author: ISHEE, J.,

text:
    Merle George SMITH, Jr., Appellant v. Carla Ann PETTIGREW, Appellee
    NO. 2016-CA-00358-COA
    Court of Appeals of Mississippi.
    07/18/2017
    ATTORNEY FOR APPELLANT: JOHN HINTON DOWNEY
    ATTORNEY FOR APPELLEE: H. BYRON CARTER III

      BEFORE LEE, C.J., ISHEE AND WESTBROOKS, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Merle Smith Jr. (Merle Jr.), provided his father, Merle Smith Sr. (Merle Sr.), funds to purchase property. The deed for the property conveyed the land to “Merle George Smith.” During Merle Sr.’s residency at the property, he paid the taxes on the property and maintained it. With his heath declining, Merle Sr. deeded the property to his live-in companion, Carla Pettigrew (Carla). Sometime later, Merle Sr. passed away, and Carla continued to reside on the property and pay the property taxes.

¶ 2. Merle Jr. brought an action against Carla in the Hinds County Chancery Court to confirm title and to remove clouds on title—claiming that the property was actually deeded to him and not Merle Sr. And thus, Merle Jr. argued that the property was never Merle Sr.’s to convey to Carla. A trial was held, testimony was heard, and a final judgment was rendered in favor of Carla. In her written order and opinion, the chancellor found, among other things, that Merle Jr. failed to deraign title, and that the land was deeded to Merle Sr.—not Merle Jr. Merle Jr. now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 1999 Merle Jr. took out a bank loan to purchase property for his father, Merle Sr. The property included a mobile home and the lot it sat on. Merle Jr. gave the money to Merle Sr. to purchase the property from Gerald and Tia Young. The deed for the property designated the grantee as “Merle George Smith.” Allegedly, Merle Jx\ purchased the property so that his father would have a place to live.

¶ 4. In March 2011, with his health declining, Merle Sr. deeded the property to Carla—his live-in companion—while reserving himself a life estate. He signed the deed “Merle George Smith.” Merle Sr. died in 2012. And in May 2014, Merle Jr. sought cancellation of the deed to Carla as void and confirmation of title in himself and further prayed for general relief.

¶5. Appearing pro se, Carla filed an answer, which admitted that the 1999 deed from the Youngs conveyed the property to the grantee in fee simple absolute; admitted that Merle Sr., using the name “Merle George Smith,” had executed the March 3, 2011 deed purporting to convey her the property; and denied the other allegations of Merle Jr.’s complaint. A trial was held. Carla represented herself throughout the trial.

¶ 6. Gerald Young testified first. Young testified that he was the former owner of the real property and the mobile home. Young had rental property, and Merle Sr. rented from him. He further testified that he wanted to get out of the rental business, and so he worked up a deal and sold the property to the same person who was renting the property—Merle Sr. Young testified that he did not remember much about the deed, but upon review, identified it as the one he and his ex-wife had signed. And while he was not certain of the agreed-upon price, Young agreed that the property sold for approximately $8,000. Young testified that he did not know if the deed was to Merle Jr. or Sr., but that he sold it to the man who was renting the property—which was Merle Sr. Young further testified that Bob Lawrence was the attorney who drafted the deed, and that he did not recall who gave him the check or where it came from. On cross-examination by Carla, Young said that he thought he had sold the property to the person who was renting it at the time. Young described the man he sold the property to as appearing around sixty years old—with poor skin and health issues. When the chancery court examined Young, he testified that the tenant to whom he sold the property was not Merle Jr.—who was sitting in the courtroom.

¶ 7., Lawrence—the lawyer that drafted the deed—testified that he had checked his records, and while he could not recall anything about what happened or whom he saw in July 1999, he had a copy of the deed he had prepared for the Youngs. Lawrence testified that he did not know where he or his secretary had gotten the information to put on the deed. But the deed indicated that the grantee’s address was 555 Reel St., Jackson, Mississippi 39212. Additionally, the grantee’s phone number was listed on the deed. Lawrence also had a copy of his phone ledger from 1999, which showed he had a phone call on July 21 from Young requesting Lawrence “to handle a closing for him.” Lawrence’s records showed that the Youngs then faxed him a copy of their deed to the property so that he had the legal description. Lawrence further confirmed that the grantee’s address listed on the deed was not the address of the property that was being sold. And upon.further questioning by the chancery court, Lawrence explained that the address of the property being conveyed was not on the deed, and that “the only time [he] would do that is if the street address corresponds with the mailing address of the grantee.” Lawrence also testified that he did not know Merle Jr. or Sr., and he could not remember if he-had ever met either one. Lawrence further testified that he had prepared the deed without a closing, and he was not aware of what consideration was exchanged.

¶ 8. Merle Jr. testified .that when the deed from the Youngs was executed in 1999, he was living at 555 Reel Street, and his phone number was the same as the number listed on the deed. Merle Jr. stated that he purchased the property for Merle Sr. after Merle Sr. came back from Kosiusko to work for Merle Jr. At the time, Merle Sr. was renting the mobile home and had an option to buy it. Merle Jr. testified that he went to the bank and got a loan to buy the property. When questioned by the chancery court, Merle Jr. testified that it was his father that made the deal with Young, and he provided the money. Merle Jr. claimed that the deed was put in his name, and not his father’s. Merle Jr. then testified to' the alleged, agreement between his father and himself, The agreement, Merle Jr. stated, was that if Merle Sr. paid the taxes and utilities, he could live there and work for Merle Jr. Merle Jr. admitted that he gave the Youngs’ check to Merle Sr., and that he never met the Youngs or Lawrence. Merle Sr. complied with the alleged agreement and payed taxes and utilities.

¶ 9. Merle Jr. also testified that after the property was purchased from the Youngs, the tax notices were sent to his residence; first, at the Reel Street address listed on the deed, and then, to him at 4277 Henderson Road, Jackson, where he moved in 2000. He had located several copies of these tax documents and offered one showing taxes paid on March 8, 2011. It listed the taxpayer as “Merle G. Smith” at 4277 Henderson Road, Jackson. This document was introduced into evidence. On further examination by Carla and the chancery court, Merle Jr. stated that his father had gotten behind on the taxes, but was supposed to pay them under their agreement even though he, Merle Jr., owned the property. He. further stated that when Merle Sr. was old enough, he filed for a tax exemption.

¶ 10. Charles Stanford, an abstractor, testified that the land-roll detail showed the owner of the property to be Carla Pettigrew. He examined the deed with Carla, which showed a life estate was reserved. Although he did not have a copy of that deed, he informed the chancellor that he would provide her with one.

¶ 11. The last witness to testify was Carla. She testified that she resides at the 985 Hook Street address. She stated that— since Merle Sr.’s death in 2012—she was the owner of the property, and she had been paying taxes oh the property for four years. Carla testified that she had first met Merle Sr. in November 1999—when he was living on the Hook Street property. She said that while she was not with him when he paid for the property or got the deed, he told her about “the circumstances.” Carla had been living on the property since 2002. She stated that she did not know where Merle Jr. lived. Carla paid the taxes starting with the 2012 taxes that were due on or before April 1, 2012. The taxes were delinquent, and she had to redeem the property. Because it was a life estate, Carla filed for a homestead exemption to put the property in her name. Carla also had to give an easement to the City of Byram in order to get sewer access on the property, and to do so, she had to show the city the deed. Additionally, Carla introduced Merle Sr.’s unprobated will, which appointed her as executor, and purported to leave her “the trailer and lot” where Merle Sr. lived.

¶ 12. After the conclusion of the trial, the chancellor issued an opinion and order. First, the order held that Merle Jr. should be denied any relief because he failed to deraign title, and that he failed to show perfect title in himself—even though this issue never arose at trial. Second, the order held that Merle Jr. could not sue to have title confirmed, because he was not in possession of the property and it was not unoccupied. And finally, the order held that it was Merle Sr.—not Merle Jr.—to whom the Youngs conveyed the property in 1999. Merle Jr. appeals.

STANDARD OF REVIEW

¶ 13. The Mississippi Supreme Court has held that an appellate court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous!,] or [applied] an erroneous legal standard.” Wilburn v. Wilburn, 991 So.2d 1185, 1190 (¶ 10) (Miss. 2008). Regarding legal questions, this Court applies a de novo standard of review. Id.

DISCUSSION

I. The chancellor did not err in finding that Merle Jr., was precluded from suing Carla to confirm title because he was not in possession.

¶ 14. On appeal, Merle Jr. argues that the chancellor erred in finding that Merle Jr. was precluded from suing Carla—to confirm title—because she, and not he, possessed the property. Specifically, Merle Jr. asserts that in making her determination, the chancellor relied on the wrong statute.

¶ 15. Under Mississippi Code Annotated section 11-17-29 (Rev. 2004), to have title confirmed, the claimant must either possess the property or the property must be unoccupied. See also Dixon v. Parker, 831 So.2d 1202, 1204 (¶ 8) (Miss. Ct. App. 2002).

¶ 16. Merle Jr. argues that the chancellor should have relied on Mississippi Code Annotated section 11-17-31 (Rev. 2004), which he argues stands for the proposition that one does not have to possess the property to bring an action to confirm title. Merle Jr.’s reliance on this statute, however, is misplaced. Section 11-17-31 provides that the real owner of property may bring an action in chancery court to have a “conveyance or other evidence or claim of title cancelled, and such cloud, doubt or suspicion removed from said title, whether such real owner be in possession or not .... ” Id. (emphasis added). Merle Jr. conflates these separate and distinct causes of action. To be sure, section 11-17-31 applies to suits to cancel title, but section 11-17-31 does not apply to suits to confirm title. And while it is true that Merle Jr. would not have to be in possession to bring a suit to have title canceled, he would have to possess the property, or the property must have been unoccupied, to bring a suit to confirm title.

¶ 17. In her opinion, the chancellor found that Merle Jr. was precluded from bringing a suit to confirm title because he did not possess the property and the property was not unoccupied. We agree. The record shows that Merle Jr. testified that he had never possessed the property. Instead, Carla had lived on the property since Merle Sr. conveyed the property to her through a warranty deed. As a result, we do not find that the chancellor erred in finding that—because Merle Jr. did not possess the property, and because the property was occupied by Carla—Merle Jr. was precluded from bring a suit to confirm title. This issue is without merit.

II. The chancellor did not err in finding that Merle Jr. failed to deraign title.

¶ 18. Next, Merle Jr. argues that the chancellor erred by finding that Merle Jr. failed to meet his burden of proof to deraign title—showing perfect title in himself—in his suit to remove clouds.

¶ 19. “In all suits to confirm title or to remove clouds it is the duty of the complainant to deraign title.” Russell v. Town of Hickory, 116 Miss. 46, 52, 76 So. 825, 825 (1917). The claimant may bring such a suit against someone in possession. Dixon, 831 So.2d at 1204 (¶ 8) (citing Broome v. Jackson, 193 Miss. 66, 72, 7 So.2d 829, 831 (1942)). “The complainant ... has the burden of showing perfect title in himself.” Culbertson v. Dixie Oil Co., 467 So.2d 952, 954 (Miss. 1985). But where the title of the parties came from a common source, complete deraignment is not required. Warren v. Clark, 230 Miss. 873, 94 So.2d 323, 328 (1957).

¶20. On appeal, Merle Jr. argues that he was not required to deraign title because Carla and he claim title from a common source—the Youngs. We disagree. Addressing common source, the our supreme court has held that “[w]hen ... the defendant justifies his possession by showing that he holds [title] under another deed than that shown by the plaintiff, the effect of the proof of title from a common source is destroyed, and the plaintiff is put to the proof of his title without regard to the common source of title.” Hughes v. Wilkinson, 28 Miss. 600, 606 (1855). Here, Merle Jr. claimed title under a deed from the Youngs; while on the other hand, Carla claimed title under a deed from Merle Sr. These are separate and distinct deeds—the source was not the same. Consequently, Merle Jr. was required to der-aign his title, and the chancellor found that he failed to do so.

¶ 21. Additionally, Merle Jr. argues that the chancellor erred in finding that it was Merle Sr., and not Merle Jr., to whom the Youngs conveyed the property. We disagree. First, the record shows that Young testified that even though the deed used the name “Merle George Smith” it was his intent to convey the property to Merle Sr. Second, while Merle Jr. might have provided the money for the transaction, the record shows that it was Merle Sr. who provided the check to Young as payment for the property. In fact, Young testified that up until the day of the court hearing in 2016, he had never met Merle Jr. And third, the record- shows that de-. spite Merle Jr.’s claim to the property, he had never paid any property taxes on it, and had never paid for the maintenance or upkeep of the property.

¶22, Merle Jr. attempts to thwart the chancellor’s findings by highlighting the fact that he paid for the property, and that the title was sent to his place of residence. Merle Jr. argues that this was undisputed proof of his alleged agreement with his father. Yet after consideration of all of the testimony, the chancellor found Merle Jr.’s argument unpersuasive. That said, there is nothing in the record to allow us to find that the chancellor’s conclusion was clearly erroneous.

¶ 23. Upon review of the record, we cannot say that the chancellor erred in finding that Merle Jr. failed to show perfect title in himself—and thus failed to deraign his title; nor can we say that the chancellor erred in finding that the Youngs conveyed the deed to Merlé Sr. and not Merle Jr. This issue is without merit.

CONCLUSION

¶ 24. Upon review of the record, we find no reversible error. We affirm.

¶ 25. AFFIRMED.

LEE, C.J., IRVING, P.J., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFAIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Merle Jr. received a loan from Trustmark Bank using a certifícate of deposit to buy the property. There was no mortgage on the property.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    John David FOREMAN, Appellant v. Kristy Lynn FOREMAN, Appellee
    NO. 2016-CA-00210-COA
    Court of Appeals of Mississippi.
    07/18/2017

      STEVEN ALFRED KOHNKE TIMOTHY KEVIN BYRNE, ATTORNEYS FOR APPELLANT
    SHARON PATTERSON THIBO-DEAUX, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Kristy Lynn Foreman was granted a divorce from John David Foreman based on uncondoned adultery. John appeals the chancellor’s distribution of the marital estate, the alimony award, and the child-support determination.

FACTS AND PROCEDURAL HISTORY

¶ 2. John and Kristy were married on July 19, 1996. They had one child. After the child’s birth, Kristy primarily stayed home while John worked. John’s job required him to spend lengthy periods of time in China. While in China, John had an extramarital affair and fathered a child.

¶3. John and Kristy separated around October 2012, and John later filed for divorce based on irreconcilable differences. Kristy counterclaimed for divorce on the grounds of habitual cruel and inhuman treatment, uncondoned adultery, and desertion. In February 2013, Kristy filed for separate maintenance. The chancellor issued a separate-maintenance order granting Kristy sole legal and physical custody of the minor child and $3,500 per month to maintain the mortgage and pay other household bills.

¶ 4. On January 25, 2016, the chancellor entered a final judgment of divorce based on uncondoned adultery. The chancellor awarded physical custody of the child to Kristy and divided the marital property. The property division included the marital home, a timeshare property, vehicles, and John’s retirement account. The chancellor ordered John, to pay $700 per month in child support, $3,300 per month in periodic alimony, and $3,500 of Kristy’s attorney’s fees. The chancellor also ordered that John provide twenty-four consecutive months of health insurance for Kristy and assume all responsibility for the child’s dance and choir expenses. It is from this judgment that John now appeals.

STANDARD OF REVIEW

¶ 5. “In domestic-relations cases, ‘[t]his Court will not disturb a chancellor’s judgment when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard.” Ewing v. Ewing, 203 So.3d 707, 711 (¶ 9) (Miss. Ct. App. 2016) (citation omitted). “If the chancellor’s findings are supported by substantial evidence, then we will affirm.” Id. (citation omitted), “Questions of law, however, are reviewed de novo.” Id. (citation omitted).

ANALYSIS

I. Whether the chancellor erred in the division of the marital estate.

¶ 6. First, John appeals the chancellor’s division of the marital property. He claims that the chancellor did not classify the property as marital or nonmarital property prior to distribution. He further contends that the chancellor failed to conduct an analysis under the Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), factors when dividing the marital property. John also argues that the chancellor’s calculation of alimony was erroneous.

¶ 7. “When dividing marital property, chancellors are directed to (1) classify the parties’ assets as marital or separate; (2) determine the value of those assets; (3) divide the marital estate equitably based upon the factors set forth in Ferguson-, and (4) consider the appropriateness of alimony if either party is left with a deficiency.” Ewing, 203 So.3d at 711 (¶ 11) (citation omitted).

A. Classification of Assets

¶ 8. John contends that the chancellor operated under the presumption that all of the property at issue was marital property. He argues that the chancellor erred when she failed to classify the property as marital before making a distribution. Kristy contends that the chancellor was correct in her determination because all of the assets were in fact marital. She asserts that, during the trial, neither party disputed whether the assets were marital or nonmarital.

¶ 9. “In dividing the property of' the divorcing couple, the chancellor must first classify their assets and liabilities as belonging to the marriage, to the husband, or to the wife.” Smith v. Smith, 856 So.2d 717, 719 (¶ 8) (Miss. Ct. App. 2003) (citing Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss. 1994)). “Once this is done, the chancellor must [then] look to the factors set out by the supreme court in Ferguson....” Id. “The Ferguson factors are used to determine how to divide the marital assets between the divorcing couple.” Id.

¶ 10. From the bench, the chancellor did not clearly classify the property as marital or nonmarital. “However, a failure to classify property does not automatically result in reversible error if the division of property is fair.” Branch v. Branch, 174 So.3d 932, 944 (¶ 45) (Miss. Ct. App. 2015) (citation omitted). Here, the chancellor heard testimony, in which both John and Kristy stated that they jointly owned the home, timeshare, and vehicles. It appears the chancellor relied on this testimony; however, this is not completely clear from the record. We do not have the, benefit of the chancellor’s analysis as to how John’s retirement account was a marital asset. As a result, we must reverse the judgment and remand for a clear classification of the' marital property.

B. Ferguson Factors

¶ 11. John argues that the chancellor failed to adequately analyze the Ferguson factors when distributing the marital property. He further contends that the chancellor made no findings of fact or conclusions of law to accompany the property distribution. He mainly asserts error in the chancellor’s division of the marital residence, timeshare, and his retirement account.

¶ 12. After classifying property as marital, a chancellor must equitably divide the property in accordance with the factors prescribed in Ferguson. The factors are:

(1) Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows: (a) [djirect or indirect economic contribution to the acquisition of the property; (b) [contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and-(c) [contribution to the education, training or other accomplishment bearing on the earning power of the spouse' accumulating the assets[;]
(2) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise[;]
(3) The market value and the emotional value of the assets subject to distribution[;]
(4) The value of assets not ordinarily, ■absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; ■
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and
(8) Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 13. “In Ferguson, [the supreme court] established guidelines [that] chancellors must follow when dividing marital property.” Lee v. Lee, 78 So.3d 326, 329 (¶ 10) (Miss. 2012). Additionally, in applying the factors, “chancellors must support their decisions with findings of fact and conclusions of law.” Dickerson v. Dickerson, 34 So.3d 637, 644 (¶ 24) (Miss. Ct. App. 2010) (citation omitted). “While chancellors need not make findings as to each and every factor set forth in Ferguson,” more is required than vague references to factors with no indication of how each was applied. Lee, 78 So.3d at 329 ¶ 10, “The failure to make findings of fact and conclusions of law is manifest error requiring reversal and remand.” Id.

¶ 14. Kristy concedes that the Ferguson factors must be used when making a division of the marital property. However, she asserts an application of the factors was not necessary because neither party disputed any asset as nonmarital property. Further, she argues that the chancellor did not actually divide the marital home or the timeshare. Instead, Kristy asserts there was no property division; while she received exclusive use and possession of the marital home, the property remains a jointly owned asset. Kristy cannot sell the home without John’s consent, nor can John sell the timeshare without ensuring that Kristy receives fifty percent of the net proceeds. Kristy also contends that she was entitled to fifty percent, rather than forty-six percent, of John’s retirement account because the account was accumulated entirely during the marriage.

¶ 15. Here, the chancellor did not clearly specify each party’s contribution to the marital property. From the bench, the chancellor made a vague reference to the difference in John’s and Kristy’s income statuses. This reference suggests that the chancellor sought to establish that John was the financial provider, and Kristy, as the domestic provider, was entitled to maintain the lifestyle she had become accustomed to living. However, the chancellor made no specific findings of fact or conclusions of law to support this inference.

¶ 16. Further, the chancellor made no reference to the Ferguson factors from the bench or in the final judgment of divorce. John argues that the property division was inequitable because the chancellor failed to support the division of the marital property with legal authority. We agree, and reverse and remand for an application of the Ferguson factors.

II, Whether the chancellor’s grant of periodic alimony was proper.

¶ 17. John next argues that the chancellor erroneously awarded Kristy $3,300 per month in periodic alimony. He asserts the chancellor failed to identify the precise type and duration of the support. Further, John contends that the chancellor did not consider his actual income or expenses at the time of trial. He claims that the chancellor’s miscalculation of alimony placed numerous financial burdens on him.

¶ 18. Pursuant to the separate-maintenance order John paid $3,300 per month to Kristy for the mortgage, utilities, and other related bills. At the trial, the chancellor ordered that John continue to pay $3,300 for the same expenses. The chancellor declined to characterize the monthly support as alimony and instead explained her decision as follows:

The reason the Court specifically is ordering - it’s not necessarily in the form of spouse’s support, but that’s what it equates to because of the difference of income status of the parties and the fact that that’s the position, according to the testimony, that they maintained prior to the separation. Of the [$]3,300 would be the utility expenses and all the expenses associated with everything else. Okay?

¶ 19'. The chancellor appeared reluctant to declare the $3,300-per-month payment to Kristy as alimony. However, the chancellor pointed out that the award was made because of the difference in the income status of the parties. Thus, we characterize the grant as periodic alimony.

¶20. “The chancellor has broad discretion in alimony cases.” Mamiaro v. Mamiaro, 179 So.3d 51, 54 (¶ 13) (Miss. Ct. App. 2015) (citation omitted). “Appellate courts need only to. determine if the chancellor’s decision was supported by credible evidence.” Id, “[Periodic alimony should only be considered if the chancellor determines that a spouse has suffered a disparity of income and standard of living following the equitable division of the marital assets.” Ewing, 203 So.3d at 715 (¶ 26) (citation omitted).

¶ 21. The chancellor must consider an award of alimony based on the following factors provided in Armstrong: ■

(1) The income and expenses of the parties;
(2) The health and earning capacities of the parties;
(3) The needs of each party;
(4) The obligations and assets of each party;
(5) The length of the marriage;
(6) The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
(7) The age of the parties;
(8) The standard of living of the parties, both during the marriage and at the time of the support determination;
(9) The tax consequences of the spousal support order;
(10) Fault or misconduct;
(11) Wasteful dissipation of assets by either party; or
(12) Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).

¶ 22. While the chancellor made no specific findings as to the Armstrong factors, it is apparent that she relied loosely on several of the factors. The chancellor made brief references to the income disparity between the parties and to Kristy’s standard of living. However, the chancellor failed to make any specific findings as to either party’s income. The chancellor also made no mention of either party’s financial státements or obligations. Thus, it is difficult to ascertain the factors taken into consideration when granting the alimony.

¶ 23. John contends that the chancellor either based the alimony payment on his previous salary or that she failed to consider his financial burdens. He claims that just prior to the trial he was demoted at work, which drastically reduced his income. Prior to the demotion, John received a base salary of $99,199.92 and a $300-per-day per diem when he worked in China. After the loss of management status, John provided a financial statement and pay stubs, which reflected the loss of his bonus pay. He argues that the chancellor did not consider his financial burdens as provided in his financial statement. John also contends that the chancellor failed to apply the Armstrong factors when she ordered him to pay $3,300 in alimony and $700 in child support; provide two years of health insurance for Kristy; and take sole responsibility for the child’s dance and choir expenses, which were capped at $4,500 per year.

¶ 24. While the chancellor did not specifically determine that the monthly payment was periodic alimony, the record indicates the grant of $3,300 amounts to the equivalent of such. Again, this is evinced by the chancellor’s notation of the income disparity between the parties and reference to Kristy’s standard of living. The chancellor also ordered that- John continue to pay the mortgage until the child reaches the age of twenty-one. This indicates that the alimony award would eventually be reduced by the cost of-the monthly mortgage. These factors indicate that the chancellor made a grant df alimony without fully applying Armstrong.

¶ 25. “In determining the amount of support payable to the wife, .a chancellor must consider ‘not only reasonable needs of wife but also [the] right of husband to lead as normal a life as reasonably possible with a decent standard of living.’” Layton v. Layton, 181 So.3d 275, 293 (¶ 63) (Miss. Ct. App. 2015) (quoting Massey v. Massey, 475 So.2d 802, 803 (Miss. 1985)). Here, it appears the chancellor did not take John’s standard of living into account. While John’s earnings far exceeded Kristy’s income, the $3,300 monthly payments were not reasonable. There is no evidence in the record "that the chancellor assessed the award in relation to John’s payments for child support, Kristy’s health insurance and attorney’s fees, and the child’s dance and choir expenses. Thus, on remand, an award of alimony should be considered in light of John’s other payments.

¶26. “Because of the uncertainty regarding the husband’s income, [this Court has previously] vacated and remanded the alimony award ’ for the chancellor to make more detailed findings of fact regarding the Armstrong factors.” Seghini v. Seghini, 42 So.3d 635, 641 (¶ 17) (Miss. Ct. App. 2010) Here, the chancellor made insufficient findings in the record and, failed to adequately.discuss the Armstrong factors. Most importantly, while the chancellor made clear, there were differences in John’s, and Kristy’s incomes, she entered no findings of fact or conclusions of law regarding the income considerations. Further, the chancellor failed to discuss the reasonable needs of both John and Kristy when determining the amount of the award. Therefore, this issue is reversed as to the indirect finding of alimony in the amount of $3,300. The chancellor, on remand, should specify the type of alimony, apply the Armstrong factors, and consider John’s other financial obligations along with his ability to maintain a decent standard of living.

III. Whether, the chancellor’s child-support award complies with Mississippi Code Annotated section 4.8-19-101 (Rev. 2015).

¶27. John argues that the chancellor did not properly calculate the child-support payment, which resulted in an excessive award. He , further contends that the chancellor made.no findings of fact to, support deviating from the guidelines set forth in Mississippi Code Annotated section 43-19-101. He argues that the $700-per-month child-support payment- and the- $4,‘500 in annual support for the child’s dance and choir expenses have a cumulative effect. He contends there was insufficient consideration of his income and financial capacity to meet these child-support obligations.

’ ¶ 28. Kristy argues that the “child support guidelines are mere guidelines and do not control the chancellor’s award of child support.” McEachern v. McEachern, 605 So.2d 809, 814 (Miss. 1992). Kristy applies the statutory calculations to the adjusted gross income (AGI) of John’s base salary, and she asserts that the child-support award of $700 was actually below the statutory-requirement amount of $1,137.37. This finding suggests that the chancellor considered other factors, such as the child’s health-insurance needs and the dance and choir expenses.

¶ 29. This Court has held “that without an express finding of fact as to the payor’s income, ‘it cannot be said that the [child-support] guidelines were either followed or not followed.’” Seghini, 42 So.3d at 641 (¶ 17) (quoting Gray v. Gray 746 So.2d 234, 237 (¶ 14) (Miss. 1999). John asserts that the chancellor likely relied upon his income as provided in the separate-maintenance order instead of his actual base salary at the time of trial. John testified that he had recently been demoted at work, which resulted in a substantial decrease to his income. As proof of this change in income, John submitted into evidence his last two pay stubs. The record does not indicate which documentation the chancellor relied upon when calculating the child-support award. Therefore, we conclude that the chancellor failed to make an express finding of fact as to John’s income.

¶30. This issue is affirmed as to the finding that child support is warranted. But the chancellor, on remand, should make an- express finding with regard to John’s current income. The chancellor should also consider every aspect of the child support, including the maintenance of health insurance for the child, dance and choir expenses, and John’s other financial obligations.

¶ 31.- AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

ISHEE, WILSON AND GREENLEE, JJ., CONCUR. FAIR, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., BARNES AND CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND WESTBROOKS, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . The appellate record does not contain a copy of the separate-maintenance order. This information came from the transcript where both parties, their attorneys, and the chancellor repeatedly referenced the details of the order.

      . At trial, the chancellor also stated that when the parties' child reached the age of twenty-one, the $3,300 payment would be reduced by the amount of the mortgage. However, the final judgment did not provide for such a reduction.

      . John testified that prior to being demoted at work his gross income for 2012 was approximately $150,000. In both 2012 and 2013, respectively, John’s gross income was approximately $170,000 each year.

      . The chancellor ordered that John maintain Kristy’s medical insurance for twenty:four months and also pay $3,500 of her.legal fees.

      . Kristy applied the child-support guidelines as set forth in section 43-19-101. She calculated John's year-to-date income, which included monies received prior to John’s demotion. She relied on gross earnings totaling $139,080.46. From this amount she subtracted the-"nondiscretionary taxes” and came up with an AGI of $96,974.86, She then reduced the AGI by fourteen percent, which is the applicable percentage when calculating child support for one child, Kristy came up with an annual child-support payment for $13,576.48, or $1,131.37 per month.


author: FAIR, J.,

text:
    IN the INTEREST OF V.M.H., V.M.H., V.M.H., and V.M.H.: Vonrio Hawkins, Appellant v. The Youth Court of DeSoto County, Mississippi, Appellee
    NO. 2016-CA-00622-COA
    Court of Appeals of Mississippi.
    07/18/2017

      ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW, BENJAMIN DAVID MURPHY
    ATTORNEY FOR APPELLEE: ELIZABETH PAIGE WILLIAMS
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Vonrio Hawkins appeals a decision of the DeSoto County Youth Court adjudicating his four children abused and placing them in the custody of the Mississippi Department of Human Services. Hawkins contends that, because the DeSoto County Chancery Court had previously entered an order granting him custody of the children, the chancery court had exclusive continuing jurisdiction over custody of the children. Hawkins also argues that the youth court lacked substantial evidence to find that the children were abused rather than simply disciplined. We find no merit to either contention and affirm.

DISCUSSION

1. Jurisdiction

¶ 2. Hawkins’s challenge to the youth court’s jurisdiction is made for the first time on appeal, though the chancery court order giving him custody does appear in the record. It notes that the mother of Hawkins’s four children had three other children and did not have the means to support such a large family; he had surrendered Hawkins’s children to him voluntarily. The chancery court order granted Hawkins custody of the children and provided for visitation by the mother. It was filed in June 2012. The youth court proceedings stemmed from a complaint that the children had reported abuse to their mother during visitation in December 2015. At the time of the hearing, the children were nine, eleven, twelve, and fourteen.

¶3. Hawkins contends that the youth court judgment is void because that court lacked jurisdiction over the subject matter—the custody of the children—and that this issue may be raised for the first time on appeal. See M.R.C.P. 12(h)(3).

¶ 4. We agree that Hawkins is contesting subject matter jurisdiction and that the issue can be raised for the first time on appeal, but we find it to be without merit. The boundary between the jurisdiction of chancery courts and youth courts under our law has been somewhat unclear at times, and indeed may still be under certain circumstances; but for the specific facts of this case, we see no difficulty finding jurisdiction in the youth court. Mississippi Code Annotated section 43-1-151(l)(c) (Rev. 2015) provides in relevant part:

The youth court shall have exclusive original jurisdiction in all proceedings concerning ... an abused child ... except in the following circumstances:
When a charge of abuse of a child first arises in the course of a custody action between the parents of the child already pending in the chancery court and no notice of such abuse was provided prior to such chancery proceedings, the chancery court may proceed with the investigation, hearing and determination of such abuse charge as a part of its hearing and determination of the custody issue as between the parents, notwithstanding the other provisions of the Youth Court Law;.

Setting aside the question of whether the abuse allegations here arose “in the course of a custody action between parents of the child already pending in chancery court,” the statute provides that the chancery court may proceed on abuse allegations. Thus, under the statutory scheme the chancery court’s jurisdiction over that category of abuse claims arising after its assumption of jurisdiction over custody is not exclusive, but is conditioned on the chancery court’s election to assume jurisdiction—and that did not occur here.

¶ 5. Hawkins responds by citing the repeated pronouncement by our courts that a chancery court, after deciding custody, has continuing and exclusive jurisdiction over custody. See, e.g., Ladner v. Ladner, 206 So.2d 620, 624-25 (Miss. 1968) (abrogated in part). While this is certainly true when the issue is a simple modification of the original court’s custody decree, or a similar issue between the same parties, the continuing jurisdiction has not been held to be exclusive when it comes to related but distinct actions such as habeas corpus and abuse allegations in the youth court. See Wade v. Lee, 471 So.2d 1213, 1215-17 (Miss. 1985) (county court had jurisdiction to enter temporary habeas corpus orders even between the same parties to the original custody decree); In re D.L.D., 606 So.2d 1125, 1127-30 (Miss. 1992) (youth court had jurisdiction over custody of child based on finding of abuse, even after the chancery court entered a temporary custody order).

¶ 6. The current subsection 43-21-151(l)(c) was adopted after In re D.L.D. and has been noted to have been a response to that decision by the Legislature. See In re D.K.L., 652 So.2d 184, 189-90 (Miss. 1995). But, as we said, the statute allows the chancery' court the option of resolving the abuse allegations under certain circumstances. This reading of the statute was confirmed in the more recent case of McDonald v. McDonald, 39 So.3d 868, 886-87 (¶¶ 61-62) (Miss. 2010), where the supreme court explained that both the chancery court and the youth court had jurisdiction over abuse allegations that arose after an adjudication of custody in chancery court. There, the chancery court actually exercised its option to assume jurisdiction and adjudicated the abuse allegations, and that decision was affirmed. Id. But, in the instant case, the. chancery court never asserted jurisdiction, and it was the youth court that adjudicated the abuse allegations. It had jurisdiction to do so from the statute. See id. .

¶ 7. We conclude that the youth court’s judgment is not void for want of jurisdiction. This issuers without merit.

2. Sufficiency of the Evidence

¶8. Hawkins’s remaining issue— though not exactly styled this way—is essentially a challenge to the sufficiency of the evidence supporting the youth court’s determination that his four children were abused.

¶ 9. In relevant part, the statute defines an abused child as one “whose parent ... has caused or allowed to be caused, upon the child, ... emotional abuse, mental injury, nonaccidental physical injury or other maltreatment.” Miss. Code Ann. § 43-21-105(m) (Supp. 2016), But “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.” Id. Mississippi Code Annotated section ’43-21-561(3) (Supp. 2016) requires proof of abuse only by a preponderance of the evidence.

¶ 10. The youth court judge is the finder of fact and the judge of the credibility of the witnesses. See In re D.O., 798 So.2d 417, 421 (¶ 13) (Miss. 2001). Our review of the youth court’s decision is limited to the familiar substantial evidence / manifest error standard. Id. On appeal, this Court must consider all of the evidence in the light most favorable to the State. Id. '

¶ 11. Three of the four children testified at the hearing, and each described similar actions by Hawkins toward' them or their siblings: they were slapped in the head with an open hand, punched in the head, face, or chest with a closed fist, choked, struck with a broom, “body slammed” onto a concrete floor, and kicked in the chest or stomach. Hawkins contends, that the testimony of the children was not credible; that it was- contradicted by his witnesses, who were in a position to have seen some of the abuse alleged by the children but testified that they did not; that the children’s claims were uncorroborated by solid proof of injuries; and that the evidence showed only that he used corporal punishment. These arguments are, for the most part, just an attempt to relitigate factual disputes resolved by the youth court. This court is not in a position to reevaluate the credibility of witnesses; we can only decide whether any reasonable trier of fact could have found them credible—and we must answer that question in the affirmative. The children were generally consistent in their testimony, and their account was not improbablé on its face or contradicted by overwhelming evidence.

¶ 12. Likewise, while we agree with Hawkins that corporal. punishment does not constitute abuse under 'Mississippi law, the statute requires that physical discipline be performed in a reasonable manner. See § 3-21-105(m). The Mississippi Supreme Court has elaborated:

The Mississippi Youth Court Act was not intended to and does not prohibit the use of corporal punishment in disciplining a child. Injury is labeled abusive only when it constitutes maltreatment.
A parent, being charged with the training and education of his child, has a right to adopt such disciplinary measures for the child as will enable him to discharge his parental duty. Accordingly, he has a right to correct the child by reasonable and timely punishment, including corporal punishment. A parent has a wide discretion in the performance of such functions. The control and proper discipline of a child by the parent may justify acts which would otherwise constitute assault and battery, but the right of parental discipline clearly has its limits. ... The rule recognized by a majority of the courts is that a parent may, without criminal liability, inflict such punishment as is reasonable under the facts and the circumstances.
59 Am. Jur. 2d Parent and Child § 22, 152-53 (1987). “The test of unreasonableness is met at that point where the parent ceases to act in good faith and with parental affection, and acts immoderately, cruelly or mercilessly, with a malicious desire to inflict pain rather than a genuine effort to correct the child by proper means.” State v. Hunt, 2 Ariz. App. 6, 406 P.2d 208, 222 (1965).

In re A.R., 579 So.2d 1269, 1270-71 (Miss. 1991) (footnote omitted).

¶ 13. The youth court judge directly addressed the reasonableness of Hawkins’s alleged discipline methods, and it held that they were unreasonable. In response, Hawkins cites Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984), for the proposition that, by itself, a single unwarranted striking of a child would not amount to a material change of circumstances. But the language he cites is dicta, and it was directed toward a different issue—the requirement of a material change in circumstances to support a custody modification in chancery court. Moreover, Hawkins’s striking of the children was alleged to be frequent and persistent over a long period of time, not an isolated incident as contemplated in Tucker. Hawkins also cites In re A.R. for the proposition that bruising is insufficient injury to sustain a finding of abuse. But that case involved bruising of the buttocks from spanking—a far cry from the outrageous conduct found to have occurred here, which included punching, “body slamming,” and kicking. Furthermore, Hawkins’s emphasis on injury is misplaced. The statute, section 43-21-105(m), provides that both nonaccidental physical injury and “other maltreatment” may constitute abuse. Physical discipline is excepted from the definition of abuse only when it is performed in a reasonable manner. See id. “Discipline” of the sort at issue here presents an unreasonable danger to the child and constitutes maltreatment whether or not it results in injury more severe than bruising.

¶ 14. Finally, the youth court also adjudicated the children to be neglected as well as abused. Hawkins contends that this was error, but he has not provided any additional argument or authority. Thus, no error has been shown, and we affirm the youth court on that point.

¶ 5. AFFIRMED.

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


text:
    Tasha Michelle FOX, Appellant v. William Jeremiah FOX, Appellee
    NO. 2016-CA-00977-COA
    Court of Appeals of Mississippi.
    07/18/2017
    ATTORNEY FOR APPELLANT: CARRIE A. JOURDAN
    ATTORNEY FOR APPELLEE: NONE
    BEFORE GRIFFIS, P.J., FAIR, WILSON AND WESTBROOKS, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Tasha Fox appeals a decision of the Lowndes County Chancery Court denying her Rule 60(b) motion to set aside a prior decision granting her ex-husband, William Fox, unsupervised visitation with the couple’s nine-year-old son. We find no merit to that contention. However, we agree that the chancery court erred in finding Tasha in criminal contempt for violating the visitation order, as Tasha was not afforded various procedural safeguards required to support a finding of criminal contempt. To the extent that Tasha was found in criminal contempt, the chancery court’s judgment is vacated.

STANDARD OF REVIEW

¶2. William did not file an appellee’s brief, but that does not necessarily require reversal of the chancellor’s judgment. In Rogillio v. Rogillio, 101 So.3d 150, 153 (¶ 12) (Miss. 2012), the Mississippi Supreme Court explained:

[Fjailure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error. Automatic reversal is not required where the appellee fails to file a brief. However, the appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.

(Internal citations and quotation marks omitted). Furthermore:

When matters on appeal touch the welfare of a minor child, then regardless of whether a party filed a brief, this Court will reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee.... If the record is large or complicated and [the appellant] thoroughly briefed the issues, provided applicable citations of authority, and presented an apparent case of error, then we should consider [the appellee’s] failure to file a brief as his confession of error and reverse the chancellor’s judgment. But if the record can be conveniently examined, and the record reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, then we should disregard the fact that [the appellee] failed to file a brief.

Roberts v. Roberts, 110 So.3d 820, 825 (¶¶ 10-11) (Miss. Ct. App. 2013) (internal citations and quotation marks omitted).

¶ 3. The chancellor’s findings of fact should still be affirmed when supported by substantial credible evidence. Id. at 824 (¶ 9). “This Court only disturbs a chancellor’s findings if they are manifestly wrong or clearly erroneous or if the chancellor applied an incorrect legal standard.” Pearson v. Pearson, 121 So.3d 266, 268 (¶ 6) (Miss. Ct. App. 2013) (citation omitted). Conclusions of law, however, are reviewed de novo. Id.

DISCUSSION

1. Rule 60(b) Motion

¶ 4. In her first issue, Tasha contends that the chancery court erred in denying her Rule 60(b) motion to set aside a prior judgment granting William unsupervised visitation with the child. Her argument is divided between two points: she asserts that the court should have set aside its visitation order based on the child’s fragile emotional condition, and that it should have found that William had failed to meet a condition of unsupervised visitation, specifically that he complete an alcohol and drug assessment.

¶ 5. It is unclear how these contentions, are supposed to show that Tasha was entitled to relief under Rule 60(b), which can be granted only on certain specified grounds. Tasha’s brief on both of these contentions is cursory; she devotes only a paragraph to each, and she cites no authority for either beyond the appellate standard of review for a Rule 60(b) motion. “Failure to cite to relevant authority results iñ a waiver of the issue on appeal.” Bennett v. State, 933 So.2d 930, 953 (¶ 86) (Miss. 2006).

2. Criminal Contempt

¶6. The record reflects that, the chancellor found Tasha to be in both civil and criminal contempt for her refusal to allow William visitation under the April 2015 order. The chancellor sentenced Tasha to three’ days’ imprisonment, suspended on the condition that she surrender the child to' William for a two-week visitation in July 2016. Tasha does not contest the finding of civil contempt.

¶ 7. On this point, we agree: William’s petition only alleged civil contempt, and Tasha was not afforded any of the proce-' dural protections required to support a conviction of criminal contempt. See In re McDonald, 98 So.3d 1040, 1042-45 (¶¶ 4-12) (Miss. 2012). We vacate the chancellor’s finding of criminal contempt.

¶ 8. AFFIRMED IN PART AND VACATED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN ' OPINION.

      . M.R.C.P. 60(b).


text:
    Marlana ALONSO, Individually and on Behalf of all Heirs at Law and Wrongful Death Beneficiaries of James Leroy Smith, Appellant v. Jason C. ROSS, Appellee
    NO. 2016-CA-00113-COA
    Court of Appeals of Mississippi.
    07/25/2017

      ATTORNEY ■ FOR APPELLANT: DON H. EVANS
    ATTORNEYS FOR APPELLEE: MYLES ETHAN SHARP, MARK EDWARD NORTON, JOSEPH RANDLE TULLOS
    BEFORE GRIFFIS, P.J., ISHEE, CARLTON AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In February 2013, James Smith was struck by a vehicle driven by Jason- Ross on Highway 49 in .Hattiesburg, Mississippi. Smith died as a result of the collision. In August 2013, Mariana Alonso, Smith’s daughter, filed a wrongful-death suit, individually and on behalf of all heirs-at-law and wrongful-death beneficiaries, against Ross in the Forrest County Circuit Court. Ross moved for summary judgment, which the circuit court granted. Alonso now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 6, 2013, Smith, a pedestrian, was struck and Wiled-by Ross’s vehicle at approximately 8 p.m. Ross collided with Smith while traveling northbound on Highway 49 in Hattiesburg, striking Smith near the front-right headlight. The collision took place near the interchange of Highway 49 and Interstate 59, roughly 100 yards south of the interr section of Highway 49 and Classic Drive.

¶ 3.- At the time of the collision,' Ross, who is an EMT, was en route to work at AAA Ambulance, located approximately one-half mile from the scene of the- accident. Ross’testified that he was traveling in the right-hand, northbound lane of Highway 49 when the accident took place. He further stated that it was dark, and the roads were wet from rain that had fallen earlier in the day—-though it was not raining at the time of- the- collision. Ross testified that he was neither speeding, using his cell phone, nor under the influence of any substance at the time of the accident. Ross also testified that he never saw Smith before striking him with his vehicle; rather, he became aware of the collision upon feeling its effects. Ross stated that it felt as if he had struck a large animal.

¶ 4. Following the collision, Ross stopped on the shoulder of Highway 49, near the intersection of Highway 49 and Classic Drive. He then walked back toward the area where he felt the contact and saw Smith lying in the grass, off the side of the roadway. Ross stated this was the first time that he realized he had struck a pedestrian. Ross further stated that Smith was wearing a camouflage jacket and pants. With Smith lying motionless, Ross immediately phoned 911 for assistance. He then checked Smith for a pulse, found none, and began performing CPR until medical assistance arrived. It was later determined that Smith possessed a blood-alcohol concentration (BAC) of .247—over three times the legal limit for intoxication.

¶ 5. During Alonso’s deposition testimony, she admitted on several different occasions that she did not have any evidence that Ross was negligent in the operation of his motor vehicle. At one point, Alonso stated, “As far as evidence, I do not have any.” As a result, Alonso could not testify to: (1) where the accident occurred; (2) the lane in which the accident occurred; (3) which direction Ross was traveling; (4) what speed Ross was traveling; (5) whether Ross was keeping a proper lookout; (6) where Smith was at the time of the accident; and (7) whether Smith was exercising due care. There were no witnesses to the accident other than Ross.

¶ 6. Ross moved for summary judgment, arguing that Alonso had not asserted any claims against Ross founded in admissible evidence—rather, all of Alonso’s claims were based upon mere speculation. Alonso responded, arguing that where a pedestrian is struck by a motor vehicle, some form of negligence is involved—thus, jury questions were raised, therefore requiring the denial of Ross’s motion for summary judgment. The circuit court heard argument from both parties’ counsel and ultimately granted Ross’s motion. Alonso now appeals, arguing the circuit court erred as there exist genuine issues of material fact.

STANDARD OF REVIEW

¶ 7. A trial court’s grant or denial of summary judgment is reviewed de novo. Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss. 2005). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “If any triable facts exist, the lower court’s grant of a summary judgment will be reversed; otherwise the decision will be affirmed.” Miller v. Meeks, 762 So.2d 302, 304 (¶ 3) (Miss. 2000). The evidence must be viewed in the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Only when the moving party has met its burden by demonstrating that no genuine issues of material fact exist should summary judgment be granted. Tucker v. Hinds Cty., 558 So.2d 869, 872 (Miss. 1990). “[W]here the party opposing the motion for summary judgment on a claim or defense ... bears the burden of proof at trial, and the moving party can show a complete failure of proof on an essential element of the claim or defense, other issues become immaterial and the moving party is entitled to summary judgment[.]” Crain v. Cleveland Lodge 1532, Order of Moose Inc., 641 So.2d 1186, 1188 (Miss. 1994) (emphasis in original).

DISCUSSION

¶ 8. Alonso asserts the circuit court erred in granting summary judgment. Specifically, Alonso argues that because Ross did not see Smith before striking him, a jury could infer Ross was not keeping a proper lookout or was driving too fast for the road conditions, thus creating a genuine issue of material fact. As a result, then, Alonso reasons summary judgment was improper. Reviewing the record anew, we disagree.

¶9. “The elements of a prima facie case of negligence are duty, breach, causation, and damages.” Todd v. First Baptist Church of West Point, 993 So.2d 827, 829 (¶ 10) (Miss. 2008). “Duty and breach much be established first.” Id. Upon establishing a duty was owed, “[t]he elements of breach and proximate cause must be established by the plaintiff with supporting evidence.” Id. The plaintiff bears the burden of proving each essential element by a preponderance of the evidence. Perry Inv. Grp. LLC v. CCBCC Operations LLC, 169 So.3d 888, 895 (¶ 28) (Miss. Ct. App. 2014). “To survive a motion for summary judgment, the plaintiff must allege facts tending to prove all four elements.” Estate of Kiihnl v. Family Dollar Stores of Miss. Inc., 197 So.3d 920, 924 (¶ 10) (Miss. Ct. App. 2016).

¶ 10. Alonso’s primary assertion for Ross’s negligence was that she felt that because Ross was driving a vehicle that hit a pedestrian, he must have been negligent. To further that assertion, Alonso argues that Ross had a duty to keep a proper lookout for vehicles, objects, and persons ahead on the highway. See Partlow v. McDonald, 877 So.2d 414, 417 (¶ 8) (Miss. Ct. App. 2003) (holding “[t]he operator of a motor vehicle owes to pedestrians walking along the highway the duty to exercise reasonable or ordinary care to avoid injuring them”); see also Miss. Code Ann. § 63-3-1112 (Rev. 2013) (requiring “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian”). She also contends that because Ross testified the roads were wet from an earlier rain, he should have adjusted his speed for the weather conditions. See Miss. Code Ann. § 63-3-505 (Rev. 2013) (requiring drivers to decrease speed when certain weather or road conditions require such).

¶ 11. In response to these claims, Ross moved for summary judgment, supporting his motion by identifying undisputed portions of the record illustrating a lack of any triable issues. But Alonso—as the plaintiff and nonmovant—bore the ultimate burden at trial. Under Rule 56, Al-onso, unable to rest upon the mere allegations or denials of her pleadings, was required to come forth with specific facts showing there was a genuine issue for trial. M.R.C.P. 56(e) (emphasis added). Though Alonso articulated certain duties required of Ross in the operation of his motor vehicle, she failed to establish that Ross breached those duties. By her own testimony, Alonso admitted that she had no evidence proving Ross was negligent. Instead, Alonso attempts to defeat summary judgment by relying upon mere speculation as to what actually occurred; such speculation is explicitly prohibited by Rule 56. See M.R.C.P. 56.

¶ 12. Thus, the uncontroverted facts show that Ross was traveling northbound on Highway 49 at approximately 8 p.m., was not speeding, was not using his cell phone, and was not under the influence of any substance. It is further undisputed that the collision did not happen at an intersection or within a crosswalk (as originally pled by Alonso), that it was dark, that Smith was wearing camouflage clothing, and that Smith possessed a BAC of .247. Alonso presented no evidence specifically showing: (1) where the accident occurred; (2) what speed Ross was traveling; (3) whether Ross was keeping a proper lookout; (4) where Smith .was at the time of the accident; and (5) whether Smith was exercising due care.

¶ 13. Upon hearing argument from both parties’ counsel, the circuit court granted Ross’s motion for summary judgment, stating that Alonso “ha[d] failed to produce any admissible evidence that raise[d] a genuine issue of material fact to be resolved by the jury[.]” We agree. Ross— through his motion—showed “a complete failure of proof on an essential element of [Alonso’s] claim or defense,” thus entitling him to summary judgment. Crain, 641 So.2d at 1188 (emphasis in original). As a result, we find the circuit court did not err in its grant of summary judgment. We find no merit to this issue.

CONCLUSION

¶ 14. Reviewing the record before this Court in the light most favorable to Alon-so, we find there exist no genuine issues of material fact. Therefore, we affirm.

¶ 15. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, S3., CONCUR.


author: STUART, Justice.

text:
    Latosha HOSFORD, as the mother of Nevaeh Johnson, a minor, deceased v. BRK BRANDS, INC. Rhonda Hosford and Latosha Hosford, as co-administratrixes of the Estate of Nevaeh Johnson, deceased v. BRK Brands, Inc.
    1140899 and 1140901.
    Supreme Court of Alabama.
    Aug. 19, 2016.
    Rehearing Applications Denied Nov. 10, 2016.

      W. Lloyd Copeland, Richard H. Taylor, and Edward P. Rowan of Taylor-Martino, P.C, Mobile; and H.L. “Max” Cassady of Cassady <& Cassady, Fairhope, for appellants.
    Scott Burnett 'Smith of Bradley Arant Boult Cummings LLP, Huntsville; Robert W. Hayes and Jillian Thornton Flax of Cozen O’Connor, Philadelphia, Pennsylvania; Michael D. McKibben and Anna M. Manasco of Bradley Arant Boult Cummings LLP, Birmingham; and Robert C. King of The King Law Firm, P.C., Mon-roeville, for appellee.
   STUART, Justice.

These consolidated appeals stem from the death of four-year-old Nevaeh Johnson in a fire that destroyed her family’s mobile home in May 2011. Following Nevaeh’s death, Nevaeh’s mother, Latosha Hosford (“Latosha”); Latosha’s husband, Chad Barley (“Barley”); and Nevaeh’s grandmother, Rhonda Hosford (“Hosford”), sued BRK Brands, Inc. (“BRK”), the manufacturer of two smoke alarms in the mobile home at the time of the fire, and other defendants' in the Conecuh Circuit Court asserting various claims stemming from the fire. In appeal no. 1140899, Latosha appeals the judgment as a matter of law entered on her failure-to-warn, negligence, and wantonness claims, as well as a judgment entered on the jury’s verdict following the trial of her products-liability claim asserted under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). In appeal no. 1140901, Lato-sha and Hosford, as co-administratrixes of Nevaeh’s estate, appeal the judgment as a matter of law entered on their breach-of-warranty claim seeking compensatory damages on behalf of Nevaeh for pain and mental anguish she allegedly-suffered before her death. We affirm the challenged' judgments in both appeals.

I.

On the night of May 20, 2011, a mobile home Latosha and Barley were renting in Castleberry was destroyed by a fire that began in a faulty electrical outlet in Ne-vaeh’s bedroom. At some point after the fire began, Latosha and Barley were awakened by one of the two smoke alarms Barley had installed in the mobile home. They were able to escape with their nine-month-old son, who was- sleeping in their bedroom; however,-they-were unable to rescue Nevaeh, and she perished in the fire. Subsequently, Latosha, ■ Barley, and Hosford sued BRK. The gravamen of their claims against BRK was that the two BRK smoke alarms that had been installed in the mobile home were defective and unreasonably dangerous by design inasmuch as those smoke alarms relied solely on ionization technology, which, the plaintiffs alleged, fails to give adequate warning to allow an escape in the event of a slow smoldering fire, as opposed to a faster flaming fire. In connection with this theory, the plaintiffs specifically asserted breach-of-warranty, failure-to-warn, negligence, wantonness, and AEMLD claims.

After discovery, BRK moved for a summary judgment in its favor on the plaintiffs’ claims. The trial court eventually granted BRK’s motion in part and entered separate judgments as a matter, of law in favor of BRK on Latosha and Hosford’s breach-of-warranty claim and on the claims asserted by Latosha and Barley in their individual capacities. However, the trial court allowed the remainder of the claims, all of which had been asserted by Latosha in her role as Nevaeh’s mother, to proceed to a February 2015 trial.

After Latosha completed the presentation of her case at trial, BRK moved for a judgment as a matter of law. The trial court granted the motion and entered a judgment in favor of BRK with respect to every claim except the AEMLD claim. BRK then presented its defense, and, after the trial court denied BRK’s renewed motion for a judgment as a matter of law at the close of all the evidence, the AEMLD claim was submitted to the jury. On March 11, 2015, the jury returned a verdict in favor of BRK and against Latosha; the trial court thereafter entered a judgment in favor of BRK consistent with that verdict. Latosha’s subsequent post-judgment motion seeking to vacate that judgment and requesting a new trial was denied, and the plaintiffs thereafter filed three appeals challenging the various judgments entered by the trial court. Latosha and Barley subsequently voluntarily dismissed their appeal of the summary judgment entered on their individual personal-injury claims, and appeals no. 1140899 and 1140901 were thereafter consolidated for the purpose of writing one opinion.

II.

Latosha and Hosford seek the reversal of three judgments entered by-the trial court. In appeal no. 1140899, Latosha seeks the reversal of (1) the judgment as a matter of law entered in favor of BRK midtrial on her failure-to-warn, negligence, and y/antonness claims and (2) the judgment entered on the jury’s -verdict in favor of BRK on her AEMLD claim. In appeal no. 1140901, Latosha and Hosford seek the reversal of the summary judgment entered on the breach-of-warranty claim asserted on behalf of-Nevaeh. Latosha and Hos-ford agree with BRK, however, that if the judgment on the AEMLD claim is affirmed,- it is unnecessary for this Court to consider their arguments regarding the other judgments. See Latosha and Hos-ford’s brief, p. 74 (“If this Court reverses the jury’s defense verdict ..., the summary judgment granted on plaintiffs’ breach-of-warranty claim, and the [judgment as a matter of law] granted on plaintiffs’ failure-to-warn, negligence, and wantonness claims, will be ripe for review.”). This concession is apparently based on their belief that the jury, in returning a verdict in favor of BRK on the' AEMLD claim, necessarily made some findings of fact that would also mandate a judgment iñ favor of BRK on the other' asserted claims. See, e.g., McMahon v. Yamaha Motor Corp., U.S.A., 95 So,3d 769, 772-73 (Ala.2012) (explaining -that a jury’s verdict in favor of a manufacturer on an AEMLD claim would have required a similar verdict in favor of the manufacturer on a negligence claim if such a claim had been submitted to the jury). Accordingly, we first consider the parties’ arguments regarding the AEMLD claim because our resolution of those arguments could obviate the need to consider the issues ’surrounding the other claims.

Latosha argues that the judgment in favor of BRK on the AEMLD claim should be reversed and the cause remanded for a new trial based on errors allegedly made by the trial court in (1) excluding certain evidence and testimony that she sought to introduce at trial and (2) giving the jury certain jury charges requested by BRK that, she claims, were erroneous and prejudicial. BRK argues that the trial court correctly excluded the evidence and testimony identified by Lato-sha and properly instructed the jury; however, it also argues that it .is unnecessary for this Court to even consider those issues because, it argues, it was entitled to a judgment as a matter of law on Latosha’s AEMLD claim. See Williams v. BIC Corp., 771 So.2d 441, 445 (Ala.2000) (considering appellee’s argument that the trial court erred by denying the appellee’s motion for a judgment as a matter of law before considering appellant’s argument that the jury was given erroneous instructions). Thus, we first consider whether the trial court erred by failing to grant BRK’s motion for a judgment as a matter of law on Latosha’s AEMLD claim.

“When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether -the nonmovant has presented sufficient evidence to allow the casé to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a [judgment as a matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 647 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So,2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views.the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id.”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003). With regard to an AEMLD claim, this Court has explained that a plaintiff pursuing such a claim must establish that the product alleged to have caused an injury “is sufficiently unsafe so as to render it defective”; that fact must be established “by proving that a safer, practical, alternative design was available to the manufacturer at the time it manufactured the allegedly defective product,” McMahon, 95 So.3d at 772. The existence of a safer, practical, alternative design may, in turn, be' established by showing (1) that the injuries inflicted by the product would have been less severe or eliminated by the use of the alternative design and (2) that the utility of the alternative design outweighed the utility of the design actually used. General Motors Corp. v, Jernigan, 883 So.2d 646, 662 (Ala.2003). Thus, when the standard of review set forth in Waddell & Reed is applied to Latosha’s AEMLD claim, Latosha, in order to survive BRK’s motion for a judgment as a matter of law at the close of her case, was required to put forth substantial evidence identifying a safer, practical, alternative design BRK could have used for the ionization smoke alarms purchased by Barley; that is, Lato-sha had to present substantial evidence indicating that the proposed alternative design would have resulted in Nevaeh’s escaping from the fire and substantial evidence indicating that the utility of the proposed alternative design outweighed the utility of the design actually used by BRK.

The theory of Latosha’s case was that ionization smoke alarms like the ones manufactured by BRK and purchased and installed in the mobile home by Barley are defective and unreasonably dangerous because, she said, they can fail to provide adequate warning time for an individual to escape from a fire that begins as a slow, smoldering fire. It appears to be undisputed that smoke alarms using photoelectric technology are generally more sensitive to smoke originating from such smoldering fires; however, photoelectric technology is, in turn, generally considered to be less sensitive to smoke coming from flaming fires. Latosha accordingly argues that a safer, practical, alternative to an ionization smoke alarm is a dual-sensor smoke alarm incorporating both ionization and photoelectric technology. BRK in fact manufactures such dual-sensor smoke alarms; however, they are generally more expensive than alarms relying solely on one technology. For this and other reasons, BRK argues that a dual-sensor smoke alarm should not be considered a safer, practical, alternative design to an ionization smoke alarm; rather, BRK argues, the two are entirely different products. Accordingly, BRK argues, it was entitled to a judgment as a matter of law on Latosha’s AEMLD claim because, it argues, Latosha did not submit any evidence identifying a safer, practical, alternative design for an ionization smoke alarm. As BRK argues in its brief to this Court:

“In any event, as a matter of law, a dual-sensor alarm is not a safer practical alternative of a single-sensor ionization (or photoelectric) smoke alarm. The proposed alternative cannot be a different product. Hines v. Wyeth (No. CIV.A. 2:04-0690, May 28, 2011) (S.D.W.Va.2011) (not reported in F.Supp.) (‘an alternative design is not reasonable if it alters a fundamental and necessary characteristic of the product’). While smoke alarms, dual-sensor alarms have enhanced features, containing not only two sensors, but also redundant circuitry, [but] at significantly higher cost. The number of sensors is a fundamental and necessary characteristic of each type of alarm.
“More importantly, within the context of claims challenging a product’s performance, consumers selecting a model smoke alarm at a cost reflecting the features provided should not be able to argue that the smoke alarm manufacturer should have included additional features. Recognizing a dual alarm as a potential alternative design creates the same risk of imposing unlimited liability upon manufacturers unless they produce only smoke alarms with every conceivable enhanced feature. Exposing manufacturers to liability unless they produce smoke alarms with all of these features risks driving the costs of this life saving product beyond the financial means of a significant segment of the population.”

BRK’s brief, pp. 54-56.

Latosha counters by arguing that the fundamental purpose of any residential smoke alarm—regardless of the technology it is based on—is to detect smoke 'and to provide a warning so that occupants of the residence can escape safely and that any residential smoke alarm can reasonably be considered an alternative to another, regardless of the specific technology used to detect that smoke. Furthermore, Latosha argues, even the case cited by BRK indicates that “the reasonableness of an alternative design is generally a question of fact for the jury” Hines v. Wyeth (No. CIV.A. 2:04-0690, May 23, 2011) (S.D.W.Va.2011) (not reported in F.Supp.) (emphasis added). Accordingly, Latosha argues, the judgment entered on the jury’s verdict in favor of BRK on her AEMLD claim should not be affirmed on the basis that she failed to introduce evidence of a safer, practical, alternative to the BRK ionization smoke alarms installed by Barley in their mobile home.

Although the parties have not identified any Alabama caselaw specifically discussing whether a proposed alternative design in an AEMLD case is sufficiently similar to the allegedly defective product to be considered an actual alternative design, we agree with the' principle set forth in Hines that “the reasonableness of an alternative design is generally a question of fact for the jury.” However, as made implicit by the use of the term “generally,” there are necessarily some circumstances where a court can appropriately hold as a matter of law that a proposed alternative design is sufficiently different from the allegedly defective product that it is more properly viewed as a design for a different product than as an alternative design of the allegedly defective product. As’ we explain below, this is such a case.

In Brockert v. Wyeth Pharmaceuticals, Inc., 287 S.W.3d 760, 762 (Tex.App.2009), a Texas Court of Appeals considered an appeal brought by an individual who had been prescribed the drug Prempro, a combination of estrogen and progestin, to treat menopausal symptoms. The appellant subsequently asserted that Prempro had caused her to develop breast cancer. In conjunction with her argument that Prem-pro was a defective product, the appellant alleged that estrogen alone was a safer alternative product. The drug manufacturer, however, asserted that estrogen was not an alternative design for Prempro; rather, it argued, estrogen was a different drug entirely—-which the defendant drug manufacturer also manufactured and marketed as Premarin.

In concluding as a- matter of law that Premarin was not an alternative design for Prempro, the Texas Court of Appeals explained:

“A design defect renders a product unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use. Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex.1999). A plaintiff must prove that there is a safer alternative design to recover under a design-defect theory. Id,; Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384 (Tex.1995). In the absence of a safer alternative, a product is not unreasonably dangerous as a matter of law. Caterpillar, 911 S.W.2d at 384.
“[The appellant] argues that she has presented substantial evidence of a safer alternative design. Specifically, she contends that the safer alternative design to estrogen in combination with progestin is estrogen alone. As [the appellant] acknowledgés, this alleged alternative design already exists in prescription drugs like Premarin, .also made by Wyeth. ... Wyeth responds that Pre-marin (estrogen only) is not an alternative design for Prempro (estrogen with progestin), but instead is a completely different prescription drug intended for a different population of women.
“The Texas Supreme Court has held that a plaintiff cannot prove design defect by claiming that defendant should have sold an entirely different product. See Caterpillar, 911 S.W.2d at 384-85. In Caterpillar, the allegedly defective product was a front-end loader with a rollover-protective structure CROPS’) that was removable, which allowed the loader to be used in low-clearance areas. The plaintiffs design-defect expert testified that the froni>end loader should have been configured so that the ROPS was not removable or so that the removal of the ROPS would render the loader inoperable. The supreme court reversed a jury verdict of, design defect, holding that this was ‘no evidence ... of a safer alternative design for a front-end loader that could fulfill the multi-pur-pose role of Caterpillar’s model 920 with a removable ROPS.’ Id. at 384. The court rejected the plaintiffs argument that the defendant should have changed the product in such a way that it was essentially transformed into a different product:
“‘A motorcycle could be made safer by adding two additional wheels and a cab, but then it is no longer a motorcycle. A convertible can be made safer by fully enclosing the cab, but then it is just an ordinary car. The law of products liability demands that manufacturers and distributors take feasible steps to make their products reasonably safe. It is not rational, however, to impose liability in such a way as to eliminate whole categories of useful products from the market.’
“Id. at 385; see also Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 433 & n. 10 (Tex.1997) (granting summary judgment to defendant because there was no safer alternative design for cigarettes; ‘[cjategorical liability is not only an unworkable solution, but also a position repeatedly rejected by courts.’).
“The [United States Court of Appeals for the] Fifth Circuit has also found that a plaintiff cannot prove that a safer alternative design exists by pointing to a substantially different product, even when the other product has the same general purpose as the allegedly defective product. See Theriot v. Danek Med., Inc., 168 F.3d 253 (5th Cir.1999) (applying Louisiana law). In Theriot, the court held that a plaintiff who contended that pedicle screws were defectively designed was required to demonstrate a safer alternative design that involved pedicle screws, and that the plaintiff was not permitted to point to other products intended to provide biomechanical stability, such as internal systems using hooks or wires, or external neck braces. Id. at 255.
“Thus, a safer alternative design must be one for the product at issue—here, Prempro.... [The appellant] does not explain how Prempro could have been modified or improved; she instead argues that progestin should not have been added to. estrogen. In essence, [the appellant] argues that the product Prempro should have been a different product: its predecessor Premarin. But, as the [Texas] supreme court has explained, Texas law does not recognize this sort of categorical attack on a product. See Caterpillar, 911 S.W.2d at 384-85.”

287’ S.W.3d at 769-71. Thus, even though Prempro, the allegedly defective product, and Premarin, the proposed alternative product, had essentially the same purpose—to treat menopausal symptoms—the Brockert court held as a matter of law that one was not a safer alternative to the other because they were, different, products. La-tosha’s position in this case is effectively the same as that of the appellant in Broc-kert—both argued that a product was defective and, as evidence of that fact, identified as a safer alternative another product manufactured by the same manufacturer that allegedly had sold the defective product. Consistent with the rationale of the Brockert court, we now hold as a matter of law that the dual-sensor smoke-alarm design put forth by Latosha is not, in fact, a safer, practical, alternative design to an ionization smoke alarm; rather, it is a design for a different product altogether.

As the Supreme Court of Texas explained in Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 385 (Tex.1995): “It is not rational ... to impose liability in such a way as to eliminate whole categories of useful products from the market.” As even La-tosha’s smoke-alarm expert witness acknowledged, ionization smoke alarms, can and do save lives, including, in this case, the lives of Latosha, Barley, and their son. Although Latosha argues that a dual-sensor smoke alarm might have saved Ne-vaeh’s life as well, Barley’s testimony regarding whether he could have afforded the higher cost of such an alarm was mixed, and there is at least the possibility that the total absence of less expensive ionization smoke alarms from the market would have resulted in no smoke alarm being present in their mobile home at the time of the fire and, consequently, three additional deaths. In Linegar v. Armour of America, Inc., 909 F.2d 1150 (8th Cir. 1990), the United States Court of Appeals for the Eighth Circuit reversed a judgment entered on a jury’s verdict finding that a certain model of bulletproof vest was defective because it failed to provide as much coverage under the arms as other bulletproof vests on the market, and its discussion of the trade-offs associated with the purchase of safety devices is applicable in this case as well:

“A manufacturer is not obliged to market only one version of a product, that being the very safest design possible. If that were so, automobile manufacturers could not offer consumers sports cars, convertibles, jeeps, or compact cars. All boaters would have to buy full life vests instead of choosing a ski belt or even a flotation cushion. Personal safety devices, in particular, require personal choices, and it is beyond the province of eourts and juries to act as legislators and preordain those choices.
“In this case, there obviously were trade-offs to be made. A contour vest like the one here in question permits the wearer more flexibility and mobility and allows better heat dissipation and sweat evaporation, and thus is more likely to be worn than a more confining vest.. It is less expensive than styles of vests providing more complete coverage. If manufacturers like Armour are threatened with economically devastating litigation if they market any vest style except that offering maximum coverage, they may decide, since one can always argue that more coverage is. possible, to get out of the business altogether. Or they may continue to market the vest style that, according to the latest lawsuit, affords the ‘best’ coverage. Officers who find the ‘safest’ style confining or uncomfortable will either wear it at risk to their mobility or opt not to wear it at all.... Law enforcement' agencies trying to work within the confines of a budget may be forced to purchase fewer vests or none at all. How ‘safe’ are those possibilities? ‘The core concern in strict tort liability law is safety.’ Nesselrode [v. Executive Beechcraft, Inc.], 707 S.W.2d [371,] 375. [(Mo.1986)]. We are firmly convinced that to allow this verdict to stand would run counter to the law’s purpose of promoting the development of safe and useful products, and would have an especially pernicious effect on the development and marketing of equipment designed to make the always-dangerous work of law enforcement officers a little safer.”

909 F.2d at 1154-55.

Having concluded that ionization smoke alarms and dual-sensor smoke alarms are different products, we must also hold that BRK was entitled to a judgment as a matter of law on Latosha’s AEMLD claim. Latosha concedes that she submitted no evidence indicating that there was a safer, practical, alternative design for an ionization smoke alarm; indeed, the theory of her case was that it was impossible to have a safe ionization smoke alarm. Because a plaintiff asserting an AEMLD claim cannot prevail in the absence of evidence establishing the existence of a safer, practical, alternative design for the allegedly defective product—not a design for a different, albeit similar, product, even if it serves the same purpose—the judgment entered in favor of BRK on Latosha’s AEMLD claim is affirmed. See Jernigan, 883 So.2d at 662 (stating that a plaintiff in an AEMLD case must prove that a safer alternative design was available to the manufacturer), Brockert, 287 S.W.3d at 770 (noting that “a safer alternative design must be one for the product at issue” (emphasis added)), and Theriot v. Danek Med., Inc., 168 F.3d 253, 255 (5th Cir.1999) (stating that a plaintiff cannot prove a safer alternative design by identifying a different product even if that product has the same general purpose as the challenged product).

III.

The plaintiffs sued BRK after Nevaeh was killed in a fire at their mobile home, alleging that BRK was responsible for her death inasmuch as a BRK-manufactured ionization smoke alarm allegedly did not respond to smoke' caused by the fire and sound an alarm in time to allow Nevaeh to escape. Before trial and after Latosha presented her case-in-chief, the trial court entered judgments as' a matter of law in favor of BRK on the plaintiffs’ breach-of-warranty, failure-to-warn, negligence, and wantonness claims. Latosha’s AEMLD claim was submitted to the jury, however, and the jury ultimately returned a verdict in favor of BRK. After the trial court entered a final judgment consistent with that verdict, Latosha and Hosford appealed the various judgments entered against them to this Court. We now hold that the judgment entered on the jury’s verdict in favor of BRK on Latosha’s AEMLD claim is due to be affirmed inasmuch as Latosha did not submit evidence identifying a safer, practical, alternative design that BRK cpuld have used for the ionization smoke alarms purchased by Barley for use in the mobile home; accordingly, BRK was entitled to a judgment as a matter of law on that claim. Inasmuch as Latosha and Hosford have conceded that we need not consider any of the other judgments entered by the trial court if the judgment entered on the AEMLD claim is affirmed, we affirm those other judgments as well.

1140899—AFFIRMED.

1140901—AFFIRMED.

PARKER, SHAW, WISE, and BRYAN, JJ., concur.

      . Latosha and Barley were living together and were engaged to be married at the time of the fire and when this action was initiated; they were married before the case came to trial. Accordingly, Latosha is referred to in the record as both "Latosha Hosford” and "Latosha Barley.” For consistency and to differentiate between her, Barley, and Hos-ford, we refer to her in this opinion as "Lato-sha.”

      . Latosha, Barley, and Hosford also named other defendants, including the property owner, in their action; however, the claims against the other defendants were resolved before trial and are not relevant to these appeals.

      . Those claims included claims seeking damages for the death of Nevaeh and damages on her behalf and claims asserted by Latosha and Barley in their individual capacities. However, although the plaintiffs’ complaint asserted several claims against BRK based on Nevaeh’s death, those claims are effectively just variations of' a single wrongful-death claim. As this Court explained in Sledge v. IC Corp., 47 So.3d 243, 247 (Ala.2010):
      "The complaint alleges several different counts against [the defendants], including products liability (count VIII), negligence and/or wanton conduct (count IX), violation of the AEMLD- (count X), and breach of warranty (count XI). However, those counts are not separate claims. Instead, [the plaintiff] can maintain an action against [the defendants] only under § 6-5-410, Ala.Code 1975, for wrongful death, which she specifically alleged in count XV of the complaint. Alabama Power Co. v. White, 377 So.2d 930, 933 (Ala.1979) (‘[I]n Alabama there is but one cause of action for wrongful death, i.e., [Ala.] Code 1975, § .6-5-410.’); see also Carter v. City of Birmingham, 444 So.2d 373, 375 (Ala.1983) (noting that under Alabama law only a wrongful death action may be maintained, and only punitive damages are recoverable’). Counts VIII through XI in this .case cannot be maintained by [the plaintiff] outside a wrongful-death action under § 6-5-410, Ala.Code 1975; instead, those counts are ‘ "mere variations of legal theory” ’ underlying [the plaintiff’s] single wrongful-death claim, Scrushy [v. Tucker, 955 So.2d 988, 996 (Ala.2006)] (quoting Stearns v. Consolidated Mgmt., Inc., 747 F.2d 1105, 1109 (7th Cir.1984)), and [the plaintiff] can recover only one set of damages for all. Trott v. Brinks, Inc., 972 So.2d 81, 84 (Ala.2007) (noting that, in a wrongful-death action, ‘the only recoverable damages are punitive damages’),”
      Nevertheless, inasmuch as the parties refer to the different counts based on Nevaeh’s death as "claims,” we at times do the same in this opinion.

      . Factors to be considered when determining whether the utility of the alternative design outweighed the utility of the design actually used include: the intended use of the product; its styling, cost, and desirability; its safety features; the foreseeability of the accident that occurred, along with the likelihood of injury and the seriousness of injury that would result from such an accident; the obviousness of the defect; and the manufacturer’s ability to eliminate the defect. General Motors Corp. v. Jernigan, 883 So.2d 646, 662 (Ala.2003).

      . Latosha’s smoke-alarm expert, Don Russell, testified that at the time of trial BRK-manufactured ionization or photoelectric smoke alarms could be purchased at Wal-Mart discount stores for approximately. $13 each, while a dual-sensor smoke alarm could be purchased "for just under [$20].”