author: SMITH, Presiding Justice,

text:
    Douglas CROKE d/b/a Airbase Mobile Home Park v. SOUTHGATE SEWER DISTRICT.
    No. 2002-CA-00046-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2003.

      Victor Israel Fleitas, Tupelo, David C. Owen, Columbus, attorneys for appellant.
    H.J. Davidson, Columbus, attorney for appellee.
   SMITH, Presiding Justice,

for the Court.

¶ 1. In this property case, concerning sewer system connections, we review the chancellor’s grant of summary judgment in favor of Southgate Sewer District (SSD) against Douglas Croke d/b/a Airbase Mobile Home Park (Croke). We find that the trial court did not err in granting SSD’s motion for summary judgment without an oral hearing. We also find that the trial court did not err in granting summary judgment and that the trial court did not err in awarding damages to SSD. On cross-appeal, we find that the trial court did not err in refusing to enforce the judgment of the court. We affirm the trial court’s judgment.

FACTS

¶ 2. These and other parties were before this Court in previous litigation in which this Court upheld the constitutionality of House Bill 1577, 1991 Miss. Local & Priv. Laws ch. 838, which created the SSD, and the constitutionality of certain ordinances passed by the Lowndes County Board of Supervisors. Croke v. Lowndes County Bd. of Supervisors, 733 So.2d 837 (Miss.1999). The following is an excerpt of background facts from the earlier case:

During the 1991 Legislative Session, the Mississippi Legislature passed House Bill 1577, 1991 Miss. Local & Priv. Laws Ch. 838, creating the Southgate Sewer District, a single purpose sewer district. That bill also granted all of the necessary powers for the operation of the district. In March of 1994, the South-gate Sewer District passed an ordinance requiring mandatory hook-up of all owners of land upon which a residence or business was located within 100 feet of the property line. The ordinance also provided that failure to do so would be a misdemeanor. In April of 1994, the ordinance was adopted as an ordinance of Lowndes County by the Lowndes County Board of Supervisors. Because of difficulties or discrepancies in the ordinance that thereafter came to light, an amended sewer ordinance was passed and adopted by the district on December 8, 1995. This amended ordinance contains the following provisions: Article I: defines various terms used in the body of the ordinance. Article II: requires that the public sewers be used. Specifically, Section III prohibits constructing or maintaining a private system for the “disposal of sewage” in place of using the public sewers. Section IV makes it mandatory for the owner of all structures occupied by humans at any time to construct toilet facilities herein and to connect to the sewer system within 90 days after official notice, provided that the sewer system is within 100 feet of the subject property line. Article III: provides for private disposal where access is not available to the sewer system; requires a permit from Southgate; requires inspection by Southgate; requires connection to the public sewer system if access is available in the future. Article IV: addresses building sewers and connections. Article V: addresses limitations on the use of the public sewers. Article VI: prohibits malicious, willful, or negligent damage to the sewer works by unauthorized persons. Article VII: outline the powers and authorities of inspectors. Article VIII: provides misdemeanor penalties for violation of the provisions of the ordinance, up to one hundred dollars ($100) per day. Article IX: repeals any prior ordinances and provides that the invalidity of any section, clause, sentence or provision of the ordinance shall not affect the validity of any other parts of the ordinance that can be given effect without the invalid parts.
On December 8, 1996, the Board of Supervisors enacted an “Amended Sewer Use Ordinance of the Board of Supervisors” preceded by the following language:
AN ORDINANCE ESTABLISHING A GRAY-WATER COLLECTION SYSTEM AND REGULATING THE USE OF PUBLIC AND PRIVATE SEWERS AND DRAINS, PRIVATE SEPTIC DISPOSAL, THE INSTALLATION AND CONNECTION OF BUILDING SEWERS, AND THE DISCHARGE OF GRAY WATER INTO THE PUBLIC SEWER SYSTEM^): AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF: FOR THE SOUTH GATE SEWER DISTRICT IN LOWNDES COUNTY MISSISSIPPI.
Be it ordained and enacted by the President and Board of Supervisors of Lowndes County, Mississippi, that a “Gray-Water” Collection System shall be established....

Croke, 733 So.2d at 838-39.

¶ 3. Following the first litigation, Croke refused to grant an easement to SSD without being compensated for it. This easement would have allowed SSD to enter Croke’s property without trespassing in order to connect Croke’s property to the main collection system that had been constructed bordering Croke’s land. SSD later utilized an ordinance adopted by the County’s Board of Supervisors which, in effect, stated that since Croke would not grant the easement needed on his property during the time SSD was willing to install the system at no charge, Croke had the legal duty to connect to the collection system and incur the cost. Croke still did not connect to the sewer system.

¶ 4. On May 14, 1999, SSD sued Croke in the Chancery Court of Lowndes County seeking (1) a mandatory injunction ordering Croke to connect to its sewer system and (2) damages. On October 13, 1999, the SSD filed an Amended Complaint. Croke filed his Answer to Amended Complaint, including counterclaim, requesting the court to award him a reasonable amount in just compensation for the taking of his property to be used in connecting him to the sewer system, on November 17, 1999. On December 7, 1999, SSD filed its Answer to Counterclaim.

¶ 5. On June 30, 2000, SSD filed its Motion for Summary Judgment. Croke responded on September 19, 2000, seeking to strike certain affidavits submitted by SSD and have SSD’s claim against him dismissed or transferred to a special court of eminent domain. On October 10, 2000, SSD filed a Supplement to the Motion for Summary Judgment. The trial court granted summary judgment in favor of SSD on November 2, 2000, and denied all other requested relief.

¶ 6. The trial court held a one-day hearing on the issue of damages on April 16, 2001. The trial court then issued an opinion assessing damages in the amount of $45,141.20 against Croke on September 26, 2001. Judgment was entered on October 3, 2001. On December 6, 2001, the chancellor filed an Order Granting Remittitur and Denying Other Relief. A revised judgment, reducing the damages awarded to SSD to $27,084.72 was filed on January 4, 2002. From that judgment, Croke filed the appeal now before this Court, with a cross-appeal by SSD.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN GRANTING SSD’S MOTION FOR SUMMARY JUDGMENT WITHOUT ALLOWING AN ORAL HEARING.

¶ 7. For a summary judgment motion to be granted, there must exist no genuine issue of material fact, and the moving party must be entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). The standard of review of a trial court’s grant of a motion for summary judgment is de novo. Hancock v. Mid Am. Servs. Inc., 836 So.2d 762, 764 (Miss.2003) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988)). The burden of demonstrating that there is no genuine issue of material fact falls upon the party requesting the summary judgment. This Court will reverse if any triable issue of material fact exists; if not, we will affirm. Id.

¶ 8. SSD filed its motion for summary judgment on June 30, 2000. Croke filed his response to SSD’s motion for summary judgment on September 19, 2000. Four months after the initial motion, the trial court entered summary judgment on November 2, 2000. In a footnote, the chancellor explained the reason for not holding an oral hearing: “[SSD] requested oral argument on its Summary Judgment Motion. The Court hereby denies that request as unnecessarily repetitious, as the issues were thoroughly briefed by the parties.” Croke asserts that the trial court deprived him of a valuable right afforded under Rule 56(c) of the Mississippi Rules of Civil Procedure by granting SSD’s motion for summary judgment without conducting an oral hearing.

¶ 9. Summary judgment may be entered “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

¶ 10. Croke argues that the trial court’s failure to grant an oral hearing was “a procedural error which affected Appellant’s substantial rights as a litigant.” He submits that Rule 56(c) itself clearly contemplates that the trial court will conduct a hearing prior to entering a summary judgment. Rule 56(c) of the Mississippi Rules of Civil Procedure states in pertinent part the following:

(c) Motions and Proceedings Thereon. The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Miss. R. Civ. P. 56(c). This Court has recognized that there is not an explicit or implicit right to a hearing under Rule 56(c), but that there appears to be in other rules. See Adams v. Cinemark USA, Inc., 831 So.2d 1156 (Miss.2002). Rule 78 of the Mississippi Rules of Civil Procedure provides:

Each court shall establish procedures for prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of; but the judge at any time or place and on such notice, if any, as he considers reasonable may make orders for the advancement, conduct, and hearing of such actions.
To expedite business, the court may make provision by rule or order for the submission and determination of motions not seeking final judgment without oral hearing upon brief written statements of reasons in support and opposition.

In Adams, we found that, due to the finality of summary judgments, the trial court committed error by failing to grant a hearing upon a motion for summary judgment. However, finding no unresolved issues of material fact, we concluded that the error was harmless. Adams, 831 So.2d at 1163-64. This ease differs from Adams in that the summary judgment granted here was not final. Several days later, SSD filed a motion for a damages hearing and Croke filed a motion for reconsideration of the summary judgment. Subsequently, the court held a hearing on damages and then issued a final order on October 3, 2001. The court refused to reconsider the summary judgment granted.

¶ 11. In Adams, we also discussed the federal courts’ definition of “hearing,” which “within the meaning of Rule 56 has been held to refer to the final submission of summary judgment motion papers, rather than implying a requirement that a full-fledged hearing with receipt of oral evidence take place with every motion.” Adams, 831 So.2d at 1164-65 (citing 11 James Wm. Moore’s Federal Practice 56.15[l][a] at 56-200.1 (3d ed.2002)). Thus, the pleadings and other papers submitted to the court in consideration of the motion could be sufficient to satisfy the Rule 56 hearing requirement in federal court. Furthermore, federal courts have ruled that the decision to grant a summary judgment hearing lies with the trial judge:

Courts generally recognize the advisability of allowing oral argument on summary judgment motions, but even the Fifth Circuit now agrees that the court has the power to order summary judgment without a hearing if it feels that sufficient information is available in the pleadings and the papers in support of and opposition to the motion so that a hearing would be of no utility.” 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2720.1, at 357 (3d ed.1998) (footnotes omitted).

Adams, 831 So.2d at 1164-65.

¶ 12. Given our holding in Adams, we find no reversible error here by the chancellor in granting summary judgment without an oral hearing when the issues have been thoroughly presented in the briefs.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SSD’S MOTION FOR SUMMARY JUDGMENT.

¶ 13. The law governing summary judgment has been adequately stated by this Court in prior opinions. The burden of demonstrating there is no genuine issue of material fact falls upon the movant. The court must carefully review all eviden-tiary matters before it; admissions in pleadings, answers to interrogatories, depositions, affidavits, etc., in the light most favorable to the party against whom the motion for summary judgment is made. Hancock, 836 So.2d at 764.

¶ 14. When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleadings, his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Id. A fact is “material” if it tends to resolve any of the issues properly raised by the parties in an outcome determinative sense. Wallace v. Town of Raleigh, 815 So.2d 1203, 1208 (Miss.2002); Armistead v. Minor, 815 So.2d 1189, 1192 (Miss.2002); Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001); Robinson v. Cobb, 763 So.2d 883, 886 (Miss.2000); Powell v. City of Pascagoula, 752 So.2d 999, 1003 (Miss.1999); Prescott v. Leaf River Prods., Inc., 740 So.2d 301, 309 (Miss.1999).

¶ 15. Croke argues that the trial court erred in granting summary judgment because genuine issues of material fact exist. Croke asserts the contention that genuine issues of material fact arise because:

1. The trial court overlooked the issue that forcing Croke to connect to the sewer system was a taking of property without just compensation,
2. The trial court overlooked the fact that Croke’s equal protection rights were violated when he is being forced to pay to install the needed hardware to connect to the sewer system when others were not,
3. The trial court overlooked Croke’s defense of unclean hands to the injunction and money damages, and
4. The trial court overlooked the fact that SSD violated the Real Property Acquisition Policies law.

¶ 16. Croke contends that if the trial court had taken all this into consideration then it would not have been so quick to grant summary judgment.

¶ 17. Croke has only revived the same facts that had been argued in Croke v. Lowndes County Bd. of Sup’rs, 733 So.2d 837 (Miss.1999), putting a different twist on them.

¶ 18. The first fact that Croke argues is a material issue, that being forced to connect to the sewer system is a taking without just compensation, was resolved in Lepre v. D’Iberville Water & Sewer Dist., 376 So.2d 191 (Miss.1979), a case concerning a water system rather than a sewer system. In Lepre, we held,

The goals to be achieved by enactments such as the statutes and ordinance involved, which compel property owners to connect, are to protect the health of persons residing within congested areas and in order to assure the payment of bonds issued for such purposes. These are legitimate goals, worthy to be protected by and promoted under the police power of a state or any of its duly authorized or legislatively enacted subdivisions.

376 So.2d at 193. Likewise, the Virginia Supreme Court in Commonwealth ex rel. State Water Control Bd. v. County Utilities Corp., 223 Va. 534, 290 S.E.2d 867 (1982), offered the most common reason that citizens who have been forced to abandon their own private facilities to attach to public facilities cannot claim an unlawful appropriation: “All citizens hold property subject to the proper exercise of the police power for the common good.... Even where such an exercise results in substantial diminution of property values, an owner has no right to compensation therefor.” Id. at 872. See also Kingmill Valley Pub. Serv. Dist. v. Riverview Estates Mobile Home Park,. Inc., 182 W.Va. 116, 119, 386 S.E.2d 483, 486 (1989).

¶ 19. The laws requiring Croke to connect to the sewer system in this case were declared constitutional in Croke v. Lowndes County Bd. of Sup’rs, 733 So.2d 837 (Miss.1999). Forcing Croke to connect to the system does not constitute a taking. SSD has already stressed that it in no way cares to even step foot onto Croke’s land. SSD has further stated that it does not care how Croke connects to the sewer system that runs along his property line, so long as Croke complies with the law and connects.

¶ 20. Second, Croke contends that his equal protection rights will be violated if he is forced to pay the installation costs of the connection because other citizens were not forced to pay. We disagree. From the inception of the plan until August 25, 1995, Croke could have benefitted from SSD connecting his property without cost. Croke misunderstands that SSD never needed an easement to connect him to the system, rather it needed an easement to come onto his land in order to provide him with a free service, a gift of cost-free connection. Croke was notified that after a certain period of time, he would be responsible for the connection costs because the unused money, the money not used to connect a resident allotted by the State for the project, would be returned to the State.

¶21. A similar situation existed in State, Northern Tp. v. Waughtral, 1993 WL 328750 (Minn.Ct.App.1993). In that case, an ordinance made it unlawful to “construct or maintain” a private well for human consumption in certain areas. The ordinance also required people in certain areas to hook up to the township water system and to use that system for all of their human consumption of water. Initially, to encourage people to connect to the system, all work was done free of charge. The township later required any property owner who did not connect at the initial time of installation to pay the entire cost of connection to the system. The Court of Appeals in Minnesota affirmed the trial court’s decision that this action was valid. Here, Croke was treated no differently than any other person who refused to allow SSD to connect him for free. Those people, too, would now have to pay to be connected.

¶ 22. Croke’s third contention is that the trial court overlooked Croke’s defense of unclean hands to the injunction and money damages. Croke asserts that SSD fraudulently secured funding for this project by representing to the State that it had acquired all easements to complete the sewer project according to the plans and specifications. This argument revolves around the two issues decided above. Never were any easements required to complete the project. The only use of easements to secure monies from the government was to secure money to provide connection for those people who would grant an easement to SSD. For those easements that might have been represented to the State as secured, though not secured, the money afforded for them was returned. This explains why SSD will no longer provide cost-free connection to Croke.

¶23. Finally, Croke’s last argument to support his position that genuine issues of material fact are present is that the trial court overlooked SSD’s violation of the Real Property Acquisition Policies law, Miss.Code Ann. §§ 43-37-1 to 43-37-13. This argument is without merit because no property was actually acquired from Croke for the project.

¶ 24. We find that there were no genuine issues of material fact. House Bill 1577, creating the sewer project, and the ordinance passed by the Board of Supervisors of Lowndes County which requires by law connection to the sewer system were both found valid by this Court. The trial court’s grant of summary judgment for SSD was a correct finding. Croke should connect to the system.

III. WHETHER THE TRIAL COURT ERRED IN AWARDING ANY DAMAGES TO SSD.

¶ 25. Croke asserts the same arguments listed in Issue II above to support his claim that damages were incorrect in this case. Croke argues that the damages are wrong because this amounted to a de facto taking of his land and that he should be given compensation for such. Croke further contends that all damages that might have accrued are the fault of SSD, because they were caused by securing funds to develop the project with “unclean hands.” This argument is without merit. These contentions have been dealt with in the discussion above and case law further supports the principle that Croke is required to pay back payments for the use the sewer system regardless of whether he actually used the system. In Lepre, the defendant claimed no liability for the monthly minimum service charges made against him, which totaled $181.23 because he had not even connected to the water system. 376 So.2d at 191. This Court found that the defendant had benefitted by the installation of the water system, as did all the other residents of D’Iberville. As we stated then,

It would now be a gross inequity to allow the District to face financial disaster, because of the failure of some of the people to abide by an ordinance that was intended to be and was passed for the benefit of all the residents of the District. The beneñt was not limited to just those persons who connected onto the system, and the charge for paying for the system should not be so limited. Every owner of property in D’Iber-ville was interested in and affected by the establishment of a good water and sewer system for sanitary purposes throughout the community, and a distinct benefit accrued to every property owner. The service rendered to the Defendant in this case was the construction and availability of the water system. Such a service made the Defendant impliedly indebted, either through himself or his property.

Id. at 194 (emphasis added).

¶ 26. Furthermore, whether directly or indirectly, Croke has received the health and safety benefits of this project. The damages awarded represent what Croke would have paid had he followed the ordinance in the first place. This Court affirms the trial court’s award of damages to SSD.

¶27. SSD asserts the following single issue on cross-appeal:

I. WHETHER THE TRIAL COURT ERRED IN NOT ENFORCING THE JUDGMENT OF THE COURT ORDERING THE DEFENDANT TO COMPLY WITH THE LAW AND HOOK-UP TO THE SYSTEM AS A FINAL ORDER OF THE COURT FOR WHICH NO INTERLOCUTORY APPEAL HAS BEEN TAKEN.

¶ 28. SSD argues that Croke failed to correctly appeal the chancellor’s judgment on November 2, 2000, and is now barred from raising the issue on appeal. As stated earlier in this opinion, that order for summary judgment was only a partial order for summary judgment. The final order in this case was not filed until January 2, 2002. This Court finds Croke’s appeal was timely filed, and SSD’s contention is without merit. The trial court did not err, and the judgment is affirmed.

CONCLUSION

¶ 29. We affirm the decision of the trial court that summary judgment was appropriate, that Croke should connect to the sewer system immediately, and that all damages already assessed should be paid, including any use payments since November 2, 2000. Thus, we affirm the trial court’s judgment.

¶ 30. AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL.

PITTMAN, C.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

      . The original amount of damages awarded to SSD was $45,141.20. This amount represented what SSD would have been owed for March 1999 through April 2001 based on the actual number and types of units rented by Croke during that time period. The original damage amount was remitted by forty percent to $27,084.72 because forty percent of the fees collected by SSD were allocated to maintenance and service.


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Milton A. BENEFIELD and Wife, Claylene Benefield, Appellants, v. J. Laque SWORDS and Wife, Joan Swords, Earnest W. Robbins and Wife, Jamie E. Robbins and Alan Gowdy, Appellees.
    No. 2002-CA-01004-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.
    Joe M. Davis, New Albany, attorney for appellant.
    Omar D. Craig, Oxford, attorney for ap-pellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Milton and Claylene Benefield sought to quiet title to small strips of land along the southern boundary of their property. They also sought damages from a person hired by an adjacent landowner to clear these lands. The lower court confirmed title based on the legal descriptions in the Benefields’ deeds but dismissed all claims to the additional strips because of the absence of a usable legal description to the irregular-shaped tracts. We find error in that resolution.

¶ 2. Substantial evidence of adverse possession of additional acreage was introduced. The locations of those strips were shown on a survey that was introduced into evidence. A new survey could have been ordered if the chancellor determined that proof of adverse possession was sufficient and a more detailed survey was desirable. Instead, the chancellor could have confirmed title using a metes and bounds description instead of one using courses and distances from a new survey.

¶ 3. We reverse and remand for further proceedings.

STATEMENT OF FACTS

¶4. Milton and Claylene Benefield own two tracts of land in Union County that are in issue in this suit. They total fifty-eight acres. The disagreement with their neighbors concerns the precise location of the boundary line that divides these tracts from those owned by their neighbors on the south, J. Laque Swords and wife Joan, and Earnest W. Robbins and wife Jamie. A survey of the legal description of a twenty acre tract owned by the Benefields reveals that its southern boundary extends from west to east for aboutl300 feet, then encounters the approximate mid-point of the western boundary of their thirty-eight acre tract. The survey of the legal description of that second tract indicated that its western edge proceeds south from that point approximately 346 feet to its southwest corner. Then the southern boundary of the thirty-eight acres proceeds east from there for approximately 2640 feet. The Swords property is south of the twenty acre tract, while the Robbins property is south of the thirty-eight acre tract.

¶ 5. It is not important to detail the events that led to the present litigation. It is sufficient to say that the customary elements of bulldozers and uprooted trees were involved. The Benefields filed suit in chancery court to quiet title against both of their neighbors. Their complaint set out the legal descriptions of the tracts owned by all the parties. It alleged that the tracts were “easily distinguishable” by physical features, namely that the Bene-fields had planted hardwoods, the Swords lands were “idle,” and the Robbins property was planted in pines. The complaint sought money damages for hardwoods removed by the defendants. Besides the legal descriptions of the tracts, the complaint also alleged certain physical features as establishing the proper boundary lines: (1) between the Benefields and the Rob-binses was a drainage ditch; (2) between the Benefields and the Swordses as to one part of the land, the boundary was 160 inches from a ditch, with a food plot on the tract, and (3) between the latter owners as to another part of the property, an old field road.

¶ 6. The complaint claimed that the Benefields owned all this property based on possession that was legally adverse for over thirty-one years.

¶ 7. A survey revealed that the southern boundaries formed by the legal descriptions in the Benefield deeds did not match the actual boundaries of the food plot, field road, and ditch. The distance between the two sets of possible boundaries was relatively small, with one exception. The western edge of the Benefields’ thirty-eight tract was said to be formed by a field road that was ninety-one feet west of the boundary formed by a plotting of the legal description. This formed a ninety-one foot by 346 foot tract carved out of land to which the Swordses had record title.

¶8. At trial, significant evidence was introduced concerning the Benefields’ use of the property up to the claimed physical boundaries which intruded into the Swords and Robbins parcels.

¶ 9. After the trial, the chancellor noted that the Benefields were attempting to add lands to those described in their deeds. The court held that since the Benefields’ complaint did not contain a description of the lands claimed to have been adversely possessed, the claim failed. The Bene-fields are here seeking to have that decision reversed and the matter remanded to the chancellor. There is no allegation of error in the chancellor’s dismissal of the claim for damages against the individual who, by using a bulldozer, removed trees that the Benefields claim were owned by them. We therefore do not discuss the damage question.

DISCUSSION

¶ 10. The central issue in this appeal is one of pleadings. The Benefields specifically described their two tracts, using the legal descriptions in their deeds. They also indicated in other paragraphs certain physical markers of the boundaries such as roads and a “food plot.” The complaint alleges that the “actual boundary lines” dividing their property from that of their neighbors are these physical features. Then in paragraph 23 of the complaint, the Benefields allege that they have been in adverse possession “of all the land described in paragraphs 3 and 5” for the requisite number of years. Those two paragraphs contain the legal descriptions of the two tracts and do not refer to the tracts as potentially enlarged up to the physical features that the complaint also describes.

¶ 11. The chancellor bound the plaintiffs to paragraph 23 for the land covered by adverse possession. Since that particular paragraph only expressly incorporated the legal descriptions, the chancellor found no request for relief of title to any additional lands:

COURT: Now, then, that is all that this Court is being asked to rule on is what is described in this complaint. And that’s in paragraph three and paragraph five, and you have proven that.
COURT: All right. To claim by adverse possession you’ve got to — you’ve got to detail it in specificity as to what area you are claiming, so that the Court can rule as to who is ownership of that land.
BENEFIELD COUNSEL: Yes, sir. And we have by — we are using their surveys, we are willing to use the points that their survey—
COURT: — Where is me a description?
COUNSEL: The description is not going to be here until the Court determines where to mark the point.
COURT: No, sir, that’s not the way— that’s not the way you do these type cases.

¶ 12. The survey offered by the defendants showed the location of the alleged physical boundaries of field roads and food plots. There was no evidence from which a comprehensive courses and distances description of all three tracts could be made. That is to say, the survey- or did not mark specific distances, directions and angles for the food plot from any point of beginning, nor did he do so for the two field roads that were shown. The absence of such information is what troubled the chancellor and appeared to be the principal reason causing him to deny broader relief.

¶ 13. We examine this alleged defect from two perspectives. One is the absence of an explicit request to confirm title through adverse possession not just to the lands covered by the legal descriptions, but lands that might extend some slight distance from those boundaries to other physical boundaries. This is the issue created by the phrasing of paragraph 23 in the complaint.

¶ 14. There is no basis to block consideration of the issue because of the language in the complaint. Even if the Bene-fields had not alleged adverse possession at all, the receipt of the kind of evidence offered here and accepted without objection on the question of possession would constitute a trial by consent. Stewart v. Graber, 754 So.2d 1281, 1285 (Miss.Ct.App.1999), applying M.R.C.P. 15(b) (if trial by consent, no amendment needed). The fact that paragraph 23 asserted title by possession but perhaps could have described the land better does not alter the effect of consent. Had a defendant objected to any evidence of possession beyond that which affected the lands whose legal descriptions were incorporated by paragraph 23, then the issue would have been joined at trial. Likely the Benefields would have been allowed to amend their complaint at that time to remove any ambiguity. Some chancellors might not have found any weakness in the pleadings.

¶ 15. We find that the legal issue of whether the Benefields had possessed up to the boundaries shown by their evidence, even if that evidence did not conform to paragraph 23, was fully in the case at least because of consent. It therefore needed to be ruled upon.

¶ 16. The second perspective from which we examine this issue concerns the absence of a courses and distances description of the boundaries prepared by a surveyor. There are precedents in which after sufficient evidence was introduced of possession to various physical boundaries which had not yet been surveyed, a chancellor may order a survey at that time. See Nelson v. Bonner, 829 So.2d 700, 705 (Miss.Ct.App.2002); Cheatham v. Stokes, 760 So.2d 795, 798 (Miss.Ct.App.2000). A survey was in the parties’ best interest to avoid future controversies, but it was not required if there were other ways that the land could be definitively described by witnesses and the court.

¶ 17. An acceptable manner in which to describe boundaries of tracts of land is by metes and bounds. Jack H. Ewing, Mississippi Land Descriptions, 18 Miss. L.J. 381, 385-87 (1947) (descriptions by reference to natural or artificial boundaries). If the chancellor found that the Benefields had proved the full extent of their claimed possession, the land could have been described as all of the relevant governmental quarter-quarter sections north of the field road, or east of the other field road, or north of the food plot. That could have instead just have been a preliminary description, to be followed by a survey if the parties desired or if the chancellor ordered.

¶ 18. There was substantial evidence of possession, but the weight and credibility of evidence is for the fact-finder. We remand to the chancellor in order that findings of fact and conclusions of law may be entered, without rejecting the evidence simply because of the lack of a courses and distances description. The determination may be based on the record made to date, and on such other hearings and evidentia-ry presentations as the chancellor in his discretion finds to be appropriate.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF UNION COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS ARE ASSESSED TO THE APPEL-LEES.

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


author: LEE, J., BRIDGES, J.,

text:
    Marie GLASS, Appellant, v. Florence Edward GLASS, Appellee.
    No. 2002-CA-01867-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.

      Steven Detroy Settlemires, attorney for appellant.
    Ronald Stephen Wright, Ackerman, attorney for appellee.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Marie and Florence Edward Glass (Edward) were married in December 1985. Marie filed a complaint for divorce in December 2000 in the Neshoba County Chancery Court, plus filed a motion for temporary relief requesting alimony, among other things. Edward filed a counter complaint for divorce in April 2001.

¶ 2. In January 2001, the parties consented to an agreed temporary order whereby Marie was granted sole use of the marital home, Edward was ordered to pay both the first and second mortgages on the home, and Edward was ordered to pay Marie $1,000 per month as temporary alimony. Thereafter, Marie filed two motions for contempt for Edward’s failure to abide by the terms of the temporary agreement, but the chancellor declined to so find. In April 2002, the chancellor issued his opinion wherein he granted Marie a divorce on grounds of habitual cruel and inhuman treatment as well as desertion, plus granted Marie ownership of the marital home with Edward paying $1,200 per month in alimony to Marie for ten years. Marie subsequently filed a motion for amplification asking that the chancellor address issues he failed to address in his opinion, namely concerning who is responsible for the indebtedness on the marital home, Edward’s failure to pay alimony, the chancellor’s failure to divide certain marital assets including a retirement account valued at approximately $70,000, and various other points. In a supplemental opinion, the chancellor cited McLemore v. McLemore, 762 So.2d 316 (Miss.2000) and ordered Edward to quitclaim his interest in the marital home to Marie, but declined to find Edward in contempt for failure to comply with the temporary order. The chancellor also ordered Edward to pay $6,000 to Marie representing six months of unpaid alimony, and awarded fifty percent of Edward’s retirement account to Marie. Concerning marital debt, the chancellor found that although Marie listed marital debt on her 8.05 financial statement she failed to provide supporting documentation, thereby alleviating any obligation on the chancellor to rule on this issue. The chancellor also denied Marie’s request for a wage withholding order to collect alimony from Edward. Marie filed a motion for amplification and/or reconsideration asking that the chancellor order Edward to pay the indebtedness on the marital home, to maintain health insurance on her, and to require Edward to pay the marital indebtedness. The chancellor denied this motion and, in his final judgment, incorporated his previous orders.

¶ 3. Marie appeals to this Court alleging the following: (1) the court committed manifest error by not requiring Edward to pay the indebtedness on the marital home and other marital indebtedness; (2) the court erred by failing to consider and make findings on the applicable Ferguson factors with regard to the marital debt; (3) the court erred by not finding Edward in contempt for failure to make monthly alimony payments as required by the agreed temporary order and (4) the court erred by not ordering Edward to maintain insurance on Marie for as long as the law allows. The facts will be discussed in further detail in the discussion of each issue; however, having reviewed each issue, we find no merit and affirm.

DISCUSSION

I. DID THE COURT COMMIT MANIFEST ERROR BY NOT REQUIRING EDWARD TO PAY THE INDEBTEDNESS ON THE MARITAL HOME AND OTHER MARITAL INDEBTEDNESS?

¶ 4. Marie argues that Edward’s failure to file the required financial statement rendered the statement she filed more persuasive, and the chancellor erred in failing to so find. In reviewing the decision of a chancellor in a domestic case, we will not reverse unless the chancellor was manifestly wrong, abused his discretion, or applied an erroneous legal standard. Reynolds v. Reynolds, 755 So.2d 467(¶ 5) (Miss.Ct.App.1999).

¶ 5. Marie claims that the chancellor erred in finding that insufficient credible evidence was presented to show the existence of joint indebtedness and the amount of such indebtedness. We look to McLemore v. McLemore, 762 So.2d 316 (Miss.2000), which both parties claim supports their positions.

¶ 6. In McLemore, both parties to the divorce action failed to introduce any evidence concerning marital debts either in their financial statements or in their testimony. On appellate review, the supreme court stated:

Financial declarations introduced at trial could have been the subject of much cross examination and interpretation. [The appellant’s] failure to introduce any evidence of “joint debt” at trial precludes this Court from considering whether the chancellor should have made a division based on such.

McLemore, 762 So.2d at 321 (¶ 16). Marie attempts to distinguish the present case from McLemore by showing that she included marital debts in her financial declaration, and the chancellor should have used this information in reaching his decision, especially since Edward failed to file his financial declaration. Edward rebuts that McLemore is persuasive since evidence introduced at trial alleged that some of Marie’s post-separation debts were obtained by fraud.

¶ 7. We look to the evidence the chancellor had before him concerning marital debt and find such evidence to be sparse. Edward failed to provide any information concerning finances, including failing to submit the required financial declaration pursuant to Rule 8.05 of the Uniform Chancery Court Rules. On Marie’s financial declaration she included a statement of liabilities listing the names of credit card companies, medical service persons and other businesses and listed a current balance for each creditor. No accompanying statements or bills were submitted for these liabilities, and the chancellor determined that some of the obligations were incurred subsequent to the couple’s separation and were obtained by fraudulent means. After the trial at the chancellor’s request, data concerning the payment history of two mortgages on the home was partially furnished in what the chancellor called a “very confusing” format. In our review of this information, we find the chancellor did not err in reaching the conclusion he did due to the lack of reliable information concerning the marital debts.

II. DID THE CHANCELLOR ERR BY FAILING TO CONSIDER AND MAKE FINDINGS ON THE APPLICABLE FERGUSON FACTORS WITH REGARD TO THE MARITAL DEBT?

¶ 8. In her second issue, Marie argues that the chancellor failed to address the Ferguson factors concerning division of marital debt. See Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

As with most matters appealed from the chancery court, this Court “employs a limited standard of review” of the division and distribution of property in divorces. Such division and distribution “will be upheld if it is supported by substantial credible evidence.” This Court will not substitute its judgment for that of the chancellor “[e]ven if this Court disagreed] with the lower court on the finding of fact and might ... [arrive] at a different conclusion.” The chancellor’s findings will not be disturbed “unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.”

Owen v. Owen, 798 So.2d 394(¶ 10) (Miss.2001) (citations omitted).

¶ 9. Marie argues that the chancellor failed to address all of the Ferguson factors in his opinion, thereby evidencing his failure to consider each factor. The chancellor stated in his opinion:

The [Ferguson ] Court held that, “although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines where applicable, when attempting to effect an equitable division of marital property” .... The key factors to consider in the case at bar are the length of the marriage, the economic contribution to the marriage by the parties, the present earning capacity of the parties, and the present physical disability of Mrs. Glass.

¶ 10. Marie argues that if the chancellor had considered other relevant Ferguson factors, namely the tax consequences and needs of the parties, he would have equitably ordered Edward to pay the mortgages on the marital home.

This Court has reversed decisions where, even though the chancellor may have actually applied the Ferguson factors, the chancellor failed to make specific findings on the record. At the same time, not every case requires consideration of all eight of the factors. This Court has stated that the chancellor “may consider only those factors he finds ‘applicable’ to the property in question.”

Owen, 798 So.2d at 399 (¶ 13) (citations omitted). In his opinion the chancellor noted that the key factors included the length of the marriage, the economic contribution to the marriage by the parties, the present earning capacity of the parties, and Marie’s present physical disability. Through these words, the chancellor demonstrated that, while he was certainly aware of all of the Ferguson factors, he found these four to be pivotal. We find the chancellor did not commit error simply for failing to mention the other factors with regard to Marie and Edward’s situation.

¶ 11. We also note that all property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together when the chancellor makes an equitable division of assets. Burnham-Steptoe v. Steptoe, 755 So.2d 1225(¶ 25) (Miss.Ct.App.1999). The chancellor awarded Marie lump sum alimony to be paid over ten years at the rate of $1,200 per month, awarded Marie one-half of Edward’s retirement fund the total of which was valued at approximately $70,000, and awarded Marie the marital home. Taking these awards into account, we find the chancellor did not err in his application of the Ferguson factors.

III. DID THE COURT ERR BY NOT FINDING EDWARD IN CONTEMPT FOR FAILURE TO MAKE MONTHLY ALIMONY PAYMENTS AS REQUIRED BY THE AGREED TEMPORARY ORDER?

¶ 12. In the agreed temporary order, both parties consented to Edward’s paying Marie $1,000 per month in temporary alimony. Marie argued that Edward failed to pay this alimony from September 2001 through January 2002, and in his supplemental opinion the chancellor found that Edward was not in contempt with respect to the temporary order, but ordered Edward to pay $6,000 to Marie, which represented six months of unpaid alimony. Marie further argues on appeal that she was due attorney’s fees as a result of Edward’s failure to pay the alimony.

¶ 13. In Tillman v. Tillman, 809 So.2d 767 (Miss.Ct.App.2002), the chancellor failed to find the husband in contempt for failure to pay alimony, but did order him to pay past due alimony. Tillman, 809 So.2d at 769 (¶ 3). The chancellor denied the wife’s request for attorney’s fees citing the rule that attorney’s fees are appropriate only where a party is financially unable to pay them. Id. at (¶ 10). The chancellor found that based on his award, the wife was able to pay her attorney. Id.

¶ 14. Utilizing the reasoning from Tillman, we find the chancellor did not err in failing to find Edward in contempt but then awarding past due alimony to Marie. The supreme court has affirmed the rule that when the court denies a spouse’s petition for contempt, no award of attorney’s fees is warranted. Lahmann v. Hallmon, 722 So.2d 614(¶ 34) (Miss.1998). Regardless of the chancellor’s reasoning, we find that his order for Edward to pay the delinquent alimony acted to cure any alleged contempt. Thus, we find no error in the chancellor’s failure to award attorney’s fees when the chancellor failed to find Edward in contempt.

IV. DID THE COURT ERR BY NOT ORDERING EDWARD TO MAINTAIN INSURANCE ON MARIE FOR AS LONG AS THE LAW ALLOWS?

¶ 15. Marie finally argues that the chancellor erred in not ruling on her request to require Edward to maintain insurance coverage on her. Marie argues that in her current health condition she will not be able to get health insurance on her own; thus, the chancellor should have required Edward to maintain insurance on her. Edward argues that Marie failed to provide the chancellor with any information sufficient to allow him to make such an award, and as an appellate court we may not reverse his finding of fact unless there is not substantial, credible evidence justifying his finding. Jones v. Lee, 754 So.2d 564(¶ 6) (Miss.Ct.App.2000).

¶ 16. Marie testified that her main health insurance was through Edward’s work, but she received disability checks from the Social Security Administration, which had found her completely disabled, plus she was eligible for Medicare. Marie told the court that she intended to apply for Medicaid, as well. After Marie’s presentation of her health status and related financial situation, the chancellor noted the following:

Let me say something to the attorneys, and this may need a response from your witness. I am not sure how long, if the policy were to continue on the wife, there is a certain limit on that because of the divorce. There is a certain limit, I would assume that would apply, a year or so; and whether it is going to be convertible, I don’t know. The drugs are the big thing, and if that is not covered by Medicare, which I am sure it is not, and then Medicade [sic] is uncertain; so I’m not too sure, with the limited information that I have, how that could be addressed; but anyhow, that is just an observation.

¶ 17. After the chancellor’s acknowledgment that he had only been presented with limited information, Marie’s attorney declined to further question her concerning her health status, nor did he present any documentation into evidence. On cross-examination, Edward’s attorney did not question Marie about her health status. At the point the chancellor explained that he had not been presented with sufficient information on which to draw a conclusion on this subject, neither party further enlightened the chancellor concerning this situation. Marie cites authority on appeal which she did not present to the chancellor. However, we review the chancellor’s findings based on the information he had before him and reverse only when there is not substantial, credible evidence justifying his finding. Jones, 754 So.2d at 566-67 (¶ 6). Based on the evidence presented to the chancellor, we cannot find he erred.

¶ 18. THE JUDGMENT OF THE NESHOBA COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BRIDGES, J., CONCURS WITH A SEPARATE WRITTEN OPINION JOINED BY THOMAS, CHANDLER, AND GRIFFIS, JJ.

BRIDGES, J.,

Concurring:

¶ 19. I concur in whole with the opinion and conclusions of the majority. This concurring opinion is provided merely to suggest that the Mississippi Rules of Civil Procedure should be read and followed by all practicing attorneys in Mississippi, especially when applying terminology to pleadings.

¶ 20. In the record excerpts provided to this court I find where Marie filed “motions for contempt” and “motions for amplification and to reconsider.” I also found where Edward filed a “counter complaint for divorce.” Such motions and counter complaints either do not exist under the Mississippi Rules of Civil Procedure or are improper.

¶21. Mississippi Rule of Civil Procedure 81(f), Terminology of Statutes, provides in part:

In applying these rules to any proceeding to which they are applicable, the terminology of any statute which also applies shall, in inconsistent with these rules, be taken to mean the analogous device or procedure proper under these rules; thus (and these examples are intended in no way to limit the applicability of this general statement):
Bill of complaint, bill in equity, bill, or declaration shall mean a complaint as specified in these rules; ... Cross-bill shall be understood to refer to a counter claim, or a cross-claim, which ever is appropriate under these rules.

Having read this rule it should become apparent that Edward’s counter complaint for divorce was a misnomer and should have been more appropriately titled, counter claim.

¶22. Rule 81(d)(2) of the Mississippi Rules of Civil Procedure provides for actions in contempt. In sub-part (3) of that rule it states that “complaints and petitions filed in [these] actions ... above shall not be taken as confessed.” Initiating Rule 81(d) actions, such as the contempt action by Marie, by filing a “motion” is not proper procedure and judges should not take it as confessed. Rather Marie should have begun this proceeding with a properly served complaint or petition.

¶ 23. Further, I find no mention of a motion to reconsider in the Mississippi Rules of Civil Procedure. In rule 59 of the rules it provides for new trials wherein the court may, upon proper motion for new trial, “open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Perhaps that was the intended aim of Marie’s motion to reconsider; however, no such pleading should be accepted as proper under the Mississippi rules.

¶ 24. I find it discouraging that after twenty years in existence some good and well established attorneys continue to ignore these rules and that their attempts to comply are accepted by trial judges in their respective districts.

THOMAS, CHANDLER AND GRIFFIS, JJ., JOIN THIS SEPARATE OPINION.


author: JOHNSTONE, Justice.

text:
    Ex parte Huston Waymor COULLIETTE. (In re Huston Waymor Coulliette v. State of Alabama).
    1001380.
    Supreme Court of Alabama.
    March 7, 2003.
    John T. Kirk, Montgomery; and Thomas M. Goggans, Montgomery, for petitioner.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

The defendant Huston Waymor Coul-liette was charged with the misdemeanor offenses of driving on the wrong side of the road and driving under the influence of alcohol. The Shelby County District Court found Coulliette guilty of the charged offenses. Coulliette appealed to the Shelby County Circuit Court for a trial de novo, by jury. Before trial, Coulliette moved to suppress the blood-alcohol test results from Intoxilyzer 5000 (“1-5000”) tests administered to Coulliette after his arrest. The test results were .24 and .25. The trial court denied the motion to suppress and, likewise, at trial, denied several oral motions by Coulliette to exclude the test results. A jury found Coulliette guilty of the charged offenses, and the trial court adjudged him guilty and sentenced him accordingly.

Appealing to the Court of Criminal Appeals, Coulliette stated:

“Appellant herein submits this his appeal on one issue: Did appellant prove the lack of ‘scientific acceptability’ in the record (history) keeping process of the ‘logs’ to cause the trial court to commit error in admission of test results? And, as a direct consequence thereof, was the jury affected, adversely, by the admission of tests results, thereby denying appellant of a fair trial.”

Coulliette cited Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Frye v. United States, 293 F. 1013 (D.C.Cir.1923), to the Court of Criminal Appeals in support of this issue.

Holding in an unpublished memorandum that Coulliette had not preserved this issue for review, the Court of Criminal Appeals affirmed Coulliette’s convictions and sentences. Coulliette v. State, (No. CR-99-2204, March 23, 2001) 821 So.2d 1034 (Ala.Crim.App.2001) (table). The Court of Criminal Appeals also overruled Coul-liette’s application for rehearing and denied his motion to supplement the facts in the memorandum. Coulliette then petitioned this Court for certiorari review, and we granted his petition and heard oral arguments.

Before us, Coulliette argues that the Court of Criminal Appeals erred in holding that he did not preserve his issue for review. This opinion will address only this preservation issue now before us.

For preservation, Coulliette relies on his motion to suppress, which the trial court denied after receiving evidence and arguments at a full hearing. The evidence at the hearing tended to prove that the Department of Forensic Sciences and the Department of Public Safety intentionally prevented information about malfunctions and errors in 1-5000 machines from being disclosed in the logbooks kept for those machines. In the suppression motion proceedings, Coulliette argued essentially only that this practice deprived him of discovery he was due and corrupted proceedings based on the results of 1-5000 blood-alcohol tests. In the proceedings before the trial court on the motion to suppress, Coul-liette did not in any words or in any way argue the issue of scientific acceptability or the law of either Daubert or Frye, the threshold issue and law he later presented to the Court of Criminal Appeals for review.

“Review on appeal is restricted to questions and issues properly and timely raised at trial.” Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989). “An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.” Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). “ ‘[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.” McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation ommitted). “The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.” Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). “The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.” Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994).

“The motion [to suppress] did not give the trial court notice of the specific issues [Coulliette] ... raise[d] in his brief to [the Court of Criminal Appeals]. Therefore, the trial court did not have the opportunity to rectify these alleged errors.... [Coulliette’s] motion was not sufficient to preserve the issues presented by [him] in his brief.”

Acree v. State, 673 So.2d 855, 856 (Ala.Crim.App.1995). Therefore, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

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


author: STUART, Justice. HOUSTON, Justice,

text:
    Ex parte FULTON PERFORMANCE PRODUCTS, INC. (In re Gary Crocker, as administrator of the estate of Shirley Crocker, deceased v. Jackson Exteriors et al.)
    1020298.
    Supreme Court of Alabama.
    March 7, 2003.
    Tabor R. Novak, Jr., and Cowin Knowles of Ball, Ball, Mathews & Novak, P.A., Montgomery; and G. Bruce Parker-son of Plauché, Maselli, Landry & Parker-son, L.L.P., New Orleans, Louisiana, for petitioner.
    James C. King, David M. Harrison, and John L. Madison of King, Harrison & Bryan, Jasper, for respondents.
   STUART, Justice.

PETITION DENIED. NO OPINION.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice,

concurring specially.

Gary Crocker, as administrator of the estate of Shirley Crocker, deceased, has not set forth the factual basis of his claim against Fulton Performance Products, Inc., as he is required to do to prove an Alabama Extended Manufacturer’s Liability Doctrine claim. Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 104 (Ala.1981). Once Crocker reveals his evidence of the alleged defect, the evidence sought by Fulton through disassembly may become extremely relevant. However, at this stage of the legal proceedings, Fulton has not shown that the trial court exceeded its discretion in not allowing Fulton to disassemble the trailer hitch.


author: HOUSTON, Justice.

text:
    Sara MORGUSON, as executrix of the estate of Douglas W. Morguson, deceased v. 3M COMPANY f/k/a Minnesota Mining & Manufacturing Company, and Baxter Healthcare Corporation n/k/a Edwards Lifesciences Corporation.
    1012406.
    Supreme Court of Alabama.
    March 7, 2003.

      Tom Dutton and Michael C. Bradley of Pittman, Hooks, Dutton, Kirby & Heliums, P.C., Birmingham, for appellant.
    James A. Harris, Jr., James A. Harris III, and G. Nicole Mapp of Harris & Harris, L.L.P., Birmingham, for appellee 3M Company.
    Fourier J. Gale III and John A. Smyth III of Maynard, Cooper & Gale, P.C., Birmingham, for appellee Baxter Healthcare Corporation.
   HOUSTON, Justice.

Sara Morguson (“Morguson”), as executrix of the estate of Douglas W. Morguson, deceased, filed a wrongful-death action against Druid City Hospital (“DCH”), Phillip Smith (“Smith”), 3M Company fik/a Minnesota Mining & Manufacturing Company (“3M”), and Baxter Healthcare Corporation n/k/a Edward Lifesciences Corporation (“Baxter”) arising out of the death of her husband, Douglas Morguson (hereinafter sometimes referred to as the “decedent”). Morguson, DCH, and Smith entered into a pro tanto settlement for $975,000. Thereafter, the trial court granted 3M’s and Baxter’s (the remaining defendants) motions for a summary judgment. Morguson appealed. We affirm.

I. Facts

Mr. Morguson was admitted to DCH to undergo quintuple coronary artery bypass graft and cardiopulmonary bypass surgery, commonly known as “bypass surgery.” Because this is open-heart surgery, it requires the use of a heart-lung machine and related equipment; the machine and equipment together are known as a perfusion system and the perfusion system is operated by a medical technician known as a perfusionist. Essentially, the perfusion system consists of a series of pumps and tubes that act as the patient’s heart and lungs while the heart is stopped during surgery. The pumps transport blood and medications through the tubes to and from various other pumps, as well as to and from the patient. The pumps used during Mr. Morguson’s surgery were manufactured by 3M; the tubes were manufactured by Baxter.

Only one part of the perfusion system is at issue in this case: the left ventricular pump and the left vent tubing. The left ventricular pump operates the left ventricular vent to decompress the heart. The left vent tubing is inserted into the open end of the cannula, a small tube the surgeon places into the left ventricle of the heart. The opposite end of the left vent tubing is connected to a reservoir by the perfusionist. The middle section of the left vent tubing is looped through the inside of the left vent pump. The pump is marked with arrows indicating the direction the blood should flow through the tubing.

The left vent tubing contains a one-way safety valve, a safety device that, when the tube is inserted in the patient, is located approximately 12 inches from the heart. The one-way safety valve ensures that blood and air in the vent tubing flow only away from the heart; it prevents the flow of any blood or air back to the heart. Arrows on the one-way safety valve indicate the direction in which the blood should flow.

Dr. Ferguson was the cardiothoracic surgeon performing Mr. Morguson’s bypass surgery, and Smith, a DCH employee, was the assigned perfusionist. Before the surgery, Smith, whose primary responsibility was to operate the heart-lung machine, assembled the perfusion system. In assembling the perfusion system, Smith failed to loop the left vent tubing through the left vent pump correctly; instead, Smith assembled it so that the direction of blood flow through the left vent tubing was toward Mr. Morguson’s heart rather than away from it. Pursuant to DCH protocol, after Smith assembled the perfusion system, he was required to perform a “pre-bypass safety checklist” in preparation for Mr. Morguson’s surgery. As part of this checklist, Smith was required to determine whether the direction of the vent tubing was correct. Despite this requirement, Smith did not check the tubing direction in the pumps, and he falsified the safety checklist to indicate that he had.

Shortly after Mr. Morguson’s surgery began, Dr. Ferguson detected a problem; blood was not coming out of Mr. Morgu-son’s heart and through the left vent tubing even though the left vent pump was on. Dr. Ferguson told Smith to figure out what was causing the problem. Without checking, Smith informed Dr. Ferguson that the tubing direction was correct; it was not.

Based on Smith’s falsely reporting that the left vent tubing was installed so that the blood flow was in the correct direction, Dr. Ferguson reasoned that the one-way safety valve was defective and decided to remove it. The left vent pump was stopped and the left vent tubing was disconnected. Because the one-way safety valve was built into the tubing, its removal required the surgical team to cut out that part of the tubing containing the valve and then splice the tubing. After the one-way safety valve had been removed, the left vent tubing was reconnected and the left vent pump was restarted. At this point, air was pumped into Mr. Morguson’s heart; he died 20 days after the surgery.

Dr. Brian Frist, one of Morguson’s medical experts, theorized as to the cause of death. According to Dr. Frist, after air was introduced into Mr. Morguson’s heart, it migrated through his vascular system and into his brain, creating an air embolus. Once inside the brain, the embolus caused a blockage of the brain’s vascular structure. This blockage caused a lack of oxygenated blood to provide nutrients and to remove waste. The brain matter in the area affected by the blockage was unable to perform its function with regard to other bodily functions, such as respiration. The malfunctioning brain led to generalized organ system failure and to Mr. Mor-guson’s death 20 days after the surgery.

3M and Baxter contend that Dr. Frist is not qualified to render an opinion as to the cause of Mr. Morguson’s death. In making this argument, 3M and Baxter point to, among other things, the fact that Dr. Frist did not conduct the autopsy on the decedent, that Dr. Frist has no recollection of ever having treated a patient with an air embolus, and that, although he read the autopsy report, Dr. Frist has never directly performed an autopsy where the deceased was suspected of having had an air embolus in the brain. Moreover, 3M and Baxter note, the autopsy report does not mention an air embolus as being related to the cause of death; rather, the stated cause of death was multi-organ system failure caused by infection. However, it is not necessary for us to resolve any dispute as to cause of death because the judgment in this action must be affirmed even if we assume, for the sake of argument, that air was introduced into Mr. Morguson’s heart during surgery and that that air created an embolus, which we do.

Morguson alleged that 3M and Baxter were liable for the decedent’s death under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) because, she argues, the perfusion pump, which was .manufactured by 3M, and the left vent tubing, which was manufactured by Baxter, were defective. Specifically, Morgu-son alleged that the pump and the tubing were unreasonably dangerous because the designs of both were defective and that the warnings provided with the tubing were inadequate. Both 3M and Baxter moved for a summary judgment, and the trial court granted those motions. This appeal involves only the product-liability claims Morguson asserted against 3M and Baxter.

In Kirk v. Garrett Ford Tractor, Inc., 650 So.2d 865, 866 (Ala.1994), this Court . stated our standard of reviewing a summary judgment in the context of a products-liability action:

“The standard of reviewing a summary judgment is the same as the standard for granting the motion; we must determine whether there was a genuine issue of material fact, and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“Under the substantial evidence rule the nonmovant, in order to defeat a properly supported summary judgment motion, must present ‘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).
“This Court has stated the elements of a claim under the AEMLD:
“ ‘ “To establish liability, a plaintiff must show:
“ ‘ “(1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably danger^ ous to the plaintiff as the ultimate user or consumer, if “ ‘ “(a) the seller is engaged in the business of selling such a product, and
“ ‘ “(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it [was] sold.” ’
“Yamaha Motor Co. v. Thornton, 579 So.2d 619, 621 (Ala.1991) (quoting Casrell v. Altec Indus., Inc., 335 So.2d 128, 132-38 (Ala.1976)).”

The plaintiff has the burden of presenting substantial evidence of proximate cause. Hicks v. Vulcan Eng’g Co., 749 So.2d 417, 424 (Ala.1999). “Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, produces an injury or harm and without which the injury or harm would not occur.” Dillard v. Pittway Corp., 719 So.2d 188, 192 (Ala.1998)(citing Thetford v. City of Clanton, 605 So.2d 835 (Ala.1992)).

II. Issues on Appeal

Morguson raises four issues on appeal. First, Morguson argues that 3M and Baxter failed to prove that an intervening or superseding cause occurred that absolved them from liability. Second, Morguson argues that Baxter was not entitled to a summary judgment as to the failure-to-warn claim. Third, Morguson argues that she proffered evidence establishing the existence of safer, practical, alternative designs of the perfusion pump and vent tubing. Finally, Morguson argues that Dr. Brian Frist, one of her expert witnesses, was qualified to express opinions that would support a factual finding that the cause of the decedent’s death was an air embolus.

Morguson argues that the errors, omissions, and misrepresentations made by Smith and Dr. Ferguson during the decedent’s surgery were not independent and superseding causes that broke the causal chain between the allegedly defective left vent pump and left vent tubing and the decedent’s death. We disagree.

It is Morguson’s burden to present substantial evidence creating a genuine issue of material fact as to whether the left vent pump and left vent tubing were defective and unreasonably dangerous when the products were sold and whether their defective condition was the proximate cause of the decedent’s death. See Kirk, 650 So.2d at 866. The cornerstone of proximate cause is foreseeability. Dillard, 719 So.2d at 192 (citing General Motors Corp. v. Edwards, 482 So.2d 1176 (Ala.1985)). In the present case, the actions taken by Smith and the surgical team during the surgery were not foreseeable by 3M and Baxter.

In assembling the perfusion system before Mr. Morguson’s surgery, Smith improperly threaded the left vent tubing through the left vent pump, despite the fact that the inflow and outflow ports of the pumps are marked with arrows indicating the correct directional flow. This improper threading caused the flow through the vent tubing to be directed toward Mr. Morguson’s heart, rather than away from it. Smith then failed to follow DCH protocol by not verifying the vent tubing direction during the pre-bypass safety checklist; rather than confirm that the perfusion system was set up correctly Smith falsified the checklist to indicate that he had. Next, after Dr. Ferguson noticed that blood was not flowing out of Mr. Morguson’s heart and asked Smith to check the left vent pump and the left vent tubing, Smith again misrepresented that they were set up correctly. Finally, the surgical staff removed the one-way safety valve in the left vent tubing. All of Mor-guson’s experts agree that had the one-way safety valve been in place, air could not have gone to Mr. Morguson’s heart.

It may have been foreseeable that a perfusionist would improperly assemble the perfusion system (which is precisely why the pre-bypass safety checklist exists). However, it is clearly not foreseeable 1) that the perfusionist would not check the vent tubing direction during the pre-bypass safety checklist; 2) that the perfusionist would falsify the safety check-fist to state that he had checked the direction of the vent tubing; 3) that the perfusionist would fie to the surgeon about having checked the direction of the vent tubing after being asked directly to do so; and 4) that the surgical team would cut the one-way safety valve out of the vent tubing.

Additionally, when the surgical team removed the one-way safety valve from the vent tubing, it made a material alteration to the vent tubing. This Court has held that

“[w]hen a defect created by an alteration to a product after it left the seller’s control is the factual and proximate cause of an injury, and the alteration was not foreseeable, the alteration amounts to an intervening and superseding cause of the injury and relieves the seller from liability under the AEMLD.”

Kirk, 650 So.2d at 867 (holding that the removal of a protective shield from an auger was a substantial change that relieved the seller from liability for injuries caused when the worker’s leg became entangled in the auger). See also McDaniel v. French Oil Mill Mach. Co., 623 So.2d 1146 (Ala.1993)(holding that the removal of a steel mesh screen that guarded gears of a rotary soybean conditioner and the machine’s change from automatic lubricating to manual lubricating were substantial changes that relieved the seller of liability for the worker’s death where the worker was crushed by the gears); Burkett v. Loma Mach. Mfg., Inc., 552 So.2d 134 (Ala.1989)(holding that modifying the blade guard on a billet saw to expose an additional 15 inches of the blade was a substantial change that relieved the manufacturer of liability, for injuries to the operator of the saw); Fenley v. Rouselle Corp., 531 So.2d 304 (Ala.1988)(holding that removing the safety devices from a machine press constituted a superseding cause of the employee’s accident that relieved the press manufacturer of liability).

Therefore, we hold that the trial court’s summary judgment on this issue was correct because the actions of Smith and the surgical team were not foreseeable and the removal of the one-way safety valve amounted to an intervening and superseding cause that broke any causal chain between the manufacture of the perfusion system and Mr. Morguson’s death.

The next issue raised by Morgu-son pertains to the adequacy of the warnings and instructions provided by Baxter with the vent tubing. Pursuant to the learned-intermediary doctrine, Baxter had no duty to provide warnings to Mr. Morgu-son; rather, Baxter’s duty was to warn the physicians and perfusionists at DCH who used the vent tubing. See Toole v. McClintock, 999 F.2d 1430 (11th Cir.1993); Stone v. Smith, Kline & French Labs., 447 So.2d 1301 (Ala.1984)(adopting reasoning of Reyes v. Wyeth Labs., 498 F.2d 1264 (5th Cir.1974)). Morguson argues that Baxter’s warnings to the physicians and perfusionists who would be using the vent tubing were not adequate. We disagree.

The vent tubing sold to DCH by Baxter contained a package insert that enumerated several cautions and instructions. One of the cautions emphasized the importance of using trained personnel to set up the perfusion system: “Caution: This device must be set up and operated by personnel trained in the use of cardiopulmonary devices.” Another caution emphasized the importance of the one-way safety valve in preventing an air embolus:

“Caution: The use of safety/warning devices such as level sensors, bubble devices, arterial filters, positive and negative pressure relief valves, one-way valves and prebypass filters is recommended to minimize the occurrence of gaseous or ‘particulate emboli passing to the patient.”

(Emphasis added.) Finally, an instruction effectively warned the medical staff not to remove the one-way safety valve:

“CustomPac Products are manufactured in accordance with customer specifications for assembly of medical devices and tubing configurations. Any change resulting from these specifications and!or any deviation from standard ex-tracorporeal procedure which could compromise the Junction of these products is the responsibility of the customer.”

(Emphasis added.)

When a warning is given by the manufacturer, the manufacturer may reasonably assume that it will be heeded by the consumer. Ex parte Chevron Chem. Co., 720 So.2d 922, 927 (Ala.1998)(citing Restatement (Second) of Torts § 420A cmt. j (1965)). The warnings given by Baxter in this case cautioned against the exact acts and errors committed by DCH employees. Therefore, we hold that Mor-guson’s failure-to-warn claim must fail.

The third issue Morguson raises is that the perfusion pump and the vent tubing were defectively designed. Morguson contends that her expert witnesses proffered alternative designs of the perfusion pump and vent tubing that would have prevented Mr. Morguson’s death by eliminating the danger of human error. However, we previously stated that 3M and Baxter were relieved from liability because the actions of Smith and the surgical team, which were unforeseeable, and because the surgical team’s removal of the one-way safety valve amounted to an intervening and superseding cause that broke the causal chain. Therefore, this issue is without merit.

The final issue raised by Morgu-son concerns whether Dr. Frist was qualified to give an expert opinion as to the cause of Mr. Morguson’s death. Because throughout this opinion we have assumed that air was introduced into Mr. Morgu-son’s heart during surgery, and because even after making that assumption we find all of Morguson’s arguments to be without merit, determining whether Dr. Frist is qualified as an expert witness would serve no purpose. Therefore, we decline to do so.

In conclusion, we hold that Morguson failed to present substantial evidence to rebut 3M’s and Baxter’s showing that there were no genuine issues of material facts and that 3M and Baxter were entitled to judgments as a matter of law as to Morguson’s claims. Accordingly, the summary judgments for 3M and Baxter are affirmed.

AFFIRMED.

LYONS and WOODALL, JJ., concur.

MOORE, C.J., and JOHNSTONE, J., concur in the result.

      . Courts rely on the expertise of physician intermediaries to "bridge the gap” in cases where the medical product and its related warning are too complex to be fully appreciated by the patient. Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1314 (11th Cir.2000).