author: LEE, C.J.,

text:
    Stephen GORDON, Appellant v. Pamela GORDON, Appellee.
    No. 2010-CA-01227-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2012.

      Stephen J. Maggio, attorney for appellant.
    Pamela Gordon, appellee, pro se.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Pamela Gordon (Pam) filed for divorce from Stephen Gordon (Steve) in the Pearl River County Chancery Court in May 2009. The final judgment of divorce was entered by the chancery court in February 2010. The judgment set out visitation and child support for the couple’s one minor child and divided the marital property. No alimony was awarded.

¶ 2. Aggrieved with the division of the property, Steve now appeals asserting the following issues: (1) the chancellor failed to give him credit for his separate interest in the marital home; (2) the chancellor erred in declaring three vacant lots purchased by Steve before the marriage to be marital property; and (3) the chancellor erred by denying Steve’s post-judgment motion for correction of the judgment and his post-judgment motion for contempt. Finding the reversible error as to issue one dispositive of this appeal, the remaining issues will not be discussed.

STANDARD OF REVIEW

¶ 3. “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, [was] clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (internal citations and quotations omitted).

DISCUSSION

¶4. Steve argues the chancellor failed to properly consider the non-marital contribution he made to the couple’s property on Idlewild Lane; thus, the chancellor miscalculated the value of the real property subject to equitable distribution. We agree.

¶ 5. “[T]he chancery court has the authority to order an equitable division of property that was accumulated through the joint efforts and contributions of the parties.” Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994) (quoting Draper v. Draper, 627 So.2d 302, 305 (Miss.1993)). “Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994).

¶ 6. The real properties owned by the parties and deemed by the chancellor to be marital property consisted of the following:

1. The property at 711 Idlewild Lane, which the chancellor assigned a marital value of $125,000;
2. the property at 507 East Third Street, which the chancellor assigned a marital value of $28,500;
3. the property at 514 East Third Street, which the chancellor assigned a marital value of $79,500; and
4. the properties in the Ponderosa subdivision, which the chancellor assigned a marital value of $22,500.

¶ 7. Steve had contributed $70,000 to the property on Idlewild Lane with non-marital funds; and the chancellor took this into account in - determining its marital value. The chancellor stated the actual value of the property was $245,000, less debt of $50,000, leaving equity of $195,000. The chancellor then subtracted the $70,000 contributed by Steve from the sale of his premarital home. This left a marital equity of $125,000. The chancellor added the marital value of the properties together— $125,000; $28,500; $79,500; and $22,500- and arrived at a total of $255,500. The chancellor then divided this amount equally and awarded each party $127,750 for purposes of equitable distribution. The chancellor awarded fee simple title to the property on Idlewild Lane to Pam, and Steve was awarded fee simple title to both properties on East Third Street and the lots in the Ponderosa subdivision. The chancellor stated that Pam’s property award was worth $125,000, and Steve’s property award was worth $130,500. Pam was awarded an additional $5,500 as the difference in the values of the property awards.

¶ 8. Steve does not dispute the chancellor’s valuation of the property. Steve’s argument is that the chancellor failed to address the $70,000 in non-marital funds that he contributed to the property on Idlewild Lane. He agrees he and Pam should have each received $127,750 in marital equity, but he claims he should have received an additional $70,000. We agree. While the chancellor took the non-marital contribution of $70,000 into account when adding together the marital assets, it was not taken into account in Pam’s award. The chancellor stated that Pam’s award was $125,000. However, Pam was awarded a house with equity of $195,000. The chancellor’s award of the house to Pam with nothing owed to Steve gives Pam a windfall of $70,000.

¶ 9. We recognize that equitable distribution does not necessarily mean an equal distribution. Ferguson, 639 So.2d at 927 (citing Draper, 627 So.2d at 305). However, it is apparent to us that the chancellor’s intent was to divide the property equally in this case. An equal division was not accomplished by the chancellor’s award. Accordingly, we reverse the chancellor’s judgment and remand this case to the chancery court for further findings regarding the equitable distribution of the marital property.

¶10. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: RUSSELL, J.,

license: Public Domain

text:
    Clonelle SHIELDS a/k/a Clonelle Demarcus Shields, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01994-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2012.
    Clonelle Shields, appellant, pro se.
    Office of Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Clonelle Shields appeals the Madison County Circuit Court’s judgment denying his motion for post-conviction relief (PCR). Shields argues he should not have been sentenced as a habitual offender due to the reversal of one of his prior felony convictions. However, we find that Shields had two prior felony convictions, in addition to the felony conviction that was reversed; thus, sentencing was proper under the habitual-offender statute. Therefore, we affirm the circuit court’s denial of his PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1996, Shields was convicted of grand larceny and sentenced to serve two years. On January 23, 1998, Shields was convicted of aggravated assault’ and subsequently sentenced to twelve years in the custody of the Mississippi Department of Corrections. Later, the 1998 aggravated-assault conviction was affirmed by this Court. In addition to these two felony convictions, Shields was convicted of another felony for aggravated assault on April 4, 1997, but the Mississippi Supreme Court, applying the direct-remand rule, reversed Shields’s conviction as to aggravated assault and remanded the case to the circuit court for resentencing under the simple-assault statute.

¶ 3. On March 3, 2010, Shields was indicted for two counts of business burglary. On June 21, 2010, the State filed a motion to amend the indictment to charge Shields as a habitual offender because Shields had previously been convicted of two separate felonies. The State listed the following prior convictions within its motion:

That the defendant, Clonelle Shields, was previously convicted [on] March 22, 1996[,] in the Circuit Court of Madison County, Mississippi^] in Cause Number 2530 [of] the crime of [g]rand [l]arceny[,] and the defendant was sentenced to a two (2) years [sic] sentence in custody of the Mississippi Department of Corrections.
That the defendant, Clonelle Shields, was previously convicted [on] January 23, 1998[,].in the Circuit Court of Madison County[, Mississippi,] in Cause Number 3005 [of] the crime of aggravated assault, a felony, said crime occurring September 29, 1996, and the defendant was sentenced to twelve (12) years in [the] custody of the Mississippi Department of Corrections.

¶ 4. On June 24, 2010, the circuit court entered an order amending the indictment allowing the State to charge Shields as a habitual offender based on the two prior felony convictions listed in the State’s motion to amend. On the same day, the State filed its bill of information against Shields for two counts of simple assault of a law-enforcement officer and one count of felony possession of cocaine. The State’s information sought to charge Shields as a habitual offender based two prior felony convictions, namely: Shields’s 1998 aggravated-assault conviction (cause number 3005), which was subsequently affirmed by this Court; and Shields’s 1997 aggravated-assault conviction (cause number 2783), which our supreme court, applying the direct-remand rule, reversed and remanded for sentencing under the simple-assault statute.

115. Also on June 24, 2010, Shields filed a petition to enter a guilty plea on the following offenses: (1) business burglary (Count I); (2) business burglary (Count II); (3) simple assault of a law-enforcement officer (Count I); (4) simple assault of a law-enforcement officer (Count II); (5) possession of more than .1 gram but less than 2 grams of cocaine (Count III). In his petition, Shields listed the following prior convictions: “1996 — business burglary, grand larceny, aggravated assault, [and] escape — Madison County.” Shields also stated within his petition that his guilty plea was to be taken under Mississippi Code Annotated section 99-19-81 (Rev.2007), the habitual-offender statute. A hearing was held on Shields’s petition to enter a plea of guilty, and the following exchange took place:

The Court: Now, I don’t know what the recommendation is, but I know that some of these would be imposed as a habitual offender. As such, you have to serve every day of that sentence that is imposed day-per-day. No early release. No good time. No earned time. Do you understand that?
A: Yes, sir.

A judgment of conviction was entered on June 28, 2010, and Shields was sentenced as a habitual offender.

¶ 6. On September 22, 2010, Shields filed a PCR motion seeking to have his enhanced sentence as a habitual offender vacated on the basis that the 1997 aggravated-assault conviction listed within the State’s information was reversed by the supreme court and that case was remanded for resentencing under the simple-assault statute. On October 21, 2010, the circuit court entered a judgment denying Shields’s PCR motion, which reads, in pertinent part, as follows:

[Shields] was convicted, based on a plea of guilty, [of] the crimes of [b]usiness [b]urglary in [c]riminal [c]ause [n]um-bers 2010-0155 and 2010-0156 Count I and Count II, [s]imple [a]ssault on a [l]aw [enforcement [o]fficer in [c]riminal [c]ause [n]umber 2010-0494 Count I and Count II[,] and [possession of [m]ore than .1 gram but less then 2 grams of [c]ocaine in [c]riminal [c]ause [n]umber 2010-0494 Count III and was sentenced as an [sic] habitual offender pursuant to Mississippi Code [Annotated] § 99-19-81. It is from that conviction and sentence that [Shields’s] petition’s [sic] this Court. Specifically, [Shields] challenges his status as an [sic] habitual offender. On June 24, 2010, the State submitted an order amending the indictment to charge [Shields] as an [sic] habitual offender[,] which this [c]ourt granted. Subsequently, [Shields] entered his plea of guilty to the above crimes and was sentenced pursuant to § 99-19-81 based on the fact that [Shields] was previously convicted [on] March 22, 1996, in the Circuit Court of Madison County, Mississippi[,] in [c]ause [n]umber 2530 for the crime of [g]rand [l]arceny and was sentenced to a two (2) year sentence in the custody of [the] MDOC and that [Shields] was previously convicted [on] January 23, 1998, in the same court in cause number 3005 for the crime of aggravated assault and was sentenced to twelve (12) years in the custody of [the] MDOC.
On June 24, 2010, [Shields] agreed to enter a guilty plea and plead guilty as an [sic] habitual offender[;] and as such, the sentencing under § 99-19-81 is not discretionary. [Shields] is a repeat offender falling within the provision of this sectionf,] and the trial judge had no alternative but to sentence [Shields] under that statute.

Shields asserts on appeal that he was improperly sentenced as a habitual offender. Upon our review, we find no error. Therefore, we affirm the circuit court’s denial of Shields’s PCR motion.

DISCUSSION

¶ 7. The circuit court’s denial of a PCR motion will not be reversed unless its decision was clearly erroneous. Martin v. State, 66 So.3d 1288, 1289 (¶ 3) (Miss.Ct. App.2011) (citing Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002)). “However, when issues of law are raised, the proper standard of review is de novo.” Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

¶ 8. Our habitual-offender statute states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-81 (emphasis added). Sentencing under this statute is not discretionary. Courtney v. State, 704 So.2d 1352, 1360 (¶ 34) (Miss.Ct.App.1997). Rather, “[i]f a defendant is a repeat offender falling within the provisions of [section] 99 — 19—81[,] the trial judge has no alternative but to sentence him under said statute.” Id. (quoting Harris v. State, 527 So.2d 647, 651 (Miss.1988)).

¶ 9. Shields argues the circuit court erred in sentencing him as a habitual offender because his 1997 aggravated-assault conviction, a felony, was reversed by our supreme court and remanded for sentencing under the simple-assault statute, a misdemeanor. While this is true, Shields had two other felony convictions that were properly used to sentence Shields as a habitual offender. Specifically, the conviction of aggravated assault on January 23, 1998, was affirmed by this Court, and his 1996 conviction for grand larceny was never appealed, vacated, or otherwise reversed. Therefore, under our habitual-offender statute, Shields was required to be sentenced as a habitual offender because he had two prior felony convictions at the time of his guilty plea. As such, we affirm the judgment of the circuit court denying Shields’s PCR motion.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. FAIR,J., NOT PARTICIPATING.

      . See Shields v. State, 751 So.2d 476, 481 (¶ 20) (Miss.Ct.App.1999).

      . See Shields v. State, 722 So.2d 584, 587 (¶ 19) (Miss.1998).


author: CARLTON, J.,

text:
    Zachary CLEIN, a Minor, Individually and by and Through Debra Clein, Natural Mother and Next Friend, Appellant v. RANKIN COUNTY SCHOOL DISTRICT, Appellee.
    No. 2010-CA-02103-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2012.

      Reeves Jones, Jackson, attorney for appellant.
    Benjamin E. Griffith, Michael Stephen Carr, Cleveland, Mary Beebe Saffold Gar-rard, attorneys for appellee.

      Before LEE, C.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Zachary Clein, a Brandon Middle School student, filed suit against the Rankin County School District (RCSD) after sustaining a facial injury and knee injury as the result of tripping and falling on school property. The Rankin County Circuit Court granted summary judgment in favor of RCSD. Clein appeals the grant of summary judgment. Finding no error, we affirm.

FACTS

¶ 2. On November 20, 2008, Clein, an eighth-grade student, suffered injuries while participating in his physical-education class. Coach Marney Walker, the instructor for the physical-education class, had instructed the students to “run the bleachers,” referring to the concrete stadium bleachers behind Brandon Middle School. On this particular morning, Clein wore blue jeans, flat-soled tennis shoes, and two coats. Clein testified that he placed his hands in his pockets as he exercised, due to the cold weather. Clein stated that while walking back down the steps, his foot slipped, and he fell headfirst down three or four steps. Clein testified that then he crashed face-first into the metal rail at the bottom of the steps, knocking out his front teeth and spraining his knee.

¶ 3. Clein stated in his deposition that the concrete bleachers were slippery on the day of his injury. Clein also explained that Coach Walker had instructed the students to run up and down the bleacher steps until Coach Walker told them to stop. However, later in his deposition, Clein admitted that he was walking down the steps when the injury occurred. Clein stated that Coach Walker had required the class to run bleachers in the past, and Coach Walker always provided the same instructions for this exercise.

¶ 4. RCSD employs Coach Walker as a certified-licensed instructor in physical education. In his deposition, Coach Walker explained that “running the bleachers” served as a warmup exercise. Coach Walker also stated that he instructed the students to run up the bleachers, stop at the top, and then walk back down. Coach Walker explained that he intended to prevent possible injuries with the instructions. In his deposition testimony, Clein refuted Coach Walker’s statements that he had instructed the class to run to the top of the bleachers, stop, and walk back down. Clein, alternatively, claimed that Coach Walker had instructed them to run up and down the bleachers until the coach told the class to stop.

¶ 5. On November 12, 2009, Debra Clein, Clein’s mother, filed the complaint in Rankin County Circuit Court against the RCSD for the injuries Clein sustained on November 20, 2008. On July 2, 2010, RCSD filed a motion for summary judgment, claiming immunity under Mississippi Code Annotated sections 11 — 46—9(l)(d) and (v) (Supp.2011).

¶ 6. On December 6, 2010, the circuit judge held a hearing on the summary-judgment motion. The circuit judge issued a ruling from the bench finding RCSD immune from liability under the discretionary-function exclusion of the Mississippi Torts Claim Act (MTCA). The circuit judge also stated that he found no liability herein for premises liability. The circuit judge, therefore, granted summary judgment in favor of RCSD. Clein subsequently appealed, and he asserts the following assignments of error: the circuit judge erred in granting RCSD’s motion for summary judgment; the circuit judge erred in ruling that RCSD was entitled to immunity from liability under section 11-46-9(1 )(d); and the circuit judge erred in finding RCSD immune from premises-liability claims under section ll-46-9(l)(v).

STANDARD OF REVIEW

¶ 7. “When reviewing the grant of a motion for summary judgment, we look at the trial court’s decision de novo.” Smith v. Magnolia Lady, Inc., 925 So.2d 898, 901 (¶ 7) (Miss.Ct.App.2006) (citation omitted). In reviewing all the “evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits!,]” we must examine the evidence presented “in the light most favorable to the party against whom the motion for summary judgment has been made[.]” Id. “When viewed as such, if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, summary judgment is appropriate.” Phillips v. Enter. Transp. Serv. Co., 988 So.2d 418, 420 (¶10) (Miss.Ct.App.2008).

DISCUSSION

¶ 8. We find Clein’s first two assignments of error are intertwined with one another; thus, we combine those two issues and address them together for the purposes of clarity.

¶ 9. In granting RCSD’s motion for summary judgment, the circuit judge found, as a matter of law, that: (1) RCSD was at all material times a governmental entity subject to the MTCA; (2) the employees of RCSD were at all times acting within the course and scope of their employment; (3) RCSD is entitled to immunity from liability since the actions of RCSD and its employees were at all material times discretionary functions subject to the immunity under section 11 — 46—9—(l)(d); and (4) RCSD is immune from any premises-liability claims under section ll-46-9(l)(v).

¶ 10. Clein argues that Coach Walker’s actions failed to constitute a “discretionary function or duty” under section 11-46-9. Clein asserts Coach Walker possessed awareness of the 2006 Mississippi Physical Education Framework Overview (MPEF), which contained physical-education policy at RCSD in force in November 2008, the time of Clein’s injury. Clein states that the MPEF required Coach Walker to apply “appropriate warm-up and cool-down techniques” for eighth-grade warmup activities. Clein submits that if this Court accepts Coach Walker’s assertion that “bleacher running” was an appropriate warm-up exercise and then contrasts these statements by Coach Walker with Clein’s sworn deposition testimony, then this Court should conclude that Coach Walker knowingly, intentionally, willfully, and negligently failed to follow his duty to teach and implement appropriate warmup techniques in Clein’s physical-education class. However, Clem’s argument fails to address his own deposition testimony wherein he admitted he was walking down the bleachers when he fell and injured himself. Therefore, since Clein admittedly walked down the bleachers prior to receiving his injuries, any assertion of negligence by Coach Walker in instructing students to warm up by running the bleachers lacks relevance to the determination of the issues before us. In addressing the issue of whether the choice of warmup activities constitute discretionary functions or ministerial functions, we first turn to the controlling statute for guidance.

¶ 11. The trial court found that RCSD is a “governmental entity” and a “political subdivision.” Miss.Code Ann. § 11—46—l(i) (Rev.2002) (“political subdivision” includes public school districts). In turning to the pertinent parts of section 11-46-9, we note the statute states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.

¶ 12. Applying the language of section 11—46—9(l)(d) to the present case, we acknowledge the Mississippi Supreme Court has established a two-part test to determine whether an act or a failure to act constitutes a discretionary function. The test requires a determination of (a) whether the activity involves an element of choice or judgment, and if so, then the court must determine (b) whether the choice or judgment involves social, economic, or political policy. Jones v. Miss. Dept. of Transp., 744 So.2d 256, 260 (¶ 10) (Miss.1999) (overruled on other grounds) (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)).

¶ 13. Under the first part of the test, we must determine upon review whether the government activity involved an element of choice or judgment. Id. An act is not discretionary, but is ministerial, if “the duty is one which has been positively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1048 (¶ 15) (Miss.2002) (quotation omitted). Alternatively, and pertinent to our review, our supreme court has clarified that “[w]hen an official is required to use his own judgment or discretion in performing a duty, that duty is discretionary.” Harris ex rel. Harris v. McCray, 867 So.2d 188, 191 (¶ 12) (Miss. 2003).

¶ 14. RCSD cites to Mississippi Code Annotated section 37-7-301 (Supp.2011), which allows school districts “[t]o provide athletic programs and other school activities and to regulate the establishment and operation of such programs and activities!.]” Clein claims the RCSD implemented the 2006 MPEF Overview Guidelines for warmup activities. Although the RCSD implemented guidelines for physical education, these guidelines merely appear to require the instructors to apply appropriate warmup and cool-down techniques. In so doing, the guidelines leave the type of technique and implementation of the warmup and cool-down techniques to the instructor’s discretion.

¶ 15. Further, Clein contends that even if the acts of Coach Walker and RCSD required an element of choice or judgment, they fail to invoke the protection of social, economic, or political policy. This Court adheres to precedent of the supreme court and acknowledges the public-policy-function test adopted by the supreme court in Jones, 744 So.2d at 260 (¶ 10), wherein the supreme court stated, “only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” In Covington County School Dist v. Magee, 29 So.3d 1, 7-8 (¶ 14) (Miss.2010), the supreme court discussed the possible consequences resulting if the supreme court found Coach McCray and the school district liable for the death of a football player during practice. The supreme court ultimately determined that the “[district’s discretionary decision to allow coaches the ability to set and conduct practices is rooted in policy— coaches know their players and must be able to control their teams,” and held that the applicable provisions of the MTCA “operated to shield [the District and its coaches and employees] from any liability.” Id. at 8 (¶ 15) (citing Harris, 867 So.2d at 193).

¶ 16. Clein attempts to distinguish Cov-ington from the present case, and he claims that the supreme court’s ruling clearly applies to a limited set of facts involving coaches, athletes, and extra-curricular activities. We disagree and find no error in the circuit court’s determination that Coach Walker’s duty as a public school physical-education instructor for eighth graders falls into the same purview as that of a public high school coach.

¶ 17. RCSD submits that school districts are better suited to make decisions regarding their programs aimed at improving the health and welfare of students. We agree that regulating the establishment and operation of athletic programs and other school activities, such as physical-education classes, constitutes an exercise of political policy, thus satisfying the second prong of the discretionary-function analysis. We therefore find Coach Walker’s actions and instructions constitute discretionary functions; thus, such instructions remain subject to immunity from liability under section 11 — 46—9(l)(d).

¶ 18. In addition, the record reveals that during his deposition, Clein gave conflicting testimony regarding his injury. Coach Walker and RCSD maintain that Coach Walker instructed the physical-education class to run up the bleachers and then walk back down in order to prevent injuries. Clein attempted to refute this claim, asserting that Coach Walker instead instructed the class to run up down the bleachers until he told them to stop. In one portion of his deposition, Clein stated that he was running down the bleachers. However, later in his deposition, Clein admitted he was walking down the bleachers before he slipped and injured himself. Therefore, despite whether a dispute exists regarding whether Coach Walker instructed Clein to walk or run down the bleachers, the record supports that Clein fell when walking down the bleachers. We thus find no dispute of material fact to show any breach of duty by Coach Walker. M.R.C.P. 56(c) (Summary judgment is proper if the record shows “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.”).

¶ 19. Finally, Clein argues the circuit court erred in ruling that RCSD was immune from any premises-liability claims, and Clein asserts liability exists because of a dangerous condition. As previously stated, the MTCA affords governmental immunity for premises liability:

[ajrising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due eare[.]

See Miss.Code Ann. § ll-46-9(l)(v). In order to succeed in his personal-injury action against RCSD, RCSD submits that Clein would have to prove the bleachers were a dangerous condition on RCSD’s property which either was created by negligent or wrongful conduct of RCSD or existed with actual or constructive notice to RCSD. See Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (¶ 5) (Miss.Ct.App.2006); Lowery v. Harrison Co. Bd. of Supervisors, 891 So.2d 264, 267 (¶ 12) (Miss.Ct.App.2004). We also acknowledge precedent establishes that in personal-injury cases based on premises liability, the property owner cannot be found liable for the plaintiffs injury where no dangerous condition exists. Id. ¶ 20. Clein argues that if this Court must accept the facts most favorable to the non-moving party, then we must conclude that Coach Walker knew or should have known that the steep, slippery concrete bleacher steps were a dangerous premises condition on which non-athlete students were required to run the bleachers. However, other than this assertion, Clein failed to show the bleachers were a dangerous condition created by negligent or wrongful conduct of RCSD, and Clein has also failed to provide proof that RCSD or Coach Walker possessed actual or constructive notice of the condition of the bleachers. Moreover, Clein admits he fell and injured himself while walking down the bleachers, not running. Therefore, the determination of whether running down slippery bleachers created a dangerous condition wherein liability lies fails to possess relevance to the determination of facts and claims in this case.

¶ 21. In conclusion, we find no error in the circuit court’s grant of summary judgment in favor of RCSD.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. GRIFFIS, P.J., AND FAIR, J„ NOT PARTICIPATING.

      . The record reflects Clein also stated in his deposition testimony that he was running down the stairs before his injury occurred.

      . Mississippi Code Annotated section 37-9-201(e) (Rev.2007) defines teacher as a "licensed employee of a local school district who has direct responsibility for instruction, coordination of educational programs!)] or supervision of teachers and who is compensated for services from public funds.”

      .We note the record fails to contain any deposition transcript. Clein’s deposition testimony appears in the court papers, and both parties’ appellate briefs make references to Coach Walker’s testimony.

      . See Strange ex rel. Strange v. Itawamba County Sch. Dist., 9 So.3d 1187, 1191 (¶ 12) (Miss.Ct.App.2009) (analysis of the public-policy prong of the discretionary-function test).


author: WISE, Justice.

text:
    MPQ, INC., d/b/a Freedom Enterprises v. BIRMINGHAM REALTY COMPANY. Birmingham Realty Company v. MPQ, Inc., d/b/a Freedom Enterprises.
    1091582 and 1091583.
    Supreme Court of Alabama.
    Aug. 12, 2011.
    Ralph J. Bolen of Bolen & Bolen, Attorneys at Law, Mountain Brook, for appellant/cross-appellee MPQ, Inc., d/b/a Freedom Enterprises.
    Jason B. Tompkins and Ed R. Haden of Balch & Bingham LLP, Birmingham; and Shannon D. Hutchings, Birmingham, for appellee/cross-appellant Birmingham Realty Company.
   WISE, Justice.

These appeals arise out of a lease agreement between a landlord, Birmingham Realty Company (“Birmingham Realty”), a tenant, MPQ, Inc., d/b/a Freedom Enterprises (“MPQ”), and a guarantor, Marcus P. Quinn, president of MPQ. We consolidated the two appeals for the purpose of writing one opinion; we now dismiss the appeals.

Facts and Procedural History

On October 31, 2008, Birmingham Realty and MPQ entered into a commercial lease agreement. On that same date, Quinn signed an “Individual Guaranty of Lease.”

On September 29, 2009, Birmingham Realty filed in the Shelby Circuit Court a complaint against MPQ and Quinn seeking unpaid rent; that case was assigned case no. CV-2009-900730 (“the rent action”). The complaint alleged that MPQ had breached the lease agreement and that, pursuant to an acceleration clause in the lease agreement, MPQ owed Birmingham Realty $86,807.18. On October 15, 2009, MPQ and Quinn filed an answer and counterclaims. On October 28, 2009, Birmingham Realty filed a motion to dismiss the counterclaims.

On October 29, 2009, Birmingham Realty filed in the Shelby District Court an unlawful-detainer action naming MPQ as the defendant; that action was assigned case no. DV-2009-900670 (“the unlawful-detainer action”). MPQ filed an answer and a motion to dismiss, and the district court conducted a trial on the matter. On January 19, 2010, the district court dismissed the action, reasoning that the simultaneous actions in the district court and the circuit court violated § 6-5-440, Ala.Code 1975, Alabama’s abatement statute, which provides: “No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause of action and against the same party.” On February 2, 2010, Birmingham Realty filed a motion to alter, amend, or vacate the district court’s dismissal, which the district court denied.

On February 16, 2010, Birmingham Realty appealed the district court’s dismissal of the unlawful-detainer action to the circuit court. See § 12-11-30(3), Ala.Code 1975. That appeal was assigned case no. CV-2010-130. On February 22, 2010, MPQ filed an “Amended Answer and Counterclaim” in the appeal from the unlawful-detainer action. On February 26, 2010, Birmingham Realty filed a motion to dismiss the counterclaim.

On February 26, 2010, Birmingham Realty filed in the Shelby Circuit Court a motion to consolidate the rent action with the appeal in the unlawful-detainer action. On March 4, 2010, the circuit court granted the motion to consolidate.

The circuit court conducted a hearing on all pending motions. On March 12, 2010, it entered an order affirming the district court’s dismissal of the unlawful-detainer action and dismissing MPQ and Quinn’s counterclaims in the rent action. It also suggested that Birmingham Realty move to dismiss the rent action without prejudice so it could refile its unlawful-detainer action in the district court and then later refile an action in the circuit court seeking unpaid rent. On April 5, 2010, Birmingham Realty filed in the Shelby Circuit Court a motion to dismiss without prejudice the rent action. On April 9, 2010, MPQ and Quinn filed a motion to alter, amend, or vacate the March 12, 2010, order. The circuit court did not rule on either motion.

MPQ and Quinn appealed as to the rent action; MPQ appealed as to the unlawful-detainer action; and Birmingham Realty cross-appealed in both actions. With regard to the rent action, MPQ and Quinn’s appeal was assigned case no. 1091517, and Birmingham Realty’s cross-appeal was assigned case no. 1091598. MPQ’s appeal (case no. 1091582) and Birmingham Realty’s cross-appeal (case no. 1091588) addressed in this opinion challenge the judgment in the unlawful-detainer.

On January 7, 2011, this Court dismissed MPQ and Quinn’s appeal in the rent action (case no. 1091517) and Birmingham Realty’s cross-appeal in the rent action (case no. 1091598). On that same date, having determined that the appeals were from a nonfinal judgment, this Court remanded the appeal in the unlawful-de-tainer action (case no. 1091582) and the cross-appeal in the unlawful-detainer action (case no. 1091588) for the circuit court (1) to certify the interlocutory order of March 12, 2010, as a final judgment under Rule 54(b), Ala. R. Civ. P.; (2) to adjudicate the remaining claims, making the interlocutory order final and appealable; or (3) to take no action, in which event the appeal would be dismissed as being from a nonfinal judgment. On May 11, 2011, the circuit court certified the interlocutory order of March 12, 2010, with regard to case no. CV-2010-130 as a final judgment under Rule 54(b), Ala. R. Civ. P.

Discussion

Although the parties do not raise any argument regarding this Court’s jurisdiction to hear these appeals, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). “Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.” Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).

Section 6-6-350, Ala.Code 1975, which governs appeals from a district court to the circuit court in unlawful-de-tainer actions, provides:

“Any party may appeal from a judgment entered against him or her by a district court to the circuit court at any time within seven days after the entry thereof, and appeal and the proceedings thereon shall in all respects, except as provided in this article, be governed by this code relating to appeal from district courts....”

(Emphasis added.)

Under § 6-6-350, Birmingham Realty was required to file its notice of appeal within seven days after the district court entered its order dismissing the unlawful-detainer action, unless the time for filing the notice of appeal was properly tolled. With regard to tolling the time for filing a notice of appeal, Rule 4(a)(3), Ala. R.App. P., provides:

“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ([Ala. R. Civ.P.]) shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1....”

With regard to postjudgment motions in civil cases, Rule 59, Ala. R. Civ. P., provides, in relevant part:

“(e) Motion to Alter, Amend, or Vacate a Judgment. A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.
“(dc) District Court Rule. Rule 59 applies in the district courts except that ... (2) all time periods of thirty days are reduced to fourteen (14) days except in unlawful-detainer actions subject to appeal under § 6-6-350, Ala.Code 1975, in which actions the time periods are reduced to seven (7) days....”

(Emphasis added.) Finally, the Committee Comments to the July 1, 2009, Amendment to Rule 59(de) state:

“All judgments entered by a district court in unlawful-detainer actions, residential and commercial, are subject to the 2006 amendment to § 6-6-350, Ala. Code 1975, which reduced the appeal time from 14 to 7 days for appeals of such judgments to the circuit court. Rule 59(dc) has been amended to require postjudgment motions in unlawful-detainer actions filed under this rule to be filed within the seven-day appeal period. If filed within that period such motions will be subject to the provisions of Rule 59.1(dc) regarding the disposition of posttrial motions. For unlawful-detainer actions subject to § 6-6-350, Ala.Code 1975, the amendment also reduces to seven days the time within which the court may, on its own initiative, order a new trial.”

The district court entered its order dismissing the unlawful-detainer action on January 19, 2010. Birmingham Realty filed a motion to alter, amend, or vacate on February 2, 2010. Because Birmingham Realty did not file that motion within the time set forth in Rule 59(dc), Ala. R. Civ. P., that motion was not timely and did not toll the time for filing a notice of appeal to the circuit court. See Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002) (“Although a timely postjudgment motion will toll the ... time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so”). Therefore, the notice of appeal from the district court to the circuit court filed by Birmingham Realty on February 16, 2010, was not timely.

“The failure to file a timely notice of appeal is a jurisdictional defect that prevented the circuit court from acquiring jurisdiction over the appeal. See Kennedy v. Merrian, 963 So.2d 86, 88 (Ala.Civ.App.2007). ‘A court must dismiss an appeal for lack of jurisdiction if a party does not appeal within the time prescribed by statute.’ Flannigan v. Jordan, 871 So.2d 767, 770 (Ala.2003).”

Shamburger v. Lamberi, 24 So.3d 1139, 1142 (Ala.Civ.App.2009). Because Birmingham Realty did not timely file its notice of appeal to the circuit court, the circuit court did not have subject-matter jurisdiction over the appeal from the unlawful-detainer action, see Smith v. Estes, 47 So.3d 1251 (Ala.Civ.App.2010), and the circuit court’s March 12, 2010, judgment purporting to dispose of that appeal is void. “A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.” Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008). Consequently, we dismiss the appeal and the cross-appeal with instructions that the circuit court vacate its March 12, 2010, judgment insofar as it addresses the unlawful-detainer action.

1091582 — APPEAL DISMISSED WITH INSTRUCTIONS.

1091583 — APPEAL DISMISSED WITH INSTRUCTIONS.

WOODALL, STUART, PARKER, and SHAW, JJ., concur.

      . The parties originally filed the appeals and cross-appeals with the Alabama Court of Civil Appeals. That court transferred the appeals to this Court.


author: PARKER, Justice.

text:
    RCH IV-WB, LLC v. WOLF BAY PARTNERS, L.L.C., et al.
    1091233.
    Supreme Court of Alabama.
    Aug. 12, 2011.
    David R. Quittmeyer of Hand Arendall LLC, Mobile, for appellant.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellees George D. Gordon, GDG Properties, LLC, and Wolf Bay Partners, L.L.C.
    L. Brian Chunn of Stone, Granade & Crosby, P.C., Bay Minette, for appellee David W. Mobley.
    Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellees George D. Copelan, Sr., Robert Yar-brough, and Gilman Hackel.
   PARKER, Justice.

RCH IV-WB, LLC (“RCH”), appeals the Baldwin Circuit Court’s judgment setting aside a mortgage-foreclosure sale. We reverse and remand.

Facts and Procedural History

In June 2009, RCH filed a complaint against Wolf Bay Partners, L.L.C. (“Wolf Bay”); GDG Properties, LLC (“GDG”); R and G, LLC; George D. Copelan, Sr.; Robert Yarbrough; Gilman Hackel; David W. Mobley; and George D. Gordon (hereinafter collectively referred to as “the defendants”). The complaint alleged, in pertinent part:

“13. On July 28, 2005, Wolf Bay ... executed a Note in the original principal amount of $2,550,000.00 which was secured by a Mortgage (‘Mortgage’) in favor of Wachovia Bank and by guaranties executed by the other Defendants. The Mortgage was recorded on August 2, 2005, as Instrument Number 911703 of the records of the office of the Judge of Probate of Baldwin County, Alabama.
“14. On September 20, 2006, Wolf Bay ... and Wachovia Bank entered into a Mortgage Modification Agreement whereby the amount of the indebtedness secured by the Mortgage was increased to $2,933,718.00. The Mortgage Modification Agreement was recorded on October 2, 2006, as Instrument Number 1005031 in the records of the office of the Judge of Probate of Baldwin County.
“15. On December 21, 2007, Wacho-via Bank executed an Assignment of Note, Mortgage and Loan Documents in favor of RCH Mortgage Fund IV, LLC,[] whereby Wachovia Bank transferred its interest in the Note, Mortgage and loan documents to RCH Mortgage Fund IV, LLC. Said Assignment of Note, Mortgage and Loan Documents was recorded on January 23, 2008, as Instrument Number 1096419 in the records of the office of the Judge of Probate of Baldwin County.
“16. Wolf Bay ... defaulted on its payment obligations under the loan documents and RCH Mortgage Fund IV, LLC foreclosed on the property secured by the Mortgage.
“17. The property was sold to [RCH] for $2,000,000 on April 14, 2009, at the foreclosure sale held in Baldwin County, which amount was credited to the indebtedness.
“18. On April 15, 2009, RCH Mortgage Fund IV, LLC assigned to RCH all of its rights under the loan, including all rights to the deficiency remaining after foreclosure.
“19. The loan continues to be in default and there is a deficiency following the foreclosure. As of April 14, 2009, and after giving credit for the foreclosure price, the total amount owed under the loan was $1,046,572.31 with interest accruing at a per diem rate of $305.25. RCH seeks a money judgment against Defendants.”

Copelan, Yarbrough, and Hackel filed a joint answer denying the material allegations set forth in the complaint; they also filed a cross-claim against Gordon, alleging that they had “lost their investment in property owned by Wolf Bay” because, they said, Gordon, who is Wolf Bay’s manager, “failed to make payment due on debts owed by [Wolf Bay].”

GDG and Gordon filed a joint answer denying the material allegations set forth in the complaint. In their answer, GDG and Gordon pleaded the following “affirmative defenses”: (1) “inadequacy of price bid at the foreclosure sale”; (2) “insufficient notice of the foreclosure sale”; and (3) “failure of the auctioneer conducting the foreclosure sale ... to offer the property ... in parcels.” In their respective answers, Wolf Bay and Mobley pleaded the same affirmative defenses set forth in GDG and Gordon’s answer.

RCH filed a motion for a summary judgment; the trial court denied that motion. At a bench trial, RCH offered as evidence a copy of a document allegedly assigning the mortgage from Wachovia to RCH Mortgage Fund IV, LLC (“the mortgage assignment”). The defendants objected to the admission of the mortgage assignment on two grounds: (1) that RCH had failed to show that the individual who signed the mortgage assignment on behalf of Wacho-via had the corporate authority to act, purportedly in violation of § 35-4-67, Ala. Code 1975; and (2) that the form of the acknowledgment on the mortgage assignment failed to comply with §§ 35-4-20 through 35-4-68, Ala.Code 1975. The trial court sustained the objection “based on the grounds that [the defendants] presented.” The trial court also noted the following:

“One problem I got — I don’t know how you’re going to get around and that is that the date of [the mortgage assignment] is five — six months before the execution of the document and I don’t know how you’re going to get around that.
“Let me tell you what it leads me to believe. It leads me to believe the lady at Wachovia sat down and signed a bunch of these and then they took this and attached it as they sold off the different mortgages. They may have sold one to RCH. They may have sold two or three to some other company and put the attachment to it which means she didn’t sign this document. She signed an uncompleted document en masse because they were probably selling them off left and right. And then they dated it as they reached the deal with RCH.”

However, the defendants’ trial counsel did not object to the admissibility of the mortgage assignment on that basis, and the trial court did not sustain the defendants’ objection on that basis.

After the bench trial, the trial court entered an order stating:

“This matter was tried before the court on January 26, 2010. On the evidence presented, the Court finds in favor of the Defendants] and sets aside the mortgage foreclosure and sale based on the wrong party conducting the foreclosure and sale.
“[RCH] was unable to properly introduce the mortgage assignment because the instrument was non-compliant with Ala.Code [1975,] §§ 35-4-20 thru 35-4-68. The defective acknowledgment predated the execution of the instrument and the acknowledgment failed to comply with Ala.Code [1975,] § 35-4-29. When an acknowledgment is defective, the officer can become a witness for attestation. However, for a conveyance instrument to be self-proving, without an acknowledgment, the attestation requires two witnesses. RCH’s mortgage assignment contained only one attesting witness. As such, the instrument was not self-proving and required proof of execution. No such evidence was presented. Therefore, the mortgage assignment was not properly before the court and could not be admitted in evidence.
“The court finds no reason to determine the issue of sell [sic] by en masse versus parcel by parcel because the court found the foreclosure invalid.”

RCH filed a motion for a new trial or, in the alternative, to alter, amend, or vacate the judgment, which the trial court denied. Thereafter, the trial court entered an order stating: “The court having previously ordered that the foreclosure is set aside, all other claims and cross-claims are hereby denied.” RCH appeals.

Standard of Review

“Because the issue before us presents a pure question of law, we review the matter de novo, without any presumption of correctness.” Ex parte Byrom, 47 So.3d 791, 794 (Ala.2010) (citing Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001)).

Discussion

RCH presents several issues on appeal; however, the dispositive issue is whether the trial court erred in setting aside the mortgage-foreclosure sale on the basis that “the mortgage assignment was not properly before the court and could not be admitted in evidence.” The trial court determined that RCH “was unable to properly introduce the mortgage assignment because the instrument was non-compliant with Ala.Code [1975,] §§ 35-4-20 thru 35-4-68.” Specifically, the trial court determined that the mortgage assignment was not admissible at trial because “the instrument was not self-proving” and there was no “proof of execution.” The trial court held that the acknowledgment on the mortgage assignment was defective because, it said, the acknowledgment did not comply with § 35-4-29, Ala.Code 1975, and that the mortgage assignment was not self-proving because only one witness had attested to the execution of the document — the Florida notary who had signed the acknowledgment.

RCH argues on appeal, as it did in its postjudgment motion, that, under § 35-4-26, Ala.Code 1975, the acknowledgment was not governed by Alabama law, but by Florida law, where the mortgage assignment was undisputedly executed. We agree. Section 35 — 4—26(b), Ala.Code 1975, states:

“(b) Notwithstanding any provision of this chapter, the acknowledgment of any instrument executed outside the State of Alabama which is in compliance with the manner and form prescribed by the laws of the place of its execution, is executed in a state, territory, or insular possession of the United States or the District of Columbia, and is verified by the official seal of the officer before whom it is acknowledged, shall have the same effect as an acknowledgment in the manner and form prescribed by the laws of this state for instruments executed within the state.”

The trial court determined that the mortgage assignment was not admissible at trial because the acknowledgment on the mortgage assignment did not comply with Alabama law; that conclusion, however, is not dispositive. Rather, under § 35-4-26(b), the mortgage assignment would be admissible if the acknowledgment on the mortgage assignment complied with Florida law.

The applicable Florida statute is Fla. Stat. § 117.05(13)(c) (2008), which states:

“The following notarial certificates are sufficient for the purposes indicated, if completed with the information required by this chapter. The specification of forms under this subsection does not preclude the use of other forms.
“(c) For an acknowledgment in a representative capacity:
“STATE OF FLORIDA
“COUNTY OF_
“The foregoing instrument was acknowledged before me this_day of_, (year), by (name of person) as (type of authority, e.g. officer, trustee, attorney in fact) for (name of party on behalf of whom instrument was executed).
“(Signature of Notary Public — State of Florida) (Print, Type, or Stamp Commissioned Name of Notary Public)
“Personally Known_OR Produced Identification_
“Type of Identification Produced

The acknowledgment on the mortgage assignment at issue here states:

“STATE OF FLORIDA
“COUNTY OF DUVAL
“The foregoing instrument was acknowledged before me this 17 day of May, 2007, by Margaret B. Flight, the Vice President of Wachovia Bank, National Association, on behalf of the bank. Such person did not take an oath and: (notary must check applicable box) “ X is/are personally known to me. “_produced a current Florida driver’s license as identification.
“_produced_as identification.”

The acknowledgment on the mortgage assignment was signed and sealed by a Florida notary, Joyce Davis. The acknowledgment on the mortgage assignment complies with Fla. Stat. § 117.05(13)(c) and, thus, complies with § 35-4-26(b), Ala.Code 1975. Accordingly, the trial court erred in holding that the mortgage assignment was not admissible.

RCH presents numerous other arguments on appeal; however, our disposition of this issue pretermits any discussion of the other arguments raised by RCH.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, SHAW, MAIN, and WISE, JJ., concur.

      . The record does not include an answer to the complaint filed by R and G, LLC, and it did not file a brief on appeal.

      . According to RCH, "RCH [Mortgage] Fund [IV, LLC,] and RCH are related entities. RCH was formed as a single purpose entity to bid at foreclosure and to hold title and the underlying debt.” RCH’s brief, at p. 1 n. 1.

      . In its postjudgment motion, discussed below, RCH attached the affidavits of the Wa-chovia signatory and of the notary public that acknowledged the mortgage assignment, both of which stated that the discrepancy in the dates was attributable to a scrivener’s error.


author:
WISE, Justice.
      SHAW,

text:
    Ex parte Younus ISMAIL, M.D. (In re Randy Paradise and Joy Paradise v. Highlands Medical Center et al.).
    1100726.
    Supreme Court of Alabama.
    Aug. 12, 2011.

      Lee T. Clanton of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for petitioner.
    Brent L. Parker of Parker Law Firm, LLC, Grant, for respondents.
   WISE, Justice.

Younus Ismail, M.D., petitions this Court for a writ of mandamus directing the trial court to vacate its February 11, 2011, order denying his motion for a summary judgment as to claims the plaintiffs, Randy Paradise and Joy Paradise, filed against him and to enter a summary judgment in his favor. We grant the petition and issue the writ.

Facts and Procedural History

On May 20, 2006, Randy Paradise was treated in the emergency room at Highlands Medical Center (“Highlands”). A chest X-ray was ordered as part of his treatment. While he was in the radiology department, Randy fell and sustained various injuries.

On May 16, 2008, the plaintiffs sued Highlands, alleging negligence and wantonness, pursuant to the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq., in causing the injuries to Randy on May 20, 2006. They also included 17 fictitiously named defendants in their complaint and alleged that those defendants were “liable for their negligence and wantonness in causing injury to Randy Paradise.” The plaintiffs also served their first set of interrogatories on Highlands with the summons- and the complaint.

On July 3, 2008, Highlands filed its initial response to the plaintiffs’ first set of interrogatories. Interrogatory # 12 requested that Highlands

“[ijdentify each person who was scheduled to be on duty in the Emergency Room Department at Highlands Medical Center on May 20, 2006 [and] state where each of those persons [was] at the time of Mr. Paradise’s fall.”

Highlands responded to this interrogatory as follows:

“[Highlands] objects to this interrogatory as it is so broad that it seeks information that is not discoverable in this action pursuant to § 6-5-551 of the Code of Alabama. [Highlands] does not object to identifying persons involved in the treatment and care of plaintiff.”

(Emphasis added.)

On May 3, 2010, the plaintiffs filed a motion to compel Highlands to provide complete responses to their first set of interrogatories. They attached to their motion letters to counsel for Highlands dated November 17, 2009, and February 15, 2010, in which they requested complete responses to their discovery requests. The trial court granted the plaintiffs’ motion to compel on May 7, 2010. On July 6, 2010, when Highlands had not responded to their discovery requests, the plaintiffs filed a motion for sanctions.

On July 12, 2010, Highlands filed a response to the plaintiffs’ motion for sanctions. It also filed a supplemental response to the plaintiffs’ first set of interrogatories. With regard to interrogatory # 12, it stated:

“[Highlands] maintains its previously filed objection to this interrogatory as it is so broad that it seeks information that is not discoverable in this action pursuant to § 6-5-551 of the Code of Alabama. [Highlands] does not object to identifying persons involved in the treatment and care of [Randy Paradise]. According to the records the following were involved with the treatment and care of [Randy Paradise]: Shelby Hutchins, RN, Nathan Brown, RN, Carolyn Rousseau, RN, Carrie Atwell, RTT, medics to Highlands Medical Center were Michael Crane, Paramedic and Greg Gilliam, Basic EMT and medics from Highlands Medical Center to Huntsville were David Kennamer, Paramedic and Kristi Burns, intermediate EMT 2, Dr. Younus Ismail; Dr. John Reichle read the chest x-ray.”

On July 29, 2010, the plaintiffs filed an amended complaint in which they named Dr. Ismail as a defendant, substituting him for a fictitiously named defendant in the original complaint. They also alleged that “Dr. Younus Ismail has recently been disclosed by Highlands Medical Center as the emergency room physician in charge and control of Randy Paradise’s treatment on May 20, 2006.”

On September 3, 2010, Dr. Ismail filed a motion to dismiss, arguing that the plaintiffs’ amended complaint was barred by § 6-5-482, Ala.Code 1975, the two-year statute of limitations applicable to medical-malpractice cases. With regard to the plaintiffs’ fictitious-party pleading, he asserted that that the plaintiffs did not set forth a cause of action against him, did not adequately identify him as a fictitiously named defendant, and did not exercise due diligence in attempting to discover his identity both before and after filing the complaint.

On December 8, 2010, the plaintiffs filed a motion opposing Dr. Ismail’s motion to dismiss. In that motion, they alleged:

“... Plaintiffs did request and receive a copy of Highlands Medical Center medical records, prior to the expiration of two years. However, both Dr. Joe Cromeans and Dr. Younus Ismail are identified as treating physicians in said records.... Therefore, Plaintiffs’ discovery requests were directed to Highlands Medical Center requesting the correct identity of the physician who was responsible for the treatment of Randy Paradise.
“... Defendant, Highlands Medical Center, was served with said discovery requests on May 22, 2008. Defendant, Highlands Medical Center, failed to answer Plaintiffs’ discovery requests. Therefore, after numerous correspondence and calls regarding said discovery, Plaintiffs filed a Motion to Compel said discovery responses on May 3, 2010. An Order granting Plaintiffs’ Motion was entered on May [7], 2010.
“... Defendant, Highlands Medical Center, failed to comply with the Court’s May [7], 2010 Order. Plaintiffs then filed a Motion for Sanctions against Defendant Highlands Medical Center on July 6, 2010. The disclosure of Dr. Younus Ismail did not occur until Defendant, Highlands Medical Center, filed answers to Plaintiffs’ Interrogatories on July 12, 2010....
“... Within 17 days (July 29, 2010) of the disclosure of Dr. Ismail by Highlands Medical Center, Plaintiffs filed their Amended Complaint naming as an additional defendant, Dr. Younus Ismail.”

The plaintiffs also alleged that, “[i]n an effort to avoid Rule 11[, Ala. R. Civ. P.,] sanctions, [their] counsel diligently pursued the disclosure of the correct medical physician and did not file an amendment without this disclosure.”

The trial court conducted a hearing on Dr. Ismail’s motion on February 7, 2011, and on February 11, 2011, it denied the motion. This petition followed.

Standard, of Review

“ ‘ “[M]andamus 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 Horton, 711 So.2d 979, 983 (Ala.1998). “Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002) (citing Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000)).’

“Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 821-22 (Ala.2003). One of the ‘narrow exceptions’ to the general rule that a ruling on a summary-judgment motion is not reviewable by a petition for a writ of mandamus is the denial of a summary-judgment motion when ‘the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.’ Ex parte Snow, 764 So.2d 5B1, 537 (Ala.1999). In reviewing the grant or denial of a summary-judgment motion,

“ ‘ “we must determine whether there was a genuine issue of material fact and, if not, whether the mov-ant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant.”

‘Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

“ ‘ “A summary judgment is proper where 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 party moving for the summary judgment, here [Chemical Lime], has the burden of establishing a prima facie showing that there is no genuine issue of material fact. Berner v. Caldwell, 543 So.2d 686 (Ala.1989). If the moving party makes such a showing, then the burden shifts to the nonmoving party to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”
‘Young v. La Quinta Inns, Inc., 682 So.2d 402, 403 (Ala.1996).’
“Ex parte Alloy Wheels, 882 So.2d at 822.”

Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596-97 (Ala.2005).

Discussion

Dr. Ismail argues that the trial court should have entered a summary judgment in his favor on the ground that the plaintiffs’ claims against him were barred by the two-year statute of limitations for medical-malpractice actions set forth in § 6-5-482, Ala.Code 1975. He bases this argument on his contention that the plaintiffs did not exercise due diligence to discover his identity as a proper party to be sued and did not substitute him for a fictitiously named defendant in this case until after the limitations period had expired.

“This Court has previously stated that Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P., ‘ “allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.” ’ Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala.2005) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Rule 9(h), Ala. R. Civ. P., provides:
“ ‘When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.’
“Rule 15(c)(4), Ala. R. Civ. P., provides that ‘[a]n amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h), Ala. R. Civ. P.’
“In order to invoke the relation-back principle of Rule 15(c) in regard to fictitious-party practice under Rule 9(h), a plaintiff
“ ‘(1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued.’
“Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala.1996).
“ ‘A plaintiff is ignorant of the identity of a fictitiously named defendant when, after exercising due diligence to ascertain the identity of the party intended to be sued, he lacks knowledge at the time of the filing of the complaint of facts indicating to him that the substituted party was the party intended to be sued. Likewise, to invoke the relation-back principle of Rule 15(c), a plaintiff, after filing suit, must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendant and to amend his complaint accordingly.’
“Ex parte FMC Corp., 599 So.2d 592, 593-94 (Ala.1992) (emphasis added). Thus, it is incumbent upon the plaintiff to exercise due diligence to determine the true identity of defendants both before and after filing the original complaint. It is also incumbent upon the plaintiff to ‘substitute the named defendant for the fictitious party within a reasonable time after determining the defendant’s true identity,’ and ‘ “the same policy considerations which require a plaintiff to amend his complaint within a reasonable time after learning the defendant’s true identity also require the plaintiff to proceed in a reasonably diligent manner in determining the true identity of the defendant.” ’ Crawford 678 So.2d at 1060 (quoting Kinard v. C.A. Kelly & Co., 468 So.2d 133, 135 (Ala.1985) (emphasis added)).”

Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1002-03 (Ala.2008) (some emphasis added).

“The purpose of Rule 9(h) is to toll the applicable statute of limitations when the plaintiff has diligently pursued the identity of, but has been unable to identify, certain defendants. The fictitious name serves as a placeholder for the defendant, and Rule 15(c) allows the claim against the substituted defendant to relate back to the date of the original complaint. Toomey v. Foxboro Co., 528 So.2d 302 (Ala.1988).
“ ‘Rule 9(h)[, Ala. R. Civ. P.,] is not intended to give plaintiffs additional time beyond the statutorily prescribed period within which to formulate causes of action. Instead, the principal reason for the rule is to toll the statute of limitations in emergency cases where [the] plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity.’
“Columbia Eng'g Int’l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1983) (citing Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978)).”

Weber v. Freeman, 3 So.3d 825, 832 (Ala.2008).

The cause of action in this case accrued on May 20, 2006, and the plaintiffs filed their complaint on May 16, 2008, four days before the two-year limitations period was to expire. Dr. Ismail was not named as a defendant in the original complaint. Instead, several defendants were fictitiously named in the original complaint, and Dr. Ismail was substituted for one of those fictitiously named defendants on July 29, 2010, well after the two-year limitations period had expired. Therefore, the question before this Court is whether the trial court exceeded its discretion in denying Dr. Ismail’s motion for a summary judgment, thereby implicitly finding that the plaintiffs’ substitution in the amended complaint filed on July 29, 2010, of Dr. Ismail for one of the fictitiously named defendants related back to the filing of the original complaint on May 16, 2008.

Dr. Ismail acknowledges that the plaintiffs’ action would not be barred if they had properly used fictitious-party pleading pursuant to Rules 9(h) and 15(c), Ala. R. Civ. P. However, he argues that, even assuming that the plaintiffs stated a cause of action against him in their original complaint and that they adequately identified him in their fictitious-party pleading, they did not exercise due diligence in identifying him as a party to be sued and in substituting him for a fictitiously named defendant. We agree.

Dr. Ismail points out that it is undisputed that the plaintiffs had copies of Randy Paradise’s medical records, which identified Dr. Ismail as a treating physician, before they filed their original complaint. A discharge report dated May 20, 2006, which is included in the documents before us, contains the following notations: “Adm Physician: CROMEANS, JOE” and “Atn Physician: ISMAIL, YOUNUS.” Therefore, Dr. Ismail asserts that the plaintiffs knew the identity of the two treating physicians from the medical records but did not exercise due diligence in determining the significance of that information. He also stresses that, although the plaintiffs filed a set of interrogatories directed to Highlands with their original complaint, they waited almost two years before seeking to compel complete responses to those interrogatories.

The plaintiffs admit that they requested medical records from Highlands in June 2006, shortly after Randy Paradise was injured, and that they obtained those records sometime before they filed the original complaint. They also admit that those records listed Dr. Ismail as one of two treating physicians. Therefore, the medical records put the plaintiffs on notice that Dr. Ismail may have treated Randy Paradise in the emergency room on May 20, 2006. See Ex parte Snow, 764 So.2d 531, 537 (Ala.1999) (finding that Dr. Snow’s letter put the plaintiffs on notice, long before the limitations period expired, that the patient was experiencing certain medical conditions following the medical procedure); Miller v. Norwood Clinic, Inc., 577 So.2d 860 (Ala.1991) (finding that the plaintiff had knowledge of the names and the roles the doctors played by virtue of medical records that were made available shortly after the patient’s death); Ex parte Klemawesch, 549 So.2d 62 (Ala.1989) (finding that the plaintiff had been on notice of an unidentified signature below a progress note on a medical record). However, there is not any indication that the plaintiffs here made any effort, before filing their original complaint, to determine what involvement, if any, Dr. Ismail had in treating Randy Paradise in the emergency room. See Harmon v. Blackwood, 623 So.2d 726, 727 (Ala.1993) (finding that “the plaintiff failed to meet the criteria for invoking the relation-back principles of Rule 9(h) and Rule 15(c)” because, even though he knew the name of the physician and his involvement in treating his son before the limitations period expired, he did not investigate and evaluate his claim to determine who was responsible and to ascertain whether there was evidence of medical malpractice); Ex parte Snow, 764 So.2d at 537 (holding that medical records put the plaintiffs on notice as to certain medical conditions before the limitations period expired, that it was incumbent on the plaintiffs to learn the significance of that information, and that the plaintiffs “failed to diligently investigate and evaluate their claim before the limitations period expired”); Weber, 3 So.3d at 833 (holding that, because “the plaintiff knew of the identity of Dr. Weber and The Radiology Group ... before she filed her action,” “it was incumbent upon her, before the statute of limitations on her claim expired, to investigate and evaluate the claim to determine who was responsible for [her son’s] death”).

The plaintiffs filed their first set of interrogatories directed to Highlands with the summons and the complaint on May 16, 2008, and they state that the interrogatories were served on Highlands on May 22, 2008. Interrogatory # 12 sought the identity of each person who was scheduled to be on duty in the emergency room on May 20, 2006, the date of Randy Paradise’s injury, and the location of each of those persons at the time Randy Paradise fell. On July 3, 2008, Highlands responded that the interrogatory was too broad and that it sought information that was not discoverable but added that it did “not object to identifying persons involved in the treatment and care of [Randy Paradise].” In spite of Highlands’ offer, there is no indication that the plaintiffs made any attempt to have Highlands identify the people involved in the treatment and care of Randy Paradise after they received Highlands’ response to interrogatory # 12. Instead, it appears that counsel waited approximately 16 months, until November 17, 2009, to send a letter to counsel for Highlands requesting complete responses to its discovery. Compare Bowen v. Cummings, 517 So.2d 617, 618 (Ala.1987) (holding that “Rule 9(h) was not meant to allow a party to sit back for almost two years and make only one attempt at learning the defendant’s name, and then, failing, simply to list fictitious defendants”). Counsel for the plaintiffs sent a second letter regarding discovery to counsel for Highlands on February 15, 2010. Finally, on May 3, 2010, the plaintiffs filed a motion to compel Highlands to provide complete responses to their discovery requests. Highlands responded with Dr. Ismail’s name on July 12, 2010, and the plaintiffs amended them complaint to add Dr. Ismail as a defendant on July 29, 2010.

“ ‘The recalcitrant plaintiff cannot ... use the [relation-back] rule to gain what might otherwise amount to an open-ended statute of limitations.’ Kinard [v. C.A. Kelly & Co.], 468 So.2d [133] at 135 [ (Ala.1985) ]....
“In short, ‘[factitious party practice ... was not intended for use whenever it is merely inconvenient for the plaintiff to learn the name of the true defendant.’ Bowen [v. Cummings ], 517 So.2d [617] at 618 [ (Ala.1987) ].”

Ex parte Hensel Phelps Constr. Co., 7 So.3d at 1004.

In their response to Dr. Ismail’s motion before the trial court, the plaintiffs argued that they filed discovery on May 16, 2008, requesting the disclosure of the emergency-room physician responsible for Randy Paradise’s treatment and that the name of that physician was not disclosed to them until July 12, 2010. They also argued that, “[i]n an effort to avoid Rule 11[, Ala. R. Civ. P.,] sanctions, [their] counsel diligently pursued the disclosure of the correct medical physician and did not file an amendment without this disclosure.” In their response to the petition before this Court, the plaintiffs also assert:

“In the present case, Paradise immediately sought discovery of the proper emergency room physician. Counsel is unaware of any other way to make this determination other than discovery requests and/or depositions. Counsel diligently pursued both including filing a motion to compel and a motion for sanctions with the trial court.
“Although there may have possibly been other ways Paradise could have learned whether Ismail was the proper defendant, Paradise would request this Court not hold as a matter of law that Paradise’s actions lacked due diligence- Paradise should not be penalized due to the fact Highland’s counsel was unable to respond to Paradise’s discovery requests in a timely manner.”

The materials before us simply do not support the plaintiffs’ arguments. The plaintiffs requested and obtained Randy Paradise’s medical records from Highlands before filing their original complaint, and those records revealed the names of two treating physicians, one of whom was Dr. Ismail. Nonetheless, the plaintiffs did not present any evidence to show that they made any attempt to ascertain the extent of Dr. Ismail’s participation before they filed the original complaint. See Harmon, supra; Ex parte Snow, supra; Weber, supra.

“[W]hen a plaintiff knows the name of a physician and the involvement of that physician in the treatment of the patient, it is incumbent upon the plaintiff, before the running of the statutory period, to investigate and to evaluate his claim to determine who is responsible for the injury and to ascertain whether there is evidence of malpractice.”

Harmon, 623 So.2d at 727. Also, although they filed and served discovery requests with the summons and the complaint in May 2008, the plaintiffs do not appear to have made any further efforts to determine who treated Randy Paradise in the emergency room, even though Highlands specifically stated that it did not object to providing such information, until plaintiffs’ counsel sent letters in late 2009 and early 2010 and until they filed a motion to compel on May 3, 2010, nearly two years after the original complaint and interrogatories were filed. See Ex parte Hensel Phelps Constr. Co., 7 So.3d at 1003-04 (noting that, “[f]or all that appears from the materials before us and from the briefs of the parties, during this 23 months [between the filing of the original complaint and the filing of the amended complaint naming Hensel Phelps as a defendant, the plaintiff] conducted little, if any, informal discovery in an effort to determine the identity of Hensel Phelps as one of the fictitiously named defendants” and did not conduct any formal discovery).

For the reasons set forth herein, the undisputed evidence in this case clearly demonstrates that the plaintiffs did not exercise due diligence, either before or after filing their complaint, in identifying Dr. Ismail as the proper party to be sued and in naming him in place of a fictitiously named defendant. See Ex parte Hensel Phelps Constr. Co., 7 So.3d at 1003 (holding that “it is incumbent upon the plaintiff to exercise due diligence to determine the true identity of defendant both before and after filing the original complaint”). Therefore, the relation-back doctrine does not apply with regard to the plaintiffs’ claims against Dr. Ismail. Dr. Ismail has shown that he has a clear legal right to mandamus relief, that the trial court exceeded its discretion in denying his motion for a summary judgment, and that he is entitled to a summary judgment.

“The facts of this case make our decision a difficult one. However, medical-malpractice cases, by their very nature, virtually always involve patients in difficult situations. As we stated in Marsh v. Wenzel [, 732 So.2d 985 (Ala.1998) ]:
“ ‘We are not oblivious to the reality of these hard facts. But we are constrained by the time limits imposed by the legislature on the commencement of actions. Counsel’s obligation to act in good faith and to act consistently with high ethical standards requires that counsel strike a balance between, on the one hand, the obligation to present, within the period of limitations, the full range of claims essential to protect the interests of a plaintiff, and, on the other hand, the competing obligation to refrain from bringing groundless or frivolous claims. Whether it would be wise to create an exception to the statute of limitations when a defendant has not been joined on account of counsel’s good faith efforts to satisfy these competing obligations is not properly a question for this Court. We recognize that because we are declining to engage in a legislative function, a potentially liable defendant might have a valid statute-of-limitations defense under such circumstances. But this dilemma is as old as statutes of limitations. However, second-guessing the wisdom of any choice between these competing obligations should be undertaken only with a high degree of deference and great caution, lest we promote an unhealthy public policy of pressuring a plaintiff to assert claims that ought not be pursued.’
732 So.2d at 990.”

Ex parte Snow, 764 So.2d at 537-38.

Conclusion

Dr. Ismail’s petition for a writ of mandamus is granted. The trial court is directed to vacate its order denying Dr. Ismail’s motion and to enter a summary judgment for Dr. Ismail.

PETITION GRANTED; WRIT ISSUED.

WOODALL, STUART, and PARKER, JJ., concur.

SHAW, J., concurs in part and concurs in the result.

SHAW,

Justice (concurring in part and concurring in the result).

I concur with the holding of the main opinion that the relation-back doctrine does not apply in this case because of the lack of due diligence by the plaintiffs before and at the time of the filing of the complaint. As to the discussion in the main opinion regarding the lack of due diligence in identifying Dr. Younus Ismail beyond the time of the filing of the original complaint, I express no opinion.

      . Dr. Ismail styled his motion as a motion to dismiss. However, the trial court had before it materials outside the pleadings, and it did not expressly decline to consider those materials in making its ruling. Therefore, the motion to dismiss was converted into a motion for a summary judgment.
      "When materials outside the pleadings accompany a motion to dismiss, the trial court is ‘not bound to limit itself to the pleadings. Papastefan v. B & L Constr. Co., 356 So.2d 158, 160 (Ala.1978). [W]here matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment ... regardless of its denomination
      and treatment by the trial court.’ Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986). Indeed, unless the trial court expressly declines to consider the extraneous material, its conclusions may be construed to include the extraneous material. Cf. Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 763 n. 1 (Ala.2002) (trial court's express refusal to consider extraneous material constituted an exclusion).”

        Phillips v. AmSouth Bank, 833 So.2d 29, 31 (Ala.2002). See also Ex parte Comical Lime of Alabama, Inc., 916 So.2d 594 (Ala.2005); Crowl v. Kayo Oil Co., 848 So.2d 930 (Ala.2002).

      . Section 6-5-482(a), Ala.Code 1975, provides, in pertinent part:
      "All actions against physicians ... for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.”

      . Because of our disposition of this issue, we do not address the remaining arguments Dr. Ismail raises in his brief to this Court.

      . "A cause of action 'accrues' under § 6-5-482 when the act complained of results in legal injury to the plaintiff.” Mobile Infinnary v. Delchamps, 642 So.2d 954, 958 (Ala.1994).

      . Counsel for the plaintiffs refers generally to telephone conversations with counsel for Highlands made in the interim. However, he does not provide any details about the timing or frequency of those conversations.