author: CARLTON, J., for the Court.

text:
    Maricus IVY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2009-CP-00227-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Rehearing Denied March 30, 2010.

      Maricus Ivy, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J., for the Court.

¶ 1. This case comes before the Court on appeal from an order denying Maricus Ivy’s motion for post-conviction relief. Aggrieved with the circuit court’s judgment, Ivy appeals, arguing that: (1) the indictment charging him with two counts of sexual battery was void for failure to state the Mississippi Code section he violated; (2) there was no factual basis for the trial court to accept his guilty pleas to the two counts of sexual battery; and (3) he received ineffective assistance of counsel. Finding no error, we affirm.

FACTS

¶ 2. On August 24, 2005, Ivy pled guilty in Lee County Circuit Court to two counts of sexual battery. He was sentenced, on each count, to serve a term of thirty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended and fifteen years to serve, followed by five years of post-release supervision.

¶ 3. Ivy filed a motion for post-conviction relief asking the circuit court to reverse the sentence. The circuit court denied Ivy’s motion on January 20, 2009. Ivy appeals.

STANDARD OF REVIEW

¶ 4. This Court will not disturb a circuit court’s decision to deny a motion for post-conviction relief unless the circuit court’s findings are clearly erroneous. Boyd v. State, 926 So.2d 233, 234(¶ 2) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

DISCUSSION

I. Defective Indictment

¶ 5. Ivy argues on appeal that the indictment charging him with two counts of sexual battery was void for failui’e to state the Mississippi Code section that he violated. As a result of this defect, Ivy argues that the circuit court lacked jurisdiction to accept his guilty plea or sentence him.

¶ 6. In Cochran v. State, 969 So.2d 119, 123(¶ 15) (Miss.Ct.App.2007) (citation omitted), this Court stated that “[a] valid guilty plea waives all non-jurisdictional defects to an indictment.” However, “[i]t does not waive the failure to charge a criminal offense or subject matter jurisdiction.” Id.

¶ 7. In Battaya v. State, 861 So.2d 364, 367(¶ 10) (Miss.Ct.App.2003), this Court further expressed that the failure to state on an indictment the statute number which the defendant violated “is a technical, non-jurisdictional flaw which [the defendant] waived with his guilty plea.” See Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990); Garner v. State, 944 So.2d 934, 940-41 (¶¶ 15-20) (Miss.Ct.App.2006). “The purpose of an indictment is to adequately advise a defendant of the charges against him so as to allow him the opportunity to prepare an effective defense.” Battaya, 861 So.2d at 367(¶ 10) (citing Moses v. State, 795 So.2d 569, 572(1113) (Miss.Ct.App.2001)). In the present case, the failure to reference the statute “did nothing to frustrate that purpose.” Id. As a result, we find that Ivy waived his argument as to defects in the indictment when he pled guilty. This issue is without merit.

II. Factual Basis for Guilty Plea

¶ 8. Ivy argues that there was not a factual basis for the trial court to accept Ms guilty plea to the two counts of sexual battery. Ivy asserts that since the prosecution did not have DNA evidence or a rape Mt to prove penetration, and because he only faced one count of sexual battery in pretrial proceedings, there was no factual basis that he committed the crimes to wdiieh he pled guilty.

¶ 9. In Kimble v. State, 2 So.3d 688, 692(¶ 13) (Miss.Ct.App.2008) (citing Uniform Rule of Circuit and County Court 8.04(A)(3)), this Court noted that “[b]efore the trial court may accept a plea of guilty, the court must determine that there is a ‘factual basis for the plea.’ ” “A factual basis for a plea may be established by the admission of the defendant, but the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah v. State, 943 So.2d 20, 26-27(¶ 16) (Miss.2006). “[A] factual basis is not established by the mere fact that a defendant enters a plea of guilty.” Id at 27(¶ 16).

¶ 10. This Court has held that if an indictment is found to be “sufficiently specific, [it] can be used as the sole source of the factual basis for a guilty plea.” Drake v. State, 823 So.2d 593, 594(¶ 6) (Miss.Ct. App.2002) (citing United States v. Hinojosa-Lopez, 130 F.3d 691, 695 (5th Cir. 1997)). Upon reviewing the facts in Drake, we determined that there was a factual basis for the trial court to accept the defendant’s guilty plea. Specifically, we found that:

The indictment was specific and comprehensive, and Drake admitted his guilt upon the conclusion of the reading of the indictment.
Drake was aware of the charges against him and the consequences that would result upon entering a guilty plea. He still chose to enter such a plea. Drake swore to the trial court that he had competent representation and that the elements of the crime were explained to him. He further stated that his counsel read him the written guilty plea and that he understood what it stated.

Id. at 594-95 (¶¶ 6-7).

¶ 11. Similarly, in Madden v. State, 991 So.2d 1231, 1235(1116) (Miss.Ct.App.2008), we held that there was a factual basis for a guilty plea -where the indictment specifically included the elements of the crime and alleged that the defendant “knowingly, wil-fully, unlawfully and feloniously” sold cocaine, and the defendant swore in his plea petition that he had been advised of the nature of the charge and that he had in fact sold cocaine to an undercover police officer.

¶ 12. In Boddie v. State, 875 So.2d 180, 181(¶ 1) (Miss.2004), the Mississippi Supreme Court determined that there was a factual basis to support the defendant’s guilty plea, finding that the defendant made a statement in which he admitted to the crime alleged in the indictment and acknowledged at his plea hearing that he was satisfied that the State could prove, beyond a reasonable doubt, that he was guilty of the crime.

¶ 13. In the present case, Ivy testified before the circuit judge that: he had read and understood the indictment; his attorney had gone over the charges with him carefully on more than one occasion; his guilty pleas were free and voluntary on his part; and he made his own decision to plead guilty. Ivy also admitted that he committed two counts of sexual battery upon Elizabeth Miller, and he testified that he understood that by pleading guilty, he was waiving the requirement that the State prove the charges against him and each element of the crime beyond a reasonable doubt. Thus, our review of the entire record reveals that there was a factual basis for the trial court to accept Ivy’s guilty pleas. This issue is without merit.

III. Ineffective Assistance of Counsel

¶ 14. Ivy further argues that he was denied effective assistance of counsel. Specifically, Ivy claims that his counsel failed to object to the indictment and coerced him into pleading guilty to two counts of sexual battery even though there was no factual basis for the guilty pleas.

¶ 15. “In order to prevail on the issue of whether his defense counsel’s perform-anee was ineffective, [the defendant] must prove that his counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So.2d 1038, 1041(¶ 8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The two-prong test set forth in Strickland to determine whether the defendant has received ineffective assistance of counsel applies to challenges to guilty pleas as well. Id. (citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

¶ 16. An inmate asserting a claim of ineffective assistance of counsel is required to “allege with specificity and detail” the facts which show the attorney’s deficient performance and the prejudice to the inmate caused by the deficient performance. Kinney, 737 So.2d at 1041(¶ 8) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). Furthermore, “[t]here is a strong but rebuttable presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Id. (citing Moody v. State, 644 So.2d 451, 456 (Miss.1994)). Additionally, we presume that counsel’s decisions are strategic. Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985) (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984)). Accordingly, “judicial scrutiny of counsel’s performance must be highly deferential. ... [A] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 669, 104 S.Ct. 2052.

¶ 17. The record in this case contains the transcript from Ivy’s plea hearing. While under oath, Ivy stated that he was satisfied with his attorney’s services and advice. Ivy also testified that his attorney had carefully explained the charges to him before he pled guilty. He further stated that he believed his attorney had properly advised him before he entered his guilty pleas, and that his attorney had properly represented Ivy’s best interest.

¶ 18. Ivy bears the burden of proof to show evidence of alleged ineffective assistance of counsel. Leatherwood, 473 So.2d at 968. He has failed to present this Court with any evidence of his counsel’s alleged deficiencies. The record contains no proof to support Ivy’s claims that his attorney’s representation of him was deficient. We additionally note that his motion for post-conviction relief lacks any supporting affidavits or other proof to support his allegation. See Miss.Code Ann. § 99-39-9(1)(d)-(e) (Rev.2007).

¶ 19. Because Ivy cannot overcome the first prong of the test in Strickland, this Court is not required to consider the second prong of Strickland. Havard v. State, 988 So.2d 322, 331(¶ 25) (Miss.2008) (citing Foster v. State, 687 So.2d 1124, 1129-30 (Miss.1996)). Therefore, Ivy’s claim of ineffective assistance of counsel is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND THE RESULT.

      . Due to the sensitive nature of the case, we use an alias to protect the victim's identity.


source: Caselaw Access Project

author: MAXWELL, J, for the Court:

license: Public Domain

text:
    Alex Durode JOHNSON, III, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00875-COA.
    Court of Appeals of Mississippi.
    March 16, 2010.

      Alex Durode Johnson III, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J, for the Court:

¶ 1. Alex Durode Johnson III appeals the dismissal of his petition for post-conviction relief (PCR petition). Because Johnson’s present petition is successive to a previous one and was filed outside of the three-year statute of limitations, we find it is procedurally barred from our review. Accordingly, we affirm the circuit court’s judgment of dismissal without reaching the merits of his argument.

FACTS

¶ 2. On April 4, 2006, Johnson pleaded guilty to possession of an unquantified amount of cocaine. He was sentenced to twelve years in the custody of the Mississippi Department of Corrections, with eight years to serve and four years suspended.

¶ 3. Johnson filed his first PCR petition on August 4, 2007. In his initial petition, he alleged: (1) he was not informed of his constitutional right against self-incrimination; (2) the circuit court erred in allowing him to plead guilty to a lesser-included offense; (3) he received ineffective assistance of counsel; and (4) cumulative error warrants reversal. The circuit court denied his PCR petition, and this Court affirmed the denial. Johnson v. State, 987 So.2d 501 (Miss.Ct.App.2008).

¶ 4. On April, 30, 2009, Johnson filed a “Petition to Clarify Sentence.” Therein, he specifically claimed his indictment was ambiguous as to which drug statute he was charged with violating. It appears he takes issue with the circuit court’s acceptance of his guilty plea to the lesser charge of mere possession of cocaine rather than the charged offense of possession with the intent to distribute. The circuit judge treated this petition as a successive PCR petition, which he summarily dismissed.

STANDARD OF REVIEW

¶ 5. Circuit courts may summarily dismiss a PCR petition “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Robinson v. State, 19 So.3d 140, 141-42 (¶ 6) (Miss.Ct.App.2009) (quoting Miss.Code Ann. § 99-39-11(2) (Rev. 2007)). This Court will not disturb a lower court’s dismissal of a PCR petition unless it is clearly erroneous. Mann v. State, 2 So.3d 743, 745 (¶ 5) (Miss.Ct.App.2009). However, when questions of law are raised, we employ a de novo standard of review. Id.

DISCUSSION

I. Successive Writ

¶ 6. The circuit judge found Johnson’s present PCR petition was barred as a successive writ. Mississippi Code Annotated section 99-39-23(6) (Supp.2009) provides: “any order dismissing the prisoner’s motion ... is a final judgment .... [and] shall be a bar to a second or successive motion.... ” See also Jackson v. State, 19 So.3d 106, 107 (¶ 7) (Miss.Ct.App.2009).

¶ 7. In July 2008, this Court affirmed the denial of Johnson’s first PCR petition. Although Johnson’s current petition is styled as a “Petition to Clarify' Sentence,” it addresses alleged defects in his indictment. It also takes issue with the legality of his sentence. Johnson’s claims attacking the indictment and sentence are considered grounds for relief under the Mississippi Uniform Post-Conviction Collateral Relief Act. See Miss.Code Ann. § 99-39-5 (Supp.2009). This case does not involve the situation where an inmate is “unsui’e about the operation of his sentence and desires clarity,” which should be handled initially under administrative review. See Burns v. State, 933 So.2d 329, 331 (¶ 9) (Miss.Ct.App.2006); Miss.Code Ann. § 47-5-803 (Rev.2004). Therefore, we find the circuit judge properly treated the present petition as a petition for post-conviction relief. See Fuller v. State, 914 So.2d 1230, 1231-32 (¶ 3) (Miss.Ct.App.2005); see also Donnelly v. State, 887 So.2d 833, 836 (¶ 11) (Miss.Ct.App.2004) (denied defendant’s motion to clarify sentence as a successive petition for post-conviction relief).

¶ 8. Furthermore, the defendant bears the burden to prove by a “preponderance of the evidence that his claims are not barred as successive writs.” Robinson, 19 So.3d at 144 (¶ 16) (citing Carbin v. State, 942 So.2d 231, 233 (¶9) (Miss.Ct.App.2006)). Here, Johnson fails to show any applicable statutory exception allowing a second PCR petition.

¶ 9. Accordingly, the circuit court properly dismissed Johnson’s PCR petition as a successive writ.

II. Statute of Limitations

¶ 10. Though the circuit court did not address the timeliness of the present petition, we find Johnson’s subsequent petition is also time-barred. Absent limited statutory exceptions, section 99-39-5(2) requires PCR petitions to be filed within thi*ee years after the entry of a guilty plea. Miss.Code. Ann. § 99-39-5(2); Glenn v. State, 940 So.2d 969, 970 (¶ 4) (Miss.Ct.App.2006).

¶ 11. Johnson pleaded guilty on April 4, 2006. He filed his most recent PCR petition on April 30, 2009. The PCR petition before us was filed after the three-year statute of limitations had run. Johnson fails to show any exception to the time bar. Thus, we find his present petition was also untimely.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: IRVING, J., for the Court:

text:
    Peter SCHIFF and New Wave Limited, Appellants v. MAO, INC. and Marvin A. Ornstein, Appellees.
    No. 2009-CA-00798-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.
    Michael L. Fondren, attorney for appellants.
    Thomas L. Musselman, Pascagoula, attorney for appellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J., for the Court:

¶ 1. This appeal arises out of a contract between MAO, Inc., a business owned by Marvin A. Ornstein, and New Wave Limited, a dissolved corporation that was owned by Peter Schiff. Schiff sued Ornstein and MAO in the Jackson County Circuit Court, alleging fraud. MAO filed a motion for summary judgment, which Ornstein later joined. After a hearing, the circuit court granted the motion, finding that Schiff did not have standing to pursue his complaint, as the contract at issue had been made solely between MAO and New Wave Limited. Feeling aggrieved, Schiff appeals and asserts that the circuit court erred in granting summary judgment because genuine issues of material fact exist sufficient to overcome summary judgment.

¶ 2. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 3. In 1994, New Wave Limited invested three hundred thousand dollars, which allegedly came from Schiff, in a casino investment that had been proposed to Schiff by Ornstein. According to Schiff, he created New Wave Limited, at Orn-stein’s urging, to handle the three-hundred-thousand-dollar transaction. New Wave Limited was incorporated under the sovereignty of the Caribbean island nation of Nevis. Thereafter, New Wave Limited and MAO entered into a contract for the exchange of the three hundred thousand dollars.

¶ 4. Apparently the casino investment did not come to fruition, and Schiff s three hundred thousand dollars were never returned to him. On December 12, 1996, New Wave Limited was dissolved by Nevis for nonpayment of fees. Apparently, no action was ever taken by Schiff to revive the corporation.

¶ 5. On August 11, 2005, Schiff and New Wave Limited filed a complaint against Ornstein and MAO, alleging that Ornstein and MAO had defrauded Schiff out of the three hundred thousand dollars. The circuit court granted MAO and Ornstein’s motion for summary judgment on April 17, 2009.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Our appellate standard of review for motions of summary judgment is well established:

[An appellate court] applies a de novo standard of review to [a] trial court’s grant or denial of a motion for summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398 [(15)] (Miss.2006) (citing Stuckey v. Provident Bank, 912 So.2d 859, 864 [ (80) ] (Miss.2005)). A motion for summary judgment “shall” be granted by a court “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “Summary judgment is mandated where the respondent has failed ‘to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Smith ex rel. Smith v. Gilmore Memorial Hosp., Inc., 952 So.2d 177, 180 [ (9) ] (Miss.2007) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996)).

Kuiper v. Tarnabine, 20 So.3d 658, 660-61(7) (Miss.2009).

¶ 7. In granting MAO and Ornstein’s motion for summary judgment, the circuit court found as follows:

This action originated as an agreement between MAO, Ornstein[,] and New Wave for the development of a casino in St. Louis, Missouri. New Wave invested $300,000.00 with MAO and Ornstein pursuant to the agreement. The terms of the agreement are not at issue. The plaintiffs sued for nonpayment under the agreement. The issue before the [c]ourt based on the Motion filed is whether or not there either [sic] plaintiff named above is a proper plaintiff here to maintain this action.
New Wave is a corporation formed under the laws of the country of Nevis. Schiff is the sole owner of the corporation, and he is the sole shareholder, officer[,] and director. The agreement in this matter was executed by Schiff is [sic] his representative capacity as the president of the corporation. For the other parties[,] the agreement was executed by Ornstein in his representative capacity for MAO and individually.
There is absolutely no dispute in the evidence that Schiff did not execute the agreement in his individual capacity. The only argument Schiff offers in support of his being a proper plaintiff is that the $800,000.00 paid by New Wave actually came from him personally. While money may have been provided by Schiff, the agreement which is the subject of this lawsuit was executed by a corporate entity which is the only proper party to initiate a suit. Durham v. University of Mississippi, 966 So.2d 832 (Miss.Ct.App.2007). There has been no authority cited in support of the argument set forth by the plaintiff.
As for the corporate plaintiff, the evidence before the Court is that New Wave was begun as a corporation under the laws of Nevis in 1994. As of December 1996[,] New Wave was removed from the register because [it] failed to pay required fees. Nevis Business Corporation Ordinance § 99(1). Under the laws of Nevis[,] New Wave had three years within which to be restored to the register. [Id.] § 99(3). If not restored to the register within those three years, the corporation is deemed to have dissolved and begun to wind up its affairs. [Id.] § 99(6). A corporation is allowed to keep its corporate identity for a period of three years after dissolution to settle its affairs, including prosecuting or defending suits. [Id.] § 100(1).
New [W]ave was removed from the register in December 1996. It was not restored within three years. Beginning in December 1999[,] New Wave had three years to wind up its affairs. Therefore, after December 2002[,] New Wave ceased to have a corporate identity for the purpose of pursuing a new action. The plaintiff cites to Nevis Business Corporation Ordinance § 100(2) for the proposition that Schiff is the trustee for the corporation with all rights and powers to pursue any right of action on behalf of the corporation. As a general proposition the plaintiff is correct. However, pursuant to the first part of that ordinance, those rights of action must be begun within three years of the dissolution of the corporation. As set forth above, December 2002 is the latest New Wave or even Schiff on behalf of New Wave as its trustee could have filed the instant action to recover under the agreement it executed with MAO and Ornstein.
Based upon the evidence before the [c]ourt[,] neither of the named plaintiffs in this action is a proper party to institute and maintain this cause of action. The evidence before the [c]ourt is not in dispute as to this particular issue. The agreement was executed on behalf of the corporation and not individually, and the corporation was no longer a viable entity at the time of the filing of the action.

¶ 8. Having reviewed the record before us, this Court agrees with the conclusions reached by the circuit court. Schiff was never a party to the agreement that forms the basis of his fraud claim. We fail to see how this situation is substantially different from that in Bruno v. Southeastern Services, Inc., 385 So.2d 620, 620-23 (Miss.1980), wherein our supreme court held that an individual shareholder can bring suit only if there is a breach of a duty that is owed to the shareholder personally. Neither MAO nor Ornstein owed any such duty to Schiff personally. Therefore, the only party that could possibly sustain a cause of action against MAO or Ornstein is New Wave Limited.

¶ 9. New Wave Limited was dissolved in December 1996 due to nonpayment of fees. In its opinion, the circuit court found that the corporation or Schiff had six years from that date to file suit against Ornstein or MAO. Section 99(3) of the Nevis corporate statute states that: “A corporation which is removed from the register [due to nonpayment of fees] may be restored to the register within three years of the date of removal upon payment to the Registrar of the prescribed fee.” Section 99(6) further states that: “A corporation which is not restored to the register within three years of the date of removal shall be deemed to have commenced to wind up and dissolve in accordance with this part.” It is unclear to this Court whether section 99(6) should be interpreted to mean that dissolution is deemed to have commenced when a corporation is removed from the register or whether the section means that dissolution commences three years after a corporation is removed from the register. Regardless, even if the more generous six-year term is accepted, New Wave Limited had dissolved and had no ability to file suit as of December 2002. Schiff filed suit against MAO and Ornstein in 2005, nine years after New Wave Limited was dissolved.

¶ 10. During argument before the circuit court, Schiff contended that under section 100(2) of the Nevis corporate statute, directors of a corporation may file lawsuits and do other acts “that may be necessary for the final settlement of the unfinished business of the corporation.” Schiff essentially contended that this section gives him power in perpetuity to file lawsuits on behalf of New Wave Limited. We agree with the circuit court that section 100(2) must be read in tandem with section 100(1), which clearly allows only three years after the dissolution of a corporation to file suits on behalf of the corporation. Section 100(2) merely explains who may act during those three years.

¶ 11. Accordingly, the circuit court was correct in finding that neither Schiff nor New Wave Limited was a proper party to the lawsuit against MAO and Ornstein. Schiff was not a party to the contract giving rise to the alleged fraud claim, and the time period had long since passed when a lawsuit could have been legitimately filed by New Wave Limited.

¶ 12. Therefore, we affirm the judgment of the circuit court.

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

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


author: IRVING, J.,

text:
    Marvin ARTHUR, Appellant v. TUNICA COUNTY, Mississippi and Tunica County Sheriff's Department, Appellees.
    No. 2009-CP-00950-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.

      Marvin Arthur, Appellant, pro se.
    Daniel Judson Griffith, Andrew T. Dula-ney, Tunica, attorneys for appellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court:

¶ 1. The Tunica County Circuit Court dismissed Marvin Arthur’s complaint against Tunica County and the Tunica County Sheriffs Department due to Arthur’s failure to give notice to Tunica County ninety days prior to instituting his action, as required by law. Arthur appeals, pro se, and asserts that the circuit court erred in dismissing his lawsuit.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. The incident that gave rise to Arthur’s complaint occurred on June 13, 2008. In his complaint, filed on December 4, 2008, Arthur alleged that he was walking across a street in Tunica County when he was forced to jump out of the path of a vehicle that was being driven by a Tunica County sheriffs deputy. According to Arthur, he sustained injuries while doing so. As stated, prior to filing his complaint, Arthur did not provide the notice to Tunica County that is required by Mississippi Code Annotated section 11-46-11(1) (Rev. 2002). Tunica County and the Tunica County Sheriffs Department filed a motion to dismiss pursuant to Rule 12(b)(1) and (6) of the Mississippi Rules of Civil Procedure. The circuit court granted the motion and dismissed Arthur’s action without prejudice.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 4. The Mississippi Tort Claims Act (the MTCA) is implicated in cases where a suit is instituted against a governmental agency. An appellate court reviews, de novo, errors of law as they relate to proper application of the MTCA. Brown, 927 So.2d at 736 (¶ 8). Section 11-46-11(1), which sets forth prerequisites that must be met before suit can be brought against a governmental entity, provides as follows:

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, hoivever, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.

(Emphasis added). In Bunton v. King, 995 So.2d 694, 695 (¶ 7) (Miss.2008) (quoting Mississippi Department of Public Safety v. Stringer, 748 So.2d 662, 665 (¶ 11) (Miss.1999)), our supreme court held that “[t]he notice-of-claim requirement ‘imposes a condition precedent to the right to maintain an action.’ ” The Bunton court further held “the ninety-day notice requirement under section 11-46-11(1) is a hard-edged, mandatory rule which [an appellate court] strictly enforces.” Id. at 696 (¶ 8) (quoting Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (¶ 23) (Miss.2006)). However, in Stuart v. University of Mississippi, 21 So.3d 544, 550 (¶ 11) (Miss.2009), the Mississippi Supreme Court held that “[t]he notice requirements in the MTCA are substantive requirements, which are no more or less important than a statute of limitations. The notice requirements in the MTCA are not jurisdictional ... and, therefore, waiva-ble.”

¶ 5. It is undisputed that Arthur failed to comply with section 11-46-11, as he did not file a notice of claim prior to filing suit against Tunica County. Furthermore, on the facts of this case, it cannot be legitimately argued that Tunica County waived the ninety-day notice requirement. As stated, Arthur filed his complaint on December 4, 2008. On December 22, 2008, Tunica County filed its motion to dismiss, alleging, inter alia, that it was entitled to a dismissal on two grounds: (1) the Tunica County Sheriffs Department is not a suable entity under the MTCA, and (2) Arthur had not given the required ninety-day notice prior to commencing his lawsuit. On December 30, 2008, Arthur filed a motion for change of venue, but he did not address the gravamen of Tunica County’s motion to dismiss, that is, his failure to give the required ninety-day notice. On March 11, 2009, Tunica County noticed its motion to dismiss for a hearing on April 20, 2009. On April 15, 2009, Arthur filed his response to Tunica County’s motion to dismiss, listing five reasons why the court should rule in his favor. However, none of the reasons listed addressed the ninety-day-notice requirement. On May 4, 2009, the circuit court granted Tunica County’s motion to dismiss on the ground that Arthur failed to comply with the ninety-day-notice requirement.

¶ 6. We have thoroughly examined the record and cannot find any evidence that Arthur ever asserted in any of his pleadings that he, in fact, gave the required ninety-day notice. Accordingly, we affirm the judgment of the circuit court, dismissing Arthur’s complaint without prejudice.

¶ 7. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., • GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.

      . We note that Tunica County correctly asserts in its brief that the Tunica County Sheriff's Department is not a proper party to defend a lawsuit based on the actions of one of its deputies. See Brown v. Thompson, 927 So.2d 733, 737 (¶ 12) (Miss.2006) (holding that sheriff's departments are not political subdivisions within the meaning of the Mississippi Tort Claims Act and do not enjoy a separate legal existence apart from the county).


text:
    Charles Frank HOLLOWAY, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01069-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.
    Charles Frank Holloway Jr., appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court:

¶ 1. This appeal arises from Charles Frank Holloway Jr.’s guilty plea and conviction for the sale of crack cocaine. After his conviction, Holloway filed a motion for post-conviction relief (PCR), which the Co-piah County Circuit Court summarily denied. Feeling aggrieved, Holloway appeals and asserts (1) that there was no factual basis for an enhancement provision in the indictment against him, (2) that the enhancement provision in the indictment was invalid, and (3) that he has been subjected to an ex post facto law that has lengthened the amount of time that he will have to serve.

¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 3. On March 4, 2008, Holloway pleaded guilty to the crime of selling crack cocaine. On June 4, 2009, Holloway filed a petition seeking habeas corpus relief, which the circuit court treated as a PCR motion. On June 10, 2009, the circuit court denied the motion, and stated the following:

[Holloway] requests an evidentiary hearing ... and asks this [c]ourt to enter an order “to expunge and void the proceedings as to the enhancement illegality in sentence heretofore stated for failure to recognize and comply with procedural due process.”
The [e]ourt being fully advised and aware that on the date of March 4, 2008, [Holloway] pled guilty. [Holloway] at the time of said plea, was fully apprised of the nature of the charges against him and all the facts and circumstances surrounding said charges, and having been placed under oath, did voluntarily and intelligently enter a plea of guilty to [the] Sale of Crack Cocaine Within 1[,]500 [feet] of a School Property.... Additionally, [Holloway], in said Cause, was sentenced on the date of March 4, 2008, to serve a term of Eight (8) Years in the custody of the Mississippi Department of Corrections and to successfully complete the Mississippi Department of Corrections’ Alcohol and Drug Treatment Program.
This [c]ourt now finds that it plainly appears from the face of the motion, and the prior proceedings in said Cause, that [Holloway] is not entitled to any collateral relief, and as such there is no need for an evidentiary hearing of this matter, and [Holloway]’s Petition for Writ of Habeas Corpus, taken by this [e]ourt as a Motion for Post[-]Conviction Relief, lacks merit and should be denied.

Holloway appeals from this denial of his motion for post-conviction relief.

¶ 4. Additional facts, if necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. The standard of review in cases involving the denial of a PCR motion is well settled: “When reviewing a lower court’s decision to deny a petition for post[-]convietion relief[, an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo.” Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008) (quoting Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008)).

1. Validity of Enhancement Provision

¶ 6. We find no distinction between Holloway’s first and second contentions of error; therefore, we address them as one issue. We find no merit to this issue. The record before us contains no evidence that Holloway was convicted of selling cocaine within 1,500 feet of a school. The record is void of Holloway’s plea petition, his time sheet, and the original sentencing order. However, the record contains the transcript of Holloway’s guilty plea hearing. At no time during the hearing was any enhancement provision ever mentioned; the only statements made were that Holloway was pleading guilty to the sale of crack cocaine. Furthermore, his eight-year sentence is well within the unen-hanced thirty-year maximum punishment for the sale of cocaine. Although the circuit court referenced an alleged enhancement provision in its order denying Holloway’s PCR motion, there is no indication in the record before us that there was any such provision applied to Holloway’s conviction. We “will not consider matters which do not appear in the record.... ” Rochell v. State, 748 So.2d 103, 113 (¶ 37) (Miss.1999) (quoting Rushing v. State, 711 So.2d 450, 454 (¶ 11) (Miss.1998)).

¶ 7. This contention of error is without merit.

2. Ex Post Facto Law

¶ 8. In this contention of error, Holloway contends that he was illegally subjected to a 2008 law that requires certain prisoners to serve only 25% of a sentence before being considered for release on parole. Prior to the passage of Senate Bill 2136 in 2008, prisoners such as Holloway were required to serve 85% of their sentences before being considered for parole.

¶ 9. There is no merit to Holloway’s contention. The senate bill in question had no retroactive effect, as it only applied to future sentences and computations of time. Furthermore, even if the bill were applied retroactively, its application could only benefit Holloway, rendering any complaint on his part moot.

¶ 10. This contention of error is without merit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

      . The bill is codified at Mississippi Code An-notaled section 47-7-3 (Supp.2009).


author: GRIFFIS, J„

text:
    Bobby VARNADO, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00264-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.

      Bobby Varnado, Jr., appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   GRIFFIS, J„

for the Court:

¶ 1. Bobby Varnado, Jr. filed a pro se motion for post-conviction collateral relief. The circuit court dismissed the motion. Varnado appeals.

¶ 2. On November 15,1996, Varnado was convicted in the Circuit Court of Lincoln County of two counts of sexual battery, two counts of rape, and conspiracy to commit the crimes of kidnapping, sexual battery, and rape. He was sentenced to serve a total of sixteen years in the custody of the Mississippi Department of Corrections (“MDOC”). Eight years of his sentence were suspended and were to be served on post-release supervision (“PRS”). On October 28, 1998, the supreme court affirmed Varnado’s conviction. Simmons v. State, 722 So.2d 666 (Miss.1998).

¶ 3. On February 12, 2004, Varnado was discharged from prison after serving eight years of his sentence. On February 14, 2004, he signed a document that listed both his crimes and the conditions of his PRS.

¶ 4. On August 9, 2004, the MDOC asked the court to revoke Varnado’s PRS. The MDOC presented an affidavit that listed five material violations. The court revoked Varnado’s PRS. Varnado is currently serving the suspended eight years of his sentence in the custody of the MDOC.

¶ 5. On May 24, 2007, Varnado filed a motion for post-conviction collateral relief in the circuit court. On January 14, 2009, the circuit court dismissed all his post-conviction claims. Varnado appeals this judgment. He argues that the circuit court erred: (1) by failing to advise him of the conditions of his PRS at the sentencing phase and (2) because the eight-year sentence to PRS exceeds the five-year maximum set forth in Mississippi Code Annotated section 47-7-34 (Rev.2004).

¶ 6. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed absent a finding that the circuit court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 7. The Mississippi Uniform Post-Conviction Collateral Relief Act requires that when a conviction and sentence have been affirmed on direct appeal, a defendant must seek permission from the supreme court before filing a motion for post-conviction collateral relief in the circuit court. Miss.Code Ann. § 99-39-7 (Supp.2009). Here, Varnado failed to obtain permission from the Mississippi Supreme Court to file his motion for post-conviction collateral relief.

¶ 8. This Court has held that “[t]his procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss.Ct.App.2000). Because Varnado did not have permission from the supreme court to file his motion for post-conviction collateral relief, the circuit court did not have jurisdiction to hear his motion. Therefore, we affirm the trial court’s judgment of dismissal based on its lack of jurisdiction.

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

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

      . Varnado's appeal was consolidated with Antonio Simmon's appeal.


author: SHAW, Justice.

text:
    Ex parte PROGRESSIVE SPECIALTY INSURANCE COMPANY. (In re Marvin Leatherwood v. Blakeney Company, LLC, et al.). Ex parte Pritchett-Moore, Inc., and Andrew Hudson. (In re Marvin Leatherwood v. Blakeney Company, LLC, et al.).
    1080366 and 1080393.
    Supreme Court of Alabama.
    Aug. 21, 2009.
    J. Mark Hart and Sandra Payne Hagood of Haskell Slaughter Young & Rediker, LLC, Birmingham, for petitioner Progressive Specialty Insurance Company.
    Peter M. Wolter of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioners Pritchett-Moore, Inc., and Andrew Hudson.
    Robert F. Prince of Prince Glover Law, Tuscaloosa; and Jeremiah M. Hodges of Cole & Hodges, P.C., Huntsville, for respondents.
   SHAW, Justice.

Progressive Specialty Insurance Company (“Progressive”) (case no. 1080366) and Pritchett-Moore, Inc., and Andrew Hudson (hereinafter referred to collectively as “Pritchett-Moore”) (case no. 1080393) petition for writs of mandamus directing the trial court to strike a cross-claim filed against Progressive and third-party claims filed against Pritchett-Moore by the respondents, Blakeney Company, LLC; William Livingston, Jr.; and William Blake-ney. We grant the petitions and issue the writs.

On December 1, 2006, while driving in Northport, Marvin Leatherwood was involved in a motor-vehicle collision with a dump truck owned by Blakeney Company, LLC, and driven by Livingston. Blakeney Company, LLC, was insured by a commercial insurance policy issued by Progressive. William Blakeney — a principal of Blakeney Company, LLC — had purchased the policy from Hudson, whom the complaint alleges was an agent of Pritchett-Moore, Inc.

On December 18, 2006, Leatherwood filed an action in the Hale Circuit Court seeking damages for injuries he sustained in the collision. The complaint was amended and ultimately sought damages from Blakeney Company, LLC, and Livingston based on theories of negligence and wantonness. Additionally, Leather-wood sought damages against Blakeney Company, LLC, for the alleged negligent or wanton entrustment of the dump truck to Livingston and the alleged negligent hiring, training, supervision, and retention of Livingston (hereinafter Blakeney Company, LLC, and Livingston are referred to collectively as “Blakeney LLC”).

Progressive provided defense counsel for Blakeney LLC pursuant to the commercial insurance policy. Additionally, Blakeney LLC separately retained private counsel. In March 2008, Progressive was allowed to intervene in the case for the limited purpose of requesting a special verdict form that separately listed compensatory damages and punitive damages. Progressive requested this special verdict form because, it argued, the commercial insurance policy covering Blakeney LLC excluded coverage for punitive damages.

The case was tried before a jury in June 2008. The jury found in favor of Leather-wood and awarded him $200,000 in compensatory damages and $225,000 in punitive damages; the trial court entered a judgment on the jury verdict. Progressive tendered payment to Leatherwood for the compensatory-damages portion of the judgment. In a postjudgment motion, counsel provided by Progressive to Blake-ney LLC challenged the punitive-damages award.

A hearing on the postjudgment motion was scheduled for September 16, 2008. On that day, the case-action summary and the materials before this Court reveal that at 9:20 a.m. attorneys who were representing Leatherwood filed on behalf of Blake-ney LLC and William Blakeney a motion requesting leave to “amend the pleadings” to allow Blakeney LLC to add a cross-claim against Progressive and to allow Blakeney Company, LLC, and William Blakeney to file third-party claims against Pritchett-Moore. Additionally, Blakeney LLC’s privately hired counsel filed a motion to dismiss “all pending motions”; the filing of this motion and an order granting it, which effectively withdrew Blakeney LLC’s postjudgment motion challenging the punitive-damages award, were noted in the case-action summary at 9:37 a.m.

At 9:47 a.m., Blakeney LLC filed the cross-claim against Progressive, which sought damages for alleged breach of contract and bad faith. Specifically, Blakeney LLC alleged that although the Progressive commercial insurance policy provided $1,000,000 in coverage, Progressive failed to settle Leatherwood’s action, thus leaving Blakeney LLC exposed to a punitive-damages award. Further, Blakeney Company, LLC, filed third-party claims against Pritchett-Moore, which sought damages for negligent failure to procure insurance. Additionally, William Blakeney, who had not been a party in the action, sought to join as a plaintiff in the third-party claims against Pritchett-Moore.

Progressive and Pritchett-Moore filed motions to dismiss the cross-claim and the third-party claims, and the trial court denied these motions. Both Progressive and Pritchett-Moore have filed petitions in this Court challenging the trial court’s jurisdiction and seeking mandamus relief; those petitions have been consolidated for the purpose of issuing one opinion.

Standard of Review

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).”

Ex parte Liberty Nat'l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).

Discussion

Progressive and Pritchett-Moore contend that, because a final judgment had been entered on Leatherwood’s claims, the trial court lacked jurisdiction to accept an amendment to the pleadings adding new claims and a new party. We agree.

Generally, this Court has refused to allow amendments to pleadings to add additional parties and claims after the cause has been finally adjudicated. Harper v. Brown, Stagner, Richardson, Inc., 845 So.2d 777 (Ala.2002) (holding that a trial court could not, after the entry of a final judgment, allow a party to add a new party and a new claim by means of a motion under Rule 60, Ala. R. Civ. P., which sought to amend the complaint without seeking relief from the judgment); Pratt Capital, Inc. v. Boyett, 840 So.2d 138, 145 (Ala.2002) (“the trial court erred in allowing the plaintiffs to amend the original complaint to add additional defendants after a final judgment had been entered in the case”); and Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988) (holding that Rule 15, Ala. R. Civ. P., which allows amendments to pleadings, did not allow a complaint to be amended on remand when the appellate mandate, which did not permit such an amendment, amounted to a final adjudication of the case). In Faith Properties, LLC v. First Commercial Bank, 988 So.2d 485, 490 (Ala.2008), First Commercial Bank (“the Bank”) filed an action against Kevin Vakili alleging that Vakili had breached an agreement to guarantee payments of loans the Bank had made to corporations owned by Vakili. A default judgment was entered in the Bank’s favor; Vakili filed a postjudgment motion seeking relief from the default judgment, but the trial court denied the motion. 988 So.2d at 487-89.

Later, the Bank filed a motion in the trial court requesting leave to amend its complaint and to add as third-party defendants Faith Properties, LLC (“Faith”), and Vakili’s wife, Marjan Vakili. Specifically, the Bank alleged claims under the Alabama Fraudulent Transfer Act, Ala. Code 1975, §§ 8-9A-4 and -5, and asserted that three parcels of real estate — two of which had been owned by Vakili and one of which had been owned jointly by Vakili and Marjan — had been transferred to Faith for no consideration and that Faith was actually owned by Marjan and Vakili’s son. The Bank thus sought a judgment setting aside the transfers of the parcels to Faith as void and a judgment against Vaki-li declaring that the default judgment attached as a lien on the properties. The Bank was allowed to amend its pleadings, and a summary judgment was later entered on its amended claims. 988 So.2d at 489.

On appeal, this Court noted that the default judgment in favor of the Bank granted all the relief the Bank had requested and was thus a final judgment, stating:

“ ‘ “A judgment that conclusively determines all of the issues before the court and ascertains and declares the rights of the parties involved is a final judgment.” ’ [Pratt Capital, Inc. v.J Boyett, 840 So.2d [138,] 144 [ (Ala.2002) ] (quoting Nichols v. Ingram Plumbing, 710 So.2d 454, 455 (Ala.Civ.App.1998)). A judgment that declares the rights of the parties and settles the equities is final even though the trial court envisions further proceedings to effectuate the judgment.’ Wyers v. Keenon, 762 So.2d 353, 355 (Ala.1999). Otherwise stated, a judgment that is ‘definitive of the cause in the court below, leaving nothing further to be done, save [its enforcement],’ is a final judgment. Ex parte Gilmer, 64 Ala. 234, 235 (1879).”

988 So.2d at 490-91. The Court further noted that a judgment is not subject to revision absent an appropriate post-judgment motion: “In that connection, it is well settled that ‘a judgment is not subject to revision after all the claims of all parties have been adjudicated, absent a timely motion filed pursuant to Rules 55, 59, or 60, Ala. R. Civ. P.’” 988 So.2d at 490 (quoting Boyett, 840 So.2d at 143 (emphasis omitted)). We thus concluded: “Otherwise stated, a trial court has no jurisdiction to entertain a motion to amend, a complaint to add new claims or new parties after a final judgment has been entered,, unless that judgment is first set asid,e or vacated’ pursuant to the state’s rules of civil procedure.” 988 So.2d at 490 (emphasis added).

Because the default judgment against Vakili was a final judgment that had not been set aside or vacated in response to Vakili’s postjudgment motion, this Court held that the trial court lacked jurisdiction to entertain an amendment to the complaint adding further claims and parties: “[W]hen the trial court denied Vakili’s postjudgment motion ... it lost jurisdiction to entertain an amendment to the complaint.” 988 So.2d at 491. See also Nichols v. Ingram, 710 So.2d 454, 455-56 (Ala.Civ.App.1998) (holding that the trial court’s judgment completely adjudicated all matters in controversy between the litigants and was a final judgment; thus, the trial court had no jurisdiction to subsequently grant a motion to dismiss, certify a judgment as final, or enter a summary judgment).

In the instant ease, the trial court’s entry of a judgment on the jury verdict was a final judgment that completely adjudicated the claims of the plaintiff, Leatherwood. Although the trial court may have retained jurisdiction to alter its judgment by an appropriate postjudgment motion, no such motion was granted by the trial court in this case. Thus, the trial court lacked jurisdiction to accept Blakeney LLC’s amendment purporting to add new claims and a new party. Faith Properties, supra, and Nichols, supra.

Conclusion

The trial court did not have jurisdiction to accept Blakeney LLC’s amended pleadings adding a cross-claim, a third-party claim, and a party. Therefore, those pleadings are due to be stricken and the claims dismissed.

1080366 — PETITION GRANTED; WRIT ISSUED.

1080393 — PETITION GRANTED; WRIT ISSUED.

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

      . Although Leatherwood was a resident of Tuscaloosa County, where the accident occurred, Livingston was a resident of Hale County and Blakeney Company, LLC, purportedly conducted business there.

      . Although Progressive does not raise in its petition the precise jurisdictional issue we address, the “ '[ljack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.’ " Ex parte Berry, 999 So.2d 883, 888 (Ala.2008) (quoting Ex parte Smith, 438 So.2d 766, 768 (Ala.1983)).


author: LYONS, Justice.

text:
    Ex parte Kenneth Wayne SELLERS and Sharon Kay Sellers. (In re Kenneth Wayne Sellers and Sharon Kay Sellers v. John W. Hall et al.).
    1071716.
    Supreme Court of Alabama.
    Aug. 21, 2009.

      Jimmy H. Fernandez of Fernandez & Combs, L.L.C., Mobile, for petitioners.
    Leon F. Stamp, Jr., Mobile, for respondents.
   LYONS, Justice.

Kenneth Wayne Sellers and Sharon Kay Sellers, the plaintiffs in an action in the Mobile Circuit Court, have filed a petition for a writ of mandamus requesting this Court to direct the trial court to vacate its order granting a motion filed by certain of the defendants to strike the Sellerses’ demand for a jury trial. We grant the petition and issue the writ.

Factual Background and Procedural History

On November 2, 2007, the Sellerses sued John W. Hall; S.C. Stagner; DHL, LLC (“DHL”); Alex T. Howard III; and several fictitiously named defendants, asserting claims based on several theories of trespass. Their complaint alleged the following facts. The Sellerses owned real property that shared a common boundary line with property owned by DHL. A large “dirt pit” was located on DHL’s property near the common boundary line. In January 2006, the defendants entered the Sell-erses’ property and removed large amounts of dirt, expanding the dirt pit on DHL’s property “thousands of yards” onto the Sellerses’ property. The Sellerses did not demand a jury trial in the complaint.

Counsel representing each of the defendants filed notices of appearance in late 2007 and early 2008; however, none of the named defendants answered the complaint during that time. On March 14, 2008, a nonparty, S.C. Stagner Contracting, Inc., filed an answer in which it averred that the Sellerses had “incorrectly identified [it] in the complaint as S.C. Stagner.” On June 13, 2008, before any of the named defendants had answered the complaint, the Sellerses filed a demand for a jury trial, stating that they “demanded] trial by jury on all issues so triable.”

DHL and Howard answered the complaint on June 17, 2008. On July 15, 2008, they moved to strike the Sellerses’ jury demand as untimely. They argued that the complaint did not request a jury trial, that none of the defendants had requested a jury trial, that the demand for a jury trial had been filed nearly four months after all defendants had “appeared by counsel,” and that the demand was “due to be denied pursuant to A.R.C.P.”

The Sellerses responded to the motion on July 16, 2008, relying primarily Rule 38, Ala. R. Civ. P. On July 18, 2008, they amended their complaint to add new defendants Consumer Mortgage Company (“Consumer Mortgage”), Liberty Homes, Inc. (“Liberty Homes”), and S.C. Stagner Contracting, Inc. (“Stagner Contracting”). The amended complaint also added claims of negligence and conversion, alleging that the defendants had negligently removed the dirt from the Sellerses’ property and, in doing so, had converted the dirt that was removed. The amended complaint stated: “Plaintiffs have heretofor[e] demanded trial by jury.” Stagner Contracting and S.C. Stagner subsequently joined Howard and DHL’s motion to strike on July 22, 2008. They answered the amended complaint on August 1, 2008.

On September 5, 2008, the trial court, without stating its reasoning, granted the motion to strike the Sellerses’ jury demand. On September 24, 2008, the Sell-erses petitioned this Court for a writ of mandamus directing the trial court to vacate that order. Hall, Consumer Mortgage, and Liberty Homes subsequently answered the amended complaint on October 14, 2008. While the Sellerses’ petition was pending in this Court, the parties settled the claims against DHL, Howard, Stagner Contracting, and S.C. Stagner. On June 21, 2009, this Court ordered the remaining defendants to file answers and briefs on the issue presented by the petition and granted the Sellerses time to file a reply.

Standard of Review

“A petition for a writ of mandamus is the appropriate vehicle for seeking review by this Court of a denial of a demand for a jury trial. ‘Mandamus is an extraordinary remedy, however, requiring a showing that there is: “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ Ex parte Jackson, 737 So.2d 452, 453 (Ala.1999) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Because mandamus is an extraordinary remedy, the standard of review on a petition for a writ of mandamus is whether there is a clear showing of error on the part of the trial court. Ex parte Finance America Coup., 507 So.2d 458, 460 (Ala.1987).”

Ex parte Atlantis Dev. Co., 897 So.2d 1022, 1024 (Ala.2004).

Analysis

Article I, § 11, Ala. Const.1901, provides that “the right of trial by jury shall remain inviolate.” Rule 38, Ala. R. Civ. P., establishes the procedures for invoking that right. It provides, in relevant part:

“(a) Right preserved. The right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this State shall be preserved to the parties inviolate.
“(b) Demand. Any party may demand a trial by jury of any issue triable of light by a jury by serving upon the other parties a demand therefor in wilting at any time after the commencement of the action and not later than thirty (30) days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party, and such demand shall be deemed to be a demand for a struck jury....
“(c) Same: Specification of issues. In the demand a party may specify the issues which the party wishes so tried; otherwise, the party shall be deemed to have demanded trial by jury for all the issues so triable....
“(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury....”

(Emphasis other than on headings added.)

The Sellerses filed their demand for a jury trial after the commencement of their action and before any of the named defendants had filed or served pleadings directed to the issues raised in the complaint. The plain language of Rule 38(b) requires that the demand be filed “at any time after the commencement of the action and not later than thirty (30) days after the service of the last pleading directed to such issue.” (Emphasis added.)

“The term ‘pleading,’ which is specifically used in Rule 38(b), Ala. R. Civ. P., is defined to include an answer filed by a defending party. Rule 7(a), Ala. R. Civ. P. ‘It is well recognized that where the complaint and answer are the only pleadings directed to the issues, the time for making a jury demand runs from the date of service of the answer.’ Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 669 (Ala.1981).”

Poff v. Hayes, 763 So.2d 234, 243 (Ala.2000); see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2320 (3d ed. 2008)(“On an issue in which all the defendants are interested, ... the time runs from service of the last answer.”). Because the Sellerses filed their jury demand before any of the then named defendants answered the complaint, their demand was timely. See, e.g., 9 Wright, § 2320 (“Of course, the demand may be served prior to the answer.”). The trial court erred in striking the demand.

In response to the Sellerses’ petition, Hall, Consumer Mortgage, and Liberty Homes argue that the Sellerses’ statement in the amended complaint that they had “heretofor[e] demanded trial by jury” was “ineffective as a jury demand for the new claims asserted” in the amended complaint, i.e., the conversion and negligence claims. The statement in the amended complaint that the Sellerses had “heretoforfe] demand[ed] trial by jury” may fairly be read as an incorporation of and reliance on their previously filed jury demand. Moreover, nothing in Rule 38 requires plaintiffs who have filed a general, timely demand for a jury trial to file a new demand for a jury trial after amending the complaint or to restate an existing demand. Although this is the fust time this Court has had occasion to comment on this issue, courts interpreting and applying the comparable federal rule, Rule 38, Fed.R.Civ.P., have reached the same conclusion. “Federal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after the Federal Rules of Civil Procedure.” Hilb, Rogal & Hamilton Co. v. Beiersdoerfer, 989 So.2d 1045, 1056 n. 3 (Ala.2007). We find the reasoning of the federal cases compelling and likewise conclude that where plaintiffs have filed a general, timely demand for a jury trial, they are not required to file a new demand for a jury trial after amending the complaint under the circumstances here presented where “the same basic issues remain at the coi-e of the litigation.” Auwood v. Harry Brandt Booking Office, Inc., 100 F.R.D. 804, 806 (D.C.Conn.1984).

The Sellerses did not specify which issues they wished to be tried before a jury. Accordingly, they are “deemed to have demanded trial by jury for all the issues so triable.” Rule 38(c). As discussed above, their June 13, 2008, demand for a jury trial was timely. Although the amended corn-plaint added new parties and asserted new claims, the new claims were based on the same facts as those alleged in the original complaint, and the character of the action remained unchanged. Accordingly, the Sellerses were not required to file a new demand for a jury trial upon amending their complaint.

Hall, Consumer Mortgage, and Liberty Homes argue that, because the amended complaint asserted new claims, the Sellers-es had a new 30-day period from the filing of the amended complaint within which they were required to file a jury demand as to the new claims, citing 2 C. Lyons, Alabama Rules of Civil Procedure Annotated, Author’s Comments § 38.6 (2004). However, the new time period Hall, Consumer Mortgage, and Liberty Homes reference arises only when the plaintiff has previously waived the right to a jury trial. Because the June 13, 2008, general jury demand was timely, we need not consider whether the amended complaint raised new issues as in a case where, as to the issues raised in the original complaint, the right to a jury trial has been waived.

Conclusion

The Sellerses have shown “(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and. (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). We therefore grant the Sellerses petition for a writ of mandamus and direct the trial court to vacate its order granting the motion to strike the jury demand.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . In their answer to the petition, the remaining defendants have advanced the position that the Sellerses' demand for a jury trial was insufficient.

      . See, e.g., Williams v. Agilent Techs., (No. 04-1810 MMC, Dec. 10, 2004) (N.D.Cal.2004) (not published in F.Supp.2d) (“While the [first amended complaint] included additional legal claims against defendant, the new claims are based on the 'same matrix of facts’ alleged in the original complaint, and, consequently, plaintiffs were not required to restate their jury demand after defendant answered the [first amended complaint].”); Auwood v. Harry Brandt Booking Office, Inc., 100 F.R.D. 804, 806 (D.C.Conn.1984)("The general jury demand in the original complaint ought to embrace later elaborations of the claim and additional defendants, so long as the character of the suit is not thereby changed. As a prior waiver cannot be rescinded by amendments which do not affect the basic character of the suit, Lanza v. Drexel, 479 F.2d 1277 (2d Cir.1973) (en banc), neither should a party be required to reassert, on pain of waiver, a previously stated juty demand in successive amendments, whether they add parties or not, so long as the same basic issues remain at the core of the litigation. Once a party has claimed a jury trial, all issues within that claim are to be tried to the jury whether extended to new parlies and whether restated, as long as the substance of the claim is unchanged.”); Jackson v. Airways Parking Co., 297 F.Supp. 1366, 1383 (D.C.Ga.1969)("Of course, had a general and timely demand for jury trial been made by the plaintiff, no new demand would have been necessary even though the amendment raises new issues, ‘since the general demand embraces all issues in an action that are triable by a juty.’ 5 Moore, ¶ 38.41, at 326.”); see also 9 Wright, Federal Practice & Procedure § 2320 ("[I]f a general demand already has been made, a new demand after the amendment is not required.”).

      . No party has asserted either below or before this Court that the Sellerses raised issues, either in their complaint or in their amended complaint, that are not "triable of right by a juty” within the meaning of Rule 38(b), Ala. R. Civ. P.

      . See, e.g., Ex parte Twintech Industries, Inc., 558 So.2d 923, 925 (Ala.1990), in which this Court stated:
      "This Court has held that the filing of an amendment that raises new legal issues invokes the 30-day period set out in Rule 38(b)[, Ala. R. Civ. P.J. Ex parte Reynolds, 447 So.2d 701, 703 (Ala.1984). Therefore, upon the filing of such an amendment, a party has tire right to demand a juty trial, and such a demand is timely if made within 30 days after service of the last pleading directed to those new issues. Id.

      "However, in Washington v. Walton, 423 So.2d 176 (Ala.1982), this Court quoted the following comment with approval:
      " ‘ "An amended or supplemental pleading sets in motion the thirty-day time period for demanding a jury trial for new issues raised in that pleading. However, the service of an amendment does not breathe new life into a previously waived right to jwy trial if the amendment deals with the same issues framed in the original pleadings as to which a waiver has occurred.” ' (Citations omitted, emphasis in Washington.)

        "Washington, supra, at 179 (quoting 2 C. Lyons, Alabama Practice-Rules of Civil Procedure Annotated, Author’s Comments § 38.5 (1973)).”