author: GREENLEE, J., FOR THE COURT: TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Christopher JOHNSON, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00657-COA
    Court of Appeals of Mississippi.
    October 30, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Christopher Johnson challenges his convictions for burglary of a dwelling, aggravated assault, and possession of a firearm by a convicted felon. The Bolivar County Circuit Court sentenced him to concurrent terms of twenty-five years for burglary, twenty years for aggravated assault, and ten years for possession by a felon in the custody of the Mississippi Department of Corrections. As a habitual offender under section 99-19-81 of the Mississippi Code Annotated (Rev. 2015), he received the maximum sentence.

¶ 2. Johnson moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied his motion, and Johnson appeals.

¶ 3. He asserts that evidence is insufficient to support: (1) his identity as the culprit; (2) his conviction for aggravated assault; and (3) his conviction for firearm possession by a felon. He also argues that (4) the verdicts were against the overwhelming weight of the evidence. We affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 4. Jarvette Brown returned from her lunch to finish cleaning a neighbor's home in the delta town of Alligator, Mississippi. Someone had entered the home during Brown's brief absence. Brown promptly noticed things were amiss: the door was open, the dog was barking, a Crown Royal bag heaping with cash was on the table, and an unfamiliar coat was draped on a nearby chair. (The homeowner later found two of his guns missing.) A man emerged from a back room, wearing black clothes and a black bandana. Brown reproached him, but the man aimed a "long gun" at her and ordered her to "[h]old it."

¶ 5. Brown then heard the gun click. She disregarded the man's orders and dashed for the door. As she ran, she stopped a passing car and frantically asked its driver to call the police.

¶ 6. Police officers arrived about a half-hour later. They soon located an unarmed man who matched the description that Brown gave and approached him on the street. The man evaded the officers and raced into a nearby home. Brown stood nearby and also watched the man run. She recognized him as the culprit.

¶ 7. Police set up a perimeter around the building and ordered its occupants to vacate. Around twenty minutes later, four people came out: a woman, an old man, and two young men. Brown identified one of the young men-Christopher Johnson-as the culprit. She knew his mother well and was familiar with Johnson. Police also believed that Johnson was the man who had fled into the home, though he was wearing different clothing. They took Johnson into custody.

¶ 8. Police waited five days to interview the now-distraught Brown. Although they searched the home of Johnson's refuge, they failed to find black clothes or a black bandana. Police never dusted for fingerprints at the house that was the scene of the crime and could not locate the coat Brown saw or the reportedly stolen guns.

¶ 9. The grand jury indicted Johnson, and he was tried in the Bolivar County Circuit Court, where a jury found him guilty of burglary of a dwelling, aggravated assault, and possession of a firearm by a convicted felon. The circuit court sentenced him with maximum time under section 99-19-81 of the Mississippi Code. Johnson moved for a JNOV or, in the alternative, a new trial, which the circuit court denied. He appeals.

DISCUSSION

¶ 10. Johnson alleges the evidence is insufficient to support: (1) his identity as the culprit; (2) his conviction for aggravated assault; and (3) his conviction for firearm possession by a felon. He also argues that (4) the verdicts were against the overwhelming weight of the evidence. When we evaluate the sufficiency of evidence to sustain a conviction in Mississippi, we ask, "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Brown v. State , 217 So.3d 805, 807 (¶ 5) (Miss. Ct. App. 2017) (citing Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). "When reviewing a challenge to the weight of the evidence, the Court will disturb a jury verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Jones v. State , 154 So.3d 872, 880 (¶ 24) (Miss. 2014).

I. Did sufficient evidence support Johnson's identity as the culprit?

¶ 11. Johnson asserts that evidence is insufficient to prove beyond a reasonable doubt that he was the burglar, thereby negating all three guilty verdicts. Because the jury based these verdicts on allegedly questionable eyewitness identification, he argues this Court should reverse and render his conviction or, alternatively, reverse and remand the case for a new trial.

¶ 12. Johnson says that the evidence is insufficient for several reasons, including that he wore different clothes than the man who was chased into the nearby home, that police never recovered the stolen guns or the black clothes and black mask worn by the culprit, and that Brown's identification of Johnson as the culprit was inconsistent with her prior statements. He also makes the tenuous assertion that Brown may "simply [have] stole[n] from [the homeowner] and staged a burglary."

¶ 13. Despite the police officers' inability to collect tangible evidence like the guns and clothing, the State offered significant testimonial evidence at trial. The jury heard testimony from Brown that she had identified the culprit as Johnson. They also heard from the police regarding their pursuit and eventual capture of Johnson. Police officers further testified that Brown never vacillated in her identification of Johnson as the burglar.

¶ 14. It appears that police testimony clearly supported Brown's testimony. And, after viewing all the evidence in the light most favorable to the prosecution, we note that any rational trier of fact could have found beyond a reasonable doubt that Johnson was the burglar. This issue is without merit.

II. Did sufficient evidence support the conviction for aggravated assault?

¶ 15. The underlying question for this conviction is whether any rational trier of fact could have found, beyond a reasonable doubt, that Johnson was guilty of aggravated assault. The Mississippi Code governing the crime states, "A person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ...." Miss. Code Ann. § 97-3-7(2)(a)(ii). Johnson's indictment tracks the language of the statute, in stating that Johnson "did unlawfully, feloniously, and knowingly attempt to cause bodily injury to ... Brown with a deadly weapon, a rifle, by pointing said weapon at ... Brown and pulling the hammer of the gun back and/or jamming the gun when firing it."

¶ 16. Johnson argues that because Brown had never heard a gun click before that day, she could not be certain that Johnson attempted to fire the gun. Furthermore, he argues that Brown could not testify whether Johnson even had his finger on the trigger. The separate opinion dissenting in part also takes issue with the sufficiency of the evidence, asserting that because Johnson "never issued a verbal threat evincing any intent to harm Brown," the evidence is insufficient. The opinion further argues that the "primary evidence ... was Brown's testimony that she thought she heard the gun 'click.' "

¶ 17. "In Mississippi, eyewitness testimony is sufficient evidence to uphold a conviction." Conner v. State , 138 So.3d 158, 168 (¶ 34) (Miss. Ct. App. 2013) (citing Butler v. State , 102 So.3d 260, 268 (¶ 24) (Miss. 2012) ), aff'd , 138 So.3d 143 (Miss. 2014). Even though no shooting occurred, Brown testified that when she entered the house, Johnson came out of a backroom, pointed a long gun at her, and told her to "hold it." She testified that she heard a click from the gun and ran from the house for help. The jury heard her testimony and deemed it sufficient to determine that Johnson attempted to cause Brown bodily injury with a weapon. A mere attempt to fire a gun supports a jury verdict for aggravated assault. E.g. , Foreman v. State , 51 So.3d 957, 959-60 (¶ 6) (Miss. 2011) (noting that a failed "effort to discharge the gun would support a jury verdict for a charge of aggravated assault with a deadly weapon"). Therefore, we, as an appellate court, cannot now find that a rational trier of fact could not have found, beyond a reasonable doubt, that Johnson was guilty of aggravated assault. The trial court did not err in denying Johnson's motion for a JNOV. This issue is also without merit.

III. Did sufficient evidence support the conviction for firearm possession by a felon?

¶ 18. Here, the prosecution had to prove beyond a reasonable doubt that Johnson had previously been convicted of a felony and willfully possessed a firearm. See Brent v. State , 247 So.3d 367, 368 (¶ 7) (Miss. Ct. App. 2018) (citing Body v. State , 147 So.3d 890, 892 (¶ 11) (Miss. Ct. App. 2014) ). Both parties stipulated that Johnson previously had a felony conviction; the issue, then, is whether evidence is sufficient to show that Johnson possessed a firearm.

¶ 19. Section 97-37-5(1) of the Mississippi Code provides that "[i]t shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm ...." Again, Johnson's indictment tracks the Code: "[Johnson] did unlawfully, wilfully and feloniously possess a firearm ... after he ... had previously been convicted of [two] felon[ies] ...."

¶ 20. Johnson asserts that the evidence is insufficient for several reasons, including that police never recovered a gun, that Johnson appeared unarmed when police encountered him on the street, and that Brown's testimony regarding the gun is dubious at best.

¶ 21. It is not required that the deadly weapon be introduced at trial. Young v. State , 95 So.3d 685, 687 (¶ 7) (Miss. Ct. App. 2011). In fact, "eyewitness testimony, even in the absence of physical evidence, is legally sufficient ...." Gilmore v. State , 796 So.2d 1037, 1039 (¶ 10) (Miss. Ct. App. 2001) (citing Grant v. State , 762 So.2d 800, 804 (¶ 9) (Miss. Ct. App. 2000) ). Brown testified about the gun, its size, and Johnson's aiming it directly at her. Her testimony is sufficient enough to support the conviction. See Conner , 138 So.3d at 168 (¶ 34). We affirm the circuit court's denial of Johnson's JNOV motion and Johnson's conviction of firearm possession by a felon.

IV. Were the verdicts against the overwhelming weight of the evidence?

¶ 22. Johnson asserts that the verdicts were against the overwhelming weight of the evidence. We will only disturb the jury verdict "when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Jones , 154 So.3d at 880 (¶ 24). The jury heard a plethora of testimony, including from Brown that when she entered the house, the culprit, whom she identified as Johnson, came out of a backroom, pointed a long gun at her, and told her to "hold it"; she heard a click from the gun and ran from the house for help; and she testified about the gun he aimed at her and, as noted, its size. The jury also heard from the police regarding their pursuit and eventual capture of Johnson and about Brown's identification of Johnson as the burglar.

¶ 23. The verdict is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We affirm the circuit court's judgment.

CONCLUSION

¶ 24. We find the evidence is sufficient to support: (1) Johnson's identity as the culprit; (2) Johnson's conviction for aggravated assault; and (3) Johnson's conviction for firearm possession by a felon. We also find that (4) the verdicts were not against the overwhelming weight of the evidence. Thus, we affirm the circuit court's judgment.

¶ 25. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES AND CARLTON, JJ., CONCUR. TINDELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY FAIR, WILSON AND WESTBROOKS, JJ.

TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 26. I concur with the majority's decision to affirm Johnson's convictions for burglary of a dwelling and possession of a firearm by a convicted felon. However, because I believe insufficient evidence supported Johnson's aggravated assault conviction, I would reverse and render this conviction.

¶ 27. Brown was the only eyewitness to testify in this case. According to her testimony, when she encountered Johnson in her employer's house, Johnson told her to hold it and pointed a gun at her. Brown then testified that it sounded "like the gun ... click[ed]." After hearing the click, Brown took off running. When asked if she saw Johnson pull back the gun's hammer, Brown testified she did not know. When asked if she saw Johnson's hand on the trigger, Brown again testified that she did not know. When asked if she had ever "heard a gun click before[,]" Brown admitted she had not and that she only thought it was a gun that she heard "click."

¶ 28. In discussing cases involving a conviction for aggravated assault with a deadly weapon where the defendant never actually used the weapon or, in the case of a firearm, never actually discharged the firearm, our appellate courts have closely scrutinized the factual circumstances involved. Compare Gibson v. State , 660 So.2d 1268, 1268-70 (Miss. 1995) (finding insufficient evidence to support an aggravated assault conviction where the defendant pointed a gun at an officer's chest but then complied when ordered to lower his weapon), Murray v. State , 403 So.2d 149, 150-53 (Miss. 1981) (reversing an aggravated assault conviction where, during a prison escape attempt, the defendant threatened a correctional officer by holding a shank to the officer's throat but then allowed a fellow inmate to convince him to abandon his endeavor), and Edgar v. State , 202 Miss. 505, 508-09, 32 So.2d 441, 442 (1947) (holding that the defendant's exhibition of a pistol, accompanied by his "expression of vexed discontent" after losing money in a craps game, was insufficient to sustain a conviction of assault with the intent to murder the victim even though the defendant discharged the pistol during a scuffle and killed a third party), with Robinson v. State , 571 So.2d 275, 276-78 (Miss. 1990) (finding no error in the denial of the defendant's directed-verdict motion on his aggravated assault charge where the defendant showed up at his former mother-in-law's house with a lighter and gasoline, threatened to burn his ex-wife, chased his ex-wife from the house, caught up to her and sat on her, and again threatened to set her on fire), and Hunter v. State , 196 So.3d 998, 999-1000 (¶¶ 1, 6-7) (Miss. Ct. App. 2015) (upholding the defendant's aggravated assault convictions where he threatened to kill two officers and then attempted to retrieve a knife from beneath a pillow). As our caselaw makes clear, simply "pointing" a weapon at someone is not enough to commit attempted aggravated assault with a deadly weapon. See Gibson , 660 So.2d at 1270.

¶ 29. Here, Johnson never issued a verbal threat evincing any intent to harm Brown. Further, the State presented no eyewitness testimony to show that Johnson actually pulled the trigger or that the gun ever discharged. The primary evidence supporting his aggravated assault charge was Brown's testimony that she thought she heard the gun "click." Had Brown testified that she actually saw Johnson pull the trigger or that the "click" she heard was in fact a result of Johnson attempting to discharge the weapon, the evidence very well may have been sufficient to affirm his conviction.

¶ 30. In considering the sufficiency of the evidence to support a conviction, "we view the evidence in the light most favorable to the State" and "ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sellers v. State , 108 So.3d 456 (Miss. Ct. App. 2012) (internal quotation mark omitted). After concluding that Johnson was guilty of burglary of a dwelling and was a convicted felon in possession of a firearm, I can certainly understand a jury's inclination to also convict Johnson of aggravated assault. That being said, I do not believe any rational trier of fact could find the sound of an unidentified "click" sufficient to prove Johnson actually attempted to discharge the weapon in an attempt to assault Brown. I therefore concur in part and dissent in part from the majority's opinion.

FAIR, WILSON AND WESTBROOKS, JJ., JOIN THIS OPINION.

      Because Johnson's sentences were to run concurrently and his sentence for burglary of a dwelling exceeded his aggravated assault sentence, there is no need for resentencing.

      Our caselaw is well settled that discharging a firearm in the direction of an individual can constitute sufficient evidence to uphold an attempted aggravated assault conviction. Stringer v. State , 862 So.2d 566, 568 (¶¶ 10-11) (Miss. Ct. App. 2004). Interestingly, the State cites Stringer for its contention that witness testimony stating a defendant pointed a gun at someone constitutes sufficient evidence of intent to cause harm for an aggravated assault charge. However, the State fails to recognize that, unlike Johnson, the defendant in Stringer actually discharged his firearm several times in the direction of a pursuing officer. Id. at 568 (¶ 11).

      The majority cites Foreman v. State , 51 So.3d 957, 959 (¶ 6) (Miss. 2011), for the proposition that a defendant's failed "effort to discharge the gun would support a jury verdict for a charge of aggravated assault with a deadly weapon." I agree. However, in Foreman , the witness testified that she saw the defendant "pull out a gun, point it at the car, and try to shoot it." Id. at (¶ 3). The witness further testified "that Foreman then cocked the gun again and shot it," killing another individual in the car. Id. Here, Brown did not offer any such testimony of actually seeing Johnson try to shoot the gun.


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT:

license: Public Domain

text:
    James Earnest WATTS a/k/a Squirrel a/k/a James Watts, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CP-00225-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEY FOR APPELLANT: JAMES EARNEST WATTS (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, Jackson
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. James Earnest Watts appeals the judgment of the Marion County Circuit Court, denying his motion for modification of his sentence.

FACTS

¶ 2. On April 19, 1994, the grand jury of Marion County indicted Watts for killing Vanessa Nicole Lumpkin, a female child under the age of twelve years old, while in the commission of sexual battery in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Supp. 2018). In August 1996, a jury convicted Watts of capital murder and decided that he should receive the death penalty. Watts appealed; the Mississippi Supreme Court affirmed his conviction but reversed his sentence on the basis that the trial court had not properly instructed the jury as to the three sentencing options in capital murder cases provided by Mississippi Code Annotated section 97-3-21(3) (Rev. 2014): death, life in prison without the eligibility for parole, or life in prison with the eligibility for parole. Rather, the jury was instructed only that it had two sentencing options: the death penalty or life in prison without the eligibility for parole.

¶ 3. On June 4, 1999, Watts-represented by counsel-appeared before the trial court for resentencing. The State offered not to seek the death penalty if Watts would agree to waive his right to pursue a sentence before a jury of life with parole and accept a sentence of life without parole. After conferring with his counsel, Watts accepted the State's offer, and the trial court sentenced him to life without the eligibility for parole.

¶ 4. On December 11, 2017, Watts, acting pro se, filed a motion to modify his sentence to life with the eligibility for parole, wherein he argued that Mississippi Code Annotated section 97-3-21 (Rev. 2014) permitted the trial court to impose a sentence of only imprisonment for life; thus, its imposition of a sentence of life without parole exceeded the statutory maximum. In support of his argument, Watts cited King v. Epps , No. 1:10CV7-A, 2013 WL 1291632, at *1 (N.D. Miss. Mar. 26, 2013), and Bell v. State , 160 So.3d 188, 189 (¶ 1) (Miss. 2015), for the proposition that Mississippi Code Annotated section 99-19-107 (Rev. 2015) is inapplicable because the death penalty was rendered unconstitutional. The trial court denied Watts's motion and found that the holding in King v. State , 165 So.3d 1289, 1289 (¶ 1) (Miss. 2015), did not apply to Watts; the trial court did not address the holding in Bell . Watts now appeals. On remand, Watts and the State entered into a plea agreement wherein Watts agreed to be sentenced to life without the possibility of parole. Watts subsequently filed a motion to modify his sentence, arguing that the trial court had exceeded its authority with the sentence it imposed. The trial court denied Watts's motion and Watts has appealed. We find no error and, therefore, affirm.

DISCUSSION

¶ 5. "Our review of motions to reconsider a sentence is made under an abuse-of-discretion standard." Ducote v. State , 970 So.2d 1309, 1312 (¶ 6) (Miss. Ct. App. 2007). However, as the State points out, this matter presents itself more so as a petition for post-conviction relief (PCR) because Watts argues that the trial court was without jurisdiction to impose his sentence, that his sentence exceeds the maximum authorized by law, and that his agreement to waive being sentenced by a jury was involuntary. All of these arguments are set forth as potential PCR claims under the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated section 99-39-5 (Rev. 2015). "Regarding post-conviction relief appeals, this Court will not disturb the findings of the trial court unless they are found to be clearly erroneous." Ducote , 970 So.2d at 1315 (¶ 14).

¶ 6. Watts makes multiple arguments in his pro se brief on appeal, culminating in his contention that the trial court was without the discretion to sentence him to life without parole. First, Watts reiterates the argument he made in his motion for modification that his sentence should be modified in light of King v. State , 165 So.3d at 1289. However, as the trial court properly provided in its order, the facts of King differ from the matter at hand because in King , the courts found the defendant ineligible for the death penalty due to intellectual disability. Id. and King v. Epps , 2013 WL 1291632, at *1. Watts has not proven intellectual disability, nor is he now facing a sentence of death following his resentencing in 1999. Accordingly, the holdings in King v. State and King v. Epps are not relevant to the matter at hand.

¶ 7. Watts also reiterates his argument from his motion for modification, wherein he maintains that the trial court exceeded the statutory maximum in sentencing him to life imprisonment without the possibility of parole. In support of his contention, he cites both Mississippi Code Annotated section 47-7-3 (Supp. 2018) and section 97-3-21. Watts takes issue with the fact that, prior to July 1, 1994, section 97-3-21 provided two sentences for a defendant convicted of capital murder: death or life imprisonment with the possibility of parole. Effective July 1, 1994, the sentencing option of life without parole was added. Watts argues that he was improperly sentenced because his crime was committed prior to the 1994 amendment of section 97-3-21. However, as the State correctly points out, our supreme court held in Twillie v. State , 892 So.2d 187, 190 (¶ 11) (Miss. 2004), that a defendant "can waive his ex post facto rights and knowingly enter into an agreement to be sentenced to life without parole in order to avoid the death penalty," even in instances such as in Twillie where the defendant committed the crime prior to the 1994 amendment of section 97-3-21 but the defendant was convicted and sentenced following the 1994 amendment. The record includes a sentencing order from Watts's resentencing to life without parole, wherein the trial court determined that Watts entered his plea voluntarily and intelligently. As such, this issue is without merit.

¶ 8. We note that Watts also makes an argument regarding the issuance of a case plan by the Mississippi Department of Corrections. However, as this issue was never presented to the trial court, we are procedurally barred from reviewing it now.

¶ 9. We find no error warranting reversal. Therefore, the trial court's denial of Watts's motion for sentence modification is AFFIRMED.

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

      In his motion, which was filed December 17, 2017, Watts sought modification of his sentence that had been handed down by an order dated June 4, 1999. His motion was denied by an order dated January 19, 2018. So as discussed later, the circuit court should have treated Watts's motion as a motion for post-conviction relief, but it did not.

      The fact that the trial court cited King v. State rather than King v. Epps was proper. The defendant in both matters, King, filed numerous appeals and motions seeking relief from his conviction and sentence to death. One such motion was a petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi, wherein the court found that King was intellectually disabled and therefore ineligible for execution. King v. Epps , 2013 WL 1291632, at *1. The district court vacated King's death sentence and gave the state courts an opportunity to impose a sentence less than death. Id. at *1,* 12. The Mississippi Supreme Court considered the matter in King v. State , 165 So.3d at 1289, and vacated King's sentence and remanded to the trial court for King to be resentenced to life imprisonment.


author: SELLERS, Justice.

text:
    BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, d/b/a GCR Tires & Service v. Ottis ADAMS
    1160877
    Supreme Court of Alabama.
    March 16, 2018 Rehearing Denied May 11, 2018
    Christopher A. Driskill of Waller Lansden Dortch & Davis, LLP, Birmingham, for appellant.
    Wilbor J. Hust, Jr., and Joseph T. Cox of Zeanah, Hust, Summerford, Williamson & Cox, Tuscaloosa, for appellee.
   SELLERS, Justice.

Bridgestone Americas Tire Operations, LLC, d/b/a GCR Tires & Service ("Bridgestone"), appeals from a judgment of the Tuscaloosa Circuit Court denying Bridgestone's motion to compel arbitration of an employment-related dispute. We reverse the trial court's judgment.

I.

The record indicates that Ottis Adams began working as a sales representative for Bridgestone or a related entity in May 2006 and that he resigned or his employment was terminated in August 2016. It is not entirely clear what entity actually hired Adams in 2006. One affidavit Bridgestone submitted to the trial court implies that Bridgestone hired Adams. Another affidavit and other materials, however, suggest that Adams was hired by an entity called BFS Retail and Commercial Operations, LLC ("BFS"). For his part, Adams asserts that he was hired by BFS in 2006 but that he was an employee of Bridgestone when his employment ended in 2016.

Bridgestone submitted materials to the trial court indicating that, when Adams was hired in 2006, BFS was conducting business under the name GCR Tires & Service. Those materials also indicate that, in 2008, Bridgestone began using the GCR Tires & Service name and that, at that time, Bridgestone and BFS were owned by the same corporate parent. BFS changed its name in 2009, but the newly named entity and Bridgestone remained owned by the same corporate parent. Thus, it appears that, although Adams may have changed employers, his new employer was an affiliate, a related company, or a sister company of BFS.

At some point at or around the time he was hired, Adams signed a document entitled "New Employee Agreement and Acknowledgment of the Bridgestone/Firestone, Inc. Employee Dispute Resolution Plan" ("the agreement"), which states that Adams agreed to the terms of the employee-dispute-resolution plan, which is fully titled "BFS Retail & Commercial Operations, LLC, Employee Dispute Resolution Plan" ("the EDR Plan"). The agreement states further that Adams waives his right to resolve disputes covered by the EDR Plan through means other than those set forth in the EDR Plan.

The EDR Plan contains an arbitration provision. Although Adams argues that another provision in the EDR Plan excludes the claims he now asserts from arbitration, he concedes that parties who are bound by the plan "agreed to submit most employment disputes to arbitration."

After leaving Bridgestone in 2016, Adams became employed by McGriff Tire Company, Inc. ("McGriff"). At some point thereafter, McGriff's principal, Barry McGriff, received a letter written on the letterhead of Bridgestone's corporate parent. The letter asserted that Adams had signed a noncompetition and nonsolicitation agreement with his previous employer, that his employment with McGriff violated that agreement, and that Adams allegedly had violated a duty of loyalty by selling tires for McGriff while still employed by Bridgestone. The letter also suggested that Adams may have disclosed, or might disclose, "confidential information and trade secrets." The letter stated that Bridgestone was planning to commence legal action against Adams and concluded with a suggestion that McGriff might be named as a defendant in that action if the matter was not resolved. Adams asserts that, because of the accusations in the letter, McGriff terminated his employment.

Adams sued Bridgestone and related entities. In his complaint, he alleged that Bridgestone or a related entity had interfered with his business relationship with McGriff and had defamed him via the letter to Barry McGriff. Adams subsequently voluntarily dismissed all defendants except Bridgestone.

Bridgestone filed an answer and a counterclaim. In its counterclaim, Bridgestone averred that Adams, while still employed by Bridgestone, had taken actions for McGriff's benefit and had "feigned acceptance" of an employment agreement he never actually signed that included a noncompetition provision. Although Bridgestone did not mention arbitration or the EDR Plan in its answer or counterclaim, approximately three months after filing those pleadings, it amended its answer to assert arbitration as a defense, and it filed a motion to compel arbitration of all claims pursuant to the terms of the EDR Plan. The trial court denied Bridgestone's motion to compel, and Bridgestone appealed.

It appears that, after Bridgestone appealed, Adams attempted to proceed with further discovery. Bridgestone filed a motion requesting the trial court to enter an order staying further discovery pending appeal, which Adams opposed. The trial court denied Bridgestone's motion to stay.

II.

"This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala. 2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id.'[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.'
Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n.1 (Ala. 1995) (opinion on application for rehearing)."

Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) (emphasis omitted). It is undisputed that the EDR Plan contains an arbitration provision and that the plan evidences a transaction affecting interstate commerce. The dispute is whether the arbitration provision applies to the claims asserted in this action.

III.

Initially, Adams points out that the agreement states that disputes that might arise between himself and BFS are subject to the arbitration provision in the EDR Plan. Adams has asserted that he was hired in 2006 by BFS and that, when his employment ended in 2016, he was working not for BFS but for Bridgestone. Although Adams concedes that BFS was a party to the agreement, which provides that disputes are to be resolved pursuant to the EDR Plan, he argues that the agreement applies only to any disputes he might have with BFS and that Bridgestone cannot enforce it.

In addition to providing that disputes with BFS are subject to the EDR Plan, however, the agreement also states that the EDR Plan "fully defines the disputes that are covered"; that Adams agreed that he "must submit all disputes covered by the EDR Plan to mediation and, if necessary, to final and binding arbitration under the terms of the EDR Plan"; that Adams entered into an "agreement to be bound by the EDR Plan"; and that Adams "waive[d] any right ... to resolve disputes covered by the EDR Plan through any other means." The agreement also confirms that Adams had been given a copy of the EDR Plan and an opportunity to review it before he signed the agreement. We conclude that Bridgestone demonstrated to the trial court that Adams agreed to resolve, pursuant to the terms of the EDR Plan, all disputes covered by that plan, not just disputes with BFS. Even if the agreement is deemed ambiguous, "[i]n the event of an ambiguity or uncertainty over the applicability of an arbitration clause, federal policy dictates that it be resolved in favor of arbitration." Koullas v. Ramsey, 683 So.2d 415, 417 (Ala. 1996).

The EDR Plan provides that it is binding on "Employees" and "the Company" and that it governs disputes between "Employees" and "the Company." The term "Employee" is defined as "any applicant for employment, current employee or former employee of the Company." The term "Company" is defined broadly to include, among other entities and individuals, BFS; BFS's sister companies; BFS's related companies; BFS's affiliate companies; and the successors and assigns of each of the foregoing entities. As noted, the materials submitted by Bridgestone indicate that, in 2008, the GCR Tires & Service name was transferred from BFS to Bridgestone and that, at that time, Bridgestone and BFS were owned by the same corporate parent. BFS changed its name in 2009, but the newly named entity and Bridgestone remained owned by the same corporate parent. We conclude that Bridgestone has demonstrated that it fits within the definition of "the Company" as that term is used in the EDR Plan and that Adams agreed that his disputes with Bridgestone would be resolved pursuant to the terms of the EDR Plan. Thus, even if Bridgestone is, as Adams suggests, not a party to the agreement, which provided that disputes would be resolved pursuant to the EDR Plan, Bridgestone is entitled to enforce the agreement. See Ex parte Stamey, 776 So.2d 85, 92 (Ala. 2000) (holding that, pursuant to a third-party-beneficiary theory, a nonsignatory could enforce an arbitration agreement against a signatory because the agreement specifically stated that the signatory had agreed arbitrate disputes against the nonsignatory). Cf. First Family Fin. Serv., Inc. v. Rogers, 736 So.2d 553, 560 (Ala. 1999) (suggesting that a nonsignatory affiliate of a signatory to an arbitration agreement would have been entitled to enforce the agreement, which provided that disputes against the signatory's affiliates were subject to arbitration).

IV.

The EDR Plan provides that it "is the exclusive, final and binding means by which Disputes can be resolved." Adams concedes that parties bound by the EDR Plan "agreed to submit most employment disputes to arbitration." The EDR Plan defines "dispute," in relevant part, as follows:

" 'Dispute' means a legal claim between persons bound by the EDR Plan which relates to, arises from, concerns, or involves in any way:
"1. This EDR Plan;
"2. The employment of an Employee, including the application for and the initiation, terms, conditions, or termination of such employment;
"3. Any other matter arising from or concerning the employment relationship between the Employee and the Company including, by way of example and without limitation:
"....
"Tort claims such as defamation, intentional or negligent infliction of emotional distress, assault, battery, conversion, invasion of privacy and other personal injury claims ...."

As noted, Adams claims that Bridgestone sent Barry McGriff a letter accusing Adams of breaching a noncompetition agreement and the duty of loyalty and suggesting that Adams may have disclosed, or might disclose, trade secrets. Adams also asserted in his complaint that Bridgestone "threatened McGriff ... that if it failed to terminate [Adams], ... [Bridgestone] would add McGriff ... as a defendant to the lawsuit [it] was preparing and would file against [Adams]." Based on those actions, Adams alleged against Bridgestone defamation and interference with his business relationship with McGriff.

Adams has conceded that, but for an exclusion that appears in the EDR Plan, all claims asserted in this matter would qualify as disputes that are subject to the EDR Plan's arbitration provision. The exclusion upon which Adams relies provides that, "[n]otwithstanding anything to the contrary in the EDR Plan, the EDR Plan does not apply to ... claims with respect to allegations of trade secret violations and breach of non-competition provisions and agreements." The parties state in their briefs to this Court that "claims," as used in the exclusion, means "legal claims."

Neither party has asserted claims of trade-secret violations or breach of a noncompetition agreement. Adams's claims, however, rely on Bridgestone's allegedly false representations to McGriff that Adams had breached a noncompetition agreement and that he may have disclosed, or might disclose, trade secrets. Thus, Adams argues, his claims are "claims with respect to allegations of" trade-secret violations and breach of noncompetition provisions.

We disagree, however, with Adams's assertion that the exclusion unambiguously applies to his claims. At most, the use of the phrase "with respect to" in the exclusion renders the exclusion ambiguous as to whether it applies only to claims alleging trade-secret violations or the breach of noncompetition agreements, or also to claims, such as Adams's, that are aimed at recovering compensation for allegedly false accusations that a noncompetition agreement has been breached or trade secrets disclosed. As noted, an uncertainty or ambiguity over the applicability of the arbitration provision is to be resolved in favor of arbitration. In SSC Selma Operating Co. v. Fikes, 238 So.3d 635, 637 (Ala. 2017), this Court concluded that a provision in an arbitration agreement excluding from the operation of the agreement any dispute that "relate[d] to worker's compensation" did not apply to an employee's claim alleging retaliation for seeking worker's compensation benefits. Although, as Adams points out, the Court in SSC Selma concluded that the parties to the arbitration agreement had intended to exclude from its operation disputes that are governed by statute and that are not subject to a jury trial (such as workers' compensation claims but not retaliatory-discharge claims), the Court also noted as an alternative rationale that, "[i]n the event of an ambiguity or uncertainty over the applicability of an arbitration clause, federal policy 'dictates that it be resolved in favor of arbitration.' " Id. at 638 (quoting Koullas v. Ramsey, 683 So.2d 415, 417 (Ala. 1996) ). The exclusion with which we are concerned in the present case is at least as ambiguous as the exclusion at issue in SSC Selma. We resolve that ambiguity in favor of arbitration and conclude that Adams's claims are arbitrable.

V.

Adams argues that, by participating in litigation, Bridgestone waived any right it had to arbitrate. That issue is subject to de novo review. Hales v. ProEquities, Inc., 885 So.2d 100, 105 (Ala. 2003).

" 'It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party's participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks of an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.'
" Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala. 1995)."

Hales, 885 So.2d at 105. "[T]here is a presumption against a court's finding that a party has waived the right to compel arbitration." E. Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102, 103 (Ala. 1997). "[A]ny party seeking to establish such a waiver bears a heavy burden." Hoover Gen. Contractors-Homewood, Inc. v. Key, 201 So.3d 550, 553 (Ala. 2016). Adams candidly acknowledges that arguments asserting that a party has waived the right to arbitrate by participating in litigation are not favored.

Bridgestone filed an answer and a counterclaim approximately three months before it filed a motion to compel arbitration. Bridgestone also responded to Adams's initial interrogatories and requests for production before it filed a motion to compel arbitration. However, " '[m]erely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not constitute a waiver [of the right to arbitrate].' " Hoover Gen. Contractors-Homewood, 201 So.3d at 554 (emphasis omitted) (quoting Voyager Life Ins. Co. v. Hughes, 841 So.2d 1216, 1219 (Ala. 2001) ). Adams has not demonstrated that Bridgestone's filing a counterclaim, responding to Adams's initial discovery requests, and waiting approximately three months after answering Adams's complaint and asserting a counterclaim to move to compel arbitration constitutes a substantial invocation of the litigation process that substantially prejudiced Adams.

Adams also points out that, after the trial court denied Bridgestone's motion to compel arbitration, Bridgestone served Adams with interrogatories and requests for production. It is uncontested, however, that, in opposing Bridgestone's previously filed motion to stay discovery pending appeal, Adams represented to the trial court that moving forward with discovery would "expedite the arbitration process" in the event this Court were to reverse the trial court's judgment. He cannot now take the position that requiring him to submit to arbitration after participating in such discovery would cause him substantial prejudice.

Finally, the parties suggest that, before Bridgestone moved to compel arbitration, the parties voluntarily participated in what Adams describes as "court-approved" mediation. Adams, however, has not demonstrated that Bridgestone's participation in that mediation bespeaks an intention to abandon its right to arbitrate under the EDR Plan, which itself calls for mediation, or that Adams will be substantially prejudiced if Bridgestone's motion to compel arbitration is granted after Bridgestone and Adams have participated in unsuccessful mediation.

VI.

Based on the foregoing, we conclude that the trial court erred in denying Bridgestone's motion to compel arbitration pursuant to the terms of the EDR Plan. Accordingly, its judgment is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Shaw, and Wise, JJ., concur.

      Generally speaking, the EDR Plan requires disputes to be submitted to mediation and, if mediation is not successful, then to arbitration. The parties suggest that they have already participated in mediation, although not strictly pursuant to the procedure identified in the EDR Plan. Rather, Adams asserts that he and Bridgestone participated in mediation "through the [trial-court] approved process." As discussed infra, Adams argues that Bridgestone's participation in "court-approved" mediation constitutes invocation of the litigation process for purposes of determining whether Bridgestone has waived its right to arbitrate, but there has been no further discussion of whether the mediation should affect this Court's analysis.

      The employment agreement Adams did not sign is a separate instrument from the agreement, which Adams did sign when he was hired.

      There has been no argument that an arbitrator, and not a court, should resolve issues of arbitrability.

      It is undisputed that Bridgestone's counterclaims are covered by the EDR Plan and are not excluded from arbitration under the plan.

      Porter v. Williamson, 168 So.3d 1215 (Ala. 2015), upon which Adams relies, does not call for a different result. In that case, a shareholder's agreement required certain closely held companies to repurchase the shares of "terminated or retiring shareholder[s]." 168 So.3d at 1216. One such shareholder demanded the companies repurchase his shares, but the parties could not agree on a price. The shareholder sued the companies and the other shareholders, demanding specific performance of the shareholder's agreement. The defendants moved to compel arbitration. There was, however, a provision in the applicable arbitration agreement that excluded from its operation those actions for specific performance of the shareholder's agreement " 'in the event of any controversy concerning the purchase or sale of [shares].' " 168 So.3d at 1217. This Court held that the shareholder's action clearly was one demanding specific performance and that it was a controversy concerning the purchase or sale of shares. Unlike in Porter, the language used in the exclusion with which the Court is concerned in the present case is at least ambiguous.

      Bridgestone's failure to assert an arbitration defense in its answer was not a waiver of its right to arbitrate. Hoover Gen. Contractors-Homewood, 201 So.3d at 553 ("[A] party's failure to assert the existence of an arbitration clause in an initial pleading does not irrevocably bar that party from subsequently invoking that clause.").

      Also in support of his waiver argument, Adams points out that one of Bridgestone's attorneys, who is licensed to practice law in another state, took steps necessary to appear in this action in defense of Bridgestone. That action, however, does not constitute a substantial invocation of the litigation process by Bridgestone so as to suggest a waiver of the right to arbitrate. Adams also points out that Bridgestone served nonparty subpoenas on McGriff. Adams, however, has not demonstrated that Bridgestone's serving those subpoenas substantially prejudiced Adams. Finally, Adams suggests that he will be prejudiced by the granting of Bridgestone's motion to compel arbitration because, he claims, the terms of the EDR Plan are unfavorable to him. The alleged unfairness of the EDR Plan, however, has no bearing on whether Bridgestone waived its right to arbitrate by participating in litigation.


author: BRYAN, Justice.

text:
    Andre BARNWELL v. CLP CORPORATION
    1170115
    Supreme Court of Alabama.
    May 11, 2018
    John T. Robertson IV of Strawn & Robertson, L.L.C., Gadsden, for appellant.
    Timothy P. Donahue and Timothy P. Donahue, Jr., of Donahue & Associates, LLC, Birmingham, for appellee.
   BRYAN, Justice.

Andre Barnwell, the plaintiff below, appeals from a summary judgment entered in favor of CLP Corporation ("CLP"), the defendant below. This is the second time these parties have been before this Court. In Barnwell v. CLP Corp., 235 So.3d 238 (Ala. 2017), we reversed a summary judgment entered in favor of CLP and remanded the case. Because in the first appeal we decided in favor of Barnwell the dispositive issues presented by the current appeal, we again reverse and remand.

As we noted in our first opinion involving these parties, CLP owns and operates a McDonald's fast-food restaurant ("the restaurant"). Barnwell sued CLP, alleging that he was injured when he slipped and fell in the restaurant. CLP moved for a summary judgment, arguing that the alleged fall was caused by an open and obvious danger and that part of Barnwell's testimony about the alleged fall was unreliable and should not be considered. CLP also filed a motion to strike Barnwell's affidavit and part of his earlier deposition. In that motion, CLP argued that Barnwell's affidavit testimony conflicted with his deposition testimony. CLP also argued that part of Barnwell's deposition testimony regarding the accident is contradicted by photographs showing the interior of the restaurant. In August 2016, the circuit court entered an order granting CLP's motion for a summary judgment, without stating a reason. The circuit court did not enter an order indicating a ruling on CLP's motion to strike.

Barnwell appealed to this Court, and we reversed the summary judgment and remanded the case. Early in our analysis, we considered whether the circuit court had considered Barnwell's affidavit and full deposition in ruling on CLP's summary-judgment motion. As noted, CLP had filed a motion to strike Barnwell's affidavit and part of his deposition. We stated: "The circuit court did not enter an order specifically denying CLP's motion to strike. However, in entering its summary judgment in favor of CLP, the circuit court specifically stated that it had considered all the evidence before it. The circuit court clearly did not find CLP's argument [for striking the evidence] convincing." Barnwell, 235 So.3d at 243.

Thus, in the first appeal, we determined that the circuit court had considered Barnwell's affidavit and full deposition in ruling on the summary-judgment motion. We later addressed whether the circuit court's consideration of that evidence was proper, i.e., whether that evidence was admissible. See, e.g., Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1053 (Ala. 2007) (stating that evidence submitted in opposition to a summary-judgment motion must be admissible and refusing to consider, on de novo review of a summary judgment, inadmissible evidence the circuit court should have struck before it ruled on the summary-judgment motion). That determination was key, because the disputed evidence was crucial to Barnwell's attempt to withstand the summary-judgment motion. As we will discuss in more detail below, we determined that the disputed evidence was properly before the circuit court. Based on the evidence that the circuit court properly had before it, i.e., Barnwell's affidavit and full deposition, and its indication in the summary-judgment order that it had considered "all the evidence" before it, we concluded that the circuit court had erred in entering a summary judgment in favor of CLP, and we reversed the summary judgment and remanded the case. More specifically, Barnwell's affidavit and his full deposition provided evidence supporting Barnwell's claim, thus precluding a summary judgment on the ground that such evidence was lacking, and CLP had not presented any evidence establishing that the dangerous condition that allegedly caused the fall was open and obvious.

After we remanded the case, CLP filed a renewed motion to strike Barnwell's affidavit and part of his deposition. The renewed motion to strike presents the same substantive grounds as did the original motion to strike, but there is one difference between the two motions. In the renewed motion to strike, CLP contended that the circuit court, in considering the original motion to strike at a hearing before the entry of the first summary judgment, actually had ruled from the bench that the motion to strike was due to be granted. As noted, before the first appeal, the circuit court had never entered an order ruling on the original motion to strike. In the renewed motion to strike, CLP asked the circuit court to grant the motion to strike "for a second time" and to enter an order to that effect. CLP also filed a renewed summary-judgment motion that is substantively the same as CLP's original summary-judgment motion. Barnwell responded to the renewed motion to strike and the renewed summary-judgment motion, arguing that this Court had already decided the issues raised by those filings.

The circuit court subsequently entered an order granting CLP's renewed motion to strike. The circuit court struck Barnwell's affidavit and parts of his deposition because the circuit court concluded that they conflicted with each other. On the same day the circuit court granted the motion to strike, the circuit court entered a summary judgment in favor of CLP, stating, in pertinent part:

"During the original hearing on [CLP's] Motion for Summary Judgment and Motion to Strike held on August 15, 2016, this Court ruled that [Barnwell's] affidavit and certain [deposition] testimony were due to be stricken from the record, and summary judgment was due to be granted for [CLP]. This Court entered an order granting [CLP's] Summary Judgment. However, this Court did not enter a separate order granting [CLP's] Motion to Strike, although this Court ruled from the bench that the Motion to Strike was due to be granted.
"Upon detailed review of the Supreme Court's opinion [reversing the first summary judgment], it is ... this Court's opinion that the Supreme Court was unaware of this Court's decision to grant [CLP's] Motion to Strike. ...
"Despite relying on the misunderstanding that this Court [had] denied [CLP's] Motion to Strike, the Supreme Court opined, 'Of course, if [Barnwell's affidavit and deposition] were not considered by the circuit court, there would be no evidence supporting the allegations in Barnwell's complaint and, thus, CLP would be entitled to a summary judgment in its favor.' This Court clarifies that it in fact granted [CLP's] prior Motion to Strike. As such, it appears to this Court, based the Supreme Court's Opinion, that had [the Supreme Court] been informed of this Court's prior decision to grant [CLP's] Motion to Strike, CLP would be entitled to summary judgment.
"[CLP's] Renewed Motion to Strike has been granted. Subsequently, [Barnwell] has once again failed to present sufficient evidence to overcome [CLP's] Renewed Motion for Summary Judgment."

Following the denial of his postjudgment motion, Barnwell once again appealed to this Court.

Essentially, the only difference in this case as it is now postured and the case as it was postured for the first appeal is that the circuit court has now informed this Court that it orally granted CLP's motion to strike at the hearing held before the first summary judgment was entered. There was no indication in the record of the first appeal that the circuit court had orally granted the motion to strike. Conversely, we determined that the record actually indicated that the circuit court had considered the evidence CLP sought to strike, noting that the first summary-judgment order stated that the circuit court had considered "all the evidence." 235 So.3d at 243. In this appeal, Barnwell does not seem to object to the circuit court's clarifying that it had denied the motion to strike his affidavit and full deposition. Barnwell argues, however, that the circuit court erred by striking that evidence. That is, he argues that the stricken evidence is admissible and that, in light of that evidence, a summary judgment should not have been entered against him. As we will discuss in detail below, these are issues that were resolved in the first appeal

We first address the circuit court's reliance on remand on a statement we made in our opinion in the first appeal. In the second summary judgment entered on remand, the circuit court noted that in our first opinion we stated: "Of course, if [Barnwell's affidavit and deposition] were not considered by the circuit court, there would be no evidence supporting the allegations in Barnwell's complaint and, thus, CLP would be entitled to a summary judgment in its favor." 235 So.3d at 243. That statement, however, must be read in the context of the entire opinion. When this Court made that statement, it was attempting to pinpoint the circuit court's rationale for entering the first summary judgment. In response to the grounds CLP asserted in the first summary-judgment motion, the circuit court may have entered a summary judgment on the ground either (1) that it was disregarding Barnwell's affidavit and deposition, leaving no evidence to support Barnwell's claim, or (2) that the dangerous condition that caused the alleged fall was open and obvious. In that context, we did say that if the circuit court did not consider Barnwell's affidavit and deposition in ruling on the summary-judgment motion, there would be no evidence supporting Barnwell's claim and, "thus, CLP would be entitled to a summary judgment in its favor." 235 So.3d at 243. But that statement did not end the discussion because, regardless of whether the circuit court actually had considered the evidence, the question remained whether the circuit court properly considered or properly failed to consider the evidence. Barnwell argued that the evidence CLP sought to strike is admissible and thus was properly before the circuit court, and CLP argued the opposite. We spent a good part of our analysis in the first appeal discussing that issue.

In the current appeal, the parties mostly reiterate the same arguments they made in the first appeal. This is unsurprising because, as noted, we discussed in the opinion in the first appeal the key issue in this appeal: Whether the circuit court should have considered Barnwell's affidavit and full deposition. As the first opinion indicates, the admissibility of that evidence is crucial; if that evidence is properly before the circuit court, summary judgment is inappropriate. We thoroughly discussed this issue in the first opinion, and we repeat our discussion here, beginning with a recitation of the evidence:

"The following facts are derived from Barnwell's deposition testimony. On April 25, 2013, Barnwell visited the restaurant. Barnwell stated that after he entered the restaurant, he went straight to the restroom to wash his hands. Barnwell's deposition testimony explains what happened next:
" '[Barnwell:] I just come out and started walking straight back and the door-the entrance door would be on my left and the counter would be on the right.
" '[CLP's trial counsel:] What happened after that?
" '[Barnwell:] I had-I was going to turn and go to the counter, I planted my left foot. When I did, it just kind of slipped out from under me sort of sideways and I went back down on my left hip and pushed myself just kind of all one motion, just down and hit and then back up.
" '[CLP's trial counsel:] I'm going to walk through what we just talked about. You're coming out of the restroom and you're going to make a right turn to head towards the counter?
" '[Barnwell:] Yes.
" '[CLP's trial counsel:] I take it you're headed to the counter. Were you going to order?
" '[Barnwell:] Yes.
" '[CLP's trial counsel:] And you plant your left foot?
" '[Barnwell:] Right.
" '[CLP's trial counsel:] What happens immediately after you plant your left foot?
" '[Barnwell:] It slides away from me.
" '[CLP's trial counsel:] And you're indicating it went out sideways?
" '[Barnwell:] Yes.
" '[CLP's trial counsel:] And that it went out from underneath you?
" '[Barnwell:] Yes.
" '[CLP's trial counsel:] What happens after the left foot comes out from underneath you?
" '[Barnwell:] I just go down that way and kind of hit on my hip sort of turned like that and then I stuck my hands and pushed myself and I got back up.
" '[CLP's trial counsel:] So your left foot goes out from underneath you?
" '[Barnwell:] Right.
" '[CLP's trial counsel:] You fall to the ground?
" '[Barnwell:] Right, and I'm trying to put my hand out.
" '[Barnwell:] Yes.
" '[CLP's trial counsel:] You're indicating when you're falling to the ground you put your hand out to catch you?
" '[CLP's trial counsel:] Was it just one of your hands or both?
" '[Barnwell:] Just one.
" '[CLP's trial counsel:] Your left hand?
" '[Barnwell:] Right.
" '[CLP's trial counsel:] Do you catch yourself with your left hand?
" '[Barnwell:] I make impact and I'm kind of trying to push up when I hit.
" '[CLP's trial counsel:] I think you had also said, does your left hip make contact with the ground?
" '[Barnwell:] Right.
" '[CLP's trial counsel:] You go to the ground, you tried to brace the fall with your left hand, made contact with your left hip, what is the next thing you do after that?
" '[Barnwell:] I started pushing myself up.
" '[CLP's trial counsel:] How long would you say you were on the ground?
" '[Barnwell:] Instantly back up.
" '[CLP's trial counsel:] What happens after you're able to get yourself back up?
" '[Barnwell:] I just stand there. I'm sort of addled. I know you may not know what that word means.
" '[CLP's trial counsel:] I'm with you.
" '[Barnwell:] Kind of shook up.
" '[CLP's trial counsel:] You stand in the spot where you had fallen a minute ago?
" '[Barnwell:] Yes.
" '[CLP's trial counsel:] How long would you say you just kind of stood there?
" '[Barnwell:] I don't know.
" '[CLP's trial counsel:] What happens after you're able to get your bearings?
" '[Barnwell:] I head to the counter.'
"Barnwell's deposition testimony states that, once he arrived at the counter, there were a couple of people ahead of him in line; Barnwell waited to place his order. Barnwell's deposition testimony indicates that, once he reached the front of the line and was asked for his order, he was not able to order because he was 'just sort of disillusioned.' Barnwell stated that the cashier asked him if he was 'okay.' Barnwell indicated that he responded in the affirmative to the cashier's question by nodding his head. Barnwell then left the restaurant without ordering.
"CLP presented as evidence two digital files containing surveillance-video footage taken from two different cameras in the restaurant. The surveillance-video cameras recorded two different, but partially overlapping, parts of the restaurant. The surveillance-video footage from both cameras is a simultaneous recording of the same time. It is evident from pictures included in the record that the surveillance-video cameras did not capture the entirety of the interior of the restaurant. Specifically, the surveillance-video cameras did not provide footage of the area of the restaurant immediately outside the restroom Barnwell was exiting. The surveillance-video footage from that date and time shows several employees and patrons. The surveillance-video footage from one of the cameras shows an employee mopping the floor immediately in front of the counter at which restaurant patrons placed their orders; the employee placed a warning sign in the area he had mopped indicating that the floor was wet. The surveillance-video footage from both cameras does not include footage of anyone slipping and falling to the floor of the restaurant. Apparently, Barnwell appears in the surveillance-video footage;
however, there is no affidavit testimony accompanying the surveillance-video footage to explain its contents, and it is unclear which of the people appearing in the surveillance-video footage is Barnwell. The surveillance-video footage from one of the cameras does show a patron slipping on the recently mopped floor in the restaurant in front of the counter; that person is apparently Barnwell.
"After viewing the surveillance-video footage, Barnwell submitted an affidavit, which states, in pertinent part:
" 'Those clips do not show the slip and fall, which I believe primarily caused my injuries, but where I again slipped as I was going to get in line at the counter. I did not actually fall that time. The accident where I did slip and fall was blocked from the view of those two cameras.'
"Barnwell's affidavit further states he 'slipped and fell right after [he] came out of the restroom, and before reaching the area shown by those [surveillance] videos.' Barnwell also attached as an exhibit to his affidavit a photograph of the area of the restaurant immediately outside the restroom. The photograph of the area immediately outside the restroom shows that, upon exiting the restroom, Barnwell would have had to have made a right turn in order to walk toward the counter. After reaching the front of the restaurant, Barnwell would have had to have made another right turn to approach the counter.
"After leaving the restaurant, Barnwell got in his vehicle, in which his girlfriend, Jerri Ann Dulaney, was waiting, and drove away from the restaurant. Barnwell's deposition testimony indicates that, at this point, he was experiencing pain in his back and left leg. As he was driving, Barnwell began 'hurting worse and worse.' Dulaney convinced Barnwell to return to the restaurant to speak with the manager, Sheila D'Anna, about the incident. Barnwell agreed. Dulaney spoke with D'Anna, and, according to Barnwell's and Dulaney's deposition testimony, D'Anna told Dulaney that she had witnessed Barnwell fall. Barnwell stated that D'Anna filled out a written report detailing Barnwell's fall. Dulaney's affidavit testimony also indicates that D'Anna filled out an accident report detailing Barnwell's fall."

235 So.3d at 238-41.

After summarizing the proceedings below, we stated the standard of review:

" ' "The standard of review applicable to a summary judgment is the same as the standard for granting the motion...." McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala. 1992).
" ' "A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present 'substantial evidence' creating a genuine issue of material fact-'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Ala. Code 1975, § 12-21-12 ; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)."
" ' Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004).'
" Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala. 2006)."

235 So.3d at 242-43.

As noted, we then began our discussion by attempting to determine the ground upon which the circuit court had entered its first summary judgment. After concluding that the circuit court had not entered the summary judgment on the ground that it had disregarded Barnwell's affidavit and deposition, leaving no evidence to support Barnwell's claim (which we now know was not the case), we concluded that the court must have entered the first summary judgment on the ground that the alleged slip and fall was caused by an open and obvious danger, i.e., water on the floor. 235 So.3d at 243. We discussed CLP's argument that the alleged dangerous condition was open and obvious, and we concluded that the evidence did not support that affirmative defense. We then addressed arguments regarding whether Barnwell's affidavit and full deposition were properly before the circuit court. Barnwell argued that the disputed evidence was admissible and properly before the circuit court; CLP argued that it was not. We stated:

"CLP argues that '[t]he court may not consider deposition or affidavit testimony that directly contradicts earlier deposition or affidavit testimony without adequate explanation.' McGough v. G & A, Inc., 999 So.2d 898, 904 (Ala. Civ. App. 2007). CLP argues that Barnwell's later affidavit testimony directly contradicts his earlier deposition testimony. Specifically, CLP directs this Court's attention to the following deposition testimony of Barnwell:
" '[CLP's trial counsel:] After you wash your hands in the restroom, what happens after that?
" '[Barnwell:] I just come out and started walking straight back and the door-the entrance door would be on my left and the counter would be on the right.
" '[CLP's trial counsel:] What happened after that?
" '[Barnwell:] I had-I was going to turn and go to the counter, I planted my left foot. When I did, it just kind of slipped out from under me sort of sideways and I went back down on my left hip and pushed myself just kind of all one motion, just down and hit and then back up.
" '[CLP's trial counsel:] I'm going to walk through what we just talked about. You're coming out of the restroom and you're going to make a right turn to head towards the counter?
" '[Barnwell:] Yes.'
"CLP argues that this portion of Barnwell's deposition testimony directly contradicts Barnwell's affidavit testimony in which Barnwell states that he fell outside the restroom. We do not find CLP's argument convincing.
"Barnwell's deposition testimony indicates that he slipped and fell at some point after he exited the restroom and before he arrived at the counter. Barnwell's deposition testimony indicates that he slipped while making a right turn. As set forth above, it would have been necessary for Barnwell to make two right turns to get to the counter from the restroom. First, Barnwell would have had to have made a right turn upon exiting the restroom and, second, Barnwell would have had to have made another right turn, after walking a few feet away from the restroom, to approach the counter. Barnwell was generally heading toward the counter in making both right turns. The above-quoted deposition testimony of Barnwell could be read as indicating that Barnwell fell while making either right turn. Nothing in Barnwell's deposition testimony indicates exactly where he allegedly fell. CLP's trial attorney did not ask Barnwell during his deposition where exactly in the restaurant he fell; Barnwell's deposition testimony leaves this fact ambiguous.
"CLP also notes that the surveillance-video footage shows an individual slipping on the water from the mopping of the floor near the counter. As noted above, there is no evidence explaining the contents of the surveillance-video footage. Regardless, for purposes of this appeal, we will assume that the individual who slips on the water near the counter on the surveillance-video footage is Barnwell. CLP notes that, assuming Barnwell did fall outside the restroom, Barnwell never mentioned this 'second slip' in his deposition testimony. According to CLP, this alone proves that Barnwell is lying in his affidavit testimony when Barnwell explains that he fell outside the restroom and not near the counter. We do not find this argument convincing. Barnwell stated in his deposition testimony that he was 'addled' and 'disillusioned' after his alleged slip and fall. It is plausible that as a result Barnwell simply did not remember the 'second slip.'
"Finally, CLP takes issue with a portion of Barnwell's deposition testimony in which Barnwell states that 'the lady at the cash register' saw him fall. CLP argues that photographs of the restaurant show that there is a wall between the counter, where the cash registers are located, and the restroom. CLP argues that it would have been impossible for 'the lady at the cash register' to have seen Barnwell fall if he fell outside the restroom. CLP fails to mention, however, that a photograph in evidence shows that the wall between the counter and the restroom does not reach all the way to the ceiling. There is a cutout in the wall that allows employees working behind the counter to see the area near the outside of the restroom, although not the area immediately outside the restroom. Further, Barnwell's deposition testimony does not indicate that 'the lady at the cash register' saw him fall while she was working at the cash register. CLP's argument is not convincing."

235 So.3d at 245-46.

The above analysis explains why Barnwell's affidavit and full deposition are admissible and thus were properly before the circuit court and should not have been struck. That was so in the first appeal, and it is so now. Of course, in the first appeal we believed that the circuit court had in fact considered the evidence, and we were addressing whether it was proper for that court to do so. We know now that the circuit court did not actually consider the evidence, but that does not change our analysis regarding the evidence. Substantively, the renewed motion to strike and the renewed summary-judgment motion filed after remand are the same as the original motion to strike and the original summary-judgment motion. The parties' arguments regarding the admissibility of the disputed evidence in the current appeal are mostly the same as the arguments the parties presented in the first appeal; the majority of the argument sections in the briefs in the current appeal are copied verbatim from the briefs in the first appeal, while some other arguments are essentially the same but worded differently. Quite simply, we have already addressed the issues raised by those arguments and determined that Barnwell's affidavit and full deposition should have been considered by the circuit court.

Put another way, our determination on this matter is now the law of the case. " 'Under the law of the case doctrine, "[a] party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal." ' " Scrushy v. Tucker, 70 So.3d 289, 303-04 (Ala. 2011) (quoting Kortum v. Johnson, 786 N.W.2d 702, 705 (N.D. 2010), quoting in turn State ex rel. North Dakota Dep't of Labor v. Riemers, 779 N.W.2d 649 (N.D. 2010) (emphasis omitted) ) ). Application of the law-of-the-case doctrine is discretionary rather than mandatory, Ex parte Discount Foods, Inc., 789 So.2d 842, 846 n. 4 (Ala. 2001), and there are exceptions to the doctrine. For example, "[i]f ... an observation by the appellate court concerning an issue is premised on a particular set of facts, and the nature of the remand is such that it is permissible and appropriate to consider additional facts relevant to the issue, the law-of-the-case doctrine is inapplicable." Lyons v. Walker Reg'l Med. Ctr., 868 So.2d 1071, 1077 (Ala. 2003). Further, "the law-of-the-case doctrine may be disregarded if the court is convinced its prior decision was clearly erroneous or there has been an intervening change in the law." Belcher v. Queen, 39 So.3d 1023, 1038 (Ala. 2009). "The law-of-the-case doctrine also prevents consideration of an argument that could have been raised at the first appeal and is not made until a subsequent appeal." Green v. George's Farms, Inc., 2011 Ark. 70, 77, 378 S.W.3d 715, 720 (2011).

In this case, we see no reason to reopen our discussion regarding the admissibility of Barnwell's affidavit and full deposition. The evidence subject to review in the second appeal is the same as that in the first appeal. We note that, although most of CLP's arguments in this appeal were made in the first appeal, CLP briefly presents new arguments questioning the reliability of Barnwell's testimony. However, those arguments could have been raised in the first appeal but were not, and we will not further address them here.

Accordingly, we reverse the summary judgment, and we again remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Parker, Main, and Mendheim, JJ., concur.


author: MENDHEIM, Justice.

text:
    EX PARTE the BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA
    (In re: Paul F. Castellanos, M.D. v. Board of Trustees of the University of Alabama School of Medicine (UAB) et al.)
    1170183
    Supreme Court of Alabama.
    May 18, 2018
    David R. Mellon and Audrey Y. Dupont of the University of Alabama System, UAB Office of Counsel, Birmingham, for petitioner.
    Stephen D. Heninger of Heninger Garrison & Davis, LLC, Birmingham, for respondent.
   MENDHEIM, Justice.

The Board of Trustees of the University of Alabama ("the Board") petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to dismiss for lack of subject-matter jurisdiction, based on Article I, § 14, Ala. Const. 1901, an action filed against it by Paul F. Castellanos, M.D. ("Dr. Castellanos"). We grant the petition.

I. Facts

On September 22, 2017, Dr. Castellanos filed an action against six named defendants and other fictitiously named defendants. The six named defendants are: (1) "University of Alabama Health Services Foundation, P.C."; (2) "Board of Trustees for the University of Alabama School of Medicine (UAB)"; (3) "William R. Carroll, M.D."; (4) "Loring Rue, M.D."; (5) "Gustavo R. Heudebert, M.D."; and (6) "UAB Health System Board of Directors." The Board explains in its petition that it was incorrectly named in the complaint "Board of Trustees for the University of Alabama School of Medicine (UAB)" and that the correct name of the entity is "the Board of Trustees of the University of Alabama." Against the Board, Dr. Castellanos's complaint asserted claims alleging intentional interference with contractual and business relations, civil conspiracy, and "intentional infliction of mental anguish-outrageous conduct" and seeking declaratory and injunctive relief.

On November 1, 2017, the Board filed a motion to dismiss in which it asserted that it was entitled to immunity under Article 1, § 14, Ala. Const. 1901. No other defendant joined the Board's motion.

Later in the day on November 1, 2017, the remaining defendants, other than the Board, filed a motion to compel arbitration as to all claims asserted against them by Dr. Castellanos. The motion was based on an arbitration provision contained in the "University of Alabama Health Services Foundation, P.C. Physician Employment Contract" ("the employment contract") entered into between the University of Alabama Health Services Foundation, P.C., and Dr. Castellanos. The motion to compel arbitration included a footnote observing that the Board was not a party to the motion to compel arbitration.

On November 15, 2017, the circuit court entered an order granting the motion to compel arbitration as to certain named defendants but not others. Specifically, the circuit court "ordered ... that the above captioned case is hereby compelled to arbitration as it relates to claims asserted against Defendants University of Alabama Health Services Foundation, P.C., Board of Trustees for the University of Alabama School of Medicine (UAB), and UAB Health System Board of Directors, only." The circuit court did not grant the motion to compel arbitration as to William R. Carroll, M.D., Loring Rue, M.D., and Gustavo R. Heudebert, M.D. Thus, the order compelled the Board to submit to arbitration even though it had not joined the motion to compel arbitration.

On November 29, 2017, the Board filed the present petition for a writ of mandamus asking this Court to direct the circuit court to grant its motion to dismiss all claims against it.

On February 28, 2018, Dr. Castellanos filed a one-page response to the petition in which he stated that he "acknowledges and concedes that [the Board] is itself immune from suit and the order compelling [the Board] to arbitration was improvidently granted as to [the Board]. The issuance of this Writ, on these grounds, should be granted for [the Board]."

II. Standard of Review

A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: " '(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) the properly invoked jurisdiction of the court.' " Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) ). It is well established that "a court's failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus." Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837 So.2d 808, 810-11 (Ala. 2002).

III. Analysis

The only issue for the Court's review is whether the circuit court erred in failing to dismiss Dr. Castellanos's claims against the Board on the basis of § 14 immunity and thus erred by including the Board in its order compelling arbitration of Dr. Castellanos's claims against certain defendants.

"Section 14, Ala. Const. 1901, provides: '[T]he State of Alabama shall never be made a defendant in any court of law or equity.' (Emphasis added.) 'The wall of immunity erected by § 14 is nearly impregnable.' Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002). Indeed, as regards the State of Alabama and its agencies, the wall is absolutely impregnable. Ex parte Alabama Dep't of Human Res., 999 So.2d 891, 895 (Ala. 2008) (' Section 14 affords absolute immunity to both the State and State agencies.'); Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102 (Ala. 2008) (same); Atkinson v. State, 986 So.2d 408, 410-11 (Ala. 2007) (same); [In re] Good Hope [Contracting Co. v. Alabama Dep't of Transp., 978 So.2d 17 (Ala. 2007) ] (same); Ex parte Alabama Dep't of Transp., 764 So.2d 1263, 1268 (Ala. 2000) (same); Mitchell v. Davis, 598 So.2d 801, 806 (Ala. 1992) (same). 'Absolute immunity' means just that-the State and its agencies are not subject to suit under any theory.
" 'This immunity may not be waived.' Patterson, 835 So.2d at 142. Sovereign immunity is, therefore, not an affirmative defense, but a 'jurisdictional bar.' Ex parte Alabama Dep't of Transp., 985 So.2d 892, 894 (Ala. 2007). The jurisdictional bar of § 14 simply 'preclud[es] a court from exercising subject-matter jurisdiction' over the State or a State agency. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala. 2003). Thus, a complaint filed solely against the State or one of its agencies is a nullity and is void ab initio. Ex parte Alabama Dep't of Transp. (In re Russell Petroleum, Inc. v. Alabama Dep't of Transp.), 6 So.3d 1126 (Ala. 2008).... Any action taken by a court without subject-matter jurisdiction-other than dismissing the action-is void. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala. 1999)."

Alabama Dep't of Corr. v. Montgomery Cty. Comm'n, 11 So.3d 189, 191-92 (Ala. 2008).

"The Board of Trustees of the University of Alabama" was created by the State of Alabama. See § 16-47-1, Ala. Code 1975. "The University of Alabama School of Medicine" is "under the sole management, ownership and control of the Board of Trustees of the University of Alabama." § 16-47-90, Ala. Code 1975. Our cases have made it abundantly clear that the Board is entitled to § 14 immunity. See, e.g., Carter v. Board of Trs. of Univ. of Alabama in Birmingham, 431 So.2d 529, 531 (Ala. 1983) ("It is clear that the [University of Alabama in Birmingham] Board [of Trustees] shares the state's constitutional immunity from suit."); Cox v. Board of Trs. of Univ. of Alabama, 161 Ala. 639, 648, 649, 49 So. 814, 817 (1909) (observing that "[i]t is clear ... that the various boards of trustees of the University of Alabama, etc., are but agents appointed by the state to manage the affairs of the University of Alabama; that, while the name of the agency has been several times changed, the legal entity of the University of Alabama has remained all the while. It therefore clearly appears that the University of Alabama, by whatever corporate name or under the control of whatever agents it may be, is a part of the state" and concluding that "the law in this state [is] that [these] public institutions created by the state purely for ... educational purposes ... are not subject to suit under section 14 of the Constitution of 1901, which prohibits the state from being made a party defendant in any court of law or equity"). See also Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 24, 256 So.2d 281, 284 (1971) ("Our cases are clear that the operation of a hospital is a 'governmental function,' but even if we should classify the operation of [UAB] Hospital as being a 'business function,' nevertheless, the State could not be sued.").

The only potential wrinkle in the application of § 14 in this instance is the fact that the employment contract between the University of Alabama Health Services Foundation, P.C., and Dr. Castellanos contained an arbitration provision. The Board did not invoke that arbitration provision by joining the other defendants' motion to compel arbitration, but even if it mistakenly had done so, as we noted above in quoting from Alabama Department of Corrections, § 14 immunity for State entities such as the Board is absolute. As that case also observes, such immunity is not an affirmative defense, but a jurisdictional bar. As a result, § 14 immunity is not waivable. Compare C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (holding that an Indian tribe had waived tribal immunity-which is waivable-by including an arbitration clause in a commercial contract).

" 'We have held that the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution.' " Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (Ala. 2001) (quoting Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971) ). "Without jurisdiction, a court has no power to act and must dismiss the action." Lyles, 797 So.2d at 435.

Based on the foregoing, the circuit court lacked the power to compel the Board to arbitrate Dr. Castellanos's claims against it. Instead, it was incumbent upon the circuit court to grant the Board's motion to dismiss the claims against it, as Dr. Castellanos himself concedes. Accordingly, we grant the petition for a writ of mandamus and direct the circuit court to vacate its order insofar as it compels arbitration with regard to the Board and to dismiss the claims against the Board based on § 14 immunity.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Shaw, Main, Bryan, and Sellers, JJ., concur.