author: GRIFFIS, P.J., FOR THE COURT: CARLTON, J., DISSENTING:

text:
    James Clarence MCGLOTHIN a/k/a James McGlothin a/k/a James C. McGlothin, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01202-COA
    Court of Appeals of Mississippi.
    August 22, 2017 Rehearing Denied March 6, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. James Clarence McGlothin was convicted of unlawful possession of a firearm by a convicted felon, in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). Finding reversible error, we reverse and render the conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2014, McGlothin was under surveillance by the Coastal Narcotics Enforcement Team. McGlothin met with a criminal informant. Thereafter, a search warrant was issued for the home where the meeting took place. Upon execution of the warrant, 2 members of the narcotics team entered the home and found no one there.

¶ 3. Inside they found that the home contained two bedrooms. There was women's clothing in one bedroom. In the other bedroom, the agents found a man's wallet on a dresser. The wallet contained McGlothin's identification card, social-security card, bank card, and several casino player's cards. There were receipts in McGlothin's name inside a dresser drawer. They also found a loaded Titan .25 semiautomatic handgun inside the pocket of a man's jacket that was hanging inside the closet.

¶ 4. During the search, a woman arrived at the home. She identified herself as the homeowner and McGlothin's grandmother. She informed the agents that her granddaughter, McGlothin's sister, lived in the home. The woman contacted McGlothin via cell phone and placed him on the line with an agent. McGlothin informed the agent that he would arrive at the home within ten to fifteen minutes, but he did not.

¶ 5. A warrant was issued for McGlothin's arrest. He was arrested three months later.

¶ 6. The handgun found in the home was examined and tested at a forensics lab. It was determined that the firearm worked properly. No fingerprints were taken from the weapon.

¶ 7. A grand jury indicted McGlothin, as a habitual offender, for the unlawful possession of a firearm by a convicted felony. The jury returned a guilty verdict. McGlothin was sentenced to serve ten years in the custody of the Mississippi Department of Corrections (MDOC), as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015).

¶ 8. McGlothin filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. He asserted that the circuit judge should have granted his motion for a directed verdict or peremptory jury instruction D-1, because the State had failed to prove his guilt beyond a reasonable doubt. The circuit judge denied the motion. McGlothin appeals.

STANDARD OF REVIEW

¶ 9. In a challenge to the sufficiency of the evidence presented at trial, the Mississippi Supreme Court has held:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion ... for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.

Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Carr v. State , 208 So.2d 886, 889 (Miss. 1968) ) (internal quotation marks omitted). When analyzing the sufficiency of evidence, "the relevant question is whether after viewing the evidence in the light most favorable to the [State], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (citing Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ).

ANALYSIS

¶ 10. This court has held "to establish a felon in possession of a firearm, '[t]he State has the burden to prove that the defendant was a convicted felon and willfully possessed a firearm.' " Davis v. State , 199 So.3d 701, 703 (¶ 9) (Miss. Ct. App. 2016) (citation omitted). The State offered evidence that McGlothin had two prior felony convictions. In 2006, he was convicted of possession of a controlled substance with intent, and in 2009, he was convicted of possession of a controlled substance. Both offenses were felonies. McGlothin does not challenge his status as a convicted felon.

¶ 11. Instead, in this appeal, McGlothin argues that the State failed to prove that he possessed a firearm. He claims that the State did not prove: (1) he was in proximity to the firearm; (2) there was evidence that connected him to the firearm; and (3) the firearm was located on premises that were exclusively under his control.

¶ 12. "It is undisputed that [McGlothin] was not actually in possession of the [firearm]." Peden v. State , 132 So.3d 631, 633 (¶ 3) (Miss. Ct. App. 2014). "Therefore, in order to sustain the conviction, the State was required to prove that [he] constructively possessed the [weapon]." Id. "Constructive possession allows the prosecution to establish possession of contraband when evidence of actual possession is absent." Davis, 199 So.3d at 703 (¶ 9) (citation omitted).

¶ 13. "[T]here must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular [contraband] and was intentionally and consciously in possession of it." Id. at 704 (¶ 9).

I. Dominion or Control

¶ 14. "Constructive possession may be shown by establishing that the [item] involved was subject to [McGlothin's] dominion or control." Id. (citation omitted). During the trial, a special agent testified that the home's owner was unknown prior to the execution of the search warrant. The agent also testified that McGlothin's grandmother came to the home while the officers were searching the premises. She indicated that she owned the home and that her granddaughter lived there.

¶ 15. "The owner of the premises where the contraband is found is rebuttably presumed to be in possession of the contraband." Gavin v. State , 785 So.2d 1088, 1093 (¶ 17) (Miss. Ct. App. 2001). In Evans v. State , 802 So.2d 137, 142 (¶ 13) (Miss. Ct. App. 2001), this Court found that the presumption was rebutted against the homeowner because the defendant and the homeowner had equal access to the firearms located in a closet. There was evidence that established the firearms were kept in the same closet as the defendant's clothes, the defendant stayed in the home overnight, and the defendant had handled the guns on several occasions. Id. at 141 (¶¶ 12-13). This was ruled to establish constructive possession of the firearms by the defendant. Id.

¶ 16. In this appeal, the State argues that McGlothin's wallet and the receipts in the drawer were sufficient evidence to prove that McGlothin lived in the home. None of these documents listed McGlothin's address as 514 Jefferson Street, which was the address of this home. Instead, the identification card and a receipt from the circuit clerk's office listed McGlothin's home address as 258 Magnolia Street in Biloxi, Mississippi. We find that this evidence offered against McGlothin is distinguishable from Evans . There was no testimony that McGlothin lived or stayed overnight in the home, that the clothes in the closet belonged to him, or that he had handled the firearm in the past. There was also no testimony that McGlothin's fingerprints were found on the gun.

¶ 17. In Gavin, 785 So.2d at 1091 (¶¶ 2-3), a search warrant was issued after a criminal informant was sent to meet with the defendant. After a search, officers located several weapons, and the defendant was charged with multiple counts of possession of a weapon by a convicted felon. Id. at (¶¶ 2-3). On appeal, there was evidence that the defendant handled one of the guns at an earlier time, but no other evidence connected him to the weapon. Id. at 1094 (¶ 21). This Court held that "being in a closed area such as a vehicle or a room with contraband does not by itself permit the inference of dominion and control. If the accused is the owner of the premises, or if he is the exclusive user for some extended period of time, or if there are additional incriminating circumstances, then the inferences might be permissible." Id. In that case, the State failed to prove that the defendant was "intentionally and consciously in possession of the weapon on the day charged." Id. at (¶ 20) (citation omitted). In Gavin , we found insufficient evidence to support the conviction, and this Court reversed on the issue.

¶ 18. Here, the State asserts that McGlothin was observed standing on the home's front porch six days before the warrant was executed. This fact alone does not indicate that McGlothin had dominion or control over the residence, any particular room in the home, or even the jacket where the gun was found. There was no testimony that he owned the home or resided there. The State offered no evidence to establish when the firearm was placed in the pocket of the jacket or any evidence that McGlothin had ever worn the jacket. Finally, the state could not connect the firearm to McGlothin through fingerprints. There was simply no competent evidence offered to establish that McGlothin had dominion or control over the residence.

II. Proximity

¶ 19. "Proximity to [the contraband] is a factor, but is not determinative." Affleck v. State , 210 So.3d 1067, 1080-81 (¶ 46) (Miss. Ct. App. 2015) (citation omitted). In Affleck , police arrived at an apparent crime scene and found the defendant standing near the shed where a shotgun was found. Id. The defendant was suspected of killing his girlfriend, and police noticed blood in various locations of his property, including on the outside of the shed. Despite proof that the defendant had multiple roommates, this Court found that he failed to rebut the presumption that he constructively possessed the shotgun. Id. at 1081 (¶ 47).

¶ 20. In Peden, 132 So.3d at 634 (¶¶ 5-6), this Court found sufficient evidence to convict the defendant of constructive possession because he was found lying in bed, within arm's reach of a bag of crack cocaine. In Body v. State , 147 So.3d 890 (Miss. Ct. App. 2014), evidence established that the defendant had constructive possession of a gun that was found inside of a backpack. Id. at 893 (¶ 12). The backpack had been abandoned behind shrubbery, but an officer identified it as the same bag that the defendant was wearing when he was spotted running away from the scene of a shooting. Id. at (¶ 13). This Court found that "[the defendant] had constructive possession of the gun because of its close proximity to him in the backpack." Id. at (¶ 17).

¶ 21. In each of these cases, this Court found constructive possession of contraband after each defendant was found in close proximity to the item. Constructive possession was also established through other circumstances that connected them to the contraband. While McGlothin was observed standing on the home's porch six days before the firearm was found, this alone is not enough to establish constructive possession. There is no evidence to indicate when the gun was placed in the home. There was also no testimony confirming who had access to the home. McGlothin was not observed wearing the jacket where the gun had been located. The State produced no evidence indicating that he either owned the jacket or had accessed the jacket before the search warrant was executed.

¶ 22. In cases where the defendant is not the owner of the premises or in exclusive possession, then the State must prove some "competent evidence connecting him with the contraband." Id. (citation omitted). Here, that has not been done. In Naylor v. State , 730 So.2d 561, 566 (¶ 32) (Miss. 1998), this Court reversed and rendered after it found that the "only evidence linking [the defendant] to the cocaine [was] that he was in close proximity to the drugs when it was found in the bathroom." While the defendant was at the home, the State did not prove that he lived in the home. Id. This Court noted that the only other evidence admitted against the defendant was that his wallet was found in a closet where police also found firearms. Id. In that case, we found that the evidence was insufficient to prove that the defendant possessed cocaine. Id.

¶ 23. "On review, all reasonable inferences are given in the light most favorably to the verdict." Gavin, 785 So.2d at 1094 (¶ 24) (citation omitted). The State presented a theory that McGlothin lived in the home where the gun was located. The theory was based on the fact that his wallet and identification were found on a dresser in a room that contained men's clothing. The State further based its theory on the fact that McGlothin was observed standing on the home's porch just days before the search warrant was executed. "The theory may be correct, but there was not any additional incriminating evidence beyond [the] presence [of McGlothin's identification in a room] to support constructive possession of ... the weapon[ ]." Id.

¶ 24. This Court has previously found that the mere fact that a defendant may have once handled a weapon "does not permit an inference of dominion and control on the day covered by the indictment." Id. Here, there was no evidence to establish that McGlothin had ever handled the firearm or that he had knowledge of its existence. We find insufficient evidence to support the conviction. We reverse and render McGlothin's conviction of unlawful possession of a firearm by a felon, in violation of section 97-37-5.

¶ 25. REVERSED AND RENDERED.

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

CARLTON, J., DISSENTING:

¶ 26. Because I would affirm the trial court's judgment, I respectfully dissent from the majority's opinion.

¶ 27. "In a circumstantial[-]evidence case, 'the test to be applied in considering the sufficiency of proof is whether a rational fact[-]finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged.' " Harris v. State , 908 So.2d 868, 871 (¶ 9) (Miss. Ct. App. 2005) (quoting Shields v. State , 702 So.2d 380, 382 (Miss. 1997) ). When reviewing a challenge to the sufficiency of the evidence in a criminal case, the State receives the benefit of all favorable inferences that may reasonably be drawn from the evidence. Wilson v. State , 936 So.2d 357, 363 (¶ 16) (Miss. 2006). In a case based entirely upon circumstantial evidence, "[a] mere fanciful or farfetched or unreasonable hypothesis of innocence is not sufficient to require an acquittal[.]" Cotton v. State , 144 So.3d 137, 140 (¶ 3) (Miss. 2014) (quoting Montgomery v. State , 515 So.2d 845, 848 (Miss. 1987) ).

¶ 28. Precedent establishes that this Court will only reverse if the trial court abused its discretion in denying a motion for a new trial. Howell v. State , 860 So. 2d 704, 764 (¶ 212) (Miss. 2003). Moreover, "[t]he power to grant a new trial, on the basis of the weight of the evidence, should be invoked only in exceptional circumstances, when the evidence weighs heavily against the jury's verdict." Wilson , 936 So.2d at 363 (¶ 16).

¶ 29. Precedent further establishes that "[a]n item is within one's constructive possession when it is subject to his dominion or control." Keys v. State , 478 So.2d 266, 268 (Miss. 1985). Also, "[c]onstructive possession may be established by direct evidence or circumstantial evidence." Id. In the present case, the record reflects sufficient circumstantial evidence, and favorable inferences to be objectively drawn therefrom, to support the jury's verdict and from which the jury could find that McGlothin, a felon, exercised possession, dominion, and control over the loaded semiautomatic firearm in the room that the jury could conclude he inhabited. Therefore, I dissent from the majority's opinion.

GREENLEE, J., JOINS THIS OPINION.


source: Caselaw Access Project

author: WESTBROOKS, J., FOR THE COURT:

license: Public Domain

text:
    Michael BARNES, Appellant v. LFI FORT PIERCE, INC., Labor Finders and ACE American Insurance Company, Appellees
    NO. 2017-WC-00341-COA
    Court of Appeals of Mississippi.
    February 6, 2018
    ATTORNEY FOR APPELLANT: CHADWICK LESTER SHOOK
    ATTORNEY FOR APPELLEES: M. REED MARTZ
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Michael Barnes (Barnes) appeals the Mississippi Workers' Compensation Commission order sustaining the administrative judge's determination that Barnes did not suffer a compensable injury. We find the Commission's order is supported by substantial evidence and therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 23, 2015, Barnes was employed by Labor Finders, a temporary, pay-by-the-day labor provider for individuals and businesses. Labor Finders sent Barnes to a construction site. While at the site, Barnes explained that he was instructed to retrieve sinks from upstairs and bring them downstairs. Barnes alleged that while bringing the sinks downstairs, he missed a step and tumbled. Barnes managed to grab the rail, but he nevertheless fell on his back. As a result of the fall, Barnes injured his back and tailbone. Barnes stated that no one witnessed the fall, and he did not tell anyone about the fall. He explained that he spent the rest of his workday retrieving extension cords.

¶ 3. At the end of the day, Barnes returned to Labor Finders and signed an acknowledgment that he had been paid for that day. The acknowledgment of pay also included a disclaimer that Barnes had not sustained any work-related injuries on that day. The following day, Barnes experienced lumbar pain and stated that he could not walk. As a result, Barnes's son drove him to the job site to report the injury. He wrote a statement of the incident and was taken to a medical provider by his supervisor. Barnes was diagnosed with narrowing L4-5 arthritic changes. Following the incident report and physician's diagnoses, Labor Finders began to pay Barnes temporary benefits for his injury. However, Labor Finders ceased to pay those benefits after it discovered that Barnes did not disclose a back surgery that he had twenty years prior to the date of his injury.

¶ 4. Barnes filed a petition to controvert with the Workers' Compensation Commission. Labor Finders denied Barnes's claim, citing the false statements he made on his job application, and terminated Barnes thereafter. A compensability hearing was held before an administrative judge, and the judge found that Barnes failed to prove that he suffered a compensable injury. Barnes's petition was dismissed, and he appealed the decision to the full Commission.

¶ 5. Prior to the Commission's decision, Barnes filed a motion to supplement the record, requesting that the Commission consider additional evidence not made part of the record before the administrative judge. Both parties briefed the matter, but no oral argument was held. The Commission affirmed the administrative judge's dismissal and incorporated the administrative judge's decision as its own, while also denying Barnes's motion to supplement the record. It is from that order that Barnes now appeals. Barnes raises the following issues on appeal: (1) the Commission disregarded Barnes's testimony regarding the work-related injury; (2) the Commission erred in refusing to supplement the record to include all medical records connected to the medical-records affidavit; and (3) whether the receipt-of-payment acknowledgment form violates public policy.

STANDARD OF REVIEW

¶ 6. "This Court employs a substantial-evidence standard of review to resolve a workers' compensation case; however, the standard of review is de novo when the issue is one of law and not of fact." Forrest Gen. Hosp. v. Humphrey , 136 So.3d 468, 471 (¶ 14) (Miss. Ct. App. 2014) (citing Hugh Dancy Co. v. Mooneyham , 68 So.3d 76, 79 (¶ 6) (Miss. Ct. App. 2011) ). "Absent an error of law, we must affirm the Commission's decision if there is substantial evidence to support [it]." Id.

¶ 7. "In a workers' compensation case, the Commission is the trier and finder of facts." Id. "If the Commission's order is supported by substantial evidence, this Court is bound by the Commission's determination, even if the evidence would convince us otherwise if we were the fact-finder." Id. "On the other hand, reversal is proper where the Commission has misapprehended the controlling legal principles, as the standard of review in that event is de novo." Id.

ANALYSIS

I. Whether the Commission erred in finding Barnes did not suffer a compensable injury.

¶ 8. Barnes argues that the Commission disregarded his testimony regarding his work injury. He maintains that he could not report his injury to his job supervisor pursuant to Labor Finders' receipt-of-pay acknowledgment, requiring employees to report injuries directly to Labor Finders. Barnes says that even if he had reported the injury to his supervisor, it would not have complied with Labor Finders' contract provision that all work injuries be reported to the employer.

¶ 9. Labor Finders argues that Barnes's testimony regarding the injury was contradicted by his on-the-job supervisor's observations. Barnes's supervisor testified that he transported Barnes to and from the work site, and Barnes did not exhibit any signs of impairment. Labor Finders also presented evidence that Barnes disclaimed an injury when he signed the receipt-of-pay acknowledgment. The administrative judge found that Barnes's failure to report the accident on that day did not correlate with the seriousness of the accident. The Commission affirmed and adopted the administrative judge's findings.

¶ 10. Barnes was the only witness to his accident and did not report the accident on the date that it occurred. Barnes's supervisor testified that Barnes did not exhibit signs of impairment after the time Barnes alleged the incident occurred. Barnes disclaimed his injury on Labor Finders' receipt-of-payment form. Though Barnes alleges that failure to sign that form would result in forgoing payment for that day, Labor Finders' regional director testified that payment was not contingent upon signing the form.

¶ 11. "We will only reverse the Commission's rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious." Langley v. Waddle , 206 So.3d 1262, 1263-64 (¶ 3) (Miss. Ct. App. 2016) (citing Moore's Feed Store Inc. v. Hurd , 100 So.3d 1011, 1017 (¶ 20) (Miss. Ct. App. 2012) ). "No court can reweigh the evidence[.] [T]he Commission is the fact-finder and the judge of the credibility of witnesses." Id. The Commission found that Barnes did not present substantial evidence that he sustained a compensable work-related injury. Barnes's testimony and evidence did not corroborate his allegations, and his actions were not commensurate with the serious nature of the injury. Accordingly, this argument is without merit.

II. Whether the Commission erred in denying Barnes's motion to supplement the record.

¶ 12. Barnes argues that the Commission erred in denying his motion to supplement the record. Barnes acknowledges that the admission or exclusion of evidence is in the discretion of the fact-finder; however, he argues that if one section of a medical record is admitted, the remaining sections should be admitted. Labor Finders argues that Barnes failed to support his argument with authority and failed to comply with Mississippi Workers' Compensation Commission Procedural Rule 9. Labor Finders contends that if this Court addresses the argument, Barnes's motion to supplement failed to comport with Rule 9. The rule provides that the "motion [to supplement] shall state with particularity the nature of such evidence, the necessity therefor, and the reason it was not introduced at the evidentiary hearing." Miss. Admin. Code § 20-2-1:2.9.

¶ 13. "For a case to be reversed based on the admission or exclusion of evidence, a party must be actually prejudiced, harmed, or have a substantial right adversely affected." Walls v. Franklin Corp. , 177 So.3d 1156, 1164 (¶ 35) (Miss. Ct. App. 2015). Barnes's motion offered no explanation for the reason the supplemental evidence was not introduced during the evidentiary hearing. Barnes does not address his failure to comply with section 20-2-1:2.9. Barnes also does not cite any authority to support his contention that the Commission erred in denying his motion. Accordingly, we find no merit to this argument.

III. Whether the receipt-of-payment acknowledgment form violates public policy.

¶ 14. Lastly, Barnes argues that the receipt-of-payment acknowledgment form is an implied contract of adhesion and is unconscionable. Barnes argues that Labor Finders has no reasonable basis to require the form be submitted daily. Barnes cites to the work-injury notice provisions of Mississippi Code Annotated section 71-3-35 (Rev. 2011), which require a claim of a work-related injury be submitted within thirty days after the injury. Barnes asserts that the pay-acknowledgment form is pretextual and empowers employers to subvert the purpose of the Workers' Compensation Act by requiring employees to unknowingly disclaim work-related injuries. Labor Finders argues that the form is a statement of fact, not a contract. Labor Finders further submits that Barnes failed to cite authority to suggest that requesting the statement of fact was contrary to public policy.

¶ 15. Though Mississippi requires that an employer receive actual notice of a compensable injury within thirty days of its occurrence, such provision does not constrict employers' policies regarding work-related injuries. Barnes acknowledges that he signed the form, but asserts that he would not have been paid if he refused. Labor Finders presented evidence that was contrary to Barnes's statement that payment was contingent upon signing the receipt-of-pay acknowledgment form. The administrative judge considered that provision in conjunction with Barnes's actions on the day of the injury and found that Barnes did not suffer a compensable work-related injury. We agree.

¶ 16. We find that Barnes did not present substantial evidence that he sustained a compensable injury.

¶ 17. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: FAIR, J., FOR THE COURT:

text:
    Spartacus ALFORD, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01534-COA
    Court of Appeals of Mississippi.
    February 6, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS,
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Spartacus Alford was convicted of two counts of sexual battery, one count of attempted sexual battery, and one count of touching a child for lustful purposes, for which he received three life sentences and fifteen years' imprisonment without the possibility of parole, respectively, all to be served concurrently. The charges relate to the sexual abuse of his niece, Abby, who was six years of age at the time. On appeal, Alford contends the circuit court erred in admitting the accounts of three other nieces or nephews who testified to sexual abuse by Alford, including one account under the tender-years exception to the rule against hearsay. Alford also complains that his rights under the Confrontation Clause were violated by the prosecutor's use of a screen to obstruct his vision of the victim when she testified. We find no abuse of discretion in the evidentiary rulings, and the Confrontation Clause issue has not been preserved for appeal. We therefore affirm.

DISCUSSION

1. Other Bad Acts Evidence

¶ 2. Mississippi Rule of Evidence 404(b) provides that "[e]vidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." However, such evidence may "be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. In Derouen v. State , 994 So.2d 748, 756 (¶ 20) (Miss. 2008), the Mississippi Supreme Court held that "evidence of a sexual offense, other than the one charged, which involves a victim other than the victim of the charged offense for which the accused is on trial" is not per se error "if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury."

¶ 3. In a recent decision, the Mississippi Supreme Court held that such evidence should survive the 403 relevance/prejudice analysis if it "demonstrate[s] that the defendant's means of accomplishing pedophilic sexual activities on past occasions bear substantial resemblance to each other and with the present offense, which serve[s] as proof of motive and a common plan or scheme." Boggs v. State , 188 So.3d 515, 520 (¶ 13) (Miss. 2016) (citation and internal quotation marks omitted). Under Rule 403, the circuit court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

¶ 4. Here, the prosecution offered the accounts of three other victims: "Betty," "Claire," and "David." Each was related to Alford in a similar way to the charged victim-they were Alford's step-niece, great-niece, and nephew, respectively. All four children were prepubescent at the time of the sexual acts, and the acts occurred while Alford was living or staying in the same households as the victims. The witnesses also testified to the various means Alford used to discourage them from disclosing the abuse. The circuit judge admitted the evidence after observing that the other acts were "similar enough" because "all three witnesses were very young in age [like the victim,] abused in a similar intrafamilial context[,] and in a similar manner."

¶ 5. The admission of evidence is within the discretion of the trial court and can only be reversed on appeal if that discretion has been abused. Eckman v. Moore , 876 So.2d 975, 984 (¶ 31) (Miss. 2004).

¶ 6. Alford contends that the allegations regarding the other victims were not similar to the charged offenses. He focuses on the specific sexual acts Alford was alleged to have committed with each child: Betty testified that Alford made her perform oral sex on him; Claire said Alford touched her genitals while touching himself; and David testified that Alford made him touch Alford's penis. Alford was tried for anal and vaginal penetration of Abby with his penis, attempting to cause her to perform oral sex on him, and for causing Abby to touch his penis with her hands. Alford also points out that David was male, while Abby and the other victims were female.

¶ 7. Certainly, it would provide a stronger case for admission if the victims were all of the same sex or the defendant had employed an identical progression of sexual acts with each victim. But the standard for admission is simply a "substantial resemblance"; "overwhelming similarities" bolster the case for admission but are not required. See Green v. State , 89 So.3d 543, 549-51 (¶ 17) (Miss. 2012). Gore v. State , 37 So.3d 1178 (Miss. 2010), is instructive as a closer case where the facts still permitted the trial court to admit the evidence. Gore was tried for gratification of lust for touching his granddaughter, a twenty-one-month-old toddler, with a vibrator. The trial court admitted the accounts of the defendant's son and daughter, who testified that Gore had required them to visit a nudist colony and to remain undressed in the home when they were children, and that he had struck the daughter when she resisted. The daughter further testified that-when she was age twelve-Gore had touched her genitals, digitally penetrated her, and shown her child pornography. See id. at 1184-85 (¶¶ 15-16). Despite the many differences between these incidents with Gore's children and the charges concerning the granddaughter, our supreme court found that, with regard to the sexual assault of the daughter, Gore's "means of accomplishing these activities on past occasions bear substantial resemblance to each other and with the present offense." Id. at 1187 (¶ 20). The evidence relating to the forced nudity of both children was likewise admissible. Id. The case for admission of the other incidents in the present case is far stronger than it was in Gore .

¶ 8. Alford also asserts that the probative value of Betty's testimony was "minimal" because the incident occurred more than twenty years before the instant offenses. This is an argument that has often been made in similar cases and has been consistently and "overwhelmingly" rejected by Mississippi courts. See Fountain v. State , 85 So.3d 913, 920-21 (¶ 22) (Miss. Ct. App. 2012) ; see also Young v. State , 106 So.3d 775, 780 (¶ 18) (Miss. 2012) ; Gore , 37 So.3d at 1187 (¶ 20) ; Harris v. State , 165 So.3d 473, 476 (¶ 8) (Miss. Ct. App. 2015) ; Westbrook v. State , 109 So.3d 609, 614-15 (¶¶ 17-18) (Miss. Ct. App. 2013).

¶ 9. Alford next contends that the circuit court was required to undertake an express, on-the-record weighing of the probative value and prejudicial effects of the evidence, which the circuit court did not do in this case. He cites Archer v. State , 118 So.3d 612, 625-26 (¶ 57) (Miss. Ct. App. 2012), for the proposition that the circuit court "should" make such findings. While we agree with Archer on that point, and we reaffirm its recommendation that trial courts make such findings explicitly and on the record, Archer went on to observe that:

[E]ven in 404(b) cases, "our review depends on the evidence and not the judge, and while a judge's on-the-record analysis is recommended as it serves to fortify the judge's position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial." [ Jones v. State , 920 So.2d 465, 476 (¶ 34) (Miss. 2016) ]. "It is inherent that nearly all evidence is prejudicial to a party in one way or another. The inquiry as it regards admissibility is whether that prejudice is unfair." Abrams v. Marlin Firearms Co. , 838 So.2d 975, 981 (¶ 22) (Miss. 2003).

Archer , 118 So.3d at 625-26 (¶ 57).

¶ 10. Finally, Alford cites to Flowers v. State, 773 So.2d 309 (Miss. 2000), a death penalty case where the supreme court found error in the admission of excessive evidence of other bad acts. Flowers was being tried for a single murder, but the prosecution introduced extensive evidence relating to three other murders committed at nearly the same time. The evidence was offered for the (valid) noncharacter purpose of the necessity to tell the whole story of the charged offense, but the supreme court found that the prosecution had gone too far by offering cumulative and often gruesome evidence relating to the other victims. See id. at 325 (¶ 52). This focus on the other victims was not "necessary" to tell the whole story of the charged offense, and it was so unfairly prejudicial to the defendant that it failed the Rule 403 balancing test. Id. at 321-22 (¶¶ 35-36).

¶ 11. Flowers is inapposite because the noncharacter purposes at issue in the instant case-motive and common scheme or plan-are different. Moreover, while our supreme court found in Flowers that the evidence of other killings, as presented and under the particular facts of that case, was unnecessary to the prosecution, the supreme court has repeatedly emphasized the necessity of evidence of other, similar sex crimes against children:

[S]ex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim. The only viable proof of motive, intent, plan, knowledge, identity[,] or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant.

Gore , 37 So.3d at 1185 (¶ 18) (quoting Derouen , 994 So.2d at 754-55 (¶ 17) ). Furthermore, in this case-unlike in Flowers -the very occurrence of the prior incidents was disputed, and the victims were of tender years and had difficulty relating the incidents. Thus we cannot find the introduction of hearsay evidence relating to the other incidents "unnecessary."

¶ 12. Considering the authorities we have discussed, we cannot find that the circuit court abused its discretion in admitting the evidence relating to the incidents with the other children.

2. Confrontation Clause

¶ 13. Finally, Alford contends that his rights under the Sixth Amendment's Confrontation Clause were violated by the presence of a "screen" in the courtroom, which he alleges was used by the prosecutor to obstruct his view of the victim during her testimony.

¶ 14. This issue has simply not been preserved for appeal. The trial transcript reflects that, immediately prior to the victim's testimony, the prosecutor advised the trial judge of his concern that the victim would not take the stand willingly, and he proposed several options to seat the child in the witness stand and facilitate her testimony-but none of them involved preventing Alford from seeing the child when she testified. After the prosecutor presented his proposed options, Alford requested a mistrial without elaboration or argument; the motion was denied by the trial court as premature. The child was later seated in the witness stand with the jury out, and the prosecutor stated on the record that he was going to position himself in such a way as to block the victim's view of some of the courtroom. The judge then observed that a screen-apparently already present in the courtroom-would do the same thing. It is unclear from the record whether the screen was moved or whether it was already in position prior to the victim's testimony, nor was it observed at that time that it interfered with Alford's view of the victim. When he began his cross-examination of the victim, Alford's attorney requested that the screen be moved so he, the attorney, could see her face during the examination. When this request was made, it was granted. The only suggestion that the screen ever blocked Alford's view came at the beginning of the testimony of the next witness, when the trial judge sua sponte ordered that the screen be moved again and observed that Alford had a right to see the witness as she testified.

¶ 15. Thus, it is apparent that the record is unclear as to what Alford could see during the victim's testimony because Alford made no contemporaneous complaint. "It is the appellant's duty to make sure a claimed error is properly preserved on record." Ballenger v. State , 667 So.2d 1242, 1252 (Miss. 1995). Failure to make an adequate record bars the issue from consideration on appeal. Id. Moreover, Alford's motion for a mistrial, made prior to any suggestion that his view would be impeded, was not a contemporaneous objection and did not preserve the issue for appeal. Id. at 1251. This issue has been waived.

¶ 16. Finally, Alford requests, in a cursory fashion without citation to authority, that we consider these complaints under a plain error standard of review or that we find his defense counsel constitutionally ineffective for failing to object to the prosecutor's actions. The record is not adequate to consider either contention, and the failure to adequately brief these contentions on appeal renders them abandoned. See, e.g., Duncan v. State , 939 So.2d 772, 779 n.3 (Miss. 2006).

¶ 17. No reversible error has been shown under this issue.

¶ 18. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      We use fictitious names to protect the identity of minors who are victims of sexual abuse.

      Alford's brief frames this as two separate issues: a general challenge to the admissibility of the prior bad acts, and a specific challenge to certain hearsay testimony about the same acts. As Alford's arguments on both issues overlap substantially, we address them together.


text:
    CLC OF BILOXI, LLC d/b/a Biloxi Community Living Center, Appellant v. MISSISSIPPI DIVISION OF MEDICAID and David J. Dzielak, in his official capacity as Executive Director of the Division of Medicaid, Appellees
    NO. 2016-CC-01034-COA
    Court of Appeals of Mississippi.
    February 13, 2018
    ATTORNEYS FOR APPELLANT: JAMES RAY MOZINGO, LYDIA QUARLES, HORACE HUNTER TWIFORD IV
    ATTORNEYS FOR APPELLEES: JANET MCMURTRAY, LAURA L. GIBBES
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. CLC Biloxi sought a per diem reimbursement from the Mississippi Division of Medicaid (DOM) for their respiratory-therapist expenses. The DOM denied CLC Biloxi's request. After an administrative hearing, the DOM executive director affirmed the DOM. CLC Biloxi then appealed to Hinds County Chancery Court, which also affirmed the DOM. Finally, CLC appealed to this Court. After review, we find the DOM's decision to deny CLC reimbursement for respiratory-therapist expenses on a per diem basis was supported by substantial evidence. Accordingly, we affirm.

FACTS

¶ 2. CLC Biloxi is a long-term skilled nursing facility that entered into a contract with the DOM to provide nursing-home services to Mississippi residents. In turn, the costs of the services provided by CLC Biloxi were reimbursed by the DOM in two ways: (1) as an expense could be billed directly to Medicaid for reimbursement of a specific service; and (2) CLC Biloxi could file an annual cost report with the DOM, which could include certain allowable costs or services that have been incurred to provide reasonable care to Medicaid patients; the cost report would be used to calculate a per diem cost of care for Medicaid patients.

¶ 3. Among the numerous services CLC Biloxi provided to Medicaid patients, respiratory therapy was utilized to treat nursing-home patients who suffered from a pulmonary illness. Although most respiratory-therapy services could be treated by a regular nursing staff, CLC Biloxi employed "respiratory therapists" to provide certain respiratory treatments to patients.

¶ 4. On May 29, 2009, CLC Biloxi filed its annual cost report for allowable expenses incurred during 2008. It listed its respiratory therapists' salaries on Form 6, Line 2, under therapy expenses. In response to CLC Biloxi's original 2008 cost report, the DOM performed a "desk review," to ensure that necessary adjustments were made before the DOM reimbursed CLC Biloxi for services rendered. Upon review of the cost report, the DOM determined not to reimburse CLC Biloxi for the respiratory-therapist salaries once it calculated the appropriate per diem to be provided. On August 2, 2010, CLC Biloxi filed an amended cost report with the DOM. Unlike the original 2008 cost report, CLC Biloxi sought reimbursement for the respiratory-therapist salaries as a direct care expense on Form 6, Line 1. In contrast to the initial desk review of the original 2008 CLC Biloxi cost reports, the first amended desk review handed down by the DOM on January 12, 2011, allowed the respiratory therapists' salaries to be used to calculate CLC Biloxi's per diem. Accordingly, approximately $82,000 in salaries for respiratory therapists was included in CLC's per diem calculation.

¶ 5. Upon discovery of the improper classification made by CLC Biloxi, the DOM issued a second amended desk review on March 2, 2012. Consequently, the DOM removed the respiratory-therapist salaries from CLC Biloxi's per diem calculation, as was done in the original desk review. As a result, the DOM sought to recoup the $82,000 that had been paid to CLC Biloxi for the inclusion of respiratory-therapist salaries in their per diem rates.

¶ 6. In response, on March 30, 2012, CLC Biloxi requested an administrative appeal of the adjustments handed down by the DOM in the second amended desk review. Less than a month later, the DOM denied the appeal. Upon denial of the appeal, CLC Biloxi requested an administrative hearing. Following the hearing, the hearing officer recommended and the DOM executive director affirmed the DOM's disallowance of the respiratory therapists' salaries as part of CLC Biloxi's per diem calculation.

¶ 7. On October 23, 2013, CLC Biloxi filed a complaint in the Hinds County Chancery Court seeking declaratory and injunctive relief to prevent the DOM from breaching its contract with CLC Biloxi and from adopting what CLC Biloxi believed to be "an arbitrary and capricious interpretation of its controlling regulations." The DOM then filed a motion to dismiss the complaint and challenged the chancery court's jurisdiction to hear administrative appeals from the DOM. The case was stayed pending the outcome of the interlocutory appeal in Mississippi Division of Medicaid v. Alliance Health Center , 174 So.3d 254, 263 (¶ 26) (Miss. 2015), in which the Mississippi Supreme Court affirmed the jurisdiction of the chancery court over appeals from the DOM.

¶ 8. On March 29, 2016, the chancery court heard oral arguments on the dispute. Ultimately, on June 21, 2016, the court affirmed the DOM's final decision and held that the language found in the State Medicaid Plan (State Plan), its policy provider manual, and cost report "does not include respiratory therapists within those categories of therapists that are allowed to enroll as Medicaid providers and thus receive direct reimbursement for their services." Further, the court found that CLC Biloxi did not fall within the categories of medical facilities that are allowed a per diem reimbursement for respiratory therapists' salaries.

¶ 9. CLC Biloxi filed the instant appeal.

STANDARD OF REVIEW

¶ 10. We will reverse the decision of an administrative agency only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party's statutory or constitutional right. Hinds Cty. Sch. Dist. Bd. of Trs. v. R.B. ex rel. D.L.B. , 10 So.3d 387, 394-95 (¶ 17) (Miss. 2008). An agency may not adopt rules and regulations that are contrary to statutory provisions, or that exceed or conflict with the authority granted by statute. Miss. Pub. Serv. Comm'n v. Miss. Power & Light Co. , 593 So.2d 997, 1000, 1004 (Miss. 1991).

¶ 11. "An agency's interpretation of a rule or statute governing the agency's operation is a matter of law that is reviewed de novo, but with great deference to the agency's interpretation." Buffington v. Miss. State Tax Comm'n , 43 So.3d 450, 454 (¶ 12) (Miss. 2010). This "duty of deference derives from our realization that the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate." Gill v. Miss. Dep't of Wildlife Conservation , 574 So.2d 586, 593 (Miss. 1990). An agency's interpretation will not be upheld if "it is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an abuse of discretion[,] or otherwise not in accordance with law." Buelow v. Glidewell , 757 So.2d 216, 219 (¶ 10) (Miss. 2000).

DISCUSSION

¶ 12. Mississippi Code Annotated section 43-13-117(A) (Rev. 2015) requires the DOM to "include payment of part or all of the costs ... of the following types of care and services rendered to eligible applicants who have been determined to be eligible for that care and services, within the limits of state appropriations and federal matching funds." Section 43-13-117(A)(4)(a)-(f) specifies the required assistance and payment methods for nursing facility services. Miss. Code Ann. 43-13-117(A)(4). Mississippi Code Annotated section 43-13-121(1) (Rev. 2015) grants the DOM the following administrative authority over the Medicaid program:

(1) The division shall administer the Medicaid program under the provisions of this article, and may do the following:
(a) Adopt and promulgate reasonable rules, regulations and standards, with approval of the Governor, and in accordance with the Administrative Procedures Law, Section 25-43-1.101 et seq.:
(i) Establishing methods and procedures as may be necessary for the proper and efficient administration of this article;
(ii) Providing Medicaid to all qualified recipients under the provisions of this article as the division may determine and within the limits of appropriated funds;
(iii) Establishing reasonable fees, charges and rates for medical services and drugs; in doing so, the division shall fix all of those fees, charges and rates at the minimum levels absolutely necessary to provide the medical assistance authorized by this article, and shall not change any of those fees, charges or rates except as may be authorized in [s]ection 43-13-117 ....

1. Denial of Reimbursement

¶ 13. To fully understand both CLC Biloxi and the DOM's arguments, it is important to examine all relevant portions of the State Plan, policy provider manual, and cost-report instructions. The State Plan is promulgated and administered by the DOM. It is then approved by the Mississippi attorney general and the governor, and ultimately checked for compliance with federal Medicaid regulations by the federal Centers for Medicare and Medicaid. Any proposed changes or adoptions must be approved by the same respective parties.

¶ 14. Attachment 4.19-D of the State Plan provides guidelines for the reimbursement for medical-assistance beneficiaries of long-term care facilities:

A facility's direct care costs, therapy costs, care related costs, administrative and operating costs and property costs related to covered services will be considered in the findings and allocation of costs to the Medical Assistance Program for its eligible recipients. Costs included in the per diem rate will be those necessary to be incurred by efficiently and economically operated nursing facilities that comply with all requirements of participation in the Medicaid program with the exception of services provided that are reimbursed on a fee for service basis or as a direct payment outside of the per diem rate.

CLC Biloxi originally filed its cost report by reporting its respiratory-therapist salaries under Section 2 Therapy Expenses on Form 6, Line 2, as provided in Attachment 4.19-D, Section A(18):

Costs attributable to the administering of therapy services should be reported on Form 6, Line 2. Therapy expenses will be included in the per diem rate for NFSD, PRTF and ICF/IID providers. Therapy expenses for Small Nursing Facilities and Large Nursing Facilities will be reimbursed on a fee for service basis.

The cost-report instructions for including therapy expenses are specified in Form 6:

Line 2 Therapy Expense Costs attributable to the administering of therapy services must be included in Section 2, Lines 2-01 through 2-16 ....
Line 2-01, Salaries-Occupational Therapists[:] Gross salaries of occupational therapists
Line 2-02, Salaries-Physical Therapists[:] Gross salaries of physical therapists
Line 2-03, Salaries-Speech Therapists[:] Gross salaries of speech therapists
Line 2-04, Salaries-Other Therapists[:] Gross salaries of therapists other than occupational therapists, physical therapists and speech therapists, including but not limited to, respiratory therapists ....

(Emphasis added).

¶ 15. Under Section A(18), only three types of facilities, all of which are high acuity facilities, are allowed to claim respiratory-therapy expenses as part of their per diem calculation: (1) NFSD: private nursing facility for the severely disabled; (2) PRTF: psychiatric residential treatment facility; and (3) ICF/IID: intermediate care facility for the intellectually challenged. CLC Biloxi, as a large nursing facility, does not qualify for per diem reimbursement. Rather, Section (A)(18) states that "[t]herapy expenses for [s]mall [n]ursing [f]acilities and [l]arge [n]ursing [f]acilities will be reimbursed on a fee for service basis."

¶ 16. CLC Biloxi originally placed the respiratory-therapist salaries on Form 6, Line 2, as required in Section (A)(18). The DOM claims it denied reimbursement because respiratory therapy is not reimbursable on a fee-for-service basis for respiratory therapists working in small and large nursing facilities. The DOM explains that, although respiratory therapy in small and large nursing facilities is "allowable," it is not "coverable" because Section 50.02 of the policy provider manual specifically states that DOM "does not enroll respiratory therapist[s] as eligible providers and does not directly reimburse respiratory therapists for services provided to Medicaid beneficiaries." In other words, since respiratory therapists cannot be "providers," their salaries cannot be covered on a fee-for-service basis.

¶ 17. After the DOM denied reimbursement for the salaries on Form 6, Line 2, CLC Biloxi did not appeal. Instead, it amended its cost report to include its respiratory-therapist salaries under Section 1, Direct Care Expenses, on Form 6, Line 1-01: "Salaries-Aides[,] Gross salary of certified nurse aids and nurse aides in training." CLC Biloxi claims this was proper because respiratory therapists are not actually "therapists" for purposes of the State Plan, but instead are "salaried direct care staff" under Attachment 4.19-D Chapter 2, Section A(15) of the State Plan:

15. Salaries and Fringe Benefits. Allowable costs include payments for salaries and fringe benefits for those employees who provide services in the normal conduct of operations related to patient care. These employees include, but are not limited to, registered nurses, licensed practical nurses, nurses aides, other salaried direct care staff , director of nursing, dietary employees, housekeeping employees, maintenance staff, laundry employees, activities staff, pharmacy employees, social workers, medical records staff, non-owner administrator, non-owner assistant administrator, accountants and bookkeepers and other clerical and secretarial staff.

(Emphasis added).

¶ 18. To support its argument, CLC Biloxi cites the Mississippi Respiratory Care Practice Act (MRCPA), Mississippi Code Annotated section 73-57-5(e) (Rev. 2017), which states that the "[p]ractice of respiratory care shall include, but not be limited to: direct and indirect respiratory care services ...." However, CLC Biloxi disregards that 42 U.S.C. § 1396a(e)(9)(C) (2017), the federal statute governing state plans for medical assistance, refers to respiratory therapists as "therapists." Further, the MRCPA itself refers to persons who practice respiratory care as therapists:

An applicant for a license to practice respiratory care shall submit to the board written evidence, verified by oath, that the applicant holds a credential, conferred by the National Board of Respiratory Care, as a Certified Respiratory Technician (CRT) and/or as a Registered Respiratory Therapist (RRT) , or their successor credentials, providing such credential has not been suspended or revoked, or at the time of application has not lapsed.

Miss. Code Ann. § 73-57-17(1) (Rev. 2017) (emphasis added). DOM's determination of how to allocate funding is entirely within its discretion. Based on our reading of the statutes listed above, we agree with the DOM that respiratory therapists are "therapists" for purposes of the State Plan. We also agree that Section (A)(18) requires small and large nursing facilities to report respiratory-therapy expenses on Form 6, Line 2.

¶ 19. The DOM has no statutory requirement to provide funds for respiratory therapy. Nevertheless, it chooses to provide funding for respiratory services on a per diem basis for three different types of long-term care facilities-private nursing facilities for the severely disabled (NFSD); psychiatric residential treatment facilities (PRTF); and intermediate care facilities for the intellectually challenged (ICF/IID). As a large nursing facility, CLC Biloxi does not fall into any of those categories. Nor do respiratory therapists fall into the category of salaried direct-care staff in Attachment 4.19-D Chapter 2, Section A(15). Accordingly, we affirm the DOM's finding that CLC Biloxi was not allowed to place its respiratory therapists' salaries on Line 1-01 of the cost report.

2. Freedom of Choice

¶ 20. CLC Biloxi next argues that the DOM's prohibition of respiratory therapists in small and large nursing facilities, but approval of the same in hospitals and higher acuity nursing facilities, violates the "freedom of choice" provision in Mississippi Code Annotated section 43-13-5 (Rev. 2015). Section 43-13-5 addresses medical assistance for the aged and provides that "no regulation shall be promulgated [that] limits or abridges the recipient's free choice of the provider of medical and remedial care or service." As the DOM points out, the term "[m]edical assistance for the aged" is defined to mean "payment of part or all of the cost" of a specifically defined scope of care and services, as set forth in the statute. Miss. Code Ann. § 43-13-3(1)(a)-(l ) (Rev. 2015) (emphasis added).

¶ 21. Contrary to CLC's contention, section 43-13-5 is not so broad to imply that the DOM's decision to limit payment for respiratory therapy limits a recipient's freedom of choice. As previously stated, the DOM has no statutory requirement, through 42 U.S.C. § 1396a (e)(9)(C) (2017) or section 43, to provide funding for respiratory therapy. Even so, the DOM does provide funding for respiratory therapy in some facilities; although small and large nursing facilities are not included, those patients have the choice to seek respiratory care at a hospital, where respiratory-therapy expenses are included for inpatient hospital reimbursement. See State Plan Attachment 4.19-A.

3. Due Process

¶ 22. Finally, CLC Biloxi asserts that its due-process rights have been violated because the DOM is allowed to recoup the $82,000 in respiratory-therapist salaries that CLC Biloxi was erroneously paid. Both the United States and Mississippi Constitutions guarantee a right to due process before an administrative agency. See U.S. Const. amend. XIV § 1 ; Miss. Const. art. 3, § 14. Administrative proceedings are to be "conducted in a fair and impartial manner, free from any just suspicion or prejudice, unfairness, fraud, or oppression." Miss. State Bd. of Health v. Johnson , 197 Miss. 417, 417, 19 So.2d 445, 447 (1944). The minimum procedural due-process requirements an administrative board must afford parties are notice and an opportunity to be heard. Booth v. Miss. Emp't Sec. Comm'n , 588 So.2d 422, 428 (Miss. 1991). Here, CLC Biloxi has been afforded all the due-process protections provided by the DOM's administrative process and has availed itself of the appeals afforded by both the chancery court and this Court. Accordingly, we find no due-process violation has occurred.

¶ 23. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Specifically, CLC Biloxi utilized respiratory therapists to assist in the treatment of patients who had undergone tracheotomies.

      It should be noted, however, that the DOM's first amended desk review explicitly stated, "[y]our cost report is subject to additional adjustments brought to the attention of the [DOM] and may be selected for field review, which could result in changes and additional adjustments." Therefore, the DOM made it clear to CLC Biloxi that the per diem rate could be adjusted at any given time.

      The court held that under the controlling State Plan, only three types of facilities are entitled to reimbursement of therapy expenses as part of their per diem calculation: private nursing facilities for the severely disabled (NFSD); psychiatric residential treatment facilities (PRTF); and intermediate care facilities for the intellectually challenged (ICF/IID). Since CLC Biloxi was classified as a large nursing facility (LNF), the court found that it was not entitled to claim respiratory-therapy expenses as part of its per diem calculation.


author: MAIN, Justice.

text:
    Randall WOODFIN et al. v. General BENDER et al.
    1150797
    Supreme Court of Alabama.
    March 31, 2017 Rehearing Denied May 19, 2017
    Afrika C. Parchman, Birmingham Board of Education, Birmingham; and Carl Johnson and Claire H. Puckett of Bishop, Colvin, Johnson & Kent, LLC, Birmingham, for appellants.
    Jerome Tucker and Janice Pierce Groce of Law Office of Jerome Tucker, LLC, Birmingham, for appellees.
    Sam Heldman of The Gardner Firm, Washington, D.C.; and Gayle H. Gear, Birmingham, for amici curiae Harrinda Smith and Marion Street, in support of the appellees.
   MAIN, Justice.

Members of the Birmingham Board of Education and the superintendent of the Birmingham City School System (hereinafter collectively referred to as "the defendants") appeal the Jefferson Circuit Court's judgment in favor of 24 "classified employees" of the Birmingham Board of Education (hereinafter collectively referred to as "the plaintiffs"). The trial court held that the plaintiffs' salaries had been miscalculated and awarded them monetary relief. The defendants argue, among other things, that they are entitled to immunity from the plaintiffs' claims. We agree that the defendants are entitled to immunity. For that reason, the trial court lacked subject-matter jurisdiction, and its judgment is void. Accordingly, we dismiss the appeal.

Facts and Procedural History

On December 30, 2011, numerous classified employees of the Birmingham Board of Education ("the Board") sued the Board, the Board's members in their official capacities, and the superintendent of the Birmingham City School System, in his official capacity. The plaintiffs claimed that when the Board adopted a new salary schedule in August 2004, existing employees, including the plaintiffs, were not reassigned to the proper "steps" on the new salary schedule and, thus, that their wages were miscalculated. Specifically, in their amended complaint, the plaintiffs alleged:

"... Defendants adopted a new pay schedule about August of 2004.
"... The [Board] instituted a policy of assigning employees to pay steps correspondent to the total number of years of service. Through the implementation of the new schedule and pay policy, defendants determine salary rates on the basis of total years of experience.
"... Defendants did not implement the new pay schedule with existing employees who occupied positions encompassed by the new pay schedule and policy in August 2004. Rather, the defendants continued to pay plaintiffs at their present rates of pay that did not recognize their years of experience.
"... With the implementation of the new 16-step pay schedule, defendants failed to make corresponding adjustments to plaintiffs' step assignments to reflect prior experience in the like manner to the pay rates set for the new supervisory hires or their newly promoted peers. As a result, defendants place the newly hired or newly promoted personnel at pay steps above the veteran employees. Hence, the new hires and newly promoted employees now make substantially more money than their more experienced peers.
"... Despite numerous meetings and discussions with the defendants pointing out the mistake and the obvious pay inequity, the defendants have stubbornly, willfully, arbitrarily and maliciously refused to adjust plaintiffs' salary to reflect total years of experience. Defendants have made no effort to correct the ministerial error of assigning plaintiffs to the proper pay step to reflect years of experience."

It is undisputed that in August 2004 the Board implemented a new salary schedule that included multiple pay "steps." The then current employees were placed on the step of the new salary schedule that most closely approximated their then current pay, and none of those employees received a reduction in pay. The plaintiffs argued that current employees were assigned to a step on the new salary schedule that most closely corresponded to their then current rate of pay. They argued that each employee should have been assigned to the step that directly corresponded to his or her years of experience, which, they say, would have resulted in a significant pay increase for each of the plaintiffs. According to the plaintiffs, the Board's official policy stated that an employee's "step" on the new pay schedule must correspond to the employee's total years of experience. Further, according to the plaintiffs, assigning each employee to the step that corresponded with his or her years of experience was a ministerial act, and the defendants had no discretion in determining each employee's salary step. The plaintiffs contended that, because the defendants did not assign the plaintiffs to "steps" that corresponded to their years of experience, the plaintiffs' salaries were miscalculated and incorrect payments were made on their behalfs to the Retirement System of Alabama, which resulted in reduced pension benefits for the plaintiffs.

The plaintiffs' claims are based on the following language found in the "introduction" to the salary schedule that was first adopted by the Board in August 2004:

"Certified salaries (teacher) in the salary schedule are based on years of experience, degree/certification and/or assignment. Effective February 1, 1996, certified employees (teachers) were approved to be paid on their highest degree, regardless of the teaching assignment. Years of experience are categorized as 'STEPS' on the schedule. Experience for teachers will be granted based on public education in this system, other public education experience in the State of Alabama, or other public education experience outside the state. It is the responsibility of the employee to submit the appropriate information pertaining to experience, degree/certification and to verify the receipt of the accurate salary."

(Emphasis added.)

In their complaint, the plaintiffs requested declaratory, mandamus, and injunctive relief. Specifically, the plaintiffs requested that the defendants be directed to pay the plaintiffs at the proper rate of pay reflecting their years of experience, that the trial court "issue a declaratory judgment finding that the defendants' purported actions of inequitably paying [the plaintiffs] shall be corrected such that all employees' salaries shall be based upon their years of experience," and that the trial court "declare[ ] that the plaintiffs are entitled to back pay and adjustment of their current salary to reflect years of service." Further, the plaintiffs alleged that the "defendants' actions constitute unlawful, unreasonable, capricious, and arbitrary conduct and represent an abuse of the defendants' official power and discretion" and that "the Board's failure and refusal to establish proper salary schedules which include length of service steps for all classes of employees does not entail a discretionary act but rather is the ignoring of a duty exacted by law."

The trial court dismissed the Board from the case on the basis of State immunity but allowed the action to proceed against the defendants in their official capacities. After conducting a bench trial, the trial court found that the plaintiffs' salaries had been miscalculated and awarded them the monetary relief they requested. The defendants appealed.

Discussion

On appeal, the defendants argue, among other things, that they are entitled to immunity from the plaintiffs' claims. The plaintiffs respond that "the Birmingham Board of Education must follow its own duly adopted salary schedule. An employee can sue when the school system fails to do that; and immunity does not bar monetary relief in such a case." Plaintiffs' brief, at 30. Further, the plaintiffs argue that "state sovereign immunity does not bar an order against official capacity defendants, regarding proper payment for work actually performed, including proper placement on the salary schedule." Id., at 34.

"[T]he State of Alabama shall never be made a defendant in any court of law or equity." Article I, § 14, Ala. Const. 1901. "Section 14 immunity is more than a defense; when applicable, it divests the trial courts of this State of subject-matter jurisdiction." Alabama State Univ. v. Danley, 212 So.3d 112, 127 (Ala. 2016).

Concerning § 14 immunity, this Court has stated:

" 'The wall of immunity erected by § 14 is nearly impregnable. Sanders Lead Co. v. Levine, 370 F.Supp. 1115, 1117 (M.D. Ala. 1973) ; Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala. 1983) ; Hutchinson v. Board of Trustees of Univ. of Alabama, 288 Ala. 20, 24, 256 So.2d 281, 284 (1971). This immunity may not be waived. Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala. 2001) ("The State is immune from suit, and its immunity cannot be waived by the Legislature or by any other State authority."); Druid City Hosp. Bd. v. Epperson, 378 So.2d 696 (Ala. 1979) (same); Opinion of the Justices No. 69, 247 Ala. 195, 23 So.2d 505 (1945) (same); see also Dunn Constr. Co. v. State Bd. of Adjustment, 234 Ala. 372, 175 So. 383 (1937). "This means not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury." State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added); see also Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963).'
" Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002)."

Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872-73 (Ala. 2004).

"Section 14 immunity is not absolute; there are actions that are not barred by the general rule of immunity.
" '[C]ertain actions are not barred by § 14. There are six general categories of actions that do not come within the prohibition of § 14 : (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; (4) actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation; (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. See Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 58 (Ala. 2006) (quoting Ex parte Carter, 395 So.2d 65, 68 (Ala. 1980) ); Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831 (Ala. 2008)
(holding that the exception for declaratory-judgment actions applies only to actions against State officials). As we confirmed in Harbert, these "exceptions" to sovereign immunity apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies. See Alabama Dep't of Transp., 990 So.2d at 840-41.'
" Ex parte Alabama Dep't of Fin., 991 So.2d 1254, 1256-57 (Ala. 2008). The sixth 'exception' to § 14 immunity was restated in Ex parte Moulton, 116 So.3d 1119, 1141 (Ala. 2013), as follows:
" '(6)(a) actions for injunction brought against State officials in their representative capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967), and (b) actions for damages brought against State officials in their individual capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, subject to the limitation that the action not be, in effect, one against the State. Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989).' "

Ex parte Hampton, 189 So.3d 14, 17-18 (Ala. 2015).

" 'These actions are sometimes referred to as "exceptions" to § 14 ; however, in actuality these actions are simply not considered to be actions " 'against the State' for § 14 purposes." Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002). This Court has qualified those "exceptions," noting that " '[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiff's recovery of money from the [S]tate.' " Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala. 2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala. Civ. App. 1995) ) (emphasis added in Jones ).'
" Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala. 2008)."

Vandenberg v. Aramark Educ. Servs., Inc., 81 So.3d 326, 332 (Ala. 2011).

" 'To determine whether an action against a State officer is, in fact, one against the State, this Court considers
" ' "whether 'a result favorable to the plaintiff would directly affect a contract or property right of the State,' Mitchell [v. Davis, 598 So.2d 801, 806 (Ala. 1992) ], whether the defendant is simply a 'conduit' through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So.2d 770, 784 (Ala. 1988), and whether 'a judgment against the officer would directly affect the financial status of the State treasury,' Lyons [v. River Road Constr., Inc. ], 858 So.2d [257] at 261 [ (Ala. 2003) ]."
" ' Haley [v. Barbour County ], 885 So.2d [783] at 788 [ (Ala. 2004) ]. Additionally, "[i]n determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought." Ex parte Carter, 395 So.2d 65, 67-68 (Ala. 1980).' "

Ex parte Moulton, 116 So.3d 1119, 1130-31 (Ala. 2013) (quoting Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 839-40 (Ala. 2008) ).

In the present case, we note that the plaintiffs did not "seek[ ] construction of a statute and its application in a given situation." See Hampton, 189 So.3d at 18. Instead, the plaintiffs sought a construction of the Board's policy and monetary relief. Thus, the declaratory-judgment "exception" to § 14 immunity does not apply. See Ex parte Town of Lowndesboro, 950 So.2d 1203, 1211 (Ala. 2006) (stating that "[t]he exception afforded declaratory-judgment actions under § 14 generally applies only when the action seeks 'construction of a statute and how it should be applied in a given situation,' Aland v. Graham, 287 Ala. 226, 230, 250 So.2d 677, 679 (1971), and not when an action seeks other relief"). Nevertheless, in addition to seeking declaratory relief, the plaintiffs sought mandamus and injunctive relief. In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831 (Ala. 2008), this Court stated:

"Generally, mandamus relief is available in certain situations to compel a State officer to perform the ministerial act of tendering payment of liquidated or certain sums the State is legally obligated to pay under a contract. State Highway Dep't v. Milton Constr. Co., 586 So.2d 872, 875 (Ala. 1991) ; see also [Alabama Agric. and Mech. Univ. v.] Jones, 895 So.2d [867] at 877-79 [ (Ala. 2004) ] (describing as 'well-established [the] rule that a writ of mandamus will issue to compel payment of only such claims as are liquidated' and noting that prior caselaw had held 'that payment for goods or services, for which the State had contracted and accepted, could be compelled by mandamus'); and State Bd. of Admin. v. Roquemore, 218 Ala. 120, 124, 117 So. 757, 760 (1928) ('the claim asserted [against the State was] for an amount fixed or determinable by the terms of the contract of sale,' and was 'definite and certain, ... and not an unliquidated claim, in the sense that would render mandamus unavailable').
"We find our opinions in Milton Construction Co. v. State Highway Department, 568 So.2d 784 (Ala. 1990) (' Milton I'), and State Highway Department v. Milton Construction Co., 586 So.2d 872 (Ala. 1991) (' Milton II'), dispositive on this issue. In Milton I, the plaintiff, Milton Construction Company, asked the trial court to declare the disincentive clause of an 'incentive/disincentive-payments provision' in two highway-construction contracts it had entered into with ALDOT (then called 'the Highway Department') void and unenforceable as a penalty. Milton Construction further asked the trial court to order the defendants-the State, ALDOT, and ALDOT's director-to pay it the amounts of 'disincentive payments' ALDOT had allegedly wrongfully withheld. On appeal, this Court held that the 'disincentive clause' in the contracts was 'void as a penalty and therefore unenforceable,' 568 So.2d at 791, and remanded the case.
"On return to remand, the defendants claimed that § 14 barred the trial court from ordering them to pay the money they had withheld from Milton Construction under the void disincentive clause. In Milton II, this Court disagreed, stating:
" 'It is true that § 14 of the Constitution prevents a suit against the state as well as suits against its agencies. See Phillips v. Thomas, 555 So.2d 81 (Ala. 1989) ; Rutledge v. Baldwin County Comm'n, 495 So.2d 49 (Ala. 1986). However, this Court has also recognized that there are certain established exceptions to the protection afforded the state or its agencies by sovereign immunity. See Ex parte Carter, 395 So.2d 65, 68 (Ala. 1981).
Among those recognized exceptions are actions brought to force state employees or agencies to perform their legal duties. Id. See also Nix and Vercelli, Immunities Available In Alabama For Cities, Counties And Other Governmental Entities, And Their Officials, 13 Am. J. Trial Advoc. 615 (1989).
" '... Once the Highway Department has legally contracted under state law for goods or services and accepts such goods or services, the Highway Department also becomes legally obligated to pay for the goods or services accepted in accordance with the terms of the contract. It follows that this obligation is not subject to the doctrine of sovereign immunity and is enforceable in the courts. See, e.g., Gunter v. Beasley, 414 So.2d 41 (Ala. 1982) ; State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757 (1928).
" 'It is undisputed that Milton Construction has already rendered the services called for under the contract. Consequently, we hold that this lawsuit is not barred by the doctrine of sovereign immunity, because it is in the nature of an action to compel state officers to perform their legal duties and pay Milton Construction for services contracted for and rendered. Gunter, supra ; Roquemore, supra.
" 'For example, in Roquemore the Highway Department contracted with Roquemore to purchase hay. After Roquemore had delivered a substantial amount of hay to the Highway Department, it refused to accept any further deliveries of hay and refused to pay for the hay that it had already received. Roquemore petitioned this Court for a writ of mandamus ordering the State Board of Administration and the Highway Department to pay him for the hay that he had delivered. This Court held that the writ was proper and was not barred by the doctrine of sovereign immunity because, under the applicable statutes, the Highway Department could not refuse to pay for goods that it had already accepted. This Court held that the suit in Roquemore was one to force a state agency to perform its legal duty, i.e., to force the Highway Department to pay for the hay that it had already accepted. Likewise, in this case, Milton Construction's action against the Highway Department is not barred by the doctrine of sovereign immunity.'
" Milton II, 586 So.2d at 875. This Court thus upheld the trial court's judgment holding that the moneys withheld under the disincentive clause were due to be paid to Milton Construction.
"Like the plaintiff in Milton I and Milton II, Harbert contended that a provision in a contract with ALDOT was void as a penalty. Harbert thus sought mandamus relief directing that State officers pay the funds withheld by ALDOT. The trial court agreed and, like the trial court in Milton II, ordered that the withheld funds be paid. In their initial brief on appeal, the Governor and the director do not appear to contest the trial court's holding that the liquidated-damages provision was unlawfully applied in this case. Thus, under the authority of Milton II, the trial court's mandamus relief directing that the funds withheld as liquidated damages are due to be returned to Harbert is affirmed. See Hardin v. Fullilove Excavating Co., 353 So.2d 779, 783 (Ala. 1977) (agreeing with the trial court's factual findings and legal conclusions interpreting a contract between a State agency and a contractor 'as calling for payment of the disputed sum' and affirming the issuance of the writ of mandamus to compel State officers to tender payment)."

990 So.2d at 842-44.

Further,
"the trial court can generally, by writ of mandamus, order State officers in certain situations to pay liquidated damages or contractually specified debts. The payment of these certain, liquidated amounts would be only a ministerial act that State officers do not have the discretion to avoid. [Alabama Agric. and Mech. Univ. v.] Jones, 895 So.2d [867] at 878-79 [ (Ala. 2004) ] ; [State Bd. of Admin. v.] Roquemore, 218 Ala. [120] at 124, 117 So. [757] at 760 [ (1928) ]. Furthermore, although the payment of the funds 'may ultimately touch the State treasury,' Horn v. Dunn Bros., 262 Ala. 404, 410, 79 So.2d 11, 17 (1955), the payment does not 'affect the financial status of the State treasury,' Lyons [v. River Road Constr., Inc. ], 858 So.2d [257] at 261 [ (Ala. 2003) ], because the funds 'do not belong to the State,' Alabama Dep't of Envtl. Mgmt. v. Lowndesboro, 950 So.2d 1180, 1190 n.6 (Ala. Civ. App. 2005) (two-judge opinion), and the State treasury 'suffers no more than it would' had the State officers originally performed their duties and paid the debts. Horn, 262 Ala. at 410, 79 So.2d at 17. The trial court may not, however, award retroactive relief in the nature of unliquidated damages or compensatory damages, because such relief affects a property or contract right of the State. Stark [v. Troy State Univ., 514 So.2d 46 (Ala. 1987) ]; Williams [v. Hank's Ambulance Serv., Inc., 699 So.2d 1230 (Ala. 1997) ] ; Roquemore; J.B. McCrary Co. v. Brunson, 204 Ala. 85, 86, 85 So. 396, 396 (1920) ('mandamus will not lie to compel the payment of unliquidated claims'); and Vaughan [v. Sibley, 709 So.2d 482 (Ala. Civ. App. 1997) ]....
"Although the trial court cannot award compensatory damages or unliquidated damages in this case, the trial court does have the ability to compel State officers who are acting arbitrarily and capriciously to properly perform their duties. Stark, 514 So.2d at 50 (holding that an action seeking to compel State officers who are acting arbitrarily to perform their legal duties 'will not be barred by the sovereign immunity clause of the Alabama Constitution of 1901'); McDowell-Purcell, [Inc. v. Bass,] 370 So.2d [942] at 944 [ (Ala. 1979) ] ('If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof.'); St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So.2d 333, 334 (1961) ('Injunctive action may be maintained against a state official, if the official is acting beyond the scope of his authority or acting illegally, in bad faith, or fraudulently.') ...."

Harbert, 990 So.2d at 845-46.

As Justice Murdock correctly noted in his special concurrence in Harbert:

"[I]t becomes critical ... to recognize that the reference in the cases cited in the above-quoted passage from the main opinion to claims that are 'liquidated,' when considered in context, are references not merely to claims for amounts that have been reduced to sums certain, but claims as to which there is no room for dispute as to liability, i.e., whether the amounts at issue are owed."

990 So.2d at 849 (Murdock, J., concurring specially).

Harbert and the cases cited therein dealt with contracts. In Ex parte Bessemer Board of Education, 68 So.3d 782 (Ala. 2011), however, a public-school teacher sued the members of the Bessemer Board of Education in their official capacities, alleging that her statutory pay increase had been miscalculated. This Court stated that "it is undisputed that the Bessemer Board members have a statutory duty to pay [the teacher] the appropriate salary increase under [the statute]." Bessemer Bd. of Educ., 68 So.3d at 790 (emphasis added). Thus, this Court held that § 14 immunity did not bar the teacher's claim because, it reasoned, the members of the Bessemer Board of Education had a legal duty to pay the teacher the correctly calculated pay increase under the statute, and the payment of that salary increase was a ministerial act that involved no discretion. 68 So.3d at 790-91.

Therefore, in the present case, assuming that a school-board policy should be treated like a contract or a statute, the issue is whether the defendants acted arbitrarily in interpreting and implementing the Board's policy. If they did not act arbitrarily, they are entitled to § 14 immunity. Specifically, the issue in the present case is whether the language in the introduction to the salary schedule unambiguously created a legal duty for the defendants to assign then classified employees to steps on the salary schedule that directly corresponded to their years of service when they were converted to the new salary schedule. If so, the payment of the claimed backpay and benefits would be a ministerial act the defendants had no discretion to avoid, and § 14 would not bar the plaintiffs' claims insofar as they seek to compel the defendants to pay the backpay and benefits. In that situation, this action would not be an action seeking damages from the State but, rather, an action to compel the performance of a ministerial act, and the payment would not effect a property right of the State because the funds would not belong to the State.

The above-cited decisions contemplate a lack of discretion by State officials when there is no dispute that a particular payment is required. However, in the present case, there is a legitimate dispute as to whether the Board's policy required the defendants to assign existing classified employees to steps on the new salary schedule that directly corresponded to their years of service rather than to their then current rate of pay when they were converted to the new salary schedule. The defendants' interpretation and implementation of the policy was not arbitrary. The sentence upon which the plaintiffs rely simply states: "Years of experience are categorized as 'STEPS' on the schedule." Neither that sentence nor the sentences that surround it say anything specifically about how to initially place existing employees on the new salary schedule. Furthermore, the paragraph containing that sentence refers only to "certified" employees or "teachers," not classified employees like the plaintiffs. Therefore, the defendants did not exceed their discretion or act arbitrarily when they interpreted and implemented the policy with regard to initially placing classified employees on the new salary schedule. Thus, the defendants cannot be compelled to accept the plaintiffs' interpretation. Accordingly, the defendants were entitled to § 14 immunity, and the trial court was divested of subject-matter jurisdiction over this case.

Conclusion

Because the trial court lacked subject-matter jurisdiction, its judgment is void, and the appeal is dismissed.

APPEAL DISMISSED.

Stuart and Wise, JJ., concur.

Bolin, Parker, Murdock, Shaw, and Bryan, JJ., concur in the result.

MURDOCK, Justice (concurring in the result).

I concur in the result. The main opinion quotes from cases such as Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 840 (Ala. 2008), and Ex parte Bessemer Board of Education, 68 So.3d 782 (Ala. 2011), from which can be drawn the proposition that the bar of § 14, Ala. Const. 1901, immunity does not prevent a court from requiring a State official to pay an undisputed sum-certain debt for goods or services accepted by the State. The main opinion follows its discussion of these cases, however, with the following statement:

"[T]he issue is whether the defendants acted arbitrarily in interpreting and implementing the Board's policy. If they did not act arbitrarily, they are entitled to § 14 immunity."

238 So.3d at 32. Elsewhere, the main opinion suggests that the issue is whether a State official can be said to have "exceed[ed] [his ]discretion" in making a decision about the payment of an alleged debt. 238 So.3d at 33.

The latter standards-arbitrariness and excess of discretion-are not the equivalent of the principles governing such cases as Harbert and Bessemer. Nor have those latter standards ever been articulated previously in our precedents. Instead, the principle suggested by cases such as Harbert and Bessemer is simply whether the amount owed is undisputed in the sense and for the reasons referenced above. If it is not, then there is immunity, regardless whether the State official's decision regarding it might, in retrospect, be deemed by a court of law to have been "arbitrary" or "in excess of the official's discretion."

For that matter, to accept the latter standards seems to me to be a major step toward outright abolishment of § 14 immunity in relation to suits against State officials. When a decision is challenged by an alleged creditor on the ground that the State official's decision is contrary to law (or the facts), such error is too easily framed by a litigant and a court alike as one that was "arbitrary" or in "excess" of the official's discretion. Indeed, our cases have equated decisions that are simply contrary to the law as ones that are arbitrary or in excess of discretion. E.g., Corner Stone Funeral Chapel, Inc. v. MVMG, LLC, 170 So.3d 626, 630 (Ala. 2014) (" ' "A court exceeds its discretion when its ruling is based on an erroneous conclusion of law or when it has acted arbitrarily without employing conscientious judgment, has exceeded the bounds of reason in view of all circumstances, or has so far ignored recognized principles of law or practice as to cause substantial injustice." ' " (quoting Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of Alabama, 991 So.2d 701, 705 (Ala. 2008), quoting, in turn, Edwards v. Allied Home Mortg. Capital Corp., 962 So.2d 194, 213 (Ala. 2007) ) (emphasis added)). Such a step is a bridge farther than even this writer has previously suggested. Compare Alabama State Univ. v. Danley, 212 So.3d 112, 143 (Ala. 2016) (Murdock, J., concurring specially in case no. 1140907 and concurring in the result in case no. 1141241) (suggesting that there should not be § 14 immunity as to claims for moneys owed for conforming goods or services tendered to, but not yet accepted by, the State).

SHAW, Justice (concurring in the result).

I concur in the result. "In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act." McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala. 1979). Under Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831 (Ala. 2008), and the numerous cases cited in it, as discussed in the main opinion, when a plaintiff seeks payment of money from the State, the "limited circumstances" in which a writ will lie to compel payment depends on whether the amount sought is "certain" and the State's obligation to pay is "undisputed." If there is doubt as to those, the analysis ends and § 14 bars the action.

In the instant case, the parties dispute the proper interpretation of the new salary schedule at issue. In McDowell-Purcell, we held that a writ of mandamus will not lie to compel a State official "to exercise his discretion and apply the ascertained facts or existing conditions under [a] contract so as to approve payment to [a plaintiff] according to [the plaintiff's] interpretation of the contract rather than his." 370 So.2d at 944. Here, the Board members have not exhausted their discretion, and they cannot be compelled to accept the plaintiffs' interpretation of the salary schedule. A suit against the State, i.e., the Board members in their official capacities, is untenable in this case.

Bryan, J., concurs.

      "Classified employees" are support personnel who are not required to have a professional-educator certificate, i.e., non-teachers.

      Those 24 employees are: Scott Armstrong, Larry Batain, General Bender, Odessa Beville, Abram Bolden, Harold Childress, Freddie Clark, Walter Cook, Gwendolyn Cotton, Beverly Crosby, Vince Eaton, Lillie Edmond, Lucius Gregg, Edward Ingram, Eloise Gray Ingram, Paul Marzette, Sharon Miles, Kelvin Newsome, Frances Rowser, Anthony Taylor, Vickie Townes, Nathaniel Walton, Jacqueline Welch, and Phyllis Williams.

      The Court of Civil Appeals has stated:
      " 'A board of education must comply with the policies it adopts.' Ex parte Board of Sch. Comm'rs of Mobile County, 824 So.2d 759, 761 (Ala. 2001). 'Salaries are a matter of school board policy. Once the Board adopts a policy, it is bound to follow that policy until the policy is modified or amended by the Board in accordance with the procedures set forth in [§ 16-1-30, Ala. Code 1975].' Beverly v. Board of Sch. Comm'rs of Mobile County, 678 So.2d 113, 115 (Ala. Civ. App. 1995) (citations omitted)." Limestone Cty. Educ. Ass'n v. Limestone Cty. Bd. of Educ., 880 So.2d 446, 450 (Ala. Civ. App. 2003) (footnote omitted). See also Ex parte Etowah Cty. Bd. of Educ., 584 So.2d 528, 530 (Ala. 1991) ("It is well recognized that the School Board is bound to follow its adopted policies.").

      Although Justice Bolin was not present at oral argument in this case, he has listened to the audiotape of the oral argument.