author: IRVING, J.,

text:
    John MARR, Jr., Appellant v. Darnay Marr ADAIR, Appellee.
    No. 2001-CA-01723-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.

      Kelly Michael Rayburn, for appellant.
    Darnay Marr Adair (pro se), appellee.
   IRVING, J.,

FOR THE COURT:

¶ 1. John Marr appeals from a judgment of the Harrison County Chancery Court relinquishing the jurisdiction which it had assumed over child custody and support matters emanating from a Louisiana judgment of divorce. John argues in his appeal that the chancery court erred when it relinquished jurisdiction and vacated previously-entered orders relating to matters of custody. John also argues that the chancery court erred in dismissing several of his motions dealing with issues of contempt and custody due to Darnay’s failure to comply with prior orders of the court. John argues further that the chancery court erred in finding that, under the Uniform Child Custody Jurisdictional Act, the State of Louisiana was the more appropriate forum to consider the issues regarding custody of the minor children.

FACTS

¶ 2. John and Darnay Marr Adair were divorced on March 8, 1996, by a judgment of the 22nd Judicial District Court of St. Tammany Parish, Louisiana. The court ordered John to pay Darnay $400 per month in child support. Pursuant to a joint stipulation, both parents received joint custody of their three children, Kristina, Kayla, and Christopher, with primary custody being awarded to Darnay. Approximately three years after the parties’ divorce, John, now a resident of Mississippi, filed a motion for contempt and custody and a motion to enroll the Louisiana judgment in the Chancery Court of Harrison County, Mississippi. The motions alleged that Darnay was denying John visitation with his children, as well as violating other provisions of the Louisiana judgment of divorce. John further claimed that the children were neglected in the care of their mother and living in an unstable environment. At the time these motions were filed, Darnay had relocated to Texas.

¶ 3. On March 22, 1999, the chancery court determined that it did not have jurisdiction over the custody matters involved, presumably because the children did not reside in Mississippi at the time. A ruling was issued from the bench; however, no written order was entered.

¶ 4. On January 10, 2000, John and Dar-nay executed a document entitled “Consent Judgment” whereby they agreed to share joint legal custody of the three minor children, with John having primary custody of the two girls, Kristina and Kayla, and Darnay retaining custody of Christopher. Although the document is styled as a Consent Judgment of the 22nd Judicial District Court of St. Tammany Parish, Louisiana, it was not signed by a judge, nor was it filed of record with that court. It appears, however, that John assumed custody of the two girls pursuant to this agreement and brought them to Mississippi.

¶ 6. On September 1, 2000, after Kristina and Kayla had lived with him in Mississippi for approximately eight months, John again petitioned the Harrison County Chancery Court to enroll the Louisiana judgment and to ask the Louisiana trial court to release its jurisdiction over the case. Although custody was a part of the relief requested, John did not file until August 31, 2001, the affidavit required by Mississippi Code Annotated section 93-23-17 (Rev.1994). Also, on September 1, 2000, John filed a petition for an ex parte temporary restraining order seeking custody and asking that Darnay be enjoined from coming within 500 yards of him, his wife, or the girls. The court granted John temporary custody of the minor children, and Darnay was enjoined from contacting them pending further order from the chancery court.

¶ 6. On September 13, 2000, Darnay, proceeding pro se, filed motions with the chancery court opposing the enrollment of the Louisiana judgment in Mississippi, challenging the restraining order, and contesting the court’s jurisdiction.

¶ 7. After the filing of Darnay’s motions and responses to John’s motions, the chancery court, on September 13, 2000, proceeded to hear the pending motions. However, during the hearing, the parties reached a settlement which essentially reflected the terms and provisions of the “Consent Judgment” that they had executed in January of 2000. The settlement agreement gave custody of Kristina and Kayla to John and custody of Christopher to Darnay. The parties further agreed that the Harrison County Chancery Court had jurisdiction over the parties and subject matter involved. The terms of the settlement agreement were read into the record on the date of the hearing, and both John and Darnay verbally acknowledged that the agreement read in open court accurately reflected the terms and conditions of the settlement agreement reached by them. However, the judgment encompassing the terms and conditions of the settlement agreement was not entered until February 19, 2001. Neither John nor Darnay signed the judgment.

¶ 8. On February 20, 2001, John filed a motion for contempt alleging that Darnay had taken the girls for weekend visitation and refused to return them. A hearing was held on March 7, 2001, and based on evidence adduced at the hearing, the court entered an order awarding temporary custody of Kristina and Kayla to the Harrison County Youth Court/Shelter. John, as the girls’ primary custodian, was directed to make appointments for them to receive counseling through the Gulf Coast Mental Health Center.

¶ 9. On March 15, 2001, the chancery court entered an order finding Darnay in contempt of the court’s February 19, 2001 judgment for failing to return the children to John following visitation. She was sentenced to six months’ incarceration, suspended, and ordered to pay attorney’s fees.

¶ 10. On March 30, 2001, Darnay filed a motion to set aside the court’s March 15, 2001 contempt order. She also sought an order of dismissal of the case, along with an order setting aside all previous orders on the basis that Harrison County Chancery Court lacked jurisdiction over the ongoing custody dispute between the parties. At this point, Darnay had retained the services of an attorney.

¶ 11. On April 4, 2001, the court entered an order releasing Kristina and Kayla from the care of the youth shelter to the temporary custody of Darnay. On August 3, 2001, John filed another motion for contempt, a petition for an ex parte injunction and a temporary restraining order. On August 9, 2001, John filed a motion seeking a modification of the court’s April 4, 2001 order which granted temporary custody to Darnay.

¶ 12. Sensing a possibility of conflicting jurisdiction, the chancery court contacted the 22nd Judicial District Court of St. Tammany, Louisiana, to inquire as to the existence of any proceedings pending in that court. It was discovered that all the while the Mississippi chancery court had proceeded, a Louisiana district attorney had been pursuing a non-payment action against John in Louisiana for failure to pay child support. That action had commenced on July 21, 1999, and was set for hearing in November of 2001. It was also discovered that a motion by John contesting the Louisiana court’s jurisdiction was also pending in the Louisiana court while proceedings were moving forward in the Mississippi chancery court.

¶ 13. On October 2, 2001, the Harrison County Chancery Court entered an order setting aside all previously-entered orders on the basis that it lacked jurisdiction over the ongoing custody dispute between the parties. Excepted from this vacation of orders was the chancery court’s March 15, 2001 order of contempt against Darnay. The chancery court also found that it would be capable of exercising jurisdiction over the parties’ custody dispute consistent with the jurisdictional provisions of the Uniform Child Custody Jurisdictional Act (UCCJA) and the Parental Kidnapping Prevention Act (KPA). However, the chancery court expressed concern over John’s failure to timely file a UCCJA affidavit and the effect of that omission on the court’s power to assert jurisdiction over the case. The court further enunciated that it could not find that Darnay waived the UCCJA affidavit requirement. Moreover, it acknowledged that Louisiana was the more convenient forum in which to hear the parties’ custody dispute. Nevertheless, the chancery court saw fit to allow its March 15, 2001 order finding Darnay in contempt of court to stand.

STANDARD OF REVIEW

¶ 14. In domestic relations cases, our scope of review is limited by the substantial evidence/manifest error rule. Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002) (citing Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)). This Court may reverse a chancellor’s findings of fact only when there is no “substantial credible evidence in the record” to justify his finding. Id. (citing Henderson v. Henderson, 757 So.2d 285, 289(¶ 19) (Miss.2000)). “Our scope of review in domestic relations matters is limited under the familiar rule that this Court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or unless the chancellor applied an erroneous legal standard.” Id. (citing Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994)).

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 15. The core issue raised by John is whether the chancery court acted properly in relinquishing jurisdiction of the Louisiana domestic relations judgment after initially assuming jurisdiction and deciding attendant issues of custody and support. Therefore, we combine his two issues in a singular discussion.

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(a) This state (i) is the home state of the child at the time of commencement of proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in this state; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents or the child and at least one contestant has a significant connection with the state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships....

Miss.Code Ann. § 93-23-5(1) (Rev.1994).

¶ 16. In deciding whether it should proceed in a child custody matter under the UCCJA, the chancery court must undertake a three-step process:

A court must first determine if it has authority, or jurisdiction, to act following the guidelines of § 93-23-5. If a court determines that it does not have jurisdiction, the process stops there. However, if that hurdle is cleared, a determination is made as to which court is the most appropriate or convenient forum. If the court accepts jurisdiction as the more convenient, the court must determine if the action to be taken is foreclosed by an order or judgment by the other state court.

Jundoosing, 826 So.2d at 89(¶ 13) (citing In re Z.J., 804 So.2d 1009, 1016(¶ 19) (Miss.2002)).

¶ 17. As previously noted, the chancery court in effect concluded that the filing of the affidavit required by Mississippi Code Annotated section 93-23-17 was indispensable to its jurisdiction. The relevant section of this statute requires that:

(1) Every party in a custody proceeding, in his first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child’s present address, the places where the child has lived within the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:
(a) He has participated (as a party, witness or in any other capacity), in any other litigation concerning the custody of the same child in this or any other state;
(b) He has information of any custody proceeding concerning the child pending in a court of this or any other state; and
(c) He knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.

Miss.Code Ann. § 93-23-17 (Rev.1994).

¶ 18. It is undisputed that John failed to include the required information in his first pleading or in an affidavit attached to the pleading. Darnay argues that this failure to timely file the information with the initial motion prevented the chancery court from exercising jurisdiction to determine custody of the parties’ children. John counters that, while his first pleading did not contain all of the information required to be disclosed by section 93-23-17, the relevant information was known to Darnay at the time of John’s initial filing. According to John, this fact is borne out by the affidavit which Darnay attached to her motion to set aside the chancery court’s judgment.

¶ 19. We have examined Darnay’s affidavit, which was filed on March 30, 2001, and agree with John that it does contain all of the relevant information required by Mississippi Code Annotated section 93-23-17 (Rev.1994). Moreover, it is undisputed that John filed a UCCJA affidavit in this cause on August 31, 2001.

¶ 20. According to Darnay’s affidavit, the minor children lived in Mississippi with their father from January 20, 2000, to February 2001, although Darnay claims that John’s custody of the children was against her will during the period from May 20, 2000 until February 2001. However, this allegation belies the oral agreement which Darnay made in open court on September 13, 2000, as well as the never-filed consent judgment executed by Darnay on January 10, 2000. In the consent judgment that was not filed in the Louisiana court, Dar-nay agreed that John would have custody of the parties’ two girls. In the oral agreement which Darnay entered into in the Harrison County Chancery Court, she also agreed that John would have paramount physical custody of the parties’ two daughters.

¶ 21. The initial question then is whether the Harrison County Chancery Court properly assumed jurisdiction in light of (1) the fact that the minor children had lived continuously in Mississippi from January 2000 until February 9, 2001, (2) Dar-nay’s September 13, 2000 agreement that the Harrison County Chancery Court had jurisdiction over the parties and subject matter, (3) Darnay’s March 30, 2001 affidavit which satisfied the UCCJA’s informational requirements for initial custody pleadings, and (4) John’s August 31, 2001 affidavit which also satisfied the UCCJA’s informational requirements. If the answer to the initial question is in the affirmative, then the follow-up and ultimate question is whether the chancery court properly relinquished jurisdiction. As already observed, the chancery court determined that the timely filing of the UCCJA affidavit was jurisdictional and that the State of Louisiana was a more convenient forum for determining the custody dispute.

¶ 22. The issue we face here has not been addressed by the Mississippi Supreme Court. However, in Robison v. Lanford, 822 So.2d 1034, 1041 (¶¶ 31-32) (Miss.Ct.App.2002), this Court addressed the issue and held that because the appellant failed to object at the chancery court level to the non-disclosure of the information required by section 93-23-17, he had waived the issue, at least in the absence of a showing of existing proceedings in another jurisdiction that the chancellor needed to consider.

¶ 23. Courts which have addressed the issue in other jurisdictions are divided. Having no precedence to follow in our state, we consider the case law of other states. Two out-of-state cases construing the UCCJA disclosure requirements provide some guidance, although not the answer to the specific issue before us. The first case, Breaux v. Mays, 746 P.2d 708 (Okla.Ct.App.1987), overruled on other grounds by G.S. v. Ewing, 786 P.2d 65 (Okla.1990), held that a petitioning party’s failure to initially provide the chancery court with the disclosure information required by the UCCJA, either by pleading or affidavit, was not jurisdictional but rather was merely procedural and that the initial failure to provide the information could be cured by amendment. The second case, Cook v. Court of Common Pleas of Marion County, 28 Ohio App.3d 82, 502 N.E.2d 245 (1986), held that the UCCJA affidavit is a jurisdictional requirement in a child custody proceeding but that the requirement that it be filed with the complaint is considered directory, not mandatory.

¶ 24. It may be concluded from the above cases that timely compliance with the UCCJA disclosure provision upon filing the initial complaint is essential to facilitate a proper determination of the court’s jurisdiction but that failure to do so will not necessarily impair the court’s exercise of jurisdiction if appropriately cured by a timely amendment. Thus, a court may nevertheless validly exercise its jurisdiction if the omitted information is timely supplied by amendment of the pleading or by affidavit annexed to a motion to amend.

¶ 25. Here, the record indicates, as we have already observed, that John did not file the necessary disclosures with his initial pleadings. However, he subsequently filed a UCCJA affidavit with all pertinent information on August 31, 2001. The information which he disclosed, as well as the information obtained by the chancellor from the 22nd Judicial District Court of St. Tammany, Louisiana, revealed no pending litigation in any other state concerning custody of the minor children, even though there was on-going litigation in Louisiana concerning back child support.

¶ 26. We find that based on the specific facts of this case, the Harrison County Chancery Court acted properly in assuming jurisdiction and erred in ultimately concluding that it lacked jurisdiction because of John’s failure to attach by affidavit, or include in his initial pleading, the information required by Mississippi Code Annotated section 93-23-17 (Rev. 1994). This information had been provided by John approximately two months pri- or to the order of dismissal. While it is true that the Louisiana court, as the court issuing the original judgment, would normally have continuing jurisdiction to modify its judgment, we note that Darnay did not reside continually in Louisiana following the grant of the divorce. She moved to and resided in the State of Texas for a period of time, although it is unclear from the record as to how long she remained a resident of that state. John and the two girls had lived in Mississippi for approximately eight months prior to the enrollment of the Louisiana judgment and approximately fifteen months prior to the court’s transferring custody of the girls to Darnay who had relocated to the State of Louisiana.

f 27. We next consider whether the chancery court erred in determining that Louisiana was a more appropriate forum to resolve the custody matters. In reaching this determination, the chancery court stated:

Although the children in question lived in Mississippi for a little over one year, they have spent the majority of their lives in Louisiana. They are presently residing in Louisiana with their mother. They are enrolled in school in Louisiana. The majority of the evidence necessary for a custody determination lies in Louisiana. There is a child support action pending in Louisiana and scheduled for hearing in just over a month’s time.

¶ 28. The UCCJA allows a court competent to decide child custody matters to decline to exercise its jurisdiction if it finds that it is an inconvenient forum and that the court of another state is more appropriate. The applicable statutory provision reads as follows:

(1) A court which has jurisdiction under [the UCCJA] to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(2) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(a) If another state is or recently was the child’s home state;
(b) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(c) If substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another state;
(d) If the parties have agreed on another forum which is no less appropriate; and
(e) If the exercise of jurisdiction by a court of this state would contravene any of the provisions of this chapter.

Miss.Code Ann. § 93-23-13 (Rev.1994).

¶ 29. We first observe that the chancery court’s order granting Darnay’s motion to dismiss is a bit ambiguous. The chancellor seems to say at one point that Darnay did not waive the disclosure requirements of the UCCJA and that her oral consent — that jurisdiction was proper in the Harrison County Chancery Court— was ineffective because a party cannot confer jurisdiction.

¶ 30. Given the fact that the chancellor treated the disclosure requirements as jurisdictional, a finding that Darnay did not waive them, coupled with the fact that jurisdiction cannot be waived, would mean that the court never acquired jurisdiction. However, at another point, the chancery court said that it was declining to exercise further jurisdiction. Perhaps all the court meant is that it was ceasing to assume jurisdiction which it belatedly concluded it never had.

¶ 31. We next observe that the statutory scheme permits the chancery court to decline to exercise jurisdiction “at any time before making a decree.” In our case, the chancery court not only assumed jurisdiction but issued several orders. In fact the chancery court assumed jurisdiction, which we have found to be proper, in September 2000 and did not relinquish it until October 2001, issuing several orders in the interim. Further, as part of its reasoning for relinquishing, as opposed to declining jurisdiction, the chancery court found that the children were living in Louisiana. However, we point out that the girls were in Louisiana only because the chancery court, when it admittedly had jurisdiction, changed its custody order for no apparent reason and granted custody of the girls to Darnay. In other words, the chancery court facilitated the very fact upon which it would later rely to justify terminating its jurisdiction.

¶ 32. In any event, based on the specific facts here, we find that the chancery court erred in relinquishing its jurisdiction and dismissing the case because we cannot discern how it was in the interest of the children that the Louisiana court assume jurisdiction after all the water that had flowed under the bridge since Darnay and the children first left Louisiana. They resided in Texas, then the girls resided in Mississippi for more than a year. Darnay twice, by sworn agreement, consented to John, a resident of Mississippi, having custody of the girls. Pursuant to one of the sworn agreements, John brought the girls to live with him in Mississippi and enrolled them in school here. The original judgment was properly enrolled in Mississippi, and Darnay consented to jurisdiction in Mississippi although her consent, on the facts of this case, was probably not necessary. In our judgment, these facts compel the conclusion that the chancery court committed reversible error in relinquishing jurisdiction and dismissing the case. Consequently, we reverse and remand for further proceedings consistent with this opinion.

¶ 33. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS REVERSED AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER, JJ, CONCUR. GRIFFIS, J, NOT PARTICIPATING.

      . We note that the Mississippi Supreme Court granted certiorari in Lanford on September 26, 2002, but has not yet rendered a decision. We further note that four justices voted to grant certiorari while five justices voted against granting it.


source: Caselaw Access Project

author: CHANDLER, J„

license: Public Domain

text:
    T.C. BROOME, Appellant v. Sheila BROOME, Appellee (Two Cases).
    Nos. 2000-CA-01122-COA, 2000-CA-02098.
    Court of Appeals of Mississippi.
    April 8, 2003.

      Mark H. Watts, Pascagoula-, for appellant.
    William T. Reed, Pascagoula, for appel-lee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J„

FOR THE COURT:

¶ 1. T.C. Broome appeals from a judgment of the Jackson County Chancery Court requiring this Court to address whether the chancery court was correct in: (1) awarding sanctions for his failure to comply with court orders to produce financial records, (2) finding him in contempt for failure to obtain a life insurance policy, and (3) awarding permanent alimony. Finding no error we affirm.

STATEMENT OF THE CASE

¶ 2. This appeal arises from two consolidated actions, both stemming from a divorce granted by the Chancery Court of Jackson County. The chancery court entered a judgment of divorce in 1993, but delayed making findings of fact as to marital assets and division of property until June 16, 1995. Following the judgment for divorce, both parties filed post-trial motions, and the chancery court overruled both motions on September 20, 1995. On October 12, 1995, Sheila Broome filed the first of two petitions for citation for contempt, alleging, inter alia, that T.C. Broome was failing to comply with an order to pay temporary alimony -of $3,000 per month and that he furnish information to determine the value of one of the marital assets. On October 19, 1995, while the petition for citation for contempt was pending, T.C. Broome filed a notice of appeal stemming from the September 20, 1995 final judgment on the division of property. -One day later, Sheila Broome filed a notice of cross-appeal.

¶ 3. There were two appeals. First, the appeal and cross-appeal from the judgment on the division of property proceeded to this Court. On May 20,1997, this Court reversed and remanded to the chancery court with a mandate to award periodic alimony and to make a judicial determination of the worth of one of the marital assets, the T.C. Broome Construction Company (Broome Construction). Broome v. Broome, No. 95-CA-1110, slip op. at 4-5, 695 So.2d 603 (Miss.Ct.App. 1997). This Court found that Sheila Broome had proven an award of permanent alimony was warranted, as well as that the valuation of Broome Construction was “arrived at unilaterally” by T.C. Broome. Id. On' June 30, 2000, the chancery court entered a judgment awarding, inter alia, $3,000 per month in permanent periodic alimony, and $173,160 for her interest in Broome Construction. This amount was calculated from an independent expert valuation.

¶ 4. A second appeal arose from the initial petition for contempt. On August 9, 1996, the chancery court entered a judgment in favor or Sheila Broome, and twenty days later, T.C. Broome filed a motion to set aside the judgment. From the record, it appears that the two primary issues going to whether T.C. Broome was complying with the chancery court orders were: whether he was providing financial documents for the chancery court, and later a special master, to evaluate the worth of the construction company; and, whether he obtained a $950,000 life insurance policy. While the record reveals a variety of pleadings, cross-pleadings, hearings and judgments concerning the judgment on the petition for citation for contempt, ultimately, on August 8, 2002, our supreme court entered an order dismissing the motion to set aside holding that the motion was untimely according to M.R.C.P. 59. This order caused any issue before this Court which stemmed from the August 9, 1996 contempt judgment, to become moot.

¶ 5. Pursuant to our supreme court’s order of dismissal, the only issues present before this Court go to the judgment entered by the chancery court on remand from this Court.

DISCUSSION

I. AWARD OF SANCTIONS

¶ 6. This Court’s remand to the chancery court in part concerned the division of the marital asset, Broome Construction. The chancery court initially awarded Sheila Broome 80% of the couple’s 60% ownership interest in that company. However, the only valuation of the company’s worth was an unverified statement by T.C. Broome. This Court, therefore, remanded for a judicial valuation, stating, “[w]e strongly suggest that the chancery court employ financial experts to assist the court in valuing Sheila’s interest in the T.C. Broom Construction Co.”

¶ 7. Upon remand, on December 8, 1997, the chancery court ordered T.C. Broome to turn over financial documents for the valuation to an independent expert by December 15, 1997. Despite that order, T.C. Broome failed to comply until Sheila filed a second petition for citation for contempt on April 13,1998. There was a hearing on June 3, 1998, and the chancery court imposed $15,000 in sanctions holding that T.C. Broome had not complied with its order to turn over the records to the independent expert. The imposition of sanctions is subject to an abuse of discretion standard of review. Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990).

¶ 8. During his testimony at the hearing, T.C. Broome attempted to portray the non-compliance as a series of unwitting mistakes. The record, however, amply supports a finding of willful refusal to comply with the expert’s efforts to properly value Broome Construction. As the chancery court stated in its judgment, T.C. Broome made no attempt to request more time to comply or to advise the chancery court of any difficulties he had in producing or delivering the documents. Moreover, the chancery court found that T.C. Broome had engaged in “unjust delay tactics in attempting to postpone this Court’s monetary awards to Sheila Broome.” The record reveals that even before this Court heard the first appeal, T.C. Broome had evaded attempts to reveal documents that would show Broome Construction’s worth. His refusal to reveal these documents was in fact what prevented the chancery court from determining the company’s worth, upon which this Court initially remanded. Given these dilatory tactics, the chancery court’s imposition of sanctions is supported by the record. There is no merit to this issue.

II. CONTEMPT

¶ 9. The judgment for divorce entered on June 16, 1995, required T.C. Broome to obtain a $950,000 life insurance policy naming Sheila Broome and the couple’s two children as beneficiaries. This Court’s opinion of May 20, 1997, did not alter that ruling. Following the June 3rd, 1998 hearing on the petition for citation of contempt, the chancery court found that T.C. Broome was in contempt of court for failing to obtain a $950,000 life insurance policy-

¶ 10. In reviewing a citation for contempt, an appellate court must first determine whether the alleged contempt is either civil or criminal in nature. Dennis v. Dennis, 824 So.2d 604(¶ 7) (Miss.2002). If the purpose of the finding of contempt is to enforce the rights of private litigants or an order of a court, the contempt is civil. Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994). In this case, the contempt is civil in nature. A finding of civil contempt is subjected to manifest error review. Dennis, 824 So.2d at (¶ 7).

¶ 11. The record reveals that T.C. Broome misinformed the chancery court concerning whether he complied with the order that he obtain this insurance. There is no showing that T.C. Broome even attempted to comply with the 1995 order, until after the initial contempt proceeding and an order of August 9, 1996, ordering him to furnish proof of insurance. In February of 1998, T.C. Broome informed the chancery court that he had taken steps to allow Sheila Broome and the two children to in effect become beneficiaries of a life insurance policy he had through Broome Construction. However, one month later, the insurance company advised him that the policy would only provide death benefits to his business partner. The chancery court was not advised of this fact. When Sheila Broome learned that the insurance policy did not provide benefits to her and the children, she returned to the chancery court with her second petition for citation for contempt, to enforce the 1995 order. The chancery court then entered its order of contempt on August 28, 1998. Following the contempt order, T.C. Broome asserted that he was unable to comply with the chancery court, because he had heart disease which made it impossible to obtain life insurance. However, prior to the finding of contempt, the chancery court explicitly instructed him to produce denials of coverage if he intended to defend the contempt charge upon this ground, and he failed to do so. Based upon these facts, we cannot say the chancery court manifestly erred in finding T.C. Broome in contempt. There is no merit to this assignment of error.

III. PERMANENT ALIMONY

¶ 12. This Court found that permanent alimony was warranted in this case and remanded to the chancery court for a finding on the amount of alimony. On December 1, 1997, the chancery court conducted a hearing on the permanent alimony issue. The final judgment setting permanent alimony at $3000 per month was only entered on June 30, 2000. T.C. Broome asserts both that the evidence introduced in 1997 did not support the amount awarded in the final judgment, as well as that during the time from 1997 until he briefed this issue for this Court, his health and earning capacity have declined. Sheila Broome asserts that the issue of permanent alimony is not before this Court, and our supreme court’s order of August 8, 2002 mooted this issue.

¶ 13. Sheila Broome’s assertion is misplaced, and the issue of permanent alimony is before this Court. Our supreme court’s August 8, 2002 order was entered in cause number 2002 2098, which arose from the motion to set aside the original judgment of contempt. However, that judgment did not address the issue of permanent alimony. The issue of how much permanent alimony was warranted only arose after this Court’s remand, which was entered in cause number 2002-1122, and our supreme court’s order was not addressed to this cause.

¶ 14. A chancery court’s award of alimony will only be reversed if it is in manifest error. Henderson v. Henderson, 757 So.2d 285 (¶ 41) (Miss.2000); Voda v. Voda, 731 So.2d 1152 (¶¶ 10-11) (Miss.1999) (citing Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993)). In this case, the chancery court heard evidence that T.C. Broome’s net income was approximately $310,000 in 1995 and $150,000 in 1994. Sheila Broome had no income, other than child support of $1000 per month. Sheila Broome testified that her needs were approximately $4,600 per month. It was undisputed that T.C. Broome committed adultery, and that he had remarried and purchased property and recreational equipment. While the incomes and needs of parties obviously can change over time, and awards are subject to modification, the record shows that the delay between the time the hearing was held and the final order entered was attributable to T.C. Broome’s failure to comply with the chancery court orders. Upon this record, the chancery court did not abuse its discretion. There is no merit to this assignment of error.

¶ 15. THE JUDGMENTS OF THE JACKSON COUNTY CHANCERY COURT ARE AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THESE APPEALS ARE ASSESSED AGAINST THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, AND GRIFFIS, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.


author: CHANDLER, J.,

text:
    Samuel John NICHOLAS, Jr., Appellant v. Donna Evans NICHOLAS, Appellee.
    No. 2001-CA-01982-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.

      David Kent McGowan, Jackson, for appellant.
    B. Ruth Johnson, Jackson, for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

FOR THE COURT:

¶ 1. Sam Nicholas appeals from an order of the Hinds County Chancery Court finding him in contempt for failure to pay alimony and other support arising from a property settlement agreement (settlement agreement) incorporated into a judgment for divorce. He asserts three issues: (1) the defenses of laches and equitable estoppel barred his ex-wife, Donna Nicholas, from asserting this claim; (2) “escalation provisions” of the settlement agreement were unenforceable; and (3) the overwhelming weight of the evidence shows that he is unable to pay the amount of support arrearage determined by the chancery court. We affirm, finding that the chancery court did not commit any error of law, and substantial evidence supported its findings of fact. Additionally, we find that statutory penalties are warranted in this case.

STATEMENT OF THE CASE

¶ 2. This action commenced on September 20, 2000, when Mrs. Nicholas petitioned the Hinds County Chancery Court for a citation of contempt based upon a failure to comply with a property settlement agreement dating back to 1981. On October 21, 2001, the chancery court found Mr. Nicholas to be in contempt, and ordered him to pay an alimony arrearage of $341,816.48, a stock dividend division ar-rearage of $111,500, and an income tax arrearage of $10,248, which was payable directly to the taxing authorities. The chancery court additionally awarded Mrs. Nicholas $10,682.45 in attorney’s fees. The chancery court further found that Mr. Nicholas was entitled to a setoff of $9,680 for property taxes which he had paid on the former marital residence, even though the settlement agreement had not required him to do so. Lastly, the chancery court found Mr. Nicholas did show a change in circumstances, and reduced the alimony required by the settlement agreement from $3,900 to $3,500 per month.

FACTS

¶ 3. Mr. and Mrs. Nicholas were divorced upon irreconcilable differences grounds in 1981, and a property settlement agreement was incorporated into the divorce decree. Mr. Nicholas confessed to adultery, and shortly after the entry of divorce, re-married. One child was born to that union, but this second marriage failed in 1989. Mr. Nicholas married a third time in 1993.

¶ 4. In 1999 and 2000, Mr. Nicholas’ income declined. He had two sources of income. He was a shareholder and legal counsel to a property management firm, Southland Management Corporation (Southland), and he was also a licensed arbitrator. Southland faced temporary losses in income when the Clinton Administration altered the procedure for paying management fees on various federal housing, which temporarily delayed Southland’s receipt of fees which it had earned. It also appears that Mr. Nicholas’ mediation practice was temporarily interrupted when the regions in which he practiced were realigned. However, the record does not support that either of these income changes were permanent. In fact, his personal income statement, filed on January 31, 2001, showed annual income of $445,000, total assets of $1,156,000, liabilities of $510,000, and net worth of $655,000.

¶ 5. The settlement agreement required that Mr. Nicholas pay $1,900 per month in alimony and $2,000 per month in child support. The settlement agreement further provided that as each child reached majority, a pro rata share of the child support would convert to alimony, so that the total amount of combined support should remain at $3,900 per month. All children born to the marriage had reached their majority at the time Mrs. Nicholas filed the petition for contempt which gave rise to this appeal. The settlement agreement also provided that Mr. Nicholas would pay all income taxes arising from the alimony.

¶ 6. The settlement agreement additionally contained “escalator provisions.” The amount of alimony was to increase each year in the same amount that the consumer price index rose. Further, the settlement agreement required Mr. Nicholas to pay one-half of all future bonuses and/or stock dividends from Southland Management Corporation, where he had worked since the corporation’s inception, as weE as one-half of any retirement program he might obtain.

¶ 7. WhEe not at issue in this appeal, the settlement agreement further required Mr. Nicholas to maintain memberships in two health clubs for his chEdren, a social club for Mrs. Nicholas, maintain Efe insurance policies, vehicles, taxes on the former marital residence as weE as a New Hampshire vacation home, and an annual vacation.

¶ 8. The parties agreed that Mr. Nicholas consistently paid the base amount of support, $3,900 per month, through 1999. In 2000, he paid $25,208, and in 2001, he paid no support. Mr. Nicholas testified that he paid approximately $1,625,000 in total support, from 1981 untE Mrs. Nicholas’ contempt action was heard on January 31, 2000.

DISCUSSION

¶ 9. AE assertions of error involve Mr. Nicholas’ central contention that enforcing the settlement agreement, both to the past and the future, is simply unfair. His argument is literally that he never should have entered into the settlement agreement, and he is now over sixty years old, and needs to prepare for his retirement. This argument is flawed. The record reflects that he had logical reasons to enter into the settlement agreement. Moreover, had he so chosen, he could have brought an action to change his support obhgations at anytime after 1981. However, while he contends that he has already paid $1,625,000 support over nineteen years, the record also reflects that he earned approximately $2,930,000. Thus, his argument that the chancery court should somehow have saved him from his own folly in entering into the settlement agreement is misplaced. Rather, it appears that he never had grounds to show a change in circumstances and that he could not afford to meet his self-imposed obligations.

¶ 10. As to Mr. Nicholas’ retirement, the record shows that he withdrew the value of his retirement package with Southland, valued at $369,949.09, and to which the settlement agreement gave Mrs. Nicholas a one-half interest, without her knowledge, and that of this amount only approximately $43,000 remained. The chancery court ruled that the seven year statute of limitations, Mississippi Code Annotated Section 15-1^43 (Rev.1995), prevented her from raising any issue going to these funds. Mrs. Nicholas does not contest that ruling. While, at some point in time, Mr. Nicholas’ earning ability may decrease, furthering a reduction in support even greater than the chancery court granted to him, the record does not show he is unable to comply with the chancery court’s judgment.

I. LACHES AND EQUITABLE ESTOPPEL

¶ 11. The chancery court found that the seven year statute of limitations on enforcing monetary judgments barred recovery of any unpaid alimony payment which accrued seven years prior to the commencement of the present action. Miss.Code Ann. § 15-1-43 (Rev.1995). Mr. Nicholas takes no issue with that limitation, but he argued that in addition to the seven year bar, laches and/or equitable estoppel should preclude Mrs. Nicholas from enforcing any of the settlement agreement’s financial provisions, except those that he had already met. He contends that the parties had a verbal understanding that, while he would continue paying $3,900 per month in alimony, as well as income tax and at least one club membership, Mrs. Nicholas would not seek to enforce the escalator and retirement fund provisions of the settlement agreement. He states in his brief:

[f]rom Mr. Nicholas’ viewpoint, we simply question whether it is equitable to sit on your rights for twenty years — until the other party is sixty-three years old and broke; until the arrearage has grown to an amount Mr. Nicholas could never hope to pay during the remainder of his lifetime — and then try to collect the jackpot, (emphasis in original).

The chancery court rejected this argument. It found both that Mr. Nicholas failed to prove the elements of the defenses, as well as that Mr. Nicholas came into court with “unclean hands,” which prevented him from being able to assert equitable defenses.

¶ 12. Appellate review of a question of law is de novo. Burnett v. Burnett, 792 So.2d 1016(¶ 6) (Miss.Ct.App.2001). Our supreme court has held that “[t]he doctrine of laches is simply inapplicable where a claim has not yet been barred by the applicable statute of limitations.” Greenlee v. Mitchell, 607 So.2d 97, 111 (Miss.1992). See also Mississippi Dept. of Human Services v. Molden, 644 So.2d 1230, 1232 (Miss.1994). In the present case, the only claims involved on appeal are those claims not barred by the statute of limitations. Therefore, laches is inapplicable.

¶ 13. The chancery court did not consider those cases, and viewed the issue of laches on its merits. Nevertheless, even assuming some error of law, any error in this case would have been harmless, because the chancery court relied upon other grounds to find that neither laches nor equitable estoppel applied. Laches requires the party seeking to assert the defense show: “(1) delay in asserting a right or claim; (2) that the delay was not excusable; and (3) that there was undue prejudice to the party against whom the claim is asserted.” Allen v. Mayer, 587 So.2d 255, 260 (Miss.1991); Magee v. Garland, 799 So.2d 154, 158(¶ 17) (Miss.Ct. App.2001). See also Rubisoff v. Rubisoff, 242 Miss. 225, 234, 133 So.2d 534, 537 (1961). See also Overstreet v. Overstreet, 692 So.2d 88, 92 (Miss.1997). The doctrine of equitable estoppel is similar to laches in that it “requires proof of a(l) belief and reliance on some representation; (2) change of position as a result of the representation; and (3) detriment or prejudice caused by the change of position.” Mound Bayou School Dist. v. Cleveland School Dist., 817 So.2d 578, 583(¶ 15) (Miss.2002) (citing Covington County v. Page, 456 So.2d 739, 741 (Miss.1984)).

¶ 14. The chancery court explicitly stated that it found Mr. Nicholas failed to prove the elements of either laches or equitable estoppel. The chancery court found Mrs. Nicholas was credible when she testified that she delayed enforcing the settlement agreement because Mr. Nicholas told her that if she sought to enforce the settlement agreement, he would go into bankruptcy, and she would receive less then than she did by not enforcing the agreement in its entirety. In his testimony, Mr. Nicholas admitted that he told Mrs. Nicholas this, but that bankruptcy would have had such negative consequences for his business reputation, that his representations of possible bankruptcy were overstated, and that he knew that bankruptcy itself would not absolve past due alimony. Mr. Nicholas literally asserted that Mrs. Nicholas knew that his representations as to bankruptcy were false. He asserts that the chancery court should have found that Mrs. Nicholas knew he could not pay “the escalating support in 1993 and thereafter. Had [Mrs. Nicholas] sued Mr. Nicholas in 1993, he would have filed a cross-petition for modification, and he would have prevailed.”

¶ 15. Factual findings as to lach-es or equitable estoppel will be affirmed when “supported by credible evidence, or reasonable inferences which may be drawn from credible evidence.” Knight v. McCain, 531 So.2d 590, 597 (Miss.1988); Morgan v. Morgan, 431 So.2d 1119, 1121 (Miss.1983). See also Scott Addison Const., Inc. v. Lauderdale County School System, 789 So.2d 771, 776(¶ 16) (Miss.2001). The chancery court observed the witnesses, and assessed credibility, and found that Mrs. Nicholas asserted a rational basis for believing that she was better off settling for the base alimony, until such time as Mr. Nicholas ceased paying any support. Therefore, evidence supported a finding that Mrs. Nicholas did not make any representation that she intended to •waive any rights given to her by the settlement agreement.

¶ 16. As a matter of law, a party may not assert equitable estoppel if he has “unclean hands.” Mauck v. Columbus Hotel Co., 741 So.2d 259(¶ 18) (Miss.1999). See also Heritage Cablevision v. New Albany Elec. Power System of City of New Albany, 646 So.2d 1305, 1310 (Miss.1994)(estoppel cannot operate to further fraud). In this case, the chancery court found that Mr. Nicholas’ admittedly untrue assertion to Mrs. Nicholas that he would be forced into bankruptcy, and she would lose even the base support, established that he lacked the “clean hands” necessary to raise the issue of equitable estoppel. Ample evidence supported this as well as all other findings as to laches and equitable estoppel. There is no merit to this assignment of error.

II. ESCALATING SUPPORT

A. COST OF LIVING ESCALATION

¶ 17. Mr. Nicholas candidly admits that our supreme court has held that a cost of living escalation clause, such as that found in this case, is enforceable. Speed v. Speed, 757 So.2d 221 (¶ 12) (Miss.2000). He requests that this issue be revisited. Accordingly, we affirm the chancery court on this issue.

B. DIVISION OF FUTURE DIVIDENDS

¶ 18. The settlement agreement required Mr. Nicholas to give to Mrs. Nicholas one-half of all future stock dividends and bonuses. The chancery court applied Mississippi Code Annotated Section 15-1-43 (Rev.1995) to limit Mrs. Nicholas’ recovery to only dividends and other benefits to the seven years prior to the commencement of this action. Mrs. Nicholas does not take issue with that ruling, even though the record shows that Mr. Nicholas received $9,200 in dividends and over $75,000 in bonuses to which recovery was denied.

¶ 19. In the seven years prior to the commencement of this action, from 1993 through 2000, Mr. Nicholas earned dividends on his equity interest in Southland Management Corporation. The chancery court calculated that one-half of these dividends amounted to $111,500, and awarded that amount to Mrs. Nicholas.

¶ 20. Mr. Nicholas contends that the chancery court applied an erroneous legal standard in awarding one-half of his accrued dividends from his Southland Management Corporation Stock. This Court will apply a de novo standard of review to questions of law. Field v. Wayne T. Lamar, M.D., P.A., 822 So.2d 893, 898(¶ 19) (Miss.Ct.App.2002) (citing Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47 (Miss.1998)). Mr. Nicholas contends that the chancery court erred as a matter of law in not limiting Mrs. Nicholas’ recovery under the settlement agreement to the wife’s needs and the husband’s ability to pay. In essence, Mr. Nicholas asked the chancery court to reform the settlement agreement in regards to past due support and property division. This argument is misplaced. Settlement agreements not evidencing fraud or overreaching will be enforced. Speed v. Speed, 757 So.2d 221(¶ 8) (Miss.2000). The record shows that Mr. Nicholas was an attorney and a former economics professor, who was well versed in his own economic situation as well as complex real estate investments. The record also shows that he played some part in drafting the settlement agreement. The record does not reflect any fraud or overreaching on Mrs. Nicholas’ part. The chancery court did not err in ruling the settlement agreement enforceable. There is no merit to this assignment of error.

C. CONVERSION OF CHILD SUPPORT TO ALIMONY

¶ 21. Mr. Nicholas’ theory in this assignment of error is similar to that he made regarding dividends, in that he asked for judicial reformation of the settlement agreement. He asserts that the chancery court did not address the issue of whether the clause of the settlement agreement which converted child support to alimony when the children reached majority was enforceable. The chancery court’s order reflects that it was enforcing all of the provisions in the settlement agreement that had already vested monetary or property rights and which were not time barred. The chancery court relied upon the correct legal standard which encourages enforcement of property settlements. See e.g., Speed v. Speed, 757 So.2d at (¶ 8). There is no merit to this assignment of error.

III. PRESENT FINANCIAL CONDITION

¶ 22. Mr. Nicholas’ assertion is that he was never able to comply with the settlement agreement, and he presently is unable to comply with paying either the judgment or the reduced amount of alimony the chancery court awarded pursuant to his cross-motion to modify. Yet, his personal income statement, filed on January 31, 2001, showed annual income of $445,000, total assets of $1,156,000, liabilities of $510,000, and net worth of $655,000.

¶ 23. The chancery court stated that it disbelieved Mr. Nicholas’ assertions of inability to pay. “[T]he Court has clear proof of Mr. Nicholas’ capabilities for deception as proven by his forgery of Mrs. Nicholas’ signature on a deed for the sale of a joint residence.... ” Weight and credibility of evidence is left to the discretion of the chancery court. Alderson v. Alderson, 810 So.2d 627(¶ 4) (Miss.Ct.App.2002). Given this Court’s standard of review, this assertion of error is without merit.

IV. STATUTORY PENALTY

¶24. Because we affirm the chancery court’s decision unconditionally, we assess Mr. Nicholas with the statutory penalty of 15% pursuant to Mississippi Code Annotated Section 11-3-23 (Rev.1991). See e.g., Wilson v. Greyhound Bus Lines, Inc., 830 So.2d 1151(¶ 25) (Miss.2002).

¶ 25. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J, KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ„ CONCUR.


author: PER CURIAM. JOHNSTONE, Justice SEE, Justice

text:
    VOYAGER LIFE INSURANCE COMPANY v. Ada HUGHES et al. Industrial Credit Corporation v. Ada Hughes and Dannie Hall. Wayne Reynolds et al. v. Ada Hughes et al.
    1000835, 1000863, and 1000876.
    Supreme Court of Alabama.
    Dec. 21, 2001.
    As Modified on Denial of Rehearing June 21, 2002.

      Michael L. Bell and William H. King III of Lightfoot, Franklin & White, L.L.C., Birmingham; and Farrokh Jhabvala of Jorden Burt, L.L.P., Miami, Florida, for appellant Voyager Life Insurance Company.
    Bruce F. Rogers and James W. Davis of Bainbridge, Mims, Rogers & Smith, L.L.P., Birmingham, for appellant Industrial Credit Corporation.
    Charles P. Gaines and Mark A. Rasco of Gaines, Gaines & Rasco, P.C., Talladega, for appellants Wayne Reynolds, Alice Ann Rodgers, and Elizabeth Christy.
    Lloyd W. Gathings II and Misha Y. Mullins of Gathings, Kennedy & Associates, Birmingham; Betty C. Love and Huel M. Love of Love, Love & Love, P.C., Tallade-ga; Harvey B. Campbell, Jr., of Campbell & Campbell, Talladega; and Donald W. Lang, Talladega, for appellees Ada Hughes and Dannie Hall.
   PER CURIAM.

These appeals are from the denial of motions to compel arbitration of disputes arising out of insurance agreements and small loan agreements. We affirm in part, reverse in part, and remand.

I. Background

A. Litigation

On April 8, 1996, Ada Hughes, who was unemployed and disabled, sued Voyager Life Insurance Company (“Voyager”), Industrial Credit Corporation (“ICC”), and Wayne Reynolds and other individual defendants (all hereinafter referred to together as “the defendants”). Her claims arose out of the sale to her of credit-disability insurance in conjunction with the execution of consumer loans. Specifically, Hughes complained that the defendants had intentionally concealed from her the fact that she was ineligible for coverage under the policies because she was disabled at the time the policies were issued, and, therefore, the credit-disability insurance policies were of no value to her. One year after filing that action, Hughes amended her complaint to include a class-action claim against the same defendants. Three years of complaints, answers, motions for discovery, a possible class certification, and other motions from each party followed. An amendment to Hughes’s complaint filed in August 2000 joined a new plaintiff, Dannie Hall. Only days after Hughes, Hall, and the other members of the putative class had moved for class certification, the defendants moved to compel arbitration in this case.

After extensive briefs from all parties and a hearing on the matter, the trial court denied the defendants’ motion to compel arbitration, finding that the defendants had substantially invoked the litigation process and had thereby waived their right to invoke arbitration; it also found that the requirement in the loan agreements that the borrower pay arbitration fees on the loans violated a provision of the Small Loan Act and, thus, voided the agreements. The defendants appealed separately to this Court, and the cases were consolidated for the purpose of issuing one opinion.

B. Facts

ICC is in the business of making small consumer loans; it commonly sells credit-disability insurance through Voyager as part of its loan transactions. From 1991 to 1995, Hughes took out several loans from ICC and purchased credit-disability insurance through Voyager in conjunction with each of those loans. The individual defendants were agents and employees of ICC and Voyager. When she took out the loans and purchased the insurance, Hughes was disabled and unemployed. This fact rendered the credit-disability insurance Hughes had purchased of no value to her because of an exclusion in the policies. The loan agreement and the credit-disability insurance policy Hughes purchased from ICC and Voyager in 1995 contained the arbitration clause now in question.

Dannie Hall, another plaintiff, was also disabled and unemployed from 1995 to 2000, the period during which she took out consumer loans from ICC and purchased credit-disability insurance from Voyager. The documents evidencing several of her transactions included arbitration agreements. She was joined as a plaintiff in the lawsuit in August 2000.

Hughes first proposed the class action in an amended complaint filed in 1997. In that complaint she proposed two separate classes of individuals: the first class was to consist of all disabled individuals who were also unemployed and who, while disabled and unemployed, had executed a consumer-loan agreement with ICC and who were sold a credit-disability insurance policy by Voyager; the second class was to consist of those individuals in the State of Alabama who had obtained consumer loans from ICC and who, in the course of executing the loan agreements evidencing those loans, had contracted with ICC to pay charges (arbitration fees) that are not authorized by the Alabama Small Loan Act, § 5-18-1 et seq., Ala.Code 1975. The motion for class certification was made in August 2000, and the trial judge scheduled a hearing on the motion for October of the same year.

II. Analysis

The primary question in this case is whether the defendants can compel arbitration of Hughes and Hall’s claims, in accordance with the signed loan agreements and the disability insurance policies. To answer this question, the trial court had to determine two issues: One, whether by their delay in moving to compel arbitration, the defendants had waived the right to compel arbitration under the agreements; and two, whether the clauses in certain of the contracts requiring the parties to the contract to share arbitration costs voided the contracts.

A Waiver of the Right to Arbitrate

The trial court ruled that the defendants had waived their right to compel arbitration as to all of the plaintiffs because, it said, they had “substantially invoke[d] the litigation process and [had] thereby substantially prejudiced] the party opposing arbitration.” Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995).

“Whether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks 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.”

670 So.2d at 899. Thus, the test for whether one has waived the right to compel arbitration has two prongs: (1) substantial participation in the litigation process by the party moving for arbitration and (2) prejudice to the party opposing arbitration.

It should be noted that “[n]o 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.” 670 So.2d at 899. This means that the trial judge’s determinations should be given substantial weight upon review. Of course, it is also true that “[o]ur cases continue to make it clear that, because of the strong federal policy favoring arbitration, a waiver of the right to compel arbitration will not be lightly inferred, and, therefore, that one seeking to prove waiver has a heavy burden.” Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160, 1164 (Ala.1998). The determination whether the defendants have waived their right to compel arbitration needs to be made separately for each plaintiff, based on the defendants’ behavior toward each of them.

Hughes instituted her suit in 1996. Since that time, Hughes has restated and amended her complaint four times; opposed the defendants’ motions to consolidate and to dismiss; attempted to depose the defendants; and spent a considerable amount of time calling for a class action in this matter. The defendants in the action did the following over this same four-year period: answered Hughes’s complaints on the merits; pursued a cross-claim; filed two third-party indemnity actions; conducted and participated in discovery, including deposing Hughes; moved to dismiss the case; participated in a class-action scheduling conference; and requested that the case be consolidated with a similar case involving similar contractual agreements.

Wilson informs us that “ ‘ “ ‘[m]erely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not constitute a waiver.’ ” ’ ” 716 So.2d at 1164, quoting Ex parte Merrill Lynch, Pierce, Fenner, & Smith, Inc., 494 So.2d 1, 3 (Ala.1986), quoting in turn Clar Prods., Ltd. v. Isram Motion Pictures, 529 F.Supp. 381, 383 (S.D.N.Y.1982). But it also notes that “ ‘ “the earliest point at which waiver of the right to arbitration may be found ‘is when the other party files an answer on the merits.’ ” ’ ” 716 So.2d at 1164, quoting Ex parte Merrill Lynch, 494 So.2d at 3, quoting in turn Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291, 293 (2d Cir.1965). In this case, the defendants seeking to compel arbitration have filed answers on the merits and participated in discovery. So, the key remains “the particular facts” of this case. Whitesell Mfg., Inc., 670 So.2d at 899.

There is no question that the defendants substantially engaged in the litigation process with Hughes. The defendants counter by stating that Hughes’s actions in the case are the reason for the four-year delay in moving to enforce the arbitration clause and that because Hughes amended her complaint as recently as August 2000, there was no substantial delay in their asserting their right to arbitrate the claims. This contention would carry more weight if the defendants had not waited over three years to assert arbitration as a defense to Hughes’s claims. In all three answers they submitted to the complaints filed by Hughes, the defendants did not raise the issue of arbitration. Only after Hughes moved for class certification and the trial court had set a hearing on certification did the defendants decide to invoke the right to arbitrate. Given these circumstances, the timing of the defendants’ motion to compel arbitration seems suspect.

The record clearly demonstrates that the defendants participated in many aspects of litigation during this four-year period. Moreover, Hughes first mentioned the possibility of converting the action to a class action in her 1997 amended complaint; thus, the defendants knew for three years that Hughes was preparing for class-action litigation, yet they continued to participate. We conclude, therefore, that the trial court was correct in determining that the defendants had waived their right to invoke arbitration against Hughes.

The trial court’s decision to find in favor of Hall and the putative classes on the waiver issue, however, is a different matter. Hall did not join the lawsuit until Hughes submitted her amended complaint in August 2000. The defendants filed their motion to compel arbitration, at the latest, 26 days later. The defendants could not be said to have substantially invoked the litigation process on such short notice with respect to Hall.

Although we conclude that there was no waiver of the right to compel arbitration by the defendants as to Hall and the putative classes she may represent, possible contract defenses, whether the contract involves interstate commerce, or any other viable defenses to the enforcement of the arbitration provisions remain available to these plaintiffs. Because there has not been substantial litigation with regard to these plaintiffs, neither has there been the opportunity to make other substantive challenges to the agreements between the defendants and these plaintiffs.

Thus, we affirm the trial court’s determination that the defendants have waived their right to arbitrate the dispute with Hughes. We reverse the trial court’s judgment ejfiending the waiver to Hall and the putative classes whom Hall may represent, while leaving other substantive defenses to the agreements open to these plaintiffs.

B. Effect of Contract Provision Calling for Sharing Arbitration Costs

The trial court also found that “those contracts of the plaintiffs and the members of the putative class that fall within the purview of the Alabama Small Loan Act are not subject to arbitration due to the invalidity of those contracts.” All of the contracts in question contained arbitration clauses that provided that the parties to the contracts share the costs of arbitration. The trial court reasoned that because the Small Loan Act (§ 6-18-1 et seq., Ala.Code 1975) does not permit any charges in a loan contract other than those listed in the Act, and arbitration costs are not among those listed, the cost-sharing clauses voided the contracts. The defendants argue, for the first time on appeal, that these contracts were made under the Alabama Mini-Code (§ 5-19-1 et seq.), rather than the Small Loan Act, that the Mini-Code does not prohibit the sharing of these costs, and that, therefore, the sharing of arbitration costs is permissible and does not void the contracts.

Because the defendants did not argue at the trial court level that the Mini-Code, as opposed to the Small Loan Act, governed the loans at issue, the argument is not properly before this Court. The argument is irrelevant as to Hughes, because we have already determined that the defendants have waived their right to compel arbitration against her. The right to compel arbitration has not been waived as to Hall and the members of the putative classes she may represent, so the question whether the Mini-Code or the Small Loan Act applies to these contracts may play a part in determining whether the defendants can invoke the arbitration clauses in these contracts. Because the trial court did not have the opportunity to rule on the question of which statutory scheme applies to these contracts, we leave this question open for the trial court’s determination on remand.

In sum, because the defendants substantially invoked the litigation process as to Hughes, we affirm the trial court’s ruling that the defendants waived their right to compel arbitration as to her. Because the defendants have not had ample opportunity to substantially invoke the litigation process as to Hall and the members of the putative classes she may represent, we reverse the trial court’s decision that the defendants had waived their right to arbitration as to those plaintiffs. Finally, because the issue whether the Small Loan Act or the Mini-Code applies to these contracts was not argued at the trial court level, we make no determination on that issue and leave it for the trial court’s determination in subsequent proceedings in this case.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, and HARWOOD, JJ„ concur.

WOODALL and STUART, JJ., concur in the result.

JOHNSTONE, J., concurs in part and dissents in part.

SEE, J., dissents.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the denial of the defendants’ motions to compel the plaintiff Hughes to arbitrate her claims. I respectfully dissent, however, from any implication that the defendants’ not waiving their right, if any, to compel the new plaintiff Hall to arbitrate could mean that the defendants have not waived their right to compel the putative class members to arbitrate.

The putative class members’ primary class representative has always been the original plaintiff Hughes, whose claims are no longer subject to arbitration because the defendants have waived their right, if any they had, to arbitrate Hughes’s claims. Thus, the defendants’ not waiving a right to compel Hall to arbitrate is immaterial to the issue whether the defendants’ waiver of their right, if any, to compel Hughes to arbitrate operates as a waiver of the defendants’ right, if any, to compel the putative class members to arbitrate.

SEE, Justice

(dissenting).

I dissent from that part of the main opinion that concludes that by participating in the litigation process the defendants have waived their right to compel Hughes to arbitrate. As this Court stated in Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160, 1164 (Ala.1998), “ ‘[m]erely answering on the merits, asserting a counterclaim (or crossclaim) or participating in discovery, without more, will not constitute a waiver [of the right to compel arbitration].’ ” (Quoting Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So.2d 1, 3 (Ala.1986), quoting other cases.) Courts are encouraged to look at the facts of each case in determining whether a party has waived its rights to enforce a valid arbitration agreement. See Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995). In this case, Hughes amended her complaint repeatedly, eventually moving for class certification. When Hughes’s claims reached a relatively final form and Hughes sought class certification, the defendants moved, within two days, to compel arbitration.

I respectfully dissent from the main opinion’s holding that the defendants waived their right to compel Hughes to arbitrate her dispute with them.

      . We note that at least one of the arbitration agreements Hall signed disclaimed punitive damages. In Cavalier Manufacturing, Inc. v. Jackson, 823 So.2d 1237, 1246 (Ala.2001), we held that "an arbitration clause that forbids an arbitrator from awarding punitive damages is contrary to public policy in Alabama and, thus, is void.” However, Hall has never argued the disclaimer of punitive damages as a basis for not enforcing the arbitration provisions; therefore, that argument is not properly before this Court on this appeal.

      . Before it was amended effective May 28, 1996, § 5 — 18—15(h) read: "If any amount in excess of the charges permitted in this section is charged, contracted for or received, except as the result of an accidental or bona fide error of computation, the contract of loan shall be void....”

      . It appears from its order that the trial court believed that at least some of the contracts fell under the purview of the Small Loan Act, but the order does not explain why that act applies or to which contracts it applies. Because the defendants did not refer to the Mini-Code in their arguments at the trial court level, the trial court’s failure to so explain is not surprising, but it necessitates that we leave this question open for further proceedings before the trial court.


author: MOORE, Chief Justice. HOUSTON, Justice MOORE, Chief Justice.

text:
    Terrell TELFARE v. CITY OF HUNTSVILLE.
    1000357.
    Supreme Court of Alabama.
    Jan. 18, 2002.
    Opinion on Denial of Rehearing June 14, 2002.

      Joe N. Lampley, Huntsville, for appellant.
    George W. Royer, Jr., of Sirote & Per-mutt, P.C., Huntsville, for appellee.
    Rehearing brief filed by George W. Roy-er, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
    Michael L. Fees and C. Gregory Burgess of Fees & Burgess, Huntsville, for amicus curiae Alabama Association of Chiefs of Police, in support of the application for rehearing.
    Kendrick E. Webb of Webb & Eley, P.C., Montgomery, for amicus curiae Alabama Sheriffs Association, in support of the application for rehearing.
    Kenneth Smith, Montgomery, for amicus curiae Alabama League of Municipalities (on rehearing).
   MOORE, Chief Justice.

Terrell Telfare sued the City of Huntsville (hereinafter “the City”) and D. McCarver, a police officer for the City. Telfare alleged that he was injured when Officer McCarver used what he says was excessive force to effectuate an allegedly unlawful arrest. The City filed a motion to dismiss, claiming that it was entitled to discretionary-function immunity under § 6-5-338, Ala. Code 1975. The trial court granted the City’s motion to dismiss, and Telfare appeals. We affirm in part, reverse in part, and remand.

I.

On the evening of February 22, 1999, Telfare visited JJ’s Lounge in Huntsville with his girlfriend Lawonda. While they were at the lounge, an altercation occurred between Lawonda and another female, who was speaking to Telfare. After the confrontation, Telfare told Lawonda she should leave and suggested that he drive her home. As the two left the lounge, several women followed and attacked La-wonda.

Telfare attempted to break up the fight; he retrieved Lawonda from the group. The couple retreated to the safety of Tel-fare’s automobile, and prepared to leave. At that moment, Huntsville Police Officer D. McCarver, who had apparently been summoned because of the fight, arrived at the scene. As Officer McCarver got out of his car, the females who had been fighting with Lawonda indicated that Telfare and Lawonda had instigated the altercation. According to the testimony of a witness, some of the women started yelling, “Get them; get him.” Officer McCarver then approached Telfare’s car, pulled his gun, and ordered Telfare to get out of the car. Telfare got out, and Officer McCarver ordered Telfare to lie on the ground. Tel-fare, however, refused to lie on the ground as Officer McCarver instructed. When Telfare refused, Officer McCarver holstered his pistol, retrieved an expandable baton, and struck Telfare about his legs with the baton. Telfare continued to refuse to comply with the officer’s demands that he lie on the ground, and he attempted to walk away from Officer McCarver.

The witness, a friend of Telfare’s, testified that he implored Telfare to comply, and that he eventually assisted in getting him to lie on the ground. Shortly thereafter, several other police officers arrived at the scene and assisted Officer McCarver in handcuffing Telfare. Officer McCarver then arrested Telfare on charges of disorderly conduct, harassment, and resisting arrest. Telfare sustained numerous contusions on his lower body when he was hit with the baton. On April 26, 2000, Telfare filed a complaint in the Madison Circuit Court against Officer McCarver and the City. The basis of Telfare’s suit was that Officer McCarver had used excessive force during his arrest of Telfare. The City filed a motion to dismiss the complaint on May 23, 2000, and on June 20, 2000, Tel-fare filed a response to the City’s motion to dismiss, which included a sworn statement of an alleged eyewitness to the altercation between Officer McCarver and Tel-fare. On June 30, 2000, Telfare submitted to the court an amended complaint, in which he completely restated his claims against the defendants.

On July 19, 2000,-the circuit court, apparently acting on Telfare’s initial complaint, dismissed Telfare’s claims against the City. Telfare then filed a motion for reconsideration, indicating that he had filed an amended complaint. On August 3, 2000, the circuit court granted Telfare’s motion to reconsider, set aside its previous order of dismissal, and allowed Telfare to proceed on his amended complaint.

Telfare’s amended complaint, based on the same operative facts as was his original complaint, alleged only negligence-based state-law tort claims against McCar-ver and the City of Huntsville: In Count I, which he entitled “Excessive Use of Force,” Telfare alleged that MeCarver’s negligence, carelessness, and lack of skill resulted in MeCarver’s having to use excessive force in perfecting an unlawful arrest. In Count II, entitled “False Arrest,” Telfare alleged that Officer MeCarver’s arrest was negligent and unlawful because, he says, there was no probable cause for the arrest. In Count III, “False Imprisonment,” Telfare alleged that “McCarver, acting within the line and scope of his authority and employment as a police officer of the City of Huntsville, negligently caused [Telfare] to be unlawfully detained, restrained, and imprisoned.... ” In Count IV, entitled “Assault and Battery,” Telfare alleged that “McCarver committed a negligent assault and battery upon him.... ” In Count V, entitled “Excessive Use of Force,” Telfare alleged that McCarver and the City had negligently deprived Telfare of his constitutional rights by MeCarver’s “assault and battery, false arrest, false imprisonment and excessive use of force ... while perfecting an unlawful arrest ... in-the line and scope of his employment as a police officer of the City of Huntsville.” In Count VI, entitled “False/Unlawful Arrest,” Telfare again alleged that MeCarver’s actions, performed “within the scope of his authority as a police officer and agent of the City of Huntsville,” negligently led to Telfare’s allegedly unlawful arrest. Telfare sought damages and attorneys fees pursuant to 42 U.S.C. § 1988. In Count VII, also entitled “False Imprisonment” (see count III), Tel-fare alleged that McCarver, while “acting within the line and scope of his authority and employment as a police officer of the City of Huntsville, negligently ... and unlawfully detained, restrained, and imprisoned [Telfare] ...” and thus violated his constitutional rights.

Again, the City filed a motion to dismiss, and Telfare opposed the motion. On September 15, 2000, the trial court granted the City’s motion to dismiss the amended complaint as to the City, on the basis that the City was immune from such claims. The trial court then certified its order of dismissal as a final judgment pursuant to Rule 54(b), Ala-R.Civ.P. Telfare filed a motion for reconsideration, which the trial court denied on October 6, 2000.

II.

Telfare and the City disagree as to the standard of review we are to apply in this case. Telfare argues that the City’s motion was clearly denominated and treated by the trial court as a motion to dismiss. Thus, Telfare suggests, we should treat the motion as a Rule 12(b)(6), Ala. R.Civ.P., motion. He argues that granting the motion was improper because “it is the rare case involving the defense of discretionary immunity that would be properly disposed of by a dismissal pursuant to Rule 12(b)(6), A.R.Civ.P.” Patton v. Black, 646 So.2d 8, 10 (Ala.1994).

The City argues that, despite the fact that it entitled the motion as a motion to dismiss, the trial court essentially entered a summary judgment in its favor pursuant to Rule 56, Ala.R.Civ.P. It argues that we should, therefore, review the order under a summary-judgment standard of review.

Clearly, the City filed a motion styled “Motion ... to Dismiss Amended Complaint,” and the trial court apparently believed that it had before it a Rule 12(b)(6), Ala.R.Civ.P., motion to dismiss. However, Telfare submitted in response to the City’s Rule 12(b)(6) motion to dismiss a detailed response including a lengthy, sworn evi-dentiary statement from an alleged eyewitness to the events.

Rule 12(b), Ala.R.Civ.P., provides, in pertinent part: “If, on a motion asserting the defense numbered (6) to dismiss for failure ... to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment .... ” (Emphasis added.) “When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala.R.Civ.P.; this is the case regardless of what the motion has been called or how it was treated by the trial court.” Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997) (citation omitted). Because Telfare presented testimony not included in the pleadings, and because the trial court considered that information, the City’s motion must be considered as one for summary judgment, and this Court must review the trial court’s judgment by using the appropriate standard under Rule 56, Ala. R.Civ.P.

A summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala.R.Civ.P. When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). “Substantial evidence” is “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.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether a summary judgment is proper, a court must construe the evidence in a light most favorable to the nonmoving party, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993).

Here, Telfare submitted a detailed factual account of the facts underlying his claims in the form of a statement from an eyewitness. While not admitting the correctness of those facts, the City, for purposes of their motion, assumes those facts to be correct. The City argues, however, that even construing the evidence in a light most favorable to Telfare, it is still entitled to a judgment as a matter of law.

III.

The complaint at issue is Telfare’s amended complaint. In Barnett v. Mobile County Personnel Bd., 536 So.2d 46, 49 (Ala.1988), we stated that “ ‘[a]n amended pleading pro tanto supersedes a pleading which it amends ....’” (quoting Zeigler v. Baker, 344 So.2d 761 (Ala.1977)). See also Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d 75 (Ala.1981) (noting that where an amended pleading is filed, the original pleading is no longer functional, and, as a result, a ruling on a motion to dismiss a previous complaint is unnecessary). The order of dismissal at issue in this case is the trial court’s September 15, 2000, order dismissing the claims against the City in Telfare’s amended complaint.

IV.

In Counts I-IV of his amended complaint, Telfare asserted various state-law claims alleging negligence-based torts against the City, arguing that the City is liable for McCarver’s negligence. Telfare asserts that those claims were correctly brought against the City, citing § 11-47-190, Ala.Code 1975, which allows claims to be brought against a municipality for the negligent actions of its agents.

However, the City argues that § 6-5-338(a), Ala.Code 1975, grants Officer McCarver immunity from tort liability arising out of the performance of his discretionary functions so long as those functions are within the line and scope of his official duties. The City further asserts that § 6-5-338(b) extends this immunity to the City. Section 6-5-338(a) provides: “Every [law-enforcement] officer ... shall have immunity from tort liability arising out of [his or her] conduct in performance of any discretionary function within the line and scope of [his or her] law enforcement duties.” Subsection (b) makes it clear that this immunity is extended to “governmental units or agencies authorized to appoint [law-enforcement] officers.”

In Ex parte City of Gadsden, 781 So.2d 936 (Ala.2000), we squarely addressed the issue of a municipality’s liability for a police officer’s conduct. In Ex parte City of Gadsden we stated: “[W]e must first determine whether [the officer] was engaged in performing a discretionary function.” 781 So.2d at 938. Discretionary functions are those functions as to which “there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances.” Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996). Generally, arrests and attempted arrests are classified as discretionary functions.

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons .... ”

Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000)(second emphasis added).

Telfare contends, however, that Officer McCarver was not engaged in a discretionary function because, he says, Telfare was arrested for a misdemeanor that was not committed in Officer McCarver’s presence. Rule 4.1(a)(1), Ala.R.Crim.P., states:

“(1) A law enforcement officer may arrest a person without a warrant if:
“(i) The law enforcement officer has probable cause to believe that a felony has been committed, or is being committed, and that the person to be arrested committed it, or
“(ii) Any offense has been committed in the law enforcement officer’s presence or view, or
“(in) The arrest is otherwise authorized by statute, such as Ala.Code 1975, §§ 32-5-171, 32-5A-191, 15-10-3.”

(Emphasis added.) Similarly, § 15-10-3(a), Ala.Code 1975, provides:

“(a)n officer may arrest a person without a warrant, on any day and at any time in any of the following instances:
“(1) If a public offense has been committed or a breach of the peace threatened in the presence of the officer.
“(2) When a felony has been committed, though not in the presence of the officer, by the person arrested.
“(3) When a felony has been committed and the officer has reasonable cause to believe that the person arrested committed the felony.
“(4) When the officer has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed.
“(5) When a charge has been made, upon reasonable cause, that the person arrested has committed a felony.
“(6) When the officer has actual knowledge that a warrant for the person’s arrest for the commission of a felony or misdemeanor has been issued ....
“(7) When the officer has reasonable cause to believe that a felony or misdemeanor has been committed by the person arrested in violation of a protection order....
“(8) When an offense involves domestic violence ... and the arrest is based on probable cause, regardless of whether the offense is a felony or misdemeanor.”

The City correctly asserts that Officer McCarver was effectuating an arrest. However, the record before this Court indicates that Telfare was apparently arrested for misdemeanor offenses not committed in the presence of Officer McCarver. Generally, Alabama’s Rules of Criminal Procedure and the statutes quoted above do not allow law-enforcement officers the discretion to arrest alleged wrongdoers for misdemeanors not committed in the presence of the arresting officer.

The City implies that Telfare was arrested for resisting arrest, a misdemean- or committed in the presence of Officer McCarver. The City reasons that this was a sufficient basis for Officer McCarver to effectuate a lawful arrest. Previous cases make it clear, however, that resisting an unlawful arrest is appropriate under certain circumstances. “The law in Alabama is clear that, to a limited degree, a party is justified in attempting to resist an unlawful arrest. A party may use reasonable force to extricate himself from an unlawful arrest.” Ex parte Wallace, 497 So.2d 96, 97 (Ala.1986).

Here, viewing the evidence in a light most favorable to Telfare as the non-movant, we must conclude that Officer McCarver arrested Telfare for various misdemeanors, none of which was committed in Officer McCarver’s presence. Because there is no evidence in the record tending to show that Officer McCarver was pursuing a discretionary function, i.e., was effectuating a lawful arrest, the City has failed to demonstrate that it is entitled to immunity. Considering the evidence in a light most favorable to Telfare, as we must, we believe the trial court erred in dismissing Telfare’s state-law claims. We, therefore, reverse that portion of the trial court’s judgment.

V.

In Counts V-VII of his amended complaint, Telfare alleged that the defendants had violated his civil rights and that the City should be held liable, essentially on a theory of vicarious liability. In Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court addressed this specific issue. There, the Supreme Court concluded:

“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”

436 U.S. at 694, 98 S.Ct. 2018.

“Stated differently, a municipality may be held liable under § 1983 only if ‘ “action pursuant to official municipal policy of some nature caused a constitutional tort”.’ As the Monell Court explained, ‘it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.’ ”

Cremeens v. City of Montgomery, 779 So.2d 1190, 1197 (Ala.2000) (citations omitted). Here, Telfare’s complaint does not even hint that his treatment was the result of any official policy of the City. Therefore, the trial court correctly dismissed Counts V-VII against the City.

VI.

As to Telfare’s state-law claims against the City, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. In all other respects, the trial court’s judgment is affirmed. This opinion should not be construed to preclude the City from filing a motion for a summary judgment after further discovery is conducted.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SEE, BROWN, JOHNSTONE, and HARWOOD, JJ., concur.

HOUSTON, LYONS, WOODALL, and STUART, JJ., concur in part and dissent in part.

HOUSTON, Justice

(concurring in part and dissenting in part).

I would affirm; therefore, I concur in part and dissent in part. If the doctrine of discretionary authority in a case involving an alleged illegal arrest is coextensive with, and determined by, the question whether the officers effectuating the arrest had probable cause to arrest, then the issue of immunity would never come into play — the liability of the officer, and, thus, what immunity he enjoys, would simply be conclusively determined by whether the officer had committed a tort by arresting without probable cause.

The issue, thus, is not whether probable cause existed for Telfare’s arrest, but rather whether McCarver was, at the time of the arrest, engaged in the exercise of a discretionary function. This Court has specifically recognized this rule by noting that actual probable cause to make an arrest is not required in determining whether an officer was engaged in the exercise of a discretionary function in deciding whether to make an arrest. See, e.g., Ex parte Duvall, 782 So.2d 244, 248 (Ala.2000); Ex parte City of Montgomery, 758 So.2d at 570 (because there is no “hard and fast rule” regarding whether actual probable cause exists to make an arrest, an officer is entitled to discretionary-function immunity for exercising his or her judgment in whether to make an arrest).

LYONS, WOODALL, and STUART, JJ., concur.

On Application for Rehearing

MOORE, Chief Justice.

On rehearing, the City of Huntsville argues that this Court misapprehended its argument on original submission. It contends that its arguments can be categorized as follows: (1) that Officer McCarver was not effectuating an arrest, but was rather engaging Terrell Telfare in a lawful investigatory detention; and (2) that Officer McCarver had the right to place Telfare prone, facedown on the ground for Officer McCarver’s safety. In support of its contentions, the City cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court held “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. 1868. However, the City overlooks the fact that in order to justify such a Terry stop, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 392 U.S. at 21, 88 S.Ct. 1868 (emphasis added). This singular requirement illustrates why the City’s application for rehearing must fail: neither Officer McCarver nor the City has presented any facts to support the City’s argument.

Similarly, we agree with the City that “ ‘officers may take such steps as are “reasonably necessary to protect their personal safety and to maintain the status quo” so that the limited purposes of the [investigatory] stop may be achieved.’ ” Walker v. City of Mobile, 508 So.2d 1209, 1212 (Ala.Crim.App.1987) (quoting United States v. Jones, 759 F.2d 633, 636-37 (8th Cir.1985)). However, the critical distinction between Walker and this case is that in Walker, “Officer Duff testified.” 508 So.2d at 1210. Here, neither Officer McCarver nor the City offered any testimony or evidence as to the objective events or the subjective thoughts that surrounded Officer McCarver’s actions. Therefore, we do not reach the City’s second argument. The City’s application for rehearing is overruled.

APPLICATION OVERRULED.

HOUSTON, SEE, BROWN, JOHNSTONE, and HARWOOD, JJ„ concur.

LYONS, WOODALL, and STUART, JJ., dissent.

      . Officer McCarver remains a defendant in this action; the claims against him are still pending.

      . Telfare was ultimately charged with disorderly conduct, harassment, and resisting arrest.

      . Section. 15-10-3(a)(4), (6), (7), and (8), Ala. Code 1975, provide certain exceptions to this general proposition. However, the City has presented no evidence indicating that these exceptions apply here.