author: FAIR, J.,

text:
    Robert WILLIAMS a/k/a Robert Byrd a/k/a Robert Gene Byrd, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00501-COA.
    Court of Appeals of Mississippi.
    June 17, 2014.
    Rehearing Denied Sept. 30, 2014.
    Certiorari Denied Jan. 8, 2015.

      Office of State Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before BARNES, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Robert Williams led police on a fourteen-mile chase through the Jackson suburbs that ended when he ran a red light and struck another vehicle, killing its driver. Williams was tried for vehicular evasion causing death. The theory of his defense was that the pursuing officers were actually responsible for the outcome. Williams was convicted, and he appeals. We affirm.

FACTS

¶ 2. The morning of February 5, 2012, a Sunday, the manager of the Kroger grocery store on County Line Road in Ridge-land, Mississippi, observed a male (Williams) and a female accomplice attempting to steal two carts of meat and seafood, valued at about $600. The manager called the police and prevented the couple from taking the items, but he did not stop them from leaving the store. The two left in the same vehicle, which had no license plate.

¶ 3. Williams was driving. As he was leaving, two vehicles from the Ridgeland Police Department were arriving. Williams drove aggressively toward one of the police cars and turned away from it at the last second to exit the parking lot. The police pursued with their sirens and flashing lights activated. One officer used a loudspeaker to command Williams to stop, to no avail.

¶ 4. Williams drove through a red light and turned onto Lake Harbor Drive, proceeding east onto Spillway Road. As Williams did this, he narrowly missed two vehicles preparing to turn at an intersection. On the spillway road, Williams exceeded 80 miles per hour and, at times, drove on the shoulder to pass slower traffic. Williams continued into Rankin County, running a stop sign and racing past police vehicles that attempted to block his way. Authorities from Rankin County joined in the efforts to stop Williams; eventually there were four or five police vehicles in pursuit.

¶ 5. When Williams reached Highway 471, he turned onto the Highway 25 West ramp, toward Jackson, proceeded up the ramp a short distance, then made an abrupt turn back the way he came. During this maneuver, one of the pursuing police cars struck Williams’s vehicle, but Williams managed to make a complete circle and get back onto the ramp toward Jackson. On Highway 25, Williams reached more than 100 miles per hour. When he came to the intersection ■ with Grants Ferry Road, Williams had a red light. Traffic was stopped in the two westbound lanes of Highway 25, so Williams attempted to proceed through the intersection by way of the right turn lane, which was unoccupied. At this point Williams was traveling at about 60 miles per hour.

¶ 6. At the same time, Milinda Clark was on the way to pick up her children from Sunday school. She had the right of way, so she entered the intersection from Grants Ferry Road and passed in front of Williams’s vehicle as he was running the red light. Williams hit the brakes, but he was only able to slow to an estimated 54 miles per hour when he struck Clark’s vehicle on its driver’s side. Clark died at the scene from blunt force injuries sustained in the collision. Williams and his passenger apparently did not suffer serious injury. Williams was pulled from his car and arrested.

¶ 7. Williams was charged with evasion causing death. At trial, he did not contest the fact that he had fled the police pursuit after attempting to shoplift. The theory of Williams’s defense was that Clark’s death • had “resulted” — according to the statute —from the pursuit, rather than his flight. He was convicted and sentenced to forty years’ imprisonment, as a habitual offender.

DISCUSSION

1. Constitutionality of the Statute / Sufficiency of the Indictment

¶ 8. In his first issue, Williams makes various constitutional challenges to the charges against him. He first contends that the evasion statute is unconstitutionally vague.

¶ 9. As a threshold issue, the State contends that this claim is barred because Williams’s motion in the trial court was untimely. However, in Fulgham v. State, 47 So.3d 698, 700 (¶ 6) (Miss.2010), a four-justice plurality held that vagueness claims are exempt from procedural bars, and the other two opinions in the case, comprising the remainder of the court, assumed the same result. Therefore we find that this issue is exempted from the procedural bar.

¶ 10. The United States Supreme Court’s approach to the vagueness doctrine has been unclear (or inconsistent) as to whether the statute should be examined on its face or as it applies to the defendant. In Fulgham, 47 So.3d at 702-703 (¶¶ 13-14), the four-justice plurality held that Mississippi should apply the Fifth Circuit’s interpretation of the doctrine outlined in Roark & Hardee LP v. City of Austin, 522 F.3d 533, 548-53 (5th Cir.2008). Both parties to this appeal agree that this Court should follow the plurality in resolving Williams’s claim, so we will do so; though it does not matter because Williams fails to substantiate either a facial or as-applied challenge to the statute.

¶ 11. The Fulgham plurality recited the analysis as follows:

1. The court must consider whether the statute affects a constitutional right.
2. If the statute implicates no constitutionally protected right, the court should consider whether the statute is imper-missibly vague in all of its applications, applying the statute to the complainant’s conduct before considering any hypothetical scenarios. In applying the statute to the facts at hand, the court must consider whether the complainant had notice of what conduct is prohibited and whether law enforcement had definite standards to avoid arbitrary enforcement. “The same facets of a statute usually raise concerns of both fair notice and adequate enforcement standards. Hence the analysis of these two concerns tends to overlap.”

Fulgham, 47 So.3d at 702 (¶ 13) (quoting Roark, 522 F.3d at 553 n. 21) (citations and internal quotation marks omitted). Furthermore, “[a]ll doubts must be resolved in favor of the validity of a statute.” Edwards v. State, 800 So.2d 454, 461 (¶ 10) (Miss.2001) (citation omitted). “A party challenging the constitutionality of a statute must prove his ease by showing the unconstitutionality of the statute beyond a reasonable doubt.” Id. at 460 (¶ 10).

¶ 12. Mississippi Code Annotated section 97-9-72 (Rev.2006) provides in relevant part:

(1) The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question, has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) or -imprisoned in the county jail for a term not to exceed six (6) months, or both.
(2) Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by commitment to the custody of the Mississippi Department of Corrections for not more than five (5) years, or both.
(4) Any person who is guilty of violating subsection (1) of this section, which violation results in the death of another, upon conviction shall be committed to the custody of the Department of Corrections for not less than five (5) nor more than forty (40) years.

¶ 13. The first step in our analysis is to determine whether the statute affects a constitutional right. Williams contends that the statute denied him the right to a fair trial, but that argument could be made about any criminal statute. He misconstrues of the first prong of the Roark analysis, which refers to whether the statute being challenged has “the capacity to chill constitutionally protected conduct, especially conduct protected by the First Amendment.” Roark, 522 F.3d at 546 (citations omitted). Thus we find that Williams has failed to show that a constitutional right is impacted by the statute.

¶ 14. The next step under Roark is to determine whether the statute is imper-missibly vague as applied to Williams’s conduct. “In undertaking that analysis, however, a reviewing court should examine the complainant’s conduct before analyzing other hypothetical applications of the law because a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Id. (citation and quotation marks omitted). The relevant question is whether the wording of the statute “provides a sufficient warning as to the proscribed conduct when measured by common understanding and practices.” Walker v. State, 881 So.2d 820, 825 (¶ 6) (Miss.2004) (citation and quotation marks omitted).

¶ 15. Williams makes several arguments on this point, none of which are well developed. He contends, without explanation or argument, that the statute is “confusing” and that it “[does] not make clear the distinction between the intention to flee and a person’s death ensuing because of an unreasonable pursuit.” We see no merit to these contentions as presented. Williams also claims that the statute fails to define “reckless or willful disregard for the safety of persons or property.” Again no real argument is presented, and we find that reckless and willful are plain, ordinary words. The meanings are also firmly established in our jurisprudence. See, e.g., Barnes v. State, 249 Miss. 482, 484-85,162 So.2d 865, 866 (1964) (elaborating on the offense of reckless driving, which was (and still is) defined by statute as “either a wilful or a wanton disregard for the safety of persons or property”).

¶ 16. We find no unconstitutional vagueness has been shown either on the face of the statute or as applied to Williams’s case.

¶ 17. Williams also contends his indictment was insufficient for largely the same reasons. He adds the contention that the indictment should have “clarifi[ed] that a finding of felony evasion must be made before the question of the cause of another’s death may be determined by the jury to enhance the punishment.” (Emphasis in original). Again, Williams has failed to provide argument or authority in support, and we find no merit to this claim.

2. Sufficiency and Weight of the Evidence

¶ 18. In this issue Williams contends that his conviction was both unsupported by sufficient evidence and against the overwhelming weight of the evidence. See Bush v. State, 895 So.2d 836, 843-45 (¶¶ 16-19) (Miss.2005) (outlining the relevant standards).

¶ 19. Our analysis of this issue is complicated by the fact that Williams’s indictment contains superfluous allegations. The offense of evading law enforcement, in a motor vehicle, causing death, is defined by Mississippi Code Annotated section 97-9-72(4) to include the elements of subsection (1); but Williams’s indictment and the jury instructions also included the allegations that the operation of the vehicle was “in such a manner as to indicate a reckless or willful disregard for the safety of persons or property” and “in a manner manifesting extreme indifference to the value of human life.” This is language from subsection (2) of the statute, which is not required for conviction under subsection (4). In fact, the indictment is even more stringent than subsection (2), which requires only reckless or willful disregard for others’ safety or extreme indifference to the value of human life. Williams does not allege that merely giving this more stringent instruction was reversible error, though he does argue that the evidence was not sufficient to meet its additional requirements. We conclude that, irrespective of whether the prosecution actually had to prove the superfluous elements (a point not explored by Williams), his contention is without merit. Given the facts as we have recounted above, the proof was overwhelming that Williams both recklessly disregarded others’ safety and manifested an extreme indifference to the value of human life.

1120. Williams’s only other serious argument on these issues is his contention that the jury could not find him “100% at fault” for Clark’s death, given the alleged unreasonableness of the police pursuit. In this contention and elsewhere in his brief, Williams begs the questions of whether and under what circumstances an unreasonable pursuit is a defense under subsection 97-9-72(4). He repeatedly assumes, without providing any authority or argument, that a defendant must be “100% at fault” or the “sole proximate cause” of the death in order to be convicted. Instead, the statute simply states that one is guilty under subsection (4) if his evasion “results” in the death of another. Williams would not be helped even if we assume, by analogy to the common-law felony murder rule, that criminal liability can be avoided for deaths that result from the evasion but are not proximately caused by it.

¶21. Contrary to Williams’s assumptions, it is well established that an event can have more than one proximate cause. See, e.g., Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 641-42, 93 So.2d 634, 636 (1957). The fact that there was another proximate cause of the death would not be a defense unless it was an intervening, superseding cause. See, e.g., Glover v. Jackson State Univ., 968 So.2d 1267, 1279-80 (¶43) (Miss.2007).

¶ 22. Williams’s flight was a direct and proximate cause of Clark’s death; he recklessly hit her with his vehicle and killed her. Even if we assume the police pursuit was unreasonable, it cannot be said to be a superseding cause since it was not an “independent intervening agency,” but instead was a natural and foreseeable response to Williams’s flight. See Robinson v. Howard Bros. of Jackson, Inc., 372 So.2d 1074, 1075 (Miss.1979).

¶ 23. We find that Williams’s conviction is supported by sufficient evidence and is not against the overwhelming weight of the evidence.

3. Lesser-included Offense Instruction

¶24. Finally, Williams contends the trial court erred in refusing jury instructions offered by the defense that would, have allowed the jury to convict him of the lesser-included offense of felony evasion, under subsection (2) of Mississippi Code Annotated section 97-9-72. To do so, the jury would have had to find that Clark’s death did not “result” from Williams’s flight. Although Williams was denied the instruction, he was allowed to argue at length that the police were actually responsible for Clark’s death.

¶ 25. “To warrant the lesser-included offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.” Goodnite v. State, 799 So.2d 64, 69 (¶ 24) (Miss. 2001). As we explained above, the State only had to prove that Clark’s death “resulted” from Williams’s flight. The proof was overwhelming and uncontested that it did.

¶26. Williams, while fleeing from the police, hit Clark’s vehicle after blindly running a red light at 60 miles per hour. No reasonable jury could conclude that the police pursuit was an intervening, superseding cause of Clark’s death so as to excuse Williams from criminal liability. He was not entitled to a lesser-included offense instruction without any evidentiary support. This issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF EVASION CAUSING DEATH AND SENTENCE AS A HABITUAL OFFENDER OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, PROBATION, OR SUSPENSION OR REDUCTION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . See Miss.Code Ann. § 97-9-72(4) (Rev. 2006).

      . We will explore the relevance of the allegedly unreasonable police pursuit more thoroughly in another issue.

      . This argument is relevant because Williams’s indictment included the superfluous allegation that his driving was reckless, as would be required under subsection (2) of the statute. Subsection (4) has no recklessness requirement; it requires only that the death results from the evasion.

      . Subsection (2) would not ordinarily be a lesser-included offense of subsection (4), but, as we explained above, Williams was indicted with the extra elements. For this issue we assume subsection (2) was actually a lesser-included offense in this specific instance.


source: Caselaw Access Project

author: ROBERTS, J., ISHEE, J.,

license: Public Domain

text:
    Daniel PRIDE and William Pride, Jr., Appellants, v. Rivers PRIDE, Jr., Robert Pride, Ethel M. Butler, Hester Pride Burnett, Terry L. Ellis, Jimmy Elaine Ellis, C.W. Pride, Herman Pride, Rosetter Pride Pickens, Mary Ann Pride Simmons and Flossie Deloney Brown, Appellees.
    No. 2013-CA-01373-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2014.

      Randolph Walker, attorney for appellants.
    Ethel Butler, appellees, pro se.
    C.W. Pride, appellees, pro se.
    Robert Pride, appellees, pro se.
    Herman Pride, appellees, pro se.
    Hester Burnett, appellees, pro se.

      Jimmie Elaine Ellis, appellees, pro se.
    Donald Pride, appellees, pro se.
    Terry L. Ellis, appellees, pro se.
    Rosetter Pride Pickens, appellees, pro se.
    Mary Ann Pride Simmons, appellees, pro se.
    Flossie Deloney Brown, appellees, pro se.
    Rivers Pride Jr., appellees, pro se.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from a disagreement regarding the partition of approximately 150 acres among siblings, and the Panola County Chancery Court’s order to sell a house and one acre of property that surrounds it. Six years after the chancellor ordered that the house be sold at a public auction, brothers Daniel and William Pride (collectively “William”) filed a motion for relief from judgment under Rule 60(b) of the Mississippi Rules of Civil Procedure. The chancellor denied his motion. William then asked the chancellor for written findings of fact and conclusions of law regarding his decision to deny his motion. The chancellor declined. On appeal, William claims that the chancellor erred when he denied his Rule 60(b) motion. He also claims that he was entitled to written findings of fact and conclusions of law. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The present appeal represents the aftermath of Pride v. Pride, 60 So.3d 208 (Miss.Ct.App.2011), in which we stated:

In May 2005, Rivers Pride, Robert Pride, C.W. Pride, Herman Pride, Ethel Butler, Hester Burnette, Virgie De-loney, Terry Ellis, and Jimmie Elaine Ellis (collectively “Rivers”) filed a complaint ... against their brothers, William ... and Daniel ... (collectively “William”). Rivers asked for a “partition in kind or by sale” of approximately 150 acres, including a home, inherited from W.E. Pride and Savannah Pride. William filed a counterclaim, also seeking a partition. The record indicates Rivers wanted to divide the property equally, while William wanted to sell the entire 150 acres.
The chancellor appointed a three-member commission to survey the property and determine if it could be divided equally. In September 2006, the commission submitted a report, recommending a partition in kind of the land into ten tracts, except for the one-acre home-site, which the commission recommended should be sold. The chancery court held a hearing on November 21, 2006. At the hearing, William objected to the commissioners’ report, arguing all the land should be sold. Rivers, however, agreed with the commissioners’ report. When William suggested the property be appraised before deciding if it should be partitioned in kind, Rivers responded that no appraisal was necessary because each party would receive one[-]tenth of the total value of the property, regardless of what the total was.
On December 19, 2006, the chancery court entered an order adopting the commissioners’ report. The chancery court found [that] “a partition in kind would promote the interest of all co-tenants and a sale of the one-acre house site at partition sale would promote the interest of all co-tenants .... ” The next day, the chancery court issued a notice of sale of the homesite. The sale never took place.
On December 22, 2006, William filed a motion for judgment notwithstanding the verdict (JNOV), arguing there was insufficient evidence for a partition in kind. Rivers responded that William’s motion should be dismissed.
On August 15, 2007, the chancery-court denied William’s motion. After the thirty-day notice-of-appeal deadline had expired, William filed a motion for an extension of time to appeal, which Rivers contested. Before the chancery court ruled on William’s motion for an extension, William filed two more motions: (1) a motion for contempt for Rivers’s failure to return certain personal property as ordered by the December 19, 2006 order, and (2) a motion to appoint a caretaker of the home, which had yet to be sold.
On December 2, 2008, the chancery court heard all three of William’s motions. It granted William a fourteen-day extension to appeal the denial of his motion for JNOV and the underlying order adopting the commissioners’ report. It denied his contempt motion, providing Rivers additional time to return William’s property. But it did not reach the motion to appoint a caretaker because at the hearing both parties informed the chancellor that they agreed to auction the house within sixty days. When the chancellor asked whether anyone objected to the sale, none of the parties spoke up. The resulting December 18, 2008 order stated:
In regards to [William’s] motion to appoint a caretaker, the parties announced to the [c]ourt that they are in agreement to sell the house and [one] acre of land on which it sits at public auction, thereby resolving the issue of appointing a caretaker. Pursuant to the parties’ agreement, dictated into the record and affirmed by all parties, it is therefore ordered that the house and [one] acre of land- as described on the plat thereof on file in this cause shall be sold at public auction to the highest bidder within [sixty] days of the entry of this [o]rder.
Granted the extension, William filed a notice of appeal on December 10, 2008. He challenged the August 2007 denial of his motion for JNOV and the underlying December 2006 order accepting the commissioners’ report. But William’s notice specified he “agree[d] with the ruling ordering a partition by sale of the family home and one-acre lot.” Rivers filed his own notice of appeal on January 16, 2009, seeking review of the December 2008 order directing the sale of the homesite.
The two appeals were consolidated. After being granted numerous extensions, William failed to timely file an appellant's] brief. William’s appeal was dismissed pursuant to Mississippi Rule of Appellate Procedure 2(a)(2). Rivers’s appeal was unaffected.

Pride, 60 So.3d at 209-10 (¶¶ 2-9). Having found no merit to Rivers’s appeal, we affirmed the chancellor’s “order directing the auction of the one-acre homesite.” Id. at 212 (¶ 16). The chancellor has twice ordered that the parties sell the house and the acre of property that surrounds it. Neither William’s brief nor the scant record before us contains any explanation regarding why the home was never sold. The record does not contain a supersedeas bond or an order staying the sale of the home.

¶ 3. In any event, on November 16, 2012, William filed a document styled as a Rule 60(b) motion. William claimed that material and substantial changes in circumstances made it impractical to enforce the December 2006 order. Specifically, William stated that because the value of the home had deteriorated, it was incapable of yielding sufficient proceeds to pay the assessments mandated by the chancery court. William also claimed that he had incurred additional expenses related to the home in the form of taxes and maintenance. William requested a hearing so he could present evidence of the home’s value, the value of the shares determined by the special commissioners, and the expenses that he had incurred. The chancellor denied William’s Rule 60(b) motion.

¶4. William requested written findings of fact and conclusions of law regarding the chancellor’s decision to deny his Rule 60(b) motion. The chancellor denied William’s request. William appeals. He claims the chancellor erred by denying his Rule 60(b) motion. William also claims he was entitled to written findings of fact and conclusions of law regarding the chancellor’s decision.

ANALYSIS

¶ 5. Before we address the substance of William’s issues on appeal, we note that none of the eleven Appellees filed a brief with this Court. The “failure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error.” Rogillio v. Rogillio, 101 So.3d 150, 153 (¶ 12) (Miss.2012) (citing Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). Although the failure to file a brief does not warrant automatic reversal, we will reverse if “the appellant’s argument ... create[s] enough doubt in the judiciousness of the trial court’s judgment that [an appellate court] cannot say with confidence that the case should be affirmed.” Id. (citing Muhammad v. Muhammad, 622 So.2d 1239, 1242 (Miss.1993)). The record in this case consists of a total of forty-seven pages. It contains no transcript of testimony because none was taken. William’s brief is eleven pages long.

I. MOTION FOR RELIEF

¶ 6. William claims that the chancellor erroneously denied his Rule 60(b) motion. “Appellate review of Rule 60(b) motions is limited.” Harvey v. Stone County School Dist., 982 So.2d 463, 467 (¶ 8) (Miss.Ct.App.2008). “We will not reverse a trial court’s decision to deny relief under Rule 60(b) unless the trial court abused its sound discretion.” Id. at 468 (¶ 8). “Additionally, the allegations and indicated evidence should be such as would convince a court that what is sought is not simply an opportunity to litigate that which is already settled.” Id.

¶ 7. William is one of the cotenant heirs involved in a partition case that was filed under Mississippi Code Annotated section 11-21-1 (Rev.2014). William filed his Rule 60(b) motion approximately six years after the chancellor ordered the partition of 150 acres of real estate and the sale of a home and a one-acre plot. In his motion, William claimed that he was entitled to relief from the chancellor’s judgment because of “material and substantial changes in circumstances that make the enforcement of the [judgment] impractical.” Specifically, William claimed that relief from the judgment was appropriate because the home had depreciated in value, and he paid the taxes and maintenance expenses on “the property” during the pendency of the appeal that culminated in this Court’s opinion in Pride. William also asked the chancellor to reconsider the issues regarding the sale of the property, his reimbursement for taxes and expenses, and the payment of fees. Additionally, William suggested that the entire property should be surveyed and appraised again.

¶ 8. However, William’s motion did not allege any of the six grounds for relief contemplated by Rule 60(b), which provides:

[T]he court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

A “material change in circumstances” is not listed as a ground for relief from a judgment. In his brief, William does not claim that his Rule 60(b) motion falls under any particular subsection of the rule. At best, William could only travel under the catch-all provision under Rule 60(b)(6).

¶ 9. In reality, William’s motion was a request to validate his allegations. That is, William alleged that the home had depreciated in value, and then he asked the chancellor to order an appraisal of the home to support his underlying allegation. William did not explain why or how the home had depreciated in value. Additionally, William did not elaborate regarding his maintenance expenses on the property, or the amount he had paid in taxes. In effect, William’s motion for relief from the judgment is nothing more than his unsubstantiated and unsupported assertion that he might not recover some undefined amount of money when the home is finally sold. He did not support his motion with any evidence in the form of affidavits, appraisals, exhibits, receipts, or anything else. As for William’s claim that there had' been a material change in circumstances, this was not a custody proceeding in which a material change in circumstances bears consideration. In effect, William’s motion was merely a request for modification couched as a Rule 60(b) motion, and it failed to state a cognizable claim for relief. “Relief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Brown v. Weatherspoon, 101 So.3d 173, 177 (¶12) (Miss.Ct.App.2012). It “is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” Id. We find no merit to this issue.

II. WRITTEN FINDINGS

¶ 10. Next, William claims that the chancellor erred when he did not provide written findings of fact and conclusions of law related to the decision to deny the Rule 60(b) motion. Rule 52(a) of the Mississippi Rules of Civil Procedure provides that “[i]n all actions tried upon the facts without a jury[,] the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” If a party requests findings of fact and conclusions of law, and the trial court does not enter them, an “appellate court must consider the effect of the trial court’s missed responsibility, and overwhelming evidence may be required as a condition for affir-mance.” Bodne v. King, 835 So.2d 52, 57 (¶ 15) (Miss.2003). “Whe[n] ... a case is hotly contested and the facts [are] greatly in dispute^] and whe[n] there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion.” Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 239 (Miss. 1987). However, a trial court is only obligated to enter requested findings of fact -when an action has been “tried upon the facts without a jury.” Harmon v. Regions Bank, 961 So.2d 693, 700 (¶24) (Miss. 2007).

¶ 11. The chancellor was not required to view the allegations in William’s Rule 60(b) motion as though they were true. William’s Rule 60(b) motion was not an action “tried upon the facts,” because it did not include anything but allegations, and no facts were ever presented. William fails to explain how the chancellor could possibly find any facts after he failed to present any. And the chancellor’s decision to deny William’s Rule 60(b) motion did not result in the entry of a judgment. Therefore, the chancellor was justified in summarily denying William’s request for written findings of fact and conclusions of law. It follows that we find that the chancellor did not abuse his discretion, and there is no merit to this issue.

¶ 12. THE JUDGMENT OF THE PA-NOLA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND JAMES, JJ.

ISHEE, J.,

dissenting:

¶ 13. The majority opinion states that “the chancellor was justified in summarily denying William’s request for written findings of fact and conclusions of law” related to the decision to deny the Rule 60(b) motion. I respectfully dissent.

¶ 14. William’s final motion prior to this appeal was filed pursuant to Rule 52(a) of the Mississippi Rules of Civil Procedure. Rule 52(a) provides, in pertinent part, that “[i]n all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” This Court has previously found that “[u]nless the evidence is overwhelming, it is reversible error for the trial court to refuse, upon request by a party to the litigation, to make specific findings of fact and separately state the conclusions of law on which its decision is based.” McBride v. McBride, 110 So.3d 356, 361 (¶ 25) (Miss. Ct.App.2013) (citing West v. West, 891 So.2d 203, 215 (¶ 35) (Miss.2004)).

¶ 15. The majority does not believe that Rule 52(a) is applicable in this case, but I disagree. Although this Court has held that a “[Mississippi] Rule [of Civil Procedure] 56 summary judgment hearing is not an action tried upon the facts without a jury so as to trigger Rule 52 applicability,” a Rule 56 motion for summary judgment is distinguishable from the current Rule 60 motion. Martindale v. Hortman Harlow Bassi Robinson & McDaniel PLLC, 119 So.3d 338, 345 (¶ 23) (Miss.Ct.App.2012). A motion for summary judgment is granted when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). However, in this case I believe that there are genuine issues of material fact that need clarification. The comment to Rule 52(a) states that “[t]he principal purpose of the rule is to provide the appellate court with a record regarding what the trial court did — the facts it found and the law it applied.” In the order denying William’s Rule 60(b) motion, the chancery court failed to give any factual basis or legal reason for its ruling, and, after a review of the record in this case, I cannot find that the evidence is overwhelming to excuse the chancery court from making findings of fact or conclusions of law. “This Court will remand for findings of fact and conclusions of law where it is not obvious from a review of the record such that the absence of written findings may be excused.” Carpenter v. Berry, 58 So.3d 1158, 1161 (¶ 14) (Miss.2011). I believe that the chancery court’s denial of William’s Rule 52(a) motion was an abuse of discretion. Therefore, I would reverse the judgment of the chancery court and remand for written findings of fact.

BARNES AND JAMES, JJ., JOIN THIS OPINION.


author: BARNES, J.,

text:
    Lee W. ULMER, Appellant v. TRACKER MARINE, LLC d/b/a Tracker Marine Group d/b/a Travis Boating Center, Mako Marine International, Inc. and Travis Boating Center Mississippi, LLC, Appellees.
    No. 2013-CA-01673-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2015.

      Elmer Louis Fondren Jr., Gáutier, attorney for appellant.
    James J. McNamara IV, Ridgeland, Richard Jarrad Garner, G. Robert Parrott, II, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ. •
   BARNES, J.,

for the Court:

¶ 1. In August 2004, Lee Ulmer purchased a 2004 Fishmaster boat with a Suzuki 225 horsepower motor, along with a Mako Marine boat trailer, from Travis Boating Center Mississippi LLC (Travis Boating), an agent of Tracker Marine LLC. After some problems with the boat, Ulmer filed a complaint on August 30, 2007, against Tracker Marine LLC, Mako International Inc., and Travis Boating (Ap-pellees), alleging breach of contract and negligence. He later amended his complaint to include a claim that Appellees had misrepresented and intentionally concealed that the boat was not manufactured by Mako, but instead by Kenner.

¶ 2. Tracker Marine eventually offered to replace the boat with an updated and more expensive model, a 2012 Mako 234 fishing boat. The parties agreed to a settlement on July 27, 2011, the terms of which included Ulmer’s receiving the replacement 2012 Mako boat and trailer and $5,000 in attorney’s fees. In exchange, Ulmer agreed to sign a mutual release and dismiss the case with prejudice. On July 15, 2012, Ulmer filed a motion requesting that the circuit court set a date for delivery of the replacement boat/trailer package and payment of attorney’s fees.

¶ 3. On August 16, 2012, Ulmer was notified that his replacement boat was ready. Per the terms of the agreement, he and his designated expert were allowed to inspect the boat and take it for a test drive, which they did on three occasions before Ulmer took possession of the boat on October 30, 2012. The Appellees expressed their willingness to remit the $5,000 in attorney’s fees once Ulmer signed the mutual release and settlement agreement. However, Ulmer refused to sign the release. On March 14, 2013, Ul-mer filed a motion to enforce a fair settlement, claiming that the replacement boat had a manufacturing defect — the hull on the port side measured higher than the starboard side.

¶ 4. On July 24, 2013, the Appellees filed their response to Ulmer’s motion, requesting that the circuit court deny the motion and enforce the July 27, 2011 settlement. After a hearing, the circuit court entered an order to enforce the 2011 settlement, concluding that the Appellees had “met their obligations under the settlement.” The circuit court ordered Ulmer to execute a release within ten days, which would allow Appellees to tender a check for Ul-mer’s attorney’s fees. The Appellees were ordered to submit an order of dismissal for entry by the circuit court.

¶ 5. Rather than comply with the court’s order, however, Ulmer filed a notice of appeal on October 3, 2013, from the circuit court’s order to enforce the settlement. Ulmer complains that he should not have been ordered to take a defective replacement boat, and the Appellees are guilty of intentional or negligent misrepresentation. The Appellees filed a motion to dismiss the appeal, arguing that the order to enforce the settlement, from which Ulmer has appealed, is not a final, enforceable judgment. See M.R.A.P. 2(a). The Appellees further contend that the circuit court’s findings were not erroneous and that they had “fulfilled their primary obligations under the [s]ettlement[.]”

¶ 6. Finding that the order to enforce the settlement was interlocutory, and not a final, appealable judgment, we dismiss for lack of jurisdiction.

DISCUSSION

Whether Ulmer’s appeal should be dismissed for lack of jurisdiction.

¶ 7. Before we can discuss the merits of Ulmer’s appeal, we must first address the issue of jurisdiction. The Ap-pellees have entered a motion to dismiss Ulmer’s appeal, arguing that his appeal is from an interlocutory order, not a final judgment.

An interlocutory judgment ... leaves for future determination an equity of the case, or some material question connected with it. A judgment is interlocutory, as opposed to final, only when something further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties. Accordingly, where further action of the court is necessary to give a complete adjudication upon the merits, the judgment under which the further question arises is to be regarded, not as final, but as interlocutory.

Fortune v. Lee Cnty. Bd. of Sup’rs., 725 So.2d 747, 750-751 (Miss.1998) (quoting 46 Am.Jur.2d Judgments § 202 (1994)). Specifically, they assert that the September 23, 2013 order to enforce the settlement was not a final order.

¶ 8. The question of whether an order to enforce a settlement is a final judgment has not been explicitly addressed in Mississippi. However, in a recent case, Williams v. Homecomings Financial Network Inc., 134 So.3d 779, 781 (¶ 8) (Miss. Ct.App.2013), we observed that after the chancellor had entered an order granting Homecoming’s motion to enforce the settlement, the Williamses filed an interlocutory appeal with our supreme court, which was denied. See also Hastings v. Guillot, 825 So.2d 20, 22 (¶ 9) (Miss.2002) (considering an appeal after the trial court entered an order granting a motion to enforce a settlement and “then entered a final order enforcing the settlement and dismissing the case.”).

¶ 9. Other jurisdictions, nevertheless, have expressly held that an order enforcing a settlement is interlocutory. In State ex rel. American Bouvier Des Flanders, Club, Inc. v. Jamison, 413 S.W.3d 359, 362 (Mo.Ct.App.2013), the Missouri Court of Appeals held:

“An order granting a motion to enforce settlement is not a final, appealable judgment.” St. Louis Union Station Holdings, Inc. v. The Discovery Channel Store, Inc., 272 S.W.3d 504, 505 (Mo. Ct.App.2008). It is interlocutory and does not become final until after the trial court has entered a judgment on the settlement and dismissed the underlying petition. Id. This is true, regardless of whether a trial court designates its order to be a “final judgment.” Id. at 505-506.

See also Rogers v. Salem Leasing Corp., 881 So.2d 728, 729 (Fla.Dist,Ct.App.2004) (dismissing appeal “because the order on appeal merely grants the parties’ motions to enforce a settlement agreement,” and is, therefore, “not a final order” (per curiam)); Brown v. MHC Stagecoach, LLC, 301 P.3d 850, 853 (Nev.2013) (stating that an order granting a motion to enforce a settlement was an interlocutory order).

¶ 10. The United States Court of Appeals for the Fifth Circuit also ruled that a bankruptcy court’s denial of a motion to enforce a settlement “was interlocutory because, after it ruled on the enforceability of the settlement agreement, the bankruptcy court was still left with an adversary proceeding, namely [the plaintiffs] initial complaint to determine dischargeability and his motion seeking relief from the discharge order, that must be resolved.” In re Holloway, 370 Fed. App’x. 490, 493 (5th Cir.2010) (emphasis added).

¶ 11. Therefore, the question of appellate jurisdiction focuses on whether the order to enforce the settlement disposes of all the claims against the parties. In the September 25, 2013 order to enforce the settlement, the Jackson County Circuit Court held: “ORDERED that the plaintiff execute the release within ten (10) days of the date of this Order. After the release is executed, the defendants will have (10) days to tender the attorney fees to the plaintiff and submit an Order of Dismissal for entry by the Court.” (Emphasis added). Thus, the order did not discharge the claims against the Appellees, as made evident by the circuit court’s request that the Appellees submit an order of dismissal.

¶ 12. In his reply brief, Ulmer argues that by signing the release, he would “destroy[ ] his right to maintain his claim and right of civil action as to the defective boat.” We disagree. Although this Court was only provided the first page of the mutual release and settlement agreement, it clearly states that it “fully settles all claims or disputes” that .pertain to the specific civil action filed in the Jackson County Circuit Court, “including any and all claims that in any way pertain to that certain 2004 22-foot Fishmaster boat, serial number KENFM036B404[.]” Thus, as the Appellees note in their supplemental reply in support of the motion to dismiss the appeal, the subject order “releases Ul-mer’s claims in the underlying matter, all of which involved his prior boat. If Ulmer believes his new boat is defective, he is not precluded from pursuing a warranty claim pursuant to the warranty he took upon his acceptance and possession of the new boat.”

¶ 13. We find this Court lacks jurisdiction to consider Ulmer’s appeal, as the order appealed from was interlocutory, and we grant the Appellees’ motion to dismiss.

¶ 14. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . Ulmer also filed a separate action against the Appellees in the County Court of Jackson County, alleging causes of actions related to the defective hull of the replacement Mako boat.

      . We have located a few cases that have treated an interlocutory order to enforce a settlement as an appealable final judgment, when it has created a situation where the plaintiff suffered irreparable injury. In Volz v. Hertz Rent-A-Car, 552 So.2d 1311, 1313 (5th Cir. 1989), the Fifth Circuit Court of Appeals exercised jurisdiction over an interlocutory order granting a motion for enforcement of a settlement, because Louisiana statutory law states that “an interlocutory judgment may be appealed if it may cause irreparable injury.” (Citing LSA-C.C.P. art.2083). But see Washington v. Washington, 506 So.2d 845, 846 (La.Ct.App.1987) (granting appellee’s motion to dismiss for lack of jurisdiction because appellant did not prove interlocutory judgment "may cause irreparable injury”). However, we note that these cases still consider such an order interlocutory in nature. Furthermore, no such law concerning "irreparable injury” exists in Mississippi.


author: BRYAN, Justice. MOORE, Chief Justice

text:
    Ex parte G.N., Jr. (In re G.N., Jr. v. Cullman County Department of Human Resources.)
    1130031.
    Supreme Court of Alabama.
    April 4, 2014.
    J. Patrick Hackney and James A. Tucker, Alabama Disabilities Advocacy Program, Tuscaloosa, for petitioner.
    Sharon E. Fiequette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for respondent.
   BRYAN, Justice.

WRIT QUASHED. NO OPINION.

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

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

G.N., Jr. (“the father”), appealed the juvenile court’s termination of his parental rights to his son, G.N.N. (“the child”). The Court of Civil Appeals affirmed, without an opinion. G.N., Jr. v. Cullman Cnty. Dep’t of Human Res. (No. 2120639, Sept. 27, 2013), — So.3d - (Ala.Civ.App. 2013) (table). This Court granted certio-rari review; it now quashes the writ. I respectfully dissent.

Although allegations of domestic violence have been made concerning the father arid his wife, C.N. (“the mother”), no evidence indicates that the child was ever “in imminent danger from the surroundings ... and that the removal of the child is necessary for the protection of the health and safety of the child.” § 12-15-306(a)(1), Ala.Code 1975. I believe the juvenile court lacked legal grounds to remove the child from his parents because there was no evidence of “[hjarm or the risk of harm to the emotional, physical health, or welfare of a child.” § 12-15-301(2), Ala.Code 1975. In addition, because allegations of domestic violence against a spouse do not provide legal grounds for the termination of parental rights, I believe the father’s parental rights were terminated without clear and convincing evidence, as required by § 12-15-319(a), Ala.Code 1975.

I. Facts and Procedural History

At the time of the proceedings below, the father and the mother had been together for about 13 years. The mother has two children from a prior relationship, K.H., a daughter, and C.H., a son. In 2006, the Department of Human Resources (“DHR”) became involved with the family on account of the parents’ domestic violence and illegal drug use. The parents refused to take drug screens or to cooperate with DHR’s safety plans for the children. The mother told DHR to put the children into foster care. DHR instead located a relative who took custody of the children.

The child was born in 2009. The parents planned to give the child up for adoption, but they decided to keep the child after he was born. After the child’s birth, hospital staff expressed concerns to DHR about the parents’ ability to parent the child and the domestic violence in the home. A DHR caseworker investigated the reports but took no action. DHR had no further contact with the family in 2009.

In 2010, presumably at the age of 13, K.H. returned to the house where the mother and the father were living. K.H. testified that things were good in the beginning but that they got progressively worse because the parents would often fight. In August 2010, DHR received a report that the parents were using drugs, that there was no food in the house, that K.H. was sleeping on the floor, and that the father had thrown water on K.H. to wake her up. D.M., the father’s mother, had moved into the family home after being diagnosed with cancer. D.M. reported that some of her prescription pain medication was missing. A DHR caseworker investigated and found no evidence of recent physical abuse or inadequate food but did not, determine what happened to D.M.’s medication. DHR had no further involvement with the family in 2010.

On January 1, 2011, the mother attempted to leave the father. The mother got into her vehicle, and, while she was holding the child, the father attempted to remove the mother from the vehicle by pulling her legs. The mother was able to hand the child to K.H., and no one was injured. Later the same month, the child became very ill and started vomiting. The mother thought that the father had poisoned the child and took the child to Children’s Hospital of Alabama in Birmingham, where the child was treated for a stomach virus. A nurse then told the mother that she was free to take the child home. The mother told the nurse that she did not want to go home because the father physically abused her, and she asked the nurse for help in getting away from the father. The mother said that the father had threatened her. “with lawyers.”

The hospital contacted DHR, which began an investigation. The mother became angry and told DHR that she was going home with the father. DHR interviewed the family, including K.H., who was 14 years old at the time. K.H. reported that the parents had been violent toward one another shortly before the hospital visit. DHR also learned that the parents were being treated by psychiatrists, that they were using prescription medication, and that the father had been diagnosed with post-traumatic stress syndrome after his military service during Operation Desert Storm and the War in Iraq.'

DHR thereafter obtained a “pick-up” order from the juvenile court and took the child and K.H. into protective custody. DHR’s “Comprehensive Family Assessment” indicates that the “Original Reason the Family’s Case was Opened for Services” was:

“There were concerns for [the child] (1) and [K.H.] (14). [The child] was at Children’s Hospital for a fever and vomiting. [The mother] reported to the nursing staff that she was afraid to go home because she had been threatened by her husband, [the father]. She stated the trailer had wires under it and the phones were bugged. She stated she and her husband were both recovering addicts and she is currently taking Per-cocet and slept with her prescription so that [the father] couldn’t take the bottle from her and accused her of taking too much. [The mother] admitted to physical violence in the past [;] however no police reports have been filed. [The mother] states [the father] is playing games that no one can understand. She accused her stepson of casting spells on her with sardines and boiled eggs and a plastic baggie placed on top of the trailer. It was stated in hospital paperwork that ‘someone’ is trying to make the [child] sick by putting a baggie of sardines and boiled eggs in to the water while [the mother] was washing the baby’s bottles.
“It was learned that the most recent occurrence of domestic violence was on January 1, 2011 by [the father] and [the mother] where [the father] held [the mother] down and drug [sic] her out of the car by her feet. [K.H.] and [the child] were both present and [K.H.] tried to intervene. [The mother] was holding the [child] some time during the altercation. Police were called but no report was filed. [The mother’s] behavior was volatile at the hospital. Both parents did not understand the risk to children from the domestic violence and their behaviors. They were unable to arrange for third party for safety plan.”

K.H. thanked a DHR caseworker for removing her from the parents’ home because she was scared to be at home with all the fighting between the parents. The mother’s sister took custody of K.H. On January 18, 2011, the child was placed in foster care. He was approximately 18 months old. DHR offered the parents supervised visitation with the child and counseling, but the parents were resistant to working with DHR.

Debra Coffey, a DHR caseworker, identified the services the parents needed in order to be reunited with the child — counseling, psychiatric care, substance-abuse counseling, and drug screens. The parents were not receptive to DHR’s services. The parents either did not show up for the drug screens or refused to take the screens. The father refused counseling because he was receiving counseling through the Department of Veterans Affairs (“the VA”). The VA provided counseling for the father to treat his post-traumatic stress syndrome and' to help him deal with his home life and his anger issues and to teach him how to cope without resorting to violence. The VA required the father to submit to unannounced drug screens at least once a month. The father testified that he had not failed a VA drug screen.

In February 2011, the father, at DHR’s request, was given a'psychological evaluation by Dr. Barry Woods. Dr. Woods found that “no test results ... support the idea that the [father] is prone to violence toward his wife, his children, or others.” Dr. Woods attempted to evaluate the father’s relationship with the child, but the father responded to Dr. Woods’s questions “with excessive defensiveness that rendered [his answers] uninterpretable and invalid.”

Beginning in January 2011, DHR provided the parents services from Transforming Lives, a company that provides in-home parenting-skills training, budgeting classes, and marital counseling and skills training. Although the parents attended visitation with the child during that period, they were not compliant with recommendations or redirection about their parenting skills. The parents often spent their visitation complaining about DHR’s involvement with the family. In July 2011, Michael Goodwin, a counselor at Transforming Lives, supervised the parents’ visitation. Goodwin testified that the child enjoyed the visitation with the parents. Goodwin testified that he did not have any specific issues with the parents’ parenting skills but that there was “room for improvement.” In November 2011, Transforming Lives stopped providing services to the parents because they were resistant to any counseling that was not provided through the VA.

At the end of 2011, DHR referred the parents to counseling with Sherry Brown. The goal was for the parents to begin individual counseling and then to proceed to marital counseling. Brown had three or four individual sessions with each parent. However, Brown did not think the parents would make progress because the father thought he had no need to be there, and she stopped the counseling sessions.

On April 10, 2012, approximately 15 months after the child had been placed in foster care, DHR filed a petition to terminate the parental rights of the parents to the child. In May 2012, a DHR worker reinitiated DHR’s efforts to offer the parents services, including individual counseling, marriage counseling, parenting assistance, and domestic-violence counseling. As before, the parents would agree to participate in such services only through the VA. However, the parents agreed to submit to drug screens, and they participated in the “court-referral program.” The parents tested positive for opiates, but both were taking prescription opiates as part of their mental-health treatment. The parents continued regular visitation with the child.

On October 12, 2012, a DHR worker again told the parents that DHR needed both of them to attend domestic-violence counseling. The father insisted that he would not participate in such counseling unless it was through the VA. After being contacted by a DHR supervisor, the father’s VA caseworker told the father that he should participate in DHR’s counseling program. The father contacted DHR and indicated he wanted to participate in domestic-violence counseling. However, the father never began domestic-violence counseling.

At the time of the trial in March 2013, the mother and the father were living in a rented three-bedroom, one-bathroom house. DHR had no concerns about the physical adequacy of the home. The father received $3,500 a month in VA disability and Social Security income. His expenses were approximately $2,000 a month. The parents did not provide any support for the child after he entered foster care in January 2011. At the time, the parents had been married for 13 years, and the father planned to remain married to the mother.

In late 2012, the father and mother started attending couples counseling in Decatur, where they learned skills to improve their marriage. According to the father, “the most useful thing” that had improved his relationship with the mother was that he now worked out of town and he was no longer at home all day. The father testified that he loved the child and that he would never hurt the child. He testified that he was still being treated by the VA for anger issues but that his VA caseworker would testify that the child was not in danger from the father. The father testified that there had not been a police report of domestic violence filed against him since 1999, when his ex-wife had filed a report. Between late 2011 and mid 2012, the police had responded to two domestic-violence incidents at the parents’ home, but no arrests were made.

On March 8, 2013, the juvenile court held a hearing on DHR’s petition to terminate the father’s and the mother’s parental rights as to the child. On April 18, 2013, the juvenile court entered a judgment terminating their parental rights and found:

“[T]he parents have been noncompliant and/or unable to make improvements to their situation ... [T]he father and mother of the minor child are unable or unwilling to discharge their responsibilities to and for the minor child[,] the conduct or condition [of the parents] is únlikely to change in the foreseeable futureU the child is dependent[,] and there is no viable alternative other than termination of parental rights.”

The mother did not appeal the juvenile court’s judgment. The father timely appealed, and the Court of Civil Appeals affirmed the judgment of the juvenile court without an opinion. This Court granted certiorari review, which it now quashes.

II. Standard of Review

“ ‘The ore tenus rule applies in cases involving termination of parental rights. When the evidence is presented ore tenus, the judgment of the trial court is “presumed correct and will be set aside only if the record reveals the judgment to be plainly and palpably wrong.” ’ ” Ex parte J.R., 896 So.2d 416, 423 (Ala.2004) (quoting G.D.M. v. State, 655 So.2d 1020, 1022 (Ala. Civ.App.1995)). “[The ore tenus] rule does not relieve this Court of its responsibility to ensure that those facts clearly and convincingly warrant the termination of parental rights.” Ex parte T.V., 971 So.2d 1, 9 (Ala.2007). The clear-and-convincing standard requires “an exacting level of certainty based on evidence of the parent’s current situation.” Id. This Court does “ ‘ “not sit in judgment of the facts,” ’ ” but “ ‘ “review[s] the factfinder’s determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law.” ’ ” Id. (quoting Hinds v. Hinds, 887 So.2d 267, 272-73 n. 2 (Ala.Civ.App.2003), quoting in turn Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala.1985)).

III. Analysis

A. Removal of the Child from Parental Custody

Alabama’s juvenile courts have jurisdiction over child-dependency proceedings. § 12-15-114, Ala.Code 1975. Under Alabama law, “[a] child or minor may be taken into [protective] custody ... [pursuant to an order of the juvenile court.” § 12-15-125(a)(l), Ala.Code 1975. The court’s “pickup order” must be supported by a petition that sets forth “with specificity” the facts that bring the child under the juvenile court’s jurisdiction, the facts constituting the child’s alleged dependency, and the facts showing that the child is in need of the care or protection of the State. § 12-15-121(c)(l), Ala.Code 1975.

The child was not dependent His parents were providing “for the care, support, or education of the child,” § 12-15-102(8)2, Ala.Code 1975, and were discharging their “responsibilities to and for the child.” Id. at (8)6. The child was not abused. § 12-15-301(2), Ala.Code 1975 (defining “abuse” as “[h]arm or the risk of harm to the emotional, physical health, or welfare of a child”). There is no evidence indicating that the one incident of alleged domestic violence involved any “harm or the risk of harm” to the child. The parents’ domestic violence was directed toward one another, not the child. The child was not neglected. § 12-15-301(7), Ala.Code 1975 (defining “neglect” as “the failure to provide adequate food, medical treatment, supervision, education, clothing, or shelter”). In fact, DHR’s investigator interviewed the family right after the parents had obtained medical attention for the child.

The child was taken into the State’s protective custody because of the parents’ bizarre behavior, one incident of alleged domestic violence, and the parents’ lack of understanding about the risks of that behavior or violence to the child. The evidence indicates that the mother was able to hand the child to K.H. during the one incident of alleged domestic violence. No member of the family was injured. • In fact, DHR’s “Comprehensive Family Assessment” never stated that the child was directly at risk. Rather, the juvenile court removed the child from his parents because the parents lacked understanding that their bizarre behavior and the alleged domestic violence might put the child at risk. Although I acknowledge that parent-on-parent domestic violence may put children at risk on a variety of levels, a parent’s lack of understanding about the risks of domestic violence, without a demonstration of actual harm or risk to the child, should not vest the juvenile court with jurisdiction over the child.

The parents simply did not understand or comprehend that their conduct might create potential risks for the child. Other than this lack of understanding, they were fit parents. Where there was no evidence of abuse, neglect, or exploitation of the child, the “pickup order” does not make sense, apart from DHR’s mandate to protect children from even the risk of violence.

DHR has the duty to “[s]eek out and prevent or remedy the neglect, abuse or exploitation of children.” Rule 660-1-2-.01(2)(a), Ala. Admin. Code (DHR). DHR has a mandate

“to seek out and aid minor children in the state who are in need of its care and protection, and protective services shall be made available in an effort to prevent further abuse and neglect, and to safeguard and enforce the general welfare of such children.”

Rule 660-5-34-.13(l)(a), Ala. Admin. Code (DHR). DHR’s child-protective-services workers are tasked with

“analyzing parents’ or primary caregivers’ protective capacities; determining to what extent parents or primary caregivers are able and willing to control threats and manage risks; and determining if identified risks are significant enough to warrant on-going services in order to prevent maltreatment.”

Rule 660-5-34-13(4), Ala. Admin. Code (DHR). “Protective capacities” are “parenting/caregiving knowledge and skills; attachment to the children; awareness of and ability to interpret and meet children’s needs; and a willingness and ability to act protectively when the children experience safety threats.” Rule 660-5-34-14(4), Ala. Admin. Code (DHR). Thus, a parent’s lack of “protective capacities,” as determined by DHR’s child-protective-services workers, may be sufficient to warrant the removal of “dependent” children from their parents.

Under Alabama law, the- final definition of “dependent child” is a child “[w]ho, for any other cause, is in need of the care and protection of the state.” § 12-15-102(8)8, Ala.Code 1975 (emphasis added). This “catch-all” definition allows DHR’s child-proteetive-services workers to remove children from their parents for causes undefined by Alabama law, including causes that might never occur. “Any other cause” might include family conditions and circumstances “that threaten child safety” or conditions that “present[ ] a risk of serious harm to the children” and conditions that, “if left unchanged, can cause child abuse/neglect,” or which “are likely to cause abuse/neglect if ongoing services are not provided.” Rule 660-5-34-.14(l)-(2), (6), and (9), Ala. Admin. Code (DHR).

The application of DHR’s mandate to seek out minor children in need of the State’s protection has resulted in the child’s being wrested from his parents because of the parents’ lack of understanding about risks of certain behavior to the children. The juvenile court had no jurisdiction over the minds and understanding of the parents and cannot deprive them of their right to the custody and control of their child in the absence of child abuse, child neglect, or some other criminal offense concerning the child.

One of the legal principles behind Virginia’s Statute for Religious Liberty applies directly in such cases:

“[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all ... liberty, because [the civil magistrate] being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order....”

Virginia Statute for Religious Liberty, January 16, 1786, reprinted in I Documents of American History 126 (Henry Steel Commager, ed.1968). Likewise, I would hold that a juvenile court obtains jurisdiction over a child only when the parents’ lack of understanding actually “break[s] out into overt acts” of abuse, neglect, or some crime against the child. Allowing DHR to intrude its considerable legal powers into the realm of parental opinions and understanding because of a possible risk to a child is a dangerous fallacy and works to destroy the parental rights of parents in Alabama, rights that exist independent of law or organized government, being among those inalienable rights with which parents are endowed by their Creator. Art. I, § 1, Ala. Const. 1901.

B. The Basis for Termination of the Father’s Parental Rights

Allegations of domestic violence against a spouse do not furnish legal grounds for the termination of the spouse’s parental rights. Alabama’s juvenile courts may terminate parental rights only when the evidence is “clear and convincing, competent, material, and relevant in nature.” § 12-15-319(a), Ala.Code 1975. DHR’s “Petition to Terminate [the] Parental Rights” of the father and mother states:

“Neither parent understood that they were putting these children at risk due to their hostile behavior....
“... [N]either parent wás receptive to [DHR] providing counseling services to the family.... [T]he ... father goes to [counseling] appointments but refuses to participate and states that he does not need to be there.
“... The ... father has a history of domestic violence. He has poor coping skills and becomes volatile in stressful situations.
“... [T]he mother does not have the parenting ability to protect the child....
“The minor child is without proper parental care and control necessary for his well being because of the faults of the parents. The parents of said child demonstrate no significant interest in or sense of responsibility toward said child.
“... The parents have refused to adjust their circumstances to meet the needs of the child.
“[DHR] further prays that after the final hearing in this cause, the Court will terminate, permanently, any and all legal rights to the parents of said child as to his custody and grant permanent custody of said child to [DHR].”

(Emphasis added.) The juvenile court’s order reads, in part:

“[T]he parents have been noncompliant and/or unable to make improvements to their situation.... [T]he father and mother of the minor child are unable or unwilling to discharge their responsibilities to and for the minor child; the conduct or condition [of the parents] is unlikely to change in the foreseeable future; the child is dependent; and there is no viable alternative other than termination of parental rights.”

The parents’ ability and willingness to discharge their responsibilities to the child were never questioned until the juvenile court removed the child from his parents. The parents’ alleged noncompliance or inability pertained to their refusal to understand and address their alleged domestic-violence problem to DHR’s satisfaction. No evidence indicates that the child was directly at risk from the parents’ alleged domestic violence.

The father’s psychological evaluation indicates that “no test results ... support the idea that the [father] is prone to violence toward his wife, his children, or others.” The father testified that he loves the child and that he would never hurt him. The father admitted that he was still being treated for “anger issues” by the VA but that his caseworker would testify that the child is not in danger from the father. Although police responded to domestic-violence reports in the family home in 2011 and 2012, no arrests were made and no charges were filed. At trial, the father testified that he had obtained employment and was out of the house during the day, which helped improve the marital relationship. The parents had even attended counseling on their own initiative for several months before the trial.

In addition, the evidence regarding the parents’ ability to parent the child was positive. Michael Goodwin, a counselor at Transforming Lives, stated that he “did not have any specific issues with the mother and the father’s parenting skills” but that there was room for improvement. Goodwin also testified that the parents were willing to improve in this area. The parents maintained visitation with the child during these proceedings.

In sum, the evidence demonstrates that the parents were fit at that time DHR took the child and that they remained fit in many respects at the time of the trial. It appears, however, that the juvenile court terminated the parents’ rights as to the child not because they were bad parents, but because they were bad spouses. This conclusion appears unavoidable from the record and the juvenile court’s order but is simply not supported by the evidence. A man may be a bad husband or a bad parent, but a bad husband is not automatically a bad parent. The evidence does not rise to the level of clear and convincing evidence that would warrant the termination of the parental rights of the parents to the child under § 12 — 15—319(a), Ala. Code 1975, which requires “an exacting level of certainty based on evidence of the parent’s current situation.” Ex parte T.V., 971 So.2d at 9.

TV. Conclusion

I believe that the juvenile court in the first instance lacked legal grounds to order the child taken into protective custody and ultimately lacked the clear and convincing evidence that would provide a legal ground for the termination of parental rights.

      1. The father has three children from a prior marriage.

      . This report was filed by the father’s ex-wife. A protection-from-abuse order was issued against the father in July 1999, but the ex-wife had filed a motion to dismiss the action about six days later.

      . The child was not "dependent” under seven of the eight statutory definitions of "dependent child.” See § 12-15-102(8), Ala.Code 1975.

      . Ex parte G.C., 924 So.2d 651, 677-78 (Ala. 2005) (Parker, J., dissenting) (noting that courts should take judicial notice that "God, not the state, has given parents these rights and responsibilities, and, consequently, that courts should interfere as little as possible with parental decision-making, instead deferring to parental authority whenever it has not been fundamentally compromised by substantial neglect, wrongdoing, or criminal act”).


author: WISE, Justice. MOORE, Chief Justice

text:
    W. David LINDSAY v. BAPTIST HEALTH SYSTEM, INC., d/b/a Shelby Baptist Medical Center.
    1120766.
    Supreme Court of Alabama.
    April 4, 2014.
    Rehearing Denied May 23, 2014.
    Samuel Maples of Maples & Jacobs, LLC, Birmingham, for appellant.
    James R. Bussian and Robert H. Fowlkes of Maynard, Cooper & Gale, P.C., Birmingham; and Lindsay J. Allison of Allison May & Kimbrough, LLC, Birmingham, for appellee.
   WISE, Justice.

AFFIRMED. NO OPINION.

STUART, BOLIN, PARKER, SHAW, MAIN, and BRYAN, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

MOORE, Chief Justice

(dissenting).

W. David Lindsay appeals from a summary judgment entered for Baptist Health System, Inc., d/b/a Shelby Baptist Medical Center (“SBMC”), in his action alleging negligence, wantonness, breach of contract, and defamation. Because I believe that Lindsay has established the existence of genuine issues of material fact, I respectfully dissent from affirming- the summary judgment.

I. Facts and Procedural History

Andy Alexander made a series of harassing prank telephone calls to the emergency department at Shelby Baptist Medical Center on December 12 and 18, 2008, pretending to be Lindsay, an orthopedic surgeon at Shelby Baptist Medical Center. The strange content of the calls should have alerted the hospital that the caller, who succeeded in speaking to one of Lindsay’s patients, was not Lindsay. As a result of the calls, Wilma Scott, a nursing supervisor at the medical center who allegedly harbored a grudge against Lindsay, reported him to hospital management for “possible impairment and potentially inappropriate conversations involving a patient.” Scott committed suicide on January 24, 2009, six weeks after her report triggered the events in this case.

Upon returning from supper on Saturday night, December 13, Lindsay received a telephone call from David Wilson, president of SBMC, who informed him that because of harassing telephone calls he was reported to have made to a patient’s room, Lindsay was being summarily suspended and ordered off the hospital grounds. The following Monday SBMC reported the temporary suspension of privileges to the Alabama Board of Medical Examiners, which reacted by suspending Lindsay’s medical license. On receiving that report, SBMC automatically revoked Lindsay’s privileges at the hospital.

Lindsay immediately sought injunctive relief to restore his medical license and hospital privileges. The Montgomery Circuit Court granted him relief, but his suspension/revocation had lasted about five weeks, causing significant harm to his practice and generating great personal stress and anguish. He explained in his affidavit opposing the motion for a summary judgment:

“[A]s a result of the summary suspension of my hospital privileges and the ensuing suspension of my medical license, I suffered severe financial losses, loss of approximately half of my office support staff, including my surgical assistant of approximately six years; great mental anguish and stress, loss of reputation, a loss of patient referrals, and came close to losing my medical practice. My insurance premium for my medical malpractice insurance coverage almost doubled in cost, and I had a total loss of income in my medical practice located in Alabaster and the Montgomery area for five (5) to six (6) weeks.”

Lindsay amended his original complaint to allege negligence and willful and wanton conduct against SBMC and also breach of contract and defamation. SBMC moved for a summary judgment arguing immunity under federal and state statutes that protect from judicial review documentation and proceedings of peer-review and quality-assurance processes. See §§ 6-5-333, 22-21-8, and 34-24-58, Ala.Code 1975, and 42 U.S.C. §§ 11111 and 11112. Finding that certain documents Lindsay used to prove his case were absolutely immune from disclosure under these statutes, the trial court struck them as inadmissible. The court also struck Lindsay’s affidavit in its entirety as being of no evidentiary value and without further explanation entered a summary judgment for SBMC.

II. Standard of Review

A trial court’s summary judgment is reviewed de novo, and the judgment is given no presumption of correctness. Baldwin v. Branch, 888 So.2d 482, 484 (Ala.2004). A summary judgment is proper when there is “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56, Ala. R. Civ. P.

III. Analysis

SBMC has not contested by affidavit or otherwise Lindsay’s statement of the harm its actions caused him. In any case I am required to accept Lindsay’s version of the facts: “[T]he court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party.” Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). SBMC seeks to bypass Lindsay’s allegations of harm by arguing that it is immune from suit under statutory provisions that shield peer-review and quality-assurance activities. Although SBMC largely treats these statutory provisions as providing absolute immunity from suit, they, in fact, contain substantial qualifications that give rise to factual questions unsuitable for resolution at the summary-judgment stage.

A. Peer-Review Privilege

Section 6-5-333, AIa.Code 1975, states that any physician who serves on a medi-eal-care peer-review committee shall not be liable in damages as a result of “any action taken or recommendation made by him within the scope of his function” on the committee “if such action was taken or recommendation made without malice and in a reasonable belief that such action or recommendation is warranted by the facts made known to him.” § 6-5-333(a) (emphasis added). These statutory qualifications are significant. For the privilege to apply, the trier of fact must determine that the committee acted without malice and on a reasonable fact-based belief.

Alexander made his first prank telephone calls to Shelby Baptist Medical Center on Friday, December 12. Lindsay states that during that evening he “was never contacted by any nurses or employees of SBMC regarding any strange or disturbing phone calls or unusual events regarding the treatment of my patients .... ” His privileges were suspended by Wilson the next evening. The only communication SBMC had with ‘Lindsay before the suspension was a demeaning and accusatory telephone interrogation by the chief of surgery, Dr. Clement Cotter. In his affidavit Lindsay states: “While [I was] speaking to Dr. Cotter, he began asking me extremely unusual questions. Dr. Cotter asked me if I was taking any drugs and also asked me to count backwards from ten, twice, which I did. Dr. Cotter was very accusatory. None of this made any sense to me.”

The shortened time frame in which SBMC made its suspension decision and its failure to seek an explanation from Lindsay raise factual questions as to whether it conducted any investigation at all, let alone a “reasonable” one, before suspending Lindsay’s privileges. Lindsay thus has raised a genuine issue of material fact as to whether the statutory conditions for granting § 6-5-333 immunity exist in this case. Additionally, the statute applies only to individual practitioners who sit on or assist peer-review committees. The statute by its terms does not immunize corporate entities such as SBMC, the defendant in this case.

B. Utilization-Review-Committee Privilege

Section 34-24-58, Ala.Code 1975, protects from legal action the acts of any physicians’ committee of a licensed hospital, but only if the committee’s decisions were made “in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist.” The qualifying phrase raises factual questions that cannot be resolved at the summary-judgment stage in the circumstances of this case. “The qualified immunity, however, is not absolute. In a majority of cases immunity only applies when the investigation is conducted in good faith, without malice, and based upon the reasonable belief that the committee’s action is warranted.” George E. Newton II, Maintaining the Balance: Reconciling the Social and Judicial Costs of Medical Peer Review Protection, 52 Ala. L.Rev. 723, 730 (2001).

C. Quality-Assurance Privilege

Section 22-21-8, Ala.Code, 1975, which privileges from discovery accreditation and quality-assurance materials, states that “[i]nformation, documents, or records otherwise available from original sources” are available for discovery regardless of whether they were “presented or used in preparation” of quality-assurance materials. § 22-21-8(b). Additionally, any person involved in the preparation and review of such materials may still testify “as to matters within his knowledge.” § 22-21-8(b). Section 6-5-333 contains similar qualifications. “Nothing contained herein shall apply to records made in the regular course of business by a hospital ... or records available from original sources” even though “presented during proceedings” of a peer-review committee. § 6-5-333(d).

Thus, state law provides only a qualified privilege for peer-review or quality-assurance material. Apart from the requirements that the hospital committee act in good faith and make a reasonable investigation, information considered in performing the peer-review or quality-assurance function is still discoverable if contained in business records or by direct inquiry to the original source. “[R]ecords made in the regular course of business, exclusive of official committee functions, and otherwise available from their original sources, are discoverable and not privileged.” Ex parte Anderson, 789 So.2d 190, 199 (Ala. 2000). See also Ex parte Krothapalli, 762 So.2d 886, 839 (Ala.2000) (noting that “§ 22-21-8 does not protect information if it is obtained from alternative sources”); Newton, Maintaining the Balance, 52 Ala. L.Rev. at 736 (noting that “peer review statutes protect the work product of a review proceeding, not the underlying substantive evidence”).

In Ex parte Fairfield Nursing & Rehabilitation Center, L.L.C., 22 So.3d 445 (Ala. 2009), this Court held that certain documents were privileged under § 22-21-8 based on a nursing-home affidavit that “the requested documents are not kept in the ordinary course of business and do not become a part of a resident’s medical chart.” 22 So.3d at 454. We noted, however, that those statements were “unopposed.” Id. In this case Claire Owens, Director of Risk Management and Corporate Compliance for SBMC, stated by affidavit that documents relating to the investigation of Lindsay were “not kept by [SBMC] in the ordinary course of business.” Lindsay in his affidavit disagreed. He stated that “[s]ome, if not all of the various documents ... and the audio recordings of calls to the Emergency Department are records kept in the ordinary course of business at the Hospital.”

To establish his personal knowledge of those facts, Lindsay stated that he had been a physician at Shelby Baptist Medical Center since 1993 and that as a trauma surgeon he “learn[ed] firsthand how the emergency room works.”

“I am well aware of the importance of voice recordings on all calls to the emergency room and how these are kept in the normal course of business. As a trauma surgeon, I am also familiar with the business practices of the SBMC emergency room.
“Hospital charts of patients and recorded phone calls to the Emergency Department are regularly kept in the ordinary course of business at SBMC and do not constitute peer review or quality assurance materials.”

Unlike in Fairfield Nursing, the factual averments in this case as to privilege are not unopposed. On the motion of SBMC the trial court struck Lindsay’s affidavit on the basis that “said testimony is supported by neither a factual basis nor personal knowledge sufficient to support the conclu-sory, speculative assertion that the quality assurance materials are not quality assurance materials.” Given the detailed statements in Lindsay’s affidavit based on his many years of personal experience as an emergency-room surgeon at Shelby Baptist Medical Center, I cannot agree that his affidavit is so insubstantial as to warrant being stricken from the record.

D.The Substantial-Evidence Test

Alabama requires a party opposing a summary-judgment motion to offer “substantial evidence” of the existence of a genuine issue of material fact, i.e., “evidence of such quality and weight that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). See also § 12-21-12(d), Ala.Code 1975. “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A fair-minded juror, mindful of Lindsay’s credentials and experience, could reasonably infer that at least some of the documents and recordings are business records that are exempt from the peer-review privilege. The Owens affidavit, in fact, makes no mention of the critical audio recordings of the prank telephone calls as documents not kept in the ordinary course of business. The trial court might have felt that SBMC had the better argument as to the categorization of the evidence and that SBMC’s determination in this regard should be respected. However, “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. To protect Lindsay’s right to a trial by jury all inferences must be drawn in his favor. “All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party.” Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990). “When a genuine issue of material fact exists, the jury must play its traditional role of a factfinder.” Ex parte BASF Constr. Chems., LLC, 158 So.3d 793 (Ala. 2013).

E. Release

In connection with seeking medical privileges at SBMC, Lindsay signed a release in 2008 extending absolute immunity to SBMC “[t]o the fullest extent permitted by law ... for any matter relating to appointment, reappointment, clinical privileges, or my qualifications for the same.” A contractual waiver- of liability that immunizes a party from future intentional tortious conduct is void as against public policy. Reece v. Finch, 562 So.2d 195, 200 (Ala. 1990). See also Barnes v. Birmingham Int’l Raceway, Inc., 551 So.2d 929, 933 (Ala.1989) (holding that “pre-race releases, although valid and consistent with public policy as to negligent conduct, are invalid and contrary to public policy as to wanton or willful conduct”). Because the issue of willfulness in this case is fact-bound and Lindsay has presented evidence from which an inference of willfulness may reasonably arise, immunity based on the release must also await development of the facts.

F. Rule 56(f) Motion

To utilize the original-source exception to the peer-review privilege, Lindsay filed a Rule 56(f), Ala. R. Civ. P., motion for a continuance to depose SBMC employees who had firsthand knowledge of the events at issue. “A typical situation for the application óf Rule 56(f) is where the opposing party cannot present by affidavits facts essential to justify his opposition because knowledge of those facts is exclusively with, or largely under the control of, the moving party.” Griffin v. American Bank, 628 So.2d 540, 542 (Ala.1993). Because the hospital staff who took the prank telephone calls and witnessed their effect have direct knowledge of relevant facts, the trial court should have permitted Lindsay to develop their testimony.

TV. Conclusion

Lindsay has raised triable issues of fact under the relevant statutes as to whether SBMC acted in good faith and conducted a reasonable investigation or indeed any investigation at all before erroneously suspending his privileges and reporting that fact to the medical board. Lindsay’s affidavit also raises a genuine factual question as to whether certain evidence claimed to be privileged is in fact discoverable under the business-records exception. He also is entitled to depose witnesses who have personal knowledge of the relevant facts regardless of whether they provided any information to the hospital about these events.

For the above reasons I respectfully dissent from affirming the trial court’s summary judgment.

      . The underlying action was initially filed in the Montgomery Circuit Court because the Medical Licensure Commission of Alabama was a named defendant. That defendant was dismissed, and, on motion of SBMC, the case was transferred to Shelby County.

      . Similarly the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., provides immunity to a hospital for a "professional review action” if, among other things, the action is taken "after a reasonable effort to obtain the facts of the matter.” 42 U.S.C. § 11112(a)(2).

      . The trial court at the summary-judgment stage may not decide which party is more believable. "[Njeither the trial court nor this Court may undertake credibility assessments in reviewing testimonial evidence submitted in favor of, and in opposition to, a motion for a summary judgment, whereas making such credibility assessments is one of the key functions of the trial jury.” Lyons v. Walker Reg’l Med. Ctr., 868 So.2d 1071, 1077 (Ala.2003).