author: SOUTHWICK, J., for the Court.

text:
    HERRING GAS COMPANY, INC., Appellant v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2004-CC-01765-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      John L. Maxey II, Jackson, Charles Richard Saltzman, attorneys for appellant. B. Ray Therrell, attorney for appellee.
   OPINION ON MOTION FOR REHEARING

SOUTHWICK, J., for the Court.

¶ 1. Herring Gas Company, Inc. appeals the Circuit Court of Jones County’s judgment affirming the decision of the Mississippi Employment Security Commission that Herring’s appeal was untimely pursuant to Mississippi Code Annotated § 71-5-517 (Rev.2000). On rehearing we conclude that the issue was not properly determined by the Department. We therefore grant the motion for rehearing and withdraw our prior opinion. The judgment is reversed and remanded.

FACTS

¶ 2. Patsy Kouches was employed for approximately eleven months as a secretary for Herring Gas Company, Inc. In mid-April 2003, employees of Herring audited its company records. Shortages to various accounts were discovered. The audit revealed a practice of embezzlement in which customers’ full payments were not posted to the proper account. The customers’ accounts were shorted and a portion of their payments was being stolen.

¶ 3. On April 17, 2003, Herring’s office manager, Lisa Smith was terminated for suspicion of embezzlement. In an effort to investigate the matter further, Herring prepared confirmation letters to mail to customers in order to verify current account balances.

¶ 4. The next Friday, April 25, 2003, at approximately 6:00 p.m., a gas salesman returned to the Laurel store after he finished a routine sales call. That salesman found Kouches, Wayne Herrington, Lisa Smith, and Lisa’s sister, Lynn, all talking inside the store. Lisa was not allowed in the store as she had been terminated the previous week. Lynn was not an employee at Herring and was not allowed in the store after working hours.

¶ 5. Part of Kouches’s work at Herring was to write up and post payment tickets to Herring’s accounts-receivable. Kouches was to complete the billing statements so Herring could mail confirmation letters to customers the following week. She was scheduled to work on Saturday, April 26. Lisa’s sister Lynn shared an apartment with Kouches. Kouches did not show up for work on Saturday and did not call her employer. When she was contacted, she claimed she did not feel well and would not be coming in to work.

¶ 6. Herring’s policy was for no one to be in its Laurel store between 6:00 p.m. on Saturday and 6:00 p.m. on Sunday. When Herring’s operations manager checked the store Sunday evening, he found lights on that had earlier been turned off. He also found a unusual error message on a computer. He contacted the office computer serviceman. The serviceman found that someone “trashed” the computer and deleted several files. There were no signs of forced entry. The Laurel Police Department concluded that someone used a key to enter the store.

¶ 7. Herring employees found that several of the tickets that were being audited were stolen, as were check stubs on one of the accounts. Herring terminated Kouch-es and Herrington for suspicion of embezzlement. The Laurel Police Department was notified of misappropriation of funds and began its investigation. The very next day, Kouches filed her application for unemployment benefits.

¶ 8. The record reflects that a claims examiner spoke to Kouches and Bob Kim-brough, Vice-President of Herring Gas, on May 6, 2008. Kimbrough told the examiner that Kouches was discharged for suspicion of embezzlement, that the situation was under investigation, and that no further information was then available. Kouches told the claims examiner the police escorted her out on her last day, and that no reason was given for her termination.

¶ 9. The examiner recommended payment of benefits and mailed a notice of changeability to Herring on May 15, 2003. This notice stated, “If you wish to protest this decision, you may ask for reconsideration or file a Notice of Appeal within fourteen (14) calendar days of the mail date on the decision. Holidays and weekends will not extend the time for filing the appeal.” On the fourteenth day, the Laurel Police Department was still investigating the embezzlement.

¶ 10. On June 18, 2003, Detective Robert Morris of the Laurel Police Department mailed a letter to Herring stating that Kouches had admitted her involvement with the embezzlement from Herring. A Jones County Grand Jury eventually indicted Kouches. The record does not indicate what occurred in the prosecution thereafter. The same day Herring was notified by Detective Morris of Kouch-es’ confession, Kimbrough notified the Department by letter of the newly discovered evidence. Kimbrough’s letter to the Department stated in part:

Today I received the accompanying statement (Exhibit A) from the Laurel Police Department concerning Patsy Kouches. In light of this newly discovered evidence I am requesting that you reconsider Herring Gas Company’s status of responsibility as it relates to this case.

¶ 11. On June 24, 2003, the Department responded with a short letter. The Department stated, “In as much as you have not filed your request for a reconsideration in a timely manner, we are taking no action and our decision of May 15, 2003, becomes final according to the Law.” On August 6, 2003, the Department sent Herring a notice of a telephone hearing restricted to the sole issue of whether or not the “appeal” was timely filed.

¶ 12. The hearing took place on August 11, 2003. During that hearing, the appeals referee acknowledged that Herring “was asking for reconsideration” of the May 15 decision. The appeals referee also stated that Herring’s letter dated June 18, 2003 “was not accepted as a reconsideration ... because they did not meet the time limit for filing reconsideration ... so it turned into an appeal.” When Herring’s representative directed the appeal referee to Detective Morris’s June 18th letter, the appeals referee responded:

I don’t mean to cut you off, but seem[s] like you’re about to get into more details in reference to the separation. This hearing is designed to discuss the not timely appeal by the employer. And my question, my next question to you is ... what does this have to do with the delay of the employer filing the appeal in a timely manner?

¶ 13. Herring’s representative argued that the Department would certainly have made a different determination as to benefits if it had the information, and that Herring had provided the evidence of Kouches’s confession just as soon as the Laurel Police Department provided it. The appeals referee then asked Herring’s representative if there was any other reason for Herring’s delay in “filing this appeal.” Herring’s representative mentioned that Herring might have had the evidence sooner, had someone not broken into the building and destroyed evidence. With that, the appeals referee concluded the hearing.

¶ 14. On August 12, 2003, the appeals referee mailed to Herring the decision dismissing Herring’s appeal. The referee found that Herring had fourteen days from the claims examiner’s May 15, 2003 notice letter to appeal the decision, citing Mississippi Code Section 71-5-517. We will discuss that statute below. The referee further found that Herring had not shown good cause for missing the fourteen-day appeal deadline and as such the referee had no jurisdiction and the claim examiner’s decision was final.

¶ 15. Following the decision of the referee, Herring appealed to the Board of Review. The Board affirmed the referee’s decision on September 4, 2003. Herring then appealed to the Circuit Court of Jones County. The court affirmed the decision of the Board on August 19, 2004 because Herring had failed to show good cause for untimely appealing the decision of the claims examiner to the appeals referee. Herring’s appeal to the supreme court has been deflected here.

DISCUSSION

¶ 16. The facts are uncontested here. Benefits were awarded due to the lack of sufficient evidence at the time of the initial decision by the claims examiner. The needed information was not and indeed could not have been acquired until after the time to file for reconsideration or appeal.

¶ 17. We find that the only issue on appeal is one of law: do the procedures of the Department of Employment Security allow for relaxation of the deadline for reconsideration when delayed evidence of a fraudulently made claim finally becomes available? One relevant statutory provision states in part that after a claims examiner makes an initial determination whether or not benefits are payable:

An initial determination may for good cause be reconsidered. The claimant, his most recent employing unit and all employers whose experience-rating record would be charged with benefits pursuant to such determination shall be promptly notified of such initial determination or any amended initial determination and the reason therefor.... The jurisdiction of the department over benefit claims which have not been appealed shall be continuous. The claimant or any party to the initial determination or amended initial determination may file an appeal from such initial determination or amended initial determination within fourteen (14) days after notification thereof, or after the date such notification was mailed to his last known address.

Miss.Code Ann. § 71-5-517 (Supp.2006) (emphasis added). This section creates a fourteen day deadline for the filing of an appeal. No statutory deadline is placed upon a reconsideration.

¶ 18. The claims examiner’s initial notification instructed that Herring could “ask for reconsideration or file a Notice of Appeal within fourteen (14) calendar days of the mail date on the decision.... Good cause, a circumstance beyond your control, may be granted for filing after 14 days.” Though there is no statutorily-mandated fourteen day deadline for reconsideration, we consider this letter at least to be a reflection that the Department has by some internal deliberative and discretionary process decided to set this time limit for reconsiderations.

¶ 19. We have not discovered any formal Department procedural rule that affects reconsideration at the claims examiner level. There are appeal regulations, including that “[a] party desiring to appeal from an initial or amended determination shall [file the appeal] within fourteen days ... after the date such notification was mailed.... ” Miss. Emp. Sec. Comm’n App. Reg. A 1(a) (2002). When the new information was provided, the Department responded that since “you have not filed your request for a reconsideration in a timely manner, we are taking no action and our decision of May 15, 2003, becomes final according to the Law.” Soon thereafter, the Department gave Herring a telephone hearing on the sole issue of whether or not the “appeal” was timely filed.

¶ 20. The Herring submission clearly indicated that it wanted the claims examiner to reconsider based on the new evidence that was provided as soon as it became available. The evidence was of a crime committed by the claimant, a crime that would have clearly prohibited the award of benefits had evidence of it been available when the initial decision was made. We see evidence that the Department treated the submission of new evidence alternatively as a reconsideration request or as an appeal, but consistently treated it as irredeemably late. The only issue the Department was thereafter willing to consider is whether the “appeal” was timely. The Department committed legal error when it denied that it had authority to consider the new evidence.

¶ 21. Some authority to reconsider matters being processed at other levels within the agency appears in Department regulations. “The Board of Review, in its discretion, may remand any claim which is before it to a Referee for the taking of such additional evidence as the Board of Review may deem necessary to determine the rights of the parties.” Miss. Emp. Sec. Comm’n App. Reg. C 3(c).

¶ 22. Beyond the written procedures, an administrative agency may make exceptions to its non-statutory procedures in proper circumstances. See Southwick, Administrative Law, in 1 Jackson & Miller (eds.), EnoyC. Miss. Law, § 2:17 (2001). An agency was not bound by its rule requiring that after a hearing, the agency “with all convenient speed, and in any event within thirty days after the conclusion of the hearing, shall take action with regard to the subject matter thereof.” McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 319 (1992) (quoting Board Rule 4). The court held that a related statute was “directory and not mandatory and [that the Court has in other precedents] refused to invalidate Board orders made later than thirty days after the conclusion of the hearing.” McGowan, 604 So.2d at 319. The Court held that the Board had the authority “to relax its own rule and reflect upon the matter for a reasonable time beyond the thirty day deadline.” Id.

¶ 23. If a statute establishes a precise time limit for an agency procedure, it is generally improper for the agency to extend that period. Wilkerson v. Miss. Emp. Sec. Comm’n, 630 So.2d 1000, 1002 (Miss.1994). Since an unambiguous statutory limit binds the agency, it would not have the right to grant a three-day extension to the fourteen-day appeal time set out in section 71-5-517. Id. That is the same statute relevant here for reconsider-ations at the claims examiner level, but the statute does not set a statutory limit for reconsideration. Miss.Code Ann. § 71-5-517. Therefore, a reasonable time period as set by the Department would be enforceable. The Department’s decision that fourteen days is the proper limit is part of the notice sent to parties.

¶ 24. Apparently, even a statutory limit might be relaxed if a strong equitable reason is shown:

Assuming that the statute can be read to confer power upon the Commission, giving them the flexibility to relax the standard, it should, at a minimum, do so by published rule and not by an unwritten practice subject to ad hoc and sporadic application. We have no quarrel, either, with a relaxation of the standard for “good cause” as exemplified in Cane [v. Miss. Emp. Sec. Comm’n, 368 So.2d 1263 (Miss.1979) ]. However, neither written rule nor “good cause” is shown here.

Wilkerson, 630 So.2d at 1002. We do not understand the court to have found section 71-5-517 to grant the agency power to adopt a formal rule that would allow for extensions for appeal, but the court simply made an analytical assumption. What was not an assumption but was a stated right, was that the Department has the authority to relax even a statutory standard for “good cause.”

¶ 25. There was no statutory time standard for requesting reconsideration by the claims examiner. Applicable here is that once a discretionary rule is established, an agency may allow reasonable “procedural indulgences.” The Workers Compensation Commission could allow a claimant to reopen a case in order that a second deposition be entered into evidence by the claimant’s doctor:

the Commission is an administrative agency, not a court. It has broad discretionary authority to establish procedures for the administration of compensation claims. It has like authority to relax and import flexibility to those procedures where in its judgment such is necessary to implement and effect its charge under the Mississippi Workers’ Compensation Act. It is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules. Today is not such a day.

Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1380-81 (Miss.1986) (emphasis added).

¶ 26. More generally and importantly, “administrative agencies may reconsider and modify their determinations or correct errors on the ground of fraud or imposition, illegality, irregularity in vital matters, mistake, misconception of facts, erroneous conclusion of law, surprise or inadvertence.” Geiger v. Miss. St. Bd. of Cosmetology, 246 Miss. 542, 547, 151 So.2d 189, 191 (1963).

¶ 27. The Department did not recognize its discretionary authority to reconsider due to fraud or misconception of facts. It did not note that it could for “good cause” relax a non-statutory procedural time limit. Such discretion is in the nature of the right that courts have to grant relief from judgment based on mistake, newly discovered evidence, or fraud. M.R.C.P. 60(b). A ruling on a Rule 60(b) motion by a trial judge may be appealed, but the review will not be of the decision on the merits but only of the decision on whether to grant relief from a judgment. Overbey v. Murray, 569 So.2d 303, 305 (Miss.1990). As with courts for a new trial motion (M.R.C.P.59(b)), there is a specific time limit at this agency for seeking reconsideration of a claims examiner ruling. There is additional time in which the kind of significant error mentioned in Geiger can be brought to the attention of the Department and appropriate relief be considered. Decisions on whether to grant the relief are then subject to timely appeal.

¶28. The Department at some stage prior to creating what appears to be a form letter sent to parties about a claims examiner decision, determined that fourteen days should be the time at which to seek statutorily-authorized reconsideration. That is enforceable as the general time limit. However, contrary to the language in the Department’s June 24 letter to Herring, the initial claims examiner determination was not “final according to law” if by that the Department meant it had lost authority to reconsider the matter for sufficiently compelling cause.

¶ 29. The Department had discretion to accept this new evidence and make appropriate adjustments to the earlier decision. It was the failure to recognize and exercise that discretion in some manner that causes us to reverse for legal error. Such discretion can tend towards arbitrariness and can be abused, whether relief is granted or withheld. Properly exercised, which requires proper showings of compelling circumstances, the discretion is as essential to an agency as it is to a court.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY IS REVERSED AND THE CAUSE IS REMANDED TO THE DEPARTMENT OF EMPLOYMENT SECURITY FOR DETERMINING, CONSISTENTLY WITH THIS OPINION, WHETHER THIS IS A PROPER CASE FOR EXERCISING ITS DISCRETION TO RECONSIDER A DECISION BASED ON FRAUD, NEW EVIDENCE, OR OTHER RELEVANT REASONS.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Effective July 1, 2004, the name of the Mississippi Employment Security Commission changed to the Department of Employment Security, Office of the Governor. Miss.Code Ann. Section 71-5-11(f) (Supp.2006).


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Jimmy WILLINGHAM, Lorean Willingham and Natalie Downs, Individually, and as Personal Representative of the Wrongful Death Beneficiaries of Audley Jack Downs, Jr., Deceased, Appellants v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
    No. 2005-CA-01997-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      John H. Cocke, Clarksdale, Robert Q. Whitwell, Ashland, attorneys for appellants.
    Roy Jefferson Allen, Clarksdale, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Jimmy Willingham, Lorean Willing-ham, and Natalie Downs (Appellants) sued the Mississippi Transportation Commission (MTC) for injuries and death resulting from a two-vehicle collision on a state highway. After discovery, the Coahoma County Circuit Court found that there were no genuine issues of material fact and granted summary judgment on behalf of 'the MTC. Aggrieved, the Appellants appeal and assert that the court erred in granting summary judgment.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On the night of May 5, 2003, Jackie Downs was driving his vehicle southward on Highway 49 near Clarksdale, Mississippi. Jimmy Willingham was his passenger. The weather was apparently inhospitable, with heavy rainfall. William Wright, a minor, was driving on Highway 49 in a northerly direction. Wright apparently hydroplaned and subsequently lost control of his vehicle, ultimately crossing into the south-bound lane of traffic and colliding with Downs’ vehicle. Downs was killed and Willingham suffered permanent injuries as a result of the accident.

¶ 4. The surface of the highway where the accident occurred had rutting, which the Appellants allege caused water to build up in the cracks, contributing to Wright’s hydroplaning. However, according to the complaints filed, Wright was also traveling at an excessive speed and had numerous items in disrepair on his vehicle. The Appellants sued Wright as well as the MTC, and have reached a settlement with Wright.

¶ 5. It is clear from the record that the area of the highway in question was in a state of disrepair, with rutting in the pavement, and that the MTC had, in fact, already made arrangements to have the highway surface repaired. It is also indisputable that there were no special warning signs in place to warn drivers that hydroplaning was a danger during heavy rainfall. James Dickerson, MTC’s District Engineer who was deposed on behalf of the MTC, acknowledged that the area had extensive rutting. Dickerson also testified that, although the MTC can repair small sections of road internally, the length of the rutting in the area in question required that the repair work be let for external bids. Dickerson testified extensively regarding the fact that the MTC does not have enough funds to repair all the roads under its control that are in need of repair. Therefore, Dickerson testified, roads must be assigned a priority and repaired according to that prioritization. Although a computer program is used to help prioritize which roads are most in need of repair, Dickerson testified that the MTC has the discretion to alter the priority of a road if it deems necessary. The stretch of highway at issue here had, in fact, been moved up in priority by the MTC because of its location in the Delta, where water does not run off the roads as easily as it might in other areas.

¶ 6. After considering all the evidence before it, the trial court granted the MTC’s motion for summary judgment, finding that the Mississippi Tort Claims Act (MTCA) grants the MTC immunity from the Appellants’ suit.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶7. We apply a “de novo standard of review to [a] trial court’s grant of summary judgment.” Walker v. Whitfield Nursing Ctr., Inc., 931 So.2d 583, 587(¶ 11) (Miss.2006) (citing Stuckey v. Provident Bank, 912 So.2d 859, 864(¶ 8) (Miss.2005)). Summary judgment is proper where the evidence shows that there is no genuine issue of material fact in the case. Id. at 587(¶12) (quoting M.R.C.P. 56(c)). The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact. Id. The non-moving party “should be given the benefit of every reasonable doubt.” Id. (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Id. at 588(¶ 13) (quoting Tucker, 558 So.2d at 872).

MTCA and Relevant Statutes

¶ 8. The MTCA is found in Chapter 46 of Title 11 of the Mississippi Code, as annotated. Section 11-46-9 relates specifically to the exemptions and protections that governmental entities enjoy under the MTCA. Government employees who exercise due care in the performance or omission of a statutory duty are shielded from liability. Miss.Code Ann. § 11 — 46—9(l)(b) (Supp.2006). The MTCA also grants immunity to governmental employees who perform (or decline to perform) an action on the basis of “a discretionary function or duty ... whether or not the discretion be abused.” Id. at (l)(d). For several years, this subsection was interpreted by Mississippi appellate courts as implying a standard of due care, but the Mississippi Supreme Court has since held that the due care standard does not apply to discretionary functions. Collins v. Tallahatchie County, 876 So.2d 284, 289(¶ 17) (Miss.2004). Therefore, if an employee’s act is discretionary, immunity is granted, regardless of whether due care was exercised in the execution of the duty.

¶ 9. The MTCA also grants immunity to governmental employees for failure to warn, “unless the absence ... [of a] warning device ... is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.” Miss.Code Ann. § ll-46-9(l)(w) (Supp.2006). This provision is additionally limited by the fact that the MTCA grants immunity where a governmental entity fails to warn of a “dangerous condition which is obvious to one exercising due care.” Id. at (l)(v). In other words, a governmental agency can suffer no liability for dangers that are open and obvious to a person exercising due care.

¶ 10. Also relevant in this case is a provision that dictates that the MTC “shall place and maintain such traffic control devices conforming to its manual and specifications, upon all state and county highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.” Miss.Code Ann. § 63-3-303 (Rev. 2004) (emphasis added).

Whether Discretionary or Statutory Duty

¶ 11. The Appellants urge this Court to find that the MTC has a statutory duty to place warning signs, per Mississippi Code Annotated section 63-3-303. Although this section may, at first glance, appear to place upon the MTC a statutory duty to place warning signs, we note that the clear meaning of the section is to create a statutory duty that must be carried out in a discretionary matter. In general, “[w]hen an official is required to use his own judgment or discretion in performing a duty, that duty is discretionary.” Harris v. McCray, 867 So.2d 188, 191(¶ 12) (Miss. 2003) (citations omitted). The phrase “as it shall deem necessary” indicates that the MTC’s employees must use their own “judgment or discretion” in choosing where and when to place warning signs. Because the MTC’s duty is discretionary, the MTC’s failure to place warning signs is shielded from liability according to Mississippi Code Annotated section 11-46-9(1)(d), as discussed previously.

¶ 12. We further note that our interpretation of section 63-3-303 is supported by extant case law, which has generally interpreted the MTC’s duty to warn as a discretionary function. See, e.g., Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 269(¶44) (Miss.2003) (incorrectly holding that discretionary function is subject to ordinary care standard, based on preexisting case law); Leflore County v. Givens, 754 So.2d 1223, 1227 (¶¶ 9-10) (Miss.2000) (overruled on other grounds; incorrectly holding that discretionary function is subject to ordinary care standard).

¶ 13. In Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 262 (¶¶ 18-19) (Miss.1999), the Mississippi Supreme Court determined, in accordance with then-existing case law, that the placement of traffic control devices is a discretionary function because it involves an “element of choice or judgment” that impacts “social, economic or political policy.” Like this Court, the Jones court specifically addressed the phrase “as it shall deem necessary.” Id. at 262(¶ 18). The court then went on to say that “once the road is built and the responsible entity becomes aware of a dangerous condition in connection with the road, the duty becomes one of maintenance. Therefore, MDOT and Tunica County were required to use due care in the exercise of their discretion.” Id. at 264(¶24) (emphasis added) (citing Bailey Drainage Dist. v. Stark, 526 So.2d 678, 681 n. 2 (Fla.1988)). This passage, taken as a whole, indicates to this Court that the Jones court was discussing the imposition of the due care standard, rather than meaning that the placement of warning signs on existing roads is not a discretionary function. The placement, or non-placement, of warning signs is a discretionary act, involving a choice that must be based upon public policy and other considerations.

¶ 14. While the MTC’s duty to place warning signs is statutory, the execution of that duty is discretionary. As such, the MTC is entitled to immunity under Mississippi Code Annotated section 11 — 46— 9(l)(d).

Section ll-Jt6-9(l)(v)

¶ 15. Sections 11^46-9(l)(v) and (w), make it clear that a governmental agency can be held liable for failure to warn of a known danger, as long as that danger is not open and obvious.

¶ 16. In this case, the danger at issue was open and obvious to one exercising ordinary care. It is elementary, common knowledge that driving is more dangerous and should be approached more carefully during bad weather, such as the weather at the time of the accident in question. Although the pavement at question in this case was rutted and may have heightened the risk for hydroplaning, the risk of hydroplaning during rainfall is an open and obvious danger, such that the MTC is shielded under the MTCA. We note that the Appellants alleged in their respective complaints that Wright, the minor who caused the accident at issue, was driving at an excessive speed and did not have proper equipment on his vehicle. These allegations underscore the fact that this danger should have been open and obvious to one exercising due care, as Wright clearly was not exercising due care. No evidence was offered by the Appellants to indicate that the rutting was so severe that it posed a hidden danger to travelers who were exercising due care. Therefore, the MTC cannot be held liable under the MTCA for failure to place warning signs on the stretch of highway in question.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY.

      . The Appellants argued two theories of recovery in their briefs: first, that the MTC is liable for failure to maintain the highways properly, and second, that the MTC is liable for failing to warn of an dangerous condition. However, at oral argument on this matter, the Appellants clearly abandoned their first theory of recovery when they were asked about the state’s available funds and responded: "Your Honor, I'm not arguing that.... Our argument is one of warning.” The MTC's attorney acknowledged this concession during the MTC’s argument, and no further attempt was made during the Appellant’s rebuttal argument to revive the maintenance issue.


author: HARWOOD, Justice.

text:
    Tad BROWN, personal representative and/or administrator of the estate of Todd Brown, deceased v. GREATER MOBILE-WASHINGTON COUNTY MENTAL HEALTH-MENTAL RETARDATION BOARD, INC., and Alberta D. Abrams.
    1050003.
    Supreme Court of Alabama.
    May 26, 2006.
    Toby D. Brown, George W. Finkbohner III, and George M. Dent III of Cunningham, Bounds, Crowder, Brown & Breed-love, L.L.C., Mobile; and L. Daniel Mims, Mobile, for appellant.
    W. Austin Mulherin III and Kathryn T. Hamilton of Frazer, Greene, Upchurch & Baker, Mobile; and Edward M. Weed of Martin Weed, LLC, Birmingham, for ap-pellees.
   HARWOOD, Justice.

This case arises out of an accident involving a passenger van owned and operated by the Greater Mobile-Washington County Mental Health-Mental Retardation Board, Inc. (“the Board”). At the time of the accident, 11 residents of a group home operated by the Board were passengers in the van. This Court’s opinion in Ex parte Greater Mobile-Washington County Mental Health-Mental Retardation Board, Inc., 940 So.2d 990 (Ala.2006) (hereinafter “Kininessi”), described the accident involving the van, in which Dwight Eric Ki-ninessi, a resident of the group home, was killed. One other passenger, Todd Brown, was killed in the accident.

Kininessi’s mother and Brown’s father filed separate wrongful-death actions against the Board and Alberta D. Abrams, the house manager of the group home who was driving the van at the time of the accident (hereinafter referred to jointly as “the defendants”). In each action the defendants moved for a summary judgment on the basis of various types of immunity, the Board principally relying on its claim that it was entitled to absolute “sovereign immunity” under Art. I, § 14, Alabama Constitution of 1901, and Abrams claiming “State-agent” immunity. The circuit judge assigned the case involving Kininessi denied the motions for a summary judgment filed in it, and the defendants petitioned this Court for a writ of mandamus directing the judge to grant their motions. This Court undertook a thorough review of the caselaw relating to the criteria for determining whether a particular entity qualifies as a State agency for purposes of § 14 and concluded that the Board had not shown that it qualified as a State agency and, consequently, that Abrams could not be classified as a State agent. The Court also explained why it rejected the Board’s alternative claim of “substantive immunity” of the type recognized by Rich v. City of Mobile, 410 So.2d 385 (Ala.1982), and its progeny.

In the present appeal, the plaintiff, Tad Brown, proceeding as “personal representative and/or administrator of the estate of Todd Brown,” appeals from the ruling of a different circuit judge handling his case. The judge in Brown’s case entered judgments for the Board and for Abrams, based on his conclusion that the Board was entitled to sovereign immunity as a State agency and that Abrams, as its employee, was entitled to State-agent immunity, as articulated in Ex parte Cranman, 792 So.2d 392 (Ala.2000).

Our opinion in Kininessi essentially disposes of all of the arguments presented by the Board in this present appeal; for that reason and other reasons hereinafter explained, we reverse the summary judgments for the Board and Abrams entered by the Mobile Circuit Court on August 23, 2005.

In their joint brief filed with this Court on March 16, 2006, the Board and Abrams acknowledge this Court’s opinion in Kini-nessi issued on March 3, 2006, but they do not undertake to examine, or to distinguish, its rationale and holding. The only new argument they advance in support of their immunity theory is the suggestion that this Court in Kininessi “overlooked” the recent history and current operations of the State of Alabama’s mental-health system as described and mandated over the course of what they refer to as the “Wyatt litigation,” comprising Wyatt ex rel. Rawlins v. Sawyer, 219 F.R.D. 529 (M.D.Ala.2004); Wyatt v. Rogers, 985 F.Supp. 1356 (M.D.Ala.1997); Wyatt v. King, 803 F.Supp. 377 (M.D.Ala.1992); Wyatt v. Wallis, Civ. A. No. 3195-N, September 22, 1986 (M.D.Ala.1986) (not reported in F.Supp.); and Wyatt v. Stickney, 325 F.Supp. 781 (M.D.Ala.1971).

We reject the notion that we “overlooked” the Wyatt litigation in Kininessi, for the simple reason that in their briefs filed in Kininessi the Board and Abrams never cited any of those cases or alluded to them in any fashion whatsoever in either the trial court or their submissions to this Court, until after our opinion in Kininessi was issued on March 3, 2006. In their application for rehearing in Kininessi, the Board and Abrams argued for the first time that implications of the Wyatt litigation supported their contention that the Board was due recognition as a State agency clothed with sovereign immunity. However, “[m]atters not argued in an appellant’s brief on original submission cannot be raised for the first time on application for rehearing.” SouthTrust Bank v. Copeland One, L.L.C., 886 So.2d 38, 43 (Ala.2003) (opinion on application for rehearing).

Likewise, in this case neither the Board nor Abrams cited the Wyatt litigation in their respective motions for a summary judgment and neither the 19-page summary-judgment order the trial judge entered for the Board nor the 24-page summary-judgment order the judge entered for Abrams contained any reference to the Wyatt litigation. Only in the Board’s brief filed with this Court 13 days after our opinion in Kininessi was issued did the Board turn to the Wyatt litigation as support for its position that it was entitled to sovereign immunity as a State agency. However, subject to limited exceptions based on due-process constraints requiring notice at the trial level,

“an appellate court will affirm a summary judgment on the basis of a law or legal principle not invoked by the moving party or the trial court, even though an appellate court will not reverse a summary judgment on the basis of a law or legal principle not first argued to the trial court by the nonmoving party.”

Vesta Fire & Ins. Corp. v. Milam & Co. Constr., 901 So.2d 84, 104 (Ala.2004).

Nonetheless, we do not find those features of the Wyatt litigation the Board now discusses to be contrary to our analysis and holding in Kininessi. The Wyatt litigation simply required that the Alabama Department of Mental Health and Mental Retardation develop a broad range of community facilities and programs so that persons theretofore hospitalized in State institutions but not requiring institutionalization could experience the benefits of community placement. How that was accomplished, and through what mechanisms and facilities, was not dictated by the Wyatt litigation; those decisions did not undertake to specify by whom the local community facilities should be owned or operated. Nothing in those decisions indicated that local community facilities could not or should not be owned and operated by the State of Alabama, as opposed to private entities, local governmental entities, some form of public corporation, or combinations thereof. As Brown aptly points out in his reply brief, “[the Board] simply assumes that all actions taken in response to the Wyatt litigation must be taken by State entities that are within the scope of § 14 of the Constitution, but Wyatt is completely unconcerned with and has no bearing on that question.” (Brown’s reply brief, p. 8.) The legislation authorizing the creation of public corporations such as the Board was enacted in 1967, well in advance of the first of the decisions in the Wyatt litigation, and it is therefore clear that those public corporations were not created simply to implement the mandates of the Wyatt litigation.

Having concluded that our opinion in Kininessi fully addresses and disposes of all contentions and arguments now advanced by the Board and Abrams, other than their arguments concerning the implications of the Wyatt litigation, which we today reject, we again hold that the Board has not shown itself to be a State agency entitled to sovereign immunity under § 14, Ala. Const.1901, and that Abrams consequently does not qualify as a State agent. We reverse the summary judgments entered in favor of the Board and Abrams and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.


author: THOMPSON, Judge.

text:
    CVS PHARMACY, INC. v. Francis SMITH.
    2040930.
    Court of Civil Appeals of Alabama.
    May 26, 2006.
    Horace V. O’Neal, Jr., of Leo & O’Neal, Birmingham, for appellant.
    Cecil G. Duffee III of The Duffee Firm, Birmingham, for appellee.
   THOMPSON, Judge.

CVS Pharmacy, Inc. (“CVS”), appeals the trial court’s determination that Francis Smith was permanently and totally disabled as a result of an injury Smith sustained during the course of her employment with CVS. We dismiss the appeal as arising from a nonfinal judgment.

On April 15, 2003, Smith sued CVS seeking workers’ compensation benefits. CVS answered Smith’s complaint and denied liability. Smith amended her complaint by adding several tort claims against GAB Robins North America, Inc. (“GAB”), and Barbara Prince, an employee of GAB. The amended complaint, which did not allege any tortious conduct on the part of CVS, included a demand for a jury trial. CVS answered the amended complaint by entering a general denial of Smith’s claim. Likewise, GAB and Prince answered the amended complaint and denied liability. On November 26, 2004, the trial court entered an order by which it “severed [the workers’ compensation claim against CVS] from [the tort claims against GAB and Prince] for the purpose of separate trials in this action.”

The trial court conducted an ore tenus hearing on the workers’ compensation claim on April 11, 2005; on June 13, 2005, CVS and Smith filed “trial stipulations.” On June 15, 2005, the trial court entered an order as to the workers’ compensation claim, determining that Smith was permanently and totally disabled. On July 29, 2005, CVS filed its notice of appeal with this court. The parties attempted to resolve their disputes through the appellate-mediation process; that effort was unsuccessful.

On March 22, 2006, this court reinvested the trial court with jurisdiction for 14 days to determine whether a Rule 54(b), Ala. R. Civ. P., certification would be appropriate in light of the trial court’s severance of the workers’ compensation claim and the tort claims “for the purpose of separate trials in this action.” On April 7, 2006, the trial court certified the order pertaining to Smith’s workers’ compensation claim as “final.”

A detailed recitation of the facts of this case is not necessary for the disposition of this appeal. Suffice it to say that the trial court found that Smith suffered a compen-sable injury during the course of her employment with CVS and that that injury caused Smith to be totally and permanently disabled. As a result of that determination, the trial court awarded Smith “appropriate benefits,” retroactive to August 29, 2002, the date on which the trial court found Smith to have reached maximum medical improvement. The trial court also ordered CVS to pay Smith’s legal expenses associated with the prosecution of her workers’ compensation action and to be responsible for any future medical expenses incurred by Smith as a result of her injury. The trial court’s order did not state the amount of damages Smith was due to receive.

Although neither party has questioned this court’s jurisdiction over this appeal, we must address that question because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Williams Power, Inc. v. Johnson, 880 So.2d 459, 461 (Ala.Civ.App.2003) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

“ ‘It is well established that a final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts.’

“Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (emphasis added).”

Williams Power, Inc. v. Johnson, 880 So.2d at 461.

This court has dismissed an appeal in a workers’ compensation case in which the trial court failed to sufficiently ascertain and declare the rights of the parties, thereby causing the trial court’s judgment to be nonfinal. See, e.g., Sign Plex v. Tholl, 863 So.2d 1113, 1115 (Ala.Civ.App. 2003) (dismissing an appeal in a workers’ compensation action due to the trial court’s resolving only the issue of compensability, rather than all of the issues involved in the action). Specifically, this court has dismissed an appeal in a workers’ compensation action due to the trial court’s failure to determine the amount of benefits due to an injured employee. International Paper Co. v. Dempsey, 844 So.2d 1236, 1238 (Ala. Civ.App.2002). See also Williams Power, Inc. v. Johnson, supra; Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App. 2003); and USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003).

In this case, the trial court failed to determine a specific amount of damages due Smith. Thus, the issue of the amount of Smith’s damages has not yet been adjudicated. As in the cases cited above, we are bound to dismiss the appeal because the trial court’s order failed to “ ‘ “suffi-eiently[ ] ascertain and declare[ ] the rights of the parties” ’ so as to constitute a final judgment that would support an appeal. [International Paper Co. v. Dempsey,] 844 So.2d [1236,] 1237 [(Ala.Civ.App.2002)] (quoting Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990)).” Sign Plex v. Tholl, 863 So.2d at 1116.

Also, we note that § 25-5-88, Ala.Code 1975, provides that a final judgment in a workers’ compensation case “shall contain a statement of the law and facts and conclusions as determined by [the trial] judge.” Substantial compliance with the statute is sufficient. Carr v. Added Dimensions No. 72 Brookwood, Inc., 772 So.2d 473, 475 (Ala.Civ.App.2000) (citing Farris v. St. Vincent’s Hosp., 624 So.2d 183 (Ala.Civ.App.1993)). “To the extent some of the findings of the trial court may be meager or omissive, we note that a reversal is not required.” Werner Co. v. Williams 871 So.2d 845, 853 (Ala.Civ.App.2003). Nonetheless, a trial court’s failure to abide by the requirements of the statute mandates a reversal. Wade Sand & Gravel, Inc. v. Lacey, 855 So.2d 569, 571 (Ala. Civ.App.2003) (citing Lee Apparel Co. v. Hart, 623 So.2d 329 (Ala.Civ.App.1993)).

In this case, the trial court’s failure to enter a final judgment precludes our consideration of the trial court’s compliance with § 25-5-88. We note, however, that had the order presented for our review in this case been a final judgment, whether it complied with § 25-5-88 would have been, at best, questionable. The trial court’s order contains some findings of fact that, if supported by applicable principles of law, could, perhaps, bring the judgment into substantial compliance with § 25-5-88. See Carr v. Added Dimensions No. 72 Brookwood, Inc., supra. Arguably, however, the trial court’s order is devoid of any reference to applicable legal principles or any legal conclusions as to how the facts of this case relate to those principles. See Wade Sand & Gravel, Inc. v. Lacey, supra (reversing a trial court’s judgment that contained findings of fact but did not comply with § 25-5-88, because the judgment contained no conclusions of law). The lack of legal conclusions in the order could, after the trial court enters a final judgment in this matter, call the trial court’s compliance with § 25-5-88 into question. We address this matter simply to put the trial court on notice that when it ultimately enters a final judgment in this case, that judgment must satisfy the requirements of § 25-5-88. See Sign Plex v. Tholl, 863 So.2d at 1117.

APPEAL DISMISSED.

CRAWLEY, P.J., and PITTMAN and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

      . See Bryant v. Flagstar Enterprises, Inc., 717 So.2d 400, 402 (Ala.Civ.App.1998) (noting the distinction between a trial court's severance of separate claims from a single action pursuant to Rule 21, Ala. R. Civ. P., which results in separate actions, and a trial court’s sever-anee of separate claims in a single action for the purpose of separate trials in the action pursuant to Rule 42, Ala. R. Civ. P., which results in a single action and from which an appeal may lie only after the adjudication of all of the claims).


author: PER CURIAM. CRAWLEY,

text:
    In the matter of B.B., a minor child.
    2050158.
    Court of Civil Appeals of Alabama.
    May 26, 2006.
    Sammie D. Shaw, Birmingham, for D.W.
    Submitted on D.W.’s brief only.
   PER CURIAM.

D.W. (“the uncle”) had custody of B.B. (“the child”) since the child was approximately one and a half years old until May 2005. The child is currently 14 years old. The child has had little contact with her natural parents because of their substance-abuse problems.

The uncle accused the child of stealing from him, his wife, and his wife’s son. As a result, on May 17, 2005, the child was placed on probation and ordered to perform community service. Immediately following the hearing on the criminal charges, D.W. relinquished custody of the child. On May 18, 2005, the juvenile court entered an order finding the child to be dependent, awarding custody of the child to the Department of Human Resources (“DHR”), and placing the child in a group home.

On June 8, 2005, DHR conducted a meeting and formulated an Individualized Service Plan (“ISP”) for the child. The uncle participated in the ISP meeting. The ISP goals for the child’s “family members” included “openly communicating” with each other and visiting with the child in order for the family members to rebuild and improve their relationships with the child. DHR’s goal was, and has continued to be, that the child be “returned home.”

The juvenile court entered several orders during its continued review of this matter. Pursuant to those court orders, the uncle was awarded visitation rights with the child. A report prepared by a worker at the group home for a June 20, 2005, review hearing before the juvenile court indicates that the uncle was “very unhappy with [the child] and her behavior. He wants to see changes and improvements before she can come home with him.”

The child has remained in the group home since May 2005. During the time that the child has remained in the group home, the uncle has maintained only minimal contact with her, primarily by telephone. The uncle and his wife have refused to cooperate in DHR-recommended and court-ordered family therapy.

On July 29, 2005, in response to a motion filed by the uncle, the juvenile court removed from a June 2005 court order a requirement that the uncle submit to a psychological evaluation. However, subsequent to the entry of the July 29, 2005, order, the child’s psychologist advised the court, among other things, that the uncle and his wife should submit to a psychological evaluation and that they should follow the recommendations that result from that evaluation. The juvenile court, based upon the recommendation of the child’s psychologist, entered a dispositional order on October 4, 2005, that provided, in pertinent part, that the uncle submit to a psychological evaluation. In its October 4, 2005, dispositional order, the juvenile court also made a finding of dependency, ordered that custody of the child remain with DHR, and awarded visitation rights to the uncle and to the child’s mother. The uncle filed a postjudgment motion. We note that in his postjudgment motion the uncle maintained that he had relinquished custody of the child and that he “is not seeking to regain custody.” The uncle’s post-judgment motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; and Rule 1(B), Ala. R. Juv. P. The uncle timely appealed.

The uncle argues that the juvenile court erred in requiring him to submit to a psychological evaluation. He asserts that the doctrine of res judicata prevented the juvenile court from entering its October 4, 2005, order requiring him to submit to a psychological evaluation. The uncle argues that the July 29, 2005, order that removed the requirement that he submit to a psychological evaluation was a final judgment that resolved the issue whether he should have to be psychologically evaluated during the pendency of this matter.

In support of this argument, the uncle cites only one authority that sets forth generally the elements of the doctrine of res judicata. See Robinson v. Holley, 549 So.2d 1 (Ala.1989). In that case, our supreme court stated that the doctrine of res judicata bars a subsequent legal action when “(1) the question or fact ... ha[s] been litigated and determined by a court of competent jurisdiction; (2) the final judgment [was] rendered on the merits; (3) the parties to both suits [are] substantially identical; and (4) the same cause of action ... ha[s] been presented in both suits.” Robinson v. Holley, 549 So.2d at 2. The uncle makes no argument applying the above-listed factors to the facts of this case. Specifically, the uncle fails to argue whether the issue of whether he should undergo a psychological evaluation was “litigated and determined” by the July 29, 2005, order or whether the July 29, 2005, order was a “final judgment ... rendered on the merits” that would have preclusive effect. Id. It is not the function of this court to create such an argument on behalf of the uncle or to perform research in order to properly support such an argument. BankAmerica Housing Servs., a Div. of Bank of America, FSB v. Lee, 833 So.2d 609, 620-21 (Ala.2002); see also Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992) (“[W]e cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.”).

Out of an abundance of caution, we note:
“Unlike many other types of cases, dependency proceedings often involve a series of appealable dispositional custody orders. Eventually the trial court enters an order in a dependency proceeding that is intended to be its ‘final’ dispositional order as to the pending case, i.e., a custodial placement that is intended to be permanent, to the extent custody awards can be permanent. See Ex parte J.P., 641 So.2d [276,] 278 [ (Ala.1994) ] (‘by its very nature, custody is always temporary and never permanent’ because it is always subject to change based upon an appropriate petition and evidence). Under ideal circumstances, such final dispositional orders coincide with the end of the child’s dependency, i.e., the child has a proper custodian ‘and ’ is no longer ‘in need of care or supervision’ by persons other than the custodian. See Ala.Code 1975, § 12-15-1 (10)n. In other words, under ideal circumstances, the final dispositional order results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.
“Notwithstanding the foregoing, regardless of whether a dispositional order is the ‘final’ dispositional order in a particular case (meaning that it will not be changed absent the filing of an appropriate pleading, proof of a material change in circumstances, and meeting the applicable legal standard), our legislature has indicated that the appropriate standard to be applied in an ongoing dependency proceeding is the best-interest standard. See Ala.Code 1975, § 12-15-71(a).”

S.P. v. E.T., [Ms. 2040044, Dec. 30, 2005] — So.2d -, - (Ala.Civ.App.2005). Nothing in the record indicates that the dispositional orders entered in this matter were “final” dispositional orders so as to trigger the application of the doctrine of res judicata. The uncle has failed to demonstrate error with regard to this argument.

The uncle cites § 12-15-69, Ala. Code 1975, in support of his argument that the juvenile court erred in requiring him to submit to a psychological evaluation. That section provides, in pertinent part:

“(b) Where there are indications that the child may be physically ill, mentally ill or mentally retarded, the court, on its own motion or motion by the prosecutor or that of counsel for the child, may order the child to be examined at a suitable place by a physician, psychiatrist, psychologist or other qualified examiner, under the supervision of a physician, psychiatrist or psychologist who shall certify such examiner’s findings in writing, or an examiner approved by the Department of Mental Health prior to a hearing on the merits of the petition.
“(d) The court, after hearing, may order an examination as described in subsection (b) of this section of a parent or custodian who gives his consent and whose ability to care for or supervise a child before the court is in issue.”

Much of the record supports a conclusion that DHR and the juvenile court believe that the uncle is seeking to be reunited with the child. The uncle has asserted, however, both before the juvenile court in his postjudgment motion and before this court in his appellate brief, that he “is not seeking” custody of the child. It is not clear to this court whether or not the uncle intends to be reunited with the child at some point in the future. Therefore, we reverse the juvenile court’s judgment insofar as it requires the uncle to undergo a psychological evaluation, and we remand this case for the juvenile court to determine whether or not the uncle is seeking custody of the child or intends to seek custody of the child in the future. If the juvenile court determines that the uncle is seeking custody, it has the authority to determine whether the uncle’s ability to care for the child will be at issue. See J.M. v. State Dep’t of Human Res., 686 So.2d 1253, 1255 (Ala.Civ.App.1996) (affirming the trial court’s order requiring the mother to submit to a psychological evaluation over her objection because her “psychological well-being was directly related to her ability to care for the children”). If the uncle’s ability to care for the child is or will be at issue, given the particular facts of this case, we can find no abuse of discretion on the part of the juvenile court in requiring the uncle to submit to a psychological evaluation. See J.M. v. State Dep’t of Human Res., supra; see also § 12-15-71(a)(4), Ala. Code 1975 (providing that the trial court may “[m]ake any other order as the court in its discretion shall deem to be for the welfare and best interests of the child”).

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the judgment of reversal only, without writing.

CRAWLEY, P.J., dissents from the rationale and concurs in the judgment of reversal, with writing.

CRAWLEY,

Presiding Judge, dissenting from the rationale and concurring in the judgment of reversal.

I respectfully dissent from the portion of the majority opinion requiring the juvenile court to conduct a hearing to determine whether the uncle desires to become the child’s custodian.

The main opinion does not address the merits of the uncle’s strongest argument on appeal, namely, that he cannot be compelled to undergo a psychological examination because he is not the custodian of the child. This is the first argument the uncle raises in his brief to this court.

This court should not simply ignore this argument; instead, this court should address this argument on the merits and examine the plain language of the statute at issue. Section 12-15-69, Ala.Code 1975, provides, in relevant part:

“(b) Where there are indications that the child may be physically ill, mentally ill or mentally retarded, the court, on its own motion or motion by the prosecutor or that of counsel for the child, may order the child to be examined at a suitable place by a physician, psychiatrist, psychologist or other qualified examiner, under the supervision of a physician, psychiatrist or psychologist who shall certify such examiner’s findings in writing, or an examiner approved by the Department of Mental Health prior to a hearing on the merits of the petition.
“(d) The court, after hearing, may order an examination as described in subsection (b) of this section of a parent or custodian who gives his consent and whose ability to care for or supervise a child before the court is in issue.”

(Emphasis added.) Our supreme court has long held that the plain language of a statute should be considered to mean exactly what it says. Ex parte Madison County, 406 So.2d 398, 400 (Ala.1981) (citing Fletcher v. Tuscaloosa Fed. Sav. & Loan Ass’n, 294 Ala. 173, 314 So.2d 51 (1975); State v. Robinson Land & Lumber Co. of Alabama, 262 Ala. 146, 77 So.2d 641 (1955); and Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720 (1936)).

According to the plain language of the statute at issue, a trial court can order only a parent or custodian of a child to submit to a psychological examination. The record indicates that the uncle, although he did maintain some contact with the child after she was placed in the legal custody of the Department of Human Resources (“DHR”), was not a parent or the legal or physical custodian of the child. This case is distinguishable from J.M. v. State Department of Human Resources, 686 So.2d 1253 (Ala.Civ.App.1996), which is relied upon by the majority, because that case involved the parent of the child, not, as in this case, a person who was previously the custodian of the child. Whether the uncle desires to again become, at some point in the future, the custodian of the child is immaterial; the uncle was not a parent or custodian of the child at the time of this litigation.

Although DHR may desire to reunite the child with the uncle, neither it nor the juvenile court can compel the uncle against his will to become the child’s custodian. Therefore, the juvenile court erred in requiring the uncle to submit to a psychological examination. I would reverse the trial court’s judgment, as the main opinion does, but I would do so on the basis that the uncle cannot be required to submit to a psychological examination.

Finally, I would pretermit the remaining issues the uncle raises on appeal, in light of the discussion above.

      . In his special writing, Presiding Judge Crawley has accused the majority of this court of "ignoring” the uncle's argument that he cannot be required to submit to a psychological examination; the uncle bases that argument on his assertion that because he relinquished custody of the child he is not a “custodian" under § 12-15-69, Ala.Code 1975. Like the uncle, the special writing merely asserts that the uncle is not the custodian of the child. Neither the uncle nor the special writing cites any authority in support of that assertion, neither defines the term “custodian,” and neither develops any argument with regard to the use of the term “custodian” under Chapter 15 of Title 12, Ala. Code 1975. It is not the function of this court to create arguments for an appellant or to perform the legal research and analysis necessary to support those arguments. Rowe v. Dunn, [Ms. 2040447, March 3, 2006] - So.2d -, - (Ala.Civ.App.2006) (citing Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.1986), and Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)). “[W]e decline to do the [uncle’s] research and to properly develop an argument on this issue.” M.E.T. v. M.F., 892 So.2d 393, 394 (Ala.Civ.App.2003).


author: CRAWLEY, PITTMAN, Judge, MURDOCK, Judge,

text:
    Larry ROBINSON and Chrissa Robinson v. Phyllis KATO.
    2040922.
    Court of Civil Appeals of Alabama.
    June 2, 2006.
    Horace V. O’Neal, Jr., of Leo & O’Neal, Birmingham, for appellants.
    Charles R. Crowder and Jason A. Sham-blin of Cory, Crowder & DeGaris, P.C., Birmingham, for appellee.
   CRAWLEY,

Presiding Judge.

In September 1998, Larry Robinson and Chrissa Robinson (“the sellers”) sold a house to Phyllis Kato (“the buyer”). The buyer found several problems with the house, and she sued the sellers in December 1999; that case was assigned case no. CV-99-6928. In June 2002, the sellers and the Buyer entered into a settlement agreement pursuant to which one of three named engineers would review three existing reports on the condition of the house and conduct an independent home inspection. The engineer was to then make a report indicating the problems with the house and outlining the necessary repairs to remedy those problems. The engineer was also to take three bids on the repair work from general contractors of his choosing. The general contractor was to utilize subcontractors of the sellers’ choosing to perform the necessary repairs. Once the repairs were completed, the engineer was to make another inspection, and, if the repairs were completed satisfactorily, the engineer was to certify that the house was structurally sound and that all defects had been remedied. The sellers were to pay the engineer, the general contractor, the subcontractors, and for all materials to complete the repairs. On June 18, 2002, after the parties had entered into the settlement agreement, the trial court dismissed case no. CV-99-6928.

Over the next two years, the parties experienced difficulty in implementing the provisions of the settlement agreement. Hack Sain, one of the three engineers listed in the settlement agreement, completed an inspection only after the trial court issued an order on March 15, 2004, requiring that it be completed. Ultimately, before any of the repair work had been started, Sain resigned. The buyer filed a motion entitled “Motion for Instructions,” seeking guidance from the trial court about how to proceed to enforce the settlement agreement. In response, the trial court entered an order in which it held that it no longer had jurisdiction over the case and instructed the parties “to seek, through a separate legal action, a determination of their respective rights, duties and obligations under the Settlement Agreement.” The buyer then filed the present action, which was assigned case no. CV-04-5832, in which she sought enforcement of the settlement agreement, a money judgment for the cost of the uncompleted repairs, or that the dismissal of case no. CV-99-6928, the earlier action, be set aside (thereby effectively setting aside the settlement agreement) and that the case be set for a trial.

The buyer moved for a summary judgment in case no. CV-04-5832, arguing to the trial court that the sellers had breached the settlement agreement and that, therefore, she was entitled to money damages in the amount of $70,763, the cost of the repairs based upon an inspection report of Jerry South, one of the engineers named as an acceptable engineer in the parties’ settlement agreement. The sellers filed a response to the buyer’s motion. Nothing in the record indicates whether the trial court ruled on the motion for a summary judgment. However, the trial court did reinstate case no. CV-99-6928 and set it for trial.

The sellers appealed the judgment reinstating case no. CV-99-6928 to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6). On appeal, the sellers argue that the trial court erred in setting aside the settlement agreement in case no. CV-99-6928. In support of their arguments, the sellers cite law pertaining to summary judgments, the doctrine of res judicata, the equitable doctrine of “clean hands,” and settlements. The buyer’s brief in response argues that the trial court properly exercised its discretion in setting aside, pursuant to Rule 60(b)(6), Ala. R. Civ. P., the settlement agreement in case no. CV-99-6928 in light of the impossibility of its enforcement.

The buyer’s action seeking relief from the judgment of dismissal entered pursuant to the settlement agreement in case no. CV-99-6928 could have been brought in case no. CV-99-6928 as a Rule 60(b)(6) motion. A Rule 60(b)(6) motion need only be “made ■within a reasonable time.” Rule 60(b). Because the settlement agreement apparently became impossible to perform only upon Sain’s resignation in March 2004, which was confirmed by the trial court in case no. CV-99-6938 at a hearing in June 2004, the buyer’s September 2004 action was filed within a reasonable time. The fact that the buyer brought an independent action, based upon the original trial court’s mistaken belief that it lacked jurisdiction over the case, is of no consequence however, because “[tjhere is little procedural difference between the two methods of attack [i.e., filing a Rule 60(b) motion or pursuing an independent action], and since nomenclature is unimportant, courts have consistently treated a proceeding in form an independent action as if it were a motion, and vice versa, where one but not the other was technically appropriate, and any procedural difference between them was immaterial in the case.” Rule 60, Committee Comments on 1973 Adoption; see also First Alabama Bank v. McGowan, 758 So.2d 1116, 1117 (Ala.Civ. App.2000); and Sams v. Equitable Life Assurance Soc’y, 402 So.2d 999, 1001 (Ala. Civ.App.1981). Thus, we consider the buyer’s action to be a Rule 60(b)(6) motion seeking to have the dismissal of case no. CV-99-6928 set aside.

Although neither party addresses whether this court has jurisdiction over this appeal, subject-matter jurisdiction may not be waived, and this court takes notice of the lack of subject-matter jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003) (discussing the general rule that this court notices lack of jurisdiction ex mero motu and citing several cases applying that rule).

“ ‘The grant of a Rule 60(b) motion is generally treated as interlocutory and not appealable.... It is only in some situations that an order granting relief under Rule 60(b) is treated as a final judgment for purposes of appeal. But these situations are the exception rather than the rule.’
“The order from which [the appellant] appeals is interlocutory, because further proceedings were to occur.”

Johnson v. Johnson, 703 So.2d 1001, 1002 (Ala.Civ.App.1997) (quoting Ex parte Short, 434 So.2d 728, 730 (Ala.1983)). The order from which the sellers appeal also required further proceedings in the trial court — a trial of the original action in case no. CV-99-6928. Therefore, the trial court’s order was not a final judgment, and this court lacks jurisdiction over this appeal. Ala.Code 1975, § 12-22-2; and Johnson, 703 So.2d at 1002.

APPEAL DISMISSED.

THOMPSON and BRYAN, JJ., concur.

PITTMAN, J., concurs specially, with writing.

MURDOCK, J., dissents, with writing.

PITTMAN, Judge,

concurring specially.

Commentary on Rule 60(b), Fed.R.Civ. P., upon which our rule governing relief from judgments is based, indicates that an independent action “is independent for purposes of appealability” and that the final judgment in such an independent action is appealable “whether it grants or denies relief.” 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2871 (2d ed.1995). Despite that principle, I concur in the dismissal of the sellers’ appeal based on the Committee Comments on 1973 Adoption of Rule 60, Ala. R. Civ. P., which state that “if relief from the judgment is sought in some other court than the court which rendered the judgment, the party should bring an independent proceeding” (emphasis added). While there might otherwise be “little procedural difference” between a Rule 60(b) motion and an independent action (see id.), the apparent intent of the drafters of our rule was to limit the availability of such “independent actions” to courts other than the court that originally rendered the judgment. Thus, I agree with the main opinion’s treatment of the buyer’s “independent action” as a motion for relief under Rule 60(b) because that “action,” like the underlying case, was filed in the Jefferson Circuit Court.

MURDOCK, Judge,

dissenting.

I disagree with Judge Pittman’s conclusion that “the apparent intent of the drafters of [Rule 60(b), Ala. R. Civ. P.,] was to limit the availability of such ‘independent actions’ to courts other than the court that originally rendered the judgment.” 944 So.2d at 968 (Pittman, J., concurring specially). Because I believe that the proceeding initiated in this case was an independent action for which relief has been granted, I conclude that it is an appealable judgment. I therefore respectfully dissent from the main opinion’s conclusion that this appeal should be dismissed.

      . The buyer sued other parties as well; the claims against the other parties were disposed of and are not pertinent to this appeal.

      . Although the trial court had dismissed case no. CV-99-6928 in June 2002, it apparently continued to hold hearings pertaining to that action and issued orders to enforce the settlement agreement.

      . See note 2.