author: HIGGINBOTHAM, J.

text:
    Jade BOUDREAUX v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2011 CA 1087.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.

      Clifton J. Ivey, Jr., Baton Rouge, LA, for Plaintiff-Appellee, Jade Boudreaux.
    Jennifer Del Murray, Baton Rouge, LA, for Defendant-Appellant, State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|2This appeal was taken by the Department of Public Safety and Corrections, Office of Motor Vehicles (“OMV”) from a district court judgment reinstating plaintiffs driver’s license, without condition, following an arrest for allegedly operating a vehicle while intoxicated.

FACTS AND PROCEDURAL HISTORY

On September 19, 2009, Jade Bou-dreaux was arrested for an alleged violation of La. R.S. 14:98 (operating a vehicle while intoxicated). Boudreaux was read his rights relating to the chemical test for intoxication, and he signed a form stating the consequences for failure to take the test. Boudreaux refused to provide a sample for the breath test. As a result of his refusal to submit to the test, the OMV suspended Boudreaux’s license for 365 days pursuant to La. R.S. 32:667(B)(2)(a). Boudreaux timely requested, and was granted, an administrative hearing to contest the proposed suspension of his license. The administrative law judge affirmed the suspension of Bou-dreaux’s license on January 12, 2010. Thereafter, Boudreaux filed a petition for injunction and judicial review with the 19th Judicial District Court.

In conjunction with that petition, on February 19, 2010, the district court granted an ex parte order restraining the OMV from withholding or suspending Bou-dreaux’s license. Prior to the matter being heard, Boudreaux was found not guilty of operating a vehicle while intoxicated. Subsequent to the not-guilty verdict, Bou-dreaux filed a rule that requested the OMV to show cause why his driver’s license suspension should not be ruled invalid and why his license should not be immediately reinstated and returned to him, without restriction or condition, |sin accordance with La. R.S. 32:667(H)(1).

After a hearing, the district court signed a judgment reinstating Boudreaux’s driver’s license, without restriction. It is from this judgment that the OMV appeals, asserting that the district court erred in reinstating, without restriction, Bou-dreaux’s driving privileges.

The facts in this case are not disputed. Further, it is not disputed that Boudreaux had a previous arrest for an alleged violation of La. R.S. 14:98 on September 22, 2007. Boudreaux completed a pre-trial intervention program, and the charges were dismissed by the District Attorney’s Office. The parties also agree that the September 19, 2009 charge did not result in a conviction and that Boudreaux is entitled to reinstatement of his license under La. R.S. 32:667(H)(1). However, the OMV contends that, because this was Boudreaux’s second arrest for an alleged violation of La. R.S. 14:98, and because after his second arrest he refused to submit to a chemical test for intoxication, La. R.S. 32:667(I)(l)(a) requires that an ignition interlock device be installed on Boudreaux’s vehicle as a condition of the reinstatement of his license.

| .¡Boudreaux contends that he was never convicted of operating a vehicle while intoxicated after the first arrest; therefore, he has not yet had a first violation under La. R.S. 14:98, and he is not required to have an interlock device placed in his vehicle.

LAW AND ANALYSIS

The issue in this case involves the interpretation of La. R.S. 32:667(I)(l)(a). Thus, it is a question of law and is reviewed by this Court under a de novo standard of review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582 (La.11/29/06), 943 So.2d 1037, 1045. Louisiana Revised Statute 32:667(I)(l)(a) states:

I. (1) In addition to any other provision of law, an ignition interlock device shall be installed in any motor vehicle operated by any of the following persons whose driver’s license has been suspended in connection with the following circumstances as a condition of the reinstatement of such person’s driver’s license:
(a) Any person who has refused to submit to an approved chemical test for intoxication, after being requested to do so, for a second violation of R.S. 14:98 or 98.1 or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated and whose driver’s license has been suspended in accordance with law. (Emphasis added)

The question we must now determine is whether the word “violation” in La. R.S. 32:667(I)(l)(a) means an arrest and charge or whether it means a conviction. OMV argues that violation as used in the statute means arrested and charged with a crime; however, the district court determined that violation, as used in the statute, requires a conviction for operating a vehicle while intoxicated.

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Campbell, 2003-3035 (La.7/6/04), 877 So.2d 112, 117. The starting point for the interpretation of any statute is the | (¡language of the statute itself. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294, 302; Cat’s Meow, Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186, 1198. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written, and no further interpretation may be made in search of legislative intent. See La. C.C. art. 9; La. R.S. 1:4. The rules of statutory interpretation require that a statute’s meaning and intent are determined after consideration of the entire statute and all other statutes on the same subject matter, and a construction should be placed on the provisions in question which is consistent with the express terms of the statutes and with the obvious intent of the legislature in its enactment of the statutes. See Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131, 149.

After Boudreaux’s first arrest, he was alleged to have violated the statute; however, he was not convicted of a violation of the statute. An actual violation must be proven. Therefore, under the clear language of the statute, Boudreaux never had a first violation of La. R.S. 14:98 and does not fit the persons listed under La. R.S. 32:667(I)(1)(A). Further, Part XIV under Chapter Three of Title 32 in the Louisiana Revised Statutes, titled “Tests for Suspected Drunken Drivers,” utilizes express language in sections 667(A) and 666(A)(3), focusing on when a law enforcement officer places a person “under arrest for a violation of R.S. 14:98.... ” The legislature could have used this same language in section 667(I)(l)(a) if it had contemplated that a second arrest and refusal to take the breath test would be sufficient to bring about the consequences of requiring an interlock device as a condition of reinstatement of a person’s driver’s license. Obviously, the legislature intended otherwise.

^CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed. The costs of the appeal are assessed to the Department of Public Safety, Office of Motor Vehicles in the amount of $645.50.

AFFIRMED.

CARTER, C.J., concurs with the results.

      . Louisiana Revised Statute 32:667(H)(1) provides:
      When any person’s driver's license has been seized, suspended, or revoked, and the seizure, suspension, or revocation is connected to a charge or charges of violation of a criminal law, and the charge or charges do not result in a conviction, plea of guilty, or bond forfeiture, the person charged shall have his license immediately reinstated and shall not be required to pay any reinstatement fee if at the time for reinstatement of driver’s license, it can be shown that the criminal charges have been dismissed or that there has been a permanent refusal to charge a crime by the appropriate prosecutor or there has been an acquittal. If, however, at the time for reinstatement, the licensee has pending against him criminal charges arising from the arrest which led to his suspension or revocation of driver’s license, the reinstatement fee shall be collected. Upon subsequent proof of final dismissal or acquittal, other than under Article 893 or 894 of the Code of Criminal Procedure, the licensee shall be entitled to a reimbursement of the reinstatement fee previously paid. In no event shall exemption from this reinstatement fee or reimbursement of a reinstatement fee affect the validity of the underlying suspension or revocation.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    David CREEKBAUM, Individually and as Administrator of the Estate of his Minor Son, Z.C., and Taryn Creekbaum v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 2011 CA 1089.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.
    Charles Dirks, III, Baton Rouge, LA, for Plaintiffs/Appellants David Creekb-aum, individually and as administrator of the estate of his minor son, Z.C., and Taryn Creekbaum.
    Carey T. Jones, Denham Springs, LA, for Defendant/Appellee Livingston Parish School Board.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

bThis case arose out of an incident at Denham Springs Senior High School in which two freshman students urinated on or in the locker of a sophomore student on October 4, 2004. The plaintiffs appeal the judgment of the trial court granting a cross motion for summary judgment in favor of the defendant, Livingston Parish School Board. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The Livingston Parish School Board (School Board) operates two separate and distinct campuses for students in 9th through 12th grades in Denham Springs, Louisiana: Denham Springs Freshman High School for 9th grade and Denham Springs High School for grades 10-12. The two campuses share a number of facilities for educational purposes and extra curricular activities, including facilities for football. Specifically, 9th grade boys enrolled at Denham Springs Freshman High School use the field house located on the Denham Springs High School campus, but are only allowed to do so under the supervision of a teacher or coach. Although the two campuses share facilities, pursuant to the policies of both campuses, students enrolled at Denham Springs Freshman High School are not allowed to access any portion of the campus of Denham Springs High School without supervision.

On October 4, 2004, two 9th grade students, J.J. and B.F., entered the boy’s athletic locker room on the Denham Springs High School campus, went into the 10th grade locker room, and urinated in or on the locker of Z.C., which contained his clothing and athletic equipment.

At the time of the subject incident, Z.C. was enrolled as a 10th grade student at Denham Springs High School. At all pertinent times, Nolan Gill, the head football coach of Denham Springs High School, and his coaching staff shared the responsibility of ensuring that the student athletes reported to the locker rooms | ¡¡located in the field house of Denham Springs Senior High School for football practice.

On January 4, 2006, suit was filed by David Creekbaum, against the School Board, individually and on behalf of his minor son, Z.C. and Taryn Creekbaum, for mental anguish and emotional distress as well as loss of consortium.

On June 21, 2010, the plaintiffs filed a Motion for Partial Summary Judgment, seeking a determination that there was no material issue of fact relative to the issue of the School Board’s liability and averring that the law supported a finding that the School Board owed a duty to prevent the harm suffered by plaintiffs.

In support of the motion for summary judgment, plaintiffs attached the depositions of Harold Wax, Patty Dumiller, Kathy DeGeneres, Noland Gill, and Trase Satcher, all of whom were administrators and/or teachers who worked for the School Board at Denham Springs Freshman High School or Denham Springs High School. Their depositions confirmed that the Freshman High School and the Senior High School had a policy that prohibited freshman students from leaving their campus unsupervised during school hours and entering the Denham Springs High School campus.

Subsequently, on July 23, 2010, the School Board filed a Cross Motion for Summary Judgment, seeking dismissal of plaintiffs’ claims. The School Board maintained that under the circumstances, there was no evidence to support a finding that the School Board’s administrators or coaches failed to exercise reasonable competent supervision over the students attending Denham Springs High School or Denham Springs Freshman High School.

Following a hearing on the motions, the trial court signed a judgment on September 22, 2010, denying plaintiffs’ Motion for Partial Summary Judgment and granting the School Board’s Cross Motion for Summary Judgment. It is from this | ¿judgment that plaintiffs now appeal, alleging that the trial court erred in concluding that the School Board did not owe a duty to protect Z.C. from fellow students entering the locker room and urinating on and in his locker.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199. A motion for summary judgment should be granted only 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 material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-231.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. La. C.C. art. 2320. The supervision required is reasonable, competent supervision appropriate to the age of the children and the |sattendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supemsion of all students is neither possible nor required for educators to discharge their duty to provide adequate supemsion. Wallmuth v. Rapides Parish School Board, 01-1779, p. 8 (La.4/3/02), 813 So.2d 341, 346.

Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supemsion and also proof of a causal connection between the lack of supervision and the accident. Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Wallmuth, 01-1779 at p. 8, 813 So.2d at 346.

The mover herein, the defendant School Board, pointed out the absence of factual support for the claim of negligent supervision based on the fact that there were no previous reported incidents of this kind of behavior at the school nor were there other occurrences that would have given the school representatives constructive or actual notice of prior mischief indicating closer supervision was needed. Therefore, the defendant argued the event was not foreseeable and school officials had no reason to anticipate that such an incident might occur.

The School Board pointed to the deposition testimony of several school officials. The testimony of Coach Noland Gill revealed that this was the first time that any sort of inappropriate incident had occurred in the locker room. Likewise, Patty Du-miller, the principal of the Denham Springs Freshman High School, testified that there had been no incidents that had occurred prior to this particular incident in which a freshman high school student was on the senior high campus and became involved in an altercation or mischievous behavior. Because neither |,;Coach Gill nor the School Board had any knowledge of any problems in the locker room involving student athletes, there was no more reason for Coach Gill or his coaching staff to have been in the field house during practice supervising the locker room than there was for them to be on the football field supervising the other student athletes during practice. Thus, the School Board argued no independent fault was attributable to it.

In Pierce v. Tangipahoa Parish School Board, 02-0139, pp. 5-6 (La.App. 1st Cir.12/20/02), 836 So.2d 328, 332, this court affirmed the granting of a summary judgment in favor of the Tangipahoa Parish School Board and one of its principals for an incident in which a group of students at Amite High School fashioned blow darts out of sewing needles and straws and blew them at other students. Citing to the standards for proof of negligent supervision, this court observed that there were no previously reported incidents of this kind of behavior at the school nor were there other occurrences that would have put the school representatives on notice that closer supervision over the students was needed, and on that basis, the trial court’s dismissal of the action against the school board was affirmed. See Pierce, 02-0139 at pp. 5-6, 836 So.2d at 332.

Similarly, in this case, the conduct of J.J. and B.F. was not foreseeable. There had been no prior incidents of this nature in the field house. Moreover, there was no actual or constructive notice of prior mischief provided to the school administrators or coaches. Thus, there was nothing that would have put the school representatives on notice that closer supervision was needed.

CONCLUSION

The plaintiffs failed to produce factual support for their claim of negligent supervision sufficient to establish that they would be able to satisfy their evidentiary burden of proof on this issue at trial. Accordingly, there was no |7genuine issue of material fact and summary judgment on this issue was appropriate.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of defendant, Livingston Parish School Board, and denying plaintiffs’ motion for partial summary judgment. All costs of this appeal are assessed to the plaintiffs, David Creekb-aum, individually and as administrator of the estate of his minor son, Z.C., and Taryn Creekbaum.

AFFIRMED.


author: CARTER, C.J.

text:
    Randy Joseph KINGSTON v. Sally Lynn KINGSTON.
    No. 2011 CU 1629.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.

      Jeffrey W. Bennett, Michelle M. Bennett, Harahan, LA, for Plaintiff/App ellant, Randy Joseph Kingston.
    David R. Paddison, Yvonne Chalker, Covington, LA, for Defendant/Appellee, Sally Lynn Kingston.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

12This is an appeal of a judgment lifting a restriction in a consent judgment.

FACTS AND PROCEDURAL HISTORY

Randy Kingston and Sally Kingston were divorced on March 17, 2008, after nearly six years of marriage. Pursuant to a 2008 consent judgment, they share joint custody of then* son (now age eight) and daughter (now age six), and are co-domiciliary parents sharing physical custody equally. Additionally, the consent judgment included the following restriction (referred to herein as “the restriction”) against either parent having overnight guests of the opposite sex while exercising custody of the children or allowing a significant other to babysit the children:

IT IS FURTHER ORDERED that no girlfriends or boyfriends shall babysit the children and neither party shall have overnight visitation with members of the opposite sex while they have possession of the children. The parties recognize that the children have sleepovers with their friends, that family members are permitted to spend the night with the children, and that, in Mrs. Kingston’s case, a female girlfriend may spend the night when she has possession of the children.

In September 2010, Sally filed a rule to modify the terms of the consent judgment. Sally alleged that she is now engaged to a man with whom she has had a loving, committed relationship for a number of years, but that she has chosen not to set a date and time for the marriage. She contends that her fiancé has become an integral part of her children’s lives and that the loving relationship she and her fiancé have includes her children as well as children of her fiancé’s prior marriage. Sally contended that the court entered the consent judgment containing the restriction without any consideration of the best interests of the children, therefore, the judgment is |3against public policy and the restriction should be recognized as a nullity. Sally further contended that the “apparent present restriction on [her] visitation privileges” is not in the children’s best interests “and there can be no showing whatsoever that [her fíancé’s] presence overnight or otherwise, is anything but in the best interest of the children.”

Randy objected to Sally’s rule to modify on the basis that it failed to state a cause of action. Randy argued that Sally’s rule failed to allege either a material change in circumstances since entry of the original custody decree or that the proposed change is in the best interests of the children. After a hearing, the trial court noted the lack of jurisprudential guidance as to whether removal of the restriction is actually a change in physical custody. The trial court then overruled the objection, finding that the pleadings stated what could be a material change in circumstances (the parties were divorced as was Sally’s fiancé) and that the matters were more properly determined on the merits.

A hearing was then held on the merits of Sally’s rule to modify, at which both Sally and Randy testified. At the conclusion of the hearing, in oral reasons, the trial court stated that it considered the restriction to be “a restriction or condition on visitation that was done voluntarily between the parties and by consent at a time when their separation from each other and their impending divorce was very new. Their children were at a very, very young age. Emotions were running high.” The trial court noted its opinion that the parties’ agreement to the restriction was, at that time, in their children’s best interests.

|4The trial court found that since then, Sally had become engaged and had begun to establish another family unit. In considering the best interests of the children, the trial court found:

that there are significant benefits that [Sally] would have and that, at this point in time, dictate the Court to remove those former prohibitions and restrictions allowing [Sally’s fiancé], not any other boyfriend or girlfriend of either party at this point in time, but allowing her to spend overnights with her children with [her flaneé], or, if she decides to move in with [her flaneé], take vacations with [her flaneé] or any other type of overnight situations that the children might have at his house or at her house.

The trial court continued, finding that Sally was engaged with an articulated basis for not immediately marrying, that Sally was credible in her description of the loving, caring relationship with her flaneé and that the children care about her flaneé and are close to his children. The trial court also found it to be beneficial to the children to have their mother in a committed, stable relationship that provides her emotional benefits and her family financial benefits. Finally, the trial court noted that the children were older and, since Sally’s flaneé had been staying overnight at times, as well as vacationing with the children, this would not be shocking or new to them.

Based on those reasons, the trial court entered judgment lifting the restrictions of the consent judgment that would prevent Sally’s flaneé from babysitting the children or staying overnight with Sally when the children are present. The trial court specified that the restriction was lifted only as to Sally’s flaneé and would remain in effect as to any other boyfriends or girlfriends of either party. Randy now appeals, challenging both the trial | ¿court's overruling of his objection of no cause of action and the trial court’s decision to lift the restriction as to Sally’s flaneé.

DISCUSSION

Each child custody case must be viewed in light of its own particular facts and circumstances, with the paramount goal of reaching a decision that is in the best interests of the children. Givens v. Givens, 10-0680 (La.App. 1 Cir. 12/22/10), 53 So.3d 720, 726. The trial court is in the best position to ascertain the best interests of the children given the unique circumstances presented, therefore its determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Elliott v. Elliott, 05-0181 (La.App. 1 Cir. 5/11/05), 916 So.2d 221, 226, writ denied, 05-1547 (La.7/12/05), 905 So.2d 293.

In this case, the custody judgment governing the parties and their children is a non-considered decree, meaning that it was entered by stipulation or consent of the parties without the trial court receiving evidence as to parental fitness. See Elliott v. Elliott, 10-0755 (La.App. 1 Cir. 9/10/10), 49 So.3d 407, 412, writ denied, 10-2260 (La.10/27/10), 48 So.3d 1088. A party seeking modification of a consent decree must prove, and the trial court must find, that there has been a change in circumstances materially affecting the welfare of the children since the custody decree was entered and that the proposed modification is in the best interests of the children. Elliott, 49 So.3d at 413. An appellate court cannot set aside a trial court’s factual findings unless, after reviewing the record in its entirety, ¡ ñit determines that a reasonable factual basis does not exist for the finding and that the trial court was clearly wrong or manifestly erroneous. See Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993).

In her rule to modify, Sally alleged that she had been in a long-term relationship and had become engaged to her fiancé and that he was an integral part of her children’s lives. She further alleged that removal of the restriction was in the children’s best interests. We do not find that a parent’s engagement, per se, constitutes a change in circumstances materially affecting the welfare of the children. However, given the circumstances and considering all of the allegations of the petition as true, we cannot say that the trial court erred in concluding that Sally stated a cause of action so as to entitle her to a hearing on the merits of her proposed modification of the consent decree.

At the hearing on the merits of Sally’s rule to modify, Sally testified that since entry of the consent judgment (nearly three years prior to the hearing), her relationship with her fiancé had significantly progressed and that they had become engaged approximately one year prior to the hearing and since then, had “pretty much lived as a family.” While this may constitute a change of circumstances, Sally’s burden on the rule to modify is to show that there is a material change in circumstances affecting the welfare of the children. See Bonnecarrere v. Bonnecarrere, 09-1647 (La.App. 1 Cir. 4/14/10), 37 So.3d 1038, 1044, writ denied, 10-1639 (La.8/11/10), 42 So.3d 381. Sally presented no evidence to support a finding that the children’s welfare is affected by her engagement. Compare Bonnecarrere, 37 So.3d at 1044. Absent such, Sally did not meet her burden in seeking modification of the consent decree.

Even if we were convinced that Sally presented sufficient evidence of a material change in circumstances affecting the welfare of the children, we could not agree that lifting the restriction is in the best interests of the children. In determining the best interests of the children, courts must consider all relevant factors, including the following non-exclusive list set forth in Louisiana Civil Code Annotated article 134:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
1 R(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court found lifting the restriction to be in the children’s best interests because “there are significant benefits that [Sally] would have” and because it was beneficial to the children to have their mother in a committed, stable relationship that provides her with emotional benefits and her family with financial benefits.

The paramount goal in custody cases is reaching a decision in the best interests of the children. Givens, 53 So.3d at 726. The only real argument that lifting the restriction would be in the children’s best interests is that Sally’s fiancé would be part of their family environment. However, the restriction does not prohibit the children from spending time with Sally’s flaneé and, Sally admits, the children have bonded with her fiancé during time they spend together, rather than because he has spent the night at her home. Sally testified that “it would be weird with him going home every night.” However, the restriction mandating that situation was imposed by the parties themselves, and Sally admits that she believed it to be in her children’s best interests at the time of the consent judgment. The record simply does not support a finding that having Sally’s fiancé babysit the ^children alone or spend the night with Sally while the children are present is in the children’s best interests.

Courts of this state have recognized that an award of custody is not a tool to regulate human behavior. See Montgomery v. Marcantel, 591 So.2d 1272, 1274 (La.App. 3 Cir.1991). Additionally, societal attitudes toward unmarried couples living together have changed over the years. See Montgomery, 591 So.2d at 1274 (recognizing “that in today’s society conduct which would once have been scandalous is acceptable or, perhaps, even the norm”); compare Lozes v. Lozes, 542 So.2d 603, 605 (La.App. 5 Cir.1989) (stating “[t]he courts of this state have consistently recognized that living together, without benefit of marriage, in a home where young children are present is immoral and necessarily has a detrimental effect on a child’s moral upbringing”). Sally and Randy chose to include the restriction in the consent judgment, which invokes the requirement of proving a change in circumstances materially affecting the welfare of the children and that the proposed change is in the best interests of the children before the consent judgment can be modified to lift the restriction. Moreover, the rights of any parent are always subservient to the best interests of the children. Becnel v. Becnel, 98-593 (La.App. 5 Cir. 3/25/99), 732 So.2d 589, 592, writ denied, 99-1165 (La.6/4/99), 744 So.2d 630.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed insofar as it lifts the restrictions in the consent judgment that prevent Sally’s fiancé from babysitting the parties’ children or spending the night while the [ inchildren are present. Costs of this appeal are assessed to Sally Lynn Kingston.

REVERSED.

      . Sally testified that a substantial judgment had been rendered against her fiancé and they have been advised that they should not marry pending the outcome of continued litigation for financial reasons.

      . Although Sally is not seeking to modify the time that the children spend in the physical custody of each parent, she is seeking to modify the consent judgment’s terms under which that physical custody can be exercised, therefore her burden of proof is to show a change in circumstances materially affecting the children and that the change is in the children's best interests. See Cook v. Cook, 42,587 (La.App. 2 Cir. 9/19/07), 965 So.2d 630, 637, reversed on other grounds, 07-2091 (La. 12/14/07), 970 So.2d 960.

      . We note that Sally has suggested that the fact that her fiance has been staying overnight constitutes a change in circumstances such that prohibiting him from doing so would affect their family dynamic. While courts have recognized that a party’s repeated violation of a custody judgment can constitute a change in circumstances warranting modification, we find no jurisprudential support for doing so in the violator’s favor. See Cook v. Cook, 07-2091 (La. 12/14/07), 970 So.2d 960, 963. Moreover, the trial court made no finding that Randy consented to changing the consent judgment to allow Sally's fiancé to spend the night, and the record does not support such a finding.

      . The focus of the hearing before the trial court was the overnight visitation and not babysitting. Sally did not present evidence regarding a need for the fiancé babysitting the children so as to constitute a material change in circumstances in that regard.


author: McDonald, j.

text:
    Brett GABRIEL v. LAFOURCHE PARISH WATER DISTRICT.
    No. 2011 CA 0930.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.

      Brett Gabriel, Raceland, LA, Plaintiff/Appellant Pro Se.
    Denise M. Ledet, Metairie, LA, for Defendant/Appellee Lafourche Parish Water District No. 1.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   McDonald, j.

| gBrett Gabriel was employed by the La-fourche Parish Water District No. 1 as a crewman. His duties included installing water meters, performing maintenance, and repairing broken meters and water lines. During the course of his employment he was involved in several work related accidents resulting in temporary knee, neck, and shoulder injuries. He was treated for these injuries and was able to return to work. On September 12, 2007, he stepped into a hole with his right leg and twisted his left leg causing injury to his knee. The parties entered into several stipulations, including that Mr. Gabriel had aggravated a prior knee injury in the September accident.

The Workers’ Compensation Judge (WCJ) identified the following issues for determination:

1. Did the employee sustain a cervical injury on September 12, 2007?
2. Is the cervical surgery recommended by Dr. LaSalle reasonable and necessary, and should the employer be ordered to authorize this procedure?
3.a. Were the TENS unit supplies for the neck that were recommended by Dr. LaSalle reasonable and necessary, and should the employer have authorized this treatment?
3.b. Was the pain management for the knee recommended by Dr. LaSalle reasonable and necessary, and should the employer have authorized this treatment?
4. Was the physical therapy recommended by Dr. LaSalle for the knee reasonable and necessary, and should the employer have authorized this treatment?
5. Was the motorized wheelchair recommended by Dr. LaSalle for the knees reasonable and necessary, and should the employer have authorized this treatment?
6. Is the employee entitled to attorney fees and penalties for any or all issues?

After a two day trial, the WCJ found in favor of Mr. Gabriel on issue # 3.b, determining that the pain management therapy was reasonable and necessary and ^should have been authorized by the employer until March 3, 2008, as recommended by Dr. Michael LaSalle, an orthopedic surgeon. On the rest of the issues the WCJ found in favor of the defendant and against Mr. Gabriel.

Mr. Gabriel appeals the decision of the WCJ: finding that the aggravation of the knee injury had resolved by March 3, 2008, and denying him any further treatment; failing to award penalties and attorney fees against the employer for failing to authorize the pain management treatment even though the WCJ found it should have been approved; finding that claimant did not meet his burden of proof in establishing that his cervical injury was related to the September 12, 2007, accident; finding the claimant did not meet his burden of proof that the physical therapy for his knee ordered by Dr. LaSalle on May 6, 2008, was related to the September 12 accident; and finding the claimant failed to prove that the need for the TENS unit supplies were caused by the September 12 accident; and finding the claimant failed to prove that the motorized wheelchair recommended by Dr. LaSalle on August 20, 2008, was causally related to the September 12, 2007 injury.

The WCJ gave well-reasoned and detailed oral reasons for her decisions. Dr. LaSalle, the employee’s treating physician, released him for light-duty status on March 3, 2008. There was evidence from prior accidents that Mr. Gabriel had degenerative neck and knee conditions. Dr. Del Walker, LPWD’s choice of orthopedic surgeon, and Dr. Lawrence J. Messina (the court appointed independent medical examiner) both found a temporary aggravation of a pre-existing arthritic knee condition. Both determined that his neck was not related to the accident; it was a degenerative condition. The medical records indicate that Mr. Gabriel had a left knee arthroscopy in March 2007 and a TENS unit in May for chronic, arthritic 1¿shoulder pain. As the WCJ noted, both of these conditions were prior to the September 12, 2007, accident.

The WCJ concluded that the release on March 3, 2008, to “light duty was due to his pre-existing condition, and not any aggravation. It was just time that the employee changed his job duties. The aggravation had nothing to do with it. The aggravation was mainly for medical treatment to bring him back to his severe preexisting condition.” Further, the WCJ found that the May 28, 2008, request for physical therapy and August 28, 2008 request for the motorized wheelchair were not related to the September accident. They were associated with a March 31, 2008, flare up of his arthritic, degenerative condition. Also, neither Dr. Walker nor Dr. Messina believed that the wheelchair was needed.

Concerning the need for neck surgery, Dr. Messina concluded that the need for this surgery was secondary to Mr. Gabriel’s pre-existing condition and not the accident. The WCJ was, evidently, convinced by Dr. Messina’s report and the lack of any mention of neck complaints in Dr. LaSalle’s records until January 2008, when she denied this claim.

The standard for review in this case is whether the findings of fact by the WCJ are clearly wrong or manifestly erroneous.

There is ample evidence in the record upon which the WCJ based her findings and conclusions. The failure to award penalties and attorney fees is based on the finding that Mr. Gabriel had documented pre-existing degenerative conditions to his knee, neck, and shoulder. Even though the WCJ found in his favor on the physical therapy treatments until March 3, 2008, she also found that it was unclear whether the treatments were ordered because of the work related aggravation or the preexisting arthritis.

| sFor these reasons the judgment of the Workers’ Compensation Judge is affirmed. Costs are assessed against the appellant, Brett Gabriel.

AFFIRMED.

      . We note a typographical error in the judgment that finds the claimant entitled to receive the pain management treatment "as ordered by Dr. LaSalle on September 3, 2007.” It is clear from the rest of the judgment and the record that the treatment was ordered on December 3, 2007. This error does not affect the judgment.

      . Dean v. Southmark Construction, 03-1051 (La.07/06/04), 879 So.2d 112, 117, (citing Brown v. Coastal Constr. & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/07/97), 704 So.2d 8, 10).


author: GAIDRY, J.

text:
    Eric C. KELLER v. Dawn Evans KELLER.
    No. 2011 CA 0802.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.
    Nanine McCool, Mandeville, LA, for Defendant/Appellant Dawn Evans Amacker.
    Robert C. Lowe, Paula H. Lee, New Orleans, LA, for Plaintiff/Appellee Eric C. Keller.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

lain this divorce case, the wife appeals a judgment confirming a default judgment taken against her by the husband. Finding that the default judgment is an absolutely nullity, we vacate that judgment.

FACTS AND PROCEDURAL HISTORY

Eric Keller filed a petition for divorce on August 23, 2005. In his petition for divorce, Eric requested a revocation of a donation to his wife, Dawn Keller, on the grounds of ingratitude. Judge Mary Dev-ereux, to whom the case was originally allotted, filed an order recusing herself due to a conflict on September 17, 2009. Eric sought a preliminary default on his claim to revoke the donation on June 10, 2010. According to the minutes of the court, on June 14, 2010, the motion for preliminary default was presented to Judge Devereux, who ordered entry of same. On December 14, 2010, Judge Dawn Amacker signed a judgment confirming the preliminary default.

Dawn has appealed from the default judgment revoking the donation for ingratitude, asserting among other things that the default judgment was absolutely null because the preliminary default was entered by Judge Mary Devereux, who had previously recused herself from the case. Eric responded in brief that a preliminary default consists of merely an entry in the minutes, and this entry was made by the clerk and not the judge, so it was immaterial that the judge had already been re-cused. We disagree.

Louisiana Code of Civil Procedure article 1701(A) provides that a preliminary default “may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.” As the Louisiana Supreme Court explained in Jones v. Cunningham, 157 La. 208, 102 So. 309, 310 (1924), a preliminary default is granted by “a judge authorized to preside over the tribunal, and empowered to hear and determine the issues between the parties.” Id. A re-cused judge lacks such authority or power. When the orders of recusation are entered, the judge is stripped of all authority and power, including the power to grant a preliminary default, which is one of the steps provided by law in the hearing and determining of causes between litigants. Id.

Louisiana Code of Civil Procedure article 2002 provides that a final judgment shall be annulled if it is rendered against a defendant against whom a valid judgment by default has not been taken. Since there was no valid preliminary default, the default judgment granted by the court in this case was an absolute nullity and must be vacated.

DECREE

The December 14, 2010 default judgment revoking all donations from Eric Keller to Dawn Keller is an absolute nullity and is hereby vacated. Costs of this appeal are assessed to Eric Keller,

JUDGMENT VACATED


author: KITCHENS, Justice, for the Court.

text:
    LAFAYETTE COUNTY BOARD OF SUPERVISORS v. THIRD CIRCUIT DRUG COURT, Andrew K. Howorth and State of Mississippi.
    No. 2010-CA-01745-SCT.
    Supreme Court of Mississippi.
    Feb. 23, 2012.
    David D. O’Donnell, Oxford, for Appellant.
    Office of the Attorney General by Elizabeth Ruby Carr Malissa Winfield for Ap-pellees.
    Before WALLER, C.J., KITCHENS and KING, JJ.
   KITCHENS, Justice, for the Court.

¶ 1. This appeal arises from a dispute between the Third Circuit Drug Court and the Lafayette County Board of Supervisors regarding Lafayette County’s alleged duty to administer the drug court’s funding and the drug court’s having required that county to place a drug court employee on its payroll. Because Union County has replaced Lafayette County as the lead county for the Third Circuit Drug Court, we dismiss the appeal as moot.

State Drug Courts Advisory Committee

¶ 2. The Alyce Griffin Clarke Drug Court Act is codified as Mississippi Code Sections 9-23-1 through 9-23-51 (Supp. 2011). The expressed intent of the Act is “to facilitate local drug court alternative orders adaptable to chancery, circuit, county, youth, municipal and justice courts.” Miss.Code Ann. § 9-23-3. The Act provides that the Administrative Office of the Courts (AOC) “shall be responsible for certification and monitoring of local drug courts according to standards promulgated by the State Drug Courts Advisory Committee.” Miss.Code Ann. § 9-23-7.

¶ 3. Section 9-23-9 establishes the State Drug Courts Advisory Committee (the Committee) and outlines its structure and duties. The Committee is chaired by the director of the AOC and is composed of seven to eleven members appointed by this Court who are “broadly representative of the courts, law enforcement, corrections, juvenile justice, child protective services and substance abuse treatment communities.” Miss.Code Ann. § 9-23-9(1). The purpose of the Committee is “to develop and periodically update proposed statewide evaluation plans and models for monitoring all critical aspects of drug courts.” Miss. Code Ann. § 9-23-9(1). To this end, the Committee issued, and this Court approved, the Mississippi Drug Court Rules and the Mississippi Drug Court Fiscal Policy.

Facts and Procedural History

¶ 4. The Third Circuit Court District is comprised of Benton, Marshall, Tippah, Union, Calhoun, Chickasaw, and Lafayette Counties, and Honorable Andrew K. Howorth, that district’s senior circuit judge, serves as the Third Circuit’s drug court judge. On December 3, 2007, the Lafayette County Board of Supervisors adopted a resolution to “provide the initial, up-front financial support for the [Third Circuit] Drug Court.” Thereafter, according to the parties, the county made all payments on behalf of the drug court and was reimbursed by the AOC on a monthly basis. The county also “assumed the management of the Drug Court’s financial accounts.” It is unclear whether the county ever incurred any expenses that were not reimbursed by the AOC.

¶ 5. In August 2009, a dispute arose between the Lafayette County Board of Supervisors (Board) and the drug court over whether the drug court should pay rent for the use of space in the county courthouse. The Board says that it requested rental payments after AOC office staff informed the Board that other Mississippi drug courts pay for use of county facilities.

¶ 6. While this dispute was pending, the drug court attempted to hire a part-time law enforcement officer, Pete Samples. According to the drug court, “it was necessary he be placed on the payroll of Lafayette County,” which “would advance the funds for this position and be reimbursed at the end of each month by the state.”

¶ 7. On February 12, 2010, the Board informed the drug court that it would not fund the position until the question of rent was resolved. In response, on April 15, 2010, Judge Howorth sent a letter to the Board’s attorney expressing his intent to request additional funding from the AOC for rental payments. The letter also stated that he would “be entering a sua sponte administrative order to clarify the relationship between the drug court and Lafayette County.”

¶ 8. Shortly after receiving Judge Ho-worth’s letter, the Board voted to discontinue administration of the drug court funds. The Board’s attorney then contacted the AOC regarding the procedure for ceasing its involvement with the drug court. After learning of the county’s decision from the AOC, the drug court entered a fourteen-page order directing the Board to:

(1) Cease and desist from interfering with the independent operation of the Courts, including the Circuit Court and Third Circuit Drug Court; and
(2) Immediately place Pete Samples on the rolls of the Lafayette County employees so that he may begin to serve in the part-time position to which he has been appointed by Drug Court; and
(3) Continue to administer funding for Drug Court and comply with all appropriately authorized requests made by Drug Court, in full compliance with the terms of this Order, until replaced by a new lead county and upon being so notified by the Court; and
(4) Take any and all steps, ordinary and extraordinary, necessary to fully comply with the terms of this Order.

¶ 9. The order, entered June 17, 2010, outlined the history of the Third Circuit Drug Court and various disputes between the drug court and the Lafayette County Board of Supervisors. According to the order, the Board “ha[dj a history of attempted interference with the independent operation of this separate branch of state government.” This “attempted interference” included “efforts to remove the public defenders who work[ed] for the court” and “the disturbing practice of voting on whether or not to approve budget items which had already been authorized by the AOC.”

¶ 10. The Board filed a motion for rehearing or clarification, recognizing that, while the county initially had agreed to serve as the “lead county,” nothing in the Drug Court Act or the AOC rules required the county to continue as such. The Board suggested that an opinion from the Office of the Attorney General be obtained to clarify:

(1) Whether a county or municipality may or is obligated to assist local drug courts in administrative and management capacity as opposed to drug court staff assuming those functions;
(2) Whether a county or municipality may or is obligated to expend local taxpayer monies to defray operational and personnel expenses which are subject to reimbursement by the [AOC] in accordance with an approved local drug court budget;
(3) Whether and to what extent a lead county or municipality may or is obligated to exercise discretion in approving drug court operational and personnel expenses and staffing decisions; and
(4) How long is the lead county obligated to remain as the lead county? Does the lead county have the right to withdraw as the lead county?

¶ 11. The drug court then entered a “final order” which contained some rather stern language directed at the Board. This order did not change anything in the original order, but stated that the Attorney General’s Office would not issue an opinion, and “the avenue of redress [wa]s an appeal to the Mississippi Supreme Court.” The Board has appealed to this Court, asking that we “elariffyj the nature and extent of the administrative responsibilities of the drug courts operating under the Drug Court Act and the rules promulgated by the Advisory Committee and the Administrative Office of the Courts.”

Union County’s assuming the role of “lead county” renders the appeal moot.

¶ 12. Generally, this Court will not adjudicate moot questions. Alford v. Miss. Div. of Medicaid, 30 So.3d 1212, 1214 (Miss.2010) (quoting Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994)). However, the “public interest” exception allows this Court to review moot issues “when the question concerns a matter of such nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.” Id. (quoting Sartin v. Barlow ex rel. Smith, 196 Miss. 159, 16 So.2d 372, 376-77 (1944)). The Court also has said an exception exists for cases which are “capable of repetition, but would otherwise evade judicial review.” State Oil & Gas Bd. v. McGowan, 542 So.2d 244 (Miss.1989) (citing Pascagoula Mun. Sep. School Dist. v. Doe, 508 So.2d 1081 (Miss.1987); Strong v. Bostick, 420 So.2d 1356 (Miss.1982)).

¶ 13. In the drug court’s brief, the attorney general informed this Court that “[rjecently, Union County replaced Lafayette County as the ‘lead county’ for the Drug Court.” This change was not reflected in the record; therefore, this Court directed the parties to file supplemental briefs addressing whether the appeal was moot “based on Union County’s having replaced Lafayette County as the ‘lead county’ for the Third Circuit Drug Court.” Both parties filed supplemental briefs, and both recognized that the issue is now moot. However, the parties asked that this Court exercise its discretion to review the matter.

¶ 14. Nevertheless, we find that all issues raised on appeal are moot, and the public-interest exception does not apply. The parties agree that the trial court’s order has been rendered moot by Union County’s having assumed the position of “lead county.” Thus, there is no present harm readily apparent (or even alleged) to either the drug court or to Lafayette County or to the public. Moreover, it is not clear from the record that either party ever suffered any demonstrable harm. The order refers to “attempted interference” from the county but does not aver that there was any interruption in court services. Likewise, it appears that Lafayette County has been fully reimbursed by the AOC for all the payments it made. Any harm actually suffered by the County would be limited to the cost of “managing” the drug court’s finances; but the Board does not allege that the county suffered any financial loss as a result of those activities.

¶ 15. In addition, the relief requested is very general in nature, i.e., a “clarification” of “the nature and extent of the administrative responsibilities of the drug courts.” This falls directly within the statutory duties of the Committee. Miss.Code Ann. § 9-23-9(1) (Supp.2011) (stating that the purpose of the Committee is “to develop and periodically update proposed statewide evaluation plans and models for monitoring all critical aspects of drug courts”). An opinion which generally addresses the administrative responsibilities of a drug court would be entirely advisory and not as a result of an actual “case or controversy.” A & F Properties, LLC v. Madison County Bd. of Supervisors, 983 So.2d 296, 302 (Miss.2006) (“[T]he case or controversy requirement mandates ‘an actual controversy over an issue, not a desire for an abstract declaration of the law.’ ”) (quoting In re Summers, 325 U.S. 561, 567, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945)). This Court does not issue advisory opinions. Id.

Conclusion

¶ 16. It is undisputed that the issue is moot, and judicial review is not appropriate, because the parties are asking this Court to issue an advisory opinion addressing general, administrative matters. Accordingly, we dismiss the appeal as moot, noting that the State Drug Court Advisory Committee is better suited to handle any concerns arising from the drug court’s order.

¶ 17. APPEAL DISMISSED AS MOOT.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . On February 8, 2012, the Lafayette County Board of Supervisors filed a motion to dismiss the appeal as moot, noting that “the currently elected Lafayette County Board of Supervisors believes that the continued pen-dency of this appeal would not serve the interest of the citizens of Lafayette County.” The Third Circuit Drug Court, by and through the attorney general, opposed the motion. Consistent with the reasons stated in this opinion, the Board's motion is hereby dismissed as moot.

      . For example, according to the drug court, the original order had invited the Board to file a responsive motion, "to avoid any misstatement of fact or misapplication of law in the Court’s Order, not to offer to have the Board’s attorney restate the dispute and thereby deliberately or recklessly misrepresent the facts as well as the nature of the problem.”


author: CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    MISSISSIPPI TRANSPORTATION COMMISSION v. Sylvia MONTGOMERY.
    No. 2010-IA-01112-SCT.
    Supreme Court of Mississippi.
    Feb. 23, 2012.

      Jay Gore, III, Grenada, Roger Adam Kirk, attorneys for appellant.
    Robert George Clark, III, Bryant Wan-drick Clark, Lexington, attorneys for ap-pellee.
   ON MOTION FOR REHEARING

CARLSON, Presiding Justice,

for the Court:

¶ 1. The motion for rehearing filed by the Mississippi Transportation Commission is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Sylvia Montgomery filed suit against the Mississippi Transportation Commission (Commission) in the Circuit Court of Yazoo County after she was injured when her car struck a pothole in the northbound lane of Interstate 55 near Vaughan. The Commission filed a motion for summary judgment, claiming it was exempt from liability under several provisions of the Mississippi Torts Claim Act (MTCA). See Miss.Code Ann. § 11-46-9(1) (Rev.2002). The Circuit Court of Yazoo County, Judge Jannie M. Lewis presiding, denied the Commission’s motion. A three-justice panel of this Court granted the Commission’s petition for interlocutory appeal.

¶ 8. Upon review of the parties’ briefs and the record, we find the trial court erred by not determining whether the duty to warn of a dangerous condition on the highway is a discretionary duty under the public-function test. Accordingly, we reverse the trial court’s denial of the Commission’s motion for summary judgment and remand for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 4. Since this is an appeal from the trial court’s denial of the Commission’s motion for summary judgment, we state the facts here in the light most favorable to Montgomery, the nonmoving party. On February 24, 2003, at approximately 10:30 p.m., Montgomery was driving northbound on I-55 when her car hit a twelve-by-fifteen-foot hole in the highway. Because it was late at night and the bridge was not illuminated, Montgomery was unable to see the hole. The hole was located just north of the exit ramp at Exit 133 (Vaughan), but just south of the Vaughan Bridge, which crosses over Vaughan Road. Injured and nearly losing control of her car, Montgomery pulled over to the shoulder of the highway, as did several other cars.

¶ 5. At the time of the accident, the portion of 1-55 located in the area of the Vaughan Bridge was supervised and maintained by Dickerson & Bowen (“D & B”), a private contractor hired by the Commission. Under the contract between D & B and the Commission, D & B was responsible for repairing any damage to the highway, and according to the contractual terms, to “take every precaution against injury or damage by action of the elements or from any other cause.”

Twelve Days Before The Accident: February 12, 2003

¶ 6. Problems had been noted with the same area of the highway before Montgomery had her accident. On February 12, 2003, during an inspection of 1-55, a pothole was discovered in the northbound lane at the Vaughan Bridge. This was detailed in a “project diary” maintained by the Mississippi Department of Transportation (MDOT). The entry on that day states:

NOTE #1: INSPECTED JOB SITE @ 1-55. POTHOLE REPAIR NEEDED @ VAUGHAN BRIDGE IN N. BOUND LANE.CONTRACTOR WAS ADVISED.

The Commission alleges the pothole was repaired by D & B two days later, but the project diary for February 14, 2003, merely states:

NOTE: ALL NECESSARY REPAIRS WERE MAKE [sic] BY CONTRACTOR.

D & B has no records of any work performed that day.

¶ 7. Montgomery argues that the pothole depicted in the project diary report for February 14, 2003, was the same hole she struck, after it had worsened over time— growing from a ten-by-ten-foot hole to a twelve-by-fifteen-foot hole. Montgomery argues in the alternative that, at least by February 23, 2003 (the day before the accident), the Commission had notice of the existence of the hole she struck. The Commission, on the other hand, argues that Montgomery struck a different — and new — hole. In other words, the Commission asserts that the hole recorded in the project diary reports for February 12, 2003, and February 14, 2003, was not the same hole which Montgomery struck on February 24, 2003.

The Day Before the Accident: February 23, 2003

¶ 8. On February 23, 2003, the day before Montgomery’s accident, the Commission was notified of the existence of a hole in the northbound lane at the Vaughan Bridge on 1-55. The Commission alleges that repairs were made to the hole that same day. However, the project diary report for February 23, 2003, states that “NO WORK” was done. The project diary report for the next day, February 24, 2003, the day of Montgomery’s accident, also states “NO WORK” but goes on to state:

1. INSPECTED JOB SITE, REPAIRS @ VAUGHAN BRIDGE NORTH BOUND WERE MADE THE PREVIOUS NIGHT WERE OK.
2. GUARD RAIL DAMAGED @ 137 MILE MARKER IN NORTH BOUND LANE ON LEFT SHOULDER.

Corry Harms, the Commission’s project engineer, claims that the “NO WORK” project diary report for February 23, 2003, was probably an error. However, Harms was not present to witness the repairs the Commission claims were done the night before Montgomery’s accident. In fact, Harms was not sure what repairs allegedly were done on February 23, 2003, nor does he know the specific location on 1-55 where the alleged repairs were made.

¶ 9. The Commission has not brought forward any witnesses to testify to the repairs that allegedly were done on February 13 or February 23, 2003. No evidence in the record shows that the Commission made any effort to warn the public about the holes from either February 13 or February 23, 2003.

One Day After the Accident: February 25, 2003

¶ 10. The day after Montgomery’s accident, D & B was contacted to repair a hole in the area of the Vaughan Bridge. The project diary report for February 25, 2003, states:

D & B — CONTRACTOR AGAIN CALLED TO REPAIR POTHOLE @ VAUGHAN BRIDGE @ 12:30AM FEB. 24, 2003
CONTRACTOR ARRIVED @ 7:00 AM PROPER LANE CLOSURE WAS PLACED @ WORK AREA & NECESSARY REPAIRS WERE MADE. P.E. (CORRY HARMS) — ON JOB SITE [sic] FROM 8:20 TO 8:45
NOTE #1: DAMAGED AREA REMOVED (12'X 15' DEPTH) & REPLACED WITH HOT MIX

The project diary report for February 26, 2003, reveals that the Commission was again notified of a pothole in the northbound lane at the south end of the Vaughan Bridge. By February 27, 2003, D & B decided simply to dig out the entire area of the highway and replace it with hot-mix asphalt, a project which took four days. The project diary report reflecting this work stated:

D & B REPAIRED DAMAGED AREA ON JOB SITE ALSO REMOVED LANE CLOSURE IN NORTH BOUND LANE. CONTRACTOR NOTIFIED THAT DAMAGED AREAS ARE TO BE DUG OUT & REPLACED WITH HOT MIX ASPHALT. REPAIRED AREAS ARE ALSO TO BE MONITORED.

¶ 11. Montgomery ultimately brought suit against the Commission and D & B. Montgomery initially alleged five theories of liability:

a. Failure to properly repair interstate;
b. Failure to use proper precautions in road construction;
c. Failure to maintain the proper degree of control of its employees;
d. Failure to use proper precautions in responding to hazardous conditions; and
e. Failure to give motorist warning of the hazardous condition.

After Montgomery had engaged in discovery with both defendants, the Commission filed a counterclaim against D & B, which was quickly dismissed with prejudice by the trial court. Soon after, the trial court ordered mediation between the parties. Eventually, Montgomery settled with D & B, and the trial court dismissed D & B from the suit with prejudice.

¶ 12. On August 3, 2009, the trial court held a hearing on the Commission’s motion for summary judgment. The Commission primarily argued that the duty to maintain the roadways was discretionary, which is a general exemption from liability under Mississippi Code Section 11 — 46—9(l)(d) (Rev.2002). At the conclusion of the hearing, Judge Lewis rendered an opinion from the bench. The entirety of her opinion stated:

Okay. Thank you. Before this Court is a Motion for Summary Judgment filed by the defendant. In a Motion for Summary Judgment, the Court must find, before a summary judgment can be granted, the Court must find that there is no genuine issue as to any material fact or law. The-after hearing arguments of both counsel, the Court finds that there is a conflict in the facts as to when the hazardous condition existed and as to when the defendant received notice of that condition.
Therefore, the Court finds that there is a genuine issue as to the facts in this case, and the Motion for Summary Judgment is denied. Prepare me an order.

(Emphasis added.) Obviously, a delay occurred in preparing and submitting an order to Judge Lewis memorializing her bench ruling, because the order was not submitted to Judge Lewis for execution and entry until June 23, 2010. The order denying summary judgment was signed that day and entered on June 24, 2010.

¶ 13. From the trial court’s denial of summary judgment, the Commission now appeals to this Court.

DISCUSSION

¶ 14. When reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the trial court’s judgment. Patterson v. Tibbs, 60 So.3d 742, 753 (Miss.2011) (citing Chisolm v. Miss. Dep’t of Transp., 942 So.2d 136, 140 (Miss.2006)). In doing so, we are required to examine all the pleadings, depositions, answers to interrogatories and affidavits. Id. (citing Chisolm, 942 So.2d at 140). See also Webb v. Braswell, 930 So.2d 387, 395 (Miss.2006). The focus of this review is to determine if issues of material fact exist when the evidence is viewed in the light most favorable to the nonmoving party. Patterson, 60 So.3d at 753 (citing Chisolm, 942 So.2d at 140). See also Hataway v. Nicholls, 893 So.2d 1054, 1057 (Miss.2005).

¶ 15. Generally, Mississippi and its governmental entities are afforded sovereign immunity from civil suits, under the theory that “the king can do no wrong.” Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 90 (Miss.2010) (quoting Mohundro v. Alcom County, 675 So.2d 848, 852 (Miss.1996)). See also Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441, 443 (5th Cir.1991)). Thus, the State can be held liable only if it carves out an exception. Howe, 49 So.3d at 90. These exceptions are drafted in the form of tort claims acts. Id.

¶ 16. Since late 1993, the Legislature has waived immunity for torts committed by the State of Mississippi and its employees who are acting within the scope of their employment. Miss.Code Ann. § 11— 46-5 (Rev.2002). However, this waiver is tempered by a large number of exceptions, by which a governmental entity can be exempt from liability on claims based on specified circumstances. Miss.Code Ann. § 11^46-9 (Rev.2002).

¶ 17. In today’s case, the Commission has alleged five theories in support of its argument that it should be exempt from liability under the MTCA, namely those exemptions set out in Section 11-46-9(1), subsections (d), (g), (p), (q), and (v). In the end, we find that the only argument meriting discussion involves Section 11-46-9(l)(d), the discretionary-function exemption.

WHETHER THE COMMISSION IS EXEMPT FROM LIABILITY UNDER MISSISSIPPI CODE SECTION 11-46-9(l)(d) FOR FAILING TO WARN OF AN ALLEGEDLY DANGEROUS CONDITION.

¶ 18. Section 11 — 46—9(l)(d) provides immunity from claims “[biased 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[.]” Miss.Code Ann. § lH6-9(l)(d) (Rev.2002). We have held that, if the governmental employee indeed is performing a discretionary function, then the governmental entity is immune, regardless of whether the employee has abused his discretion. Collins v. Tallahatchie County, 876 So.2d 284, 289 (Miss.2004).

¶ 19. The method of determining whether an act is discretionary or ministerial has been clearly established. See Dancy v. East Miss. State Hosp., 944 So.2d 10, 16-17 (Miss.2006). A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee. See Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924-25 (Miss.2006). A duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment. Covington County Sch. Dist. v. Magee, 29 So.3d 1, 5 (Miss.2010) (quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (Miss.1999)).

¶ 20. This Court has adopted a two-part public-function test to determine if “governmental conduct is discretionary so as to afford the governmental entity immunity.” Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999) (citing U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). This Court first must ascertain whether the activity in question involved an element of choice or judgment. Id. If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations. Id..

¶ 21. The Commission argues that it is immune under Section 11 — 46—9(l)(d) because Mississippi Code Section 65-1-65 (Rev.2005) imposes a statutory duty upon the highway department to maintain all state highways. Specifically, the statute directs the state highway department to maintain the highways “to afford convenient, comfortable, and economic use thereof by the public.” Also, Section 65-1-65 directs the highway department to “organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained highway system.... ” Citing Mohundro, 675 So.2d at 853-54, the Commission contends that “any decision regarding maintenance of the highways, including the subject intersection, [is] discretionary as they are based on the judgment of MDOT officials and employees.”

¶ 22. In arguing that the Commission is immune under Section 11^46-9(l)(d), the Commission also implicitly relies on Mississippi Code Section 63-3-305, which reads:

Local authorities in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessa'ry to indicate and to carry out the provisions of this chapter or provisions of local traffic ordinances or to regulate, warn, or guide traffic....
Local authorities in exercising those functions referred to in the preceding paragraph shall be subject to the direction and control of the state highway commission.

Miss.Code Ann. § 63-3-305 (Rev.2004) (emphasis added). The term “official traffic-control devices” is defined as “all signs, signals, markings, and devices not inconsistent with this chapter placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.” Miss. Code Ann. § 63-3-133 (Rev.2004); see also Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 970 (Miss.Ct.App.2009) (noting that Mississippi Code Section 65-1-65 does “not impose any specific directives ‘as to the time, manner, and conditions for carrying out’ the MTC’s duty in maintaining highways or posting traffic-control or warning devices”).

¶ 23. On the other hand, Montgomery does not argue in her brief whether the Commission is exempt from liability under Section 11 — 46—9(l)(d), the discretionary-function exemption. Instead, Montgomery presents the issue as concerning solely whether the Commission waived its immunity because of its failure to warn of a dangerous condition under Section 11 — 46— 9(l)(v).

¶ 24. We note, however, in response to the Commission’s argument concerning the applicability of Section 11-46-9(l)(d), Montgomery makes an alternative argument that, even assuming, arguendo, that the Commission is correct in its assertion that the inspection and maintenance of 1-55 is a discretionary function, the Commission still was required to exercise ordinary care. In support of this alternative argument, Montgomery cites Brewer v. Burdette, 768 So.2d 920, 923 (Miss.2000), for the proposition that immunity for discretionary duties is granted only when ordinary care is used. However, this is no longer the law. See Collins, 876 So.2d 284, 289 (Miss.2004) (holding that the principle that one must use ordinary care in performing a discretionary function was an erroneous proposition and stressing that the ordinary-care standard is not applicable to Mississippi Code Section 11-46-9(l)(d)); see also Barrentine v. Miss. Dep’t of Transp., 913 So.2d 391, 394 (Miss.Ct.App.2005) (recognizing that “the Mississippi Supreme Court has overruled the line of cases holding that the placement of traffic control devices should be analyzed within the context of ordinary care”—namely Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 268 (Miss.2003) (citing Brewer, 768 So.2d at 923; L.W., 754 So.2d at 1142).

¶ 25. Notwithstanding this Court’s acknowledgment in Collins that Brewer was decided on the erroneous premise that a governmental entity could retain immunity only if it exercised ordinary care in the performance of a discretionary function, today’s case reveals a belief that the erroneous premise set out in Brewer is still good law. In L.W., this Court discussed an apparent interplay between Section 11-46 — 9(l)(b) and Section ll-46-9(l)(d) in a combined discussion of the exercise of ordinary care under subsection (b) and the exercise of a discretionary function under subsection (d). L.W., 754 So.2d at 1140-43. This Court decided Brewer roughly thirteen months after L.W., and we decided Cargile less than three years after Brewer. In Cargile, this Court stated:

[IJmmunity for discretionary duties is granted only when ordinary care is used. See Brewer v. Burdette, 768 So.2d 920, 923 (Miss.2000); L.W., 754 So.2d at 1142. The government actor’s use of ordinary care is a question for the finder of fact. Brewer, 768 So.2d at 923; L.W., 754 So.2d at 1142.
In Brewer we held that road maintenance and repair are discretionary acts. Id. (citing Mohundro, 675 So.2d at 854). Using all of the relevant facts, the trial court is charged with deciding whether the decision maker used ordinary care. Id. at 923 (citing L.W., 754 So.2d at 1141).

Cargile, 847 So.2d at 268-69.

¶ 26. Today, we state that, to the extent L.W., Brewer, and Cargile may be read to condone an interplay between Section 11-46 — 9(l)(b) and Section 11 — 46—9(l)(d) to determine whether the discretionary conduct of the governmental entity is exempt from liability by applying the ordinary-care standard, these cases, and any other cases which stand for this proposition, are expressly overruled. We clarify that, in determining whether a governmental entity is exempt from liability under Section 11-46 — 9(l)(d), the two-part public-function test already mentioned and further discussed infra must be used. Jones, 744 So.2d at 260 (citing U.S. v. Gaubert, 499 U.S. at 322, 111 S.Ct. 1267).

¶ 27. In today’s case, Montgomery relies solely on Section 11 — 46—9(1)(v) as the basis for asserting that the Commission is not exempt from liability under the MTCA. The Commission relies, inter alia, on Section 11 — 46—9(l)(d) as the basis for asserting that it is exempt from liability under the MTCA. However, we need not reach Montgomery’s argument under Section ll-46-9(l)(v) if we find that the alleged act or omission was discretionary under Section 11 — 46—9(l)(d). See Collins, 876 So.2d at 289.

¶ 28. The Commission ultimately contends that “[a]ny decision” related to the maintenance or repair of the highway is discretionary under Section 11-^46 — 9(l)(d). Alternatively, the Commission argues that the failure to warn through the use of traffic signals also is discretionary under Section 11 — 46—9(l)(d).

¶ 29. In Jones, this Court noted the interplay among maintenance, dangerous conditions, and warning of these dangerous conditions:

[T]he decision to build a road and the initial placement of traffic control devices is of the planning nature, involving public policy considerations. Bailey Drainage Dist. v. Stark, 526 So.2d 678, 681 n. 1 (Fla.1988). However, once the road is built and the responsible entity becomes aware of a dangerous condition in connection with the road, the duty becomes one of maintenance.

Jones, 744 So.2d at 264 (emphasis added). In the next sentence, this Court reasoned that, when a dangerous condition arose, “MDOT and Tunica County were required to use due care in the exercise of their discretion.” Id. The Court then examined the alleged facts and found that “MDOT and Tunica [had] negligently failed to warn of the danger created by the reopening of Irwin Place Road.” Id. We reiterate that this Court has since held that discretionary duties under Section 11 — 46—9(l)(d) do not require ordinary care and that discretionary functions are protected despite an abuse of this discretion. Collins, 876 So.2d at 289.

¶ 30. Accordingly, if this Court finds that the decision of whether to warn of a dangerous condition on a highway is discretionary, the Commission is exempt from liability under Section 11 — 46—9(l)(d). We thus apply the two-part public-function test. Jones, 744 So.2d at 260 (citing U.S. v. Gaubert, 499 U.S. at 322, 111 S.Ct. 1267).

I. Choice or Judgment

¶ 31. Ordinarily, where a statute mandates the government or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity. Occasionally, however, the Legislature will mandate that a political subdivision fulfill some particular function, but then specifically set forth that some portion or aspect of that function is discretionary. When that happens, acts fulfilling the discretionary portion of the governmental function enjoy immunity.

¶ 32. Here, Section 65-1-65 imposes a statutory duty on the highway department to maintain all state highways. See Miss.Code Ann. 65-1-65 (Rev.2005). Were this the only statutory provision at issue, we would find that the Commission is not immune for the acts carrying out that function. The Legislature, however, carved out a portion of the function mandated by that statute, and made it discretionary. Section 63-3-305 gives local authorities discretion in placing and maintaining traffic devices “as they may deem necessary to indicate and carry out the provisions of this chapter....” Miss. Code Ann. § 63-3-305 (Rev.2004). Although the Commission’s duty to maintain highways is not discretionary, the placing of warning signs is, because the Legislature has provided specific language in the statute extending discretion to those acts. Otherwise, the Commission would not enjoy immunity.

¶ 33. Further, this Court and the Court of Appeals previously have held that, under Section 63-3-305, the placement or nonplacement of traffic-control devices to warn of dangerous conditions involves choice and judgment and is not ministerial. See Jones, 744 So.2d at 262-63; Barrentine, 913 So.2d at 393 (failure to place warning signs on bridge discretionary); Knight, 10 So.3d at 970 (placement of highway warning signs discretionary); Willing v. Estate of Benz, 958 So.2d 1240, 1255 (Miss.Ct.App.2007) (method of warning of icy patch on highway discretionary). Because the Legislature extended discretion to whether and how to warn traffic, we find that the Commission’s decision was not ministerial.

II. Social, Economic, or Political Policy

¶ 34. The second prong of the public-function test limits the scope of discretionary-function immunity to “only those functions which by nature are policy decisions, whether made at the operational or planning level.” Dancy, 944 So.2d at 16 (other citations omitted). “The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. (other citations omitted). “The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute ... but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267.

¶ 35. In Jones, this Court found that, if MDOT had notice of the dangerous condition, it could be liable for failure to warn of a dangerous condition about which it had knowledge, despite this Court’s finding that the duty to place traffic signals at intersections was a discretionary function. Jones, 744 So.2d at 262-63. However, as noted earlier, after Collins, we no longer apply a standard of ordinary care to discretionary functions; rather, if the duty is discretionary under the public-function test, then Section 1146-9(l)(d) provides immunity. Collins, 876 So.2d at 289.

¶ 36. We also note that immunity applies, regardless of whether the defendant fails to perform the discretionary duty under Section 11 — 46—9(l)(d):

(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....

Miss.Code Ann. § 1146-9(l)(d) (emphasis added).

¶ 37. In Jones, this Court reasoned as much when plaintiffs sued MDOT for failing to place traffic signs at a “T” intersection. Jones, 744 So.2d at 263. MDOT argued that the placement of traffic signs was a discretionary function, and this Court agreed. Id. The plaintiffs, however, continued by arguing that MDOT was not entitled to immunity, because it had “failed to consider whether traffic control devices were necessary on the road.” Id. This Court found that MDOT was still immune under Section 11 — 46—9(l)(d), because it “exempts from the waiver of immunity not only the performance of those acts which are discretionary, but also the ‘failure to exercise or perform a discretionary function or duty.’ ” Id. (other citations omitted). This Court reasoned that, although MDOT had failed to perform this discretionary function (the placement of traffic-control devices), MDOT was still immune because it had failed to perform a discretionary function — the placement of traffic signs at intersections for purposes of warning the public. Id.

¶ 38. As such, the allegations that the Commission was aware of a dangerous condition and allegedly failed to warn of this condition do not waive the Commission’s immunity under Section 1146-9(l)(d) — assuming the duty to warn of a pothole is a discretionary duty.

¶ 39. To withstand entry of summary judgment, Montgomery — under the public-function test — had to rebut the presumption that the duty to warn of a pothole was grounded in policy considerations. See Dancy, 944 So.2d at 18 (quoting Gaubert, 499 U.S. at 324, 111 S.Ct. 1267) (When “established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion”).

¶ 40. Here, improperly arguing under an ordinary-care standard, Montgomery did not address whether warning of a pothole under the facts of this case involved public-policy considerations. Montgomery did not “present specific facts sufficient to rebut the presumption” that warning of a dangerous pothole in the highway is based on policy considerations. Baldassaro v. U.S., 64 F.3d 206, 212 (5th Cir.1995) (“the burden is on Baldassaro to allege facts that would support a finding that the challenged action is not the kind of conduct that can be said to be grounded in [public-policy considerations]”) (emphasis added); ALX El Dorado, Inc. v. Southwest Sav. & Loan Ass’n, 36 F.3d 409, 412 (5th Cir.1994) (“Here, the plaintiffs have alleged nothing that would suggest that the statutory discretion exercised by the banking agencies — whether or not exercised negligently — was not based on considerations of public policy.”).

¶ 41. Accordingly, we find that the trial court erred in denying the Commission’s motion for summary judgment without first considering whether the Commission’s duty to warn of the pothole was a discretionary duty under the public-function test. See Willing, 958 So.2d at 1254. If the nature of the Commission’s duty to warn of this pothole indeed involves choice or judgment and is grounded in policy considerations, then the Commission is immune under Section 11 — 46—9(l)(d).

CONCLUSION

¶ 42. The trial court’s order reveals that it denied the Commission’s motion for summary judgment because issues of fact existed as to whether the Commission had notice of the pothole. We find the trial court erred by failing first to consider whether the failure to warn was a discretionary function under the public-function test. Accordingly, we reverse the trial court’s denial of summary judgment and remand this case to the Circuit Court of Yazoo County for proceedings consistent with this opinion. Specifically, we remand for a determination of whether the Commission’s duty to warn was discretionary under Section 11 — 46—9(l)(d). If the trial court determines that the duty to warn of a dangerous pothole on a highway is not discretionary under the public-function test, then the trial court may consider the extent to which genuine issues of material fact exist under Section ll^I6-9(l)(v).

¶ 43. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.

KITCHENS, Justice,

dissenting:

¶ 44. Once a governmental entity has become aware of a dangerous condition on its property, that entity has a duty to protect and/or warn the public of the dangerous condition. Miss.Code Ann. § 11-46 — 9(l)(v) (Rev.2002). Thus, what once was a fully discretionary governmental function — i.e., the placement and use of traffic devices — no longer is entirely discretionary when a known, dangerous condition has arisen. Because today’s decision holds that the failure to warn of a dangerous condition may be discretionary, and directs the trial court to determine this question of law, I respectfully dissent.

¶ 45. Immunity, or the lack thereof, is a question of law, not fact. City of Laurel v. Williams, 21 So.3d 1170, 1174 (Miss.2009) (citing Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990, 994 (Miss.2003)). Thus, such issues are reviewed by this Court under a de novo standard. Id. (citing Phillips v. Miss. Dep’t of Pub. Safety, 978 So.2d 656, 660 (Miss.2008)). Despite this well-accepted standard of review, the majority remands this case for the trial court to determine whether “the duty to warn of a dangerous pothole” was a discretionary duty. Maj. Op. ¶ 42. Given that the trial court is not directed to make additional findings of fact, this Court is fully capable, and duty bound, to decide this question of law. A three-member panel of this Court granted the Mississippi Transportation Commission’s petition for interlocutory appeal, indicating that appellate review would “materially advance the termination of the litigation ...[,] protect a party from substantial and irreparable injury[,] or resolve an issue of general importance in the administration of justice.” M.R.A.P. 5(a). Today’s decision accomplishes none of these purposes, because, no matter Judge Lewis’s decision on the issue, the Supreme Court does not defer to trial courts on issues of law.

¶ 46. Today’s decision marks an abrupt change in this Court’s treatment of sovereign immunity cases. Just recently, in City of Jackson v. Doe, 68 So.3d 1285 (Miss.2011), this Court determined, via interlocutory appeal, that the City’s failure to warn of an alleged dangerous condition in a public park was a discretionary duty as a matter of law. In Doe, this Court reversed the trial court’s denial of summary judgment and rendered judgment in favor of the City, not hesitating to address the legal issue, despite the trial court’s having given no reason for its ruling. Id. at 1287. While the underlying facts of that case are quite different from those in the present one, there is nothing to hinder or limit our appellate power to adjudicate the immunity question with which we are now presented.

¶ 47. The answer to the question posed by the majority is contained in Mississippi Code Section ll-46-9(l)(v), which provides that a governmental entity does not enjoy immunity for a failure to protect or warn against a known dangerous condition. While there can be no dispute that the government is immune for acts or omissions that arise out of discretionary duties under Section ll-46-9(l)(d), the presence of a known dangerous condition takes any associated governmental action/inaction outside the realm of discretion. Thus, the governmental entity is required to use ordinary care in protecting or warning against a known dangerous condition. Miss.Code Ann. § 11 — 46—9(l)(v) (Rev. 2002). Any other reading of the Mississippi Tort Claims Act would be illogical.

¶ 48. As this Court explained in Jones v. Mississippi Department of Transportation, 744 So.2d 256, 264 (Miss.1999),

[T]he decision to build a road and the initial placement of traffic control devices is of the planning nature, involving public policy considerations. Bailey Drainage Dist. v. Stark, 526 So.2d 678, 681 n. 2 (Fla.1988). However, once the road is built and the responsible entity becomes aware of a dangerous condition in connection with the road, the duty becomes one of maintenance. Id.

In other words, when the governmental entity becomes aware of a dangerous condition on its property, there is no discretion with regard to its duty to warn and protect against known hazards. Accordingly, the Jones decision should not have said, in the very next sentence, that the defendants were thus “required to use due care in the exercise of their discretion.” Id. In this respect, I agree with today’s decision. Maj. Op. ¶ 29. I respectfully disagree, however, that the failure to warn or protect against a known dangerous condition may be discretionary or that this legal question should first be decided by the trial court. For these reasons, I would affirm the trial court’s denial of summary judgment.

CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . A project diary is used to record the work done to a road, where the work was done, by whom the work was performed, what equipment was used, and the weather conditions at the time the work was performed.

      . Before this Court, Montgomery argues that the Commission is liable under Mississippi Code Section 11 — 46—9(l)(v) (Rev.2002) (dangerous-condition/failure-to-wara).

      . Mississippi Code Section 65-1-65 (Rev. 2005) states,
      It shall be the duty of the state highway commission to have the state highway department maintain all highways which have been or which may be hereafter taken over by the state highway department for maintenance in such a way as to afford convenient, comfortable, and economic use thereof by the public at all times. To this end it shall be the duty of the director, subject to the rules, regulations and orders of the commission as spread on its minutes, to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained highway system, so that said highway may be kept under proper maintenance and repair at all times.

      . Section 11 — 46—9(l)(v) provides that a governmental entity shall not be liable for any claim:
      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.
      Miss.Code Ann. § 11-46-9(1 )(v) (Rev.2002).

      . Interestingly, Montgomery concedes in her brief "that MDOT’s duty to regularly inspect and maintain 1-55 is discretionaiy.”

      . In Jones, under the public-function test, this Court reasoned that the initial placement of warning signs at the planning stage involved policy considerations. Jones, 744 So.2d at 262-63. We note that the instant case concerns the duty to warn of a pothole on a highway. Neither party discussed with any detail the extent to which this duty — to warn of a dangerous pothole on the highway — involved social, economic, or political-policy considerations.

      . Curiously, the majority answers the first prong of the public function test by holding that "the placement or nonplacement of traffic-control devices to warn of dangerous conditions involves choice and judgment and is not ministerial.” Maj. Op. ¶ 33. There is no reason that we cannot decide the second prong.