author: KING, C.J.,

text:
    Trent DORA a/k/a Sub, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01914-COA.
    Court of Appeals of Mississippi.
    Jan. 18, 2011.
    Rehearing Denied May 17, 2011.

      Lisa Mishune Ross, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   KING, C.J.,

for the Court:

¶ 1. Trent Dora was convicted in the Circuit Court of Noxubee County of simple robbery and sentenced as a habitual offender to fifteen years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a $10,000 fine. Aggrieved, Dora appeals his conviction, raising five issues:

I. Whether the evidence was legally sufficient to support his conviction;
II. Whether the verdict is against the overwhelming weight of the evidence;
III. Whether the prosecution misled the jury by not revealing Byron Winters’s plea deal;
IV. Whether Dora received ineffective assistance of counsel when his trial counsel did not request a lesser-included-offense instruction for simple assault; and
V. Whether cumulative error requires reversal.

Finding no error, we affirm Dora’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 20, 2008, Dora was indicted for armed robbery. The indictment alleged that on October 23, 2007, Dora participated in the armed robbery of Katina Black at Tern’s Food Market, which is located in Brooksville, Mississippi. Several witnesses testified to the events of that day; the testimonies of the key witnesses are summarized below.

I.Katina Black

¶ 3. Black, an assistant manager at Tern’s, was headed to the bank to drop off a deposit. When she walked outside, a man, who was driving a white Toyota Avalon, began walking toward her fast. Black testified that the man pulled his jacket up, and she saw the handle of a gun. After seeing the gun, Black began to run backwards, and she threw the money bag on the ground. The man grabbed the money bag and drove away, heading north. Black testified that she saw a black Pontiac Grand Prix, which was parked across the street at a medical clinic, follow the Toyota Avalon. Black then called 911 to report the crime.

¶ 4. On direct-examination, Black was asked whether she knew Dora, and she responded that she knew Dora from high school, but she had not had any other personal contact with him. Black testified that she saw Dora a few days before the robbery — once in Tern’s parking lot when she returned from the bank and once leaving Tern’s as she returned from lunch. On cross-examination, Black testified that Dora did drive a black Grand Prix. But she stated that she did not see Dora on the day of the robbery, and she never implicated Dora in the crime.

II. Phyllis Hudson

¶ 5. Phyllis Hudson, a 911 operator, testified that she received Black’s call reporting the robbery. Thereafter, she notified law enforcement and dispatched local city officers. Ten minutes later, Hudson received a call from a man stating that he had witnessed a female being robbed at Tern’s. The caller stated that the robber was driving a white or beige Toyota and was traveling south on Highway 45.

¶ 6. Hudson asked the caller for his name and phone number. The caller stated that his name was Tony and gave Hudson a phone number. However, Hudson noticed that the phone number that the caller gave her did not match the phone number on her caller ID. Hudson gave Tony’s name and both of the phone numbers to law enforcement.

III. Police Investigation

¶ 7. Dispatched officers headed south on Highway 45 in pursuit of the robber. However, the officers did not see the reported getaway car.

¶ 8. At that time, Sergeant Calvin McCrary of the Brooksville Police Department was near Tern’s, so he stopped there first. An employee told him to follow the white car, which had no license plate, and pointed in the car’s direction, which was headed north on Highway 45. As Sergeant McCrary attempted to follow the white car, a black car pulled out in front of him. Sergeant McCrary testified that the driver of the black car began driving slowly and weaving across the road, blocking his pursuit of the robber. Sergeant McCrary continued his pursuit, but he was unable to catch up with the robber. Sergeant McCrary testified that he recognized the black car and identified Dora as its driver.

¶ 9. The police officers figured out that “Tony” relayed the wrong information to the 911 operator. Chief Tina Williams, of the Brooksville Police Department, called the phone number that “Tony” had provided, and it was disconnected. Then, she called the phone number obtained from the 911 operator’s caller ID. The caller identified himself as Dora, and Chief Williams testified that she recognized his voice. Chief Williams asked Dora to come to the police department to give a statement, and he obliged.

¶ 10. Dora told Chief Williams that he had lied to the operator because he did not want to be involved with the case. He explained that he went to the clinic in Brooksville to visit Andrea Joiner Little, his girlfriend, and he did not want his wife to find out. Dora also stated that he knew the man who was driving the white Toyota and that his name was Byron Winters. Dora stated that he and Winters were both from Starkville, and they had once worked together.

¶ 11. The police found out that Winters no longer lived in Starkville but that he currently resided in Georgia. Winters was arrested in Georgia and brought back to Noxubee County.

IV. Byron Winters

¶ 12. At the time of Dora’s trial, Winters had been in jail for one year pending his trial on the same charge. Winters testified that he was in Starkville visiting a friend and his family. By chance, he saw Dora. They chatted, and Dora asked Winters to accompany him to Tern’s to pick up some money. According to Winters, Dora said that Black was involved in the robbery and explained the plan to him.

¶ 18. Dora removed the license plate off of Winters’s car, and Winters followed Dora to Tern’s. Winters parked at Tern’s, and Dora parked across the street at the medical clinic. When Black walked out of Tern’s, Dora activated his brake lights, alerting Winters that Black was approaching. Seeing his cue, Winters got out of his car, approached Black, and reached for the money bag. Winters testified that Black looked frightened, and he did not think that she knew what was happening. Black began to back away from him, and she threw the money bag on the ground. Winters then picked up the money and left.

¶ 14. Afterwards, Winters met Dora in Starkville at a predetermined location, and Dora split the money between them. Winters drove back to Georgia soon after. During the drive, Winters received a phone call from Dora, inquiring as to Winters’s whereabouts. Winters testified that he told Dora that he had made it to Alabama, and Dora hung up the phone.

¶ 15. On direct-examination, Winters was asked whether he had a gun under his jacket when he took the money from Black, and he responded no. Winters testified that his Blackberry cell phone was in a clip on his side.

¶ 16. On cross-examination, Winters was asked whether he had talked to his lawyer before agreeing to testify against Dora, and Winters responded no. Winters was also asked whether he expected to receive a plea deal in exchange for his testimony, and Winters said no. Winters stated that he volunteered to testify against Dora because what they did was wrong.

Y. Andrea Joiner Little

¶ 17. Little testified that she worked at the Brooksville Medical Clinic, which is across the street from Tern’s. That morning, she received a text message from Dora stating that he was coming to visit her. However, Little testified that she did not see Dora that day. Little maintained that she and Dora were not dating; she said they were old, high-school friends. Little testified that she would hear from Dora every few months, and the text message that she received from him was unexpected. Little maintained that Dora was trying to use her as an alibi.

VI. Trent Dora

¶ 18. When Dora was asked how he knew Winters, he testified that Winters was a former co-worker of his, and Winters was dating his niece. Dora testified that he saw Winters that morning at a gas station in Starkville. They chatted briefly, and Winters inquired as to Dora’s plans for the day. Dora told Winters that he was going to Brooksville to see a girl. Then, they went their separate ways.

¶ 19. Dora testified that he texted Little to let her know that he was on his way. He drove to Brooksville and parked at the medical clinic. As Dora got out of the car, he heard a woman scream. Dora turned around and saw Black being robbed. He got back into his car, left the clinic, and called 911 to report the incident.

¶ 20. Dora testified that he saw the robber make a right at the stop sign, which is why he told the 911 operator that the robber was traveling south. Dora stated that he drove in the opposite direction. He also testified that he gave the 911 operator a wrong name and phone number because he did not want his wife to know that he was in Brooksville visiting Little. Dora admitted that he was driving a black Grand Prix that day. However, he denied blocking Sergeant McCrary’s pursuit of the robber.

¶ 21. Dora testified regarding Chief Williams’s phone call and how he went back to the police department to give a statement. Dora testified that Chief Williams asked him if he knew anyone who drove a white Toyota Avalon, and he gave her Winters’s name. He also called Winters at the request of Chief Williams and inquired as to his current location and asked Winters whether he had a tag on his car. Dora denied taking part in the robbery, and he maintained that the other witnesses were lying.

¶ 22. On September 18, 2008, Dora was convicted of simple robbery. He was sentenced as a habitual offender to fifteen years in the custody of the MDOC and ordered to pay a $10,000 fine. Thereafter, Dora filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial. The trial court denied his motion. Aggrieved, Dora timely filed this appeal.

ANALYSIS

I. Legal Sufficiency

¶ 23. Dora challenges the legal sufficiency of the evidence. A motion for a directed verdict and a motion for a JNOV challenge the legal sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When ruling upon these motions, the trial court must view all of the credible evidence, which is consistent with the defendant’s guilt, in the light most favorable to the State. Id. at (¶ 17). This Court will not disturb the trial court’s ruling if “the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. at (¶ 16). However, “where the evidence fails to meet this test it is insufficient to support a conviction” and reversal is required. Id.

¶ 24. Dora was charged as an accomplice to armed robbery, but he was convicted of the lesser-included offense of simple robbery. Mississippi Code Annotated section 97-3-73 (Rev.2006) provides that:

Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

To support Dora’s conviction, the evidence must show that Dora acted as an accomplice in the robbery of Black.

¶ 25. Dora argues that the State failed to prove that he and Winters had made an agreement to rob Black, and the State failed to prove that Winters possessed the intent to rob Black. However, Winters testified that Dora was the mastermind of this scheme. The evidence shows that Winters initially believed that Black was in on the plan, but he soon realized that Black had no idea what was going on and that she was afraid. After realizing that Dora misled him, Winters still decided to stick with the plan, and he took the money. Black testified that she threw the money on the ground because she was in fear for her life. The evidence supports a finding that Winters took money from Black by putting her in fear of immediate injury and that Dora participated in the crime.

¶ 26. Dora argues that the charge for armed robbery cannot stand because Winters did not have a weapon. During the trial, Dora made a motion for a directed verdict on the basis that the State did not prove that Winters had a weapon. The trial court allowed the case to proceed on the lesser-included offense of simple robbery, which was an appropriate action. See Magee v. State, 542 So.2d 228, 234 (Miss.1989). And the jury convicted Dora of simple robbery, not armed robbery. Thus, we find that this argument is without merit.

¶ 27. Dora also maintains that the evidence is only sufficient to satisfy a charge of simple assault by physical menace. Because Dora failed to request this instruction at trial, this argument is procedurally barred from our review. See Williams v. State, 962 So.2d 129, 132 (¶ 13) (Miss.Ct.App.2007).

II. Weight of the Evidence

¶ 28. Next, Dora argues that the verdict is against the overwhelming weight of the evidence. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). This Court will not disturb the trial court’s denial of a motion for new trial unless “[the verdict] is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 29. Here, Dora repeats the same arguments that he made under his first assignment of error and maintains that there is no evidence that he participated in the robbery. Dora testified that- he was not involved in the robbery; he was simply a witness to the crime. To the contrary, there is testimony from Winters that Dora participated in the robbery; there is evidence that Dora gave misleading information to the 911 operator about the robber’s location; and Sergeant McCrary testified that Dora had deliberately blocked his pursuit of Winters.

¶ 30. The testimony presented a strange set of circumstances for the jury to consider. The law is clear that it is within the jury’s province to determine the weight and credibility to give to the evidence and to resolve all conflicts in the evidence. See Smith v. State, 965 So.2d 767, 769 (¶ 8) (Miss.Ct.App.2007). Based on the verdict, the jury resolved any conflicts in the evidence in favor of Dora’s conviction, and we have no reason to disturb the judgment of conviction. This issue is without merit.

III.Winters’s Plea Deal

¶ 31. Dora argues that the State hid the fact that Winters was offered a plea deal in exchange for his testimony. Thus, Dora contends that his trial was fundamentally unfair. Dora states that, one day after he was convicted, Winters pleaded guilty to robbery and was sentenced to three years.

¶ 32. However, this statement is not supported by the record. Winters testified that he did not expect to receive a plea deal in exchange for his testimony. We “[do] not act upon innuendo and unsupported representation of fact by defense counsel.” Colenburg v. State, 735 So.2d 1099, 1102 (¶6) (Miss.Ct.App.1999) (quoting Gerrard v. State, 619 So.2d 212, 219 (Miss.1993)). This Court will not consider issues outside of the record on appeal; Dora’s claim is more appropriate for a motion for post-conviction relief. Brown v. State, 965 So.2d 1023, 1026-27 (¶¶ 11-12) (Miss.2007) (finding that evidence of a witness’s plea deal, which was not presented during trial, was not an appropriate matter for direct appeal but a matter for a motion for post-conviction relief). Thus, we dismiss this issue without prejudice so that Dora may raise his claim in a properly filed motion for post-conviction relief, if he so chooses.

IV. Ineffective Assistance of Counsel

¶ 33. Dora argues that his trial counsel was ineffective because his trial counsel failed to request a lesser-included-offense instruction for simple assault.

¶ 34. Issues of ineffective assistance of counsel are not normally considered on direct appeal. Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss.2008). However, we can consider the issues on direct appeal if: “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Fannings v. State, 997 So.2d 953, 965 (¶ 37) (Miss.Ct.App.2008) (quoting Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003)).

¶ 35. We find that the record before this Court on appeal is inadequate to show affirmatively ineffective assistance of counsel of constitutional dimensions. Accordingly, we dismiss Dora’s ineffective-assistance-of-counsel claim without prejudice so that he may raise his claim in a properly filed motion for post-conviction relief, if he so chooses.

V. Cumulative Error

¶ 36. Dora argues that cumulative error in this case requires reversal. However, where the Court finds no error in part, there can be no cumulative error that requires reversal. Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss.2007). Because we have not found any error in this case, there can be no reversal based on the cumulative-error doctrine. This issue is without merit.

¶ 37. THE JUDGMENT OF THE CIRCUIT COURT OF NOXUBEE COUNTY OF CONVICTION OF ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND TO PAY A $10,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY. MYERS, P.J., NOT PARTICIPATING.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Samuel D. JERNIGAN, Appellant v. Amy YOUNG, Appellee.
    No. 2010-CA-00304-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.

      Donald W. Medley, Hattiesburg, attorney for appellant.
    Luanne Stark Thompson, Aberdeen, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Samuel D. Jernigan sought to recover a parcel of real property that he had previously conveyed to his then wife, Mae Bell Jernigan, who had conveyed it to her daughter, Amy Young. Samuel attempted to have the chancery court set aside the judgment in his divorce from Mae Bell in an effort to reopen the property division. Samuel also attempted to set aside the two deeds of conveyance. The chancery court found that Amy was the rightful owner of the property and that summary judgment against Samuel was proper. We find no error and affirm.

FACTS

¶ 2. Samuel owned a .38-acre tract of commercial real property located in Net-tleton, Mississippi. He had operated a car-repair shop on the premises for some time.

¶ 3. In 1997, Samuel married Mae Bell. Two years later, Samuel conveyed the property to Mae Bell by quitclaim deed.

¶ 4. At the summary-judgment hearing, Samuel’s attorney explained the reason for the conveyance. Samuel had hurt his back and could no longer work on cars. His shop had been shut down. Mae Bell had opened up a seamstress shop on the property. Samuel was to apply for social-security disability benefits. Samuel thought his chance for benefits would be improved if the property was not titled in his name. Mae Bell gave the same explanation in response to Samuel’s interrogatories.

¶ 5. Samuel claims that although the deed, on its face, transferred all of Samuel’s rights in the property, there was an agreement that Mae Bell would eventually deed the property back to him. There was no written evidence of such an agreement.

¶ 6. A year after Samuel had conveyed the property to Mae Bell, Mae Bell conveyed the property to Amy, her daughter from a previous relationship, by warranty deed. The record does not make it clear whether Samuel was aware of this conveyance at that time.

¶ 7. A year after Mae Bell had deeded the property to Amy, Samuel and Mae Bell decided to get a divorce. Neither of them hired a lawyer. Instead they used fill-in-the-blank forms. They filed a joint complaint for divorce on the ground of irreconcilable differences with an accompanying property-settlement agreement. The property-settlement agreement did not award either of them any property. In the blanks provided to list which spouse gets what property, the word “none” was written. Four months later, the chancellor entered a final decree of divorce that simply dissolved the marriage and incorporated the property-settlement agreement.

¶ 8. Four days after the divorce decree was entered, Samuel filed a “Withdrawal of Consent.” In the withdrawal of consent, Samuel stated that he no longer consented to an irreconcilable-differences divorce. Approximately one month later, Samuel filed a new complaint for divorce on the grounds of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences.

¶ 9. In this complaint, Samuel asked the chancellor to award him the Nettleton property. Also, one month later, Samuel filed a complaint to set aside both the quitclaim deed to Mae Bell and the warranty deed to Amy. He also filed a motion to set aside the original divorce decree pursuant to Mississippi Rule of Civil Procedure 60(b). Shortly thereafter, Samuel filed a lis pendens notice on the Nettleton property. The chancellor consolidated all of these separate filings into one case.

¶ 10. The case made no progress for approximately seven years. In October 2009, Amy filed a motion for summary judgment. After a hearing, the chancellor granted summary judgment against Samuel on all of the above claims. It is from this judgment that Samuel appeals.

ANALYSIS

1. Claim to Reopen the Divorce

¶ 11. Samuel’s motion to set aside the original divorce decree, pursuant to Mississippi Rule of Civil Procedure 60(b), asked the chancellor to reopen the divorce judgment. Samuel wanted the chancellor to reconsider the property division and find the Nettleton property was marital property. Samuel wanted the chancellor to award him an equitable share of the property. The chancellor denied the motion.

¶ 12. This Court’s standard of review of the denial of a Rule 60 motion is abuse of discretion. In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (¶ 7) (Miss.Ct.App.2008). We turn to the merits of Samuel’s arguments.

a. Did Samuel consent to an irreconcilable-differences divorce?

¶ 13. First, Samuel argues that an irreconcilable-differences divorce should not have been granted because he did not consent to it. Samuel claims that, although his “Withdrawal of Consent” was filed four days after the divorce decree was entered, he actually signed that document in his lawyer’s office on the day before the decree was entered. He claims that an “unexplainable delay” led to the untimely filing. He also claims that he communicated to Mae Bell that he had changed his mind and that she went forward anyway and presented a prepared divorce decree to the chancellor.

¶ 14. Both spouses must consent to an irreconcilable-differences divorce. Miss. Code Ann. § 93-5-2(5) (Supp.2010). However, this Court has stated: “[w]avering on whether a divorce should be entered may often occur and does not invalidate the divorce.... What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Sanford v. Sanford, 749 So.2d 353, 356 (¶ 11) (Miss.Ct.App.1999).

¶ 15. In Sanford, this Court granted the wife relief from her irreconcilable-differences divorce on the basis that she had not actually consented. The facts there are very different from this case. Ms. Sanford was unrepresented by counsel, and she had written numerous letters to the chancellor that unequivocally expressed her desire not to be divorced. Id. at 355 (¶ 5). Also, she had clearly misunderstood Mississippi law and thought that a divorce was unavoidable even if she- refused to consent. Id. at 356 (¶ 12). Further, the only time she expressed consent was at a hearing when she nodded her head. Id. at 360 (¶ 27). Under those circumstances, this Court found sufficient accident or mistake to grant relief from the judgment under Rule 60(b)(2). Id. at 360 (¶ 28).

¶ 16. Indeed, relief under Rule 60(b) requires a showing of “exceptional circumstances.” In re Dissolution of Marriage of De St. Germain, 977 So.2d at 416 (¶7). Samuel has not carried that burden here. Instead, this case is more like Harvey v. Harvey, 918 So.2d 837 (Miss.Ct.App.2005). In Harvey, this Court denied the husband relief from his irreconcilable-differences divorce. Id. at 839 (¶ 9). We reaffirmed that “[w]hat is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.” Id. Here, on the day the chancellor entered the decree, the chancellor had no reason to believe that Samuel did not consent.

¶ 17. Accordingly, this issue is without merit.

b. Was a hearing required before a judgment of divorce could be entered?

¶ 18. Next, Samuel argues that the chancellor erred when he entered the divorce decree without holding a hearing. Samuel points out that the statute states: “Complaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard.” Miss.Code Ann. 93-5-2(4) (Supp. 2010) (emphasis added). Samuel, however, ignores the next sentence. It states that, when there are no disputed issues to be decided by the chancellor, a joint complaint for an irreconcilable-differences divorce “shall be taken as proved and a final judgment entered thereon, as in other cases and without proof or testimony!).]” Id. Indeed, “ ‘[t]he parties bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.’ ” Perkins v. Perkins, 787 So.2d 1256, 1263 (¶ 21) (Miss.2001) (quoting Gri er v. Grier, 616 So.2d 337, 340 (Miss.1993)). We can find no authority to support Samuel’s argument that a hearing was necessary before a judgment could be entered, and it appears he had the same difficulty.

¶ 19. Accordingly, this issue is without merit.

c. Was the chancellor required to recite that he found the property-settlement agreement “adequate and sufficient?”

¶ 20. Third, Samuel argues that the chancellor erred when he incorporated Samuel and Mae Bell’s property-settlement agreement into the divorce decree without finding the agreement to be “adequate and sufficient” as required by the statute. The statute provides, “[i]f the parties provide by written agreement ... for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment[.]” Miss.Code Ann. § 93-5-2(2) (Supp.2010). Samuel is correct that the chancellor did not recite that he found the agreement “adequate and sufficient.” However, that is not a “magic phrase,” and the absence of it is not a ground for reversal. Cobb v. Cobb, 29 So.3d 145, 149 (¶ 16) (Miss.Ct.App.2010).

¶ 21. Rather, this Court will reverse only if convinced that the “agreement is [injadequate and [injsufficient in terms of equity and entirety.” Id. Turning to that question, Samuel makes no argument that the agreement was actually inadequate and insufficient, aside from his central claim that he should get the Net-tleton property. As will be discussed below, that property belonged to Amy at the time of the divorce; therefore, it could not have been awarded to either spouse in the judgment of divorce.

¶ 22. Accordingly, this issue is without merit.

d. Was it reversible error for the chancellor to fail to require Rule 8.05 statements?

¶ 23. Finally, Samuel argues the chancellor committed reversible error when he failed to require Samuel and Mae Bell to submit financial-disclosure statements pursuant to Uniform Chancery Court Rule 8.05. This rule provides, “[ujnless excused by Order of the Court for good cause shown, each party in every domestic case involving economic issues and/or property division shall provide the opposite party” certain financial information. Id. However, a chancellor’s failure to require such statements is not necessarily reversible error. In re Dissolution of Marriage of De St. Germain, 977 So.2d at 417-18 (¶¶ 16-17). If the lack of disclosure allowed one spouse to conceal major assets, it could be reversible error. Id. (citing Kalman v. Kalman, 905 So.2d 760, 764 (¶¶ 11-13) (Miss.Ct.App.2004)).

¶ 24. Samuel makes no argument that Mae Bell was allowed to conceal major assets. Indeed, Samuel’s argument is that the chancellor’s failure to insist on the financial statements must result in reversal and remand. That argument is contrary to the existing authority. Accordingly, this issue has no merit.

¶25. We find that the chancellor did not abuse his discretion when he denied Samuel’s Rule 60(b) motion for relief from the judgment of divorce.

2. The Deeds

¶ 26. In his second attempt to regain the Nettleton property, Samuel makes a two-pronged attack on both the quitclaim deed to Mae Bell and the warranty deed to Amy. First, he argues that both conveyances are invalid because they were not supported by consideration. Second, he argues that he and Mae Bell had an enforceable oral agreement, whereby she would hold the property in trust and deed it back to him at a later date. That agreement, Samuel contends, precluded Mae Bell from deeding the property to Amy.

¶ 27. First, we consider his argument that the conveyances are invalid for lack of consideration. Samuel’s argument fails because Mississippi law recognizes inter vivos deeds of gift. In Holmes v. O’Bryant, 741 So.2d 366, 370 (¶ 19) (Miss.Ct.App.1999), this Court stated:

“[linter vivos deeds of gift are a perfectly respectable mode of conveyance.” Mullins v. Ratcliff, 515 So.2d 1183, 1190 (Miss.1987). “A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice.” Herrington v. Herrington, 232 Miss. 244, 250-251, 98 So.2d 646, 649 (1957) (quoting Burnett v. Smith, 93 Miss. 566, 47 So. 117, 118 (1908)).

¶ 28. Next, we consider his allegation of an oral trust agreement. Samuel’s argument again fails because Mississippi law does not recognize oral trusts in land. Mississippi Code Annotated section 91-9-1 (Rev.2004) states in part:

Hereafter all declarations or creations of trusts ... in any land shall be made and manifested by writing, signed by the party who declares or creates such trust ... or else they shall be utterly void.

Since there was no writing, the law will not give effect to the alleged agreement.

¶ 29. We note that, in the proper circumstances, equity may impose a constructive or resulting trust on the legal owner of real property despite the absence of a written trust agreement. Simmons v. Simmons, 724 So.2d 1054, 1057 (¶ 6) (Miss.Ct.App.1998). However, that specific argument was never presented to the chancellor or raised on appeal.

¶ 30. Because we find that the chancellor was correct to issue a summary judgment on Samuel’s Rule 60 motion and Samuel’s complaint to set aside the deeds, the remaining issues are moot. Because the initial divorce was valid, Samuel’s second complaint for divorce was a nullity because it asked for a divorce to a nonexistent marriage. Further, since the conveyances to Mae Bell and Amy were valid and Amy is the rightful owner of the property, Samuel has no claim to the property and no basis for the lis pendens notice. Therefore, the chancellor was correct to find that the lis pendens notice should be cancelled.

¶ 31. Finding no error, we affirm the chancellor’s judgment.

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

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


author: MAXWELL, J.,

text:
    Stuart AEGLER and Jean Aegler, Appellants v. Frances GAMBRELL, Appellee.
    No. 2010-CA-00215-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.

      Michael D. Haas Jr., Bay St. Louis, attorney for appellants.
    Robert Thomas Schwartz, Jeffrey Ward Bertucci, Biloxi, attorneys for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This appeal hinges on what “furnishings” transferred to Stuart and Jean Ae-gler when they purchased Francis Gam-brell’s house. The chancellor granted summary judgment in favor of Gambrell and awarded her possession of a list of items the Aeglers had refused to allow her to remove from the home after closing. Finding the addendum to the sales contract is clear that the claimed items were not included in the purchase of Gambrell’s home, we affirm the chancellor’s grant of summary judgment in favor of Gambrell.

FACTS AND PROCEDURAL HISTORY

¶ 2. Gambrell and the Aeglers were next door neighbors until separate emergencies drove Gambrell out of her home and the Aeglers into Gambrell’s. In April 2007, Gambrell’s children discovered she was in need of immediate medical care. They removed her from her home in Diamond-head, Mississippi, first to a hospital, then permanently to her daughter’s home in Indiana. All her belongings remained in Diamondhead. On June 1, 2007, Gambrell gave her son Michael power of attorney to sell her home. Michael hired a real estate agent and filled out a property disclosure statement, which disclosed a previous termite infestation.

¶ 3. On June 14, 2007, lightning struck the Aeglers’ house, sparking a fire that consumed the house and everything in it. Homeless and with little amenities, the Aeglers asked Michael if they could move into his mother’s furnished house.

¶ 4. Michael agreed but informed them his mother was trying to sell the house. On June 27, a week and a half after moving in, the Aeglers made an offer on the house. After two days and two counter offers, on June 29, Michael and the Ae-glers agreed on a purchase price of $310,000. The contract they entered stated the Aeglers were purchasing “7616 Fairway DR, Diamondhead, MS together with the following items: appliances as in place at time of offer [and] all items permanently attached, unless specifically excluded herein.” The contract included the following addendum, drafted by Gambrell’s realtor: “Seller reserves right to remove certain articles prior to closure and all other remaining furnishings are to remain with the house.”

¶ 5. The sale was to close on September 1, 2007. Realizing his mother’s health would prevent her from returning to Mississippi to retrieve her property before closing, Michael called Stuart, who assured Michael that Gambrell could come get her things after closing.

¶ 6. The house closed without the Ae-glers having an inspection. Several months later, Gambrell’s daughter called the Aeglers to arrange a time for movers to come and remove Gambrell’s property. The Aeglers said they would ship Gambrell her jewelry, photographs, golf trophies, and personal items belonging to her late husband. But they informed her daughter they now owned everything in the house.' Further, the Aeglers could not send Gam-brell’s clothes because they had already been donated to a local charity.

¶ 7. A dispute erupted over which “furnishings” belonged to whom. The Aeglers argued the main reason they bought the home is because it came furnished. They also expressed dissatisfaction with their newly purchased home. In particular, they were upset the termite damage had not been repaired and that Gambrell had not given them, as Michael indicated she would, her insurance proceeds to repair the smoke damage caused by the Aeglers’ house fire. The Aeglers said they would return all the personal property-along with the house — if Gambrell agreed to rescind the June 2007 contract. If not, she would not get a single item of personal property.

¶ 8. In November 2007, Gambrell sued the Aeglers for breach of contract, asking the chancery court to enforce her right to retrieve certain personal property, a list of which she attached to her complaint. The list included clothing, jewelry, photographs, golf trophies, wall plaques, Christmas decorations, dishes, throw pillows and blankets, small appliances, pieces of furniture, and a golf cart.

¶ 9. The Aeglers denied they had breached the contract and filed a counterclaim. They asked the chancery court to rescind the contract claiming that buying Gambrell’s furnishings was a key reason they purchased the home for $310,000. The Aeglers also asked for the costs associated with buying and maintaining Gambrell’s home (closing costs, taxes, and insurance), $5,000 for needed termite-damage repair, and any insurance proceeds Gambrell received for damage from the June 2007 fire next door.

¶ 10. Gambrell moved for summary judgment in her favor on all claims and counterclaims. Because the material facts were undisputed and because this case hinged on a legal question — the interpretation of the addendum to the contract — she argued summary judgment was appropriate.

¶ 11. The chancellor agreed and granted summary judgment on Gambrell’s request for the listed items of personal property and dismissed the Aeglers’ counterclaims. The chancellor found there was no dispute the parties agreed Gambrell could remove her property after the closing. She also found the addendum’s language, in particular “remaining furnishings,” was unambiguous. The Ae-glers had argued “remaining furnishings” encompassed all the furnishings Gambrell had left in the house. But the chancellor found the only logical reading of the addendum is that it allowed Gambrell to remove some of the furnishings. Further, as a matter of common sense, the chancellor reasoned “furnishings” could not include some items the Aeglers had claimed they now owned, like Gambrell’s golf cart.

¶ 12. The Aeglers filed a motion to reconsider, arguing the chancellor failed to apply the dictionary definition of “furnishings.” They also asked the chancellor to clarify the basis for dismissing their counterclaim. The chancellor denied the Ae-glers’ motion to reconsider and explained their counterclaim failed because service was defective.

¶ 13. The Aeglers timely appealed.

LAW

¶ 14. We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 15. In determining whether the trial court properly granted summary judgment, we view the facts in the light most favorable to the nonmovant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999) (citation omitted). Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citing Grisham v. John Q. Long V.F.W. Post, No. 1057, Inc., 519 So.2d 413, 416 (Miss.1988)). To withstand summary judgment, the nonmoving party must produce significant probative evidence showing there are genuine issues for trial. Id. (citing Price v. Purdue Phanna Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

¶ 16. “Questions concerning construction of contracts are questions of law.” Henry v. Moore, 9 So.3d 1146, 1152-53 (¶ 15) (Miss.Ct.App.2008) (citing Parkerson v. Smith, 817 So.2d 529, 532 (¶ 7) (Miss.2002)). Our courts approach contract interpretation as follows:

When examining a contract, a court should first examine the four corners of the contract to determine how to interpret it. If the language in the contract is clear and unambiguous the intent of the contract must be effectuated. Vagueness and ambiguity are more strongly construed against the party drafting the contract. Only when the intent of the parties is not clear the Court should then resort to extrinsic evidence.

Rotenberry v. Hooker, 864 So.2d 266, 270 (¶ 14) (Miss.2003) (citations omitted).

DISCUSSION

¶ 17. Both parties agree the chancellor correctly applied the “four-corners” test to interpret the contract and addendum. But they disagree with her definition of “furnishings” and her finding the contract was unambiguous. We are not persuaded the Aeglers’ asserted definition of “furnishings” — the movable items in a house, including furniture, that make the house livable — dictates a different outcome. Thus, we affirm the chancellor’s award granting Gambrell her personal property because the addendum is clear that the ownership of these items was not intended to transfer to the Aeglers with the sale of the house.

I. Gambrell’s Claim

¶ 18. Gambrell claimed the addendum made clear “certain articles” were not being sold along with the house — namely, those articles listed in her complaint. She requested and was awarded possession of those articles.

¶ 19. This case involved a somewhat unique real-estate transaction. Normally, the seller is in possession of her house when she sells it and “moves out” prior to closing. After closing, the buyer then “moves in.” Here, because of the fire and Gambrell’s health condition, the Aeglers moved in before they even put an offer on the house — and before Gambrell had moved out.

¶ 20. To address this circumstance, the parties executed the following addendum to the sales contract: “Seller reserves right to remove certain articles prior to closure and all other remaining furnishings are to remain with the house.” There is no doubt the addendum was to protect Gambrell’s right to “move out” of her house, even though the Aeglers had already moved in. By the addendum’s language, the parties anticipated Gambrell’s move would occur prior to closing. It is not in dispute that once Michael, acting as Gambrell’s agent, communicated to Stuart that Gambrell’s health prevented her from returning to Diamondhead prior to September 1, Stuart waived the time limitation. And Gambrell reasonably relied on Stuart’s assurances Gambrell could remove her property at any time after the closing.

¶ 21. Further, the addendum’s language convinces us the addendum did not act as a forfeiture of all of Gambrell’s property not removed by closing. The addendum did not state “all remaining property,” but instead “all remaining furnishings.” The parties quibble over how best to define “furnishings.” But regardless of how narrowly or broadly one construes “furnishings,” the chancellor correctly pointed out some items of personal property did not become “furnishings” simply because Gambrell kept them in her house. The chancellor included the example of Gambrell’s golf cart as something that cannot be a furnishing. To this we would add, to name just a few items, Gam-brell’s golf clubs, trophies and plaques, sewing machine, and jewelry. All these non-furnishings did not transfer with the house, and the Aeglers clearly had no right to keep them once Gambrell asked for them.

¶ 22. Neither did the addendum state “all furnishings” transferred to Aeglers. Instead, “all remaining furnishings.” If only the furnishings that Gambrell did not remove were to remain with the house, then the intent was for Gambrell to remove among her “certain articles” some of her “furnishings” as well. We are guided by Chism v. Omlie, 239 Miss. 576, 124 So.2d 286 (1960). In that case, Chism and Omile traded a furnished hotel for a furnished ranch. Omile conveyed to Chism “all furniture now in her home ... except ‘personal things.’ ” Id. at 580, 124 So.2d at 287. Omile surrendered possession of her ranch home prior to removing her “personal things.” Chism allowed Omile to later remove some small items of personal property but refused to allow her to remove any furniture. Id. The chancellor awarded Omile the furniture she requested as part of her “personal things,” finding the parties had agreed she was excepting these items from the sale and they were never intended to transfer to Chism. Id. at 581, 124 So.2d at 288. Here, Gambrell’s “certain articles” are analogous to Omile’s “personal things.” Likewise, included in these “certain articles” were some furnishings, which were never intended to transfer with the sale.

¶ 23. The addendum gave Gambrell the right to remove her personal property from a house of which she no longer had possession. It did not operate as a sale of all of Gambrell’s property upon closing. The contract conveyed to the Aeglers the house, the appliances, all items permanently attached, and all remaining furnishings after Gambrell moved out. We find the chancellor was correct to enforce Gam-brell’s right to move out and award her possession of her property as listed in her complaint, excepting those items permanently attached, which were clearly purchased by the Aeglers.

II. The Aeglers’ Counterclaim

¶ 24. In her order denying reconsideration, the chancellor found the Aeglers’ counterclaim, incorporated into their answer, should be dismissed for insufficiency of service of process. The chancellor found there was no evidence in the record the Aeglers properly served the counterclaim. The chancellor found the Aeglers failed to comply with Rules 4 and 5 of the Mississippi Rules of Civil Procedure because the counterclaim filed with the chancery court did not contain a certificate of service and the cover letter directing the court to file the counterclaim did not indicate a copy had been sent to Gambrell’s counsel.

¶ 25. We disagree, under the circumstances, that the lack of a certificate of service necessitated a finding that service of process was insufficient. As a subsequent pleading, only service under Rule 5 was required. M.R.C.P 5(a). Gambrell filed an answer to the counterclaim seventeen days after the counterclaim was filed-evidence that the Aeglers had delivered a copy of the counterclaim to Gambrell’s counsel. See M.R.C.P. 5(b).

¶ 26. But we affirm the dismissal of the counterclaim on summary judgment for different reasons. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993) (“On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.”). In their counterclaim, the Aeglers brought three claims against Gambrell: (1) the dispute over the “furnishings” caused the entire contract to fail, requiring rescission; (2) Gambrell failed to disclose the extent of the termite damage, entitling the Aeglers to $5,000 in damages; and (3) Gambrell failed to pass along her insurance proceeds for the June 14, 2007 fire damage. On each claim, the material facts are not in dispute, and Gambrell is entitled to judgment as a matter of law. See M.R.C.P. 56(c).

A. Furnishings

¶ 27. The Aeglers counterclaimed that Gambrell’s furnishings were the inducement for entering into the sales contract. This is their offensive counterpart to their defense against Gambrell’s claim for her property — that they bought all of Gam-brell’s remaining property at closing. For the same reasons we affirm the grant of summary judgment on Gambrell’s claim, we affirm the denial of the Aeglers’ competing counterclaim.

B. Termite Damage

¶ 28. To survive summary judgment, the Aeglers had the burden to put forth evidence supporting each element of their claim. Borne, 12 So.3d at 570 (¶ 16). The Aeglers argue Gambrell misrepresented that she had repaired the termite damage by placing metal siding over the damaged area. Because there is no evidence Gambrell or her son misrepresented or fraudulently concealed any termite damage, dismissal of this claim on summary judgment was proper.

¶ 29. The Aeglers admitted they were provided, prior to closing, the statement disclosing a previous termite infestation and current termite treatment. It is undisputed they had possession of Gambrell’s house for over two months prior to closing, at which time they could have investigated any damage to the home. It is also undisputed they did not hire a professional to inspect whether the termite damage had been repaired properly.

¶ 30. We find nothing in the sales contract that would entitle the Aeglers to damages to repair a condition that was present prior to entering the contract. See Laird v. ERA Bayshore Realty, 841 So.2d 178, 180 (¶¶ 4-5) (Miss.Ct.App.2003) (finding no evidence of reliance on sellers’ “cover-up” of structural damage because purchasers admitted they were aware of damage prior to buying the house). The Aeglers knew Gambrell’s house had been infested by termites. They assumed the metal sheeting meant Gambrell had fully repaired the underlying damage to the wood. That their assumption, which they failed to test through a home inspection, turned out to be wrong cannot be the basis of imposing liability on Gambrell.

C. Insurance Proceeds

¶ 31. We find dismissal was appropriate on this claim because the Aeglers failed to produce evidence Gambrell was under a contractual obligation to turn over her insurance proceeds.

¶ 32. It is undisputed Michael, as Gam-brell’s agent, told the Aeglers they could have any proceeds Gambrell received for damage from the June 14 fire next door. It is also undisputed Gambrell never forwarded the check. But the insurance proceeds were not part of the consideration in purchasing the house. The contract and addendum is entirely silent about the insurance proceeds. And the contract is explicit that it incorporated all prior agreements between Gambrell and Aegler. Further, the Aeglers presented no evidence the parties entered into a subsequent agreement about insurance proceeds or provided any consideration. Instead, Stuart testified Michael told him Gambrell intended to give them the money. This intention, formed at a time when the Gam-brells and Aeglers were feeling much more neighborly toward one another, was a mere promise, not a legally enforceable obligation. Cf. Barcroft v. Armstrong, 198 Miss. 565, 579-580, 21 So.2d 817, 819 (1945) (finding promise to reduce interest rate unenforceable because promisee agreed to no new obligation in exchange). Therefore, the chancellor properly dismissed this claim as well.

CONCLUSION

¶ 33. We are particularly sensitive to the situations that prevented Gambrell from moving out and led to the Aeglers moving in. But we must enforce the contract as written. We find the chancellor was correct that the parties agreed that Gambrell could remove her property after closing and that the contract and addendum were clear that the items Gambrell sought to remove remained her property. We, therefore, affirm the chancellor’s order of summary judgment granting Gam-brell’s claim and dismissing the Aeglers’ counterclaims.

¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. MYERS, J., NOT PARTICIPATING.

      . The chancellor excepted carpeting, window treatments, and items on the list that had been permanently affixed to the Sheetrock.


author: GRIFFIS, P. J.,

text:
    Penny PINCHERS and William B. Johnson d/b/a Penny Pinchers, Appellants v. Lenetra OUTLAW, Appellee.
    No. 2009-CA-01324-COA.
    Court of Appeals of Mississippi,
    April 26, 2011.

      B. Wayne Williams, Paul Nathan Jenkins Jr., attorneys for appellants.
    Orlando Rodriquez Richmond Sr., Chy-nee Allen Bailey, attorneys for appellee.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Penny Pinchers and William B. Johnson d/b/a Penny Pinchers (“Penny Pinchers”) appeal the judgment of the Clay County Circuit Court denying then-motion for a judgment notwithstanding the verdict (“JNOV”) or, alternatively, a new trial. Penny Pinchers argues that the plaintiff, Lenetra Outlaw, failed to prove that the presence of a four-month-old dachshund in their grocery store created a dangerous condition. We agree; therefore, the judgment of the circuit court is reversed and rendered.

FACTS

¶ 2. Cindy Scott was the manager of Penny Pinchers, a discount grocery store located in West Point, Mississippi. She was also the owner of a four-month-old dachshund puppy named Sophie, which weighed four pounds and one ounce. Scott took Sophie to work with her every day. She set up a piece of peg board to keep Sophie contained in the area behind the checkout counter. Scott testified that this was to protect Sophie from the customers because Sophie was such a tiny dog.

¶ 3. On August 16, 2006, Outlaw entered Penny Pinchers. She said hello to Scott, who was having a conversation with Anita Reeves, an employee, and Ivy Mann, a customer. Outlaw testified that she started walking down an aisle when she heard a dog bark. Because she is terrified of dogs, she started running down the aisle toward the back of the store. She said that she could hear the claws of the dog hit the floor as the dog chased her down the aisle. When she turned to see how close the dog was, she ran into a freezer at the back of the store. She then tried to jump on top of the freezer to get away from the dog.

¶ 4. Outlaw testified that Scott picked up the dog and told Outlaw that the dog would not hurt her. When Outlaw saw how small the dog was, she began to laugh and tell Scott about her extreme fear of dogs. Outlaw then went on with her shopping. She bent down to reach a five-pound bag of catfish in the deep freezer. She took the catfish to the counter and then walked fifteen feet to another aisle where she bent down to the bottom shelf to pick up a four-pound bag of sugar. Outlaw testified that she began to feel a severe pain in her hip as she continued to shop.

¶ 5. Scott’s testimony of the events surrounding Outlaw’s injuries was markedly different. She testified that she unknowingly left the pegboard enclosure open. While she was talking to Reeves and Ivy, she heard Sophie bark from the front side of the counter. Scott realized Sophie was out of the enclosure, so Scott stepped in front of the counter and picked up the dog.

¶ 6. Scott testified that it only took a moment for her to pick up Sophie after she heard the bark. By then, Scott said that Outlaw was already thirty feet away at the back of the store. That is when Outlaw turned and saw the dog and began to laugh and explain her fear of dogs. Scott told Outlaw that Sophie would not hurt her, and Outlaw continued her shopping.

¶ 7. When Outlaw returned to the counter with the sugar, she began to sob. Scott testified that she asked Outlaw whether she needed an ambulance. Scott said that she could not understand Outlaw because of the sobbing. Scott called Johnson, the owner of Penny Pinchers, who came to the store. He called an ambulance, and Outlaw was transported to the hospital.

¶ 8. Outlaw had extensive health problems before this incident. She had Perthes Disease as a child, a condition that caused severe hip problems. She also suffers from rheumatoid arthritis. She had a total replacement of the left hip in 1995. Because the prosthetic device used in the hip replacement only lasts between ten to fifteen years, Outlaw underwent a revision surgery in 2005. Again, that prosthetic device was estimated to last from ten to fifteen years; however, Outlaw had to have a second revision surgery in 2006 following her collision with the freezer at Penny Pinchers.

¶ 9. Outlaw filed suit against Penny Pinchers, Johnson, and Scott. Scott, in her individual capacity, was dismissed as a defendant prior to trial. Outlaw alleged that Penny Pinchers negligently failed to (1) maintain the premises in a safe condition, (2) provide proper restraint of the dog, and (3) warn customers of the dog’s presence. At the close of Outlaw’s case-in-chief, Penny Pinchers moved for a directed verdict claiming that Outlaw had presented no evidence of any dangerous condition. Penny Pinchers further asserted that Outlaw had failed to show that Sophie had previously exhibited any dangerous propensities or that Penny Pinchers knew or should have known of such a danger. The motion for a directed verdict was denied.

¶ 10. The jury found Penny Pinchers 70% liable and Outlaw 30% liable for Outlaw’s injuries. Outlaw was awarded $130,000. The circuit court subsequently denied Penny Pinchers’ motion for a JNOV or, alternatively, a motion for a new trial. Penny Pinchers now appeals.

STANDARD OF REVIEW

¶ 11. The standard of review for a JNOV “tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence.” Corley v. Evans, 835 So.2d 30, 36 (¶ 16) (Miss.2003). When confronted with a motion for a JNOV, the trial judge must:

consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that reasonably may be drawn therefrom. The trial court should consider the evidence offered by the non-moving party and any uncontra-dicted evidence offered by the moving party. If the evidence thus considered is sufficient to support a verdict in favor of the non-moving party, the motion for [a] JNOV must be denied.

Id. at (¶ 17) (citation omitted). “[I]f there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.” Id. at 37 (¶ 19).

ANALYSIS

¶ 12. It was undisputed that, as a customer of Penny Pinchers, Outlaw was classified as a business invitee. A business owner owes a business invitee a duty of ordinary care to keep the business premises in a reasonably safe condition. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986). The owner has a duty to warn invitees of dangerous conditions that are not apparent to the invitee, of which the owner or occupier knows or through the exercise of reasonable care should know. Id. However, the owner is not an insurer against all injuries that may occur on the premises. Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988).

¶ 13. Thus, Penny Pinchers owed Outlaw a duty to keep the store in a reasonably safe condition. Penny Pinchers had a duty to warn Outlaw of any dangerous conditions of which it knew or should have known. However, implicit in that duty is that a dangerous condition must exist. See Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473, 476 (Miss.1967) (citing 65 C.J.S. Negligence § 63(130) (1966)) (The owner of a business “is not liable for injuries caused by conditions which are not dangerous.... ”).

¶ 14. Further, the owner “is not required to keep the premises absolutely safe, or in such a condition that no accident could possibly happen to a customer.” Id. “The owner is merely required to anticipate a result that is more apt to happen than not to happen, that is to say he must anticipate only such a result as is reasonably foreseeable as a probable consequence of his act.” Id.

¶ 15. Here, the dispute is whether the presence of the dog in the store created a dangerous condition. Outlaw, who claims that Sophie barked at and chased her, argues that Sophie was a dangerous condition. Penny Pinchers disagrees and says it had no reason to believe that Sophie’s presence in the store created any danger. Because Sophie had never exhibited any dangerous propensities, Penny Pinchers claims that it could not and should not have known of any dangerous condition.

¶ 16. While this is not a traditional “dog-bite” case, we find it instructive that the supreme court has held that dogs are not dangerous per se. To impose liability on a dog owner for personal injuries caused by the dog, “there [must] be some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of, and, moreover, it must be shown that the owner knew or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone.” Poy v. Grayson, 273 So.2d 491, 494 (Miss.1973).

¶ 17. Considering the specific facts of this case, even in a light most favorable to Outlaw, we find no proof that Sophie created a dangerous condition at Penny Pinch-ers. There was no proof that Sophie had previously exhibited any of the behaviors that Outlaw alleged. Scott took Sophie with her to Penny Pinchers on a daily basis. Sophie had never barked or chased any of the other customers. In fact, there was no proof that any other customer had a problem with Sophie.

¶ 18. We must also consider that Sophie was a four-pound puppy at the time of the incident. Outlaw admitted that, when she heard the bark, she never turned to look at the dog. Instead, she started running toward the back of the store. She further admitted that she began to laugh when she finally saw that such a small dog had caused her to run into the freezer. While we agree with Outlaw that it is possible that the presence of a dog inside a grocery store could create a dangerous condition, the facts that she presented at trial do not prove that a dangerous condition existed here.

¶ 19. We acknowledge Outlaw’s extreme fear of dogs. However, we cannot say that it was reasonable for Penny Pinchers to anticipate that anyone, even someone with a great fear of dogs, would have such a reaction to Sophie’s presence in the store. “The invitee is required to use in the interest of his own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstances.” Gen. Tire & Rubber Co. v. Darnell, 221 So.2d 104, 107 (Miss.1969) (citing Stanley, 203 So.2d at 476). Penny Pinchers was not required to protect Outlaw from any possible injury, but only those injuries that were a foreseeable result of Penny Pinch-ers’ action of allowing a four-pound puppy to be present in the store.

¶ 20. We find that Outlaw failed to prove that Sophie created a dangerous condition. As such, Outlaw failed to prove that Penny Pinchers had breached its duty to provide her reasonably safe conditions within the store. The judgment of the circuit court is reversed, and judgment is rendered in favor of Penny Pinchers.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: MURDOCK, Justice.

text:
    Katachia DALE, as administratrix of the estate of Mary Patricia Gulley, deceased v. Gary KOLB, D.O.
    1081418.
    Supreme Court of Alabama.
    Oct. 22, 2010.

      Thomas G. Sampson II of Thomas Kennedy Sampson & Tompkins LLP, Atlanta, Georgia, for appellant.
    Randal H. Sellers of Starnes & Atchi-son, LLP, Birmingham; and W. Christian Hines III of Starnes & Atchison, LLP, Mobile, for appellee.
   MURDOCK, Justice.

Katachia Dale, as administratrix of the estate of her sister Mary Patricia Gulley, deceased, appeals from a summary judgment entered by the Baldwin Circuit Court in favor of Dr. Gary Kolb on her medical-malpractice claim. We reverse the judgment of the trial court.

I. Facts and Procedural History

Gulley had been experiencing severe abdominal pain for two weeks when she reported to the North Baldwin Infirmary on May 5, 2006, where she received treatment for the pain. She again reported to the North Baldwin Infirmary on May 12, 2006, complaining of excruciating abdominal pain. Dr. Stephen Simpson diagnosed Gulley with a urinary-tract infection, provided her with medication, and discharged her.

On May 16, 2006, Gulley visited Bay Minette Family Practice and was seen by Dr. Kolb. She complained of dizziness, vomiting, and severe abdominal pain. Dr. Kolb ordered tests and diagnosed Gulley as suffering from anemia. He scheduled Gulley for a consultation with a gastroen-terologist on May 18, 2006. On May 17, 2006, Gulley died as a result of complications from peritonitis.

On May 2, 2008, Dale, in her capacity as administratrix of Gulley’s estate, filed an action in Baldwin Circuit Court alleging medical malpractice and wrongful death against the North Baldwin Infirmary, Dr. Simpson, Bay Minette Family Practice, and Dr. Kolb. As to Dr. Kolb and Bay Minette Family Practice, Dale alleged that Dr. Kolb had breached the standard of care in a number of ways, including failing to diagnose diverticulitis, failing to perform an adequate abdominal examination, failing to immediately admit Gulley to a hospital based on her symptoms, and failing to order certain tests that could have revealed the seriousness of Gulley’s medical condition.

On September 25, 2008, Dr. Kolb filed a response to Dale’s second set of interrogatories and request for production of documents. That submission contains the following question and answer:

“13. Were you practicing in an area of your specialization(s) when you saw and treated Mary Patricia Gulley, deceased, on May 16, 2006? If so, what specialty?
“RESPONSE: Yes: I was practicing within my specialty of family practice as a physician board-certified by the American Osteopathic Board of Family Physicians.”

Dr. Kolb provided a curriculum vitae (“CV”) with this submission that also stated his board certification, as well as a copy of his board certification.

On March S, 2009, Dale’s attorney deposed Dr. Kolb. The deposition included the following exchange:

“Q. [Dale’s attorney:] Okay. Are there other boards that can certify you as an osteopathic family physician?
“A. [Dr. Kolb:] Not that Pm aware of.
“Q. Okay. So the American Osteopathic Board of Family Physicians, to your knowledge, is the only board that certifies osteopathic physicians?
“A. That’s correct. In family practice. “Q. In family practice, correct?
“A. Yes. Yes.
“Q. And so I assume — -And so they’re a national organization, correct?
“A. Yes, sir.”

On March 31, 2009, Dr. Kolb filed a motion for a summary judgment. Dr. Kolb submitted an affidavit in support of the motion in which he stated, in pertinent part:

“I was in 2006 and continue to be a licensed, practicing physician in the State of Alabama. I was in 2006 and continue to be board-certified by the American Osteopathic Board of Family Physicians. I practice in the specialty of family practice; am trained and experienced in the specialty of family practice; and hold myself out as a specialist in the field of family practice. I am familiar with the standard of care of family practice physicians board-certified by the American Osteopathic Board of Family Physicians.
“Based upon my education, experience and training, I met the standard of care of family practice physicians board-certified by the American Osteopathic Board of Family Physicians during my care of Mary Gulley on May 16, 2006. Furthermore, nothing I did or failed to do proximately caused the death of Ms. Gulley.”

On April 16, 2009, Dale filed her response to Dr. Kolb’s summary-judgment motion. Along with her response, Dale submitted an affidavit from Dr. Michael Hahalyak in which Dr. Hahalyak asserted that Dr. Kolb had “breach[ed] the standard of care” in a number of ways that caused or contributed to Gulley’s death. The affidavit stated, in pertinent part:

“My name is Michael Hahalyak. I am a doctor of osteopathic medicine licensed to practice in the State of Pennsylvania. I am and was at the time of Dr. Kolb’s treatment of Mary Patricia Gulley in May 2006, board certified in the field of Family Medicine, trained and experienced in the practice of Family Medicine, a specialist in Family Medicine, and working in that capacity. A copy of my most recent curriculum vitae is attached to this Affidavit.”

The CV attached to Dr. Hahalyak’s affidavit stated that he is board-certified by the “American Board of Family Practice.”

The trial court set a hearing on Dr. Kolb’s motion for a summary judgment for April 21, 2009. On April 20, 2009, Dr. Kolb filed a motion to strike Dr. Hahal-yak’s affidavit because it failed to state by what American board Dr. Hahalyak is certified. The motion to strike also argued that Dr. Hahalyak’s CV could not be considered by the trial court because it was not properly sworn or certified. Dr. Kolb noted, however, that, even if the CV submitted with Dr. Hahalyak’s affidavit was considered, that CV states that Dr. Hahal-yak is certified by the American Board of Family Practice and that this is not the same board by which Dr. Kolb is certified (the American Osteopathic Board of Family Physicians). Accordingly, Dr. Kolb argued that Dr. Hahalyak could not be certified as an expert and that, without expert testimony to respond to Dr. Kolb’s affidavit, Dr. Kolb’s motion for a summary judgment was due to be granted.

Dr. Kolb submitted an affidavit along with his motion to strike in which he stated, in pertinent part:

“I am familiar with the organization previously known as the American Board of Family Practice which, in 2005, changed its name to the American Board of Family Medicine. This is an organization which is separate and distinct from the organization through which I am board-certified, the American Osteopathic Board of Family Physicians.”

The hearing on Dr. Kolb’s motion for a summary judgment was held as scheduled on April 21, 2009. At the outset of the hearing, the following exchange occurred:

“THE COURT: Let me state for the record that Dr. Kolb is a personal friend of mine. And before I moved we attended the same church, but I am making that known to everybody. But I don’t think I’m disqualified.
“[Dr. Kolb’s counsel]: Yes, sir.
“THE COURT: But, I mean, if you want to, you know, talk with your clients, I’ll delay ruling on the motion.
“[Dale’s counsel]: Okay.
“THE COURT: All right. Go ahead.”

In the hearing, Dale’s counsel made an oral motion for a continuance, arguing that “justice” required a continuance because counsel had relied upon Dr. Kolb’s statement in his deposition that there was only one board that certified osteopathic practitioners of family medicine and that he had retained an expert who was board-certified in osteopathic family medicine. Dale’s counsel conceded that Dr. Kolb had not misled him as to which board had certified Dr. Kolb.

On April 22, 2009, Dale’s counsel filed an affidavit pursuant to Rule 56(f), Ala. R. Civ. P., requesting a continuance in order to “prepare an affidavit to either show that Drs. Hahalyak and Kolb were in fact certified by the same Board, or [to] prepare an affidavit of an appropriate expert to file in response to [Dr. Kolb’s] Motion for Summary Judgment.”

On April 28, 2009, the trial court issued an order that provided, in pertinent part:

“The Court determines that Dr. Kolb gave [Dale] the correct name of the Board certifying him in family medicine and did not mislead [Dale]. Under the authority of Ex parte Wal-Mart Stores, Inc., 689 So.2d 60 (Ala.1997), the Court has no discretion as to granting a continuance to find a new expert for [Dale ]. Therefore, the Court grants Defendant, Gary Kolb’s, Motion for a Summary Judgment.”

(Emphasis added.)

On May 28, 2009, Dale filed a motion to alter, amend, or vacate the summary judgment in favor of Dr. Kolb. The trial court denied the motion on the following day. On July 20, 2009, the trial court certified its summary judgment in favor of Dr. Kolb as final under Rule 54(b), Ala. R. Civ. P. Dale appeals from that judgment.

II. Standard of Review

Our standard of review of a summary judgment is well settled:

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion....’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

III. Analysis

Dale offers several arguments as to why the trial court erred in entering a summary judgment for Dr. Kolb. She first insists that Dr. Hahalyak’s affidavit was sufficient to meet the requirement for expert testimony in a medical-malpractice action, i.e., that the proffered expert must be a similarly situated health-care provider. She notes that Dr. Hahalyak stated in his affidavit that he is board-certified in the practice of family medicine and that he is a specialist in family medicine. Dale argues that this was sufficient, given that Dr. Kolb testified by deposition that only one board certified practitioners of osteopathic physicians in family practice.

Section 6-5-548(c), Ala.Code 1975, requires that a proffered expert in a medical-malpractice action:

“(1) [Be] licensed by the appropriate regulatory board or agency of this or some other state.
“(2) [Be] trained and experienced in the same specialty.
“(3) [Be] certified by an appropriate American board in the same specialty.
“(4) [Have] practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred.”

Section 6-5-548(e), Ala.Code 1975, explains:

“(e) The purpose of this section is to establish relative standard of care for health care providers. A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on breach of the standard of care only if he or she is a ‘similarly situated health care provider’ defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board, or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages, or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty.”

(Emphasis added.)

In Johnson v. Price, 743 So.2d 436 (Ala.1999), this Court left no doubt that the legislature intended that an expert in a medical-malpractice action must be certified by the same American board in order to testify as to the standard of care in the action. Concerning § 6-5-548(e), Ala. Code 1975, the Johnson Court stated:

“The intent of the Legislature here is overwhelmingly clear from the plain language of this statute. Of particular importance in this case is the phrase: ‘only if he or she is ceHified by the same American board in the same specialty.’ § 6-5-548(e). (Emphasis added.) By adding this phrase, the Legislature unequivocally stated that when litigants are establishing the standard of care for a health-care provider, the only instance in which a court can consider the expert testimony of another health-care provider is an instance in which the expert witness is certified by the very same organization that certified the defendant health-care provider; by this rule, the statute ensures that the expert witness will have the knowledge necessary to fully inform the jury of the standard of care to which the defendant is to be held.”

743 So.2d at 438 (second emphasis added). In Johnson, the defendant was certified by the American Osteopathic Board of Surgery, while the plaintiffs proffered expert was certified by the American Board of Surgery. The Johnson Court concluded that the fact that the two boards appeared to certify practitioners in the same area of medicine did not matter:

“The fact that [the two boards] may have the same purpose, that they may certify providers for the same procedures, or that they may require the same qualifications would be irrelevant. Section 6-5-548(e) plainly states that if the two providers are not certified by the same organization, then one cannot testify as to the standard of care applicable to the other.”

743 So.2d at 438.

Dr. Hahalyak’s CV states that he is certified by the American Board of Family Practice. Unfortunately for Dale, this is not the same board that certified Dr. Kolb (the American Osteopathic Board of Family Physicians); Dale does not contend otherwise. Our legislature has stated that the fact that two boards certify two different physicians to practice in the same specialty is not enough for one physician to testify as an expert in a medical-malpractice action against the other.

Dale also contends that the trial judge erred in failing to recuse himself from this case because of his admitted friendship with Dr. Kolb. As we recounted in the rendition of the facts, the judge informed the parties at the outset of the hearing on the summary-judgment motion that “Dr. Kolb is a personal friend of mine.” The judge offered to delay ruling on the motion for a summary judgment if either of the parties wanted to object to the judge’s continuing to sit on the case. Neither party objected or filed a motion seeking the judge’s recusal. Dale made her first objection to the trial judge’s decision to remain on the case in her motion to alter, amend, or vacate the summary judgment.

“ ‘ “To permit a party to disqualify a judge after learning how the judge intended to rule on a matter would permit forum-shopping of the worst kind. It would also be inequitable, because it would afford the moving party an additional opportunity to achieve a favorable result while denying a similar opportunity to its adversary. For these reasons, it is generally agreed that a party who has a reasonable basis for moving to disqualify a judge should not be permitted to delay filing a disqualification motion in the hope of first obtaining a favorable ruling, and then complain only if the result is unfavorable to his cause.”
“‘Richard E. Flamm, Judicial Disqualification § 18.2.2 at 532-33 (1996).’
“City of Bessemer v. McClain, 957 So.2d 1061, 10[8]9 (Ala.2006) (Parker, J., statement of recusal).”
Price v. Clayton, 18 So.3d 370, 379 (Ala.Civ.App.2008). See also Ex parte Parr, 20 So.3d 1266, 1270 (Ala.2009) (noting that “‘[a] motion to recuse “should be filed at the earliest opportunity because ‘requests for recusal should not be disguises for dilatoriness on the part of the [moving party ].’ ” ’ ” (quoting Price v. Clayton, 18 So.3d at 376, quoting in turn Johnson v. Brown, 707 So.2d 288, 290 (Ala.Civ.App.1997), quoting in turn Baker v. State, 52 Ala.App. 699, 700, 296 So.2d 794, 794 (Ala.Crim.App.1974))).

The trial judge informed Dale of his personal friendship with Dr. Kolb at the beginning of the hearing on the motion for a summary judgment and offered Dale an opportunity to object. She did not do so. The trial court issued its order on the summary-judgment motion seven days later, and in the time between the hearing and the entry of the judgment Dale likewise did not file a motion seeking the recusal of the trial judge. Only after the trial court ruled in favor of Dr. Kolb and against Dale on the summary-judgment motion did Dale object to the trial judge’s remaining on the case. Dale was dilatory on this matter, and, as a result, she waived the issue of the judge’s recusal. We therefore will not consider this argument as a reason for reversing the trial court’s judgment.

Among other arguments, Dale also argues that the trial court erred as a matter of law in holding that it had no discretion to grant a continuance to allow Dale additional time to file an opposition to Dr. Kolb’s summary-judgment motion that would be supported by an affidavit from an expert certified in family practice by the same board that certified Dr. Kolb. She argues that Dr. Kolb’s deposition testimony stating that he was aware of only one board that certified osteopathic physicians in family practice led her counsel to believe that Dr. Hahalyak was qualified as an expert. Her counsel was not aware of a question in this regard until Dr. Kolb filed his motion to strike Dr. Hahalyak’s affidavit the day before the scheduled hearing on Dr. Kolb’s motion for a summary judgment. Dale insists that, at that point, her counsel had insufficient time to prepare a response to Dr. Kolb’s motion to strike and, thus, that the trial court should have granted her counsel’s request at the hearing for a continuance. Dale notes that the day after the hearing her counsel filed an affidavit explaining the reasons for needing a continuance as required by Rule 56(f), Ala. R. Civ. P.

Dale argues that the trial court erred as a matter of law in holding as it did that “[u]nder the authority of Ex parte Wal-Mart Stores, Inc., 689 So.2d 60 (Ala.1997), the Court has no discretion as to granting a continuance to find a new expert for [Dale]. Therefore, the Court grants Defendant, Gary Kolb’s, Motion for a Summary Judgment.” (Emphasis added.) We agree.

As noted, the trial court construed Ex parte Wal-Mart Stores, Inc., 689 So.2d 60 (Ala.1997), as supporting its holding that it had no discretion in granting a continuance under the circumstances presented here. As Dale argues, however, the facts of this case are clearly distinguishable from those in Wal-Mart. In Wal-Mart, the trial court took it upon itself to deny properly supported summary-judgment motions on the ground that “the plaintiffs are entitled to conduct discovery before being required to respond to the summary judgment motions,” 689 So.2d at 61, despite the fact that the plaintiffs had not made this argument to the trial court and had “not in any way assertfed] that a lack of discovery had caused them to be unable to adequately oppose the summary judgment motions.” 689 So.2d at 62. Although the issue here is not one of formal discovery, in the present case Dale clearly filed a motion for a continuance providing reasons she should be allowed additional time to supplement her response to Dr. Kolb’s motion for a summary judgment. Unlike Wal-Mart, there is no issue here of the trial court’s sua sponte taking a position on behalf of a party that the party has not taken for itself or, more specifically, granting a continuance under Rule 56 that the beneficiary of the continuance has not requested. We therefore find the present case distinguishable from Wal-Mart. Accordingly, we pretermit other issues raised by Dale on appeal and remand the case to the trial court for further' consideration of Dale’s request for a continuance.

IV. Conclusion

On the basis of the forgoing, we reverse the summary judgment of the trial court in favor of Dr. Kolb and. remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, and BOLIN, JJ., concur.

STUART, J., recuses herself.

      . Peritonitis is an inflammation of the wall of the abdomen.

      . This appeal solely concerns Dale’s action against Dr. Kolb.

      . Bay Minette Family Practice joined Dr. Kolb in the motion for a summary judgment. However, the summary judgment appealed from was entered only as to Dr. Kolb.

      . In Ex parte Waddail, 827 So.2d 789, 793 (Ala.2001), we held that § 6-5-548(e), Ala. Code 1975, applies only to specialists. Both parties in this case agree that a specialty is at issue; therefore, we do not have before us any question as to the applicability of subsection (e) in this case.

      . Dale notes that her motion for a continuance was filed as soon as she was able to prepare it and before the court ruled on Dr. Kolb’s motion for a summary judgment, whereas in Wal-Mart no motion was ever filed and no reasons were ever given as to the need for a continuance.