source: Caselaw Access Project

author: LYONS, Justice. MOORE, Chief Justice SEE, Justice STUART, Justice

license: Public Domain

text:
    Ulysses BORDERS v. CITY OF HUNTSVILLE et al.
    1020452.
    Supreme Court of Alabama.
    July 25, 2003.
    Rehearing Denied Sept. 26, 2003.

      Joe N. Lampley and Ta’Kisha L. Guster, Huntsville, for appellant.
    George W. Royer, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for ap-pellee the City of Huntsville.
    Michael L. Fees and C. Gregory Burgess of Fees & Burgess, P.C., Huntsville, for appellee Keith Earle.
    Kenneth Smith, league counsel, for ami-cus curiae Alabama League of Municipalities, in support of the appellees.
   LYONS, Justice.

Ulysses Borders was arrested on charges of disorderly conduct and resisting arrest after an incident at a Huntsville nightclub. He was acquitted of the charges by the Huntsville municipal court. Borders then sued the City of Huntsville (“the City”), Keith Earle, a police officer for the City, and Charles Moore, Sr., the owner of the nightclub. Borders alleged that he was injured when Earle used what Borders says was excessive force to effectuate an allegedly unlawful arrest. Borders asserted against Earle claims of excessive use of force, false arrest, false imprisonment, assault and battery, and malicious prosecution. Borders asserted claims of vicarious liability against the City for Earle’s alleged excessive use of force, false arrest, false imprisonment, and assault and battery. Finally, Borders sought compensatory damages and attorney fees pursuant to 42 U.S.C. § 1983 (providing a cause of action for deprivation of constitutional rights by government officials acting “under color of state law”). Borders’s § 1983 claims were based on allegations of excessive use of force, false/unlawful arrest, and false imprisonment.

The trial court granted the City’s motion to dismiss and entered a summary judgment in favor of Earle. Borders appeals. We affirm in part, reverse in part, and remand.

I. Facts and Procedural History

On July 26, 1998, Borders entered the Club Showcase, a nightclub located at 1806 University Drive in Huntsville, as a patron. When he entered the nightclub, a dance contest was in progress on an elevated stage. In order to participate in the dance contest, contestants were required to register at the disc jockey’s booth. Only persons who had registered as contestants were allowed to be on stage during the dance contest.

Approximately five security guards were positioned in various locations around the nightclub. Three of the security guards wore black T-shirts with the word “security” in white letters. The other two security guards, Earle and Lewis Hall, both full-time police officers for the City, were working as part-time security guards at the nightclub. They were wearing their police uniforms, which included a badge and a gun belt. Earle was positioned at the back of the stage and another security guard, Calvin Bell, was positioned at a corner of the stage near the audience. The security guards were responsible for keeping unauthorized persons — persons who were not participants in the dance contest — off the stage. Earle, who had worked at the nightclub for approximately three months, served as the last line of protection against unauthorized persons who had gotten past the other security guards in their attempt to enter the stage.

After Borders entered the nightclub, he recognized an acquaintance, Moses Eze, dancing on the stage with a female partner. Eze had previously dated Borders’s sister and was the father of her child. At the time of the incident at the nightclub, Eze was allegedly no longer involved in a relationship with Borders’s sister. Borders testified that he did not feel any “hostility” toward Eze and that there were no “bad feelings” between them. Marin Childress, the person who had accompanied Borders to the nightclub, testified that Borders told him that he felt like Eze was being “disrespectful” by dancing onstage with a female partner. Borders, who was not registered as a dance contestant, approached the stage. The evidence is disputed as to what happened next.

Borders testified that he got on the stage to talk to Eze, who was standing toward the back of the stage. One of the security guards approached Borders and questioned him about being on stage. Borders did not remember the security guard’s name; however, other witnesses testified that it was Bell. According to Borders, Bell agreed to let him speak to Eze. Eze testified that he did not witness Borders attempt to strike Bell or raise his arms while he was talking to Bell. At some point while Borders was onstage, the disc jockey announced that Borders should leave the stage.

Eze testified that Borders approached him and told him to stop seeing his sister. Borders testified that after he had spoken with Eze and as Borders was leaving the stage, Earle pushed him from behind, causing Borders to fall into the crowd. The crowd caught him and pushed him back onstage. Borders testified that Earle then began to choke, kick, and punch him; he stated that other security guards were also involved in the beating. Borders stated that after the alleged attack the following occurred:

“[Officer] Earle picked me up, grabbed me by the back of my shirt, pulled me up by my shirt, then he turned me around, handcuffed me, then he walked me going like down the steps. And when I was on the way going out the door, ... he slammed me into the car, smacked me in the back of my head and in my face, and then threw me into the car and told me he should have killed me.”

Borders testified that he never tried to strike Earle during or after the incident. Eze and Latasha Pride, a 14-year-old who was sitting on the stage at the time of the incident, both testified that Borders did not attempt to strike anyone onstage before Earle pushed him from behind. Chil-dress also testified that after Borders whispered something to Eze, a police officer pushed Borders off the stage for no apparent reason.

Earle presents a dramatically different version of the events. Earle testified that when Borders got on the stage he pushed Bell out of his way and headed toward Eze. During Earle’s testimony at Borders’s criminal trial before the municipal court, he testified that Borders started yelling at Eze as he approached him. Earle testified that he then approached Borders to intercept a punch, which he says was aimed at Eze. Earle testified:

“As I grabbed [Borders] and tried to take him off the stage, that’s when [Borders] jerked away from me and pushed off on me. My first reaction was to push him to get him back off from me. At that time, we were at the stage. What footage we were at the stage, I don’t know. [Borders] did leave the stage and go into the crowd. The crowd did catch [Borders] and throw him back on to the stage. He wasn’t in a, I guess, the force from the crowd from him hitting the stage was not enough from him to make contact back with me and both of us [fell] to the ground.
“[Borders] went up under me, locked his arms around my legs in order to try to pick me up. He can’t. I’m 260 pounds. He wasn’t going to pick me up. What he was going to try to do was throw me off balance onto my back.
“At that point, I grabbed [Borders]. We went to the ground. I tried to arrest him and we went fighting. I told him the time — the first time I told him that he was under arrest for the disorderly conduct for fighting with the security guard that tried to get him off the stage in the first place.
“The second time is when [Borders] went over to [Eze who] was dancing with the girl and tried to attack him. And at that point whenever I tried to get him off of me and tried to get him under arrest and when he pushed off of me and I pushed him back, that was enough for disorderly conduct.
“When the resisting arrest came into play is whenever I had to physically fight him whenever he was put back on to the stage. We started from one side of the stage. About the time the other officer, which was Officer David Long, which is a Triana police officer, that was also there off duty — he was on the stage back here. He had enough time to come from the backstage, come upstairs, and assist me in arresting him. At that point, yes, he had bruises on him. He had bruises on his head. He had bruises on his back. Because in order for us to place him under arrest, we’re going to have to use physical force. So he’s not going to come out looking pretty.”

Earle testified that he told Borders to leave the stage and that he was under arrest when he saw Borders approaching Eze. However, during his deposition, Earle could not recall whether Borders tried to hit Eze. He testified that Borders pushed by him to get to Eze and that a “scuffle” occurred between Borders and Eze.

Bell’s version of the events was similar to the testimony given by Earle. Bell testified:

“Once [Borders] was on the stage, I approached him from the side, asked him to get off, and reached for his arm. At that point, [Borders] pushed me out of his way, causing me to stumble backwards, and [Borders] continued moving toward [Eze].
“As [Borders] passed by me and was approaching [Eze], he began yelling at [Eze] in a [sic] angry tone of voice. Having obviously seen what was occurring, Officer Earle quickly moved across the stage to stop [Borders]. When Officer Earle attempted to grab and control [Borders], [Borders] jerked away and pushed himself free from Officer Earle, heading toward the edge of the stage. Officer Earle approached and made contact with [Borders] again, at which point [Borders] seemed to lose his balance and appeared to be falling off the stage. However, several members in the audience who were standing near the edge of the stage pushed [Borders] back on the stage, causing him to land in front of Officer Earle at his feet. [Borders] lunged toward Officer Earle, wrapped his arms around Officer Earle’s legs, and appeared to try to take Officer Earle’s feet out from under him. Officer Earle grabbed hold of [Borders] and fell on top of him in order to gain control. While Officer Earle and Borders were on the floor of the stage, [Borders] was fighting with Officer Earle, thrashing his arms and legs around, and refusing to submit to arrest by Officer Earle. By this time, Officer [Lewis] Hall, the other security guards, and I had rushed over to assist Officer Earle with [Borders]. Also, there were approximately 10 to 20 people from the audience who had jumped onto the stage and were standing nearby watching. The struggle ended when Officer Earle, with the assistance of Officer Hall, the other security guards, and myself, [were] able to handcuff [Borders]. At that point, [Borders] was lifted off the floor of the stage by Officer Earle and was escorted outside the Club Showcase where he was placed in the backseat of Officer Earle’s patrol car.
“During the entire incident, Officer Earle never kicked, struck, or otherwise physically abused [Borders], nor did Officer Earle use any force that I regarded as being unnecessary or improper under the circumstances given [Borders’s] aggressive and hostile resistance.”

James Keith, another security guard working at the nightclub that night, testified at Borders’s criminal trial that he also witnessed Borders push away from Earle. According to Keith, Earle then pushed Borders away from him, which resulted in Borders’s falling off the stage. Lewis Hall, the other off-duty police officer at the nightclub, testified that he witnessed a physical altercation between Earle and Borders. Hall testified that he witnessed Borders grab Earle’s legs in what appeared to be an attempt to tackle Earle after he fell from the stage and was pushed back onstage.

The City filed a motion to dismiss Borders’s complaint on the basis that pursuant to § 11-47-190, Ala.Code 1975, and § 6-5-338, Ala.Code 1975, the City was immune from all claims alleged in the complaint. The trial court granted the motion and dismissed Borders’s claims against the City. Borders then filed two motions for “reconsideration”; the trial court denied both.

Earle filed a summary-judgment motion, as well as a summary of undisputed facts, a brief, and evidentiary material including the deposition testimony of Borders, Pride, Eze, and Earle; the affidavit testimony of Bell and Hall; and the transcript of Borders’s criminal trial before the municipal court. Borders opposed the summary-judgment motion and filed evidentiary material supporting his claims. The trial court entered a summary judgment in Earle’s favor.

Borders then filed what he called a “Motion to Set Aside All Orders Entered and Motion to Recuse,” alleging that the trial judge was disqualified from sitting in the present case; the judge denied those motions. Borders appealed from the judgments in favor of the City and Earle and from the order denying his postjudgment motions.

II. Jurisdiction

The City and Earle argue that this Court has jurisdiction to consider only the issues raised in Borders’s “Motion to Set Aside All Orders Entered and Motion to Recuse.” The gravamen of the motion is that the trial judge was disqualified from sitting in this case because he served as a state senator during the time the Legislature enacted § 6-5-338 and amended § 11-47-190, both of which statutes form the basis of the City and Earle’s immunity claims. The City and Earle contend that the motion was not a proper motion under Rule 59(e), Ala. R. Civ. P., because it did not address the merits of the trial court’s judgments in their favor, but instead, it raised for the first time a collateral objection that the trial judge was disqualified because of an alleged judicial bias. Therefore, according to the City and Earle, the motion was actually “an attack on the judgment itself,” made pursuant to Rule 60(b)(6), Ala. R. Civ. P., and the filing of the motion did not extend the 42-day period for the filing of an appeal to this Court. Alabama Farm Bureau Mut. Cas. Ins. v. Boswell, 430 So.2d 426, 428 (Ala.1983) (Rule 60(b)(6) motion “does not affect the finality of the judgment or toll the time for appeal”); Smith v. Clark, 468 So.2d 138 (Ala.1985) (affirming the trial court’s denial of a Rule 60(b) motion alleging that the trial judge had a conflict of interest in the case). The City and Earle point out that Borders’s notice of appeal was filed more than 42 days after the date of the final judgment entered by the trial court. Therefore, the City and Earle argue, Borders’s notice of appeal was untimely. We disagree. . ■

In determining how to proceed under the Alabama Rules of Civil Procedure, we must look to the essence of a motion rather than to its title. Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998). In his postjudgment motion, Borders requested that the trial judge set aside his orders and recuse himself from the case. Both requests were based upon an alleged conflict of interest. on the part of the trial judge. A motion seeking a judge’s recusal, if granted, could require that the trial court’s judgment be vacated. See Smith, 468 So.2d at 141 (“Indeed, a judgment is not void because of disqualification of a judge, but is only voidable on direct attack by appeal or by motion to set it aside.”).

The City and Earle correctly argue that seeking a trial judge’s recusal is a proper function of a Rule 60(b)(6) motion. See Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.1982). However, this Court has also construed a motion to recuse as a motion properly filed under Rule 59. In Johnson v. Life Insurance Co. of Alabama, 581 So.2d 438 (Ala.1991), the plaintiffs filed a Rule 59 motion for a new trial; that motion referenced their pending motion for recusal as a ground for a new trial. Both motions were deemed denied under Rule 59.1, Ala. R. Civ. P., because the trial court failed to rule on the motions within 90 days. 581 So.2d at 440.

In the present action, we construe Borders’s request for the trial judge to set aside all orders and recuse himself as proper functions of a Rule 59 motion to alter, amend, or vacate the judgment. Because Borders filed his notice of appeal within 42 days after the trial court denied his postjudgment motion, his appeal is timely. See Rule 4(a)(3), Ala. R.App. P. (the time for a filing of appeal shall be computed from the date the trial court denies the Rule 59 motion). See also Hamid v. Price Waterhouse, 51 F.Sd 1411 (9th Cir.1995), in which the court treated a motion to vacate a judgment on the ground that the trial judge should have recused himself as a motion under Fed.R.Civ.P. 59 and then concluded that the time in which to appeal did not begin to run until the entry of an order disposing of the motion to vacate the judgment.

III. Borders’s Postjudgment Motions

Whether to grant or deny a post-judgment motion filed pursuant to Rule 59 is within the sound discretion of the trial court. Flagstar Enters., Inc. v. Foster, 779 So.2d 1220 (Ala.2000). We will not disturb the exercise of that discretion unless the trial court exceeded the permissible limits of its discretion. Flagstar, 779 So.2d at 1221; Comalander v. Spottswood, 846 So.2d 1086 (Ala.2002).

Borders argues that the trial judge should have disclosed to all parties the fact that he voted in favor of the enactment of the bill that would become § 6-5-338 and the amendment of § 11-47-190 during his term as a state senator because the basis of this action involves the trial judge’s interpretation of both statutes. As the basis for his argument, Borders cites Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics; he specifically alleges that the trial judge’s conduct violates Canon 3.C.(1), which provides that “[a] judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned.... ”

The City and Earle initially argue that Borders waived the right to raise the issue of the trial judge’s disqualification because he raised the issue for the first time in a postjudgment motion, citing Ross v. Luton, 456 So.2d 249 (Ala.1984). Because we conclude that Borders’s recusal ground lacks merit, we proceed without a discussion of whether the issue was waived.

In In re Sullivan, 283 Ala. 514, 523, 219 So.2d 346, 353 (1969), this Court stated, “A judge is not disqualified to try a case because he had been a member of the legislature enacting a statute involved in [the] litigation before him.... ” In Sullivan, this Court held that the fact that some members of the Board of Commissioners of the Alabama State Bar were members of the Board when the rule in question was formulated did not disqualify the members to sit in the disbarment proceedings at issue in that case. 283 Ala. at 523, 219 So.2d at 353. Therefore, under Sullivan, the trial judge here was not disqualified to sit in the proceedings because he was a state senator when the Legislature enacted and amended the statutes upon which the City and Earle base their immunity claims. The trial court did not exceed the permissible limits of its discretion in denying Borders’s motion to recuse; therefore, we affirm the order denying that motion.

Borders’s motion to set aside the judgment, to the extent it also attacks the judgment on its merits, states no specific grounds other than the aforementioned re-cusal. We therefore address the remaining issues in the context of Borders’s appeal from the judgment dismissing his claims against the City and from the summary judgment in favor of Earle.

IV. State-Law Claims Against Earle

A. Standard of Review

Our review of a summary judgment is de novo. “A motion for summary judgment is granted only when the evidence demonstrates 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), Ala. R. Civ. P.” Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply “the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. “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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

B. The Availability to an Officer of Discretionary-Function Immunity when the Arrestee is Acquitted Borders was acquitted of the charges for which Earle arrested him without a warrant. Borders argues that the trial court’s summary judgment in favor of Earle was improper because, he says, the evidence established the existence of genuine issues of material fact as to whether Earle actually witnessed Borders commit a crime when Borders entered the stage, spoke with

Eze, and/or exited the stage. In his reply brief, Borders argues that Earle “never witnessed, viewed or observed the commission of a crime and is simply trying to hide under the wide umbrella of discretionary function immunity.”

Earle argues that all of Borders’s claims are barred by the discretionary-function immunity afforded to peace officers pursuant to § 6-5-338. Section 6-5-338(a) provides:

“(a) Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such 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.”

(Emphasis added.) Earle argues that he is entitled to the immunity provided in § 6-5-338 because, he says, he was performing a discretionary function in determining whether there was probable cause to arrest Borders and in choosing the manner in which to effectuate the arrest.

As a police officer, Earle qualifies as a peace officer for purposes of § 6-5-338. It is also undisputed that at all times during the incident in question Earle was acting within his capacity as a police officer of the City. To come within the protection of § 6-5-338, a municipal police officer must be engaged in a discretionary function with respect to the incident in question. See Ex parte City of Montgomery, 758 So.2d 565 (Ala.1999); Ex parte Duvall, 782 So.2d 244 (Ala.2000). Discretionary-function immunity, as is the case with State-agent immunity, is withheld if an officer acts with willful or malicious intent or in bad faith. See City of Montgomery, 758 So.2d at 569. Borders states in his reply brief that he “has never contended that Earle’s conduct was done in malice, bad faith or with willfulness.” Instead, Borders contends that Earle’s conduct was actionable because of his “neglect, carelessness, or unskillfulness while acting in the line and scope of his duties.” Borders’s reply brief at p. 13. Therefore, in order to decide whether Earle is immune from liability in this action, we need determine only whether he was performing a discretionary function with respect to the incident in question. See Couch v. City of Sheffield, 708 So.2d 144, 153 (Ala.1998).

Generally, arrests and attempted arrests are classified as discretionary functions. Telfare v. City of Huntsville, 841 So.2d 1222 (Ala.2002). “Discretionary functions” are broadly defined as “ ‘ “those acts 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.” ’ ” Ex parte Duvall, 782 So.2d at 248 (quoting City of Montgomery, 758 So.2d at 569, quoting in turn Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996)).

Borders claims that Earle’s arrest of Borders for the commission of a misdemeanor was unlawful because, he argues, his subsequent acquittal establishes conclusively that Earle could not have witnessed Borders commit any crime. Borders cites Telfare, supra, for the proposition that an officer is not entitled to discretionary-function immunity for the arrest of a person for a misdemean- or offense not committed in the presence of the arresting officer. Rule 4.1, Ala. R.Crim. P., and § 15-10-3, Ala Code 1975, read in para materia, provide, among other things, that an officer may effectuate a lawful arrest of a person for any offense if the offense was committed in the arresting officer’s presence. In Telfare, this Court stated that “[generally, Alabama’s Rules of Criminal Procedure and [§ 15-10-3(a), Ala. Code 1975,] do not allow law-enforcement officers the discretion to arrest alleged wrongdoers for misdemeanors not committed in the presence of the arresting officer.” 841 So.2d at 1229.

In Telfare, an arresting officer arrived on the scene after an alleged misdemeanor offense had occurred. 841 So.2d at 1224. The officer then arrested the alleged offender, Telfare, on charges of disorderly conduct, harassment, and resisting arrest. 841 So.2d at 1225. In a subsequent civil action against the arresting officer and the City of Huntsville, Telfare claimed that the arresting officer was not engaged in a discretionary function entitling him to immunity because the alleged misdemeanor was not committed in the presence of the arresting officer pursuant to Rule 4.1 and § 15 — 10—3(a), Ala.Code 1975. 841 So.2d at 1228-29. We agreed with Telfare and reversed the ruling in favor of the City on the motion to dismiss with respect to Tel-fare’s state-law claims because there was no evidence indicating that the arresting officer was pursuing a discretionary function, i.e., effectuating a lawful arrest. The City in Telfare failed to demonstrate that it was entitled to immunity under § 6-5-338 for the officer’s actions. 841 So.2d at 1229.

In Telfare, because the officer was not present at the scene at the time of the events made the basis of the charge, factual issues as to the conduct of the arrestee at the time of the warrantless arrest were not relevant. If the evidence as to Borders’s conduct undisputedly reflected that Borders had committed a misdemeanor in Earle’s presence, it would logically follow that Earle would be entitled to discretionary-function immunity. However, under such a circumstance, the ensuing conviction would prevent the issue of immunity from ever being presented. See Telfare, 841 So.2d at 1230 (Houston, J., concurring in part and dissenting 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 City, Earle, and amicus curiae Alabama League of Municipalities ask us to resolve the issue whether an arresting officer must have probable cause for an arrest before the officer can be entitled to discretionary-function immunity under § 6-5-338 and to embrace the concept of “arguable probable cause” as sufficient to permit Earle to assert the defense of immunity, because the criminal charges against Borders have been dismissed. While Telfare is distinguishable, the present case requires us to deal with an issue not presented in Telfare — whether a peace officer making a warrantless arrest on a charge based upon conduct the officer witnessed is entitled to discretionary-function immunity in a subsequent civil action after the arrestee is acquitted.

In Micalizzi v. Ciamarra, 206 F.Supp.2d 564, 576 (S.D.N.Y.2002), the district court, citing Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997), and Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), recognized the concept of “arguable probable cause” giving rise to qualified immunity when an officer makes an arrest lacking probable cause if officers of reasonable competence in the same circumstances and with the same knowledge would disagree as to whether probable cause existed. Although this Court has not directly addressed the issue of the relationship between probable cause and discretionary-function immunity, we agree that the standard of “arguable probable cause” should govern further proceedings in this case. See 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); Duvall, 782 So.2d at 248 (“There is no hard and fast rule concerning when there is probable cause to arrest a person pursuant to § 32-5A-4, Ala.Code 1975, for refusing to comply with a lawful order or direction of a police officer.”); Telfare, 841 So.2d at 1230 (Houston, J., concurring in part and dissenting in part and concluding that the issue in such a case is not whether probable cause existed, but whether, at the time of the arrest, the officer was engaged in a discretionary function).

Embracing the concept of arguable probable cause, however, does not end the inquiry. The district court denied the summary-judgment motion in Micalizzi because, under the evidence, when viewed most favorably to the plaintiff, “no reasonable police officer could have believed that he had probable cause to arrest plaintiff.” 206 F.Supp.2d at 576. We must determine whether the same can be said of this ease. If so, a jury question exists as to whether Earle acted with arguable probable cause, and the summary judgment must be reversed. If not, the summary judgment for Earle must be affirmed.

C. Whether, as a Matter of Law, Officers of Reasonable Competence in the Same Circumstances and with the Same Knowledge Would Disagree as to Whether Probable Cause Existed

We begin with the initial alleged altercation between Bell and Borders after Borders got on the stage. Earle testified during Borders’s criminal trial that he witnessed Borders “fighting” with Bell. In his deposition testimony, Earle stated that he saw Borders push Bell’s arm or his chest, causing Bell to lose his balance. Earle testified that it was at this point he believed he had probable cause to arrest Borders for harassment or disorderly conduct. Bell’s testimony corroborates that of Earle. However, Borders testified that he did not make physical contact with Bell; he testified that Bell actually allowed him to pass and to continue along his way to speak to Eze. Eze, Pride, and Childress all testified that they did not see any altercation between Borders and Bell.

Next, Earle testified that as Borders proceeded to approach Eze he was yelling and pointing at Eze. At this point, Earle’s own testimony is conflicting. During Borders’s criminal trial, Earle testified that he saw Borders “attack” Eze and swing at him. However, during his deposition testimony, Earle stated that he could not recall whether Borders attempted to strike Eze. Earle testified that Borders acted aggressively and extended his hands toward him in a manner that indicated to him that Borders was pushing him out of his way in order to reach Eze. Earle testified that it was at this point that he told Borders to leave the stage and that he was under arrest. Then, Earle testified that he and Borders got into a “scuffle,” which resulted in Borders’s falling off the stage. Earle testified that he did not push Borders off the stage into the crowd.

Borders testified that he was not acting aggressively when he approached Eze to have a conversation with him. Eze also testified that Borders approached him to tell him something regarding his relationship with Borders’s sister. Eze testified that Borders was not acting in an aggressive manner and that Borders never tried to swing at him. Keith, a security guard at the nightclub, also testified that he did not see Borders engage in a fight with any patron at the nightclub.

Eze testified that Earle approached Borders, but that he could not hear what he said to him because the music was too loud. Then, according to Eze, Borders started to walk off the stage, and Earle pushed him from behind, causing him to fall off the stage. Borders testified that his first encounter with Earle was when he pushed him from behind into the crowd. Pride and Childress also testified that they saw Earle push Borders from behind.

Finally, the last phase of the incident involves the point at which the crowd pushed Borders back onto the stage. This fact is undisputed. However, Bell and Earle testify that when Borders was pushed back onstage by the crowd, he grabbed Earle’s leg. Earle testified that he interpreted Borders’s action as an attempt to throw him off balance. At this point, Earle testified that he went down on top of Borders and was assisted by other officers and security guards in arresting Borders. Earle testified that he escorted Borders from the nightclub in handcuffs.

Borders testified that he was off balance when he was pushed back onstage, and that at that point Earle and other guards began punching and kicking him. He testified that Earle was on top of him and that Earle began choking him. Borders stated that Earle “smacked [him] in the face and told [him] he should have killed [him] and threw [him] in the backseat of the car.”

Viewing the evidence in the light most favorable to Borders, as we are required to do in reviewing a summary judgment, we cannot determine, as a matter of law, that Earle was engaged in a discretionary function when he arrested Borders, that is, that Earle had arguable probable cause in that officers of reasonable competence in the same circumstances and with the same knowledge would disagree as to whether probable cause existed.

According to Borders, he did approach the stage even though he was unauthorized to be on the stage during the dance contest. But he says Bell allowed him to proceed across the stage so that he could talk to Eze. Borders then spoke with Eze and began to walk off the stage. At this point, according to Borders, Earle came from behind him and pushed him off the stage. When Borders was pushed back onto the stage by the crowd, Earle began beating him and then arrested him. Therefore, evidence was presented to the trial court that contradicted Earle’s evidence of the events that occurred before Earle effectuated his arrest of Borders. Compare Couch, 708 So.2d at 153-54 (police officer was entitled to discretionary-function immunity when no evidence disputed the officer’s affidavit that “he believed” he had probable cause to effectuate the arrest).

In Franklin v. City of Huntsville, 670 So.2d 848 (Ala.1995), an officer repeatedly asked Franklin, a spectator at a high-school football game, to leave a certain restricted area and move to the bleacher section of the stadium. Franklin did not follow the officer’s orders. 670 So.2d at 849-50. The officer then grabbed Franklin’s arm and placed him under arrest for disorderly conduct. 670 So.2d at 850. Apparently, the area where Franklin was standing was usually “chained off’ and “kept clear in order to minimize the potential for fights.” 670 So.2d at 850. Franklin was aware that he was in the unauthorized area; however, he stated that he thought it was not restricted because it had not yet been “chained off.” 670 So.2d at 850. Based upon a review of the record, this Court concluded that disputed facts such as whether Franklin was cursing and attracting the attention of other spectators and whether he was standing in an unauthorized zone presented a jury question. 670 So.2d at 853. This Court reversed the summary judgment in favor of the arresting officer because disputed issues of fact existed as to whether the officer had probable cause to arrest Franklin. 670 So.2d at 853.

In the present action, as in Franklin, the facts are disputed as to the conduct of the arrestee and the officer. Such disputed facts preclude a determination as to whether Earle was engaged in a discretionary function and instead present a jury question. The trial court’s summary judgment in favor of Earle was improper. We therefore reverse the summary judgment in favor of Earle with respect to Borders’s claims that Earle used excessive force and his claims of false arrest, false imprisonment, and assault and battery.

However, as to Borders’s claim of malicious prosecution against Earle, we affirm the summary judgment on the basis of Borders’s disclaimer in his reply brief for any liability arising out of Earle’s intentional conduct. In order to succeed in a malicious-prosecution action, a plaintiff must prove, among other things, that “ ‘a prior judicial proceeding was instigated by the present defendant without probable cause and with malice.’ Mitchell v. Folmar & Assocs., LLP, 854 So.2d 1115 (Ala. 2003) (quoting Fina Oil & Chem. Co. v. Hood, 621 So .2d 253, 256 (Ala.1993)) (emphasis added). See also Delchamps, Inc. v. Bryant, 738 So.2d 824, 834 (Ala.1999) (liability for malicious prosecution is not “within the traditional categories of ‘neglect, carelessness or unskillfulness’ ”). Borders absolves Earle of any liability for intentional conduct; instead, he contends that Earle’s conduct was based on his neglect, carelessness, or unskillfulness. Such conduct does not support an action for malicious prosecution, and we affirm the summary judgment with respect to that claim.

V. State-Law Claims Against the City

A. Standard of Review

In Nance v. Matthews, 622 So.2d 297 (Ala.1993), this Court stated, the standard of review applicable to a motion to dismiss:

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

622 So.2d at 299 (citations omitted).

B.Vicarious Liability

Because we find that Earle is not entitled to discretionary-function immunity at this stage in the proceedings, we also conclude that the City is not entitled to discretionary-function immunity under the principle of respondeat superior. Moreover, if Earle is not entitled to immunity pursuant to § 6-5-338(a), the plain language of the statute withholds immunity from the City. See Ex parte City of Gadsden, 781 So.2d 936 (Ala.2000), recognizing that when the employee of a municipality is immune § 6 — 5—338(b) extends the immunity to the municipality.

C.Substantive Immunity

The City also argues that it is entitled to substantive immunity created in Rich v. City of Mobile, 410 So.2d 385 (Ala.1982) (providing immunity “in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City’s legitimate efforts to provide such public services”). Substantive immunity has been extended to the context of police activities. See Calogrides v. City of Mobile, 475 So.2d 560 (Ala.1985); Garrett v. City of Mobile, 481 So.2d 376 (Ala.1985). However, in City of Birmingham v. Benson, 631 So.2d 902, 905 (Ala.1993), this Court refused to extend substantive immunity for the death of a patron outside a bar to the City of Birmingham when an off-duty police officer acting as a security guard at the bar was present on the scene and in a position to control an aggressor. Based on Benson, we cannot find that the imposition of liability upon the City under the circumstances presented here will “materially thwart” the City’s legitimate efforts to provide public services. See Benson, 631 So.2d at 905.

D.Liability for Intentional Conduct

The City also argues that it is entitled to immunity under § 11-47-190, Ala.Code 1975, for Borders’s intentionally based tort claim of false imprisonment. Section 11-47-190 “absolves a city from liability for an intentional tort committed by one of its agents....” Ex parte City of Gadsden, 718 So.2d 716, 721 (Ala.1998). In his complaint, Borders asserted a vicarious-liability claim against the City based upon his contention that Earle “knew or should have known” that Borders’s detention, restraint, and imprisonment were unlawful. Although it is unclear from the complaint whether Borders actually asserts vicarious liability for an intentional tort against the City, he contends in his reply brief that his allegations are all based upon the “neglect, carelessness, or unskillfulness” of Earle. In Franklin, supra, we stated in the context of claims for assault and battery, false imprisonment and false arrest, that “where a plaintiff alleges a factual pattern that demonstrates ‘neglect, carelessness, or unskillfulness’ the plaintiff has stated a cause of action under Ala.Code 1975, § 11-47-190.” 670 So.2d at 852. Therefore, the City is not immune from liability pursuant to § 11-47-190 for Borders’s claims of excessive use of force, false arrest, false imprisonment, and assault and battery, all of which are based upon Earle’s alleged neglect, carelessness, and unskillfulness. Borders stated claims upon which relief could be granted; therefore, the trial court improperly dismissed Borders’s claims against the City that were based upon proof of negligence, i.e., Borders’s claims of excessive use of force, false arrest, false imprisonment, and assault and battery. We reverse the trial court’s dismissal with respect to the foregoing claims.

VI. Fedemlr-Law Claims Against the City and Earle

Borders did not address his asserted claims under 42 U.S.C. § 1983 in his briefs on appeal to this Court. Therefore, he waived any issue related to those claims on appeal because the ‘failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal.’ ” Harris v. Gill, 585 So.2d 831, 835 (Ala.1991) (quoting Ex parte Riley, 464 So.2d 92, 94 (Ala.1985)). We affirm the summary judgment in favor of Earle and the ruling in favor of the City on the motion to dismiss with respect to Borders’s § 1983 claims.

VII. Conclusion

We affirm the trial court’s denial of Borders’s motion to recuse. We affirm the trial court’s summary judgment in favor of Earle as to Borders’s malicious-prosecution claim. We affirm the summary judgment in favor of Earle and the ruling on the motion to dismiss in favor of the City as to the § 1983 claims. We reverse the trial court’s summary judgment in favor of Earle and its ruling on the motion to dismiss in favor of the City with respect to Borders’s claims alleging excessive use of force, false arrest, false imprisonment, and assault and battery to the extent these claims are based on negligence. We remand the cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

’ HOUSTON, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur in part and dissent in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur with that portion of the majority opinion that affirms the trial court’s summary judgment, the denial of the motion to recuse, and its order granting the City’s motion to dismiss. However, I must dissent from the reversal of any portion of the trial court’s summary judgment and its ruling on the City’s motion to dismiss. First, I disagree with the majority’s analysis of probable cause and its application of Micalizzi v. Ciamarra, 206 F.Supp.2d 564 (S.D.N.Y.2002). It also seems that the majority has judged the officer’s actions too strictly and without due regard for the immunity offered by § 6-5-338, Ala.Code 1975, or for the threat tfiat Borders’s actions posed to other people on the dance floor when he was arrested for disorderly conduct and resisting arrest.

The trial judge had the best opportunity to view the evidence and to judge the credibility of the witnesses and the weight to be accorded the evidence. Therefore, I respectfully dissent.

SEE, Justice

(concurring in part and dissenting in part).

I concur with the holdings in the main opinion that Ulysses Borders’s posttrial motion is properly characterized as a Rule 59(e), Ala. R. Civ. P., motion and that the trial judge was not required to recuse himself. I also concur in the holding that the proper standard for determining whether an arresting officer is entitled to discretionary-function immunity under § 6-5-338, Ala.Code 1975, for a misdemeanor arrest is not whether probable cause existed, but, rather, whether the officer had “arguable probable cause.” Micalizzi v. Ciamarra, 206 F.Supp.2d 564, 576 (S.D.N.Y.2002) (citing Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997), and Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). I further concur with the main opinion’s affirmance of the trial court’s summary judgment in favor of Earle as to Borders’s malicious-prosecution claim, and I concur in the main opinion’s affirmance of the trial court’s summary judgment in favor of Earle and its grant of the City’s motion to dismiss with respect to Borders’s claims made pursuant to 42 U.S.C. § 1983. I dissent, however, from the main opinion insofar as it holds that there remained a genuine issue of material fact as to whether there was arguable probable cause in this case. In Micalizzi the court denied a motion for a summary judgment because “no reasonable police officer could have believed that he had probable cause to arrest plaintiff.” 206 F.Supp.2d at 576. Given the testimony regarding the events leading to Borders’s arrest, a reasonable police officer in Earle’s position, charged with maintaining order at a dance club, could have believed that he had probable cause to arrest Borders.

Providing immunity to police officers, not just from ultimate liability but also from the hardships of a trial, allows the officers to perform their public duties to the fullest. “One of the purposes of immunity, absolute and qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Therefore, I dissent from the reversal of the trial court’s judgment in favor of Earle and its grant of the City’s motion to dismiss with respect to Borders’s claims alleging excessive use of force, false arrest, false imprisonment, and assault and battery.

BROWN, J., concurs.

STUART, Justice

(concurring in part and dissenting in part).

I concur in affirming the trial court’s denial of Borders’s motion to recuse, the trial court’s summary judgment in favor of Earle as to Borders’s malicious-prosecution claim, and the summary judgment in favor of Earle and the order granting the City’s motion to dismiss as to Borders’s claim under 42 U.S.C. § 1983. I dissent from the reversal of the trial court’s summary judgment in favor of Earle and its order granting the City’s motion to dismiss with respect to Borders’s claims alleging excessive use of force, false arrest, false imprisonment, and assault and battery. I believe that, based upon the evidence before it, the trial court’s rulings as to all issues are due to be affirmed.

      . Moore was never served with a summons and complaint; the trial court dismissed the claims against him for failure to prosecute.

      . Federal cases are authoritative in construing the Alabama Rules of Civil Procedure because the Alabama rules were patterned after the Federal Rules of Civil Procedure. Cutler v. Orkin Exteminating Co., 770 So.2d 67, 70 n. 2 (Ala.2000).

      . In his reply brief, Borders included two appendices of material that was not made a part of the record. We grant the City and Earle’s motion to strike the appendices from Borders’s reply brief pursuant to Green v. Standard Fire Insurance Co. of Alabama, 398 So.2d 671, 673 (Ala.1981) (the record on appeal cannot be changed or altered by statements made in appellate briefs or evidence not appearing in the record).
      In response to the City and Earle’s motion to strike, Borders contends that the City should not be permitted to include the material submitted in Appendix A of its brief. However, based upon a review of the record, we find that the material submitted by the City was properly presented on pages 52-56 of the record.

      . In Ex parte Cranman, 792 So.2d 392, 397 (Ala.2000), we referred to the immunity available to individual defendants sued for actions taken on behalf of the State as “State-agent immunity.” State-agent immunity is withheld from State agents acting in their personal capacity, "when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” 792 So.2d at 405. See also Ex parte Butts, 775 So.2d 173 (Ala.2000), in which a majority of this Court adopted the Cranman restatement of the rule governing State-agent immunity.

      . The testimony of Childress is from the criminal proceeding.

      . Keith's testimony is from the criminal proceeding.

      . See Ex parte Coleman, 861 So.2d 1080 (Ala.2003) (when considering a summary judgment motion, "[t]he court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party”).

      . Justice See’s special writing states that "[gjiven the testimony regarding the events leading to Borders's arrest, a reasonable police officer in Earle's position, charged with maintaining order at a dance club, could have believed that he had probable cause to arrest Borders.” 875 So.2d at 1185. A jury may well share Justice See's view of the evidence and come to the same conclusion. However, in reviewing a summary judgment it is not appropriate for this Court to resolve the conflicting evidence as to what transpired at the dance club in a manner favorable to Earle.


author: WOODALL, Justice.

text:
    BE&K, Inc., et al. v. Alex D. BAKER et al.
    1020594.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      James W. Gewin and Philip J. Carroll III of Bradley Arant Rose & White, LLP, Birmingham; and Hewitt L. Conwill of Conwill & Justice, Columbiana, for appellants BE&K, Inc., and BE&K Properties, Inc.
    William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham; and Frank C. Ellis, Jr., of Wallace, Ellis, Fowlér & Head, Columbia-na, for appellants Polar Property Development, Inc., and Polar Real Estate Corporation.
    . James A. Harris, Jr., James A. Harris III, and Clyde O. “Tres” Westbrook III of Harris & Harris, LLP, Birmingham; and James W. Fuhrmeister of Allison, May, Alvis, Fuhrmeister, Kimbrough & Sharp, Birmingham, for appellees Alex D. Baker; SNA, Inc.; Baker, Inc.; and Ron Carlson.
   WOODALL, Justice.

BE&K, Inc., BE&K Properties, Inc., Polar Real Estate Corporation, and Polar Property Development, Inc. (hereinafter referred to collectively as “the counterclaim defendants”), appeal, pursuant to Ala. R.App. P. 5, from the trial court’s interlocutory order denying their motions for judgment on the pleadings. We granted permission to appeal, and we now dismiss the appeal without prejudice.

I.

Polar-BEK Company (“Polar-BEK”) is a joint venture consisting of two corporations — BE&K Properties, Inc., and Polar Property Development, Inc. Polar-BEK owns Iberia Corporation (“Iberia”). Polar-BEK and Iberia are partners in several partnerships with Alex D. Baker; SNA, Inc.; Baker, Inc.; and Ron Carlson (hereinafter referred to collectively as “the Baker defendants”).

Polar-BEK and Iberia initiated this action by filing a complaint against the Baker defendants in the Shelby Circuit Court. In their complaint, after identifying their partnerships with the Baker defendants, Polar-BEK and Iberia alleged that “certain disputes have arisen among certain of the partners,” and requested “that the court conduct an equitable accounting as to each partnership and declare the rights, obligations and liabilities of the partners in each partnership.” The complaint also contained what it described as “alternative” breach-of-contract claims against Alex D. Baker.

The Baker defendants answered the complaint, stating counterclaims against Polar-BEK and Iberia. The parties to this appeal agree that the Baker defendants’ claims are compulsory counterclaims, as defined by Ala. R. Civ. P. 13(a). The counterclaims against Polar-BEK and Iberia remain pending in the trial court.

The Baker defendants did not limit their counterclaim to Polar-BEK and Iberia. Instead, they also asserted their claims against the counterclaim defendants, which were made parties to the counterclaim, as allowed by Ala. R. Civ. P. 13(h). After answering the counterclaim, the counterclaim defendants filed motions for a judgment on the pleadings as to the claims asserted against them in the counterclaim, contending that each claim was barred by the applicable statute of limitations. On December 17, 2002, the trial court denied the motions for a judgment on the pleadings.

The counterclaim defendants promptly requested that the trial court enter the certification required by Ala. R.App. P. 5(a), which would allow them to request permission from this Court to appeal from the interlocutory order denying their motions for a judgment on the pleadings. On January 9, 2003, pursuant to the counterclaim defendants’ request, the trial court entered the following order:

“On August 29, 2002 a motion for judgment on the pleadings was filed by counterclaim defendants BE&K, Inc. and BE&K Properties, Inc. On September 3, 2002 a similar motion was filed by counterclaim defendants Polar Property Development, Inc. and Polar Real Estate Corporation. All of these parties were first added to this action as defendants to the counterclaim, and their motions for judgment on the pleadings raise a single legal issue, namely whether the claims asserted in the counterclaim relate back as to these counterclaim defendants for purposes of the statute of limitations. By order dated December 17, 2002 this court denied the motions for judgment on the pleadings.
“BE&K, Inc., BE&K Properties, Inc., Polar Property Development, Inc., and Polar Real Estate Corporation have petitioned for permission to appeal pursuant to Rule 5(a) of the Alabama Rules of Appellate Procedure, and the court is of the opinion that the petitions should be granted. The court’s December 17, 2002 order denying the motions for judgment on the pleadings involves a controlling question of law as to which there is substantial ground for difference of opinion. Specifically, the issue presented is whether the claims asserted in the counterclaim relate back as to these parties under Alabama Code § 6-8-81.. The court finds that an immediate appeal from the order denying the motions for judgment on the pleadings would materially advance the ultimate termination of the litigation and would avoid protracted and expensive litigation. Accordingly, the court grants the petitions for permission to appeal filed by BE&K, Inc., BE&K Properties, Inc., Polar Property Development, Inc., and Polar Real Estate Corporation and it hereby certifies the case for interlocutory appeal pursuant to Rule 5(a) of the Alabama Rules of Appellate Procedure.”

(Emphasis added.) On January 22, 2003, the counterclaim defendants filed in this Court a petition for permission to appeal under Ala. R.App. P. 5, which this Court granted on February 11, 2003.

II.

As previously stated, this is an appeal by permission, pursuant to Ala. R.App. P. 5. Rule 5 was amended effective June 1, 2002. Since that date, Rule 5 has provided, in pertinent part:

“(a) Petition for Permission to Appeal. A party may request permission to appeal from an interlocutory order in civil actions under limited circumstances. Appeals of interlocutory orders are limited to those civil cases that are within the original appellate jurisdiction of the Supreme Court. A petition to appeal from an interlocutory order must contain a certification by the trial judge that, in the judge’s opinion, the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation. The trial judge must include in the certification a statement of the controlling question of law.
“(b) Content of Petition; Answer. The petition shall contain a statement of the facts necessary to an understanding of the controlling question of law determined by the order of the trial court, supported by reference to the materials accompanying the petition; a statement of the question itself, as stated by the trial court in its certification; and a statement of the reasons why a substantial basis exists for a difference of opinion on the question, why an immediate appeal would materially advance the termination of the litigation and why the appeal would avoid protracted and expensive litigation. The petition shall include or have annexed thereto (1) a copy of the order from which appeal is sought and of any findings of fact, conclusions of law, and opinion relating thereto and (2) a copy of the certification required by Rule 5(a). Within 14 days (2 weeks) after service of the petition, an adverse party may file an answer in opposition with the clerk of the Supreme Court, with proof of service on all other parties to the action in the trial court. The application and answer shall be submitted without oral argument unless otherwise ordered.”

(Emphasis added.)

It is “our time-honored rule that a final judgment is an essential precondition for appealing to this Court.” John Crane-Houdaille, Inc. v. Lucas, 534 So.2d 1070, 1073 (Ala.1988). However, in exercising its rulemaking authority, this Court has provided in Rule 5 that “[a] party may request permission to appeal from an interlocutory order in civil actions under limited circumstances.” (Emphasis added.) Before a party may request permission to appeal from an interlocutory order, the trial court must determine that “the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion,” and “[t]he trial judge must include in the [Rule 5(a)] certification a statement of the controlling question of law.” Once the trial court provides that certification, a petition for permission to appeal, in order to comply with Rule 5(b), must focus on “the controlling question of law determined by the order of the trial court.”

The purposes of these requirements are obvious. First, Rule 5(a) ensures that the trial court has identified, and focused upon, what it considers to be the controlling question of law. Second, Rule 5(b) ensures that this Court is made aware of the question of law that will be presented for its review, if it grants permission to appeal. Therefore, consistent with the present requirements of Rule 5 and their purposes, this Court will not expand its review on permissive appeal beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a).

III.

In its Rule 5(a) certification, the trial court identified what, in its opinion, is the “controlling question of law” in this case: “Specifically, the issue presented is whether the claims asserted in the counterclaim relate back as to [the counterclaim defendants] under Ala.Code § 6-8-84.” However, under the undisputed facts, the trial court has not identified “a controlling question of law.” Indeed, § 6-8-84 is irrelevant to any consideration of the compulsory counterclaims asserted by the Baker defendants. See Romar Dev. Co. v. Gulf View Mgmt. Corp., 644 So.2d 462, 473 (Ala.1994) (“§ 6-8-84 ... applies] only to permissive counterclaims”) (emphasis added). See also Exxon Corp. v. Department of Conservation & Natural Res., 859 So.2d 1096, 1102 (Ala.2002)(“In Romar, this Court ruled that all compulsory counterclaims, whether offensive or defensive, are not subject to the statute-of-limitations defense.”).

On appeal, the counterclaim defendants seek to redefine the issue presented for our review, effectively abandoning the issue stated by the trial court. In their initial brief, Polar Property Development, Inc., and Polar Real Estate Corporation claim that the issue is whether “an untimely [compulsory] counterclaim relate[s] back for statute of limitation purposes, against counterclaim defendants who were not plaintiffs in the original complaint.” Similarly, in their initial brief, BE&K, Inc., and BE&K Properties, Inc., identify the issue as whether “the untimely claims asserted in the [compulsory] counterclaim relate back as to newly added counterclaim defendants ..., none of which are or have ever been plaintiffs.” These issues are beyond the scope of the issue stated by the trial court, and, consequently, are beyond the scope of our review on permissive appeal.

For the foregoing reasons, we dismiss the appeal without prejudice.

APPEAL DISMISSED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

      . "When the defendant pleads a counterclaim to the plaintiffs demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his counterclaim, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in the action.” § 6-8-84, Ala.Code 1975.


author: JOHNSTONE, Justice.

text:
    Harold JONES and Pam Jones v. ALFA MUTUAL INSURANCE COMPANY et al.
    1010565.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      Rhonda Marie, Hoover, for appellants.
    L. Merrill Shirley, Elba, for appellees.
   JOHNSTONE, Justice.

The plaintiffs Harold Jones and Pam Jones, a married couple (“the Joneses”), appeal: (1) the Rule 12(b)(6), Ala. R. Civ. P., dismissal of their bad-faith claim against the defendant Alfa Mutual Insurance Company (“Alfa”); (2) the entry of summary judgment for Alfa on other claims; and (3) the entry of summary judgments for the defendants Gary Bradshaw (“Bradshaw”); Ralph E. Jones (“Engineer Jones”); and Ralph E. Jones and Associates, Inc. (“Jones Associates”). We reverse the Rule 12(b)(6) dismissal of the Joneses’ bad faith claim against Alfa; reverse in part and affirm in part the summary judgment for Alfa; affirm the summary judgments for Bradshaw, Engineer Jones, and Jones Associates; and remand the case for further proceedings on the viable claims consistent with this opinion.

On October 6, 1995, under an Alfa far-mowner’s insurance policy (“the policy”), the Joneses submitted to Alfa a claim for wind damage inflicted by Hurricane Opal on their home, garage, and barn earlier that month. On December 3, 1998, after Alfa had paid only parts of the claim, the Joneses sued Alfa for breach of contract; bad faith; negligent hiring and supervision of employees and agents; negligent or wanton inspection of the Joneses’ damaged property; misrepresentation grounded on alleged misrepresentations by Bradshaw, an Alfa adjuster; misrepresentation grounded on alleged misrepresentations by Wendell Sanders (“Sanders”), an Alfa agent; suppression; tortious cancellation of the policy; and conspiracy. In the same case, the Joneses sued Bradshaw; Engineer Jones, an independent structural engineer engaged by Alfa; and Jones Associates, Engineer Jones’s corporation, for negligently or wantonly inspecting the Joneses’ damaged property.

The defendants moved for dismissal under Rule 12(b)(6), Ala. R. Civ. P. They contended that the applicable statutory periods of limitations had expired before the Joneses filed their lawsuit. The trial court considered only the pleadings and did not treat the Rule 12(b)(6) motion as a summary-judgment motion. The trial court dismissed only the claims for bad faith and negligent hiring and supervision. The Joneses do not appeal the dismissal of their claim for negligent hiring and supervision but do appeal the dismissal of their claim for bad faith.

Following the completion of discovery, the defendants moved for summary judgment on the remaining claims. The trial court entered summary judgments for all of the defendants on all of the remaining claims, and the Joneses appeal these summary judgments on all of these claims.

Rule 12(b)(6) Dismissal of Claim for Bad Faith

The complaint alleges that Alfa paid part of the claim but does not allege that Alfa formally denied the rest of the claim. In pertinent part, the complaint alleges:

“8. On or about October 4, 1995, Plaintiffs’ home ... suffered wind related damage associated with Hurricane Opal. “9. Thereafter, the loss was reported by Plaintiffs to [Alfa].
“10. On October 26, 1995, Gary Bradshaw, an adjuster for ALFA, made an inspection of Plaintiffs’ residence to determine the cause of loss and the amount of damage.
“11. ALFA then assigned the matter to [Engineer Jones]. On November 13, 1995, [Bradshaw and Engineer Jones] inspected the residence of Plaintiffs. Said inspection encompassed a visual observation of Plaintiffs’ dwelling.
“12. During the inspection of Plaintiffs’ dwelling, [Bradshaw and Engineer Jones] observed roof damage, structural cracks and separations....
“13. On or about December 20, 1995, Plaintiffs’ attorney, Bruce McLean, received from Bradshaw a copy of a report prepared by [Engineer Jones] summarizing his investigation of Plaintiffs property.
“14. On or about December 29, 1995, [Bradshaw] forwarded to Plaintiffs’ attorney a ‘Loss Estimate’ along with ALFA’s payment in the amount $3,280.00, representing the cost to replace Plaintiffs’ roof less the applicable deductible under the policy.
“15. Thereafter, Plaintiffs received periodic communications from various employees ... of [Alfa] referencing the October 1995 claim, including telephone calls and contact letters and telephone calls. During this time, Plaintiffs were repeatedly assured by their local ALFA insurance agent, Wendell Sanders, not to worry and that their claim would eventually be paid.
“16. On or about February 4, 1997, ALFA notified Plaintiffs of its intent not to renew their homeowners insurance policy effective March 9,1997....
“23. Defendant ALFA breached Plaintiffs’ contract of insurance by refusal to properly investigate and/or pay a valid claim.
“26. Defendant ALFA’s breach of contract amounted to a bad faith refusal to properly investigate and intentional refusal to properly pay a valid claim. No arguable or legitimate reason exists for Defendant’s refusal to pay Plaintiffs claim. Defendant at all times had knowledge that no valid reason existed to [not] pay and/or to determine whether there existed a legitimate or arguable reason to refuse to pay Plaintiffs claim.”

Considering only the allegations of the complaint, the trial court dismissed the bad faith claim. The trial court held that the bad faith claim was a “negligence based” claim that accrued when the wind damaged the Joneses’ property on October 4, 1995, regardless of whether the Joneses could reasonably have discovered the bad faith on that date. Thus, the trial court held that the two-year statute of limitations for negligence claims, § 6 — 2—38(l) Ala.Code 1975, barred the bad faith claim and required a Rule 12(b)(6) dismissal.

“[A] Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Nance v. Mattheius, 622 So.2d 297, 299 (Ala.1993) (citations omitted). “Next, the standard for granting a motion to dismiss based upon the expiration of the statute of limitations is whether the existence of the affirmative defense appears clearly on the face of the pleading.” Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala.1981) (citations omitted).

Bad faith is an intentional tort, Shelter Mutual Insurance Co. v. Barton, 822 So.2d 1149, 1154 (Ala.2001), and a species of fraud. Dumas v. Southern Guaranty Ins. Co., 408 So.2d 86, 89 (Ala.1981).

“The cause of action for bad faith refusal to honor insurance benefits accrues upon the event of the bad faith refusal, or upon the knowledge of facts which would reasonably lead the insured to a discovery of the bad faith refusal. The accrual of the tort of bad faith is a question of fact to be determined by the circumstances of each case.”

Safeco Ins. Co. of America v. Sims, 435 So.2d 1219, 1222 (Ala.1983) (citation omitted). “The statute of limitations for bad faith claims arising on or after January 9, 1985, is two years.” ALFA Mut. Ins. Co. v. Smith, 540 So.2d 691, 692 (Ala.1988) (citations omitted).

In the present case, the face of the Joneses’ complaint does not show that the period of the statute of limitations applicable to their bad faith claim had expired before they filed suit. The date when the bad faith claim accrued cannot be determined from the allegations of the complaint because it alleges neither facts establishing a date when Alfa denied any part of the Joneses’ claim nor facts establishing a date when the Joneses possessed “knowledge of facts which would reasonably [have led the Joneses] to a discovery of the bad faith refusal.” Safeco Ins., 435 So.2d at 1222. To the contrary, the complaint alleges that the Joneses “were repeatedly assured by their local ALFA insurance agent, Wendell Sanders, not to worry and that their claim would eventually be paid.” Therefore, we reverse the Rule 12(b)(6) dismissal of the Joneses’ claim for bad faith and remand this case for further proceedings on this claim consistent with this opinion.

Summary Judgment on Breach-of-Contract Claim

“We review a summary judgment de novo.” Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted).

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ A court considering k motion for summary judgment will view the record in the light most favorable to the nonmoving party; will accord the nonmoving party all reasonable favorable inferences from the evidence; and will resolve all reasonable doubts against the moving party.”

Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).

“ ‘[W]hen the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to show “substantial evidence” in support of his position.’ Substantial evidence is defined as ‘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.’ ”

Boackle v. Bedwell Constr. Co., 770 So.2d 1076, 1079 (Ala.2000) (citations omitted). We will state the facts in accordance with these principles.

Sanders had inspected the Joneses’ property in the summer of 1995, two to four months before Hurricane Opal, as part of a re-write application to increase the coverage on the Joneses’ property. On that occasion, Sanders had not seen any sheetrock damage or brick damage.

The policy insured the Joneses’ house, garage, personal property, and barn for wind damage. However, the policy excluded loss resulting from “earth movement” and “settling ... of foundation, walls, floors, roofs, or ceilings.” The policy covered debris removal. In the insurance claim the Joneses submitted to Alfa, they claimed that wind had: (1) damaged the roof of their house; (2) cracked sheetrock inside their house (“sheetrock damage”); (3) cracked and displaced bricks in the veneer of the garage (“brick damage”); (4) damaged their barn; and (5) created debris that had to be removed.

Bradshaw, on behalf of Alfa, inspected the damaged property on October 26,1995. Bradshaw agreed that wind had damaged the barn and the roof of the Joneses’ house. However, he wanted an engineer to determine whether wind had caused the sheetrock damage and brick damage. For that purpose, he brought Engineer Jones to the Joneses’ property on November 13, 1995. Engineer Jones opined that settlement of the foundation of the house rather than wind had caused the sheetrock damage and brick damage.

Bradshaw estimated the cost of replacing the roof at $3,280 and the cost to repair the damage to the barn at less than the $500 deductible. On December 29, 1995, Bradshaw mailed to the Joneses’ lawyer a draft in the amount of $3,280 as payment for the roof damage. The letter stated:

“Enclosed is an estimate for the replacement of the insured’s shingle roof and a draft representing payment less the deductible for that roof.
“I also understand that you are in possession of a copy of the engineer’s report which indicates the shifting and settlement of the insured house was not related to the hurricane winds. Should you have any questions concerning that report or any aspect of the insured’s claim or policy please feel free to give me a call. Also if there is any other damage that the insured has found as a result of the hurricane that we have not already addressed please have him to submit itemized estimates for those to be considered. I thank you for your help and cooperation and look forward to hearing from you.”

In March of 1996, the Joneses delivered to Sanders at the Alfa office a bill in the amount of $3,627.11 from roofer Floyd Jerkins for replacement of the roof of the Joneses’ house. Alfa took no action in response to the delivery of the Jerkins bill. About December 1996, the Joneses delivered to Sanders an estimate of $4,320 by contractor Howard Lee for repair of the barn. On January 20, 1997, Bradshaw prepared a new estimate of the cost to repair the barn. He reduced the Howard Lee estimate from $4,320 to $850, subtracted the $500 deductible, and allowed an amount due of $350. Bradshaw then sent the Joneses a $350 draft, but without any apparent explanation of what aspect of the Joneses’ claim the draft was to pay. Bradshaw did not inform the Joneses that Alfa would not pay any further amounts on their claim. Thereafter, an Alfa representative telephoned the Joneses to inquire whether they were satisfied with the way Alfa had handled their claim. The Joneses complained to this representative that they were very dissatisfied because they could not repair their severely damaged house. As a result of this telephone conversation, Hilton Godwin, an Alfa claims manager, telephoned the Joneses. However, when Harold Jones told Godwin that the Joneses were represented by a lawyer, Godwin told Harold Jones that Godwin could not discuss the Joneses’ claim.

The Joneses submitted the deposition of their expert witness, David Carlysle (“Car-lysle”), a registered engineer and licensed home inspector, in opposition to the summary-judgment motion. Alfa, contending that Carlysle lacked sufficient training or experience to express his opinions and that Carlysle had based his opinions on hearsay, moved to strike Carlysle’s deposition and report. While the trial court noted that Carlysle had relied on hearsay for some of his opinions, it held that Carlysle’s training and experience as an engineer were sufficient for him to testify as an expert. Carlysle based his opinions regarding the cause of the brick damage entirely on his expertise and his own observations of the damage to the brick and the foundation of the house and garage. He opined that wind had caused the brick damage and that no evidence supported Engineer Jones’s opinion that settlement of the foundation had caused the brick damage.

Because the period of the statute of limitations for a contract action is six years, § 6-2-84(9), Ala.Code 1975, no statute-of-limitations defense is at issue. “To establish a breach-of-contract claim, a plaintiff must show ‘ “(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.” ’ ” Ex parte Coleman, 861 So.2d 1080, 1085 (Ala.2003) (citation omitted).

Alfa moved for summary judgment on the breach-of-contract claim only on the grounds that the Joneses could not establish that they had submitted to Alfa any substantiation of any covered but unpaid wind damage or that Alfa had not performed the contract. Alfa relied on the evidence that it had paid $3,280 for the roof damage; that it had paid $350 for the barn damage, and'that, according to Engineer Jones, a peril' not covered by the policy had caused the sheetrock damage and brick damage.

However, the Jerkins bill for replacement of the roof of the Joneses’ house constitutes substantial evidence that Alfa owed the Joneses an additional $347.11 ($3,627.11 minus the $3,280.00 Alfa paid equals $347.11) for the damage to the roof. The Lee estimate for repairing the barn constitutes substantial evidence that Alfa owed the Joneses an additional $3,470 ($4,320 minus the $500 deductible and the $350 Alfa paid equals $3,470) for the damage to the barn. Sanders’s testimony that he had not seen any sheetrock damage or brick damage when he inspected the Joneses’ property in the summer of 1995 before Hurricane Opal constitutes substantial evidence that a sudden occurrence such as wind caused the damage rather than a long-term occurrence such as the settling of the foundation. Carlysle’s opinion testimony likewise constitutes substantial evidence that a covered peril caused the brick damage. Finally, the Joneses presented evidence that wind caused debris that they had to remove, and Alfa presented no policy defense to the Joneses’ claim for debris removal. All of this evidence creates genuine issues of material fact whether the Joneses had not performed the contract in submitting their claim and whether Alfa had performed the contract by paying the claim in part. Thus, this evidence precludes summary judgment on the Joneses’ breach-of-contract claim. Therefore, we reverse the summary judgment for Alfa on the Joneses’ breach-of-contract claim and remand this case for further proceedings on this claim consistent with this opinion.

Conclusion

The Joneses’ claims for negligent or wanton inspection, suppression, misrepresentation, and conspiracy were subject to summary judgment. One or more essential elements of each of those claims lacked supporting substantial evidence, and the defendants’ motions for summary judgment aptly challenged these evidentiary failures. See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999); Rector v. Better Houses, Inc., 820 So.2d 75 (Ala.2001); Kennedy v. Western Sizzlin Corp., 857 So.2d 71, 78 (Ala.2003). Thus, the summary judgments on those claims are due to be affirmed, even though our reason for affirming differs from the rationale of the trial court in granting. See Smith v. Equifax Servs., 537 So.2d 463 (Ala.1988). Accordingly, we affirm the summary judgment for Alfa on those claims and affirm the summary judgments for Bradshaw, Engineer Jones, and Jones Associates on the claim for negligent or wanton inspection, the only claim alleged against them. For the reasons discussed above, we reverse the Rule 12(b)(6) dismissal of the claim against Alfa for bad faith and the summary judgment for Alfa on the claim for breach of contract and remand the case for further proceedings on these claims consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.


author: PITTMAN, Judge.

text:
    Sharon Hilyer PERKINS v. Timothy Wayne PERKINS.
    2020650.
    Court of Civil Appeals of Alabama.
    Sept. 19, 2003.

      Debra H. Jones, Anniston, for appellant.
    George A. Monk of Brooks, Harmon & Monk, LLC, Anniston, for appellee.
   PITTMAN, Judge.

This is an appeal from an order setting aside a default judgment of divorce. Sharon Hilyer Perkins (“the wife”) filed a complaint seeking a divorce from Timothy Wayne Perkins (“the husband”) on January 17, 2003. Service of process was perfected upon the husband on January 24, 2003, but the husband failed to file an answer to the wife’s complaint within 30 days. On February 28, 2003, the wife filed an application requesting the entry of a default judgment against the husband for failure to respond to the wife’s divorce complaint. The husband filed his answer and counterclaim for a divorce on March 7, 2003.

On March 11, 2003, the trial court issued a default judgment of divorce awarding the wife all of the relief requested in her complaint for divorce and reserving the issue of alimony. According to the case action summary sheet, that judgment was entered and mailed to the parties on March 12, 2003. Two days later, on its own motion, the trial court entered an order setting aside the divorce judgment, stating that the judgment “was entered in error by the court, in that the court mistakenly understood this matter was settled by ‘Agreement,’ as opposed to a default judgment.” On the same day, in a different order, the trial judge recused himself from future proceedings and requested the appointment of another judge to avoid the appearance of impropriety.

The wife appeals and asserts that the trial court could not set aside the default judgment without first utilizing the test set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). Before we may address the contentions of the wife, we must first determine whether the order from which the appeal has been taken is a final judgment. An appeal ordinarily lies only from a final judgment. See § 12-22-2, Ala. Code 1975; Bean v. Craig, 557 So.2d 1249 (Ala.1990). “ ‘A final judgment is one that completely adjudicates all matters in controversy between the parties.’ ” Reid v. Reid, 844 So.2d 1212, 1214 (Ala.Civ.App. 2002) (quoting Wilson v. Glasheen, 801 So.2d 848, 849 (Ala.Civ.App.2001)).

The record indicates that as soon as the initial trial judge recused himself, his successor set a new date for a hearing on the parties’ claims. The order setting aside the default judgment merely returned the parties to the legal position they were in before the default judgment was entered; at that time, the husband and the wife had each filed pleadings and a hearing on the matter was forthcoming. The procedural posture of this case is analogous to attempted appeals from orders granting relief from judgments pursuant to Rule 60(b), Ala. R. Civ. P. The law is clear that a trial court’s order granting a Rule 60(b) motion “is considered interlocutory because further proceedings are contemplated by the trial court; therefore such an order is not appealable.” Tompkins v. Baker, 745 So.2d 283, 284 (Ala.Civ. App.1999) (citing Chrysler Fin. Corp. v. Thomas, 726 So.2d 731 (Ala.Civ.App.1999)).

We conclude that the trial court’s order setting aside the default judgment is not a final, appealable judgment and that that order will not support an appeal. Therefore, this appeal is due to be dismissed.

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.

      . The husband filed a motion to set aside the default judgment on March 17, 2003; the trial court, having previously set aside the default judgment, did not act on that motion.

      . It is important to note that a refusal to enter a default judgment is a discretionary matter. “No analysis akin to that in Kirtland has been established for refusals to enter a default judgment.” City of Gulf Shores v. Harbert Int’l, 608 So.2d 348, 358 n. 4 (Ala. 1992).


author: CRAWLEY, Judge.

text:
    HENRY L. CLOTHIER, JR. v. COUNSELING, INC.
    2020721.
    Court of Civil Appeals of Alabama.
    Sept. 19, 2003.
    Gary R. New of Robertson, Brunson & New, Eufaula, for appellant.
    Kenneth L. Funderburk of Funderburk, Day & Lane, Phenix City, for appellee.
   CRAWLEY, Judge.

Henry L. Clothier, Jr., appeals from a dismissal on res judicata grounds of his complaint against Counseling, Inc. We affirm.

On July 22, 2002, Clothier sued Counseling, Inc., alleging breach of contract, conversion, fraud, and unjust enrichment. Counseling, Inc., moved to dismiss the complaint because, it alleged, the complaint failed to state a claim and was barred by the applicable statutory limitations period. The trial court issued an order dismissing Clothier’s complaint on September 18, 2002; that order, which was filed in the circuit clerk’s office on September 19, 2002, did not specify that the dismissal was “without prejudice.” Clothier filed no postjudgment motion and no appeal from the dismissal of his complaint.

On October 3, 2002, Clothier filed another complaint, alleging the same claims he had alleged in his original complaint against Counseling, Inc. On November 12, 2002, Counseling, Inc., moved to dismiss the complaint on res judicata grounds. The trial court dismissed the second complaint, based on the doctrine of res judica-ta, on December 2, 2002. Clothier appeals. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The elements of res judicata are:

“ ‘(1) a prior judgment on the merits; (2) rendered by a court of competent jurisdiction; (3) substantially the same parties involved in the prior case are involved in the current case; and (4) the same cause of action [is] presented in both suits.’
“Ex parte Jefferson County, 656 So.2d 382, 384-85 (Ala.l995)(citing Smith v. Scott Paper Co., 620 So.2d 976 (Ala.1993)).”

Sprinkle ex rel. Philyaw v. Edwards, 848 So.2d 217, 218 (Ala.2002). There is no dispute as to whether the second, third, and fourth elements of res judicata are present in this case. Clothier’s argument is addressed to the first element of res judicata. He maintains that the dismissal of his first complaint on statute-of-limitations grounds was not an adjudication “on the merits.” For this proposition, he cites Sims v. Geohagan, 641 So.2d 1237 (Ala.1994). Sims, however, is not authority for his argument.

In Sims, the plaintiff sued a Florala police officer in a federal court, seeking damages pursuant to 42 U.S.C. § 1983 for an alleged violation of his civil rights. The federal court dismissed the plaintiffs action because the statutory limitations period for a § 1983 action had expired. The plaintiff then sued the same officer in an Alabama circuit court, alleging false imprisonment, which has a six-year statute of limitations. See § 6-2-34, Ala.Code 1975. The police officer moved to dismiss the plaintiffs false-imprisonment action; the trial court granted that motion, concluding that the federal court’s dismissal of the plaintiffs § 1983 claim barred the false-imprisonment claim under the doctrine of res judicata.

Sims, like the recent United States Supreme Court decision in Semtek International, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001), and the recent Alabama Supreme Court decision in Sprinkle ex rel. Philyaw v. Edwards, supra, concerns the res judi-cata effect of a prior federal court judgment in subsequent state court litigation. That is not the situation in the present case. Here, the trial court was presented with a complaint that was virtually identical to a complaint previously dismissed two weeks earlier by the same court on statute-of-limitations grounds.

The trial court’s dismissal of Clothier’s first complaint was a final judgment that operated as an adjudication on the merits. Rule 41(b), Ala. R. Civ. P., states:

“(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”

(Emphasis added.) “[T]he effect of the ‘adjudication upon the merits’ default provision of Rule 41(b)[, Fed.R.Civ.P.,] ... is simply that, unlike a dismissal ‘without prejudice,’ the dismissal in the present case barred refiling of the same claim in the [same court].” Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. at 506, 121 S.Ct. 1021. See also Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 228, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995)(holding that a dismissal on statute-of-limitations grounds is a judgment on the merits).

The judgment of the circuit court is affirmed.

AFFIRMED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

      . "|T]he only statute of limitations now applicable to a § 1983 claim filed in a court in Alabama, whether that court is a state court or a federal court, is the two-year statute of limitations set out in Ala.Code 1975, § 6-2-38(Z)." Morrow v. Town of Littleville, 576 So.2d 210, 213 (Ala.1991). See Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Jones v. Preuit & Mauldin, 876 F.2d 1480 (11th Cir.1989); and Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985).
      Section 6-2-38(1) provides a two-year limitations period for: "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section.”

      . Rule 41(b), Ala. R. Civ. P., is identical to Rule 41(b), Fed.R.Civ.P. "Federal authorities are persuasive when interpreting the Alabama Rules of Civil Procedure." Rowan v. First Bank of Boat, 476 So.2d 44, 46 (Ala.1985).