text:
    Darrell W. PHILLIPS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00252-COA.
    Court of Appeals of Mississippi.
    Jan. 12, 2010.

      Darrell W. Phillips, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Darrell W. Phillips appeals the dismissal of his motion for post-conviction collateral relief. He asserts that: (1) his indictment was faulty because there was insufficient evidence to support the charge of felony shoplifting; (2) the court failed to follow the plea agreement he made with the State; (3) the court incorrectly held that the decision to release Phillips is now an executive decision to be determined by the Mississippi Department of Corrections (“MDOC”); (4) he received ineffective assistance of counsel; (5) he has a right to participate in drug court; and (6) the court failed to credit him with the time he served in Tennessee before entering his guilty plea. We find no error and affirm.

FACTS

¶ 2. Phillips was indicted as a habitual offender for felony shoplifting pursuant to Mississippi Code Annotated section 97-23-93(7) (Rev.2006). Phillips had two prior convictions for theft of property and robbery in Shelby County, Tennessee. On March 5, 2008, he entered a guilty plea to the Mississippi charge and was sentenced to serve five years in the custody of the MDOC followed by five years of post-release supervision.

¶ 3. On October 24, 2008, Phillips filed a pro se “Motion to Correct Judgment and Sentence.” The motion was treated as a motion for post-conviction collateral relief and was summarily dismissed by the circuit court.

STANDARD OF REVIEW

¶ 4. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial 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).

ANALYSIS

1. Whether Phillips’s indictment was faulty because there ivas insufficient evidence to support the charge of felony shoplifting.

¶ 5. Phillips argues that there was insufficient evidence to charge him with felony shoplifting because the case of cigarettes that he stole had not yet been put out for display in the market; therefore, he argues, the State did not have evidence of the market value that was used to increase the charge from misdemeanor shoplifting to felony shoplifting. The State responds that this assignment of error was waived when Phillips entered a valid guilty plea.

¶ 6. Our supreme court has held that “a guilty plea waives any claim to a defective indictment.” Harris v. State, 757 So.2d 195, 197(¶ 9) (Miss.2000) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). “Moreover, a plea of guilty waives any evidentiary issue.” Jefferson v. State, 855 So.2d 1012, 1014(¶ 11) (Miss.Ct.App.2003) (citing Bishop v. State, 812 So.2d 934, 945(¶ 39) (Miss.2002)).

¶ 7. At Phillips’s guilty plea hearing, the State gave the following factual basis for the charge of felony shoplifting:

on or about December 21st, 2005, this defendant did willfully, unlawfully and feloniously take possession of one case of cigarettes of a value over $500 owned and displayed for sale by Bull Market in Horn Lake, Mississippi, with the intent and purpose of converting such goods, wares[,] and merchandise to his own use without paying the purchase prices thereof;....

Phillips told the circuit court that he recalled the events described by the State. When asked if he had any disagreement with what the prosecutor said the State could prove, Phillips responded: “No, sir.” Further, Phillips was asked if he was pleading guilty because he committed the crime charged, and he responded: “Yes, sir.”

¶ 8. By entering his guilty plea, Phillips fully admitted to the circuit court that he was guilty of shoplifting merchandise with a value greater than $500. This testimony was sufficient to constitute felony shoplifting under section 97-23-93(7), and Phillips waived any argument as to any possible evidentiary defects in his indictment. This issue lacks merit.

2. Whether the circuit court failed to follow the plea agreement Phillips made with the State.

¶ 9. Phillips next contends that the circuit court failed to give him the sentence that was included in his plea petition. However, Phillips has offered no proof of this claim. Phillips’s plea petition states that the district attorney will recommend the following sentence:

5 years in [the] MDOC pursuant to Miss. Code Ann. § 99-19-81 running concurrent to his sentence in Tennessee; 5 years post[-]release supervision reporting. ...

Phillips was sentenced to serve five years in the custody of the MDOC followed by five years of post-release supervision. That sentence began to run on the day he entered his guilty plea. The circuit court did not require that Phillips complete his sentence in Tennessee before starting his sentence in this case.

¶ 10. The record indicates that Phillips may be confused about the meaning of a concurrent sentence. He seems to argue that because the sentence imposed here was to run concurrently to the sentence in Tennessee, his sentence in this case would end when the sentence in Tennessee ended. As the circuit court held:

Because the court made one sentence to run concurrently] with another sentence does not mean that the sentences end at the same time, only that the previous sentence does not have to be completed before the new sentence begins, as would be with a consecutive sentence. When Phillips was released from his Tennessee sentence before his sentence in [the] MDOC was complete, he was transported back to [the] MDOC where he will be required to complete his sentence. Phillips has presented no proof that anything other than this sentence was intended.

¶ 11. Regardless of Phillips’s claim, the circuit court was not required to follow the recommendation of the State contained in Phillips’s plea petition. The plea petition signed by Phillips clearly states: “I understand that this agreement is not binding on the Court....” Further, the circuit court asked Phillips during the plea hearing: “But do you understand that whether [your plea] is negotiated [with the State] or open I’m not bound by any of those agreements; that I can accept your plea and give you the maximum sentence?” Phillips responded: “Yes, sir.”

¶ 12. Phillips’s claim that he did not receive the sentence that was recommended in his plea petition is without merit. However, we are compelled to note that Phillips’s sentence may be illegal, but not on the basis of any issue raised on appeal. As a habitual offender, Phillips was required to receive the maximum sentence of ten years according to Mississippi Code Annotated section 99-19-81 (Rev. 2007), which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). Phillips admitted that he had been convicted of two prior felonies in Tennessee, both with sentences of more than one year. The circuit judge expressly stated that he was sentencing Phillips under section 99-19-81; however, pursuant to Phillip’s plea bargain, the circuit judge did not sentence Phillips to the maximum sentence of ten years. Phillips’s post-release supervision may well be unlawful. However, because the State did not cross-appeal based on this error, it is not properly before the Court, and we do not have the authority to remand this case for resentencing. See Lamar v. State, 983 So.2d 364, 370 n. 1 (Miss.Ct.App.2008) (Roberts, J., specially concurring).

3. Whether the circuit court incorrectly held that the decision to release Phillips is now an executive decision to be determined by the MDOC.

¶ 13. Phillips claims that the court incorrectly held that the decision to release him is an executive decision to be made by the MDOC. He offers no authority in support of this argument. Further, “a motion for post-conviction relief is not the proper means by which to seek credit for time served.” Leech v. State, 994 So.2d 850, 856(¶ 28) (Miss.Ct.App.2008) (citing Murphy v. State, 800 So.2d 525, 527-28(¶ 10) (Miss.Ct.App.2001)). Phillips must first seek relief from the administrative system of the MDOC before proceeding in the courts. Therefore, this issue lacks merit.

L Whether Phillips received ineffective assistance of counsel.

¶ 14. Phillips also argues that he received ineffective assistance of counsel during the plea proceedings. To prove ineffective assistance of counsel, Phillips must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Phillips to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 15. Specifically, Phillips states that his counsel was ignorant of the law, lacked due diligence in investigating his mental capacity, gave false and misleading information, lied and fabricated plea documents, and used intimidation and scare tactics. However, Phillips provides no proof of such allegations other than his own affidavit. His only claim of prejudice is that he entered a guilty plea as a result of his counsel’s conduct.

¶ 16. Phillips’s claims on appeal are completely contradicted by the record. His signed plea petition states that he was fully satisfied with the competent advice and help of his counsel. Phillips stated under oath that he was satisfied with the services rendered by his counsel and that he had no complaints whatsoever about his representation. This issue lacks merit.

5. Whether Phillips had a right to participate in drug court.

¶ 17. Phillips claims that he had a right to have his case transferred to the Seventeenth Judicial District Drug Court. Again, he fails to offer any authority in support of this argument. Even so, his claim fails because this Court has held that there is no right to attend drug court, stating:

The Mississippi Legislature created the drug courts in part to “reduce the alcohol-related and [other] drug-related court workload.” Miss.Code Ann. § 9-23-3. However, the Code intentionally refrained from creating a right by expressly stating, “A person does not have a right to participate in drug court under this chapter.” Miss.Code Ann. § 9-23-15(4). Thus, [the defendant] does not have a right to transfer his case to drug court nor does he have a[n] equal protection claim since no one has the right to attend the drug court.

Jim v. State, 911 So.2d 658, 660(¶ 8) (Miss.Ct.App.2005). This issue lacks merit.

6. Whether the circuit court failed to give Phillips credit for the time he served in Tennessee before entering his guilty plea in this matter.

¶ 18. Lastly, Phillips claims that he deserves credit for the time he served in Tennessee while he waited to enter his guilty plea and be sentenced in DeSoto County. In support of this argument, he cites Mississippi Code Annotated section 99-19-23 (Rev.2007) which states:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.

¶ 19. However, this exact issue was decided in Holland v. State, 418 So.2d 73, 74 (Miss.1982). There, the supreme court held:

We are of the opinion and hold that section 99-19-23 has no application to time served in another state while an accused is awaiting return to this State to face criminal charges. For us to hold otherwise would encourag’e an accused to flee this State and seek refuge in a state or locality of his own choosing, and fight extradition knowing that any time spent in jail in such state would be credited to any sentence received by him upon conviction. Such holding would be an impediment to, rather than an aid to, criminal justice.

Id. Accordingly, Phillips is not entitled to credit for time served in Tennessee. This issue lacks merit.

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

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

      . Mississippi Code Annotated section 97-23-93(7) states that the shoplifting of merchandise for which the merchant's staled price exceeds $500 shall constitute a felony.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Ex parte ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA (In re Mary-George D. Watson v. Allianz Life Insurance Company of North America and Jeffrey D. Fredrickson).
    1070114.
    Supreme Court of Alabama.
    Dec. 5, 2008.
    Rehearing Denied June 12, 2009.

      Michael L. Bell, Melody H. Eagan, Rachel M. Lary, and Haley A. Andrews of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner.
    Wilson F. Green and James E. Fleenor, Jr., of Battle Fleenor Green Winn & Clem-mer LLP, Tuscaloosa: Harlan F. Winn III, Robert E. Battle, and Michael J. Clemmer of Battle Fleenor Green Winn & Clemmer LLP, Birmingham; and Lynn W. Jinks and Christina Crow of Jinks, Daniel & Crow, LLC, Union Springs, for respondent.
   PARKER, Justice.

Allianz Life Insurance Company of North America (“Allianz”) petitions for a writ of mandamus directing the Barbour Circuit Court to vacate its orders to compel production of certain discovery documents for an individual plaintiff in a fraud case involving the sale of an annuity. The requested documents were produced in class actions in California and in Minnesota, and Allianz alleges that the documents are patently irrelevant or duplicative. For the reasons discussed below, we deny the petition.

Background

In 2003, Mary-George D. Watson ' bought an Allianz BonusDex Elite Annuity policy for $14,397.66. She subsequently sued Allianz and Jeffrey D. Fredrickson, the agent who sold her the policy, in the Barbour Circuit Court, alleging fraud based on representations allegedly made to her by Fredrickson at the point of sale.

The BonusDex Elite Annuity is a deferred annuity; it begins paying a stream of payments at a point in time after its purchase. Watson alleges that she told Fredrickson that she did not understand the sales literature provided by Allianz or the written contract and that she would rely on Fredrickson’s explanation of the policy. She claims that he misrepresented the terms of the policy to her. In addition to her fraud claim, Watson alleges that Allianz negligently or wantonly hired, trained, or supervised Fredrickson, and that Allianz and Fredrickson failed to procure a suitable insurance product for her. She also alleges against both Allianz and Fredrickson breach of contract, breach of fiduciary duty, and conspiracy.

Allianz is a defendant in several actions involving the same and similar annuity contracts, and, according to Allianz, Watson sought, and obtained orders in the trial court compelling Allianz to produce, documents previously produced for two of those cases, including:

“1. All documents produced by [Al-lianz] in the case of Vida F. Negrete, et al. v. [Allianz] (Civil Docket # 2:05-cv-06838-CAS-MAN), United States District Court for the Central District of California, as well as the case of Mooney, et al. v. [Allianz] (Civil Docket # 06-cv-00545 (ADM/FLN)), United States District Court for the District of Minnesota.
“2. All depositions taken in [.Negrete ], as well as [Mooney ], including exhibits to the depositions.”

Allianz filed a motion for a protective order as to the documents, which the trial court denied. Allianz states that the Neg-rete court has certified the class in a nationwide RICO class action as follows:

“ ‘All persons who within the applicable statute of limitations of the date of commencement of this action and while 65 years of age or older, purchased one or more Allianz Life Insurance Company of North America deferred Annuities either directly, or through surrender (in whole or in part) of an existing permanent life insurance policy or annuity, or by borrowing against an existing permanent life insurance policy.’
“App. Exh. 6, [Stephen] Jordan Aff. Exh. B at 26-27. The Negrete class consists of approximately 200,000 members[, and Watson] is neither a member of the Negrete class, nor a California sub-class, because she was age 52 when she purchased her policy, and is not a California resident.”

Petition at 3. Allianz notes that production of the documents in Negrete has resulted in over 180,000 documents produced under 143 requests, and it anticipates that production will be substantially more than one million documents, not including over 2,800 pages of transcripts resulting from 13 days of depositions. Petition at 4.

The Mooney action pending in the United States District Court for Minnesota is based entirely on alleged violations of the Minnesota Consumer Protection Fraud Act and on common-law unjust enrichment. The Mooney court certified a nationwide class consisting of:

“ ‘All individuals who from February 9, 2000 to the present purchased one of the following two-tiered annuities from Al-lianz Life insurance Company of North America: BonusMaxxx, BonusMaxxx Elite, BonusDex, BonusDex Elite, 10% Bonus PowerDex Elite, MasterDex 10, and the InfiniDex 10 (“Annuities”). The class excludes all persons who purchased the above-listed Annuities from Allianz while they were California residents and when they were 65 or older.’ ”

Petition at 5 (quoting Affidavit of Stephen Jordan). This class includes approximately 337,000 members. Under Mooney, Al-lianz has produced approximately 70,000 documents in response to 53 requests and has produced about 8,400 pages of transcripts from 53 days of depositions and about 500 associated exhibit documents. Petition at 5. Allianz petitions this Court for a writ of mandamus directing the Barbour Circuit Court to vacate its orders compelling production here of the documents produced in the Negrete and Mooney class actions.

Standard of Review

“A writ of mandamus can be issued to affect the trial court’s control of the discovery process, but this Court’s review of a petition seeking a writ in a discovery dispute is particularly stringent:

“ ‘The law relating to the issuance of a writ of mandamus in a case involving a discovery dispute was recently set out in Ex parte Henry, 770 So.2d 76 (Ala.2000). In Ex parte Henry, this Court stated:
“ ‘ “Rule 26 Ala. R. Civ. P„ governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. ‘Discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.’ Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992) (citations omitted); see also Ex parte Hicks, 727 So.2d 23, 33 (Ala.1998) (Maddox, J„ dissenting).
The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So.2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993)); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court ‘determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.’ Ex parte Horton, 711 So.2d at 983. Moreover, ‘“[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,” and “[t]he writ will not issue where the right in question is doubtful.” ’ Ex parte Bozeman, 420 So.2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala.1981)).’ ”
“Ex parte Pitts, 822 So.2d 418, 421-22 (Ala.2001). See also Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (holding that ‘mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.’). The Court in Ocwen noted that ‘[i]n certain exceptional cases ... review by appeal of a discovery order may be inadequate’ and that among those exceptional cases were those in which ‘a discovery order compels the production of patently irrelevant or du-plicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party .... ’ 872 So.2d at 813. See also Ex parte Crawford Broad. Co., 904 So.2d 221 (Ala.2004). Moreover, we are also aware of the fundamental disinclination of the appellate courts to intrude into the trial court’s province of conducting the litigation process. Appellate courts are fundamentally directed toward the review of an appeal after a case is concluded in the trial court, and they are not well equipped to manage the trial court’s business, particularly where the appellate caseload is more than sufficient to fully occupy the court’s time. This Court has long recognized the principle that ‘ “[c]ases should not be tried by piecemeal, and separate and distinct rulings upon the evidence brought to this court pending the progress of the trial ....’” Ex parte Alabama Power Co., 280 Ala. 586, 599, 196 So.2d 702, 715 (1967) (quoting Ex parte Little, 205 Ala. 517, 517, 88 So. 645, 646 (1921)).”

Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090, 1100-01 (Ala.2007).

Analysis

Allianz states the issue as:

“Whether a Plaintiff asserting Alabama fraud and other claims based on oral representations by an independent agent in the purchase of single annuity product in 2003, may compel discovery or more than one million documents and 66 days of depositions (with hundreds of exhibits), produced in two national class actions pending in federal courts in California and Minnesota involving hundreds of thousands of individual transactions from 1997 and thereafter for the purchase of annuity products.”

Petition at 6.

Allianz argues that the writ of mandamus should issue because, it says, the documents covered by the orders compelling discovery are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence and because Watson should not be provided access to trade secrets or confidential documents.

As to the permissible scope of discovery, Allianz states that “the right to discovery, even in cases including fraud claims seeking punitive damages, ‘is not unlimited.’ Ex parte Union Sec. Life Ins. Co., 723 So.2d 34, 38 (Ala.1998).” Petition at 6. Citing Ex parte National Security Insurance Co., 773 So.2d 461, 465-66 (Ala.2000), Allianz further notes that Alabama courts allow broader discovery than normal when fraud is alleged and punitive damages are sought, if the requests are closely tailored to the nature of the fraud alleged and are not oppressive or unduly burdensome. Petition at 7. Allianz argues that Watson’s Alabama common-law claims against Allianz and one Alabama agent stemming from her purchase of a single annuity policy are very narrow, but her discovery requests are very broad. Id. Allianz suggests that Watson’s misrepresentation claim against Fredrickson concerning the suitability of the policy features to her needs can be established only through discovery of the facts that are unique to her policy and to her transaction, which occurred in 2003. Id. Allianz notes that the discovery ordered, however, includes information regarding “essentially all information related to hundreds of thousands of transactions involving 63 different ... [policies] ... in all 50 states since December 1997.” Petition at 8. Allianz argues that the discovery requests and the orders compelling discovery are not closely tailored, or tailored at all, to Watson’s claims, and that, therefore, the orders should not be allowed to stand. Id.

As to relevance of the ordered production, Allianz notes that Watson’s claims are supported solely by the alleged oral misrepresentations of Fredrickson, an independent agent, and that her complaint does not allege participation by Allianz in the sales process, nor does it allege that Allianz’s written sales materials contain any misrepresentations. Allianz argues:

“The scope of discovery needed to establish the claims of the 387,000 members of the nationwide class in Mooney, is clearly not the same as that needed by the individual policyholder here. Documents related to hundreds of thousands of other transactions involving other annuities, dissimilarly situated non-party agents and customers in states other than Alabama at times other than November 2008 are irrelevant to [Watson’s] claims. The ordered production is utterly untailored to the time, geography, or scope of the particular fraud allegations [Watson] asserts.”

Petition at 9.

Watson argues that the writ of mandamus should not issue because, she says, the documents are relevant to her claims and because Allianz has failed to meet its burden under Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003), of showing that the documents and items requested in discovery are patently irrelevant and that the production of those documents and items “ ‘clearly constitute^] a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party.’ Ocwen, 872 So.2d at 813.” Watson’s response at 15.

While Allianz has provided a plethora of information on the merits of the case below that appears to justify its request, we note that the issue presented by Allianz does not accurately reflect the task of this Court. Our task in this case is to evaluate the decision of the trial court to determine whether, in exercising its discretion, it exceeded that discretion. To conduct such an evaluation, it is necessary to review the information on which the trial court based its decision.

Allianz has provided this Court with no evidence indicating that it responded to Watson’s motion to compel production of the documents it now says are not discoverable. Because a “trial judge’s order should not be reversed for the judge’s failing to heed an argument never made in the trial court,” ConAgra, Inc. v. Turner, 776 So.2d 792, 799 (Ala.2000)(Lyons, J., concurring in the judgment affirming the award of compensatory damages and otherwise concurring both in the judgment and the opinion), we are provided no basis for finding error in the trial court’s exercise of its discretion in that regard. Rule 21(a)(1)(E), Ala. R.App. P. Similarly, when we next seek justification for the trial court’s denial of Allianz’s motion for a protective order, we find that Allianz has not provided this Court a copy of the motion or any supporting information as part of its petition. Accordingly, we can find no error in the trial court’s exercise of its discretion regarding the denial of the protective order because we have no evidence that the motion was more than a mere unsupported request for a protective order. Indeed, the sole evidence this Court has of the existence of such a motion is the word “denied” on a single-page order from the trial court that references a motion for a protective order.

The trial court’s October 3, 2007, order to compel reads in part:

“There being good cause shown that these documents and depositions are available to Defendant Allianz and either could be admissible in this matter or are reasonably calculated to lead to the discovery of admissible information, the Court finds that [Watson’s] Motion to Compel is due to be granted.”

Petition, App. Tab 3.

The trial court subsequently denied Al-lianz’s motion for a protective order, and the “presumption must be indulged by this court in favor of the ruling of the trial court,” Harris v. Basden, 162 Ala. 367, 370, 50 So. 321, 322 (1909), because “[discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.” Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992) (citing Smith v. Wilcox County Bd. of Educ., 365 So.2d 659 (Ala.1978); Selby v. Money, 403 So.2d 218 (Ala.1981); Riddlespngger v. Ervin, 519 So.2d 486, 487 (Ala.1987); Iverson v. Xpert Tune, Inc., 553 So.2d 82 (Ala.1989); Ragan v. Blazon Flexible Flyer, Inc., 590 So.2d 882 (Ala.1991); and Napier v. McDougal, 601 So.2d 446 (Ala.1992)).

Allianz has failed to provide “parts of the record that would be essential,” Rule 21(a)(1)(E), Ala. R.App. P., to overcome the presumption of correctness attendant to the trial court’s order. See Ex parte Atchley, 936 So.2d 513, 516 (Ala.2006).

Conclusion

This Court has stated that “the writ of mandamus will not issue to compel a trial court to change its discovery order unless the appellate court determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.” Ex parte Horton, 711 So.2d 979, 983 (Ala.1998).

Allianz has not met its burden of demonstrating that the trial court exceeded its discretion in granting Watson’s motion to compel production and in denying Allianz’s motion for a protective order. The petition, therefore, is denied.

PETITION DENIED.

COBB, C.J., and SEE, WOODALL, and SMITH, JJ„ concur.

      . Watson’s complaint names Allianz and “Jeffrey D. Fredrickson” as defendants. The first paragraph of the complaint, however, refers to "Robert E. Fredrickson.”

      . As discussed later in this opinion, Allianz did not include a copy of the motion for a protective order with its petition; therefore, we cannot know the contents of the motion.

      . Watson asserts that she "was a member of the Mooney class, but she has chosen to pursue her individual claims against Allianz and the agent in this case." Watson’s response at 4.This assertion is followed by a footnote that states; "Because the Court in Mooney has not disseminated notice to the class, class members have not been advised of any right or obligation to opt out of the class.” Watson has apparently not yet opted out of the class in Mooney, but the parties did not address the significance of that footnote.

      . Allianz is incorporated under Minnesota law, with its principal place of business and headquarters in Minneapolis, Minnesota.

      . Allianz attaches to its petition an affidavit by Stephen Jordan, one of the attorneys representing Allianz in the Negrete action, discussing the Negrete litigation and the Mooney litigation, but Allianz does not explain if or how those materials were before the trial court.

      . Watson has provided a transcript of the hearing on her motion to compel held on September 12, 2007. The transcript contains mention of a proposed protective order being negotiated by the parties, indicating that Al-lianz had submitted the order to Watson's counsel and that it had not been provided to the trial court at that time. Watson states in her response that “since [the hearing,] the parties have reached an agreement on the terms of a Protective Order.” Watson's response at 25.


author: SMITH, Justice.

text:
    Cherrie LAWSON v. William H. MOORE, Jr., M.D., and Whittington, Moore & Kouri, P.C.
    1070634.
    Supreme Court of Alabama.
    Dec. 31, 2008.
    Rehearing Denied June 12, 2009.

      Amardo Wesley Pitters, Montgomery; Karen Masten Laneaux of Law Office of Sandra H. Lewis, P.C., Montgomery; and Winston D. Durant, Montgomery, for appellant.
    Frank J. Stakely and R. Brett Garrett of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.
   SMITH, Justice.

Cherrie Lawson appeals from a judgment as a matter of law entered against her in an action she filed against William H. Moore, Jr., M.D., and Whittington, Moore & Kouri, P.C. (collectively referred to as “the Moore defendants”). We reverse and remand.

Facts and Procedural History

On December 27, 2003, Lawson went to the emergency room of Baptist Medical Center South in Montgomery with complaints of pain in her abdomen and pelvic area. Dr. Henry Kurusz, an emergency-room physician, examined Lawson and ordered that she undergo several tests, including a pregnancy test and an ultrasound. The pregnancy test was positive, and the ultrasound revealed the existence of a cyst on Lawson’s left ovary. The ultrasound did not, however, definitely show the existence of an intrauterine pregnancy, and the hospital records from Lawson’s visit indicate that Lawson informed Dr. Kurusz that she had previously experienced an ectopic pregnancy. Dr. Kurusz diagnosed Lawson as being at risk for a miscarriage, and he discharged her with instructions to return to the hospital in 48 hours for additional examination.

Lawson did not return to the hospital in accordance with Dr. Kurusz’s instructions. However, on December 31, 2003, she again went to the emergency room of the hospital with complaints of abdominal pain. A different emergency-room physician, Dr. James Bradwell, examined Lawson and ordered a repeat ultrasound, a quantitative pregnancy test, and a urinalysis.

At 3:30 a.m. on the morning of January 1, 2004, Dr. Bradwell asked Dr. Moore, an obstetrician/gynecologist, to examine Lawson, and Dr. Moore agreed to do so. According to Dr. Moore, Dr. Bradwell stated that Lawson had an ectopic pregnancy and that the ultrasound revealed the presence of a pseudo- or “false” gestational sac located in the endometrial cavity. After examining Lawson, Dr. Moore diagnosed her as having an ectopic pregnancy.

Dr. Moore instructed Lawson that an ectopic pregnancy is a serious, life-threatening condition and that she would be monitored closely pending a follow-up laboratory analysis. He discussed giving her the drug methotrexate to terminate her pregnancy; he also told Lawson that she might need surgical intervention.

On the morning of January 2, 2004, Dr. Moore again evaluated Lawson. Lawson continued to be in tremendous pain, and Dr. Moore again discussed her treatment options. He provided her with medical literature discussing methotrexate and its benefits and the risks of treatment with that drug. That afternoon, Lawson informed Dr. Moore that she had decided to undergo the methotrexate treatment. Lawson received an injection of methotre-xate later that evening.

Lawson remained in the hospital under Dr. Moore’s care until January 4, 2004. After her discharge from the hospital, Lawson continued to receive treatment from Dr. Moore at his office, including follow-up ultrasounds. Ultimately, the methotrexate injection terminated Lawson’s pregnancy. On January 30, 2004, Dr. Moore performed a dilation-and-curettage procedure to remove the remnants of the terminated pregnancy.

On December 23, 2005, Lawson sued the Moore defendants, alleging that at the time she received the methotrexate injection she had in fact had a viable intrauterine pregnancy and that Dr. Moore acted negligently (1) in failing to discover the alleged intrauterine pregnancy and (2) in recommending and administering the me-thotrexate injection. The Moore defendants answered the complaint, denying the allegations.

After the parties completed discovery, the cause was tried before a jury. The trial court denied the Moore defendants’ motions for a judgment as a matter of law (“JML”) made at the close of Lawson’s case and at the close of all the evidence.

The jury was unable to reach a verdict. The Moore defendants moved for a mistrial and again moved for a judgment as a matter of law. In a written order, the trial court granted the motion for a JML but did not explain in that order its basis for doing so. Lawson filed a motion to alter, amend, or vacate the judgment. The trial court held a hearing on that motion, and the motion was denied by operation of law under Rule 59.1, Ala. R. Civ. P. This appeal followed.

Standard of Review

The standard of review applicable to a ruling on a motion for a JML was stated in Mobile Infirmary Medical Center v. Hodgen, 884 So.2d 801, 808-09 (Ala.2003):

“Our standard of review for a renewed motion for a JML is well settled:
“ ‘In reviewing the trial court’s ruling on a motion for a JML, an appellate court uses the same standard the trial court used in ruling on the motion initially. Thus, “ ‘we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.’ ” Acceptance Ins. Co. v. Brown, 832 So.2d 1, 12 (Ala.2001), quoting American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993); see, also, Jim Walter Homes, Inc. v. Kendrick, 810 So.2d 645, 649-50 (Ala.2001).’
“Hicks v. Dunn, 819 So.2d 22, 23-24 (Ala.2001). Thus, in reviewing the evidence in this case, we are required to construe the facts and any reasonable inferences that the jury could have drawn from them most favorably to [the nonmovant].”

Additionally, this Court noted in Liberty National Life Insurance Co. v. Daugherty, 840 So.2d 152, 156 (Ala.2002):

“ ‘ “A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law.” ’ Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 510-11 (Ala.2000), quoting Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 304 (Ala.1997). In reviewing the denial of a motion for a judgment as a matter of law, this Court is required to view the evidence in a light most favorable to the nonmovant. Kmart Corp. v. Kyles, 723 So.2d 572, 573 (Ala.1998). Therefore, where the evidence in the record is disputed, we present it in a light most favorable to [the nonmovant].”

Discussion

The sole issue in this appeal, as argued by the Moore defendants in their motion for a JML in the trial court and in their materials to this Court, is whether Lawson offered substantial evidence indicating that, when the methotrexate was administered, there was a viable intrauterine pregnancy. The Moore defendants contend:

“Based on the nature of Ms. Lawson’s allegations, she could recover damages against [Dr. Moore] if, and only if, her intrauterine pregnancy was viable, i.e., if the pregnancy probably would have survived to term without Dr. Moore administering methotrexate. If Ms. Lawson’s intrauterine pregnancy was probably nonviable — and probably would not have survived to term regardless of Dr. Moore’s treatment — then there would be no basis for attributing Ms. Lawson’s alleged damages to Dr. Moore. Simply stated, if the intrauterine pregnancy probably would have failed regardless of Dr. Moore’s treatment, he cannot be found to have caused Ms. Lawson’s injury.”

The Moore defendants cite the testimony of their expert, Dr. Richard Blackwell, who testified that, talcing into account the information Dr. Moore had at the time, Dr. Moore acted appropriately in administering the methotrexate on January 2, 2004, because, Dr. Blackwell asserted, Lawson’s pregnancy would have failed regardless of the administration of the methotrexate. Additionally, the Moore defendants contend that the ultrasounds conducted on Lawson on January 1 and January 3, 2004, demonstrate that no viable intrauterine pregnancy was present. In support of that assertion, the Moore defendants cite Dr. Moore’s testimony at trial as well as the testimony of Dr. Berto Lopez, who testified as an expert on Lawson’s behalf.

Lawson, however, contends that Dr. Lopez’s testimony at trial provided substantial evidence indicating that a viable intrauterine pregnancy existed and that, based on the information available to him on January 2, 2004, Dr. Moore acted negligently in recommending and administering methotrexate to Lawson. Specifically, Dr. Lopez testified as follows:

“A. ... On the basis of the information Dr. Moore had on January 2, he had ultrasounds that showed ivhat you would expect a progression of a normal pregnancy. He had hormone numbers that showed a normal progression of a pregnancy. And that’s not the candidate that you give methotrexate to if you suspect an ectopic pregnancy or-other type of pregnancy other than a normal pregnancy. Because once you give it you can’t give it back. And the worse thing in the world is to administer something you can’t take back and the very next day you find out that it was in fact a pregnancy inside of the uterus.
“That baby is now doomed to suffer the consequences of methotrexate.
“Q. And that consequence is what?
“A. Consequence is that baby will die and it is substandard in the presence of his knowledge that the beta HCG,[] the hormone numbers were rising. The serum progesterone indicated that this is a baby that was going to survive more likely than not. And that the ultrasounds were encouraging that there was something inside of the uterus that looked like a baby.
“He should not have used methotre-xate. And I’m critical of his use of methotrexate knowing these facts in advance of his administration on the 2nd of January of 2004.
“Q. Do you express that opinion to a medical — -to a reasonable degree of medical certainty?
“A. Yes, to a reasonable degree of medical certainty it was inappropriate for Dr. Moore to have administered me-thotrexate to patient Lawson in light of the fact that I mentioned before.
“Q. And is this your opinion that there is a cause and effect relationship between his breach of the standard of care and the ultimate fetus, demise of the fetus?
“A. Yes. To a reasonable degree of medical certainty the reason this baby died is because of the administration of methotrexate.
“Q. Do you still or do you maintain or advocate that opinion in light of what you know and what you have reviewed from Mrs. Lawson’s presentment at the emergency room and on December 27 and/or December 31, 2003?
“A. Yes. Because again she has progression of her beta HCGs. Her ultrasounds showed progression of the things, the landmarks that you would expect in a normal pregnancy. And the possibility that this was a pregnancy inside of the uterus had to be respected above all else.
“Now if he had concerns that it was an ectopic pregnancy, he had other options for treating an ectopic pregnancy. He could have taken her to the operating room and either cut her stomach open and looked around for an ectopic pregnancy or gone in through her belly button and looked for ectopic pregnancy. And those two things would not have harmed the pregnancy that was inside of her uterus. It would not have been, you know, something that could not be taken back, shall we say. In other words, it was not a course of action for which there was no recourse.
“If you do surgery on a patient and they turn out not to have an ectopic pregnancy, most of the time the pregnancy progresses normally to whatever destiny it is going to have otherwise. So there were other options that were available to him with the information he had. The one he chose was the one that was probably the worse for the baby and certainly the one that you couldn’t take back. And that was a mistake.”

(Emphasis added.)

We agree with Lawson that Dr. Lopez’s testimony in that regard is substantial evidence indicating that a viable intrauterine pregnancy existed and that, based on the information available to him on January 2, 2004, Dr. Moore acted negligently in recommending and administering methotre-xate to Lawson.

At the hearing on Lawson’s postjudgment motion, the trial court stated “that there was absolutely no credible evidence, none, I mean, not a shred of credible evidence to support a finding for [Lawson]” and that “the overwhelming evidence, the substantial evidence, was for a defense verdict.” In ruling on a motion for a JML, however, a court is to determine whether there is substantial evidence to support each element of the nonmov-ant’s claim. Mobile Infirmary Med. Ctr., 884 So.2d at 808-09; Liberty Nat’l Life Ins. Co., 840 So.2d at 156. In this case, Lawson presented substantial evidence through Dr. Lopez’s testimony indicating that Dr. Moore acted negligently and that his alleged negligence terminated a viable intrauterine pregnancy. Although Dr. Lopez’s testimony in that regard is in conflict with Dr. Moore’s testimony and the testimony of the Moore defendants’ expert, Dr. Blackwell, “[a] motion for a judgment as a matter of law ‘is properly denied where there exists any conflict in the evidence for consideration by the jury.’ ” Williams v. BIC Corp., 771 So.2d 441, 446 (Ala.2000) (quoting Cloverleaf Plaza, Inc. v. Cooper & Co., 565 So.2d 1147, 1149 (Ala.1990)). See also Liberty Nat’l Life Ins. Co., 840 So.2d at 156 (“ ‘ “A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law.” ’ ” (quoting Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 510-11 (Ala.2000), quoting in turn Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 304 (Ala.1997))). Consequently, the trial court erred in granting the Moore defendants’ motion for a JML.

Conclusion

The judgment is reversed, and the cause is remanded.

REVERSED AND REMANDED.

SEE, WOODALL, BOLIN, and PARKER, JJ., concur.

COBB, C.J., recuses herself.

      . According to Dr. Moore’s brief,
      "[in] an ectopic pregnancy, the developing embryo does not implant on the endometrial wall, but instead attaches to some other surface. Ectopic pregnancy allows the con-ceptas to implant and mature outside the endometrial cavity, which ultimately ends in death of the fetus. Without timely diagnosis and treatment, ectopic pregnancy can become a life-threatening situation. Ectopic pregnancy currently is the leading cause of pregnancy-related death during the first trimester in the United States.”

      . Dr. Moore's brief states: “Pseudo gestational sacs are created as a result of hormones excreted by the body in response to the developing ectopic pregnancy. These sacs typically develop in the central aspect of the endometrial cavity, as opposed to being buried within the uterine wall as common with healthy or viable gestational sacs.”

      . According to Dr. Moore’s brief, "[m]ethotre-xate is an antimetabolite drug used for treatment of ectopic pregnancies. Methotrexate causes ectopic pregnancies to degenerate without having to utilize surgical methods of removal.”

      . Dr. Moore testified that Lawson informed him that she had undergone a number of specific surgical procedures. He testified further that Lawson, in deciding to be treated by the use of methotrexate, told him she "did not want to have another surgery.”

      . The Moore defendants did not move for a summary judgment before the case was tried.

      . Dr. Blackwell testified specifically as follows:

        "Q. All right, sir. Now with regard to the ultrasound on January 1, do you have an opinion as to whether that ultrasound demonstrated a normal, healthy, viable fetus, a fetus that had opportunity to be born?
      “A. I don't believe this was a viable pregnancy. No matter how you dated the pregnancy, you basically didn’t see any of the markers that should have been seen.

      "Q. ... Based on what you see on the ultrasound report for January 1, what is your opinion with regard to whether— whatever was defined had any opportunity to develop into a live healthy baby?
      "A. I don’t think this would have resulted in a live birth.
      "Q. What in your judgment would have occurred in time?
      ’’A. If you simply left it alone long enough, you would have had an ultimate miscarriage hopefully without having some of the complications that can occur from a retained pregnancy.

      "Q. ... In your judgment, did Dr. Moore provide appropriate and good care to this patient?
      “A. Yes, he did.
      "Q. Did he do anything to destroy an opportunity for an intrauterine pregnancy to develop?
      “A. Absolutely not. And I think probably helped preserve her fertility.
      "Q. And did he also potentially save her life by treating the ectopic pregnancy?
      “A. Yes, sir.”

      . "The hormone human chorionic gonadotro-pin (better known as hCG) is produced during pregnancy and can be used to determine the viability of pregnancy.” Dr. Moore's brief, p. 18 n. 6.

      . Dr. Lopez also testified that ultrasounds performed after January 2, 2004, confirmed that Lawson had a viable intrauterine pregnancy. Specifically, Dr. Lopez testified that one of the ultrasounds showed the fetus as having a heartbeat of 88 beats per minute, which he testified was “slower than normal” but consistent with what he would expect given that “this baby [had] been exposed to [a] lethal dose of methotrexate.” Dr. Moore testified, however, that die normal heartbeat range for a fetus in the first trimester is between 120 and 160 beats per minute and that such a fetus, if viable, could not have a heartbeat rate of 88 beats per minute.


author: PER CURIAM. MURDOCK, Justice

text:
    OFF CAMPUS COLLEGE BOOKSTORE, INC. v. UNIVERSITY OF ALABAMA IN HUNTSVILLE and David Williams, as president of the University of Alabama in Huntsville.
    1071426.
    Supreme Court of Alabama.
    May 29, 2009.

      Michael L. Fees and Stacy L. Moon of Fees & Burgess, P.C., Huntsville, for appellant.
    Robert W. Rieder, Jr., and John 0. Cates, Office of Counsel, University of Alabama System, Huntsville, for appellees.
   PER CURIAM.

Off Campus College Bookstore, Inc. (“Off Campus”), appeals from a judgment of the Madison Circuit Court denying its information request to the University of Alabama in Huntsville (“UAH”) made pursuant to the Alabama Open Records Act, § 36-12-40, AIa.Code 1975. We dismiss the appeal based on the lack of subject-matter jurisdiction.

I. Facts and Procedural Histonj

The nature of our decision requires only a cursory rendition of the facts. Off Campus is a bookstore in the business of selling books, school supplies, and other products, primarily to postsecondary students at UAH, as well as to students at junior colleges and other postsecondary institutions in the Tennessee Valley. In July 2006 and again in May 2007, Off Campus requested from UAH the names and addresses of individuals (and their parents) who had been accepted to UAH and who planned to attend, or had attended, orientation classes preceding their first year at UAH. Off Campus believed it was entitled to the information under the Open Records Act. Off Campus stated that it intended to use this information to advertise Off Campus’s services of providing required and recommended course materials to incoming freshmen at a reduced rate. UAH declined to provide the information on the ground that it believed the information was protected by the federal Family Education Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g.

On July 9, 2007, Off Campus filed a declaratory-judgment action against UAH, asking the Madison Circuit Court to declare whether Off Campus had a right to obtain, and UAH had a responsibility to provide, the requested information pursuant to the Alabama Open Records Act. On August 9, 2007, UAH answered the complaint, contending that its absolute immunity, as conferred by Art. I, § 14, Ala. Const.1901, deprived the circuit court of subject-matter jurisdiction to hear the claims. It also contended that FERPA protected the requested information from disclosure and that the requested information was not within the ambit of the Open Records Act.

On March 20, 2008, Off Campus filed a motion for a summary judgment, along with a joint stipulation of facts from both parties in which they averred that “there are no issues of material fact and this matter is ripe for final judgment as a matter of law.” UAH filed a motion for a summary judgment on April 30, 2008. On May 16, 2008, Off Campus filed an amended complaint containing the same allegations as its original complaint but adding David Williams, in his official capacity as the president of UAH, as a defendant. Williams answered the complaint on June 2, 2008, reiterating the defenses stated by UAH and averring that he joined in UAH’s motion for a summary judgment.

On June 6, 2008, the trial court held a hearing on the opposing motions for a summary judgment. At the outset of the hearing, the trial court and the parties discussed the jurisdictional issue created by the fact that Off Campus originally filed its complaint solely against UAH, a state entity. Both the trial court and the parties assumed that because there was no statute-of-limitations bar to the addition of Williams as a defendant, the trial court acquired jurisdiction of the action on May 16, 2008, when the amended complaint was filed. The parties proceeded to argue the merits of the complaint.

On June 8, 2008, the trial court entered a final order denying the summary-judgment motion filed by Off Campus and granting the summary-judgment motion filed by UAH and Williams on the basis that the information sought by Off Campus was protected under FERPA and was not subject to disclosure under the Open Records Act. Off Campus appeals from this judgment.

II. Discussion — Sovereign Immunity

Section 14, Ala. Const.1901, provides: “[T]he State of Alabama shall never be made a defendant in any court of law or equity.” “The wall of immunity erected by § 14 is nearly impregnable. This immunity may not be waived.” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002) (citations omitted).

“This Court has long held that ‘ “ ‘the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution.’ ” ’ Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 364 (Ala.2001) (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (Ala.2001), quoting in turn Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971)). ‘[A]n action contrary to the State’s immunity is an action over which the courts of this State lack subject-matter jurisdiction.’ Larkins, 806 So.2d at 363.”

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

This Court has also noted on several occasions that there are exceptions to the State’s sovereign immunity. One such exception is when a party “ ‘seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation.’ ” 978 So.2d at 21 (quoting Latham v. Department of Corr., 927 So.2d 815, 821 (Ala.2005)). In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 841 (Ala.2008), this Court clarified, however, that “[t]he purpose of the so-called ‘exception’ to § 14 allowing declaratory-judgment actions is to give direction to State officers. Consistent with the other ‘exceptions’ to § 14 immunity, we hold that only State officers named in their official capacity— and not State agencies — may be defendants in such proceedings.”

It is undisputed that UAH is a State entity. Off Campus’s original complaint named UAH as the sole defendant. Under Harbert and pursuant to § 14, UAH was not a proper defendant for Off Campus’s declaratory-judgment action because it is absolutely immune from suit. Accordingly, the trial court lacked jurisdiction to entertain the complaint against UAH.

As noted above, Off Campus later purported to amend its complaint, without objection from UAH, adding UAH president David Williams as a defendant. Under our recent precedents, however, this amendment of the original complaint did not cure the jurisdictional defect that existed at the time the original complaint was filed. See Alabama Dep’t of Corr. v. Montgomery County Comm’n, 11 So.3d 189, 193 (Ala.2008) (holding that “[bjecause the original complaint named only a party that has absolute State immunity, it failed to trigger the subject-matter jurisdiction of the circuit court. Consequently, it was a nullity. The purported amendment of a nullity is also a nullity.”).

Consistent with Alabama Department of Corrections, we hold that Off Campus’s purported amendment to its complaint was a nullity, as was the trial court’s order purporting to grant UAH and Williams’s motion for a summary judgment and to deny Off Campus’s. Thus, Off Campus’s appeal of the trial court’s order is void and is due to be dismissed. See Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 701 (Ala.2008) (stating that “a void judgment will not support an appeal”).

III. Conclusion

Based on the foregoing, this appeal is dismissed as being from a void judgment.

APPEAL DISMISSED.

LYONS, WOODALL, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and MURDOCK, J., dissent.

MURDOCK, Justice

(dissenting).

For the reasons explained in my special writings in Cadle Co. v. Shabani, 4 So.3d 460 (Ala.2008) (Murdock, J., dissenting), and Ex parie Alabama Department of Transportation, 6 So.3d 1126, 1128 (Ala.2008) (Murdock, J., dissenting), I respectfully dissent. I note that the instincts of counsel for both the plaintiff and the defendant in this case, as well as those of the trial court, appear to have been in line with my view, as expressed in these cases, that the original complaint in a case such as this remains pending until it is dismissed (although the trial court lacks jurisdiction to actually adjudicate any claims asserted therein), and, if the plaintiff amends the complaint before the statute of limitations or some other bar prevents it from doing so and the amendment alleges one or more claims that the trial court otherwise could have jurisdiction to adjudicate, then the trial court acquires jurisdiction of those claims at that time.

COBB, C.J., concurs.

      . UAH routinely collects the information requested by Off Campus as part of its student-application process.

      . UAH has its own bookstore that sells course materials to its students.

      . "[UAH's counsel]: Well, I would agree with [Off Campus's counsel]. And that is the reason that we went ahead and filed an Answer, because there is no statute of limitations problem here. They could re-file, naming David Williams and could go forward.
      “I do want to point out to the Court— and, [Off Campus's counsel], you probably haven't had a chance to read the case. It's pretty darn explicit that the only power the Court has is to dismiss the thing if you don’t have subject-matter jurisdiction.
      "[Off Campus's counsel]: And by bringing in Dr. Williams, we have subject-matter jurisdiction.
      "Dr. Williams has consented to moving forward with this matter. He actually, if I am not mistaken, has joined in the Motion for Summary Judgment filed by UAH, that puts him in exactly the same position as if we dismissed, re-filed tomorrow and move forward that way. So I really don’t think it has to relate back.
      "But I do believe, by adding Dr. Williams, we have brought this matter properly before the Court and this Court does have subject-matter jurisdiction.
      "The Court: .... And I appreciate the cooperation between the parties in an effort to resolve the issues. It’s one that I suspect several state institutions are faced with. We consider the Court as having subject-matter jurisdiction on this case by the [addition] of Dr. David Williams, as President of the University of Alabama, Huntsville.''