue representation at any time....
3. Attorney-Client Relationship. Henry Portner, P.C. is a Florida based law office and is not associated with any governmental agency. Other than as specifically provided herein, Attorney is not providing any other services to the Client. Particularly, this Agreement does not include any legal representation before any tribunal, including federal or state courts of any jurisdiction or representation in front of any governmental agency. Trial, or other state, federal, or governmental issues shall require Client to execute a separate Retainer Agreement. On such issues, Attorney may, but is not obligated to, refer Client to another attorney considered “Of Counsel” who is licensed in Mississippi or to independent counsel of Client’s choosing in his/her state. It is clearly understood and agreed between the parties hereto that Attorney shall not pay any of Client’s creditors nor assume any debts on behalf of Client.
5. Arbitration Agreement/Jurisdiction. Law Office and Client hereby agree to settle any and all claims, disputes or controversies arising out of or relating to the employment of Attorney herein by final and binding arbitration before a neutral Arbitrator, pursuant to the rules of the American Arbitration Association. Any determination by the Arbitrator shall be final and binding. To the extent it may be necessary, the final and binding decision of the Arbitrator may be filed with a court of competent jurisdiction. The parties agree that any arbitration brought with respect to this Agreement shall be brought exclusively in The State of Florida, County of Palm Beach, and the parties irrevocably submit to the jurisdiction of Palm Beach County, Florida.

Rigsby signed the Agreement and was given a one-page “Outline of the Proposed Action Plan.” The plan called for Rigsby to pay $116 per month for forty-eight months to pay off about $4,000 in unsecured debt to creditors such as Wal-Mart, Old Navy, and Chevron.

¶3. On or about September 10, 2013, Rigsby signed a document provided by ACCI entitled “Program Guidelines” that provides in part:

REASON FOR THIS PROGRAM: The Client(s) have certain ongoing financial obligations to certain creditors and desire ACCI to assist in obtaining an effective Debt Management Program (“Program”). ACCI will provide certain payment plans, work-ups, negotiations, counseling and other services.
1. SERVICES OFFERED: By joining this Program, you authorize ACCI and its authorized agents, to discuss your financial information and negotiate with any of your listed creditors. You will deliver the monthly payments under the Debt Management Program to ACCI by[ ] automatic withdrawal (ACH), money-order, electronic fund transfer or other forms of payment acceptable to ACCI. ACCI shall forward your monthly payments as disclosed under the Program to your creditors. Your monthly payment has been established in the amount of $116 per month consisting of 7 creditor(s) based upon the information furnished by you .... Payments shall begin on 10/06/13 and be payable on the 6th day of each and every month thereafter until the Program is full satisfied.
2. REPRESENTATIONS BY YOU: ... ACCI shall not be responsible for any garnishments, judgments, liens, repossessions, lapse/cancellation in insurance coverage, or any other direct or indirect or consequential damages of whatever nature.
8. HOLD HARMLESS: You agree to indemnify and hold ACCI, its agents, officers, directors, employees, contractors or managers harmless from any and all claims for liability, damage, attorney fees, and costs arising either directly or indirectly from ACCI’s management of the Program or this Program, including but not limited to, any damage that may arise from the negligent acts of ACCI; any actions taken by your creditors, including, but not limited to, suits, judgments, orders, attachments, liens, garnishments, levies or repossessions; attorney fees, costs, or relating to any claim or action by any third party which arises either directly or indirectly from ACCI’s management of the Program or this Program.
10. INTERPRETATION: The parties acknowledge that for all purposes, this program was made, negotiated and concluded in Palm Beach County, Florida, regardless of where it was actually signed and/or executed. These program guidelines shall be governed by and interpreted in accordance with the laws of the state of Florida, without regard to Choice or Conflict of Laws. In the even [sic] of any litigation associated with this Program Guidelines, jurisdiction and venue shall be solely and properly had in Palm Beach County, Florida, without regard to Choice and Conflict of Laws, irrespective of the place of residence, domicile, or business address of you, the Client(s) herein.

The debts and payment plan attached to the Program Guidelines mirror the Outline of the Proposed Action Plan provided by Portner P.C. Thus, although Portner P.C. is not mentioned in the ACCI documents or vice versa, the purpose of ACCI’s “Program” appears to be to implement Portner P.C.’s “Action Plan.”

¶4. On October 20, 2014, Rigsby filed suit against ACCI, Portner P.C., and Port-ner in the County Court of Harrison County. According to the complaint, Rigs-by is an “elderly woman” and a “vulnerable consumer” on Social Security who “needs every dollar to make ends meet.” The complaint alleges that “Rigsby paid the defendants over $1,000 and received nothing in return.” It is further alleged that the defendants are running a “debt relief scheme” whereby ACCI essentially “pays a fee to lease attorney letterhead in order to avoid” regulatory oversight. The complaint alleges various other misdeeds by the defendants and then asserts claims for fraud, breach of fiduciary duty, unjust enrichment, and violations of the Mississippi Debt Management Services Act, Miss. Code Ann. §§ 81-22-1 to -31 (Rev. 2015), and demands a trial by jury.

¶5. On December 17, 2014, the defendants filed a joint answer to the complaint. ACCI and Portner P.C. also filed a joint motion to dismiss in which they argued, inter alia, that the case should be dismissed based on the “jurisdiction” provisions of their agreements with Rigsby, and because Rigsby failed to plead fraud with particularity. Portner filed a separate motion to dismiss arguing that the claims against him should be dismissed because Rigsby failed to plead facts that would justify piercing the corporate veil.

¶ 6. Rigsby filed responses to both motions to dismiss. She argued that the forum selection clause in ACCI’s “Program Guidelines” was “permissive” and did not require her to bring the action in Florida—or, alternatively, that it was invalid and unenforceable if interpreted as “mandatory.” She argued that the “jurisdiction” provision in her Agreement with Portner P.C. was actually an arbitration clause, which was inapplicable since Portner P.C. was not seeking to arbitrate her claim. Alternatively, she argued that the provision was also invalid and unenforceable if it was interpreted as a mandatory forum selection clause. Finally, she argued that she had pled fraud with sufficient particularity, and had pled sufficient facts to support her claims against Portner.

¶ 7. A hearing was held in the county court on January 28, 2015. Rigsby testified at the hearing without objection. She testified that she does not work, that she receives Social Security disability payments, and that her husband is blind. She testified that it would be difficult or inconvenient for her to travel to Florida to litigate the case because she is “crippled” and depends on her grandson to drive her places.

¶8. The county court subsequently entered an order that (1) dismissed Rigsby’s fraud claim for failure to plead with sufficient particularity; (2) granted ACCI’s motion to dismiss based on the forum selection clause of its Program Guidelines; (3) denied Portner P.C.’s motion to dismiss based on the “jurisdiction” provision of its contract; and (4) denied Portner’s motion to dismiss. The county court certified its dismissal of ACCI and Rigsby’s fraud claims as a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b).

¶ 9. Rigsby filed a timely notice of appeal. She later settled her claims against Portner P.C. and Portner, and in the circuit court her briefs addressed only the interpretation and enforceability of ACCI’s forum selection clause. On May 11, 2016, the circuit court entered an order affirming the county court. Rigsby again filed a timely notice of appeal.

DISCUSSION

¶ 10. “[I]ssues pertaining to the interpretation and enforcement of a forum selection clause [are] questions of law and subject to de novo review.” Titan Indem. Co. v. Hood, 895 So.2d 138, 145 (¶ 30) (Miss. 2004). A court faced with a motion to dismiss based on a forum selection clause should first examine the language of the clause “to determine whether the clause is mandatory or permissive.” Id. at 145-46 (¶ 31). A clause is “mandatory” if it purports to require litigation in the specified forum only and to prohibit litigation in any other forum. Id. at 146 (¶ 31). A clause is “permissive” if it merely permits litigation in the specified forum and does not prohibit litigation in another forum. Id. If a clause is permissive, then it does not require dismissal of a lawsuit filed in another forum. Id.

¶ 11. The applicable forum selection clause in this case provides:

In the even [sic] of any litigation associated with this Program Guidelines, jurisdiction and venue shall be solely and properly had in Palm Beach County, Florida, without regard to Choice and Conflict of Laws, irrespective of the place of residence, domicile, or business address of you, the Chent(s) herein.

Rigsby argues that the clause is permissive because it is contained in “Program Guidelines,” and “guidelines” are inherently permissive and merely provide guidance without mandating action. She also argues that the Program Guidelines as a whole are vague and inconsistent and that a typo in the relevant clause (“even”) renders it unclear.

¶ 12. We disagree. The clause clearly states that “jurisdiction and venue shall be solely and properly in Palm Beach County, Florida” (emphasis added). This is sufficient to make it a mandatory clause. See id. And although the document is entitled “Program Guidelines,” it clearly is a binding contract. It provides, among other things, that the “Program” is entered into “by and between [ACCI] and ... Rigsby” and that the “Program Guidelines shall become binding on the parties upon its execution.”

¶ IB. We next consider whether the forum selection clause is enforceable. Our Supreme Court has held:

Forum selection clauses are “presumptively valid and enforceable” unless the resisting party can show:
(1) Its incorporation into the contract was the result of fraud, undue influence or overweening bargaining power;
(2) The selected forum is so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of its day in court; or
(3) The enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

Long Beach Auto Auction Inc. v. United Sec. All. Inc., 936 So.2d 361, 355 (¶ 13) (Miss. 2006) (quoting Titan Indem., 895 So.2d at 146 (¶ 34)).

¶ 14. Rigsby challenges the forum selection clause in this case on all three grounds. She alleges fraud, but as discussed above, her fraud claim was dismissed, and she has abandoned her appeal on that issue. More important, a forum selection clause is invalid on this ground only if “[i]ts incorporation into the contract was the result of fraud.” Id. (emphasis added). Thus, “[fjraud and overreaching must be specific to a forum selection clause in order to invalidate it.” Haynsworth v. The Corp., 121 F.3d 956, 963 (5th Cir. 1997). Rigsby alleges no fraud specific to the forum selection clause.

¶ 15. Rigsby also argues that the forum selection clause contravenes Mississippi public policy because the Mississippi Debt Management Services Act provides that a consumer who is harmed by a violation of the Act may bring a civil action to recover actual damages, attorneys’ fees, and costs. See Miss. Code Ann. § 81-22-23(2)(d) (Rev. 2015). However, nothing in the Act establishes a public policy prohibiting an agreement to resolve such claims in another state. Accordingly, this argument is also without merit.

¶ 16. We do, however, find merit in Rigsby’s claim that “[t]he selected forum is so gravely difficult and inconvenient that [she would] for all practical purposes be deprived of [her] day in court.” Titan Indent., 895 So.2d at 146 (¶ 34). In Titan Indemnity, the Supreme Court stated that “mere reference to the expense the litigant may incur to litigate the matter in another forum does not meet [the litigant’s] burden of proof’ that the forum selection clause is unenforceable. Id. at 147 (¶ 43). However, Titan Indemnity involved vastly different facts and is readily distinguishable. Titan Indemnity was a dispute among commercial entities in the insurance industry that involved claims for millions of dollars in compensatory and punitive damages. See generally id. at 140-44 (¶¶ 1-24). The forum selection clause was part of a negotiated contract that was “at the center of the controversy.” See id. at 141, 147 (¶¶ 6, 41). The Court repeatedly emphasized that all parties were “sophisticated” businesses and businessmen. See, e.g., id. at 146-47, 151 (¶¶ 35, 41, 43, 63). On those facts, the Court found “that requiring [the] case to be litigated in Bexar County, Texas, would not be so gravely difficult and inconvenient that [the plaintiffs] would, for all practical purposes, be deprived of their day in court.” Id. at 151 (¶ 62).

¶ 17. The facts of Titan Indemnity are readily distinguishable, and its reasoning does not apply in this case. Indeed, in Titan Indemnity, the Supreme Court specifically stated that the “burden of proving” that a forum selection clause would deprive a litigant of her day in court is “much more difficult for sophisticated businesses than for individual consumers." Id. at 147 (¶43) (emphasis added). Rigsby has met her much lower burden. The very purpose of the form “Program Guidelines” in which the forum selection clause is contained is to assist the “Client” in managing and reducing debt that she has been unable to manage herself. The Guidelines state, “Our main goal is to help you get out of debt!!!” By definition, a Client is someone who has already incurred debt that she has been unable to repay. ACCI gave Rigsby a “Client Action Plan,” purportedly prepared specifically for her, with “strategy suggestions” to save money, such as “buy[ing] less meat” at the grocery store, shopping at garage sales, and “[r]estrict[ing] use [of her car] to essential driving only.” Rigsby alleges that she ultimately paid ACCI approximately $1,000 but received nothing in return. It is not realistic to expect Rigsby or any other Mississippi “Client” to incur the expense and devote the time necessary to travel hundreds of miles to litigate such a claim in Palm Beach County, Florida. If the forum selection clause is enforced she “will for all practical purposes be deprived of [her] day in court.” Titan Indem., 895 So.2d at 146 (¶ 34).

¶ 18. Relying on cases from the District of Columbia, the dissent argues that ACCI’s forum selection clause should be enforced because it does not “shock the judicial conscience.” Post at (¶ 24) (quoting Goodrich v. Adtrav Travel Management, Inc., No. 15-CV-00899 (CRC), 2016 WL 4074082, at *3 (D.D.C. Feb. 1, 2016)). However, Mississippi law does not saddle Rigsby with the burden of shocking judicial consciences. Again, under Mississippi law, she need only show that it would be “so gravely difficult and inconvenient” for her to pursue her case in South Florida that enforcing the clause would “for all practical purposes ... deprive[ ] [her] of [her] day in court.” Titan Indent., 895 So.2d at 146 (¶ 34). While the dissent repeatedly asserts that “Rigsby failed to meet her burden,” the dissent never explains how it is practical or realistic to expect a Client such as Rigsby—an individual seeking assistance precisely because she has been unable to “manage” her existing debts—to travel to Boca Raton to pursue a relatively low-value consumer dispute. We conclude that our Supreme Court had in mind cases such as this when it held a forum selection clause will not be enforced if its practical effect is to deprive a litigant of her day in court. Accordingly, we hold that the county court erred by enforcing the clause.

CONCLUSION

¶ 19. The forum selection clause in the ACCI Program Guidelines is unenforceable. Therefore, we reverse the judgment of the circuit court and remand the case to the county court for further proceedings consistent with this opinion.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED TO THE COUNTY COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ, CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

DISSENTING:

¶ 21.1 respectfully dissent from the majority opinion. A review of the agreement and precedent reflects that the forum-selection clause in this case is mandatory in its language and that it is valid and enforceable. We must also acknowledge that, “[u]nder Mississippi law, a contracting party is under a legal obligation to read a contract before signing it and will be charged with knowing the contract’s contents.” Slater-Moore v. Goeldner, 113 So.3d 521, 529 (¶ 25) (Miss. 2013) (internal quotation marks omitted). In this case, Rigsby bore the burden to show that the forum-selection clause was unenforceable, and she failed to meet her burden. As explained briefly below, I would therefore affirm the circuit court’s, as well as the county court’s, dismissal of Rigsby’s claims.

¶ 22. As stated, a review of the record reflects that Rigsby failed to meet her burden to resist the enforcement of the forum-selection clause in this case. We must acknowledge that forum-selection clauses are “presumptively valid and enforceable.” Id. at 527 (¶ 15). The party resisting the forum-selection clause must bear the burden of proof to show that the enforcement is unreasonable. Id. In Titan Indemnity Co. v. Hood, 895 So.2d 138, 146 (¶ 34) (Miss. 2004), the Mississippi Supreme Court recognized that the United States Supreme Court set forth the factors a resisting party must show to prove that a forum-selection clause is invalid and unenforceable:

1. Its incorporation into the contract was the result of fraud, undue influence!),] or overweening bargaining power;
2. The selected forum is so gravely difficult and inconvenient that the resisting party will[,] for all practical purposes!),] be deprived of its day in court; or
3. The enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

Id. (citing M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 12-13, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

¶ 23. The forum-selection clause in this case was not hidden in the contract language. There is no evidence that the contract was a result of coercion, undue influence, fraud, overreaching, or any one-on-one solicitation. We find that no evidence of overreaching or fraud exists in this case. The record reflects that Rigsby began searching for solutions to address her high-interest debt. In the process, Rigsby discovered ACCI, and she contacted them. ACCI responded to Rigsby by mailing her an informational letter that included a retainer agreement and a check-draft-authorization form.

¶ 24. A reference to the mere inconvenience of a forum fails to provide sufficient evidence to overcome the presumptive validity and enforceability of a forum-selection clause. See Salts v. Gulf Nat’l Life Ins., 743 So.2d 371, 375 (¶ 14) (Miss. 1999); Pisharodi v. Golden Triangle Reg’l Med. Ctr., 735 So.2d 353, 355 (¶ 10) (Miss. 1999); see also Goodrich v. Adtrav Travel Mgmt., Inc., No. 15-CV-00899 (CRC), 2016 WL 4074082, at *3 (D.D.C. Feb. 1, 2016) (“[E]ven if traveling to Alabama would impose a ‘substantial financial burden’ on [the] plaintiff, that result—though unfortunate—would not be ‘so outrageously unfair as to shock the judicial conscience.’”); Song fi Inc. v. Google Inc., 72 F.Supp.3d 53, 63-64 (D.D.C. 2014) (holding a forum-selection clause was valid and that travel to California from all over the world to litigate disputes was not substantively unconscionable so as to preclude enforcement of the forum-selection clause; such a clause was necessary to manage litigation expenses). In her response to ACCI’s motion to dismiss, Rigsby presented claims of inconvenience regarding the selected forum of South Florida. Rigsby argued that “the selected forum is so gravely difficult and inconvenient that the resisting party will[,] for all practical purposes[,] be deprived of its day in court.” In support of her claim, Rigsby asserted that she “testified at the hearing on January 28, 2015[,] that she receives social security, her husband is blind[,] and she could not afford to travel to Florida to resolve this matter. Rigsby paid the Defendants over $1,000.00. They did nothing for her.” However, the county court found that this assertion failed to meet the burden of proof set forth in Titan Indemnity Co., 895 So.2d at 146 (¶ 34), and granted ACCI’s motion to dismiss, which the circuit court affirmed. Furthermore, as stated, Rigsby also presented no evidence of overreaching or fraud. Based on the foregoing, Rigsby failed to meet her burden of showing that the forum-selection clause was unenforceable. I would therefore affirm the circuit court’s dismissal of Rigsby’s claims.

      . The dissent more broadly asserts that "no evidence of overreaching ... exists in this case.” However, the complaint specifically alleges violations of the Mississippi Debt Management Services Act and accuses ACCI of "preying on desperate Mississippians” by charging "unfair, deceptive, and illegal fees.” These are only allegations at this point, since on a motion to dismiss there is no real "evidence” either way. Our point in the text is only that there is no allegation of fraud specific to the forum selection clause. In addition, although the dissent asserts that "[t]he forum selection clause in this case was not hidden in the contract language,” that is debatable. It is the last sentence of section 10 of 14 on page 3 of 3 of ACCI’s Program Guidelines, under the heading "INTERPRETATION.”

      . ACCI encouraged Rigsby to use public transportation, walk, or ride a bike instead.

      . The two Mississippi cases cited in paragraph 24 of the dissenting opinion have nothing to do with the enforceability of a forum selection clause, much less one requiring litigation in a distant forum. Those decisions simply decline to adopt the doctrine of "intrastate forum non conveniens” and hold that "mere inconvenience” is not a basis for transferring a case from one. county in Mississippi to another county in Mississippi. See generally Salts v. Gulf Nat’l Life Ins., 743 So.2d 371 (Miss. 1999); Pisharodi v. Golden Triangle Reg’l Med. Ctr., 735 So.2d 353 (Miss. 1999).

      . See also Tel-Com Mgmt., Inc. v. Waveland Resort Inns, Inc., 782 So.2d 149, 151-52 (¶ 7) (Miss. 2001); Barnett v. DynCorp Int'l, L.L.C., 831 F.3d 296, 304 (5th Cir. 2016); Weber v. PACT XPP Techs., AG, 811 F.3d 758, 773 (5th Cir. 2016) (“The presumption of enforceability may be overcome, however, by a clear showing that the clause is ‘unreasonable’ under the circumstances.”).

      . Our supreme court explained that, "Although Zapata is an admiralty case, its standard has been widely applied to forum[-]selection clauses generally.” Titan Indem. Co., 895 So.2d at 146 (¶ 34).


author: MAIN, Justice.

text:
    Ex parte Charleston D. THOMAS. (In re Charleston D. Thomas v. State of Alabama).
    1140594.
    Supreme Court of Alabama.
    June 26, 2015.
    Roger C. Appell, Birmingham, for petitioner.
    Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Stephen N. Dodd, asst. atty. gen., for respondent.
   MAIN, Justice.

Charleston D. Thomas, an inmate, filed a petition for postconviction relief under Rule 32, Ala. R.Crim. P. The Jefferson Circuit Court summarily dismissed the petition. The Court of Criminal Appeals, by unpublished memorandum, affirmed the summary dismissal of Thomas’s petition, concluding that Thomas’s Rule 32 petition was untimely because, at the time he filed his Rule 32 petition, Thomas had not paid the filing fee or filed a request to proceed informa pauperis. Thomas v. State (No. CR-12-0966, Jan. 30, 2015), 207 So.3d 773 (Ala.Crim.App.2015) (table). Thomas petitioned this Court for certiorari review of the Court of Criminal Appeals’ decision, arguing that he had, in fact, filed with his Rule 32 petition a timely request to proceed in forma pauperis. We granted Thomas’s petition for a writ of certiorari to review this issue. We reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings.

I. Facts and Procedural History

On May 15, 2006, Thomas was convicted of attempted first-degree kidnapping and was sentenced to 20 years’ imprisonment. Thomas filed a direct appeal. The Court of Criminal Appeals ultimately affirmed Thomas’s conviction and sentence and issued its certificate of judgment on March 5, 2010. Thomas v. State, 43 So.3d 1288, 1291 (Ala.Crim.App.2007). Pursuant to Rule 32.2(c), Ala. R.Crim. P., Thomas had one year from that date in which to fíle a Rule 32 petition for postconviction relief, i.e., until March 7,2011.

Thomas, acting pro se, filed a Rule 32 petition using the standard form found in the Appendix to Rule 32. He attached a supplement setting out his detailed claims for relief. Thomas signed and dated the petition on February 18, 2011. The petition was notarized by a prison official on February 18, 2011. Thomas also completed the standard in forma pauperis declaration. Thomas signed and dated the declaration on February 18, 2011. The declaration was notarized by a prison official on February 18, 2011. Thomas claims that on February 18, 2011, he gave both documents to a prison official to be mailed on his behalf.

On March 18, 2011, the Jefferson Circuit clerk’s office sent Thomas a form letter indicating that it had received his Rule 32 petition but stating that Thomas had failed to include with his petition the filing fee or an application to proceed informa pauper-is. In response to this letter, on March 23, 2011, Thomas filed a “motion for judicial notice that the movant petitioner did, in fact, file his Rule 32 petition with an in forma pauperis form.” In that motion, Thomas stated:

“Comes now, Charleston D. Thomas, pro se, [and] move[s] this Honorable Court to take judicial notice that he did indeed file with his Rule 32 petition a In Forma Pauperis form.... The Clerk’s office sent the movant’s petition back instructing him to include an In Forma Pauperis form, perhaps it was an oversight on the clerks behalf. I have enclosed another In Forma Pauperis Form [with] this motion for Judicial Notice of this happening.”

Thomas included with his motion a new in forma pauperis declaration dated and notarized on March 23, 2011. That declaration is stamped as having been filed with the circuit clerk’s office on March 28, 2011. The record on appeal also contains a copy of the declaration form dated February 18, 2011. That document, however, bears no date stamp indicating that it was received by the circuit clerk’s office.

On May 11, 2011, the circuit court granted Thomas’s request to proceed in forma pauperis. On May 27, 2011, Thomas’s Rule 32 petition was stamped “filed” by the circuit clerk’s office. On July 12, 2011, the State filed a motion requesting that the court reconsider its order granting Thomas in forma pauperis status, arguing that Thomas was not indigent. On September 14, 2011, the circuit court entered an order rescinding its grant of in forma pauperis status and ordering Thomas to pay the filing fee within 90 days. Thomas paid the filing fee.

On January 6, 2012, the State filed its response and a motion to dismiss Thomas’s Rule 32 petition. One of the grounds raised by the State was that the petition was due to be summarily dismissed because it was filed beyond the one-year limitations period provided by Rule 32.2(c), Ala. R.Crim. P. On January 26, 2012, the circuit court entered an order dismissing Thomas’s Rule 32 petition, concluding, in part, that the petition was untimely.

On February 6, 2012, Thomas filed a motion asking the circuit court to set aside its order dismissing his Rule 32 petition. In that motion, Thomas argued that, despite the May 27, 2011, date stamp, his petition was not untimely. He asserted that he had given his Rule 32 petition and in forma pauperis declaration to prison officials to mail on February 18, 2011. In support of the motion, Thomas submitted an affidavit, in which he testified, in part, as follows:

“2. On February 18, 2011 while I was incarcerated at the Perry County Correctional Center I completed a Rule 32 petition and had it notarized by Amy Green. On the same date I also signed and had notarized a declaration in support of request to proceed in forma pau-peris. Amy Green who was in charge of the law library sent both documents together in the mail. I saw her take my package to the administration building where legal documents are mailed.
“3. Sometime in March, I received a letter from the clerk’s office in Bessemer telling me that I needed to file an in forma pauperis affidavit. Although I had already filed one with my Rule 32 I filed another one on March 23, 2011 and mailed it that day. I attached a copy of my original.”

Thomas’s motion also noted that, unlike the other filings, the clerk’s record did not contain the envelope in which the clerk’s office had received the Rule 32 petition, which would have reflected a postmark.

On February 10, 2012, the circuit court set aside its January 26, 2012, order. On March 15, 2012, the State again moved to dismiss Thomas’s petition. Once again, the State argued that the petition was untimely. The State argued that under Alabama law a Rule 32 petition is not deemed filed unless it is accompanied by a filing fee or a request to proceed informa pauperis. The State argued that the March 18, 2011, letter from the clerk’s office was conclusive proof that the petition was not accompanied by a request to proceed in forma pauperis and thus that the petition was not “filed” until the clerk’s office received the in forma pauperis request on March 28, 2011—after the expiration of the one-year limitations period.

On February 27, 2013, the circuit court entered a new order summarily dismissing Thomas’s petition. Again, among various other reasons given for the dismissal, the circuit court concluded that the petition was untimely. In declaring Thomas’s petition untimely, the circuit court made no specific findings of fact but concluded simply: “The Petition is barred by Rule 32.2(c) because the Petition is untimely.” The circuit court also denied Thomas’s pending request for an evidentiary hearing. Thomas appealed the dismissal to the Court of Criminal Appeals.

On January 30, 2015, the Court of Criminal Appeals affirmed, in an unpublished memorandum, the summary dismissal of Thomas’s Rule 32 petition, agreeing that Thomas’s petition was untimely. The Court of Criminal Appeals noted that the circuit clerk is charged by statute with keeping the records and docket of the circuit court and also with collection of filing fees. See § 12-17-94(a)(3), Ala.Code 1975; § 12-19-70, Ala.Code 1975. The Court of Criminal Appeals concluded:

“Implicit in the duties of a circuit clerk is the duty to ascertain if the filing fee or a request to proceed in forma pauperis accompanied a petition filed pursuant to Rule 32, Ala. R.Crim. P. The court could have reasonably determined that, despite the self-serving affidavit of Thomas, the circuit clerk’s personnel in performing the duties of their office, had correctly ascertained that Thomas had failed to include a request to proceed in forma pauperis when he originally sent his petition to the clerk.”

The Court of Criminal Appeals concluded that the claims raised in Thomas’s Rule 32 petition were not jurisdictional and that, therefore, the circuit court properly dismissed the petition as untimely.

We granted Thomas’s petition for writ of certiorari to review the decision of the Court of Criminal Appeals.

II. Analysis

The State does not dispute that Thomas’s Rule 32 petition was received by the Jefferson Circuit clerk’s office before the expiration of the applicable one-year limitations period. Rather, the State contends that Thomas did not submit with his petition a request to proceed informa pauper-is and that that request was not received by the clerk until after the expiration of the one-year limitations period. Under Alabama law, a Rule 32 petition is not deemed “filed” until the petition and a filing fee or, in lieu of the filing fee, a request to proceed in forma pauperis are submitted to the circuit clerk. See Rule 32.6(a), Ala. R.Crim. P.; Hyde v. State, 950 So.2d 344, 353 (Ala.Crim.App.2006). Thus, the State argues that Thomas’s failure to file his in forma pauperis declaration within the limitations period rendered his Rule 32 petition untimely. According to the State, the circuit court properly dismissed Thomas’s petition and the Court of Criminal Appeals correctly affirmed that judgment.

Thomas argues that the Court of Criminal Appeals’ holding conflicts with Holland v. State, 621 So.2d 373 (Ala.Crim.App.1993). In Holland, the Court of Criminal Appeals held that an incarcerated pro se petitioner “files” a Rule 32 petition when he or she hands the petition over to prison authorities for mailing. This Court has recognized that the “prison-mailbox rule” applies when a pro se petitioner faces specific document-filing deadlines. See Ex parte Allen, 825 So.2d 271, 274 (Ala.2002). Thomas contends that his uncontradicted testimony establishes that he handed both his Rule 32 petition and his in forma pauperis declaration to prison authorities for mailing on February 18, 2011. Thus, he argues, the petition and the declaration were timely filed before the expiration of the limitations period.

Whether Thomas included a request to proceed in forma pauperis with his Rule 32 petition is inherently a factual inquiry. The State argues that the May 27, 2011, form letter from the circuit clerk’s office is evidence that Thomas’s Rule 32 petition was not accompanied by a request to proceed in forna pauperis. Yet there was also direct evidence before the circuit court indicating that Thomas, in fact, mailed his in forma pauperis declaration with his Rule 32 petition on February 18, 2011. Thomas submitted an affidavit stating that on February 18, 2011, he handed both his petition and in forma pauperis declaration to a prison official to be mailed on his behalf. The record contains an executed in forma pauperis declaration notarized by a prison official on February 18, 2011. Furthermore, Thomas disputed the circuit clerk’s form letter informing him that an in forma pauperis declaration was not included with his petition by filing a motion for judicial notice that he had, in fact, filed the declaration. If this evidence is believed, Thomas’s petition was timely.

•In the present case, we find that the evidence in the record creates a question of material fact as to whether Thomas’s in forma pauperis declaration was filed with his Rule 32 petition, so as to render the Rule 32 petition timely. Rule 32.9(a), Ala. R.Crim. P., states that a petitioner is entitled to an evidentiary hearing “to determine disputed issues of material fact.” The circuit court, however, did not hold an evidentiary hearing, made no findings of fact, and, in its order of dismissal, made no reference to the evidence submitted by Thomas. We, therefore, hold that, unless the judgment of the circuit court is due to be affirmed based on one or more of the alternate grounds for dismissal of Thomas’s Rule 32 petition, the Court of Criminal appeals should remand this cause for the circuit court to conduct an evidentiary hearing and make specific findings of fact as to whether Thomas filed his informa pauperis declaration with his timely filed Rule 32 petition. See also Ex parte Wright, 860 So.2d 1253 (Ala.2002) (remanding for a determination as to whether a pro se petitioner’s notice of appeal was timely filed).

Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand this cause to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, and BRYAN, JJ., concur.

SHAW and WISE, JJ., dissent.

      . It does not appear that the circuit court ever ruled on this motion.

      . Thomas contends the February 18 declaration was mailed with his original petition. The State posits that the February 18 declaration was first submitted to the clerk with Thomas's motion for judicial notice, but not before.

      .The petition, dated and notarized on February 18, 2011, was obviously received by the circuit clerk’s office well before May 27, 2011, and sometime before the clerk’s office sent the March 18, 2011, form letter.

      . The circuit court also concluded that the petition was procedurally barred under Rule 32.2(a), Ala. R.Crim. P., because the issues raised in the petition could have been, but were not, raised at trial or on direct appeal. The circuit court also ruled that the petition was due to be dismissed under Rule 32.6(b), for lack of specificity, and that, pursuant to Rule 32.7(d), no purpose would be served by any further proceedings. Thomas addressed these alternative grounds for dismissal in his appeal to the Court of Criminal Appeals. The Court of Criminal Appeals, however, agreed that Thomas's petition was time-barred and thus pretermitted discussion of the alternate grounds for dismissal.

      . There are exceptions to the one-year limitations period in Rule 32.2(c). Thomas does not argue that any of those exceptions apply.

      . The State argues that the prison-mailbox rule is not applicable in this case because Thomas failed to complete question number 18 on the standard Rule 32 form, which asks: "What date is this petition being mailed?” See Beamon v. State, 204 So.3d 1, 2 n. 2 (Ala.Crim.App.2014). The present dispute, as presented to us, however, does not concern whether Thomas’s Rule 32 form was timely mailed, but whether it was accompanied by an in forma pauperis declaration. Regardless of whether Thomas completed question number 18, that question does not answer whether he mailed his in forma pauperis declaration with his petition. Moreover, the in forma pauperis declaration form contains no similar question asking when that form is being mailed, or whether it is being mailed with the Rule 32 petition. Accordingly, we know of no reason the prison-mailbox rule would not apply to the in forma pauperis declaration in this case.

       Note from the reporter of decisions: On October 16, 2015, on remand from the Supreme Court, the Court of Criminal Appeals affirmed, without opinion (CR-12-0966), On January 22, 2016, that court denied rehearing. On July 8, 2016, the Supreme Court denied certiorari review, without opinion (1150451).


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte Richard TALBOTT et al. (In re Azin AGAH v. Amber Bartlett et al.)
    1140596.
    Supreme Court of Alabama.
    Sept. 30, 2015.

      Windy C. Bitzer and Christine Harding Hart of Hand Arendall LLC, Mobile, for petitioners.
    Joseph 0. Kulakowski, Mobile; and John D. Richardson, Mobile, for respondent.
   BOLIN, Justice.

Richard Talbott, Stephen Ballard, and Dusty Layton petition for a writ of mandamus directing the Mobile Circuit Court to vacate its January 28, 2015, order denying their motion to dismiss Azin Agah’s claims against them and to enter a dismissal in their favor.

Facts and Procedural History

Before 2010, Agah was employed at the University of South Alabama (hereinafter “USA”) as a professor engaged in scientific research. Agah’s position was a tenure-track professorship. On February 26, 2010, USA’s vice president for Health Sciences, Ronald Franks, notified Agah that she would not be reappointed to her professorship because of alleged research misconduct.

On July 28, 2011, Agah sued Amber Bartlett and Julio Turrens. Bartlett was a student of Agah’s, and she reported her concerns regarding Agah’s research to Turrens, who is a professor and associate dean at USA. Agah sought compensatory and punitive damages against the defendants for the alleged theft and conversion of her computerized electronic-research data and the alleged theft and conversion of her animal-research logbook and intentional interference with a contractual property right arising out of the termination of her employment by USA. Agah also sued “R.T., W.B.D., R.F., whose names are known and unknown to the Plaintiff, but are those individuals, corporations, or other entities that played a role in the theft of the Plaintiffs electronic computer data files and animal research logbook, the defamation of the Plaintiffs character, and the intentional interference with the Plaintiffs property right of employment.” The caption of Agah’s complaint provided that the identities of R.T., W.B.D., and R.F. would be “added when ascertained.” Other than referring to the initialed parties in the caption and the description of the initialed parties above, Agah’s complaint refers only to Bartlett and Turrens as defendants from whom she is seeking relief.

In response to interrogatories propounded by Bartlett and Turrens, Agah stated that she planned to call as witnesses Richard Talbott, William Brad Davis, and Ronald Franks, among others. On December 12, 2012, Agah was deposed, and in her deposition she identified “R.T.” as Richard Talbott, “W.B.D.” as William Brad Davis, and “R.F.” as Ronald Franks. She acknowledged that these were the same individuals to whom she referred in her original complaint. Talbott, Davis, and Franks are all USA employees who were involved in the review of Agah’s alleged research misconduct.

On March 21, 2013, Agah filed an amended complaint. In the amended complaint, she identified the initialed defendants as Talbott, Davis, and Franks. For the first time, Agah named USA as a defendant, along with Stephen Ballard, Dusty Layton, and Susan LeDoux, in their individual capacities. Ballard, Layton, and LeDoux are USA employees. Agah also sued “A, B, and C, whose names are known and unknown to the Plaintiff at this time, but will be added when ascertained.”

In her amended complaint, Agah asserted claims (1) seeking a judgment declaring that USA had failed to comply with Agah’s express and implied tenure-track employment contract; (2) asserting a claim of tortious interference with contractual relations in that all the defendants had knowledge of Agah’s tenure-track employment contract and, as a proximate cause of the defendants’ interference, her contract was not renewed; (3) alleging tortious violations of her procedural and substantive due-process rights arising out of the failure of USA and the defendants who were USA employees to comply with USA’s employee handbook and certain federal regulations regarding research being conducted pursuant to a federal grant; (4) alleging suppression arising out of the alleged suppression by certain defendants’ (Franks, Talbott, Turrens, Davis, LeDoux, Layton, and Ballard) of her right to counsel and of material facts regarding compliance with federal regulations; (5) alleging defamation arising out of false information disseminated by the defendants about Agah; (6) alleging intentional infliction of emotional distress arising out of the defendants’ actions that caused her tenure-track employment contract to be terminated; (7) alleging negligent infliction of emotional distress arising out of certain of the defendants’ failure to review her work in compliance with the USA employee handbook and certain federal regulations; (8) alleging abuse of process arising out of certain of the defendants’ failure to comply with the USA employee handbook and federal regulations; (9) alleging conversion and detinue arising out of the taking of her animal-research logbook from her office at USA; and (10) alleging invasion of privacy arising out of obtaining her animal-research logbook without her permission. She requested a judgment of $10,000,000, an order appointing a special master to conduct a fair and impartial investigation into the allegations against her of research misconduct, and an order requiring the return of her animal-research logbook undamaged.

USA filed a motion to dismiss Agah’s claims against it, arguing immunity from civil actions under § 14, Const, of Ala. 1901. The trial court denied the motion, and USA filed a petition for a writ of mandamus with this Court. We granted USA’s petition and ordered the trial court to dismiss USA from Agah’s action. Ex parte University of South Alabama, 183 So.3d 915 (Ala.2015). Davis, Franks, and LeDoux filed motions to dismiss, which are still pending in the trial court.

The petitioners (Talbott, Ballard, and Layton) each filed a motion to dismiss. Each argued, among other things, that, with the exception of the conversion and detinue claim, Agah’s remaining claims accrued in February 2010 when her employment was terminated, that Agah’s amended complaint did not relate back to the original complaint, and that the remaining claims asserted in the amended complaint were time-barred. They also argued that they were entitled to immunity with respect to Agah’s claims alleging tortious interference with contractual rights, tor-tious violations of her procedural and substantive due-process rights, and conversion and detinue, because, they argued, they were sued in their individual capacity and lacked the authority to grant Agah her requested injunctive relief. The petitioners attached deposition testimony and other evidence in support of their motions. On July 11, 2013, Agah filed a response to the petitioners’ motions.

Following a hearing, the trial court denied all three motions on January 28, 2015. The trial court stayed the proceedings pending mandamus review. The petitioners timely filed their petition on March 11, 2015.

Standard of Review

““‘A writ of mandamus is an extraordinary remedy, and it ‘will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ” ’
“Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). A writ of mandamus is the proper means by which to seek review of a denial of a motion to dismiss filed by a party originally listed as a fictitiously named defendant ‘when “the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.’” Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596-97 (Ala.2005) (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala. 1999))....”

Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1289-90 (Ala.2008). Likewise, mandamus review is available where the petitioner asserts immunity. Ex parte Alabama Peace Officers’ Standards & Training Comm’n, 34 So.3d 1248 (Ala. 2009).

Discussion

The first question presented is whether the trial court exceeded its discretion in denying the petitioners’ motions, in essence determining that Agah’s substitution of Talbott, Ballard, and Layton for the fictitiously named defendants in the amended complaint of March 21, 2013, relates back to the filing of the original complaint of July 28,2011. This Court has previously stated that Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P., “ ‘allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.’” Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala.2005) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Rule 9(h), Ala. R. Civ. P., provides:

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

Rule 15(c)(4), Ala. R. Civ. P., provides that “[a]n amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h), Ala. R. Civ. P "

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

“(1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued. Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d 955 (Ala.1983).”

Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala.1996). This Court has also stated that the original complaint must adequately describe the fictitiously named defendant and the stated claim against that defendant. Fulmer, 654 So.2d at 46.

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

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

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

Agah’s employment was terminated on February 26, 2010. She filed her original complaint on July 28, 2011. She listed “R.T.” as a defendant and described the party as an individual or entity “that played a role in the theft of [Agah’s] electronic computer data files and animal research logbook, the defamation of [Agah’s] character, and the intentional interference with [Agah’s] property right of employment.” The substance of Agah’s original complaint is that Bartlett and Turrens converted her animal-research logbook, defamed her, and caused her to lose her employment with USA. In her deposition on December 12, 2012, Agah identified “R.T.” as Talbott. On March 21, 2013, Agah filed an amended complaint in which she substituted Talbott for “R.T.” and named Ballard and Layton as defendants.

Agah failed to adequately describe a fictitiously named defendant such that it would have related to Ballard or Layton as there were no initials that correlated to their names and no “generic” fictitious-defendant names listed in the original complaint. “A complaint stating a claim against a fictitiously named defendant must contain sufficient specificity to put that defendant on notice of the plaintiffs claim if it were to read the complaint.” Ex parte International Refining & Mfg. Co., 972 So.2d 784, 789 (Ala.2007). Agah included three very specific sets of initials in the caption of her complaint. During her deposition on December 21, 2012, Agah stated that the “R.T.” in her original complaint was Talbott. The original complaint does not set forth any claim in the body of the complaint against the initialed defendants. “Merely naming the fictitious party in the style and/or body of the complaint is insufficient; the complaint must describe the actions that form the basis of the cause of action against the fictitiously named defendant.” Ex parte International Refining, 972 So.2d at 789. This Court in International Refining held that the plaintiffs had provided specific factual assertions relating to only one claim against the fictitiously named defendants, and the Court dismissed the rest of the plaintiffs’ claims against those defendants, finding that a general statement that “[r]eferences to ‘defendants’ in this complaint will be understood to include fictitious party defendants” was inadequate to put them on notice of the claims against them. 972 So.2d at 790-91.

Agah has not shown that she was ignorant of the true identities of the parties intended to be sued in the sense of having no knowledge of the parties’ identities at the time the original complaint was filed, nor has she shown due diligence in attempting to discover the identities the fictitiously named parties or in promptly amending her complaint once she had discovered their identities. The petitioners were all employees of USA directly involved in the proceedings arising out of Agah’s alleged misconduct that eventually led to the termination of her employment. Agah even referenced Talbott’s initials in her original complaint. Agah filed her amended complaint over a year after the statute of limitations had run on all but one of her claims and 19 months after her original complaint was filed.

“The purpose of [Rule 9(h)] is, in effect, to counteract the relatively short statute of limitations for tort, negligence, and wrongful death claims in this State. The rule applies when a plaintiff knows he has been injured by someone and the plaintiff can describe that person or entity (i.e., ‘the manufacturer of the valves that injured the plaintiff), but the plaintiff is ignorant of the specific name of the person or entity. It is an emergency action that allows the plaintiff to hold a spot for the unidentified party with a fictitious name. The only additional requirement is that the plaintiff state the cause of action against the fictitiously named defendants within the body of the complaint. Columbia Eng’g Int'l Ltd. v. Espey, 429 So.2d 955, 958-59 (Ala.1983). If the plaintiff diligently pursues the identity and substitutes the name of the fictitiously named defendant, see Rule 9(h) and Bowen [v. Cummings, 517 So.2d 617 (Ala.1987) ], then the plaintiff can substitute the newly discovered name for the fictitiously named defendant. Because the fictitious name serves as a placeholder for the party, [Ala.] R. Civ. P. 15(c) allows the substituted name to relate back to the date of the original complaint. In that way, the plaintiff effectively tolls the statute of limitations.”

Toomey v. Foxboro Co., 528 So.2d 302, 307 (Ala.1988)(Adams, J., dissenting).

In Ex parte Ismail, 78 So.3d 399 (Ala. 2011), the plaintiff was allegedly injured while a patient at Highlands Medical Center. The patient had knowledge, based on medical records in his possession before filing the complaint, that Dr. Younus Ismail had been one of two treating physicians. 78 So.3d at 407. Nevertheless, the patient did not attempt to substitute Dr. Ismail for a fictitiously named party until more than two years after the limitations period on his cause of action had expired. 78 So.3d at 403. Thus, the issue in that case was not one of identity but, rather, the extent of the involvement of the physician, whose identity was known, with the patient. Essentially, in other words, the plaintiff was improperly, 78 So.3d at 408, attempting to use Rule 9(h) to gain “additional time beyond the statutorily prescribed period within which to formulate causes of action.” Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala. 1983).

In Crawford v. Sundback, supra, the plaintiffs were employed at a chemical plant; they sued following an explosion of a tank at the chemical facility. The plaintiffs named fictitious defendants. They later sought to amend their complaint to substitute coworkers at the facility as defendants. The coworkers filed summary-judgment motions seeking dismissal from the action. This Court held that the plaintiffs were not ignorant of the identity of the coworkers as defendants and, thus, that the subsequent amendment adding the coworkers did not relate back to date of original complaint for statute-of-limitations purposes.

“In support of their motions for summary judgment, the defendants gave affidavits stating that before the accident they had known the four workers as co-employees and that the four workers had known them as co-employees, in some instances for many years. The defendants asserted that the plaintiffs could have found them by routine discovery, for example, by asking in interrogatories to the co-employee defendants originally named in the plaintiffs’ complaints the true identities of the parties named fictitiously. Attached to the motions for summary judgment were copies of petitions to obtain and perpetuate evidence, filed in December 1989 by the plaintiffs pursuant to Rule 27, Ala. R.Civ.P., and an affidavit by an attorney for some of the defendants, who stated that on February 7,1990, he attended an inspection of the 3M plant pursuant to those petitions. Thus, the defendants showed that the plaintiffs had begun discovery shortly after the fatal incident.
“The plaintiffs argue that they were diligent and that the defendants’ allegations were insufficient to shift the burden to them to produce substantial evidence of their diligence. However, we conclude that the defendants’ motions were sufficient to shift the burden. The motion asserted the statute of limitations as a defense; this motion appeared on its face to have merit, because some of the substitutions of these defendants were made almost two years after the date when the statutory period of limitations ordinarily would have run, and some substitutions were made more than two years after that date. Moreover, the motions went further, asserting that the plaintiffs knew when they filed their complaints, or with due diligence could have discovered by that time, that these defendants were the parties named fictitiously in the complaints. These assertions were supported by affidavits of the defendants, three of whom stated that before the accident Rains [one of the plaintiffs] had known them and had known their responsibilities. The defendants argued that simple discovery, such as interrogatories to the co-employee defendants who were named in the original complaints, would have disclosed their identities. They established that the plaintiffs began conducting discovery within six months after the incident, but claimed not to have learned of these defendants’ alleged culpability until almost four years after the incident, or later.
“In response, the plaintiffs made no showing as to why Rains’s familiarity with three of the defendants did not lead to earlier substitution at least as to those three, or as to how the alleged failure to discover earlier these defendants’ alleged culpability occurred in spite of due diligence. The plaintiffs simply presented a conclusory affidavit of one of their attorneys, stating that these defendants’ culpability had only recently come to light in depositions, and stating: ‘At all times during my involvement with these cases, I exercised due diligence to discover any and all parties legally responsible for the injuries and deaths suffered in the explosion.’ This was not sufficient to present substantial evidence in response to the defendants’ showings.”

678 So.2d at 1060-61.

In the present case, Agah’s claims against the petitioners in her amended complaint, with the exclusion of the conversion and detinue claim, are barred by the applicable two-year statute of limitations. The claims asserted in the amended complaint do not relate back to the original complaint under Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P.

We now turn to Agah’s conversion and detinue claim. The statute of limitations for “detention or conversion of personal property” is six years. § 6-2-34(3), Ala.Code 1975. To establish conversion, a plaintiff must show a wrongful taking or a wrongful detention or interference or an illegal use or misuse of his or her property. Ex parte Anderson, 867 So.2d 1125 (Ala.2003). “To be entitled to the right of recovery for conversion, plaintiff must have general or special title to the property in question, and the possession or immediate right of possession; and the party complained against must have wrongfully exerted some act of dominion over such property inconsistent with and destructive of the title of the party plaintiff.” Hamilton v. Hamilton, 255 Ala. 284, 289, 51 So.2d 13, 18 (1951). “[T]he very gist of detinue is the wrongful detention by the defendant of the plaintiffs personal property.” Ray v. Blackwell, 521 So.2d 44, 45 (Ala.Civ.App.1988).

The petitioners argue that they are immune from suit based on § 14. In reviewing the grant or denial of a motion to dismiss, the question “ ‘is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief.’ ” Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 398 (Ala. 2003) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). In the present case, the trial court had before it, in addition to the pleadings, deposition testimony and other documents. Ex parte Jefferson Cnty. Dep’t of Human Res., 63 So.3d 621 (Ala.2010) (treating a motion to dismiss based on immunity as a summary-judgment motion where the trial court had before it and considered matters outside the pleadings).

Article 1, § 14, of the Alabama Constitution, provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” This Court has recognized:

“ ‘The wall of immunity erected by § 14 is nearly impregnable,’ Patterson [v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002),] and bars
“(1) claims against the State,
“(2) claims against a State agency,
“(3) claims against a state official or employee sued in his official capacity as an agent for the State, and
“(4) claims against a state official or employee sued in his individual capacity.”

Ex parte Davis, 930 So.2d 497, 500 (Ala. 2005) (footnotes omitted). “The State’s immunity bars suits for relief by way of mandamus or injunction, no less than suits for any other remedy.” Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983).

The fourth category of claims set out in the statement above from Davis refers to claims against State officials or employees sued in their individual capacities that are, in effect, claims against the State. Davis, 930 So.2d at 500 (“Whether immunity serves as a defense to an action against a state officer or employee sued in his individual capacity depends upon the degree to which the action involves a State interest.”); Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989) (“State officers and employees, in their official capacities and individually, also are absolutely immune from suit when the action is, in effect, one against the State.”). “This form of immunity is distinct from the discretionary or State-agent immunity discussed in Ex parte Cranman, 792 So.2d 392 (Ala.2000), which dealt with claims against State agents sued in their personal, or individual, capacities, which were not, in effect, claims against the State.” Ex parte Troy Univ., 961 So.2d 105, 108 (Ala.2006). State employees sued in their individual capacities, however, enjoy only State-agent immunity from suit. Ex parte Tuscaloosa Cnty., 796 So.2d 1100, 1106 (Ala.2000). The law of State-agent immunity was succinctly restated in Ex parte Cranman, supra, and that restatement was adopted by a majority of this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000).

Here, Agah’s conversion and deti-nue claims involving the animal-research logbook seek an order returning the logbook and monetary damages for the time the logbook was out of her possession when she needed it for her defense. The petitioners were sued only in their individual capacities. However, part of Agah’s relief is in the form of return of the property. In Ex parte Moulton, 116 So.3d 1119, 1142 (Ala.2013), this Court held that, to the extent the plaintiff sought relief in the form of reinstatement to an employment position from the defendants in their individual capacities, “that claim is meaningless because the [defendants] can act on behalf of [the state university] only in their official capacities and are without the necessary authority to provide the requested relief in their individual capacities.” Here, Agah’s amended complaint refers only to Bartlett, Amy Boyd (a witness), and Tur-rens with regard to the alleged conversion of the animal-research logbook, none of whom are before us in this petition. Moreover, Agah’s complaint alleges that the logbook was her “personal and intellectual property,” but in her subsequent deposition Agah stated that the logbook belonged to USA and that she was merely the custodian. A plaintiffs sworn deposition testimony overrides unsworn allegations in a complaint. See Osborn v. Johns, 468 So.2d 103 (Ala.1985)(holding that in a fraud action by a vendor against a bank, the vendor’s deposition testimony that he had no basis for a claim against the bank showed an absence of any genuine issue of material fact and entitled the bank to judgment as a matter of law, where the vendor “essentially relied on his initial pleadings” to oppose summary judgment). Because Agah did not sue the petitioners in their official capacities, they could not provide her with the relief requested, i.e., the return of the animal-research logbook “taken” by USA students or employees, who were persons other than the petitioners. Additionally, Agah is seeking monetary relief from the petitioners arising out of the taking of the logbook. The allegations in Agah’s amended complaint concern the removal of the logbook from Agah’s “custody” by certain USA students or employees, not the petitioners. Also, any claims brought against the petitioners in their individual capacities seeking money damages are barred by State immunity under § 14 where the claim is in effect one against the State. Ex parte Moulton, supra.

Conclusion

Based on the foregoing, the petitioners have a clear legal right to the dismissal of Agah’s amended complaint against them. Agah’s amended complaint did not relate back to her original complaint; thus, all of her claims against the petitioners, with the exclusion of her conversion and detinue claim, were barred by the statute of limitations. Agah’s conversion and detinue claim against the petitioners in their individual capacities seeks relief that the petitioners could not provide. Therefore, we grant the petition for a writ of mandamus and- direct the trial court to vacate its order denying the petitioners’ motion seeking dismissal of the claims against them.

PETITION GRANTED; WRIT ISSUED.

SHAW, MAIN, WISE, and BRYAN, JJ., concur.

PARKER and MURDOCK, JJ., concur in the result.

MOORE, C.J., dissents.

STUART, J., recuses herself.

MURDOCK, Justice

(concurring in the result).

The claims of detinue and conversion in this case are framed by the plaintiff, who is the “master of her complaint,” as claims against the petitioners personally, or in their individual capacities. If we were to treat these claims as they are framed by the plaintiff, they would fail on their merits rather than on the ground of immunity. Specifically, the ground on which they would fail on their merits would be simply that the defendants have not breached a duty owed to the plaintiff in their individual capacities. It is only in their official capacities that they owe any duty or in which they have acted or could act.

Ultimately, therefore, I believe that disposing of claims framed like those in the present case as barred by the doctrine of sovereign immunity as if they were official-capacity claims involves the use of a legal fiction. But it is a useful legal fiction. Treating such claims as “in effect against the State” allows the trial court to consider dismissing them at an early stage in the litigation based on a defense of immunity and, in turn, allows interlocutory appellate review by mandamus of the trial court’s decision in this regard. As a result, the use of this legal fiction may be as efficacious a way as any to articulate a rule of decision that protects the State’s ability to act lawfully through its employees and agents and to protect its contract and property rights, without the time and cost of litigation being imposed on those agents. Compare Ex parte Dickson, 46 So.3d 468, 474 (Ala.2010):

“In any event, a suit for injunctive relief against a State official in his or her individual capacity would be meaningless. This is so, because State officials act for and represent the State only in their official capacities. Consequently, the members are not aided by [Ex parte ] Cranman[, 792 So.2d 392 (Ala.2000),] or its progeny.”

(Some emphasis added.) See also DeStafney v. University of Alabama, 413 So.2d 391, 394 (Ala.1981) (quoting Milton v. Espey, 356 So.2d 1201, 1202-03 (Ala.1978)):

“ ‘There is no dispute that in employing Milton, Espey was acting in his official capacity as an agent of the University. Milton admits this. Espey was merely the conduit through which the University contracted with Milton. Thus, a suit seeking money damages for breach of contract, although nominally against Espey individually, comes within the prohibition of Section U. as a suit against the State. Milton’s contract was in fact with the University of Alabama.’ ”

      . A University of South Alabama ("USA”) employee may have physical possession of the logbook, but he or she has that possession not in his or her individual capacity, but only as an arm or conduit of USA; he or she has no personal authority over the disposition of the logbook. Likewise, a USA employee may have physically removed the logbook from the plaintiff’s office, but the employee did so in accordance with the instruction of a superior and as an arm of USA and, in so doing, did not, in his or her individual capacity, breach a duty owed to the plaintiff.