author: MYERS, J.,

text:
    Clifford Nolan JACKSON, Appellant v. Charity Lynn JACKSON, Appellee.
    No. 2010-CA-00849-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2011.
    Rehearing Denied Nov. 29, 2011.
    Certiorari Denied March 15, 2012.

      Joe M. Davis, attorney for appellant.
    Luther Putnam Crull Jr., attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MYERS, J.,

for the Court:

¶ 1. Cliff and Charity Jackson were married in 1998. The marriage produced two daughters, Anna Grace and Molly Elizabeth. At the time of trial, the children were seven and five years of age, respectively. The parties agreed to an irreconcilable differences divorce but left the issue of child custody to the chancery court. Both parents sought physical custody of the children, but each also asked the court to consider joint custody in the alternative. After a trial, the chancellor awarded joint custody, with physical custody to alternate between the parents at two-week intervals. Cliff appeals from that judgment, contending that the chancellor erred in his analysis of the familiar Albright factors.

STANDARD OF REVIEW

¶ 2. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 628, 625-26 (¶ 8) (Miss.2002) (citations omitted). Furthermore, we “will affirm the [child-custody] decree if the record shows any ground upon which the decision may be justified.... We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interest! ] of the child.” Mosley v. Mosley, 784 So.2d 901, 905-06 (¶ 15) (Miss.2001) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).

DISCUSSION

¶ 3. “[T]he polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). To that end, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) the employment responsibilities of the parents; (5) the physical and mental health and age of the parents; (6) the moral fitness of the parents; (7) the emotional ties of the parents and children; (8) the home, school, and community records of the children; (9) the preference of a child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) the other relevant factors in the parent-child relationship. Id.

¶ 4. The chancellor undertook an extensive Albright analysis, finding most factors neutral. Cliff was favored on continuity of care, since he had primary custody of the children after the separation, while Charity was favored because both of the children are female. Overall, the chancellor concluded that both parents were fit and that the Albright factors did not strongly favor one over the other. Based on the specific circumstances of the case, the chancellor determined that joint custody was in the children’s best interests.

¶ 5. Cliff directs his arguments on appeal to the chancellor’s analysis of the Albright factors. He asserts that Charity should not have been favored based solely on the sex of the children. Cliff also argues he should have been favored on the factors of parenting skills and moral fitness because of Charity’s admitted post-separation adultery. Finally, he contends that the chancellor failed to give proper weight to the greater availability of his extended family and the fact that Charity’s work schedule only allowed her to take the children to church every other Sunday and Wednesday.

¶ 6. At the outset, we note that Cliffs argument appears to be based on the mistaken assumption that joint custody cannot be awarded if more of the Albright factors favor him, however slightly. We see no reason why some marginal advantage of one parent should preclude the chancellor from awarding joint custody, so long as both parents are fit and joint custody is found to be in the children’s best interests. See Phillips v. Phillips, 45 So.3d 684, 694 (¶ 30) (Miss.Ct.App.2010). “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So.2d 251, 258 (¶ 28) (Miss.Ct.App.2006) (citation and quotation omitted).

¶ 7. From the record it appears that both parents are fit to care for the children. Cliff is a self-employed brick mason, while Charity is a registered nurse. Both are generally healthy and have stable employment and work histories. Cliff stayed in the marital home, while Charity bought a nearby house after the separation. Both parents have cared for the children, are able and willing to continue to do so, and appear to have generally exercised good judgment in child-rearing decisions. The children are healthy and are doing well in school. Although Charity did admit to post-separation adultery, she was careful to keep it from the children; there was no evidence her adultery impacted them, directly or indirectly.

¶ 8. As to Cliffs other specific concerns with the chancellor’s analysis, the joint custody order will allow the children to maintain close relationships to both sides of their extended family. The sex of the children is also a legitimate factor for the chancellor to consider. Both of the Jack-sons’ children are female. What weight to assign to this fact in the Albright analysis is entrusted to the chancellor’s sound discretion; a chancellor may find that it does or does not weigh in favor of the parent of the same sex as the children, depending on the specific facts of the case. This is a finding of fact that cannot be disturbed on appeal absent a clear showing of an abuse of discretion, which Cliff has not made. We find no error in the chancellor’s analysis of the Albright factors.

¶ 9. Even if both parents are fit, joint custody should not be awarded where it is impractical or burdensome to the children. Distance is not an issue in this case-the travel time between Cliff and Charity’s homes was stated to be about twelve minutes, and both parents live near the children’s school.

¶ 10. An award of joint custody also requires that the parents are willing and able to cooperate in sharing custody. Crider v. Crider, 904 So.2d 142, 147-48 (¶ 13) (Miss.2005). On this issue, the record is somewhat mixed. The chancellor was critical of Cliffs refusal to allow Charity more visitation than absolutely required under the letter of the temporary order. There were also communication problems and an incident where the parents disagreed over where and when the younger daughter would have her tonsils removed. During this dispute, both parents scheduled or altered the child’s medical appointments without consulting the other parent. Nonetheless, both parties asked the chancellor to consider joint custody as an alternative to vesting sole physical custody in one parent.

¶ 11. The chancellor — aware of the Jacksons’ prior difficulties — thoroughly examined them to ensure they were willing to share decision-making responsibilities, exchange information, and consult each other on matters concerning the children. Cliff and Charity consented to an order of the court to attend and complete a parenting class called “Children in the Middle,” to facilitate the joint custody arrangement. The chancellor appears to have been satisfied that the Jacksons were willing and able to cooperate and make joint custody work for their children. The chancellor “is in the best position to evaluate the credibility, sincerity, capabilities and intentions of the parties” with regard to joint custody. Id. at 147 (¶ 13).

¶ 12. We have reviewed the record, and we find no abuse of the chancellor’s discretion in awarding joint custody.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF UNION COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Richard K. DICKERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01451-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2011.
    Rehearing Denied March 13, 2012.

      Richard K. Dickerson, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On January 22, 2007, Richard K. Dickerson pleaded guilty in the Grenada County Circuit Court to one count of aggravated assault and one count of armed robbery. He was sentenced on each count to nineteen years and 350 days in the custody of the Mississippi Department of Corrections (MDOC), and upon his completion of 350 days, the remaining nineteen years were ordered to be served under post-release supervision. The sentences were ordered to run concurrently.

¶ 2. Upon his release, Dickerson violated the terms of the post-release supervision by testing positive for cocaine, failing to report to the MDOC as directed, failing to pay monthly supervision fees, and failing to pay court costs. Dickerson was ordered to serve the remaining nineteen years of his sentence. Dickerson filed a motion for post-conviction relief (PCR), asserting that his lawyer was ineffective; his guilty plea was involuntary; and his sentence was illegal. The trial court summarily denied the motion. This Court affirmed the decision of the trial court. Dickerson v. State, 37 So.3d 651 (Miss.Ct.App.2009).

¶ 3. Dickerson then filed a second PCR motion, which the trial court denied as a successive writ. Dickerson now appeals the denial of his second PCR motion, arguing that his sentence is illegal. We find Dickerson’s appeal is procedurally barred and without merit.

STANDARD OF REVIEW

¶ 4. ‘When reviewing a lower court’s decision to deny a [motion] for post-conviction relief [the appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Reeder v. State, 783 So.2d 711, 714 (¶ 5) (Miss.2001) (quoting Pickett v. State, 751 So.2d 1031, 1032 (¶8) (Miss.1999)).

DISCUSSION

¶ 5. Dickerson argues that his sentence is illegal because a convicted felon cannot receive a suspended sentence. Dickerson cites to Mississippi Code Annotated section 47-7-33 (Rev.2011), which states that a trial court has the authority to suspend a defendant’s sentence “except ... where the defendant has been convicted of a felony on a previous occasion.... ” Dickerson argues that because he was a four-time convicted felon, his sentence was in violation of the law.

¶ 6. Dickerson’s appeal is barred as a successive writ. Miss. Code Ann. § 99-39-23(6) (Supp.2011). Under section 99-39-23(6), a movant is prohibited from filing successive writs challenging his or her conviction unless an exception is shown. Id. Dickerson has shown no exception to this rule, and the issue raised in his PCR motion has already been decided by this Court. Dickerson, 37 So.3d at 652-53 (¶¶ 1-2).

¶ 7. Notwithstanding the procedural bar, we also find Dickerson’s argument without merit. Dickerson argues he was not eligible to serve a suspended sentence since he was a prior convicted felon. However, Dickerson was not given a suspended sentence. He was placed on post-release supervision. Thus, not only is this appeal procedurally barred, the issue raised by Dickerson is without merit.

¶ 8. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., AND ROBERTS, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.


author: WOODALL, Justice.

text:
    BLACK WARRIOR MINERALS, INC. v. John FAY, Jr.
    1100627.
    Supreme Court of Alabama.
    Aug. 5, 2011.
    Rehearing Denied Oct. 7, 2011.
    Lee R. Benton and Jamie A. Wilson of Benton & Centeno, LLP, Birmingham, for appellant.
    James E. Harris of Harris Law Firm, Birmingham, for appellee.
   WOODALL, Justice.

Black Warrior Minerals, Inc. (“Black Warrior”), sued Empire Coal Sales, Inc. (“Empire”), and John Fay, Jr., seeking amounts allegedly owed pursuant to a coal-purchase agreement between Black Warri- or and Empire and a personal guaranty executed by Fay. The trial court entered a summary judgment in favor of Black Warrior on its claims against Empire, awarding Black Warrior $689,496.24 in damages, plus attorney fees and costs. The trial court held a bench trial on the breach-of-guaranty claim against Fay at which ore tenus evidence was presented. The trial court entered a judgment in favor of Fay, and Black Warrior has appealed that judgment. We reverse the trial court’s judgment in favor of Fay and remand the case for the trial court to enter a judgment in favor of Black Warrior on its breach-of-guaranty claim against Fay.

Facts and Procedural History

On February 11, 2009, Empire entered into a coal-purchase agreement with Black Warrior, which provided, among other things, that “[Empire] agreed to purchase on open account and has purchased from [Black Warrior] in excess of ... $1,200,000 worth of coal.” That same day, Fay executed a personal guaranty, which provided, in pertinent part:

“I, John Fay, waiving demand and notice, hereby personally guarantee the collection, performance and full payment of all monetary obligations of [Empire] to [Black Warrior], including all existing debt as of the date hereof and all future obligations under [the coal-purchase] Agreement.
“In consideration of the amounts evidenced by this Agreement in excess of ... $1,200,000 payable by [Empire], the undersigned guarantees the prompt payment of said amounts, when due, whether at stated maturity, acceleration, or otherwise, and in accordance with all terms and conditions of the Agreement, and agree to all terms and conditions and affirm the waivers and consents contained herein.”

In November 2009, Black Warrior sued Empire and Fay, seeking to recover amounts allegedly owed for coal Black Warrior had provided Empire pursuant to the agreement. Black Warrior asserted claims against Empire alleging breach of contract, open account, stated account, and goods sold and delivered. Black Warrior also stated a claim against Fay alleging breach of the guaranty.

After a hearing, the trial court entered a summary judgment in Black Warrior’s favor on its claims against Empire, awarding Black Warrior a total of $700,105.36, but denied Black Warrior’s motion for a summary judgment on its breach-of-guaranty claim against Fay. Following a bench trial on the breach-of-guaranty claim, the trial court entered a judgment in favor of Fay, concluding that the language of the guaranty was ambiguous and finding that the guaranty applied only to amounts in excess of $1.2 million owed by Empire to Black Warrior.

Black Warrior moved the trial court for a new trial or, in the alternative, to alter, amend, or vacate its judgment on the breach-of-guaranty claim. The trial court denied that motion, and Black Warrior has appealed from the judgment in favor of Fay.

Issue

This Court must determine whether the trial court erred in concluding that the language of the guaranty was ambiguous and that the guaranty applied only to amounts owed by Empire to Black Warri- or in excess of $1.2 million.

Standard of Review
“This Court set out the applicable standard for reviewing a trial court’s determination that a contract is ambiguous in Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001):
“ ‘The question whether a contract is ambiguous is for a court to decide. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293 (Ala.1999). As long as the contractual terms are clear and unambiguous, questions of their legal effect are questions of law. Commercial Credit Corp. v. Leggett, 744 So.2d 890 (Ala.1999). Thus, we apply a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term.
“ ‘Once the trial court determines that an ambiguity exists in a contract, the meaning of that contract is to be determined by the trier of fact. Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968 (Ala.1998); Glenlakes Realty Co. v. Norwood, 721 So.2d 174 (Ala.1998). In this case, the trier of fact was the trial court, and the court heard ore tenus evidence.
“ ‘ “Where ore tenus evidence is presented to the trial court in a nonjury case, a judgment based on that evidence is presumed to be correct and will not be disturbed on appeal unless a consideration of the evidence and all reasonable inferences therefrom reveals that the judgment is plainly and palpably erroneous or manifestly unjust.”
‘Bertolla v. Bill, 774 So.2d 497, 503 (Ala.1999) (quoted in Redden v. State, 804 So.2d 196 (Ala.2001)).’
“In this case, the trial court was the trier of fact and heard ore tenus evidence. Following the standard set out in Winkleblack, supra, we must engage in a two-part analysis. First, we must review de novo the trial court’s determination that the guaranty is ambiguous. Second, if we find ... that the guaranty is ambiguous, we must then determine whether the trial court’s holding that [the guaranty covers only debts owed to Black Warrior that exceed $1.2 million] was ‘plainly and palpably erroneous or manifestly unjust.’ ”

SouthTrust Bank v. Copeland One, L.L.C., 886 So.2d 38, 41 (Ala.2003).

Analysis

Black Warrior argues that “the trial court erred in its finding that the Guaranty ... was ambiguous and only guarantees that part of any debt which [Empire] owes [Black Warrior] in excess of $1,200,000.” Black Warrior’s brief, at 10. Black Warrior argues:

“The language of the Guaranty is not ambiguous, particularly when read in conjunction with the Agreement. The Guaranty specifically states: ‘Full payment of all monetary obligations of Empire Coal Sales, Inc. ... including all existing debt as of the date hereof and all future obligations under said Agreement.’ This wording makes it clear that the parties intended for the Guaranty to be inclusive of all obligations under the Agreement. ‘Full payment’ means full payment — ‘all existing’ and ‘all future’ means every debt then existing and to be incurred.”

Black Warrior’s brief, at 11-12.

Black Warrior goes on to argue:

“The phrase ‘In consideration of the amounts evidence[d] by this Agreement in excess of [$1,200,000]’ contained in the Guaranty speaks to the amount of consideration recited in the Agreement as having already been tendered, and does not operate as a ‘cap’ or limitation of Defendant Fay’s personal liability. The Agreement acknowledges that Empire had purchased in excess of $1,200,000 from Black Warrior.”

Black Warrior’s brief, at 13 (emphasis in original).

Fay argues in response that “[t]he terms of the Guaranty are patently ambiguous” and that, “[f]rom the language of the document alone, the court could not determine what the parties intended.” Fay’s brief, at 6. Fay argues that the ambiguity arises from the phrase “said amounts” in the second paragraph of the guaranty and that this phrase, read in context with the phrase “[i]n consideration of the amounts evidenced by this Agreement in excess of ... [$1.2 million] payable by Empire” in the second paragraph, provides that Fay is responsible for only those debts in excess of $1.2 million. On the other hand, Fay notes, the first paragraph of the guaranty provides that Fay is responsible for “all existing debt ... and all future obligations.”

We agree with Black Warrior that the terms of the guaranty are unambiguous. This Court has stated:

“Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written.”

Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (citations omitted).

Neither party argues that the terms of the guaranty are used in a special or technical sense. Therefore, we will give the terms their “ordinary, plain, and natural meaning.” McCollough, 776 So.2d at 746. As noted previously, the first paragraph of the guaranty provides that Fay “personally guaranteed the collection, performance and full payment of all monetary obligations of [Empire] ..., including all existing debt ... and all future obligations under said Agreement.” (Emphasis added.) Nothing in the first paragraph suggests that there is any limit on Fay’s obligations under the guaranty.

The second paragraph provides, in pertinent part, that, “[i]n consideration of the amounts evidenced by this Agreement in excess of [$1.2 million] payable by [Empire], [Fay] guarantees the prompt payment of said amounts.” As with the first paragraph, nothing in this language suggests that it was intended to modify or limit the obligations undertaken in the first paragraph. Instead, it appears simply to refer to the amount of debt Empire had incurred before the execution of the guaranty and the coal-purchase agreement, that is, the consideration in excess of $1.2 million, and to elaborate on Fay’s obligation to pay that debt, as well as all other amounts owed by Empire to Black Warri- or.

Fay’s proposed construction of the guaranty — treating the language of the second paragraph as a modification of or a limitation on the terms of the first paragraph — is not supported by the plain language of the guaranty and would, in effect, render the unconditional terms of the first paragraph meaningless. “ ‘[P]arties to a contract will not be imputed with using language that is meaningless or without effect.’ ” Black Diamond Dev., Inc. v. Thompson, 979 So.2d 47, 51 (Ala.2007) (quoting McGoldrick v. Lou Ana Foods, Inc., 649 So.2d 455, 458 (La.Ct.App.1994)).

Reading the terms of the guaranty in context and giving those terms their “ordinary, plain, and natural meaning,” we conclude that the guaranty is “susceptible of only one reasonable meaning,” McCollough, 776 So.2d at 746—that it covers “all monetary obligations ..., including all existing debt ... and all future obligations,” and that it is not limited to debts in excess of $1.2 million. (Emphasis added.) Therefore, the trial court erred in finding that the terms of the guaranty are ambiguous and in entering a judgment in favor of Fay.

Conclusion

For these reasons, we reverse the trial court’s judgment in favor of Fay on the breach-of-guaranty claim and remand the case for the trial court to enter a judgment in favor of Black Warrior on that claim.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BOLIN, MURDOCK, SHAW, and MAIN, JJ., concur.

      . It is undisputed that Empire’s debt to Black Warrior at the time the agreement and guaranty were executed was more than $1.2 million. See Fay’s brief, at 12 ("On February 11, 2009[,] the outstanding balance of [Empire] was at its peak of $1,224,385.46.”).


author: MAIN, Justice. MURDOCK, Justice

text:
    Walter George AUSTIN and Charlene Austin v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    1100596.
    Supreme Court of Alabama.
    Sept. 30, 2011.
    Robert C. Gammons and Joshua B. White of Stephens Millirons Harrison & Gammons, PC, Huntsville, for appellants.
    Ellen M. Melson of Wilmer & Lee, P.A., Huntsville, for appellee.
   MAIN, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. RApp. P.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, SHAW, and WISE, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

The Court today affirms a decision of the trial court that relies on this Court’s opinion in Nationwide Mutual Fire Insurance Co. v. Austin, 34 So.3d 1238 (Ala.2009), to hold that State Farm Mutual Automobile Insurance Company owes nothing to its insureds, Walter George Austin and Charlene Austin, in relation to a judgment obtained by the Austins against a third-party tortfeasor. This Court’s opinion in Nationwide concerned the liability of the Austins’ primary insurer, Nationwide — specifically, the effect on Nationwide’s contractual liability to the Austins of a clause in its policy providing for a reduction of Nationwide’s obligation to the Austins for uninsured/underinsured-motorist (“UM”) coverage, in an amount equal to the amount of any payments made by Nationwide under a separate medical-payment clause in the same policy. As the author of this Court’s opinion in Nationwide, I do not see in it, either expressly or implicitly, the meaning necessarily drawn from it by the trial court and essential to the outcome reached by the trial court and by this Court.

It is important to take stock of what this Court did and did not do in Nationwide. In Nationwide, we concerned ourselves with, and we addressed only, the measure of Nationwide’s obligation under the UM provision of its policy. We did not concern ourselves with or address the measure of the obligation of the Austins’ secondary insurer, State Farm, under the UM provision of its policy. In Nationwide, we held that Nationwide’s contractual obligation under the terms of its particular policy had been satisfied. We did not hold that the judgment obtained by the Austins against the third-party tortfeasor had been satisfied.

The contractual terms of State Farm’s secondary, or “excess,” policy provides that State Farm’s obligation to the Austins is to be calculated as follows: an amount equal to the damages ascertained at trial to be owed by the tortfeasor, less any amount paid “for such damages” by the tortfeasor or a third-party insurer standing in the place of the tortfeasor. Unlike Nationwide’s policy, State Farm’s policy contains no setoff for any amount paid for medical expenses — much less an amount paid by some other insurer. In the case of Walter Austin, the amount ascertained by a jury to be owed by the tortfeasor was $180,000. The fact is that, for whatever reason (the reason not being of any concern for purposes of State Farm’s contract), Nationwide paid only $95,000 against this particular award. State Farm’s contractual obligation must be calculated accordingly. A similar calculation is required by the State Farm contract as to the amount owed Charlene Austin.


author: SHAW, Justice.

text:
    Kenneth JAKEMAN v. LAWRENCE GROUP MANAGEMENT COMPANY, LLC, et al.
    1100290.
    Supreme Court of Alabama.
    Oct. 7, 2011.

      Abbey Herrin, Birmingham, for appellant.
    Michael H. Johnson of Johnston Barton Proctor & Rose LLP, Birmingham, for appellees Lawrence Group Management Company, LLC, and Montgomery Memorial Cemetery.
   SHAW, Justice.

Kenneth Jakeman, the plaintiff below, appeals from the trial court’s judgment dismissing his claims against the defendants, Alderwoods, Inc. (“Alderwoods”), Lawrence Group Management Company, LLC (“Lawrence”), Montgomery Memorial Cemetery, Inc. (“MMC”), and Judy A. Jones. We dismiss the appeal as being from a nonfinal judgment.

Facts and Procedural History

Because of our disposition of this appeal, only a brief recitation of the facts is necessary.

Lawrence owns and operates Montgomery Memorial Cemetery, a cemetery in Montgomery (“the cemetery”). Lawrence purchased the cemetery from Alderwoods in or around 2002. In 1967, Kenneth’s father, Ben Jakeman, purchased from MMC a “family plot” in the cemetery containing 10 separate burial spaces. The plot Ben selected was specifically chosen because of its location adjacent to plots owned by Ben’s mother, Frances O’Neal. Pursuant to the terms of the purchase agreement for the family plot, burial within Ben’s plot was limited to members of either the Jakeman family or the O’Neal family.

In August 2002, MMC allegedly mistakenly conveyed two spaces in Ben’s family plot to James A. Jones and his wife, Judy A. Jones. Following James’s death, on August 28, 2002, James was interred in one of those two spaces.

In 2006, Kenneth learned that James had been buried in Ben’s family plot, at which time, Kenneth says, he immediately notified MMC and Ben. In response to demands by Kenneth and Ben, MMC disinterred James and moved both his body and his marker; however, James was reinterred in another space on Ben’s family plot. Ben died in 2008. At the time of Ben’s death, James’s body remained buried in one of the spaces in Ben’s plot.

Despite the offer of an exchange of burial spaces, and based upon their purported refusal to again exhume and move James’s body and marker, in May 2010 Kenneth filed suit against Alderwoods, Lawrence, MMC, and Judy A. Jones, alleging breach of contract; trespass; negligence, willfulness, and/or wantonness; the tort of outrage; and conversion. In her answer to Kenneth’s complaint, Judy asserted her own cross-claim against Alderwoods, Lawrence, and MMC, based on their alleged error in conveying to her spaces already owned by Ben and the initial erroneous burial of James, his disinterment, and his subsequent erroneous reburial in another of Ben’s spaces.

Alderwoods subsequently filed a motion to dismiss Kenneth’s complaint based on its contentions that Kenneth lacked the requisite “standing” to pursue the stated claims, that the asserted tort claims did not survive Ben’s death, and that some of the claims were barred by the expiration of the applicable limitations periods. Lawrence and MMC later joined Alderwoods’s dismissal motion.

The trial court conducted a hearing on the motion to dismiss, on July 28, 2010, at the conclusion of which the trial court announced on the record its intention to dismiss the action but to provide Kenneth 30 days to refile any viable claims. Also at the conclusion of the hearing, the trial court requested a proposed order reflecting its stated decision, which counsel for Alderwoods volunteered to provide. The record reflects that, on August 1, 2010, the trial court signed the order prepared by Alderwoods granting the joint dismissal motion, dismissing “all claims brought by the plaintiff against all defendants.” The order further provided that “all cross claims [were] also dismissed.”

On August 2, 2010, Judy, who was presumably aware of the contents of the trial court’s dismissal order at the time it was signed, filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., seeking to alter, amend, or vacate the order on the ground that it dismissed her cross-claim, which, she contended, was not addressed by the dismissal motion and was, therefore, not' properly before the trial court on the motion to dismiss. The clerk of the trial court subsequently entered the trial court’s previously signed dismissal order on September 17, 2010.

On October 14, 2010, Kenneth filed a Rule 59(e), Ala. R. Civ. P., motion seeking to alter, amend, or vacate the trial court’s dismissal order. On October 29, 2010, the trial court entered an order specifically denying only Kenneth’s motion to alter, amend, or vacate. On November 29, 2010, the trial court entered an “Amended Order” reiterating its dismissal of all of Kenneth’s claims but ordering that “all cross claims filed by Judy ... are NOT DISMISSED and shall remain- pending.” Kenneth filed his notice of appeal on that same date.

Discussion

Although no party to the present appeal questions the subject-matter jurisdiction of this Court, as we have previously stated, “we ‘are not confined to the arguments of the parties in our subject-matter-jurisdiction analysis because subject-matter jurisdiction cannot be waived by the failure to argue it as an issue.’ ” Bon Harbor, LLC v. United Bank, 20 So.3d 1263, 1265 (Ala.2009) (quoting Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009)). Despite representations in Kenneth’s notice of appeal that the underlying matter has been disposed of in its entirety, we hold that, because Judy’s cross-claim remains pending below, this appeal is from a nonfinal judgment, and we do not have subject-matter jurisdiction.

As previously mentioned, on August 2, 2010, the day after the original dismissal order was signed by the trial court but 46 days before the entry of that judgment by the clerk, Judy filed a postjudgment motion seeking to amend the order on the ground that it erroneously dismissed her pending cross-claim. The trial court’s mere signing of an order is insufficient to make the order effective:

“The mere signing of a separate written order or judgment, however, is not enough to make that order or judgment effective. Unlike signing a Civil docket sheet, one additional act by the trial judge is necessary to demonstrate the judge’s intent to finalize and make effective a separate written order or judgment. Specifically, the trial judge must authorize the separate written order or judgment to be filed with the clerk or register, which typically will be accomplished simply by the delivery of the separate written order or judgment to the clerk with the intent that it be entered. It is at that point that the ministerial duty of the clerk under Rule 58 is triggered, and the clerk becomes obligated promptly to enter the order or judgment. Until that point, however, the written order or judgment, itself, much like an undelivered deed to real property, remains within the control of the signer and that signer, the judge, is free to alter it, postpone its entry, or decide not to cause it to be entered at all. As this court noted in Lacks v. Stribling, 406 So.2d 926, 930 (Ala.Civ.App.1981), ‘[a] separate judgment may be signed by the trial judge, but it is not effective until he authorizes that it be filed with the clerk or register, even if the filing date is several days, weeks or even months later than the date reflected on the judgment.’ (Emphasis added.)”

Rollins v. Rollins, 908 So.2d 828, 833 (Ala.Civ.App.2004) (some emphasis added). See also Rule 58(c), Ala. R. Civ. P.

Therefore, at the time it was initially filed, Judy’s motion sought to alter, amend, or vacate a judgment that had not yet been entered. However, the premature filing of her motion did not render the motion a nullity. Instead, as noted by the Court of Civil Appeals in T.T.T. v. R.H., 999 So.2d 544 (Ala.Civ.App.2008), this Court, in similar circumstances, has previously concluded:

“ ‘We hold that if a party moves for a judgment as a matter of law or, in the alternative, for a new trial before the court has entered judgment, the motion shall be treated as having been filed after the entry of the judgment and on the day thereof.’
“New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004); see also Rule 4(a)(3), Ala.R.App.P.; and Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 347 (Ala.Civ.App.2004) (‘[A] premature postjudgment motion that, if it had been directed to a final judgment, would toll the time for filing a notice of appeal from a final judgment (see Ala. R.App. P., Rule 4(a)(3)) “quickens” on the day that the final judgment is entered.’).”

999 So.2d at 547-48.

The judgment in the underlying case was entered on September 17, 2010. In consideration of the foregoing, and as our courts have consistently determined, “[Judy’s] postjudgment motion, filed before the entry of the ... final judgment, quickened on the day that judgment was entered.” Miller v. Miller, 10 So.3d 570, 571-72 (Ala.Civ.App.2008).

Pursuant to Rule 59.1, Ala. R. Civ. P., a postjudgment motion filed pursuant to, among other rules, Rule 59 is deemed denied by operation of law 90 days after the filing date in the absence of the parties’ express consent to an extension of the 90-day period. Further, “Rule 59.1 has been held to apply separately to each distinct timely filed postjudgment motion so as to afford the trial court a full 90-day period to rule on each separate motion.” Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ.App.2006) (citing Spina v. Causey, 403 So.2d 199, 201 (Ala.1981)). Here, Judy’s postjudgment motion, although initially premature, was deemed filed on September 17, 2010 — the date the trial court’s initial order was entered by the clerk of the court. Once Judy’s motion quickened into a proper postjudgment motion, the trial court had the full 90-day period provided for in Rule 59.1 to rule on that motion. Woods v. SunTrust Bank, 81 So.3d 357, 364 (Ala.Civ.App.2011). Therefore, because the trial court retained jurisdiction to grant or deny Judy’s post-judgment motion until December 17, 2010, it clearly possessed the requisite jurisdiction as of November 29 to issue the “amended order” in which it effectively adjudicated that motion and reinstated Judy’s cross-claim.

“The general rule is that a trial court’s order is not final unless it disposes of all claims as to all parties.” Dickerson v. Alabama State Univ., 852 So.2d 704, 705 (Ala.2002) (emphasis added).

“The one exception is that where the court has completely disposed of one of a number of claims, or one of multiple parties, and has made an express determination that there is no just reason for delay, the court may direct the entry of judgment on that claim or as to that party.”

Committee Comments on 1973 Adoption of Rule 54(b), Ala. R. Civ. P. (emphasis added). See also Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007) (“ ‘A ruling that disposes of fewer than all claims or relates to fewer than all parties in an action is generally not final as to any of the parties or any of the claims. See Rule 54(b), Ala. R. Civ. P.’ ” (quoting Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App.1999))).

In the present case, the trial court’s amended order expressly left pending Judy’s cross-claim. Additionally, the trial court did not certify its judgment dismissing Kenneth’s claims as final pursuant to Rule 54(b), Ala. R. Civ. P. — in fact, the order neither mentions nor quotes that rule. Consequently, the trial court’s amended judgment is a nonfinal judgment, which will not support an appeal. See Crutcher v. Williams, 12 So.3d 631, 637 (Ala.2008) (concluding that trial court’s order, which left pending defendant’s cross-claim, was not a final appealable judgment). See also Faulk v. Rhodes, 43 So.3d 624, 625-26 (Ala.Civ.App.2010) (dismissing appeal on ground that trial court’s judgment, which failed to adjudicate all pending claims, including defendant’s cross-claim, and contained no Rule 54(b) certification, “was not a final judgment that can support an appeal”).

APPEAL DISMISSED.

MALONE, C.J., and STUART, PARKER, and WISE, JJ., concur.

      . Because all parties agree that Alderwoods sold the cemetery to Lawrence before the events giving rise to the underlying action, and upon motion by Kenneth made pursuant to Rule 42, Ala. R.App. P., Alderwoods was voluntarily dismissed as a party to the present appeal by separate order of this Court.

      . As discussed in more detail below, despite the fact that the order was signed by the trial court on August 1, 2010, the case-action summary reflects that it was not actually entered by the clerk of the trial court until September 17, 2010. See Rule 58(c), Ala. R. Civ. P. ("An order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.”).

      . Pursuant to recent amendments to Rule 58, and in keeping with technological advances implemented by our court system, official entry of a judgment is now effected by electronic transmission of an order to the State Judicial Information System. See Committee Comments to the 2006 and 2008 amendments to Rule 58, Ala. R. Civ. P. We specifically note, however, that the Committee Comments to Amendment to Rule 58 Effective September 19, 2006, state, in pertinent part, that that "amendment ... reinstates the distinction between the substantive, judicial act of rendering a judgment and the procedural, ministerial act of entering a judgment." See also Gilliam v. Gilliam, 43 So.3d 615, 618 (Ala.Civ.App.2010) ("The rendering and the entering of a judgment are two separate acts.”).

      . Although the trial court’s November 29 "Amended Order” did not either explicitly reference or address Judy’s postjudgment motion, we nonetheless conclude that it was an adjudication of that motion because it granted the specific relief requested in the motion and amended its previous judgment accordingly. See Bittinger v. Byrom, 65 So.3d 927, 931 (Ala.Civ.App.2010).


author: STUART, Justice.

text:
    Ex parte BOAZ CITY BOARD OF EDUCATION et al. (In re Lisa Tarvin and Donnie Tarvin v. Leland Dishman et al.).
    1101315.
    Supreme Court of Alabama.
    Oct. 7, 2011.
    William W. Sanderson and Taylor D. Brooks of Lanier Ford Shaver & Payne P.C., Huntsville, for petitioners.
    Mark S. Boardman and Daniel P. Ogle of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for respondent Leland Dish-man.

      R. Don Word III, Scottsboro; and Scott Berry, Scottsboro, for respondents Lisa Tarvin and Donnie Tarvin.
   STUART, Justice.

The Boaz City Board of Education (“the Board”) and its members Alan Perry, Fran Milwee, Roger Adams, Alan Davis, and Tony G. King (hereinafter referred to collectively as “the Board members”) petition this Court for a writ of mandamus directing the Marshall Circuit Court to vacate its order denying their motion to dismiss the claims filed against them by Lisa Tar-vin and Donnie Tarvin and to enter an order dismissing with prejudice the claims against them. We grant the petition and issue the writ.

Factual Background and Procedural History

According to the complaint, on or about December 18, 2009, Leland Dishman, the superintendent for the Board, struck Lisa Tarvin, a kindergarten teacher, with a paddle. On or about April 1, 2010, Dishman read a statement at a press conference, denying that the incident occurred. On January 5, 2011, Lisa Tarvin and Donnie Tarvin sued the Board, the Board members in their official capacities, and Dish-man in his individual capacity, alleging claims of assault and/or battery, defamation, libel, and slander and seeking monetary damages. The Board and the Board members moved to dismiss the claims against them, arguing that they were immune from suit under the doctrine of State immunity. On June 30, 2011, the Marshall Circuit Court denied the motion. The Board and the Board members petition this Court for a writ of mandamus directing the Marshall Circuit Court to vacate the June 30, 2011, order and to enter an order dismissing the claims against them with prejudice.

Standard of Review
“ ‘ “It is well established that mandamus will lie to compel a dismissal of claim that is barred by the doctrine of sovereign immunity.” Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004).
“ ‘ “A writ of mandamus is a
“ ‘ “ ‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ”
‘Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).
“ ‘ “ ‘[I]f an action is an action against the State within the meaning of § 14, such a case “presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.” ’ Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala.2002)). ‘Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.’ Ex parte Alabama Dep’t of Mental Health & Retardation, 837 So.2d 808, 810-11 (Ala.2002).”
‘Ex parte Davis, 930 So.2d 497, 499-500 (Ala.2005).’
“Ex parte Lawley, 38 So.3d 41, 44-45 (Ala.2009).”

Ex parte Phenix City Bd. of Educ., 67 So.3d 66, 59 (Ala.2011).

Discussion

The Board contends, and the Tar-vins in their answer filed in this Court do not dispute, that the Board enjoys immunity, pursuant to Art. I, § 14, Ada. Const. 1901, from the tort claims alleged against it. See Ex parte Bessemer Bd. of Educ., 68 So.3d 782, 789 (Ala.2011) (“Local school boards are agencies of the State, not of the local governmental units they serve, and they are entitled to the same absolute immunity as other agencies of the State.”); Ex parte Phenix City Bd. of Educ., 67 So.3d at 60 (“City boards of education are local agencies of the State....); and Ex parte Monroe County Bd. of Educ., 48 So.3d 621, 625 (Ala.2010) (“The [Monroe County Board of Education] is a local agency of the State that has absolute immunity under Ala. Const, of 1901, § 14.”). Accordingly, the claims against the Board are barred by Art. I, § 14, Ala. Const.1901.

The Board members contend, and the Tarvins in their answer filed in this Court do not dispute, that the tort claims alleged against the Board members in their official capacities requesting money damages also are due to be dismissed because the Board members enjoy the same constitutional immunity as does the Board. Ex parte Bessemer Bd. of Educ., 68 So.3d at 789 (“ ‘Not only is the State immune from suit under § 14, but “the State cannot be sued indirectly by suing an officer in his or her official capacity.” ’ ” (quoting Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 839 (Ala.2008))); and Ex parte Dangerfield, 49 So.3d 675, 681 (Ala.2010) (holding that all claims against a state official in his or her official capacity for damages are barred by the doctrine of immunity). Accordingly, the claims against the Board members are barred by Art. I, § 14, Ala. Const.1901.

Conclusion

Because the Board and the Board members have demonstrated that under Art. I, § 14, Ala. Const.1901, they have immunity from the claims asserted against them, they have established a clear legal right to have the claims against them dismissed with prejudice. Therefore, we grant the petition and issue a writ directing the Marshall Circuit Court to vacate its order denying the motion to dismiss filed by the Board and the Board members and to enter an order dismissing with prejudice the claims asserted against the Board and the Board members.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.


text:
    Ex parte Shari HARRISON, as executrix of the estate of B.L. Bishop. (In re Estate of B.L. Bishop).
    1100360.
    Supreme Court of Alabama.
    Oct. 7, 2011.
    Frank W. Bailey, Gadsden, for petitioner.

      Jerry Wayne Baker, Jr., Albertville, for respondent Teresa Diane Crawford.
   MAIN, Justice.

PETITION DENIED. NO OPINION.

MALONE, C.J., and WOODALL and BOLIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

The petitioner, Shari Harrison, as executrix of the estate of B.L. Bishop, seeks a writ of mandamus from this Court on the ground that the claims and proceedings at issue are barred by principles of collateral estoppel and/or res judicata because of a ruling by the circuit court that that court lacked subject-matter jurisdiction over similar claims and proceedings previously filed in, but dismissed by, that court. It is not clear to me what, if any, difference exists between the posture of, or the facts relating to, the previous claims and proceedings and the posture of, or the facts relating to, the newly filed claims and proceedings, which the circuit court has decided not to dismiss. The uncertainty affecting this case also prevents me from concluding, however, that a clear legal right to relief has been shown at this juncture. For this reason, I concur in denying the petition for the writ of mandamus.


text:
    Ex parte Carol SPURGEON and Verlin Spurgeon. (In re James C. Brakefield, as administrator of the estate of Jordan Alexander Robertson, deceased v. Alabama Department of Human Resources et al.).
    1101198.
    Supreme Court of Alabama.
    Oct. 14, 2011.

      Brandy Murphy Lee, asst. atty. gen., of Lee Law Firm, LLC, Birmingham, for petitioners.
    John E. Warren III of Warren & Associates, L.L.C., Jasper, for respondent.
   WOODALL, Justice.

In May 2008, seven-year-old Jordan Alexander Robertson was placed in foster care at the home of Verlin Spurgeon and Carol Spurgeon. In June 2008, Jordan drowned in the Spurgeons’ swimming pool. James C. Brakefíeld, as administrator of Jordan’s estate (“Brakefíeld”), sued the Spurgeons, among others, in the Walker Circuit Court, alleging that they had negligently and/or wantonly caused Jordan’s death. The Spurgeons moved the circuit court for a summary judgment, alleging, among other things, that the claims were barred by the doctrines of parental, State, and State-agent immunity. The circuit court denied the motion. The Spurgeons have petitioned this Court for a writ of mandamus directing the circuit court to dismiss the claims against them. We grant their petition in part and issue the writ, directing the circuit court to dismiss the negligence claims against the Spur-geons. In all other respects, we deny the petition.

Facts and Procedural History

On May 20, 2008, the Alabama Department of Human Resources (“DHR”) removed Jordan from the home of his biological parents and placed him in foster care at the Spurgeons’ home. On June 8, 2008, the Spurgeons had six foster children, including Jordan, living with them.

In their petition, the Spurgeons allege the following facts:

“On June 8, 2008, the day of the incident, Carol Spurgeon placed Jordan Robertson in the living room where he was watching television. Carol Spur-geon went to take a shower. Verlin Spurgeon was either in the master bedroom putting on his clothes for the day or in the kitchen. The kids were in the living room when he was in the kitchen as he and Carol were watching the children. At the time the Spurgeons discovered Jordan Robertson was missing from inside the house, the back doors to the porch were locked and the working alarms had not gone off. Also at the time the Spurgeons discovered Jordan Robertson was missing from inside the house, the front door was locked and the alarm had not been triggered. The doggy door could not be accessed because the solid door was closed and locked. The door leading from the screen porch to the pool was closed and the combination lock was locked.”

Petition, at 11.

Carol testified in her deposition that, after she had finished her shower that day, one of the children told her that Jordan was missing. After searching for 15 to 20 minutes, the Spurgeons found Jordan lying at the bottom of their outdoor swimming pool. The Spurgeons pulled Jordan from the pool, telephoned emergency 911, and began CPR. Jordan was flown to Children’s Hospital in Birmingham, where he died a few days later from the injuries he had suffered while in the pool.

On June 8, 2009, Brakefíeld sued the Spurgeons and others, alleging, among other things, that the Spurgeons had proximately caused Jordan’s death by:

“A. Negligently and/or wantonly failing to maintain the premises of the home in a reasonably safe condition;
“B. Negligently and/or wantonly failing to comply with the minimum standards for foster homes and swimming pool areas as prescribed by DHR;
“C. Negligently and/or wantonly failing to supervise [Jordan];
“D. Negligently and/or wantonly failing to establish and/or enforce reasonable and adequate rules and procedures for providing a safe environment, especially regarding use of the swimming pool;
“E. Negligently and/or wantonly failing to discover and/or eliminate unsafe conditions or hazards when the defendants knew or in the exercise of reasonable care, should have known, that the conditions presented potential hazards to minor children.”

On May 24, 2011, the Spurgeons moved the circuit court for a summary judgment on the claims against them. On June 8, the circuit court held a hearing on the summary-judgment motion. The morning of the hearing, Brakefield filed a brief in opposition to the motion. At the hearing, the Spurgeons asked the circuit court to strike the brief as untimely and to strike photographs of the Spurgeons’ property taken after Jordan was found in the pool and introduced by Brakefield to show remedial measures taken by the Spurgeons following Jordan’s drowning. The circuit court gave the Spurgeons until June 18, 2011, to file written motions to strike the brief and the photographs on the grounds stated. However, on June 10, the circuit court denied the Spurgeons’ summary-judgment motion.

The Spurgeons timely petitioned this Court for a writ of mandamus, arguing that the circuit court should have dismissed the claims against them on the grounds of parental, State, and State-agent immunity and that the circuit court erred in failing to strike Brakefield’s brief filed in opposition to their motion and the photographs.

Standard of Review

“A writ of mandamus is an extraordinary remedy, and it ‘will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’” Ex parte Butts, 775 So.2d 173,176 (Ala.2000) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). “ “While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus.’ ” Ex parte Turner, 840 So.2d 132, 135 (Ala.2002) (quoting Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000)) (emphasis omitted).

Analysis

The Spurgeons first argue that “[t]he law is clear that foster parents such as the Spurgeons are entitled to parental immunity for [Brakefield’s] negligence claims.” Petition, at 16. In Mitchell v. Davis, 598 So.2d 801, 803 (Ala.1992), a case in which six foster children died as a result of a fire in the foster home, this Court addressed “whether the parental immunity doctrine bars civil actions by foster children against their foster parents.” This Court stated:

“The parental immunity doctrine prohibits all civil suits brought by uneman-cipated minor children against their parents for the torts of their parents.... The reason behind the doctrine is ‘the protection of family control and harmony, and [the reason] exists only where the suit, or the prospect of a suit, might disturb the family relations.’ Owens [v. Auto Mut. Indemnity Co.], 235 Ala. [9,] 10, 177 So. [133,] 134 [(1937)], citing Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930).
“More recently, this Court created an exception to the parental immunity doctrine. In Hurst v. Capitell, 539 So.2d 264 (Ala.1989), we held that the parental immunity doctrine does not bar suits by minor children against their parents based on sexual abuse claims. The Court held that this exception applies to natural parents, stepparents, and adoptive,parents.
“Foster parents provide food, shelter, and discipline for children in their homes. Foster parents must also try to meet the emotional needs of the children. Therefore, foster parents should be afforded some protection by the parental immunity doctrine. However, the use of the parental immunity doctrine by foster parents should be limited, because of the nature of foster care. Foster parents differ from natural parents and others who stand in loco parentis, because there is no relationship by blood, marriage, or adoption. Foster parents are selected and approved by DHR. Foster care is temporary and is based upon a contract with the state. Foster children can be transferred at any time, and the foster home must be monitored by DHR. Foster parents are paid a supplement for necessities of the foster children. Therefore, this Court considers it necessary to limit the parental immunity doctrine to claims of simple. negligence as it relates to foster parents.”

Mitchell, 598 So.2d at 803-05 (emphasis added).

Like the administrator of the deceased foster children’s estates in Mitchell, Brakefield has alleged claims of both negligence and wantonness against the Spur-geons with regard to Jordan’s death. The Spurgeons argue that, pursuant to this Court’s decision in Mitchell, Brakefield’s “claims of negligence ... are due to be dismissed.” Petition, at 18. Brakefield concedes that “Mitchell affords the Spur-geons protection for negligently allowing” Jordan to drown in their swimming pool. Brakefield’s brief, at 11. Nevertheless, Brakefield invites the Court to overrule Mitchell, arguing that, “[i]f there were ever circumstances, or facts, to allow an exception to parental immunity to be carved out for negligence, the facts of this case would be ones that would call for such an exception.” Brakefield’s brief, at 11.

We agree with Brakefield and the Spur-geons that, under the rule set forth in Mitchell, Brakefield’s negligence claims against the Spurgeons are barred by the doctrine of parental immunity. Thus, unless we choose to depart from the holding in Mitchell, the Spurgeons are entitled to the dismissal of Brakefield’s negligence claims against them.

Brakefield argues

“that other jurisdictions have abolished parental immunity or are allowing negligence actions to go forward by minors against their parents, and that some jurisdictions have placed limits on parental immunity when the relationship moves away from parent and child. Also, other jurisdictions have held that foster parents are not immune from tort liability.”

Brakefield’s brief, at 13 (citations omitted). Brakefield also argues that “the Spurgeons only had custody of Jordan for just over two weeks” and that “Jordan was removed from their home and placed in respite care with a different family on two separate occasions during [those two weeks].” Id. at 14. Further, Brakefield argues that “[floster parents should not be afforded parental immunity for negligence when their home is just a temporary holding place for a child,” id.; that “foster parents[, unlike birth parents,] are paid for each foster child they take in,” id. at 16; and that “foster parents ... have [m]ini-mum [s]tandards spelled out for them to follow” in caring for foster children. Id.

We do not find these arguments persuasive. First, this Court acknowledged in Mitchell that other jurisdictions have abolished or limited the parental-immunity doctrine but concluded, nevertheless, that in Alabama the parental-immunity doctrine extends to foster parents with regard to simple negligence claims. See Mitchell, 598 So.2d at 805. As noted previously, this Court stated: “Foster parents provide food, shelter, and discipline for children in their homes. Foster parents must also try to meet the emotional needs of the children. Therefore, foster parents should be afforded some protection by the parental immunity doctrine.” Mitchell, 598 So.2d at 804-05.

Moreover, the Court in Mitchell took into account distinctions between birth parents and foster parents in deciding to extend parental immunity to foster parents for negligence claims. We stated:

“[T]he use of the parental immunity doctrine by foster parents should be limited, because of the nature of foster care. Foster parents differ from natural parents and others who stand in loco par-entis, because there is no relationship by blood, marriage, or adoption. Foster parents are selected and approved by DHR. Foster care is temporary and is based upon a contract with the state. Foster children can be transferred at any time, and the foster home must be monitored by DHR. Foster parents are paid a supplement for necessities of the foster children. Therefore, this Court considers it necessary to limit the parental immunity doctrine to claims of simple negligence as it relates to foster parents.”

Mitchell, 598 So.2d at 805.

Brakefield has not advanced any compelling reason for this Court to deviate from the rule set forth in Mitchell. Therefore, we conclude that Mitchell is controlling in this case, that the negligence claims against the Spurgeons are barred by the doctrine of parental immunity, and that the Spurgeons have demonstrated a clear legal right to have those claims dismissed.

Brakefield has also alleged claims of wantonness against the Spurgeons. The Spurgeons do not argue that they are entitled to parental immunity on the wantonness claims, and, indeed, our decision in Mitchell makes it clear that such claims against foster parents are not barred by the parental-immunity doctrine. Mitchell, 598 So.2d at 805-06 (“[T]he trial court must determine whether the acts by the defendants alleged to give rise to liability would amount only to simple negligence or would rise to the level of wantonness.... If the alleged acts amounted to wantonness ..., then the wantonness claim by the foster children would not be barred by the parental immunity doctrine.”).

The Spurgeons do argue that all of Brakefield’s claims against them are barred by the doctrine of State immunity, pursuant to this Court’s decision in Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 881 (Ala.2008). In that case, this Court recognized that “ ‘Section 14[, Alabama Constitution of 1901,] prohibits actions against state officers in their official capacities when those actions are, in effect, actions against the State.’” 990 So.2d at 839 (quoting Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004)). Although the Spurgeons correctly assert that DHR is a State agency, see Mitchell, 598 So.2d at 806, they have cited no authority indicating that foster parents are considered officials or agents of the State for immunity purposes.

In Ex parte Showers, 812 So.2d 277, 281 (Ala.2001), this Court stated:

“Rule 21(a), Ala. R.App. P., requires that a petition to an appellate court for the writ of mandamus ‘shall contain ... a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on.’ (Emphasis added.) Similarly, Rule 28(a)[(10)], Ala. R.App. P., requires that arguments in briefs contain ‘citations to the authorities, statutes and parts of the record relied on.’ (Emphasis added.) It is settled that a failure to comply with the requirements of Rule 28(a)[(10)] requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research:... ’
“City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998).... If anything, the extraordinary nature of a writ of mandamus makes the Rule 21 requirement of citation to authority even more compelling than the Rule 28 requirement of citation to authority in a brief on appeal. Thus, Showers’s failure to cite authority supporting her arguments, as required by Rule 21, provides this Court an ample basis for refusing to consider those arguments, and her petition could properly be denied on that basis.”

(Final emphasis added.) Here, as in Showers, the Spurgeons have not cited authority to support their assertion that foster parents are State officials or agents for State-immunity purposes. Therefore, pursuant to Showers, the Spurgeons’ petition for mandamus relief is due to be denied in that regard.

Similarly, the Spurgeons argue that, as foster parents, they are entitled to State-agent immunity pursuant to the restatement of State-agent immunity in Ex parte Cranman, 792 So.2d 392 (Ala.2000). Again, however, they have cited no authority indicating that foster parents are State agents or officials for purposes of State-agent immunity. Therefore, pursuant to Showers, the Spurgeons have not demonstrated a clear legal right to the relief sought, and the petition is due to be denied in this regard.

Finally, the Spurgeons argue that “[t]he trial court erred ... by not striking [Brakefield’s] opposition [brief] filed on the morning of the hearing on [their] summary judgment motion,” petition, at 25, and that “[t]he trial court erred by not excluding the photographs taken after the incident of June 8, 2008.” Petition, at 28. As the Spurgeons themselves have noted, mandamus review of a denial of a summary judgment on immunity grounds is an exception to the “[t]he general rule ... that a denial of a motion for summary judgment is not reviewable.” Petition, at 14. Neither the brief nor the photographs are relevant to the resolution of the issues of the applicability of parental, State, or State-agent immunity. Therefore, the circuit court’s rulings on those matters are beyond the proper scope of mandamus review, and we will not address the Spurgeons’ claims of error.

Conclusion

For the foregoing reasons, we hold that the negligence claims against the Spur-geons are barred by the doctrine of parental immunity. Therefore, we grant the Spurgeons’ petition in that regard and issue a writ of mandamus directing the circuit court to dismiss the negligence claims against them. In all other respects, we deny the mandamus petition.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

MALONE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

      1. In Newman v. Cole, 872 So.2d 138 (Ala.2003), this Court addressed whether the doctrine of parental immunity should bar claims by the estate of a minor child against the child's parents alleging negligence, wantonness, and willful and intentional conduct resulting in the child’s death. In a per curiam opinion, two Justices of the Court determined "that a further exception to the [parental-immunity] doctrine should be recognized where it is shown by clear and convincing evidence that a parent's willful and intentional injury caused the death of his or her child.” 872 So.2d at 140.
      Justices Johnstone and Woodall concurred in the per curiam opinion. Justices Houston and Harwood concurred in the result reached by the per curiam opinion, stating that they would "go further ... and hold that any wrongful-death action predicated on the death of a minor could be brought against his or her parent or parents.” Newman, 872 So.2d at 146 (Harwood, J., concurring in the result). Justice Lyons concurred in the result reached by the per curiam opinion as it related to the claims of willful and intentional conduct but dissented from the decision to affirm the trial court’s dismissal of the negligence and wantonness claims on the ground of parental immunity. Justice Lyons stated:
      "I would prefer to address the prospect for exceptions [to the parental-immunity doctrine] by formulating a standard sufficient to protect the child when a parent causes injury under circumstances where no reasonable person could expect immunity from the consequences of his or her action, such as where the conduct has been made a felony by the Legislature or is a misdemeanor with respect to conduct directed toward children below an age limit that is irrelevant to the duties imposed by the parent-child relationship."
      872 So.2d at 147 (Lyons, J., concurring in the result in part and dissenting in part). Chief Justice Moore and Justices See, Brown, and Stuart dissented from the recognition of any further exception to the parental-immunity .doctrine under the facts of that case. This Court has not addressed the doctrine in any subsequent case.

      . The analysis in Cranman, a plurality opinion, was adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000).