author: CARLTON, J.,

text:
    Mark A. KING a/k/a Mark King a/k/a Mark Siegfried King a/k/a Mark S. King, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00904-COA
    Court of Appeals of Mississippi.
    05/30/2017

      MADISON COUNTY CIRCUIT COURT, JOHN HUEY EMFINGER, J.
    ATTORNEY FOR APPELLANT: MARK A KING (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Mark King entered a guilty plea to the charge of possession of counterfeit bank notes or other instruments. The Madison County Circuit Court sentenced King to ten years in the custody of the Mississippi Department of Corrections (MDOC) and ordered him to pay court costs, fees, and assessments in the amount of $498.50. King filed a motion for postcon-viction relief (PCR), arguing that his indictment was defective for failing to provide him with notice of the amount of counterfeit bank notes in his possession, and as a result, his sentence was unconstitutional. After reviewing the record and King’s PCR motion, the circuit court denied King’s requested relief and dismissed his PCR motion. King now appeals. Finding no error, we affirm the circuit court’s dismissal of King’s PCR motion.

FACTS

112. On August 14, 2014, a Madison County grand jury indicted King for possession of counterfeit bank notes or other instruments in violation of Mississippi Code Annotated section 97-21-37 (Rev. 2006) (Count I), and conspiracy to possess a counterfeit instrument in violation of Mississippi Code Annotated section 97-1-1 (Rev. 2006) (Count II).

¶3. On November 17, 2014, King entered a plea of guilty to Count I, possession of counterfeit bank notes, and Count II was nolle prossed. On December 8, 2014, the circuit court sentenced King to serve ten years in the custody of the MDOC and to pay court costs, fees, and assessments in the amount of $498.50.

¶ 4. On April 15, 2016, King filed a PCR motion, arguing that his indictment was defective for failing to provide him notice of the monetary value of the counterfeit bank notes he was charged with possessing. King further submitted that no proof was offered in the indictment as to the face amount of those notes. King also claimed that his sentence exceeded the maximum authorized by law, arguing that he should not have been sentenced to more than six months in the county jail pursuant to the amendment to the sentencing scheme found in Mississippi Code Annotated section 97-21-33(1) (Rev. 2014).

¶ 5. After reviewing both the record and King’s PCR motion, the circuit court entered an order on April 29, 2016, denying King’s requested relief and dismissing his PCR motion. The circuit court explained:

[Pjursuant to the versions of ... [sections] 97-21-37 and 97-21-33 in effect on the date the crime was committed, it was a felony to possess such counterfeit checks in any amount. While the State could have proceeded against King on a misdemeanor charge if the face amount of the checks [was] below $500, the State was not-required to do so and could have proceeded against King as a felony regardless of the face amount of the checks.

The circuit court also held that the face of the indictment clearly provided King with notice that the State was charging him with a felony charge of possession of counterfeit bank notes or other instruments.

¶ 6. King now appeals the circuit court’s dismissal of his PCR motion.

STANDARD OF REVIEW

¶7. “When reviewing a trial court’s denial or dismissal of a motion for PCR, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review legal conclusions under a de novo standard of review.” Chapman v. State, 167 So.3d 1170, 1172 (¶ 3) (Miss. 2015).

DISCUSSION

¶8. King argues that his indictment charging him with possession of counterfeit bank notes or other instruments was defective. King admits that his indictment notified him that he was being charged with the offense of possession of counterfeit bank notes pursuant to section 97-21-37. However, King argues that the indictment failed to specify the amount of forged notes found in his possession for sentencing purposes. King submits that the sentencing statute, section 97-21-33, applies different penalties depending on the amount of forged notes in possession of the defendant. As a result, King asserts that, imposing a sentence without properly including the amount of forged notes in his indictment violates the Eighth Amendment of the United States Constitution.

¶ 9. Uniform Rule of Circuit and County Court 7.06 states that an indictment “shall be a plain, concise[,] and definite written statement of -the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” In Davis v. State, 171 So.3d 537, 540 (¶ 11) (Miss. Ct. App. 2015), this Court explained that “[t]he chief objective of an indictment is to provide a defendant fair notice of the crime charged.” Furthermore, “[a]n indictment must contain (1) the essential elements of the offense charged,' (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Id. (quoting Gilmer v. State, 955 So.2d 829, 836-37 (¶ 24) (Miss. 2007)).

¶ 10. The record reflects that King’s indictment for possession of counterfeit bank notes charged:

[0]n or about the 11th day of June, 2014, ..'. [King] did unlawfully, willfully, and feloniously have in [his] possession multiple forged, altered[,] or counterfeited negotiable notes, namely: multiple business checks drawn on the account of HRL Contractors, LLC, ... when ... [King] knew same to be forged, altered[,] or counterfeited, with intention to utter the same as true or as false, or to cause the same to be uttered, with intent to injure or defraud, in violation of ... [section] 97-21-37[.]

¶ 11. At the time King committed the crime charged in his indictment, Mississippi Code Annotated section 97-21-33 (Rev. 2006) provided the following penalty for a violation of section 97-21-37: a term of imprisonment between two and ten years, a fine of not more than $10,000, or both. As stated, the circuit court herein “reviewed the complete file in this matter, including all the pleadings in this cause, the underlying criminal file, [and] the transcript of the "guilty plea and sentencing hearings” and ultimately entered an order denying relief and dismissing King’s PCR motion. In its order of dismissal, the circuit court explained that, “pursuant to the versions of ... [sections] 97-21-37 and 97-21-33 in effect on the date the crime was committed, it was a felony to possess such counterfeit checks in any amount.” The circuit court held:

It is clear from the face of the indictment that the State was proceeding against King on a felony charge, regardless of the amount of the checks, which the Court finds to have been within the discretion of the State. Count I of the indictment clearly shows that "King was called into Court to face a felony charge for the possession of counterfeit business checks drawn on the account of HRL • Contractors, LLC, which King possessed in Madison County, Mississippi, knowing the same to be forged, altered^] or counterfeit, and that he had ■the intent to utter and published such checks with the further intent to injur[e] and defraud,

¶ 12. Our review of King’s indictment reflects that he was charged with committing the offense on June 11, 2014. The -Mississippi Supreme Court has held that, unless a statute specially provides otherwise, a trial court must sentence an offender under the sentencing statute in effect at the time of the offense. Wilson v. State, 194 So.3d 855, 874 (¶ 61) (Miss. 2016); Miss. Code Ann. § 99-19-1 (Rev. 2015). At the time of King’s offense, section 97-21-27 (Rev. 2006) provided:

Every person who shall have in his possession any forged, altered[,] or counterfeited negotiable note, bill, draft, or other evidence of debt issued or purported to have been issued by any corporation or company duly authorized for that purpose by the laws of the United States or of this state, or of any other state, government, or country, or any other forged, altered," or counterfeit, instrument the forgery of which is declared by the provisions of this chapter to be punishable, knowing the same to be forged, altered, or counterfeited, with intention to utter the same as true or as false, or to cause the same to be uttered, with intent to injure or defraud, shall be guilty of forgery.

(Emphasis added). A reading of the plain language of the statute reflects no requirement for a specific value or amount of forged or counterfeit notes in order to be guilty of forgery; rather, the statute - simply requires that a person “have' in his "possession any forged, al"tered[,] or counterfeited negotiable note[.]” Id. (Emphasis added). Accordingly, we find that King’s indictment properly tracks the language of the statute and, in so doing, provides King with proper notice of the charge against him. See Harrison v. State, 722 So.2d 681, 687 (¶ 22) (Miss. 1998) (“So long as from a fair reading of the indictment taken as a whole the nature and cause of the charge against the accused are clear, the indictment is legally sufficient.”).

¶ 13. The corresponding sentencing statute in place at the time King committed the charged offense of possession of counterfeit bank notes, section 97-21-33 (Rev. 2006), provided:

Persons convicted of forgery shall be punished by imprisonment in the Penitentiary for a term of not less than two (2) years nor more than ten (10) years, or by a fine of not more than Ten Thousand Dollars ($10,000.00), or both; provided, however, that when the amount of value involved is less than Five Hundred Dollars ($500.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than six (6) months, or by a fine of not more than One Thousand Dollars ($1,000.00), or both, within the discretion of the court.

¶ 14. In his appellate brief, King cites to the amended version of section 97-21-33, effective July 1, 2014, which provides varying penalties depending on “the amount of value involved” in the forgery. However, this amended version became effective shortly after King committed the offense of possession of counterfeit bank notes. See Wilson, 194 So.3d at 874 (¶61) (“Section 99-19-1 clearly requires the trial court to sentence an offender under a sentencing statute in place at the time of the crime.”).

¶ 15. The transcript from the plea hearing reflects that the sentencing judge advised King that section 97-21-38 was amended shortly after King committed the offense of possession of counterfeit bank notes. The sentencing judge then explained that both section 99-19-1 and case-law mandate that the sentencing judge apply the version of section 97-21-33 in effect at the time King committed the offense. The transcript further reflects that the sentencing judge advised King of the minimum and maximum sentences he could receive, pursuant to his guilty plea, for possession of counterfeit bank notes. King affirmed under oath that he understood the possible sentences he could receive and that he still wished to enter a plea of guilty.

¶ 16. After our review, we find that King’s sentence of ten .years in the custody of the MDOC and payment of court costs, fees, and assessments in the amount of $498.50 falls within the sentencing purview authorized by the version of section 97-21-33 in effect at the time King committed the offense of possession of counterfeit bank notes. As a result, King’s sentence is valid. We therefore find no error in the circuit court’s determination that King was entitled to no relief.

¶ 17. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . The record shows that on October 31, 2014, the State moved to amend the indictment to charge King as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015); however, the State failed to present the motion to the circuit court.

      . The recently amended version of section 97-21-33 (Rev. 2014) provides:
      (1)Any person convicted of forgery when the amount of value involved is under One Thousand Dollars ($1,000.00) may be punished by imprisonment in the county jail for a term of not more than six (6) months, or by a fine of not more than One Thousand Dollars ($1,000.00), or both if the court finds substantial and compelling reasons why the offender cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safely. If such a finding is not made, the court shall suspend the sentence of imprisonment and impose a period of probation not exceeding one (1) year or a fine of not more than One Thousand Dollars ($1,000.00), or both. The total value of the forgery by the person from a single victim shall be aggregated in determining the gravity of the offense. Any person convicted of a third or subsequent offense under this subsection where the value of the property is not less than Five Hundred Dollars ($500.00), shall be punished by imprisonment in the Penitentiary for a term not exceeding three (3) years or by a fine not exceeding One Thousand Dollars ($1,000.00), or both,
      (2) Any person convicted of forgery when the amount of value involved is One Thousand Dollars ($1,000.00) or more but less than Five Thousand Dollars ($5,000.00) shall be punished by imprisonment in the Penitentiary for a term not more than five (5) years, or a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
      (3) Any person convicted of forgery when the amount of value involved is Five Thousand Dollars ($5,000.00) or' more, but less than Twenty-five Thousand Dollars ($25,-000.00) shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years, or be fined not more than Ten Thousand Dollars ($10,000.00), or both.
      (4) Any person convicted of forgery when the amount of value involved is Twenty-five Thousand Dollars ($25,000.00) or more, shall be imprisoned in the Penitentiary for a term not exceeding twenty (20) years, or be fined not more than Ten Thousand Dollars ($10,000.00), or both. The total value of the forgery by the person from a single victim shall be aggregated in determining the gravity of the offense.


source: Caselaw Access Project

author: GREENLEE, J.,

license: Public Domain

text:
    IN the INTEREST OF M.M., S.M., A.M., Minors: Jane Doe, Appellant v. Hinds County Youth Court, Appellee
    NO. 2015-CA-00338-COA
    Court of Appeals of Mississippi.
    05/30/2017

      HINDS COUNTY YOUTH COURT, WILLIAM LOUIS SKINNER II
    ATTORNEYS FOR APPELLANT; STACI BOZANT O’NEAL, LINDSEY UNTERBRINK HERR
    ATTORNEYS FOR APPELLEE: SO-RIE S. TARAWALLY, SHERRI MURIEL FLOWERS
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT: .

¶ 1. The Hinds County Youth Court adjudicated Jane Doe’s son A.M, a child in need of supervision and adjudicated her two younger sons S.M. and M.M. as sexually abused children. As a result of the adjudication, A.M. was removed from the mother’s custody. Notice of the adjudication hearing was served at the mother’s previous rather than current address. Neither the mother nor any of the children were served a summons or were present at the hearing. The mother filed a motion in the youth court to set aside the adjudication due to lack of jurisdiction. • The youth court denied the motion. After having spent more than a year at a treatment facility in the custody of the Mississippi Department of Human Services (MDHS), A.M. was returned to his mother’s custody at the recommendation of the State. The mother appeals the youth court’s denial of her motion to set aside the judgment, asserting that the youth court lacked jurisdiction due to insufficient service of process and the absence of a voluntary waiver of notice. We agree that the youth court lacked jurisdiction due to insufficient service of process.and, therefore, reverse the court’s denial of her motion to set aside the judgment as void.

FACTS AND PROCEEDINGS BELOW

¶ 2. After a shelter hearing was held at Hinds County Youth Court on October 25, 2013, fifteen-year-old A.M, was placed in the custody of MDHS following reports that A.M; was “humping” his two younger siblings on a repeated basis. A.M. had a history of béing sexually abused, and MDHS was already involved in other proceedings with A.M. related to delinquent behavior. A.M. was placed in a juvenile male sex offender’s rehabilitation facility under the supervision of MDHS, with a scheduled release date in .August 2014.

¶ 3. An adjudication hearing was held on February 11, 2014. A summons for the hearing was issued on October 29, 2013, to the mother’s previous address in Brandon, Mississippi, rather than to her current address in Clinton, Mississippi. Neither the mother nor any of the children were present at the hearing. The court read into the record the mother’s correct address in Clinton, Mississippi. At the hearing, the judge inquired of the MDHS caseworker:

[COURT]: Did you have an opportunity to talk to the parents?
[WITNESS]: I did. I actually spoke with [the mother] face-to-face yesterday.
[COURT]: Did either parent know this [hearing] was going on?
[WITNESS]: She intended to attend today’s hearing. I haven’t had a chance to speak with her this morning, but I’m assuming that due to the schools being closed, she wasn’t able to find child care on such short notice to attend today.,

The court proceeded to adopt the State’s recommendation to adjudicate M.M. and S.M. sexually abused as defined under Mississippi Code-Annotated section 43-21-105(n) (Supp. 2016) and to adjudicate A.M. a child in need of supervision as defined under section 43-21-105(k). The youth court ordered A.M. to remain in the custody of MDHS, continuing his treatment program.

¶ 4. After obtaining legal representation, the mother filed a motion in the youth court on November 3, 2014, to set aside the adjudication and return custody of A.M. She asserted that the court lacked jurisdiction due to failure to meet the notice requirements of Mississippi Code Annotated section 43-21-507 (Rev. 2015). The youth court held a permanency hearing on November 6, 2014, which the mother attended with attorney representation. The no-contact order between A.M. and his siblings was lifted, and a ninety-day supervised reunification plan was put in place, with A.M. legally remaining in MDHS custody while moving back home. The transcript of the permanency hearing reflects the fact that the November 3, 2014 open motion was brought to the court’s attention, but after an off-the-record discussion, court was dismissed without disposing of the open motion..

¶ 5. On February 19, 2015, the court heard a motion for rehearing on the State’s recommendation that A.M. be returned to the mother’s custody. A.M. was legally returned to the mother’s custody, and the case was closed. At the conclusion of the hearing, the youth court formally denied the mother’s previous motion to set aside the adjudication-due to lack of jurisdiction, stating, “that appeal and everything should have been.filed in a timely manner. But I am not going to go back on an adjudication, when we just did a rehearing, and change it.”

¶ 6. The mother-appeals the denial of the motion to set aside the judgment, arguing that the youth court lacked jurisdiction to adjudicate A.M. a child in need of supervision and to adjudicate the two other children sexually abused.

DISCUSSION

¶ 7. “Jurisdiction is a question of law and is reviewed de .novo.” In re M.I., 85 So.3d 856, 857 (¶ 6) (Miss. 2012).

¶ 8. The State attempts to argue that any error that occurred in failure to properly issue the summons was harmless error. But in youth-court matters, “under our statute notice to the parent is an indis-pensableprerequisite to the jurisdiction of the court to hear and determine the case, unless such notice be waived by the voluntary appearance of such parent.” Sharp v. State, 240 Miss. 629, 127 So.2d 865, 869 (1961); In re J.P., 151 So.3d 204, 210 (¶ 17) (Miss. 2014). Section 43-21-507 provides in part:

(1) Summons shall be served not less than three (3) days before the date set for the adjudicatory hearing of proceedings concerning the child.
(2) A party other than the child may waive service of summons on himself by written stipulation or by voluntary appearance at the hearing and in the case of written stipulation or voluntary appearance, the youth court may, in its discretion, proceed to a hearing regardless of the date set for the hearing if all other parties are properly before the youth court. At the time of the waiver, a copy of the petition shall be given to the party.
(3) If a child is served with process, the child may waive the three (3) days’ time before the hearing, and the youth court may, in its discretion, proceed to a hearing regardless of the date set for the hearing if all other parties are properly before the youth court and the youth court finds all of the following:
(a) the child fully understands his rights and fully understands the potential consequences of the hearing;
(b) the child voluntarily, intelligently, and knowingly waives his rights to three (3) days’ time before the hearing;
(c) the child is effectively represented by counsel; and
(d) the child has had in fact sufficient time to prepare.

¶ 9. Service of process on the children is also required:

A minor cannot waive process required by law, and the Court has no jurisdiction of the person until process has been served upon the minor and his parents, or persons standing in loco parentis. The notice to the parents may be waived by them, but not process on the minor.

In re S.G.M., 97 So.3d 702, 704 (¶ 8) (Miss. 2012) (quoting In re N.W., 978 So.2d 649, 654 (¶ 15) (Miss. 2008)). The youth court also has a statutory responsibility to “ascertain whether the notice requirements have been complied with .... ” Miss. Code Ann. § 43-21-557(1)(c) (Rev. 2009).

¶ 10. Here, the parties do not dispute that the mother and the children were not served with process. Even if the mother had actual notice of the hearing via her conversations with the MDHS employee, actual notice is insufficient to cure a jurisdictional defect in service of process. Pearson v. Browning, 106 So.3d 845, 852 (¶39) (Miss. Ct. App. 2012). The mother did not make a voluntary appearance at the hearing. The statutory requirements for the mother’s waiver were not met. The trial court therefore lacked jurisdiction to adjudicate the children as in need of supervision and as sexually abused.

¶ 11. Because the mother is challenging the judgment as void due to lack of jurisdiction, her almost nine-month delay in bringing the motion to set aside the judgment is irrelevant. “[Tjhere is no effective time limit for seeking relief from a void judgment under [Mississippi Rule of Civil Procedure] 60(b)(4)[.]” Ravenstein v. Ravenstein, 167 So.3d 210, 216-17 (¶ 12) (Miss. 2014). “In defining a void judgment, this Court has repeated the federal rule, which states that ‘a judgment is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.’ ” Id. (quoting Overbey v. Murray, 569 So.2d 303, 316 (Miss. 1990)). The youth court erred in referencing the mother’s failure to timely appeal the judgment to a higher court as grounds for denying her motion to set aside the judgment as void. Standard appeals are predicated on jurisdiction having been proper below. Under Rule 60(b), motions to set aside a judgment as void due to lack of jurisdiction are properly first brought before the trial court that issued the judgment.

CONCLUSION

¶ 12. The youth court lacked jurisdiction over the mother and her children. We therefore reverse the youth court’s denial of the mother’s motion to sét aside the judgment as void due to lack of jurisdiction.

¶ 13. THE JUDGMENT OF THE HINDS COUNTY YOUTH COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR.

      . The mother's name is not used in this opinion to protect the privacy of her minor children. Initials are used in place of the children’s names.

      . The mother immediately reported the conduct after one of the younger children reported it to her,

      . The court was apparently unaware of the mistake that occurred in issuing the summons to the' wrong address.


author: MAIN, Justice.

text:
    Jason ELKINS and Paula Elkins v. Jeff CARROLL, Stanley Maguire, and Gabriel Collins.
    1150529.
    Supreme Court of Alabama.
    Aug. 12, 2016.
    Dustin W. Kennemer and L. Thompson McMurtrie of L. Thompson McMurtrie, L.L.C., Huntsville, for appellants.
    Robert C. Lockwood and Laura P. Hil-ler of Wilmer & Lee, P.A., Huntsville, for appellees.
   MAIN, Justice.

Jason Elkins and his wife, Paula Elkins, appeal from a summary judgment in favor of Stanley Maguire, Gabriel Collins, and Jeff Carroll (collectively referred to as “the co-employees”). We remand the cause to the Madison Circuit Court (“the trial court”).

I.

TDY Industries, LLC (“TDY”), hired Jason Elkins as a screener operator on October 19, 1998. Jason Elkins operated various pieces of machinery in the course of his employment, including a Dalmec brand manipulator. A manipulator is used to grasp and. lift heavy drums of powder that are then dumped into a screening tub. The manipulator has a pivoting arm that moves horizontally and vertically to grasp objects. The controls for the pivoting arm have handlebars the operator uses to maneuver the arm. The arm has a set of clamps that grasp the drums so they can be lifted and dumped. All TDY employees received hands-on training on operating the manipulator.

On March 7, 2013, a supervisor at TDY instructed Jason Elkins to dump several drums of powder. While he was operating the manipulator to dump powder from a drum, the manipulator rose and hit him under the chin and then descended and hit him in the head. Jason Elkins states that he is approximately five feet, six inches tall and that, when he was injured, the controls for the manipulator-were higher than he is tall. The manipulator, he says, contained an adjustment nut that limited the travel height of the manipulator’s lift arm, the sole purpose of which was as a safety function. He states that he had seen the manipulator rise to its' maximum height with another operator before he was injured.

Mark--White was the first coworker to respond to Elkins. White completed a written witness statement on the date of the injury. He stated that he heard a loud noise in the screening/charging area and that he saw Jason Elkins leaving the opposite end of the room. White said he noticed that the manipulator was higher than normal and that the drum had been dropped onto the floor and the powder had spilled all around it. He also' stated that Jason Elkins had beén hit with the manipulator and needed medical attention. White further noted that Jason Elkins complained of pain in his neck and shoulder and of blurred vision.

. Maguire, Jason Elkins’s supervisor, and Collins, TDY’s plant manager, jointly investigated Jason Elkins’s injury. Maguire completed a “Supervisor’s First Report of Incident/Illness Form” on the date of the injury. The supervisor’s first report indicates that Jason Elkins was injured while performing his work duties when the “Manipulator equipment rose rapidly after dropping 550 lb. load, striking employee on resend [and] again on descent.” • The supervisor’s first report also noted that Jason Elkins suffered a “possible mild or severe concussion.” Carroll, the safety specialist at TDY, provided comments and feedback in drafting that report.

TDY’s' human-resources manager completed an “Employer’s First Report of Injury”' form on March 8, 2013. That report states that, “while the [employee] was operating a 17 gallon drum, the manipulator equipment rose rapidly and struck the [employee] when the equipment was going up and again when it descended.” -The first report of injury also notes that Jason Elkins “sustained a mild concussion” and “went to the emergency hospital after the incident.” Collins noted that Jason Elkins appeared confused and incoherent after the injury and that it appeared to him that Jason Elkins had suffered an injury similar to a concussion.

Maguire completed a supervisor’s incident-analysis addendum to the first report of injury, in which he stated:

“On 3/7/13 an operator was using Manipulator to lift a 17 gal drum. This operator had been trained on the manipulator, but had not used it often. The 17 gal drum weighed 550 lbs, well within the 880 lb equipment capacity. While lifting the load, the drum unexpectedly fell out of the manipulator putting 550 lbs of hydraulic lifting force against an inexperienced operator. It is unclear exactly how the employee lost balance and moved below the equipment. This movement forward put the operator into the line of fire of the manipulator bouncing back to a lower position striking the employee in the head and shoulders region. The employee suffered a concussion and was taken to the hospital for treatment. He is currently expected to make a full recovery.”

Maguire also answered questions in the incident-analysis addendum as follows:

“1. Why Did the Employee Get injured? Struck by manipulator. Manipulator has many safety features to control the hazard. These give a false sense of security while using the equipment.
“2. Why was that so? Unit has pressure sensors and lights that were functioning properly. However, if the grabbers are set by the operator on the rib reinforcement or are at an angle, the unit will hit the required pressure. But when the load is lifted, these issues could cause the load to shift and drop.
“3. Why was that so? Unit has a locking mechanism that can be activated during the dumping portion of the job which is the highest risk of dropping the load. This activates brakes that will keep the unit in place as the load is dumped. This cannot be activated when the load is being moved. Since the load was being moved at the time of the drop, the locking mechanism was not activated.
“4. Why was that so? If the load is dropped when activating the lifting mechanism, the unit is actively applying force. In this case, 550 lbs of upward force was applied to the operator holding the control handles. The unit released stored energy by lifting the unit straight up at a rapid rate, and then it will bounce back depending on the energy released.
“5. Why was that so? The unit height was set near the max of the manipulators capabilities. There was never a review to determine the actual height required. This contributed to the injury because the unit could raise high enough to allow an operator to reasonably get under the equipment during a failure.”

Jason Elkins filed a workers’ compensation action against TDY seeking benefits for his work-related injury. He later amended his complaint to add Paula El-kins as a plaintiff and to sue the co-employees pursuant to § 25 — 5—11(c) (2), Ala. Code 1975, based upon the theory that the co-employees removed a safety device and that the removal of that safety device proximately caused Jason Elkins’s injury. The complaint, as so amended, alleged:

“COUNT TWO
“1. On or about March 7, 2013, while working within the line and scope of his employment for Defendant TDY INDUSTRIES, LLC, the Plaintiff JASON ELKINS received injuries arising out of and in the course of his said employment with [TDY] when he was struck in the head by a Dalmec manipulator or other machine.
“2. Said Defendants STANLEY D. MAGUIRE, GABRIEL COLLINS, and JEFF CARROLL ... were supervisory employee(s), executive officer(s) or employees of Plaintiffs employer, TDY Industries LLC, and as such, had the right to and did control the conditions, methods and manner in which work was performed at the time and place of the occurrence made the basis of [the El-kinses7] complaint as set forth in the Complaint and this Amendment.
“3. Said Defendants willfully failed to properly control the conditions, methods and manner in which said work was performed and said willful conduct was a proximate cause of Plaintiffs injuries and damages hereinafter described.
“4. Said Defendants willfully and intentionally removed, or failed to install, repair or replace, from the machine and related equipment a safety guard or device, with knowledge that injury or death would likely or probably result from the machine and related equipment, or knew, or, with reasonable care, should have known of the state of danger and willfully and/or intentionally failed to prevent this injury from occurring, in violation of Ala.Code § 25-5-11(c)(2) (1975).
“5. [(The Elkinses] further aver that one or more of the fictitious party Defendants listed and described in the caption hereinabove willfully and intentionally violated a specific safety rule of the employer as set forth in Alabama Code § 25-5-ll(c)(4) resulting in Plaintiffs injury-
“6. The aforesaid wrongful conduct of the above-described Defendants was the proximate cause of Plaintiff Jason Elkins’ injuries and damages as described hereinbelow.
“7. As a proximate result of said accident, the Plaintiff suffered injuries to his head, neck, back and upper extremities. Subsequent to said injury, the Plaintiff was caused to obtain medical treatment, including surgery, has incurred medical bills, and has a permanent partial disability or a permanent total disability as a consequence of the accident or injuries described above. He has incurred medical bills for treatment and will continue to do so in the future. He has suffered a loss of earnings and will in the future. He has endured great pain and suffering and mental anguish and will in the future. His injuries are permanent in nature.
“Plaintiff Paula Elkins has suffered and will in the future continue to suffer a loss of consortium as a result of the above described injuries of her husband Jason Elkins.
“8. The foregoing allegations are realleged against the fictitious party Defendants ‘D, E, F,’ whether singular or plural, that person or those persons who were employees or executive officers of Plaintiffs employer who were guilty of willful conduct on or before the occasion made the basis of this suit and whose willful conduct was a proximate cause of Plaintiffs injuries; ‘G, H, 1/ • whether singular or plural, that entity or those entities, that individual or those individuals who or which transported, set up, repaired, altered, or maintained the machine and related equipment involved in the< occurrence made the basis of this ■lawsuit; ‘J, K, L,’ whether singular or plural, that entity or those entities who or which issued, or had a duty to issue, warnings or instructions regarding the use or operation of the machine' and related equipment involved in. the occurrence made the basis of this lawsuit, any component part thereof, or any attendant equipment used or available for use therewith; ‘M, N, 0/ whether singular or plural, that entity or those entities who or which tested, inspected, approved, or issued any approval of the machine and related equipment involved in the occurrence made the basis of this lawsuit, any component part thereof, or any attendant equipment used or available for use therewith; ‘P, Q, R,’ whether singular or plural, that entity or those entities other than those entities described above whose breach of contract or warranty contributed to cause the occurrence made the basis of this lawsuit; ‘S, T, U,’ whether singular or' plural, that entity or those entities other than those entities described above, which is the successor in interest of any of those entities described above; ‘V, W, X,’ whether singular or plural, that entity or those entities other than those entities described above, which was the predecessor corporation of any of the entities described above; ‘Y, Z, AA,’ whether singular or plural, that entity or those entities who or which participated in the- matters alleged herein; ‘BB, CC, DD,’ whether singular or plural, the individual, that entity or those entities, who or which did or failed to do any act that resulted, in Plaintiffs injuries and ■damages made the basis of this suit; ‘EE, FF, GG,’ whether singular or plural, the individual, that entity or those entities, other than .those described above, whose negligence, wantonness or other wrongful conduct contributed to cause the occurrence made the basis of this lawsuit; [the Elkinses] aver that the identities of the fictitious party Defendants is otherwise unknown to.the [El-kinses] at this time, or if their names are known to [the Elkinses] at this time their identities as proper parties Defendant is not known to [the Elkinses] at this time, but their true names will be substituted by amendment when ascertained.
“WHEREFORE, [the Elkinses] de- , mand judgment against the Defendants, including the fictitious party Defendants, in a sum which will fairly and adequately compensate the Plaintiff [Jason Elkins] for his injuries and damages sustained. Further, [the Elkinses]-request that the jury award punitive, damages to [the El-kinses] in- an amount which will adequately reflect, the enormity of the Defendants’ wrongful act and which will effectively prevent other similar wrongful, acts.
. “COUNT THREE .
. “9. Paragraphs 1 through 8 are hereby realleged and incorporated by reference as if the same had been fully set out herein,. -
. “10. One or more of the non-employer fictitious party Defendants listed and described in the caption and in parar graph 8 hereinabove negligently or wantonly failed to- maintain, repair, transport, set up, or altered the machine and related equipment involved in the occurrence made the basis of this lawsuit prior-to the incident made the basis of the complaint,
“11. As a proximate result of said accident, the Plaintiff [Jason Elkins] suffered injuries to his head, neck, back and upper extremities. Subsequent to said injury, the Plaintiff [Jason Elkins] was caused to obtain medical treatment, including surgery, has incurred medical bills, , and has a permanent partial disability or a permanent total disability as a consequence of the accident or injuries described above. He has incurred medical bills for treatment and will continue to do so in the future. He has suffered a loss of earnings and will in the future. He has endured great pain and suffering and mental anguish and will in the future. His injuries are permanent in nature.
“Plaintiff Paula Elkins has suffered and will in the future continue to suffer a loss of consortium as a result of the above described injuries of her husband Jason Elkins.
“WHEREFORE, [the Elkinses] demand judgment against the Defendants, including the fictitious party Defendants, in a sum which will fairly and adequately compensate the Plaintiff [Jason Elkins] for his injuries and damages sustained. Further, Plaintiffs request that the jury award punitive damages to [the Elkins-es] in an amount which will adequately reflect the enormity of the Defendants’ wrongful act and which will effectively ■prevent other similar wrongful acts.
“COUNT FOUR
“COMBINED AND CONCURRING NEGLIGENCE OR WANTONNESS
“12. [The Elkinses reallege] the allegations in Counts I through III as if set out herein [in their] totality.
“13. The negligent or wanton conduct of one or more fictitious parties, whose names are otherwise unknown to [the Elkinses] but will be added by amendment when ascertained, and whose identities as set forth in paragraph 8 of the Complaint are hereby incorporated by reference as if the same had been fully set forth herein, combined and/or concurred with that of the named or unnamed Defendants to cause the damages suffered by [the Elkinses] as set forth above in the preceding counts.
“WHEREFORE/ . [the Elkinses] demand judgment against the Defendants, including the' fictitious party Defendants, in a sum which will fairly’and adequately compensate the Plaintiff [Jason Elkins] for his injuries and damages sustained. Further, [the Elkinses] request that the jury award punitive damages to [the Elkinses] in an amount which will adequately reflect the enormity of the Defendants’ wrongful act and which will effectively prevent other similar wrongful acts.
“COUNT FIVE ■
“BREACH OF CONTRACT/WARRANTY
“15[] Counts One through Four are hereby realleged and incorporated by reference as if the same had been fully set out herein.
“16. One or more of the non-employer fictitious party Defendants listed and described in the caption and in paragraph 8 of the First Amendment to Complaint breached a contract or warranty of which Plaintiff [Jason Elkins] was a third party beneficiary, and which breach proximately caused the accident of March 7, 2013, in which Plaintiff [Jason Elkins] was injured.
“17. As a proximate result of said accident, the Plaintiff [Jason Elkins] suffered injuries to his head, neck, back and upper extremities. Subsequent to said injury, the Plaintiff [Jason Elkins] was caused to obtain medical treatment, including surgery, has incurred medical bills, and has a permanent partial disability or a permanent total disability as a consequence of the accident or injuries described above. He has incurred medical bills for treatment and will continue to do so in the future. He has suffered a loss of earnings and will in the future. He has endured great pain and suffering and mental anguish and will in the future. His injuries are permanent in nature.
“18. Plaintiff Paula Elkins has suffered and will in the future continue to suffer a loss of consortium as a result of the above described injuries of her husband Jason Elkins.
“WHEREFORE, [the Elkinses] demand judgment against the Defendants, including the fictitious party Defendants, in a sum which will fairly and adequately compensate the Plaintiff [Jason Elkins] for his injuries and damages sustained. Further, [the Elkinses] request that the jury award punitive damages to [the El-kinses] in an amount which will adequately reflect the enormity of the Defendants’ wrongful act and which will effectively prevent other similar wrongful acts.”

(Capitalization in original; emphasis added.)

The Elkinses again amended their complaint to add as defendants Farmington Casualty Company (the workers’ compensation insurance carrier for TDY) and Sedgwick Claims Management Services, Inc. (the third-party administrator and/or claims handler for TDY and/or Farming-ton). The third amendment to the complaint added count six, alleging the tort of outrage, and count seven, alleging civil conspiracy against TDY, Farmington, and Sedgwick.

TDY filed a motion to dismiss counts two through five as to it. The co-employees filed a motion for á summary judgment “on all claims asserted against them.” In a footnote in their summary-judgment motion, the co-employees stated:

“The [Elkinses’] November 5, 2014 original complaint contained only one count (workers’ compensation) against TDY Industries, LLC. The [Elkinses’] March 6, 2015 ‘First Amendment to Complaint’ contained three additional claims: Count Two (co-employees’ willful conduct); Count Three (non-employer fictitious parties’ willful conduct); arid Count Four (fictitious parties’ negligence or wantonness). The amended complaint adds the additional co-employee defendants: Gabe Collins; Jeff Carroll; and Stan Maguire. It appears that the only claims asserted against the individual Defendants are found in Count Two. Regardless, Defendants assert there are no genuine issues of material facts of any kind which could establish any liability for them.”

On March 12, 2015, the trial court granted TDY’s motion to dismiss counts two through five of the Elkinses’ complaint as amended as to TDY. On that same day, the trial court entered a summary judgment in favor of the co-employees as to count two of the Elkinses’ amended complaint. The trial court certified the judgment as to count two as final pursuant to Rule 54(b), Ala. R. Civ. P. After the trial court entered its Rule 54(b) order, the Elkinses appealed the summary judgment in favor of the co-employees.

II.

An appeal will not lie from a nonfinal judgment. Robinson v. Computer Servicenters, Inc., 860 So.2d 299, 302 (Ala. 1978). “A ruling that disposes of fewer than all claims or relates to fewer than all parties in an action is generally not final as to any of the parties or any of the claims. See Rule 54(b), Ala. R. Civ. P.” Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App. 1999). When an action involves multiple claims or parties, Rule 54(b) gives the trial court the discretion to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties.” If a judgment is properly certified as final pursuant to Rule 54(b), an appeal will lie from that judgment.

“[I]f it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment. ...” Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000), summarizing the holding in Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 87 (Ala.1985). In Sho-Me Motor Lodges, the trial court’s order clearly indicated that the court intended to enter an order pursuant to Rule 54(b) because the order, clearly quoting Rule 54(b), stated: ‘“The Court further finds there is no just reason for delay in the entry of said final judgment.’ ” 466 So.2d at 87. And in Schneider National Carriers, Inc., we recognized the existence of a Rule 54(b) certification based on the fact that the trial court specifically cited Rule 54(b).

In the instant case, the trial court’s summary-judgment order states:

“There being no genuine issue of undisputed material facts, the Motion for Summary Judgment on Count Two filed by the Defendants Gabriel Collins, Jeff Carroll and Stanley Maguire is hereby GRANTED. There being no just reason for a delay, said Judgment is made a Final Judgment as to the Defendants, Gabriel Collins, Jeff Carroll and Stanley Maguire.”

(Capitalization in original.) Although the order does not mention Rule 54(b), it does use the “no just reason for delay” language from that rule this Court has previously recognized as sufficient to indicate an intent to certify an order as a final order under Rule 54(b). However, the order the trial court certified as final does not dispose of all claims against the co-employees; it does not dispose of counts three through five as to the co-employees. The prayers for relief in counts two through five are identical. Even though counts three through five do not specifically allege claims against the co-employees, the prayer for relief in each of those counts demands relief from “the Defendants, including the fictitious party Defendants.” Accordingly, the trial court’s summary judgment in favor of the co-employees as to only count two of the Elkins-es’ amended complaint does not dispose of all claims against the co-employees. We cannot overlook the absence of a final judgment, a matter affecting our jurisdiction, by assuming that the trial court would certify its judgment as final pursuant to Rule 54(b) as to the claims remaining against the co-employees.

III.
“When it appears from the record that the appeal was taken from an order which was not final, but which could have been made final by a Rule 54(b) certification, we will remand the case to the trial court for a determination as to whether it chooses to certify the order as final, pursuant to Rule 54(b), and, if it so chooses, to enter such an order and to supplement the record to reflect that certification. The judgment will be taken as final as of the date the 54(b) certification is entered....
“... [I]f this Court remands the case to the trial court for the opportunity of making such a certification, the trial court will have the limited jurisdiction to enter a 54(b) certification if, in its discretion, it decides the entry of such a certification is appropriate.”

Foster v. Greer & Sons, Inc., 446 So.2d 605, 609-10 (Ala.1984), overruled on other grounds, Ex parte Andrews, 520 So.2d 507, 510 (Ala.1987).

We remand this-ease for the. trial court (1) to make the interlocutory order of December 28,2015, a final judgment as to the co-employees relative to counts three, four, and five pursuant to Rule 54(b), Ala. R, Civ. P.; (2) to adjudicate the remaining claims against all parties, thus making the interlocutory order of December 28, 2015, final and appealable; or (3) to take no action, in which event the appeal will be dismissed as being from a nonfinal judgment. If the trial court elects to enter the Rule 54(b) certification or any other final judgment, a supplemental record reflecting such action should be prepared and forwarded to this Court within 21 - days from the date this opinion is released. The judgment will be considered final as of the date the new order is entered. If no supplemental record is forwarded to this Court within 21 days of the date this opinion is released, this appeal will be dismissed.

REMANDED.

BOLIN, PARKER, MURDOCK, and BRYAN, JJ., concur.

      . See § 25-5-11(c)(2), Ala.Code 1975 (defining "willful conduct” to include "[t]he willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal”).

        . The Elkinses apparently misnumbered the first paragraph in count five, which was added as a separate amendment to the complaint. There appears to be no paragraph 14.

       Note from the reporter of decisions: On September 14, 2016, having received no supplemental record, the Supreme Court dismissed the appeal.


text:
    John BOMAN v. CITY OF GADSDEN.
    1150987.
    Supreme Court of Alabama.
    Sept. 2, 2016.
    Rehearing Denied Oct. 21, 2016.

      Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden, for appellant.
    H. Edgar Howard - of Ford, Howard & Cornett, P.C., Gadsden, for appellee.
   MAIN, Justice.

John Boman appeals from a summary-judgment entered by the Etowah Circuit Court in favor of the City of Gadsden. For the reasons stated below, we affirm.

I. Facts and Procedural History

This is the third time this case has been before us. See City of Gadsden v. Boman, 104 So.3d 882 (Ala.2012) (“Boman I ”), and City of Gadsden v. Boman, 143 So.3d 695 (Ala.2013) (“Boman II ”). Rather than restating all the facts and procedural history surrounding this case, we limit our discussion to those facts directly relevant to the issues now on appeal. A more complete factual and procedural background of this case is set forth in Boman I and Boman II.

Boman worked as a Gadsden police officer from 1965 until he retired in 1991. During his employment with Gadsden, police officers operated under various versions of the “City of Gadsden Employee Handbook: Police Department.” The employee handbook applied to uniformed and sworn police officers employed by Gadsden and was periodically revised. At the time of Boman’s retirement, the employee handbook applicable to police officers was the “City of Gadsden Employee Handbook: Police Department (ed. 1989-1992)” (“the handbook”). Section 26 of the handbook, entitled “Employee Benefit Plan,” noted changes to the prior employee-benefit plan. According to the handbook, police-department employees’ then current health-care plan included “Major Medical benefits — 80% UCR [usual, customary, and reasonable charges] for the first $10,000 with 100% of covered expenses ... each year after $2,000 annual out-of-pocket per person.” The employee-benefit plan was issued and administered by Blue Cross and Blue Shield of Alabama (“Blue Cross”). Nothing in the handbook indicates the police-department employee health benefits extended to retirees.

Following his retirement, Boman elected to pay for retiree health coverage through a group plan offered by Gadsden to retired employees. This retired-employee-benefit plan was also administered by Blue Cross and provided substantially similar benefits to those Boman received as an active employee. In 2000, however, Gadsden elected to join an employee-health-insurance-benefit plan (“the plan”) administered by the State Employees’ Insurance Board (“the SEIB”). We explained in Boman I:

“In 2000, Gadsden elected to join the ‘Local Government Health Insurance Plan’ (‘the plan’), a ‘self-insurance health benefit plan administered by the State Employees’ Insurance Board’ (‘the Board’). The claims administrator for the plan was Blue Cross. The plan stated, in pertinent part:
“ ‘Retired Employees
‘Health benefits mil be modified when you or your dependent becomes entitled to Medicare. Coverage under this plan will be reduced by those benefits payable under Medicare, Parts A and B....
“ ‘The [plan] remains primary for retirees until the retiree is entitled to Medicare. Upon Medicare entitlement, the member’s coverage under the [plan] will complement his/her Medicare Parts A and B coverages. Medicare will be the primary payer and the [plan] will be the secondary payer. A Medicare retiree and/or Medicare dependent should have both Medicare Parts A and B to have adequate coverage with the [plan].’
“(Some emphasis added; some emphasis omitted.)
“When Boman turned 65 in 2011, he was receiving medical care for ‘congestive heart failure’ and ‘severe osteoarthritis of the spine.’ After his 65th birthday, Blue Cross began denying his claims for medical treatment based on the failure to provide Blue Cross with a ‘record of the Medicare payment.’ However, Boman had no Medicare credits. ... Boman was hired before March 31, 1986, and, although Gadsden did begin participation in the Medicare program in 2006, Boman’s employee group had not opted to obtain Medicare coverage before Boman retired. Consequently, Boman never paid Medicare taxes and does not claim to have Medicare coverage.”

Boman I, 104 So.3d at 883-84. In the ensuing coverage dispute, the SEIB took the position that, despite the fact that Bo-man had no Medicare credits entitling him to premium-free Medicare coverage, he was still entitled to participate in Medicare by enrolling and paying the applicable premium. Thus, the SEIB determined that the plan was the secondary payer to Medicare.

Boman sued Gadsden, asserting that it had broken an agreement, made upon his employment, to provide him with lifetime health benefits upon his retirement. Bo-man also sued the members of the SEIB charged with administering the plan, challenging the SEIB’s interpretation of the plan.

Boman’s claims against Gadsden were ultimately set forth in his 14th amended complaint, count II of which alleged that Gadsden owed him medical-insurance benefits. Boman contended that he had entered into an employment contract with Gadsden requiring Gadsden to provide him lifetime health-care benefits upon his retirement, that those benefits had vested upon Boman’s reaching 20 years of service as a Gadsden police officer, and that Gadsden had breached that agreement once the plan was deemed secondary to Medicare. Count III alleged that Gadsden committed the tort of outrage by failing to provide Boman primary health insurance. Count IV alleged that Gadsden was guilty of the tort of bad faith by wrongfully denying Boman retirement health benefits.

As to his claims against the SEIB members, Boman requested a judgment declaring that he was not “entitled to Medicare” as that term is defined in the plan and that, therefore, he was entitled to primary coverage under the plan. As more fully explained in Boman II, the trial court initially entered a summary judgment in favor of Boman and ordered the SEIB “to provide medical benefits to John Boman as primary insurance because John Boman is not ‘Medicare eligible.’ ” 143 So.3d at 701. The trial court also granted Boman injunc-tive relief against Gadsden, ordering Gadsden to be responsible for providing medical-benefit coverage to Boman in the event this Court overturned its ruling as to the SEIB. In Boman II, this Court reversed the trial court’s judgment, reasoning that, even though Boman was not entitled to participate in premium-free Medicare coverage, he was nevertheless entitled to participate in Medicare simply by enrolling and paying the applicable premium once he had turned 65 years old. Thus, he was “entitled” to Medicare as that term was used in the plan, and the plan was secondary. We also reversed the order granting injunctive relief against Gadsden because Boman had not provided the mandatory security required by Rule 65(c), Ala. R. Civ. P.

On remand following Boman II, Bowman and Gadsden filed cross-motions for a summary judgment as to Boman’s claims against Gadsden alleging breach of contract, the tort of outrage, and bad faith. The trial court concluded that there was no. employment contract between Boman and Gadsden. The trial court also concluded that the evidence submitted did not establish a viable claim of the tort of outrage or bad faith. Accordingly, the trial court entered a summary judgment in favor of Gadsden and against Boman as to his claims of breach of contract, the tort of outrage, and bad faith. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Boman now appeals the summary judgment as to the breach-of-contract, and the tort-of-outrage claims.

II. Standard of Review

“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the n'onmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to. be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

Ill, Analysis

First, Boman argues that the summary judgment on his beach-of-contract claim is due to be reversed. Specifically, he contends that he entered into an enforceable employment contract with Gadsden, which, he argues, guaranteed lifetime health-care benefits to retirees such as him. He contends that this agreement is memorialized in the various versions of the employee handbook distributed by Gadsden to the city’s police officers during his employment. In support of this argument, Boman cites Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987), for the proposition that an employee. handbook may form the basis of an employment contract. Boman also cites the testimony of a former mayor of Gadsden who testified that the employee handbook was the written understanding of 'the agreement between Gadsden and the police department, Boman alleges that the plan became “worthless” once it became secondary to Medicare. Thus, he argues that Gadsden breached the employment agreement purporting to provide him lifetime health benefits.

The fundamental problem with Bo-man’s argument, however, is that, even accepting his contention that the handbook created an employment contract between him and Gadsden, there is simply no language in any version of the employee handbook that actually relates to retiree health benefits. An essential element of a breach-of-contract claim is “ ‘the existence of a valid contract binding the parties.’ ” City of Gadsden v. Harbin, 148 So,3d 690, 696 (Ala.2013) (quoting Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala.2001)). Here, Boman has not directed this Court to any provision of the handbook addressing retiree health benefits. It is true that some versions of the employee handbook summarized the health benefits for active uniformed employees of the police department, but nothing in the handbook can be construed as promising health benefits to retirees, much' less definite, vested lifetime benefits; The provisions of the handbook that do mention retirement benefits specifically address those benefits provided through the Policemen’s and Firemen’s Retirement Fund of the City of Gadsden (“the fund”), established by act of the Alabama Legislature. Act No. 80-442, Ala. Acts 1980. The retirement benefits provided by the fund, however, are pension benefits, not health-care benefits. In short, the handbook evidences no agreement on the part of Gadsden to provide Boman with vested lifetime health benefits.

Boman alternatively contends that the doctrine of promissory estoppel entitles him to rélief on his breach-of-contract claim. Again,' however, Boman has not directed this Court to any actual evidence of a promise by Gadsden to provide him with vested lifetime health benefits. In short, Boman has not produced substantial evidence of the existence of a contract providing him with such benefits. Accordingly, the trial court correctly entered a summary judgment in favor of Gadsden on Boman’s breach-of-contract claim.

Finally, Boman contends that the trial court erred in .entering a summary judgment on his tort-of-outrage claim. We have stated that “the tort of outrage is viable only when the conduct is ‘ “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” ’ ” Little v. Robinson, 72 So.3d 1168, 1173 (Ala.2011) (quoting Home v. TGM Assocs., L.P., 56 So.3d 615, 631 (Ala.2010), quoting in turn American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980)). In this case, we agree with the trial court that there is no evidence of outrageous conduct on Gadsden’s part that could possibly satisfy the stringent requirements necessary to support a tort-of-outrage claim. Therefore, the trial court’s judgment as to the tort-of-outrage-claim is due to be affirmed.

IV. Conclusion

For the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.

STUART, BOLIN, MURDOCK, SHAW, WISE, and BRYAN, JJ„ concur.

      . Boman’s claims were part of a lawsuit brought by him and 18 other active and retired Gadsden police officers. The SEIB members were joined as defendants following our decision in Boman I, holding that they were necessary parties to Boman’s action.

      . In 2002 the fund was terminated and its assets moved to the Employee Retirement System of Alabama, a State-administered retirement fund. See Taylor v. City of Gadsden, 767 F.3d 1124) 1127 (11th Cir.2014).

      . We note that Boman does not contend on appeal that there was an oral promise to pay lifetime health benefits and that those benefits vested after 20 years of service. Had an unwritten agreement existed, however, it appears it would be void under the Statute of Frauds because such an. agreement .by its terms could not be performed within one year of its making. § 8-9-2, Ala.Code 1975. Nor could the doctrine of promissory estoppel be used to enforce an oral agreement void under the Statute of Frauds. See Branch Banking & Trust Co. v. Nichols, 184 So.3d 337, 347-48 (Ala.2015).