author: BARNES, J., for the Court: GRIFFIS, P.J., concurring in part and dissenting in part:

text:
    Joe McGINTY and Diane McGinty, Appellants v. GRAND CASINOS OF MISSISSIPPI, INC.-BILOXI, Appellee.
    No. 2012-CA-01777-COA.
    Court of Appeals of Mississippi.
    May 13, 2014. Rehearing Denied Sept. 16, 2014.
    Brandi Denton Gatewood, Springs, David Neil McCarty, attorneys for appellants.
    R. David Kaufman, Jackson, Julie Jarrell Gresham, Taylor Brantley McNeel, Biloxi, attorneys for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   BARNES, J., for the Court:

¶ 1. In this personal-injury case, Joe and Diane McGinty sued Grand Casinos of Mississippi Inc.-Biloxi (Grand Casinos) for negligence and breach of implied warranty of merchantability for serving them unfit food. The trial court granted Grand Casinos' motion for summary judgment, and the McGintys now appeal. We affirm the grant of summary judgment regarding the negligence claim but reverse and remand on breach of warranty.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 20, 2004, the McGintys ate breakfast and a snack for lunch at their home in Brandon, Mississippi, before driving to the Mississippi Gulf Coast, where they were to be guests of the Grand Casinos-Biloxi. They were part of a group of casino patrons for whom the casino had arranged a trip from its Biloxi, Mississippi casino to a casino in Reno, Nevada. That night, they had dinner at LB's Steakhouse at the Grand Casino in Gulfport. They each had prime rib and a glass of wine with dinner, and then they drove to the Grand Casino in Biloxi and checked into their hotel. There, they gambled for several hours and drank more wine, but ate no more food, before going to bed between 10:00 p.m. and midnight.

¶ 3. The McGintys awoke early the next morning and ate breakfast at 5:30 a.m. at the Island View Café inside the Grand Casino-Biloxi. Joe ordered "Mama's Eggs and Chops" which included two grilled pork chops. Joe took a bite of the pork chops, and "didn't like it"; so Diane finished the remainder. She did not remember the pork chops "tasting funny," but Joe did. Then they rode in a limousine provided by the Grand Casino to New Orleans, Louisiana, to catch a flight to Los Angeles, California. They each drank only water in the limousine. In the vehicle, Diane began to feel nauseated. When they arrived at the airport, she experienced diarrhea. About an hour into the flight, Diane began vomiting. Joe, too, began to sweat profusely, feel nauseous, and become incontinent; so the flight attendants gave him oxygen and moved the couple to the back of the plane. Joe vomited and had diarrhea as well. Neither Diane nor Joe ate or drank anything on the airplane.

¶ 4. When the plane landed in Los Angeles, Joe was carried off the airplane on a stretcher by emergency medical technicians. Both Joe and Diane were transported to a local hospital by ambulance. On the way to the hospital, Diane began to vomit a large amount of blood. At a local hospital, Diane received two blood transfusions and had to be treated for an esophageal tear by electrocautery and medication. Joe was discharged from the hospital the same day, but Diane had to stay for three days. Diane stated no tests were taken for food poisoning at the hospital because the physician decided, due to her emergency condition, that he was not concerned about taking the time to run any tests. Upon returning home, Diane saw her family physician, Dr. Wade.

¶ 5. Prior medical records from before the incident from Dr. Wade's office in July 2004, which were entered into evidence, showed Diane suffers from a history of digestive problems. Two months before the alleged food poisoning, Dr. Wade noted Diane suffered from "abdominal pain within 30 minutes after eating which is chronic/recurring frequently, ... [c]rampy/colicky abdominal pain, diarrhea 15-30 minutes after eating which is chronic." Further, Diane indicated in medical records from March 2003 that she had vomited blood in the past, prior to the food-poisoning incident.

¶ 6. On October 18, 2004, Dr. Jerome Helman, her treating physician at the hospital in California during the incident, wrote a letter to Diane and enclosed her medical reports. He stated her "upper gastrointestinal bleeding was caused by the severe vomiting, which related to food and drink [she] had prior to the event."

¶ 7. On September 13, 2007, the McGintys filed suit against Grand Casinos for negligence in serving food improperly prepared, and breach of implied warranty of merchantability for serving food not fit for human consumption. In January 2012, Grand Casinos filed a motion for summary judgment, arguing the McGintys could not meet their burden of proof to establish a food-poisoning claim under Mississippi law because the McGintys did not present any lab analyses proving their illnesses were caused by tainted food eaten at the Grand Casinos, and offered insufficient medical expert testimony on causation. After a hearing, the trial court granted Grand Casinos' motion for summary judgment. The trial court opined that "the Mississippi Supreme Court has rejected the use of circumstantial evidence in food[-]poisoning cases," citing Goodwin v. Misticos, 207 Miss. 361, 42 So.2d 397 (1949), which the trial court found "virtually identical" to the present case. The trial court concluded that the McGintys failed to meet their burden of proof in establishing their claims. The McGintys timely appealed, raising one issue: whether the trial court applied an improper summary-judgment standard. The McGintys admitted they only provided circumstantial evidence, but argue it was sufficient to defeat summary judgment.

¶ 8. We find the trial court's conclusion, as it pertains to the negligence claim, was proper because there was no genuine issue of material fact as to whether Grand Casinos breached its duty of care. Therefore, we affirm the judgment as to that claim.

¶ 9. However, we disagree with the trial court's conclusion with respect to the claim for breach of implied warranty of merchantability, finding there is sufficient evidence to allow a jury to reasonably infer the food consumed by the McGintys at the Grand Casinos' restaurant caused their illness. Therefore, we reverse the trial court's judgment and remand, as there is a genuine issue of material fact as to that claim.

STANDARD OF REVIEW

¶ 10. The standard of review for a trial court's grant or denial of summary judgment is de novo. Waggoner v. Williamson, 8 So.3d 147, 152 (¶ 11) (Miss.2009) (citing One S., Inc. v. Hollowell, 963 So.2d 1156, 1160 (¶ 6) (Miss.2007) ). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (citing M.R.C.P. 56(c) ). Stated differently, "where the non-movant fails to establish the existence of an essential element of that party's claim," summary judgment is appropriate. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (¶ 4) (Miss.2008). A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Id. (quoting M.R.C.P. 56(e) ). "[T]he evidence must be viewed in the light most favorable to the party against whom the motion has been made." Waggoner, 8 So.3d at 152 (¶ 11). "The moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact." Id. at 152-53 (¶ 11).

DISCUSSION

A. The Trial Court's Findings

¶ 11. In its conclusions of law, the trial court did not analyze the negligence and breach of implied warranty of merchantability claims separately, but appeared to combine them as one "food poisoning" claim under a negligence standard. The trial court found Goodwin particularly relevant and controlling, holding that Mississippi law requires "definitive proof of food poisoning which cannot be inferred from circumstantial evidence." Its order stated that for the McGintys to succeed on their claims, they were "required to (1) present evidence" that the food "was infected by poisonous bacteria," which could only be established by a chemical analysis, and (2) to provide evidence that the bacteria got into the food through a lack of care by Grand Casinos. The trial court also held that the McGintys must "present expert medical testimony to establish proximate causation, and the expert medical testimony must be based on more than just the history provided by the [McGintys]." The trial court concluded that the McGintys must provide, "[a]t a minimum, ... concrete evidence[,]" including laboratory tests linking the illness to the bacteria in the food, and that the McGintys' "case [was] based on speculation and conjecture."

B. Goodwin v. Misticos

¶ 12. The trial judge heavily relied on the facts of Goodwin, claiming they were "virtually identical" to the present case. We find Goodwin's facts analogous, but not identical. In Goodwin, a husband and wife both became violently ill after eating corned beef at a restaurant two hours earlier. Goodwin, 207 Miss. at 371, 42 So.2d at 398. The husband was diagnosed with ptomaine poisoning and died as a result of his illness. Id. at 369, 42 So.2d at 397. The wife filed suit, alleging an inference of negligence could be drawn from the following evidence: the plaintiffs ate the corned beef at the restaurant, and the wife said it "doesn't taste right"; they became ill one and one-half hours later; the treating physician testified that ptomaine poisoning was the cause of the illnesses; and ptomaine poison is carried by eating food or drinking water. Id. at 379-80, 42 So.2d at 402-03.

¶ 13. The Goodwin court held:

[A] plaintiff, in order to recover, must, assuming that the action is not one for breach of warranty, establish carelessness or negligence on the part of the restaurant keeper, for to shift the burden upon mere proof of the injury would in effect impose the liability of an insurer upon the defendant.

Id. at 373, 42 So.2d at 399 (quoting 22 Am. Jur. 888 § 102) (emphasis added). As to the burden of proof, the Goodwin court further stated:

[T]he Court must assume as true everything which the evidence establishes either directly or by reasonable inferences [,] which the jury might reasonably draw from such evidence.... However, in the application of this last above mentioned rule, while the jury may accept a fact as true from testimony tending to establish that fact, and while the law may also reasonably infer another fact from a fact accepted as true, yet the rule extends no further, and it is not permitted to presume another fact from a fact presumed. A presumption cannot arise from another presumption.

Id. at 374-75, 42 So.2d at 400 (citations omitted). Thus, the Goodwin court held that for the standard of proof required in negligent-food-poisoning cases, "inference upon inference" will not be permitted when the facts sought to be established are "capable of more satisfactory proof by direct, or positive or demonstrative, evidence." Id. at 377, 42 So.2d at 401-02 (quoting Masonite Corp. v. Hill, 170 Miss. 158, 167, 154 So. 295, 298-99 (1934) ).

¶ 14. The Goodwin court upheld the directed verdict in favor of the defendant restaurant. Applying the Masonite principles, it noted that the question of whether the husband ate or drank anything between the time he ate the corned beef and the time he saw his physician (two days later) and was diagnosed with ptomaine poisoning "was a fact capable of direct and demonstrative proof." Id. at 377-78, 42 So.2d at 402. Second, the presence of "poisonous bacteria" in the corned beef "was also one capable of direct and demonstrative proof by a chemical analysis." Id. at 378, 42 So.2d at 402. Finally, the fact of whether bacteria got into the meat "through lack of the required care on the part of the restaurateur [was] also capable of direct and demonstrative proof[.]" Id. The Goodwin court concluded that based on the facts, no inference upon inference would be permitted "that the bacteria got into the food or drink as a result of the negligence of the restaurateur." Id. at 380, 42 So.2d at 403.

¶ 15. However, what Goodwin does not say is that reasonable inferences may never be drawn in food-poisoning cases.

[N]egligence can arise only from failure to perform a duty owing to the injured person, and before there can be a recovery here against the restaurateur by Mrs. Goodwin, it must appear from the testimony, or by a reasonable inference, that can be reasonably drawn from the evidence that the appellees failed to perform the duty they owed to their customer, Mr. Goodwin.

Id. (emphasis added). Rather, it is only when those inferences are so attenuated ("inference upon inference") that more direct and satisfactory proof is required.

¶ 16. Further, the Goodwin court does not state that chemical analyses are always required in such cases. What the court actually said was: "From the proof the jury could reasonably find: (1) That Mr. Goodwin ate the corned beef; (2) in one and one-half hours he became ill; and (3) from these two proven facts the jury could reasonably infer there was a germ in the corned beef that made him sick. " Id. at 379, 42 So.2d at 402 (emphasis added). The court made this statement despite there being no "chemical analysis" of the corned beef.

¶ 17. Finally, the Goodwin court clearly stated that the case was "not framed on any implied warranty that the food was wholesome and free from infection and fit for human consumption," nor did Mrs. Goodwin sue on implied warranty. Id. at 369, 388, 42 So.2d at 398, 407 (emphasis added). Therefore, the Court declined to rely on cases involving implied warranty, as "[t]hey have no application here." Id. at 370, 42 So.2d at 398. "The picture drawn in this opinion is upon the law of negligence and its appropriate action sounding in tort. This will throw all of the law of suits upon implied warranties, and their appropriate action sounding in contract, beyond the borders of our discussion picture." Id. at 373, 42 So.2d at 399.

ANALYSIS OF CLAIMS

I. Negligence

¶ 18. The McGintys make several arguments regarding their claim of negligence: "definitive proof" is not needed; the cases cited by the trial court are factually distinguishable; and this Court should apply caselaw from other jurisdictions that hold circumstantial evidence is sufficient to survive summary judgment. We find these arguments without merit.

¶ 19. Under a negligence theory, the plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) breach of that duty; (3) damages; and (4) that the breach was the proximate cause of the damages sustained by the plaintiff. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988). Specifically, Goodwin emphasizes that to establish negligence in food-poisoning cases, the plaintiff must prove by a preponderance of evidence that the food was tainted "through lack of the required care on the part of the restaurateur...." Goodwin, 207 Miss. at 378, 42 So.2d at 402.

In order to hold the operator of a restaurant liable for an injury to his customer, sustained by serving to him food not suitable for human consumption, it must be shown that the restaurateur in the selection, preparation, cooking or serving of the food so injuring the customer did not use that degree of care which a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table.

Id. at 374, 42 So.2d at 400. "[N]egligence can arise only from failure to perform a duty owing to the injured person, and before there can be a recovery ... against the restaurateur by [the plaintiff], it must appear from the testimony, or by a reasonable inference, that can be reasonably drawn from the evidence that the [restaurateur] failed to perform the duty they owed to their customer...." Id. at 380, 42 So.2d at 403. Regarding food served at a restaurant, the burden of proof "is upon the person bringing the action to establish carelessness or negligence"; otherwise, the restaurateur would be considered an insurer, which the Goodwin court found improper for negligence actions. Id. at 382, 42 So.2d at 404.

¶ 20. With respect to the claim of negligence, Mississippi law requires the McGintys prove the casino served tainted food because it failed in its duty of care regarding the preparation of the food. "[N]egligence can arise only from failure to perform a duty owing to the injured person...." Goodwin, 207 Miss. at 380, 42 So.2d at 403. The McGintys asserted that the following circumstantial evidence created a sufficient causal link to avoid summary judgment for negligence: (1) they tasted a pork chop at a Grand Casinos' restaurant, and Joe thought it tasted bad; (2) hours after tasting the pork chop, they experienced vomiting and diarrhea; and (3) over three weeks after they experienced these symptoms, a physician wrote Diane a letter, stating her prior symptoms were "related to food and drink [she] had prior to the event."

¶ 21. We agree with the trial court that, based on Goodwin, the evidence is insufficient to support the McGintys' claim of negligent food poisoning. Just as in Goodwin, we cannot make "inference upon inference" that the food or drink, which allegedly made the McGintys sick, was tainted as a result of the casino's negligence. Merely showing that the McGintys ate pork chops at the casino café, and they both became sick, is insufficient to establish negligence. Any other outcome would make the restaurant an insurer. See Goodwin, 207 Miss. at 382, 42 So.2d at 404. Therefore, the McGintys' negligence claim fails as a matter of law. Accordingly, the trial court's grant of summary judgment was appropriate for the negligence claim, and we affirm the judgment in part.

II. Breach of Implied Warranty of Merchantability

¶ 22. The McGintys argue that there is a genuine issue of material fact regarding their claim of breach of implied warranty of merchantability. We agree. Regarding implied warranty of merchantability, the Mississippi Code provides in pertinent part:

[A] warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

Miss.Code Ann. § 75-2-314(1) - (2) (Rev.2002).

To recover for breach of an implied warranty, the plaintiff must establish: (1) the defendant was a merchant which sold goods of the kind involved in the transaction, (2) that the defect was present when the product left the defendant's control, and (3) the injuries to the plaintiff were caused proximately by the defective nature of the goods.

CEF Enters. Inc. v. Betts, 838 So.2d 999, 1003 (¶ 15) (Miss.Ct.App.2003).

The Uniform Commercial Code ... makes it clear that the serving for value of food, to be consumed either on the premises or elsewhere, is a sale that gives rise to the implied warranty of merchantability. The implied warranty of a restaurant owner under the Code is that the food served to the customers is wholesome, contains no deleterious substance, and is fit for human consumption.

18 Williston on Contracts § 52:89 (4th ed.).

¶ 23. As already noted, the trial court did not analyze the negligence and breach-of-implied warranty-of-merchantability claims separately. The supreme court in Goodwin made it clear that the case did not concern a claim of breach of implied warranty of merchantability and stated that proof of the fact that the plaintiffs ate the alleged tainted food and were sick a short time later could allow a jury to "reasonably infer" that the meat was infected. See Goodwin, 207 Miss. at 379, 42 So.2d at 402. The court made this finding despite there being no chemical analyses of the meat and despite questioning the timing of the physician's examination of Goodwin.

Yet Grand Casinos contends that the plaintiffs must establish causation by expert testimony based upon more than the history provided by the patient. The Goodwin court did not indicate what part the physician's testimony played in its conclusion that the jury could reasonably infer the illness was caused by a "germ" in the corned beef. In fact, Grand Casinos cites Goodwin for the proposition that the physician's testimony is insufficient. Insufficient to prove negligence, yes; but not necessarily insufficient to prove causation.

¶ 24. From our review of the cases cited by the parties, and our own research, we conclude that no one element or type of evidence is controlling. Each case must be reviewed based upon a myriad of factors, with the ultimate determination being whether, based upon the unique facts of that case, a jury could reasonably infer the food was the cause of the plaintiff's illness.

¶ 25. A most detailed analysis of the type of evidence required in food-poisoning cases is found in Sarti v. Salt Creek Ltd., 167 Cal.App.4th 1187, 85 Cal.Rptr.3d 506 (2009). In that case, a panel of the California Court of Appeals was deciding whether to follow the rationale of a different panel in Minder v. Cielito Lindo Restaurant, 67 Cal.App.3d 1003, 136 Cal.Rptr. 915 (1977). The Sarti court agreed that proof of food poisoning " 'must go further' than mere after-the-restaurant illness." (i.e., "post hoc, ergo propter hoc," or "after the fact, therefore because of the fact"). Sarti, 85 Cal.Rptr.3d at 512. However, it disagreed with the "strong implication in the Minder analysis that food[-]poisoning cases are somehow unique in tort law," and asserted that food-poisoning cases require the basic elements of proof as other tort actions. Id. at 517. The court further observed that the "ideal factual situation" to prove food poisoning would involve these four elements:

[S]imultaneous illness of a group of people who eat the same food at the same time, all "patients" manifesting classic food poisoning symptoms, prompt investigation of suspect food (like potato salad left out too long), and "microscopic examination" of that food, which might show, for example, a staph infection, and which would correlate with the same infection sustained by the plaintiff.

Id. (citing 4 Frumer & Friedman, Products Liability § 48.06[2], p. 48-24). But it recognized that this type of ideal situation "will not always present itself to a court," noting such reasons as the plaintiff's recovery "to the point where recovery of the pathogenic bacteria is no longer possible and ... the food may not be available for bacteriological study, besides which, often doctors may decide that the illness is not serious enough to warrant the expense of such an investigation." Id. (quotations omitted). The court, therefore, rejected any implication in Minder that "reasonable inferences" cannot be employed to prove a plaintiff's case involving food poisoning ( Id. at 518.), but recognized that food-poisoning cases, "just as any other personal injury cases, often depend on expert testimony." Id. (quoting Frumer, § 48.06[3] ). Further, a plaintiff need not rule out all other possible causes of the illness in a food-poisoning case to prove causation, but must provide sufficient evidence to reasonably support the judgment. Id. at 518-19.

¶ 26. In Sarti, the appellate court reversed the trial court's grant of judgment notwithstanding the verdict to the restaurant on the breach-of-warranty claim and remanded for reinstatement of the patron's $3.25 million jury verdict ($725,000 in economic and $2.5 million in non-economic damages). The court found that while there was "plenty of substantial evidence" on which the jury could have based a verdict for the restaurant (friend who split the tuna appetizer did not get sick; restaurant's "great pains" to separate raw tuna from raw chicken to prevent cross-contamination and possibility that plaintiff, a supermarket checker, could have picked up the bacteria at work), it did not do so. Id. at 509. The plaintiff presented evidence that while the type of bacteria that caused her illness was not found in tuna, unless there had been cross-contamination with raw chicken, a report prepared by the health department a little less than a month after her meal identified four practices by the restaurant that could lead to cross-contamination. Id. The appellate court found that the type of expert testimony which linked the particular kind of food poisoning experienced by the plaintiff to a particular kind of health violation attributable to the restaurant distinguished the case from Minder, where there was no testimony making this link, and from cases where there was a positive exoneration of the defendant's food by the health department. Id. at 512, 522. The court noted that the restaurant "cited no substantial evidence requiring a finding " that the patron picked up the bacteria while checking groceries or by some other method; rather the court recalled that "it is the winning party after a jury trial, not the losing party, who gets the benefit of reasonable inferences from the evidence." Id. at 524.

¶ 27. As to evidence of taste or smell, the Supreme Court of Washington has noted:

Testimony that food, when eaten, tasted bad has in some cases been given considerable weight in justifying a conclusion that such food was in fact unfit for human consumption. And conversely, at least where there was no direct evidence that the food was unwholesome, a lack of testimony showing the food tasted bad, or that it had the appearance of being unfit for human consumption, or that it had a bad odor, had been recognized at least as being some indication that the food was not in fact unwholesome.

Geisness v. Scow Bay Packing Co., 16 Wash.2d 1, 132 P.2d 740, 747 (1942) (internal citations omitted). The Geisness court held that while the plaintiff is "not bound to exclude every other possibility of cause for her illness, she was required to show by the evidence a greater likelihood that her illness resulted from unfitness or unwholesomeness of the food served to her by the defendant, rather than from a cause for which the defendant would not be liable." Id. (quoting Miller v. W.T. Grant Co., 302 Mass. 429, 19 N.E.2d 704, 705 (1939) ). The court reversed the wrongful-death judgment against the manufacturer of canned salmon where there was no testimony that the salmon had any peculiar odor, appearance, or taste; three of the five persons who ate from the can did not become ill; there was no bacteriological examination made of the excreta or vomitus; there was no evidence that the deceased was afflicted with a type of food poisoning commonly found in canned fish; and there was no evidence of what the deceased had eaten that day or the preceding day. The death certificate listed lobar pneumonia as the cause of death, but the treating physician opined that food poisoning was a contributing cause. The manufacturer, however, put on expert testimony that the symptoms exhibited by the deceased were not characteristic of either ptomaine poisoning or botulism, the two most common types of food poisoning, but were consistent with a virulent type of lobar pneumonia. Based upon these factors, the court found insufficient evidence to warrant a holding that the salmon eaten by the deceased caused her illness. Id. at 743-745, 748.

¶ 28. Grand Casinos relies heavily upon Doss v. NPC International, Inc., No. 4:09CV38, 2011 WL 754891 (N.D.Miss. Feb.24, 2011). In Doss, the United States District Court for the Northern District of Mississippi granted the defendant restaurant's summary-judgment motion on the negligence claim by nineteen individuals from a church group who became ill within one hour of eating chicken wings and pizza at the restaurant. The group had been fasting and had eaten nothing since the midnight before. Id. at *1. The court based its holding, in part, on the fact that no expert testimony regarding causation was provided and the plaintiffs' treating physician only offered testimony provided to the treating physician by the plaintiffs. The medical records showed there was no conclusive diagnosis of food poisoning for any of the nineteen plaintiffs. Many of the plaintiffs just wanted to be "checked out" for food poisoning at the emergency room. One plaintiff was found to be pregnant, and another was diagnosed with "hysteria" after being exposed to undercooked food. The court determined that "[t]o conclude that [p]laintiffs suffered from gastroenteritis at the hands of undercooked food prepared by the [d]efedant would be speculative at best." Id. at *3. However, in addition to the lack of definitive diagnosis from the physician, the health department had tested the chicken that allegedly caused the plaintiffs' symptoms "but found it to be untainted"; and the health department report further noted that the bacteria that produce toxins that can cause gastrointestinal illness with a short incubation period are not the typical bacteria found in raw chicken. Id. at *2.

¶ 29. Two cases from the Southern District of Mississippi reached differing results. In L.W. ex rel. Ware v. Tyson Foods, Inc., No. 1:10cv330-LG-RHW, 2011 WL 3476574 (S.D.Miss. Aug.9, 2011), the United States District Court for the Southern District of Mississippi denied the defendants' motion for summary judgment in the breach-of-warranty case brought on behalf of a minor who became ill after eating the defendants' hamburger meat. The evidence showed that the only food eaten by the minor before becoming ill was the hamburger meat; he became ill the night he ate the hamburger; his grandfather ate the hamburger and also became ill; and the minor eventually went to the hospital, where a stool culture tested positive for campylobacter bacteria and steptococcus pyogenes/Beta Group A. The district court found a genuine dispute of material fact as to whether the hamburger meat was defective despite the defendants' argument that the hamburger meat was not tested and the minor had "unspecified 'stomach problems' " prior to the current illness. Id. at *1-3.

¶ 30. In Forehand v. Ryan's Family Steak House, Inc., No. A.103CV672WJGMR, 2005 WL 1523381 (S.D.Miss. June 28, 2005), on the other hand, the United States District Court for the Southern District of Mississippi granted the restaurant's motion for summary judgment in a food-poisoning case where the plaintiff became ill after eating chicken wings as part of a Fathers' Day dinner. He had not noticed anything unusual about the wings when he ate them; he became sick the following day and did not go to the hospital for treatment until Thursday, when he was found to have salmonella poisoning. He did not have a sample of the wings for testing and knew of no other person who became ill after eating at the restaurant that day. The district court stated that "[p]roximate cause may be proven by the circumstances of a case if the circumstances permit a reasonable inference of a cause of injury for which the defendant is responsible, and excludes equally reasonable inferences of other causes for which the defendant is not responsible." The court found nothing other than the plaintiff's belief that the wings were the source of his illness and his physician's opinion formed from the history provided by the plaintiff himself. Id. at *1-4.

¶ 31. Based upon all of the factors, cited in the above cases, we conclude that a jury could reasonably infer that the pork chops caused the McGintys' illness. The McGintys purchased and consumed food (the "goods" or "product") prepared and sold by Grand Casinos (the "merchant") at the café. There is circumstantial evidence from which a jury could reasonably infer that the food was "defective." The McGintys both became sick shortly after eating breakfast at the café. Joe commented that the pork chops "tasted funny," and quit eating them after one bite, but Diane finished the chops. The McGintys did not eat anything else after this meal, and became sick shortly after their breakfast, and had not eaten anything else since dinner the night before. Dr. Helman wrote that Diane's illness was "related to food and drink" she had prior to the onset of the illness. Joe also testified that he had worked in the "food business" and the "incubation time for certain bacteria" was within the length of time he became ill. While Diane did have some preexisting gastrointestinal issues, both Diane and her husband became sick at the same time, and after eating the same food. Similar to Goodwin, the timing of the illnesses implies that the "germ" was in the food the McGintys had just eaten; in contrast to Doss, Grand Casinos has not provided any evidence exonerating its product as untainted or indicating that the McGintys' symptoms do not correspond to the type that would have occurred had the germ been in the pork chops.

¶ 32. We find there is sufficient circumstantial evidence to establish a reasonable inference the McGintys' illness was caused by tainted meat and to create a genuine issue of material fact for breach of implied warranty of merchantability. Accordingly, the trial court's grant of summary judgment for this claim was improper, and we reverse in part and remand for further proceedings consistent with this opinion.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEE.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, J.

GRIFFIS, P.J., concurring in part and dissenting in part:

¶ 34. I would affirm the grant of summary judgment. Therefore, I concur with the majority's decision to affirm summary judgment as to the negligence claim and dissent from the decision to reverse and remand summary judgment as to the claim of breach of implied warranty of merchantability.

¶ 35. In Karpinsky v. American National Insurance Co., 109 So.3d 84, 88-89 (¶ 11) (Miss.2013), the supreme court discussed the de novo review of a summary judgment:

[I]n a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.

(Internal citations and quotation marks omitted). I am of the opinion that the McGintys did not make a showing sufficient to establish the existence of an element essential to their claim for implied warranty of merchantability. As a result, I believe the summary judgment was proper.

¶ 36. Under Mississippi Code Annotated section 75-2-314, the McGintys must prove: "(1) the Casino was a merchant which sold goods of the kind involved in the transaction, (2) that the defect was present when the product left the Casino's control, and (3) [Plaintiffs'] injuries were proximately caused by the defective nature of the goods." Thomas v. HWCC-Tunica, Inc., 915 So.2d 1092, 1094 (¶ 12) (Miss.Ct.App.2005). The trial court determined that, in a food-poisoning case, the McGinty's were required to:

1. present evidence that the food eaten at Grand Casinos "was infected by poisonous bacteria" which can be established only "by a chemical analysis" of the matter;
2. present expert testimony to establish proximate causation between the food at issue and the McGintys' alleged illnesses; and
3. present evidence that the "poisonous bacteria got into" the food through lack of the required care on the part of Grand Casinos.

(Citing Goodwin v. Misticos, 207 Miss. 361, 42 So.2d 397, 402 (1949) ). The trial court then held that the McGinty's failed to prove their case.

¶ 37. The McGintys offered the following undisputed material facts prove proximate cause:

1. The McGintys tasted a pork chop at a Grand Casinos' restaurant. Mr. McGinty thought the taste was bad.
2. Hours after tasting the pork chop, the McGintys experienced symptoms of vomiting and diarrhea.
3. Over three weeks after the McGintys experienced these symptoms, a physician wrote Mrs. McGinty a letter that stated her prior symptoms were "related to food and drink you had prior to the event."

¶ 38. In Thomas, this Court affirmed the grant of summary judgment on a breach-of-implied-warranty claim. Thomas, 915 So.2d at 1094 (¶¶ 12-13). We reasoned that "the Thomases produced no evidence that there was a defect in the prime rib when it was served to her. In fact, there is no evidence beyond mere speculation that the toothpick was in the prime rib." Id. at (¶ 12).

¶ 39. The McGintys may not prevail on their food-poisoning claim under an implied-warranty-of-merchantability theory. They failed to offer any evidence that the pork chops served by Grand Casinos were "defective" at the time of the sale. Mr. McGinty said the pork chops "tasted funny," even though his wife continued to eat them. Further, the McGintys did not offer any evidence that the defective condition of the pork chops was a proximate cause of their alleged injuries.

¶ 40. I find that the trial court correctly granted summary judgment on the implied-warranty-of-merchantability claim. I would affirm the grant of summary judgment.

CARLTON, J., JOINS THIS OPINION.

      The trial court explained that prior to Hurricane Katrina, LB's Steakhouse was located at the Grand Casinos-Gulfport, not Biloxi (which is a separate legal entity). The McGintys only filed their complaint against Grand Casinos-Biloxi; they make no claim the food they ate at LB's caused them to become ill.

      In Masonite, the plaintiff claimed he was burned by poisonous elements in creek water and "sought to establish these poisonous elements in the water by inference." Goodwin, 207 Miss. at 375, 42 So.2d at 400. The Masonite court declined to recognize the rule "so stated" that inference may not be based upon inference but instead determined that "in allowing inference upon inference, we should do so no further than the reasonable necessities of the case, in the interest of justice, require." Masonite, 170 Miss. at 167, 154 So. at 298. It noted that if the party "who has the burden of proof, has the power to produce evidence of a more explicit, direct, and satisfactory character than that which he does introduce and relies on, he must introduce that more explicit, direct, and satisfactory proof[.]" Id. Otherwise, he "suffer[s] the presumption that, if the more satisfactory evidence had been given, it would have been detrimental to him and would have laid open deficiencies in, and objections to, his case, which the more obscure and uncertain evidence did not disclose." Id. The court concluded the presence of poisonous elements in the water "was a fact capable of direct and demonstrative proof by a chemical analysis of a sufficient sample of the water taken from the place where the alleged injury occurred and within a reasonable time thereafter [,]" noting the State's access to chemical experts who could make such an analysis. Id. at 167-68, 154 So. at 298.
      Appellee, having the burden of proof, did not take this essential step, essential to the safe and satisfactory administration of justice, and, with a chain of inferences elongated and weakened by so many links as is the chain here, the presumption raised by that failure must be adjudged to turn the scales of judicial decision in favor of appellant. In other words, and to sum up what we have said, we shall allow in this jurisdiction the establishment of a case by inference upon inference so long as the ultimate inference, measured by legal standards, is without too much doubt, a safe and dependable probability; but no such inference upon inference will be permitted to prevail when the fact sought to be established by such inference upon inference is capable of more satisfactory proof by direct, or positive or demonstrative, evidence, within the reasonable power of the party holding the burden to produce. In thus prescribing, we secure the administration of justice in a more dependable way, and at the same time reconcile our holding with the real weight of authority.
      Id. at 168, 154 So. at 298-99 (emphasis added).

      The Goodwin court continued, however, that any further inference (i.e., that the germ "got into the corned beef through a negligent violation of ... duty by the restaurant keeper") could not be drawn. Id. at 378-79, 42 So.2d at 402-03.

      The McGintys also argue that because the trial court based its decision on "ancient" pre-Rules of Civil Procedure cases such as Goodwin and John Morrell & Co. v. Shultz, 208 So.2d 906 (Miss.1968), which required "definite proof" to support food-poisoning claims, "the standard used by the trial court was too high." They also claim these cases are misguided regarding the summary judgment standard and inapplicable. We disagree. The trial court applied the proper standard when considering Grand Casinos' motion for summary judgment regarding the McGintys' negligence claim-Mississippi Rule of Civil Procedure 56.

      Dr. Copeland was unable to attend to Goodwin for almost two whole days after Goodwin ate the corned beef, due to a sprained ankle of his own. The court noted that fact, along with the lack of evidence of what Goodwin consumed in the interval, as factors in the weak chain of inferences in that case.

      In fact, in Rytter v. Parthenides, 53 Misc.2d 649, 279 N.Y.S.2d 690, 693 (N.Y.Civ.Ct.1966), the court dismissed the negative laboratory results as "not ... helpful" where, by the time the plaintiff arrived at the hospital, hours after the onset of his illness of vomiting and diarrhea, the stool sample was watery. Instead, the court concluded that (1) the plaintiff's testimony that the only meal he ate the day he became ill was at the defendant restaurant, (2) the plaintiff's further testimony that all the meals he ate the prior day were at home with his family and no one became ill, (3) the plaintiff's lack of history of illness, and (4) the physician's opinion that the cause of the plaintiff's illness was food eaten in the restaurant, were sufficient to find in favor of the plaintiff's claim of breach of implied warranty. Id.

      Doss cited Shultz, 208 So.2d 906, for the proposition that medical opinions based strictly on the history related by the patient are insufficient to establish causation. Doss, 2011 WL 754891 at *2. In that case, the supreme court reversed the jury verdict for plaintiff who became ill after eating canned potted meat. Finding the evidence insufficient to support the verdict, the court noted that the plaintiff had "noticed nothing unusual about the appearance, taste, or odor of the potted meat"; neither the product nor the can was examined by the plaintiff or the doctor; so that the entire case rested upon the plaintiff's testimony as to what she thought caused her illness and the doctor's opinion based upon the history of the illness related to him by the plaintiff. Schultz, 208 So.2d at 907. On cross-examination, the physician had admitted that the gastroenteritis "could just as easily have resulted from other foods" the plaintiff had eaten or from a viral infection. Id.


source: Caselaw Access Project

license: Public Domain

text:
    Maria MOYERS v. BALDWIN MUTUAL INSURANCE CO. et al.
    1131074
    Supreme Court of Alabama.
    March 17, 2017
    Affirmed.


text:
    LOGAN'S ROADHOUSE, INC. v. GANAWAY CONTRACTING CO.
    1150288
    Supreme Court of Alabama.
    February 17, 2017
    Affirmed.


text:
    BAYER RETAIL CO. v. EASTWYNN THEATERS, INC., and Carmike Cinemas, Inc.
    1130681
    Supreme Court of Alabama.
    February 10, 2017
    Reh. denied.


text:
    Kimberly BALTIMORE v. Jon Byron NELSON et al.
    1150078
    Supreme Court of Alabama.
    January 13, 2017
    Reh. denied.


text:
    WHITE-SPUNNER CONSTRUCTION, INC., and Hartford Fire Insurance Co. v. J & J LAND DEVELOPMENT, INC.
    1150330
    Supreme Court of Alabama.
    March 10, 2017
    Affirmed.


text:
    Lucinda Pickett ROBINSON v. ESTATE OF Joseph ROBINSON
    1150458
    Supreme Court of Alabama.
    January 20, 2017
    Affirmed.


text:
    William NIXON v. MOVIE GALLERY, INC., et al.
    1150390
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    DEVAN LOWE, INC. v. Bobby Lee LEDBETTER and Ledbetter Enterprises, LLC
    1150359
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    CLARK CONSTRUCTION, INC., of Mississippi v. PHOENIX BLOCK CO. et al.
    1150464
    Supreme Court of Alabama.
    March 10, 2017
    Affirmed.


text:
    EX PARTE Jimmy Dean WALKER
    1150635 (CR-14-1099)
    Supreme Court of Alabama.
    March 3, 2017
    Writ of cert. quashed.


text:
    EX PARTE DURA OPERATING, LLC, et al.
    1150498
    Supreme Court of Alabama.
    February 17, 2017
    Mand. pet. denied.


text:
    Robert LEDBETTER and Angie Ledbetter v. BANK OF AMERICA N.A.
    1150476
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    Janice MORTON-HUNTE et al. v. AIRMONT PROPERTIES OWNERS ASSOCIATION et al.
    1150562
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    MCKELVEY MECHANICAL, INC., and Gregory Derrick Moore v. Michael DUEY
    1150770
    Supreme Court of Alabama.
    March 10, 2017
    Affirmed.


text:
    EX PARTE TRAVELERS INDEMNITY CO. of Connecticut
    1150872
    Supreme Court of Alabama.
    2-17-2017
    Mand. pet. denied.


text:
    EX PARTE CONTINENTAL MOTORS, INC.
    1150839
    Supreme Court of Alabama.
    January 20, 2017
    Mand. pet. denied.


text:
    Calvin MASSEY v. STATE
    1150636
    Supreme Court of Alabama.
    January 13, 2017
    Reh. denied.


text:
    Estevernico MITCHELL v. Darryl HAMILTON, M.D., et al.
    1150758
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    Pauline ANDERS and Ferrell S. Anders v. FAIRHOPE SINGLE TAX CORP.
    1150879
    Supreme Court of Alabama.
    March 10, 2017
    Affirmed.


text:
    Roger WATTS v. EXCHANGE BANK OF ALABAMA
    1150934
    Supreme Court of Alabama.
    February 10, 2017
    Affirmed.


text:
    Eric E. BENNETT v. KWS MANUFACTURING CO., LTD.
    1150918
    Supreme Court of Alabama.
    February 10, 2017
    Affirmed.


text:
    Robert S. PETERS and Bethanie Peters v. CHICAGO TITLE INSURANCE CO.
    1150974
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    EX PARTE Stephen P. ST. CLAIR
    1150983
    Supreme Court of Alabama.
    March 17, 2017
    Mand. pet. denied.


text:
    EX PARTE Jeremy Lawrence BAKER
    1151051 (CR-15-0359)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Darryl J. DIXON
    1151081 (CR-14-1078)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    Jacob ALVESTAD v. Bruce HALL
    1151023
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    Jacob ALVESTAD v. CHICAGO TITLE INSURANCE CO.
    1150975
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    Robert S. PETERS and Bethanie Peters v. Bruce HALL
    1151022
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    EX PARTE Robin Renee Eslinger SMITH
    1151124 (2150328)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Michael Davis WILLIAMS
    1151107 (CR-15-0677)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    BAYJOHN OWNERS ASSOCIATION, INC. v. ABG CAULKING CONTRACTOR, INC., and American Constructors, Inc.
    1151150
    Supreme Court of Alabama.
    March 10, 2017
    Affirmed.


text:
    EX PARTE K.W.
    1151147 (2150015)
    Supreme Court of Alabama.
    January 20, 2017
    Writ of cert. quashed.


text:
    ESTATE OF Paul D. KELL v. UNION STATE BANK
    1151113
    Supreme Court of Alabama.
    January 13, 2017
    Affirmed.


text:
    EX PARTE Willie Joe GRANT
    1151179 (CR-15-0499)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE CONTINENTAL MOTORS, INC.
    1151260
    Supreme Court of Alabama.
    February 17, 2017
    Mand. pet. denied.


text:
    CITY OF FAIRFIELD v. GRACE & PEACE PIZZA CO.
    1151198
    Supreme Court of Alabama.
    February 10, 2017
    Dismissed.


text:
    Avner KADOSH v. MONTGOMERY INVESTMENTS, LLC, et al.
    1151298
    Supreme Court of Alabama.
    February 10, 2017
    Affirmed.


text:
    Mike GRANT et al. v. BRELAND HOMES, LLC, et al.
    1151279
    Supreme Court of Alabama.
    February 10, 2017
    Affirmed.


text:
    EX PARTE Joshua Michael THOMAS
    1151207 (2150384)
    Supreme Court of Alabama.
    January 20, 2017
    Writ of cert. quashed.


text:
    John JOHNSON v. Twala Grant WALLACE
    1160051
    Supreme Court of Alabama.
    March 10, 2017
    Affirmed.


text:
    EX PARTE NEXTGEAR CAPITAL, INC.
    1160061
    Supreme Court of Alabama.
    February 17, 2017
    Mand. pet. denied.


text:
    EX PARTE C.J.
    1160039 (2150654)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    Darren MCCRARY v. CENTRAL PLANT TECHNOLOGY, INC.
    1151331
    Supreme Court of Alabama.
    February 10, 2017
    Affirmed.


text:
    EX PARTE Raymond Shane GREENE
    1160011 (CR-15-0288)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE S.R.A.
    1160103 (CR-15-0910)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Harrinda SMITH and Marion Street
    1160134 (2150760)
    Supreme Court of Alabama.
    3-17-2017
    Cert. denied.


text:
    EX PARTE Buddy Lee CRAFT
    1160119 (CR-15-0678)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Eric Andre JAMES
    1160128 (CR-15-0776)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Lisa Michelle LYONS
    1160142 (2150480)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Christopher Allan ELKINS
    1160117
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Rondrez Allen BARKER
    1160141 (CR-15-0684)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Deverett Lavon MACK
    1160153 (CR-15-0752)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE T.G.
    1160155 (CR-15-0876)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Deangelo Jarrod HUDSON
    1160156 (CR-15-0873)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Carlton Rayman EDWARDS
    1160152 (CR-15-0414)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Mesiah ABERCROMBIE
    1160173 (CR-14-1742)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Gregory Rayshon SPANN
    1160154 (CR-15-0312)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    FT. MITCHELL MHP, LLC, and Ft. Mitchell Managing, LLC v. PHILLIPS INVESTMENT PROPERTIES, LLC
    1160199
    Supreme Court of Alabama.
    3-10-2017
    Affirmed.


text:
    EX PARTE Victor Joseph RUSSO
    1160205 (2150435)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Milton HAMBRIGHT
    1160204 (CR-15-1379)
    Supreme Court of Alabama.
    2-10-2017
    Cert. denied.


text:
    EX PARTE William Lawrence CROSBY
    1160180 (CR-16-0019)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Bobby Gene MILES
    1160176 (CR-15-1244)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE Anthony TROTTER
    1160181 (CR-15-0934)
    Supreme Court of Alabama.
    January 13, 2017
    Cert. denied.


text:
    EX PARTE G & R MINERAL SERVICES, INC.
    1160211 (2150335)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Christopher Jarrod LEE
    1160213 (2150350)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE James Edward PRESSLEY
    1160207 (CR-15-0777)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Tommy BRYANT
    1160208 (2150352)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE DIVERSIFIED SOURCING SOLUTIONS, INC., and FrankCrum, Inc.
    1160209 (2150341)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Eric J. CHAMBERLIN
    1160215 (2150447)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE J.L.R.
    1160240 (2150805)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Kelvin Leon YOUNG
    1160247 (CR-15-1151)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Laranden Dewayne PERRY
    1160253 (CR-15-1313)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Adam Troy HALEY
    1160225 (CR-15-0546)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Joey A. GRIZZELL
    1160257 (CR-15-1253)
    Supreme Court of Alabama.
    2-10-2017
    Cert. denied.


text:
    EX PARTE Ronald Odell KING
    1160258 (CR-15-1234)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Kenneth Leon MORROW
    1160289 (CR-15-1207)
    Supreme Court of Alabama.
    3-10-2017
    Cert. denied.


text:
    EX PARTE Susie Lee MCLEMORE
    1160276 (CR-15-0977)
    Supreme Court of Alabama.
    3-10-2017
    Cert. denied.


text:
    EX PARTE Petro Deran PUGH
    1160285 (CR-15-1033)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Deandre COOPER
    1160295 (CR-15-1323)
    Supreme Court of Alabama.
    3-10-2017
    Cert. denied.


text:
    EX PARTE Tristan D. WILLIAMS
    1160277 (CR-15-1023)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Dee PARKS
    1160278 (2150686)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Xavier Lamon WATSON
    1160296 (CR-15-0540)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Ricky VARNER
    1160300 (CR-15-1120)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE M.G.
    1160301 (2150823)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Edmond Kennies BURKE
    1160303 (CR-15-1469)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Raheem Deontay RAMSEY
    1160298 (CR-15-1121)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE A.T.E.
    1160302 (2150751)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Bryant James ANDERSON
    1160313 (CR-15-1058)
    Supreme Court of Alabama.
    3-10-2017
    Cert. denied.


text:
    EX PARTE Vantwain LaShun STOKES
    1160305 (CR-15-0887)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Donna Rae INGRAM
    1160310 (2150792)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE ROBINSON FAMILY LIMITED PARTNERSHIP et al.
    1160311 (2150618)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Shicolbe Devol BELL
    1160304 (CR-15-1052)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Andre Legay WALLACE
    1160314 (CR-15-1324)
    Supreme Court of Alabama.
    February 10, 2017
    Cert. denied.


text:
    EX PARTE Melvin RAY
    1160318 (CR-15-1118)
    Supreme Court of Alabama.
    3-17-2017
    Cert. denied.


text:
    EX PARTE David T. HUGHES
    1160321 (CR-15-0541)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Jimmy D. MCKLEROY
    1160319 (CR-15-1271)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Rodney BOWDEN
    1160316 (CR-15-0817)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Darrell WIMBERLY
    1160328 (CR-15-1228)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Cecil Madison FERGUSON
    1160332 (CR-15-0980)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Vernon MADISON
    1160340 (CR-15-0931)
    Supreme Court of Alabama.
    3-17-2017
    Cert. denied.


text:
    EX PARTE Rehan HANIF
    1160343 (CR-15-0100)
    Supreme Court of Alabama.
    March 17, 2017
    Cert. denied.


text:
    EX PARTE Vincent Lovelace LOWE
    1160346 (CR-14-1239)
    Supreme Court of Alabama.
    3-10-2017
    Cert. denied.


text:
    EX PARTE Alexius Rhamon FOSTER
    1160347 (CR-15-0435)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Danny Lewis SMITH
    1160345 (CR-15-1420)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Wayne Demetric PERRY
    1160341 (CR-15-0955)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Brandon Jamal RYLES
    1160362 (CR-14-0381)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Austin Jeremy BOBO
    1160370 (CR-15-0960)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Steven CRENSHAW
    1160357 (CR-15-1220)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Johnathan Michael HOANG
    1160358 (CR-15-1134)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Barry VAN WHITTON
    1160371 (CR-15-0333)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Sidney BAKER
    1160365 (CR-15-1022)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Orlando Samuel MCKEITHEN
    1160387 (CR-15-1218)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Tony WILLIAMS
    1160379 (CR-15-1109)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Daniel STENNIS
    1160377 (CR-15-1111)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


text:
    EX PARTE Jessie RIGGS
    1160398 (CR-15-0707)
    Supreme Court of Alabama.
    March 10, 2017
    Cert. denied.


author: PARKER, Justice.

text:
    Roger D. FIRESTONE v. Carl WEAVER
    1151211
    Supreme Court of Alabama.
    August 11, 2017
    William Eugene Rutledge, of Rutledge & Yaghmai, Birmingham; and John T. Natter of Natter & Fulmer, P.C., Birmingham, for appellant.
    Joshua B. Sullivan of Knowles & Sullivan, LLC, Gadsden; Ralph K. Strawn, Jr., of Strawn & Robertson, LLC, Gadsden; W. Scears Barnes, Jr., of Barnes & Radney PC, Alexander City; and Jay Elton Stover of Stover Law Firm, Fairhope, for appellee.
    On Application for Rehearing
   PARKER, Justice.

This Court's opinion of May 12, 2017, is withdrawn, and the following is substituted therefor.

Roger D. Firestone sued Carl Weaver, Charles Tooley ("Tooley"), L.C. Collins, Jr. ("L.C."), and Mickie Wayne Collins ("Mickie") (hereinafter collectively referred to as "the defendants"), alleging that the defendants conspired to and did brutally assault and batter and attempt to murder Firestone and seeking damages. Firestone appeals from a summary judgment entered by the Coosa Circuit Court in favor of Weaver dismissing Firestone's claims against Weaver as barred by the applicable statutes of limitations.

Facts and Procedural History

Firestone's deposition testimony indicates that Firestone, Chuck Amberson, and Daryl Coleman frequented a hunting cabin they had built in Coosa County ("the hunting cabin"). According to Firestone's deposition testimony, Amberson and Coleman regularly smoked crystal methamphetamine at the hunting cabin, a supply of which they kept in "a hiding place somewhere" at the hunting cabin.

In a statement Tooley gave the Coosa County Sheriff's Department after he was apprehended for the offense and after waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Tooley indicated that Weaver knew that there was "a bunch of crystal meth" at the hunting cabin. Tooley said in his statement that Weaver took Tooley to the area where the hunting cabin was located to show him where the cabin was and urged Tooley to return to the cabin to steal the crystal methamphetamine. According to Tooley's statement, Weaver gave Tooley $600 "for expenses" and Tooley recruited L.C. and Mickie to help him steal the crystal methamphetamine.

Firestone's deposition testimony indicates that, on May 16, 1995, Firestone, Amberson, and Coleman were at the hunting cabin when Tooley, L.C., and Mickie arrived. L.C. and Mickie restrained Firestone, Amberson, and Coleman and questioned them about the location of the crystal methamphetamine and any cash they may have had. Coleman gave L.C. and Mickie the crystal methamphetamine, and Firestone, Amberson, and Coleman gave L.C. and Mickie all the cash they had. According to Firestone's deposition testimony, L.C. and Mickie did not believe that Firestone, Amberson, and Coleman had given them all the crystal methamphetamine and cash in their possession. L.C. and Mickie then doused the hunting cabin and Firestone, Amberson, and Coleman with kerosene and set the hunting cabin, with Firestone, Amberson, and Coleman restrained inside, on fire. Firestone, Amberson, and Coleman suffered substantial injuries as a result of being burned in the fire; Amberson and Coleman eventually died from their injuries. Tooley, L.C., and Mickie were eventually charged with various crimes arising out of the events described in Firestone's deposition testimony; all three men ultimately pleaded guilty to the charges in 2010.

On February 23, 2000, D.B. Matson, a deputy state fire marshal employed by the Alabama Department of Insurance, created a report concerning the incident. Matson's report states that, on June 10, 1996, Christi Coleman Hicks, who was married to Coleman at the time of the incident, informed an Alabama Bureau of Investigation ("ABI") agent investigating the case that "she heard that L.C...., Stanley Tooley, and ... Tooley did the burning in Coosa County." Matson's report further indicates that Tooley told another individual "that he and his brother [Stanley] did the crime." Matson's report states that "Tooley was picked up by an undercover police officer ... and questioned about this incident."

Firestone's deposition testimony indicates that, in 2007, Firestone's son told Firestone that he had heard rumors that in 1995 Tooley had stolen the same amount of crystal methamphetamine that had been stolen from the hunting cabin on May 16, 1995. Firestone informed the ABI officers investigating the case what Firestone's son had told him concerning Tooley. Firestone's deposition testimony indicates that the ABI officers told him that they were going to investigate the information Firestone's son had heard concerning Tooley.

Affidavit testimony of Eddie Whorton, Betty Cheney, Brian Farley, and Christi Coleman Hicks was presented by Weaver. Whorton's affidavit testimony states that he "was an acquaintance of ... Amberson and ... Firestone" and that,

"in 1995, approximately five months after the incident [at the hunting cabin] which resulted in the deaths of ... Amberson and ... Coleman and injury to ... Firestone, I obtained information from a female friend that ... Tooley was one of the individuals that perpet[r]ated the deaths and injuries. I obtained pictures of ... Tooley taken at a wedding from this friend and took them to ... Firestone. I showed the pictures of ... Tooley to [Firestone] and he identified him as one of the assailants. I then contacted Roy Harbin, who was a local law enforcement officer and provided him with the information. I have knowledge that Roy Harbin talked to [Firestone] after this and even put ... Tooley in a line-up for ... Firestone."

In his deposition testimony, Firestone confirmed that in 1995 Whorton had shown him a picture of Tooley and that Whorton told Firestone that Tooley "knew something about" the incident. Firestone also confirmed in his deposition testimony that he had met with Roy Harbin and that Harbin had Firestone look at Tooley in a room to determine if Tooley was one of Firestone's assailants.

Cheney's affidavit states that she was married to Firestone at the time of the incident but that they divorced in 1998. Cheney's affidavit further states:

"3. Sometime between 1995 to 1996, ... Firestone was called in for a meeting with Roy Harbin for the purpose of attempting to identify ... Tooley from a lineup. Roy Harbin specifically questioned ... Firestone about ... Tooley's involvement. After the meeting, ... Firestone explained that he was not able to identify [Tooley]. In response, [Firestone] explained to me that Roy Harbin responded that ... Tooley was the guy who did it and he just let him go.
"4. In late 1997 to spring 1998, I received a telephone call from a Kristy Hollingsworth. During this call, Ms. Holling[s]worth informed me that she knew what happened to [Firestone] in Coosa County. She gave me specific names of people that she claimed to be involved, including ... Tooley ..., L.C...., [and] Mickie .... The caller told me that it was ... Tooley who did it. ... She also said that ... Weaver was involved. ... I made contemporaneous hand-written notes of this phone conversation.
"5. At a later date, I passed along my notes to ... Firestone in anticipation of one of his meetings with the ABI investigators."

Farley's affidavit states that he "was a close friend" of Coleman's and that he knew Firestone. Farley's affidavit states that he "had heard information that the perpetrators of this incident were Mickie ..., ... Tooley and L.C." Farley's affidavit further states that in 1995 he informed an ABI investigator of the information he had received concerning Tooley's, L.C.'s, and Mickie's involvement in the incident. According to his affidavit testimony, Farley also informed Firestone while Firestone was in the hospital recovering from the injuries he suffered in the fire of the information he had received concerning Tooley's, L.C.'s, and Mickie's involvement in the incident.

Hicks's affidavit indicates that Farley also told her of the information he had received concerning Tooley's, L.C.'s, and Mickie's involvement in the incident. Hicks's affidavit does not indicate that she passed this information along to Firestone.

In August 2010, Tooley, L.C., and Mickie pleaded guilty to the attempted murder of Firestone. On August 20, 2010, Firestone filed a complaint against the defendants and several fictitiously named parties, seeking damages on claims of conspiracy, the tort of outrage, assault and battery, and attempted murder. Although Weaver was not present at the hunting cabin, Firestone alleged that he organized and funded the incident. Recognizing that a question might exist as to whether his action was barred by the applicable statutes of limitations, Firestone averred in his complaint:

"On August 9, 2010, Tooley, [Mickie], and [L.C.] pleaded guilty to attempted murder of [Firestone]. It was not until this date that [Firestone] discovered the identity of the [individuals] who had attacked him because of the fraudulent concealment of the conspiracy and the identity of the conspirators. [Firestone] avers that despite diligent efforts, he could not discover the identity of his attackers before August 9, 2010. [Firestone] has since August 9, 2010, further discovered the identity of Defendant [Carl] Weaver and his role in this matter. [Firestone] avers that none of the acts of [the defendants] are barred by the statute of limitations. [Firestone] avers that this action is brought against [these individuals] within the time allowed by Alabama law for bringing an action following discovery of facts which have been fraudulently concealed by defendants. [Firestone] further avers that any otherwise applicable statute of limitations has been equitably tolled until the reasonable efforts of [Firestone] to discover the identity of [these individuals] and that [Firestone] has brought this action in the time allowed by law following such discovery. [Firestone] further avers that no statute of limitations is applicable to this case under Alabama law because it is an action for damages for maiming and attempted murder with the relevant facts of the identity of [the defendants] deliberately concealed as a part of a conspiracy by [the defendants] to maim and murder [Firestone] and others."

On September 24, 2010, Weaver filed a motion to dismiss Firestone's complaint. On July 21, 2011, the circuit court denied Weaver's motion to dismiss. On the same day, the circuit court entered an order concerning Tooley and L.C., which stated: "[H]aving been served with process in this action, and the time for answering having passed, this action will be dismissed as to [Tooley and L.C.] unless [Firestone] shall, within 21 days, initiate default." The circuit court also entered a separate order noting that Mickie had died and dismissing him from the lawsuit; no motion requesting that a representative of Mickie's estate be substituted as a party had been filed at that time.

On August 4, 2011, Firestone filed applications for default judgments against Tooley and L.C. On August 10, 2011, the circuit court entered an "order entering default," which states: "Default is hereby entered against defendants L.C. ... and ... Tooley. [Firestone] may submit a proposed order for consideration." The circuit court's August 10, 2011, order did not assess damages against Tooley or L.C. and specifically requested that Firestone submit a proposed order doing so.

After the circuit court denied Weaver's motion to dismiss, Weaver filed a motion for a permissive appeal pursuant to Rule 5, Ala. R. App. P. This Court granted Weaver permission to appeal the circuit court's denial of his motion to dismiss. Weaver v. Firestone, 155 So.3d 952, 954 (Ala. 2013) (" Weaver I"). In Weaver I, we stated the following concerning Weaver's motion to dismiss:

"Weaver filed a motion to dismiss Firestone's complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., and §§ 6-2-34 and 6-2-38, Ala. Code 1975. In his motion, Weaver argued that Firestone's claims were barred by the applicable statutes of limitations and that no tolling provision precluded the application of the time-bars. Specifically, Weaver argued that neither the discovery rule of § 6-2-3, Ala. Code 1975, nor the doctrine of equitable tolling was applicable to Firestone's claims.
"After conducting a hearing on Weaver's motion to dismiss, the trial court denied the motion. The trial court specifically noted that Firestone 'alleges in the complaint that he made diligent efforts to discover the identity of his assailants, but could not do so until they pleaded guilty and implicated Weaver.' "

155 So.3d at 956.

On appeal, this Court determined that Firestone had "alleged facts that would support the conclusion that equitable tolling is applicable in the present case." 155 So.3d at 968. Accordingly, this Court affirmed the circuit court's denial of Weaver's motion to dismiss, and the case proceeded in the circuit court.

On February 5, 2015, Weaver filed a motion for a summary judgment. Weaver argued, as he did in his motion to dismiss, that Firestone's claims against him were barred by §§ 6-2-34 and 6-2-38(l ), Ala. Code 1975. Weaver also argued in his summary-judgment motion that neither the discovery rule of § 6-2-3, Ala. Code 1975, nor the doctrine of equitable tolling applied to save Firestone's claims from the bar of the applicable statutes of limitations. Weaver argued that, even if the doctrine of equitable tolling applied, the statutes of limitations should have begun running when Firestone met with Harbin for the purpose of identifying Tooley as one of Firestone's assailants, i.e., in 1995 or 1996, or at the latest in 2007-when Firestone received information from his son indicating that Tooley had been involved in the theft of the crystal methamphetamine from the hunting cabin and possibly in the assault and battery of Firestone.

On May 19, 2015, the circuit court denied Weaver's summary-judgment motion. The circuit court determined that Firestone "was presented with evidence as would place a reasonable person on notice that Tooley was one of those who committed the assault on Firestone." Specifically, the circuit court determined that the information Firestone received from his son concerning Tooley's involvement "would place a reasonable person on notice as of 2007 (the year in which Firestone's son presented him with the ... information regarding Tooley)." The circuit court further stated:

"[T]his court determines that a reasonable person in the exercise of due diligence would have followed up on Firestone's son's 2007 information in an effort to confirm its accuracy. There is no indication that Firestone took any ... action other than to report this information to the Alabama Bureau of Investigation."

Accordingly, the circuit court held that the six-year statute of limitations set forth in § 6-2-34, which the circuit court determined applied to all of Firestone's claims against Weaver, began to run on an unspecified day in 2007. The circuit court concluded that Firestone's claims against Weaver were thus not barred by the applicable statute of limitations because Firestone filed his action against Weaver within six years of 2007.

On June 5, 2015, Weaver filed a petition for a writ of mandamus with this Court challenging the denial of his summary-judgment motion. We denied Weaver's petition by order of the Court, without ordering answers and briefs. Ex parte Weaver (No. 1140946, July 13, 2015).

On April 5, 2016, after conducting further discovery, Weaver filed a second motion for a summary judgment. In support of his second summary-judgment motion, Weaver submitted, among other things, the affidavits of Whorton, Cheney, Farley, and Hicks summarized earlier in this opinion.

Weaver argued that the facts set forth in his evidentiary submissions were substantial evidence that Firestone had information in 1995 or 1996 that Tooley was involved in the incident at the hunting cabin. On May 16, 2016, Firestone filed a response to Weaver's summary-judgment motion.

On July 14, 2016, the circuit court granted Weaver's second summary-judgment motion. After summarizing the relevant evidence before it, the circuit court stated:

"This Court finds that the foregoing facts 1) would place a reasonable person on notice that at least one of the named Defendants in this action was one of those persons who had committed the assault which is the basis of this action, 2) were presented to [Firestone] no later than 1996, and 3) are uncontroverted.
"The previously tolled statute of limitations as to [Firestone's] claims against Defendants and fictitious parties, began to run no later than the end of 1996, expired no later than December 31, 2006, and [Firestone] did not file suit against any defendant until August 20, 2010.
"It is therefore considered and ordered as follows:
"1. [Weaver's] motion for summary judgment is granted and [Firestone's] claims against Defendant Carl Weaver [are] hereby dismissed with prejudice.
"2. This order granting summary judgment in favor of Defendant Weaver and against [Firestone] renders all other pending motions moot, and all previous orders setting motion hearings are hereby withdrawn.
"3. Defendant Weaver being the only represented Defendant in this action and the only Defendant to have filed any pleadings in this action, therefore, pursuant to authority of Rule 54(b)[, Ala. R. Civ. P.], there being no just reason for delay, the Court directs the entry of the foregoing as a final judgment."

Firestone appealed.

Discussion

Although neither party has raised the issue of the appropriateness of the circuit court's Rule 54(b), Ala. R. Civ. P., certification of its July 14, 2016, summary-judgment order, this Court may consider that issue ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is a jurisdictional one. See, e.g., Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala. 1978) (noting that "the trial court cannot confer appellate jurisdiction upon this court through directing entry of judgment under Rule 54(b) if the judgment is not otherwise 'final' ").

Rule 54(b) states, in pertinent part:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

This Court has recently explained the standard for reviewing Rule 54(b) certifications:

" ' "If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment." Baugus v. City of Florence, 968 So.2d 529, 531 (Ala. 2007).
" 'Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against [the defendant in this case], thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court's conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding.'
" Centennial Assocs. v. Guthrie, 20 So.3d 1277, 1279 (Ala. 2009). Reviewing the trial court's finding in Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006), that there was no just reason for delay, this Court explained that certifications under Rule 54(b) are disfavored:
" 'This Court looks with some disfavor upon certifications under Rule 54(b).
" ' "It bears repeating, here, that ' "[c]ertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely." ' State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala. 1987) ). ' " 'Appellate review in a piecemeal fashion is not favored.' " ' Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003) ] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala. Civ. App. 1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala. Civ. App. 1996) ) (emphasis [omitted] )."
" ' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004).'
"In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether 'the issues in the claim being certified and a claim that will remain pending in the trial court " 'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.' " ' Schlarb, 955 So.2d at 419-20 (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs., 20 So.3d at 1281 (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required 'resolution of the same issue' as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala. 2008) (concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues)."

Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala. 2010).

Firestone asserted his four claims (conspiracy, tort of outrage, assault and battery, and attempted murder) against each of the defendants and claimed that the defendants were "separately and severally" liable for the entirety of his damages. Firestone's claims against all the defendants arise out of the same set of facts. Although Tooley and L.C. have not filed a pleading in response to Firestone's complaint, any appeal they may file in the future from a judgment against them in this case would concern the same facts that are the basis of Firestone's claims against Weaver.

This Court stated in Smith v. Slack Alost Development Services of Alabama, LLC, 32 So.3d 556, 562-63 (Ala. 2009) :

"In Centennial Associates, Ltd.[ v. Guthrie, 20 So.3d 1277 (Ala. 2009) ], we stated that ' "[i]t is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties." ' 20 So.3d at 1281 (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998) ). Repeated appellate review of the same underlying facts would be a probability in this case, and, in light of this Court's stated policy disfavoring appellate review in a piecemeal fashion, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004), we accordingly hold that the trial court exceeded its discretion in certifying the judgment entered against [one of the defendants] as final pursuant to Rule 54(b)."

In the present case, there is a probability of "[r]epeated appellate review of the same underlying facts." Smith, 32 So.3d at 562. It appears that the circuit court may yet enter a final default judgment against Tooley and L.C. Tooley and L.C. will then have an opportunity to appeal.

Firestone's claims against them "are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results." Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987). We conclude that the piecemeal adjudication of the claims against the defendants poses an unreasonable risk of inconsistent results.

Further, we are not ignorant of the fact that, until the claims against Tooley and L.C. are finally adjudicated, there remains the possibility that they may file a responsive pleading raising the affirmative defense of the statute of limitations. Assuming they do so, the facts regarding when Firestone's claims against Weaver accrued, when the applicable statute of limitations pertaining to Firestone's claims against Weaver began to run, and if the applicable statute of limitations pertaining to Firestone's claims against Weaver were tolled would also be relevant to any statute-of-limitations defense asserted by Tooley and/or L.C.

The issue whether Firestone's claims against Weaver are barred by the applicable statutes of limitations-which is the issue raised in this Court-is the same issue that could be raised in the circuit court by Tooley and/or L.C., if the circuit court were to set aside its entry of default and they were to file a responsive pleading asserting the affirmative defense of the statute of limitations. In such an event, "the issues in the claim being certified and a claim that will remain pending in the trial court ' "are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results." ' " Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala. 2002), quoting in turn Branch, 514 So.2d at 1374 ).

Conclusion

Based on the foregoing, we conclude that the circuit court exceeded is discretion in certifying the summary judgment in favor of Weaver as final. Because "[a] nonfinal judgment will not support an appeal," Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004), Firestone's appeal must be dismissed.

APPLICATION OVERRULED; OPINION OF MAY 12, 2017, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

Stuart, C.J., and Bolin, Shaw, Wise, and Sellers, JJ., concur.

      As explained in greater detail below, this is not the first time these parties have appeared before this Court. See Weaver v. Firestone, 155 So.3d 952 (Ala. 2013), and Ex parte Weaver (No. 1140946, July 13, 2015).

      Section 6-2-34, Ala. Code 1975, requires that an action "for any trespass to person or liberty, such as ... assault and battery," be commenced within six years. Section 6-2-38(l ), Ala. Code 1975, requires that "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years."

      The circuit court's August 10, 2011, order finding Tooley and L.C. in default for failing to file a responsive pleading is not a final judgment, but an " 'interlocutory default judgment.' " Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 896 (Ala. 2005) (quoting Ex parte Keith, 771 So.2d 1018, 1019 (Ala. 1998) ). In Ex parte Family Dollar, this Court provided the following explanation of the application of Rule 55, Ala. R. Civ. P., in such situations:
      "Rule 55, Ala. R. Civ. P., 'Default,' provides, in pertinent part, as follows:
      " '(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.
      " '(b) Judgment. Judgment by default may be entered as follows:
      " '(1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not a minor or incompetent person.
      " '(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor ... If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury pursuant to the provisions of Rule 38.
      " '(c) Setting Aside Default. In its discretion, the court may set aside an entry of default at any time before judgment. The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.'
      "Thus, Rule 55 envisions a two-step process pursuant to which the clerk of the court first enters the party's default and a 'judgment by default' is then entered, either by the clerk or the court, depending upon the nature of the claim. Pursuant to subsection (c), the court may set aside 'an entry of default' at any time, in its discretion, before a judgment by default is entered and may also set aside, under the time limitations specified in that subsection, the 'judgment by default.' Accordingly, it is probably helpful to talk in terms of an entry of 'default' and an entry of a 'judgment by default,' respectively, to differentiate between the two events. Rule 55(b)(2) provides that where a default has been entered, but 'in order to enable the court to enter judgment ..., it is necessary to ... determine the amount of damages ... the court may conduct such hearings ... as it deems necessary and proper....' This Court has referred to the interim 'judgment' entered in such a situation as 'an interlocutory default judgment.' Ex parte Keith, 771 So.2d 1018, 1019 (Ala. 1998). 'A judgment by default with leave to prove damages is interlocutory and can be set aside at any time until entry of judgment on assessment of damages. It then becomes a final judgment.' Maddox v. Hunt, 281 Ala. 335, 339, 202 So.2d 543, 545 (1967). 'A default judgment that reserves the assessment of damages is interlocutory and may be set aside at any time; once the trial court assesses damages on the default judgment, the judgment becomes final. Rule 55(c), Ala. R. Civ. P.; Maddox v. Hunt, 281 Ala. 335, 202 So.2d 543 (1967).' Keith v. Moone, 771 So.2d 1014, 1017 (Ala. Civ. App. 1997), rev'd on other grounds, Ex parte Keith, [ 771 So.2d 1018 (Ala. 1998) ]."
      906 So.2d at 896 (emphasis added).
      Until the circuit court enters a judgment assessing damages against Tooley and L.C., the circuit court may set aside its "interlocutory default judgment" at any time and allow Tooley and L.C. to litigate the claims against them.

      As noted in footnote 3, it is within the circuit court's discretion to set aside its "interlocutory default judgment" any time before it enters a final judgment of default.