author: FAIR, J., FOR THE COURT:

text:
    David MCLAUGHLIN, Appellant v. NORTH DREW FREIGHT, INC., Appellee
    NO. 2016-CA-01335-COA
    Court of Appeals of Mississippi.
    June 12, 2018
    ATTORNEY FOR APPELLANT: REBECCA HILLIARD HUTCHINS
    ATTORNEY FOR APPELLEE: JAMIE D. TRAVIS
    BEFORE CARLTON, P.J., FAIR AND WESTBROOKS, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. David McLaughlin was making a left turn when he was struck by an 18-wheeler attempting to pass him from behind. McLaughlin claimed that he suffered damages from the accident in the amount of $591,000, including medical expenses, lost wages, and pain and suffering. After trial, the jury found McLaughlin comparatively negligent and returned a verdict of $1,400, solely for his medical expenses incurred on the day of the accident. McLaughlin appealed, raising issues about his liability and the amount of damages awarded. Finding no error, we affirm the trial court's judgment.

FACTS

¶ 2. In September 2010, McLaughlin was driving Darrel Romero home. Leroy Washington, the driver of an 18-wheel North Drew Freight truck, attempted to pass McLaughlin on a two-lane highway in rural northwest Mississippi. When questioned by police, Washington stated that McLaughlin slowed and sped back up several times before abruptly turning left in front of him, failing to give a left turn signal. The 18-wheeler struck the side of McLaughlin's car and pushed the car approximately 150 feet into a shallow ditch on the west side of the highway.

¶ 3. After the accident, both law enforcement and emergency medical technicians (EMT) arrived at the scene. State Trooper Jason Sheffield saw beer in the car and smelled alcohol on McLaughlin's breath. He asked McLaughlin whether he had been drinking. McLaughlin said no. Trooper Sheffield then performed three separate roadside breathalyzer tests which showed that McLaughlin was below .02 each time. He also performed a field sobriety test.

¶ 4. EMT Charles Carouthers also claimed he smelled alcohol and observed beer in McLaughlin's car. When he asked McLaughlin whether he had been drinking, McLaughlin said he "took a sip" of a friend's beer before driving. Carouthers also asked McLaughlin if he would like to ride in the ambulance to the hospital. McLaughlin initially declined but later changed his mind and agreed to be transported to the emergency room.

¶ 5. At the time of the accident, McLaughlin worked as a pipe-welding inspector on a contract basis for a commercial construction company. He was no longer employed at the time of trial. McLaughlin testified that he had been expecting to sign a new contract for a job in South Carolina starting the next week. He offered evidence that he earned $43,816 in 2009 and $42,816 in 2010. McLaughlin claimed damages for lost wages in the amount of $60,000, including lost fringe benefits, medical insurance, and a payment of $70 a day.

¶ 6. After the accident, McLaughlin was treated by several physicians. McLaughlin provided deposition testimony from one in particular-Dr. Dinesh Goel, a family practitioner and general surgeon. Dr. Goel testified that McLaughlin suffered injury to the neck, back, and shoulder as a result of the accident and would possibly require treatment for the rest of his life. He also testified that McLaughlin suffered a permanent 5% reduction in physical capacity as a result of the injuries. McLaughlin offered into evidence all of his medical bills, totaling $23,306.20.

¶ 7. Ultimately, the jury found that each party was 50% negligent, and it found McLaughlin had suffered $1,400 in damages (the medical expenses incurred on the day of the accident) and rendered a verdict in his favor in that amount. McLaughlin moved for a judgment notwithstanding the verdict (JNOV), which the court denied. McLaughlin now appeals asserting that the jury's award was against the overwhelming weight of the evidence and that the jury instructions were unclear.

STANDARD OF REVIEW

¶ 8. A circuit court's refusal to grant a new trial is reviewed for abuse of discretion. Bobby Kitchens Inc. v. Miss. Ins. Guar. Ass'n , 560 So.2d 129, 132 (Miss. 1989). In determining whether a verdict is against the overwhelming weight of the evidence, this Court must view all evidence in the light most consistent with the jury verdict. Motorola Commc'ns & Elecs. Inc. v. Wilkerson , 555 So.2d 713, 723 (Miss. 1989).

DISCUSSION

1. Liability-Negligence Per Se

¶ 9. McLaughlin argues that the circuit court abused its discretion by refusing a peremptory instruction in his favor, asserting negligence per se. Negligence per se renders a defendant liable without proof of reasonable care when the plaintiff proves the defendant violated an applicable statute. Palmer v. Anderson Infirmary Benevolent Ass'n , 656 So.2d 790, 796 (Miss. 1995).

¶ 10. McLaughlin contends that Washington violated Mississippi Code Annotated section 63-3-611(2)(c) (Rev. 2013), which states that "no vehicle shall, in overtaking and passing another vehicle or at any other time, be driven on the left side of the roadway under the following conditions: ... (c) [w]hen approaching within [100] feet of or traversing any marked or readily distinguishable intersection or railroad grade crossing." An intersection is defined as "the conjunction of two highways, and is the entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular traffic." Stewart v. Davis , 571 So.2d 926, 928-29 (Miss. 1990) (citation and internal quotation marks omitted).

¶ 11. Conflicting evidence was presented to the jury as to whether the junction of Highway 49W and Patridge Road was classified as a "marked or readily distinguishable intersection" under the applicable statute. McLaughlin submitted photographs which he believed portrayed the road as a statutorily defined intersection. Trooper Sheffield testified, however, that it was lawful to pass on this stretch of the highway and that, had it been illegal to pass on this section of the highway, he would have given Washington a citation.

¶ 12. The instruction given to the jury on negligence per se instructed the jury that the two roads made an intersection. The question of whether the intersection was marked or readily distinguishable (which would trigger application of Mississippi Code Annotated section 63-3-611(2)(c) ) was left for the jury to determine. Therefore, we hold that the trial court was not in error when it refused to give the peremptory instruction on negligence per se.

2. Liability-Comparative Negligence

¶ 13. Next, McLaughlin contends that the trial court erred when it instructed the jury on comparative negligence. McLaughlin relies heavily on Ferguson v. Denton , 239 Miss. 591, 124 So.2d 279 (1960), to support his argument. There, the decision of the trial court to give a comparative negligence instruction was affirmed and justified because both sides claimed the other was entirely negligent. McLaughlin contends that, because North Drew never claimed the accident was due to the sole negligence of McLaughlin, the comparative negligence instruction was in error.

¶ 14. In Ferguson , the Mississippi Supreme Court held that "the jury was not required to accept, in its entirety, the theory of either party, and it was its duty to consider all the testimony of the witnesses in the light of the physical facts and the circumstances shown, and to determine therefrom the negligence, if any, of the respective parties." Ferguson , 239 Miss. at 597, 124 So.2d at 280. Ultimately, it is the jury's responsibility to assess percentages of fault between two parties.

¶ 15. Our supreme court has also stated that "the standard of care in actions based upon negligence is ordinarily measured in terms of the proverbial question: What would a reasonably prudent person have done under the same or similar circumstances." Knapp v. Stanford , 392 So.2d 196, 199 (Miss. 1980). In its holding, the court stated that the disposal of negligence cases would best be administered by applying "uniform principles of negligence under all circumstances." Id. The test administered asks whether an actor being charged with negligence acted as a reasonable and prudent person would have under the same or similar circumstances. Id.

¶ 16. After reviewing the record, we find that McLaughlin's actions could be viewed as negligent. Washington told Sheffield that McLaughlin gave no signal when making his left turn directly into the path of the North Drew truck. Accordingly, we find that the trial judge did not abuse his discretion by instructing the jury on comparative negligence.

3. Liability-Motion in Limine

¶ 17. In his final argument on liability, McLaughlin argues that the trial court erred in denying his motion in limine to exclude any testimony by EMT Charles Carouthers regarding McLaughlin's use of alcohol. He also claims that the testimony resulted in extreme prejudice.

¶ 18. In order to grant a party's motion in limine, the court must find that: "(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury." Whittley v. City of Meridian , 530 So.2d 1341, 1344 (Miss. 1988). We will reverse a court's denial of a motion in limine only if the court abused its discretion in denying the motion. McDowell v. State , 807 So.2d 413, 421 (¶ 13) (Miss. 2001).

¶ 19. The challenged testimony in this case is strikingly similar to the testimony in Abrams v. Marlin Firearms Company , 838 So.2d 975 (Miss. 2003). There, the trial court allowed two witnesses to testify to the presence of alcohol on Abrams's breath and empty and full beer bottles inside Abrams's pick-up truck. Id. at 979 (¶ 13). Abrams claimed the court erred since the alcohol had nothing to do with the accident and there was no proof that he was actually intoxicated. Id.

¶ 20. Our supreme court affirmed based in part that there was proof of alcohol use, that is, proof of the smell of alcohol on Abrams's breath while the paramedic was administering aid. Id. at 980 (¶ 17). The court explained that "evidence of possible alcohol consumption just prior to the accident was highly relevant and probative as to Abrams'[s] credibility, his recollection of the accident since there were no other witnesses, and his contributory negligence." I d. at (¶ 18).

¶ 21. Applying the supreme court's reasoning in Abrams , we find the judge acted within his discretion in denying McLaughlin's motion in limine.

4. Damages-Jury Award

¶ 22. McLaughlin raises several issues with the amount of damages that were awarded by the jury. McLaughlin requested $591,000 for past lost wages, past and future medical expenses, and pain and suffering. The jury awarded $0 for lost wages, $1,400 in medical expenses, and $0 for pain and suffering. As a whole, McLaughlin also argues that his award for $1,400 in medical expenses as well as $0 for lost wages along with pain and suffering were against the overwhelming weight of the evidence and showed bias on behalf of the jury.

¶ 23. "It is primarily the province of the jury to determine the amount of the damages to be awarded, and the award will normally not be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous." Burge v. Spiers , 856 So.2d 577, 580 (¶ 9) (Miss. Ct. App. 2003) (internal quotation marks omitted). When the reasonableness and amount of damages are disputed, "this court will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial." Stubblefield v. Walker , 566 So.2d 709, 712 (Miss. 1990).

¶ 24. Here, the amount of the damages was highly contested at trial. McLaughlin claimed that he incurred over $40,000 in medical expenses caused by the accident. Our supreme court has noted that when a party "takes the witness stand and exhibits bills ... and testifies that said bills were incurred as a result of the injury, they become prima facie evidence that the bills so paid or incurred were reasonable and necessary." Jackson v. Brumfield , 458 So.2d 736, 737 (Miss. 1984). However, "opposing counsel may rebut the necessity and reasonableness" of those bills by proper evidence. Id. at 738.

¶ 25. North Drew rebutted McLaughlin's medical expenses by offering evidence from its expert witness, Dr. David Collip. According to Dr. Collip's testimony, it was only "reasonable" and "necessary" to conclude that McLaughlin incurred medical expenses from the day of the accident, totaling $1,358.72 ($353.72 emergency room visit plus a $706 ambulance ride). At trial, Dr. Collip testified that the injuries McLaughlin sustained would resolve without the need for additional medical treatment and that any medical attention sought after the day of the accident would be unnecessary.

¶ 26. After hearing testimony from both sides, the jury deliberated and awarded McLaughlin $1,400 in damages for his medical expenses. According to the Mississippi Supreme Court, it is the jury's job, based on the evidence, to determine what award is appropriate in a given case. S. Cent. Bell Tel. Co. v. Parker , 491 So.2d 212, 217 (Miss. 1986). If the elements of damages were not proven by a preponderance of the evidence, "then it [is] for the jury to deny damages for such alleged losses." Id. at 216. Viewing the conflicting evidence presented, we find that the verdict does not appear to be against the overwhelming weight of the evidence nor does it present any bias, passion, or prejudice on behalf of the jury.

5. Damages-Facebook Video

¶ 27. McLaughlin next contends that the admission of a Facebook video, which shows him doing jumping jacks for his daughter, was irrelevant and damaged his credibility with the jury. He also argues that since the video was admitted into evidence, the jury was biased by its contents, resulting in an award well below his request. North Drew claims that the purpose of the video was to impeach McLaughlin as to his injuries.

¶ 28. When reviewing a trial court's admission or exclusion of evidence the court will apply an abuse-of-discretion standard. Floyd v. City of Crystal Springs , 749 So.2d 110, 113 (¶ 12) (Miss. 1999). But if an evidentiary error occurs, an appellate court will not reverse unless the error "adversely affects a substantial right of a party." Terrain Enterprises Inc. v. Mockbee , 654 So.2d 1122, 1131 (Miss. 1995).

¶ 29. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Lewis v. State , 905 So.2d 729, 734 (¶ 15) (Miss. Ct. App. 2004). The video showed McLaughlin being physically active contrary to his testimony describing his alleged injuries. This certainly had the tendency to make the existence of this claim more probable or less probable than it would be absent the video. A reasonable juror could conclude that the Facebook video casts doubt on the severity of McLaughlin's injuries. And given the contents and timing of the video, a reasonable juror could conclude that the video has a tendency to show that McLaughlin may not have been as injured or vulnerable as his testimony, his medical records, and Dr. Goel suggested.

¶ 30. We find no abuse of discretion in the court's decision to allow admission of the Facebook video.

6. JNOV

¶ 31. Finally, McLaughlin challenged the court's denial of his motion for JNOV. A new trial may be granted "when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice." Bobby Kitchens Inc. , 560 So.2d at 132.

¶ 32. "Generally, the only evidence of corruption, passion, prejudice, or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of damages." Green v. Grant , 641 So.2d 1203, 1209 (Miss. 1994). A jury's award will not be set aside unless it is disproportionate to the injury sustained. Ill. Cent. R.R. v. Gandy , 750 So.2d 527, 534 (¶ 26) (Miss. 1999). Further, "the jury is the sole judge of the weight of the evidence and the credibility of the witnesses." Jackson v. Griffin , 390 So.2d 287, 289 (Miss. 1980).

¶ 33. Here, the jury heard testimony from the witnesses and judged their credibility, further considering the weight of all of the evidence presented. As a result, the jury determined that McLaughlin was comparatively negligent and awarded him $1,400 for the medical expenses he incurred on the day of the accident. The jury was within its discretion to do so. Accordingly, the jury verdict should stand.

¶ 34. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. LEE, C.J., NOT PARTICIPATING.

      Before trial, Washington died of heart failure unrelated to the accident.

      Defense counsel did not question Trooper Sheffield further on the results of the field sobriety test, but, based on the record, we infer that McLaughlin passed.


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT: CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    Kenneth NIXON, Appellant v. HOWARD INDUSTRIES, INC., Appellee
    NO. 2017-WC-01478-COA
    Court of Appeals of Mississippi.
    June 19, 2018
    ATTORNEY FOR APPELLANT: FLOYD E. DOOLITTLE
    ATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR., LAUREL
    BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Kenneth Nixon suffered a work-related injury within the course and scope of his employment with Howard Industries. Following a hearing, the administrative judge found Nixon had incurred a loss of wage-earning capacity and awarded him permanent partial-disability benefits. The administrative judge's findings and award were adopted by the Mississippi Workers' Compensation Commission. The sole issue on appeal is whether the Commission erred in its computation of Nixon's disability benefits. Because the Commission failed to use Nixon's stipulated pre-injury weekly wage in its calculation, we reverse and render.

FACTS

¶ 2. On August 27, 2011, Nixon was working as an assembler at Howard Industries when he injured his back. At the hearing, both parties stipulated that Nixon's average weekly wage was $645.40-considerably more than what he would make in a 40-hour work week at his hourly rate of $12.26. The record indicates that the stipulated figure included regular overtime.

¶ 3. Nixon kept working at Howard Industries after the accident and was still working there at the time of the hearing. Since 2011, Nixon has received two increases in his hourly wage as a result of union negotiations-a total increase of $0.70 per hour since the accident, to $12.96 an hour.

¶ 4. Nixon testified that, since the injury, his work at Howard Industries has continued to cause pain in his back. He has received injections, prescription pain medication, and has had work done on the nerves in his back. Nixon has been treated by several doctors, but predominantly by Dr. Joe Leigh, an anesthesiologist and pain management specialist. Dr. Leigh placed Nixon under restrictions in 2012, limiting him to lifting 40 pounds occasionally. In 2016, Dr. Leigh reduced the limit to 20 pounds, and Nixon is now unable to do most of his former work.

¶ 5. In April 2016, Nixon met with Bruce Brawner, a vocational rehabilitation expert. Brawner testified that Nixon lost access to five of the six pre-injury occupations for which he was qualified, an 83% total loss of access. Brawner testified that Nixon suffered a 53% loss of access based on his current conditions. Brawner added that Nixon could compete in the open labor market based on the light-duty levels he had been assigned. He opined that Nixon should be able to earn $8.96 per hour on the open labor market. Assuming a 40-hour work week, Nixon's weekly salary would be $358.40.

¶ 6. Following the hearing, the administrative judge found that Nixon had suffered a loss of wage-earning capacity. But instead of using Nixon's stipulated pre-injury weekly wage of $645.40 in calculating Nixon's benefits, the administrative judge used $490.40, which she arrived upon by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. As a result, the administrative judge ordered Howard Industries to pay permanent partial-disability benefits in the amount of $88.27 per week, continuing for 450 weeks. Pursuant to the statute, that figure is two-thirds of the difference between $490.40 and $358.40.

¶ 7. Nixon appeals.

STANDARD OF REVIEW

¶ 8. "The scope and standards of review for workers' compensation cases are well-established." Short v. Wilson Meat House LLC , 36 So.3d 1247, 1250 (¶ 16) (Miss. 2010). As an appellate court, we review the decision of the Commission, not that of the administrative judge. Id.

¶ 9. "This Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated ... constitutional or statutory rights.... [T]he Commission is the ultimate fact-finder and judge of the credibility of witnesses; therefore, we may not reweigh the evidence that was before the Commission." Pulliam v. Miss. State Hudspeth Reg'l Ctr. , 147 So.3d 864, 868 (¶ 16) (Miss. Ct. App. 2014) (citations and internal quotation marks omitted). "If an administrative agency's decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.' " Short , 36 So.3d at 1251 (¶ 20) (quoting Public Emps.' Ret. Sys. v. Dearman , 846 So. 2d 1014, 1019 (¶ 14) (Miss. 2003) ).

DISCUSSION

¶ 10. Nixon contends that the Commission erred in multiplying his pre-injury hourly wage of $12.26 times 40 hours ($490.40) to calculate his average weekly wage instead of his stipulated weekly wage of $645.40. In support of his argument, Nixon cites Mississippi Code Annotated sections 71-3-31 (Rev. 2011) and 71-3-17(c)(25) (Rev. 2011).

1. Weekly Wage Calculation

¶ 11. Mississippi Code Annotated section 71-3-31 states that "the average weekly wages ... [are] to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of injury divided by fifty-two (52)." The Commission calculated Nixon's weekly wages from his hourly rate, assuming a 40-hour workweek. Nixon contends it should have used $645.40, the stipulation based on his pre-injury history of regular overtime.

¶ 12. Since 1956, the Mississippi Supreme Court has held that the basis of computation under section 71-3-31 shall be the difference of the claimant's average weekly wage before the injury and earning capacity post-injury. See Webster Const. Co. v. Bates , 227 Miss. 207, 216-17, 85 So.2d 795, 798 (1956). The supreme court has emphasized that the calculation is based on "actual earnings before injury with earning capacity after injury." Russell v. Se. Utils. Serv. Co. , 230 Miss. 272, 281, 92 So.2d 544, 547 (1957) (emphasis added). Accordingly, the Commission had no basis to reject Nixon's stipulated average weekly wage of $645.40.

2. Calculation of Payments

¶ 13. Next, Nixon contends that the Commission erred in its calculation of disability compensation payments. He claims that in order to calculate the compensation owed, the Commission must compare the average pre-injury weekly wage to the post-injury weekly wage under section 71-3-17(c)(25), which is based on what he could earn for 40 hours at the estimated post-injury hourly rate in an open market, awarding compensation in the amount of 66-2/3% of the difference.

¶ 14. Mississippi Code Annotated section 71-3-17(c)(25) (Rev. 2011) states that the compensation for permanent partial disability "shall be sixty-six and two-thirds percent ... of the difference between his average weekly wages ... and his wage-earning capacity thereafter ...." Here, the administrative judge modified the formula to calculate Nixon's permanent partial-disability benefits, awarding the difference between the pre-injury hourly wage of $12.26 and the post-injury hourly wage of $8.96-the amount Brawner, the vocational rehabilitation expert, had said Nixon was capable of earning outside Howard Industries.

¶ 15. The Commission found Nixon's pre-injury wage-earning capacity to be his hourly rate of $12.26 times 40 ($490.40). Subtracting that from the post-injury capacity of $8.96 per hour times 40 ($358.40), the Commission arrived at $132.40. Further reducing that to the statutory two-thirds, the Commission arrived at a weekly compensation of $88.27.

¶ 16. As we have already held, the Commission should have used the stipulated pre-injury weekly wage as Nixon's average weekly wage, pursuant to section 71-3-31. It is therefore clear that the Commission erred in calculating Nixon's benefits. The Commission should have taken the difference between the stipulated pre-injury average weekly wage of $645.40 from a 40-hour work week at the post-injury earning capacity of $8.96 per hour. Subtracting the present wage-earning capacity ($358.40) from the pre-injury average weekly wage ($645.40) brings the total to $287. Reducing that to the statutory two-thirds, we arrive at $191.33 as the amount that should have been awarded by the Commission.

¶ 17. Because the Commission erred in its calculation of benefits, we reverse the Commission's decision and render judgment that Nixon is entitled to $191.33 per week for 450 weeks.

3. Cross-Appeal

¶ 18. Howard Industries contends that Nixon failed to show that he suffered permanent disability and a loss of wage earning capacity. But Howard Industries failed to file a cross-appeal as required by Rules 3 and 4 of the Mississippi Rules of Appellate Procedure. We hold that this precludes review on appeal. See M.R.A.P. 4(c).

¶ 19. In the separate opinion's view, Howard Industries was not required to file a cross-appeal because "Nixon's notice of appeal challenged the entire Order and sought reversal of the Commission's ruling." Mississippi Rule of Appellate Procedure 3(c) requires that "[t]he notice of appeal ... specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from." M.R.A.P. 3(c). Nixon's notice of appeal stated that the Commission's findings and opinions were his grounds for appeal. In other words, the separate opinion contends that Nixon appealed the whole judgment. But it has failed to cite any authority supporting the proposition that appealing the entire order from a lower tribunal excuses the appellee from filing a cross-appeal.

¶ 20. The separate opinion attempts to distinguish this case from Brock v. Hankins Lumber Company , 786 So.2d 1064 (Miss. Ct. App. 2000), but we find the cases to be quite similar. Brock appealed the entire circuit court order reversing the Commission's order. Id. at (¶ 1). Like Nixon, Brock did not challenge findings favorable to his position-namely, the Commission's finding that he had suffered a work-related injury (a finding that was also affirmed by the circuit court). Id. at 1068 (¶ 19). In its appellee's brief, the employer tried to argue that Brock had not suffered a work-related injury. Id. at (¶ 17). This Court declined to address the issue, holding that "[i]n order for the appellee to gain reversal of any part of the decision of a lower tribunal about which the appellant brings no complaint, the appellee is required to file a cross appeal." Id. at (¶¶ 18-19).

¶ 21. More recently in Rasdon v. Thrash , 225 So.3d 557 (Miss. Ct. App. 2017), Rasdon filed a notice of appeal from the circuit court's entire order affirming the county court's grant of summary judgment. Part of that judgment included the denial of Thrash's attorney's fees and expenses. Id. at 561 (¶ 11). In his appellant's brief, Rasdon raised one issue-that it was "improper for the county court to rule summarily that [Thrash] did not breach the implied covenant of good faith and fair dealing." Id. at 559 (¶ 6). In his appellee's brief, Thrash claimed that he was entitled to attorney's fees. Id. at 561 (¶ 11). Although Rasdon had appealed the whole judgment, this Court declined to address Thrash's claim since he failed to file a cross-appeal. Id.

¶ 22. As this Court did in Brock and Rasdon , we hold that Nixon's appeal of the entire Commission order does not relieve Howard Industries of its obligation to file a cross-appeal. Holding otherwise would set a dangerous precedent for future appeals to this Court. Obviously, Nixon was not appealing any part of the judgment that was in his favor, particularly the Commission's finding that he suffered a loss of wage earning capacity. For the reasons listed above, we find this issue is not properly before us and may not be considered.

¶ 23. REVERSED AND RENDERED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 24. I concur in part because I, like the majority, would reverse the judgment of the Commission. I, however, would reverse the Commission's findings and render judgment in favor of Howard Industries because the record reflects that Nixon failed to show that he suffered a loss of wage-earning capacity and permanent disability. Precedent reflects that the degree of disability is determined by (1) actual physical injury; and (2) loss of wage earning capacity. See Gen. Elec. Co. v. McKinnon , 507 So.2d 363, 365 (Miss. 1987) ; Wilcher v. D. D. Ballard Const. Co. , 187 So.2d 308, 310-11 (Miss. 1966).

¶ 25. I submit that a review of the record reflects that the Commission and the AJ's determinations that Nixon overcame the presumption that he suffered no loss of wage-earning capacity were arbitrary and capricious, in that they were not supported by substantial evidence. Nixon returned to work after his injury in a production job, in "Internal Assembly," and the record reflects that he was making more money post-injury in that assembly production job with the same employer, Howard Industries, than he earned pre-injury. See Weathersby v. Miss. Baptist Health Sys. Inc. , 195 So.3d 877, 883-85 (¶¶ 22-31) (Miss. Ct. App. 2016) (affirming Commission's finding that claimant failed to overcome presumption that claimant suffered no loss of wage earning capacity where claimant returned to work after injury with 100% impairment and continued to earn the same wages post injury); Herbert v. City of Horn Lake , 138 So.3d 943, 946 (¶¶ 10-11) (Miss. Ct. App. 2013) ; see also Agee v. Bay Springs Forest Prod., Inc. , 419 So.2d 188, 189 (Miss. 1982) (discussing a back injury where worker moved from job with lifting to fork-lift operator at same wages as before his injury); Smith v. Picker Serv. Co. , 240 So.2d 454, 456 (Miss. 1970) (discussing a back injury and post-injury increased wages where claimant failed to overcome presumption that he had not sustained impairment of earning capacity).

¶ 26. The majority finds that we cannot reverse on this basis because Howard Industries did not file a cross-appeal on the issue of whether Nixon showed that he had suffered a loss of wage-earning capacity and permanent disability. I disagree because the notice of appeal encompassed the basis upon which I would reverse this case.

¶ 27. Generally, "[i]n order for the appellee to gain reversal of any part of the decision of a lower tribunal about which the appellant brings no complaint, the appellee is required to file a cross appeal." Brock v. Hankins Lumber Co. , 786 So.2d 1064, 1068 (¶¶ 18-19) (Miss. Ct. App. 2000) ; see Brown v. Yates , 68 So.3d 758, 762 (¶¶ 21-23) (Miss. Ct. App. 2011) ; see also Dunn v. Dunn , 853 So.2d 1150, 1152 (¶¶ 3-8) (Miss. 2003). However, as stated, in this case, no cross-appeal was required because Nixon's notice of appeal challenged the entire Order and sought reversal of the Commission's ruling.

¶ 28. The record shows that Nixon "complained of" the entire Order in his notice of appeal. Nixon's notice of appeal was very broad, seeking reversal of the entire Order as "not supported by substantial evidence," "contrary to the law," and "arbitrary and capricious." Nixon did not attempt to limit the issues until he set out the statement of issues in his appellant's brief. Hence, at the time Howard Industries would have had to determine whether filing a cross-appeal was necessary, it had no notice from Nixon's notice of appeal that he was not pursuing all the issues raised by his notice of appeal but was instead only appealing the determination of the wage amount. Additionally, in this Court's review of the wage amount determination, we must necessarily review whether the record supports a finding of loss of wage-earning capacity for such calculation. Howard Industries should therefore not be required to file a cross-appeal in this case.

¶ 29. I find helpful the Mississippi Supreme Court's decision in Watkins Dev., LLC v. Hosemann , 214 So.3d 1050 (Miss. 2017). In Watkins , the Court specifically looked at the appellants' notice of appeal, noting that appellants, Watkins and Watkins Development LLC, had specified their basis for appeal. Id. at 1052-53 (¶¶ 11-14). Under those circumstances, the Court held that the appellee, the Secretary of State, was required to file a cross-appeal addressing the portion of the Chancellor's ruling that was not appealed. Id. In this case, given the general nature of Nixon's notice of appeal placing into issue and challenging the evidentiary and legal support for the entire Commission's order, Howard Industries should not have been required to file a cross-appeal.

¶ 30. Precedent reflects that a cross-appeal is needed where consideration is sought on a separate basis for error than that raised by the appellant. In Brock , for example, it appears that the Court was looking at the assignments of error in the briefing, not the contents of the notice of appeal. In that case, however, the opinion did not set forth the contents of the notice of appeal. The Court held:

The Commission found that Brock [the appellant] had suffered a work related injury. That conclusion was explicitly affirmed by the circuit court. Brock in his appeal to the court did not address that finding, as of course there was no reason for Brock to challenge a favorable decision. A cross-appeal is a request given to an appellate court to consider a separate basis for error by the trial court than those raised by the appellant. Were we to agree with Brock's assignment of error, and we have, in order to avoid the effect of that agreement Hankins [the appellee] would have needed to raise as a cross-appeal the other alleged error by the trial court. Hankins did not do so and the issue is not properly raised.

Brock , 786 So.2d at 1068 (¶ 19) ; see also, e.g. , Brown , 68 So.3d at 763 (¶¶ 21-23) ("Because Kim [the appellee] seeks to reverse the chancery court's finding that sections 93-16-3(1) and 96-16-5 are constitutional, and Annie [the appellant] did not raise the issue on direct appeal, Kim was required to file a cross-appeal."). The analysis set forth in Brock does not apply in the case herein because the basis for error raised by Howard Industries is encompassed within Nixon's notice of appeal.

¶ 31. The notice of appeal in this case stated as follows:

COMES NOW, the Claimant, who ... respectfully files this Notice Of Appeal to The Mississippi Supreme Court of the Order of the Mississippi Workers' Compensation Commission dated October 12, 2017, and assigns as grounds for appeal the following:
1. The findings and opinions of the Mississippi Workers' Compensation Commission are not supported by substantial evidence.
2. The findings and opinions of the Mississippi Workers' Compensation Commission are contrary to the law.
3. The findings and opinions of the Mississippi Workers' Compensation Commission are arbitrary and capricious.
4. The Mississippi Workers' Compensation Commission failed to follow the mandates of statu[tory] law, including but not limited to Ms. Code Section 71-3-17.

Nixon, the appellant herein, sought reversal of the Commission's order and challenged the entire order as factually and legally deficient. Thus, to reverse and render upon review of the evidentiary and legal support for the Commission's order, no cross-appeal was required herein because the basis of this determination was encompassed within the appellant's notice of appeal.

      As the majority recognizes, "[t]his Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated ... constitutional or statutory rights .... [T]he Commission is the ultimate fact-finder and judge of the credibility of witnesses; therefore, we may not reweigh the evidence that was before the Commission." Pulliam , 147 So.3d at 868 (¶ 16). "If an administrative agency's decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious." Short , 36 So.3d at 1251 (¶ 20) (internal quotation marks omitted).


author: PARKER, Justice.

text:
    EX PARTE Robert PRZYBYSZ, Ingenuity International, LLC, David Byker, and Global Asset Management Holdings, LLC
    (In re Nannette Smith and B2K Systems, Inc. v. B2K Systems, LLC, et al.)
    Ex parte Robert Przybysz, Ingenuity International, LLC, David Byker, and Global Asset Management Holdings, LLC
    (In re Global Asset Management Holdings, LLC v. B2K Systems, LLC )
    1160381 1160383
    Supreme Court of Alabama.
    September 1, 2017
    E. Glen Waldrop, Jr., of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioners Robert Przybysz and Ingenuity International, LLC, and Wayne Morse, Jr., of Waldrep, Stewart & Kendrick, Birmingham, for petitioners David Byker and Global Asset Management Holdings, LLC.
    Jason L. Yearout of Yearout & Traylor, PC, Birmingham, for respondents.
   PARKER, Justice.

Robert Przybysz, Ingenuity International, LLC ("Ingenuity"), David Byker, and Global Asset Management Holdings, LLC ("GAM") (hereinafter collectively referred to as "the defendants"), filed two petitions for a writ of mandamus in this Court. Both petitions seek a writ ordering the Jefferson Circuit Court ("the circuit court") to vacate the portion of its order requiring Przybysz, Byker, and GAM to dismiss an action they filed in the United States District Court for the Northern District of Alabama ("the federal district court") against Nannette Smith alleging breach of a settlement agreement between the parties.

Facts and Procedural History

The parties have been involved in litigation concerning a business dispute for several years. A detailed recitation of the facts concerning the business dispute is not necessary to analyze the issue raised in the defendants' mandamus petitions. In summary, Smith and B2K Systems, Inc. ("B2K Inc."), filed an action against the defendants and B2K Systems, LLC ("B2K LLC"), in the circuit court asserting various claims, and, at some point, GAM filed an action in the circuit court against B2K LLC. The two cases were consolidated in the circuit court. On November 15, 2016, after years of litigation, the parties entered into a settlement agreement, settling both cases.

As part of the settlement agreement, Byker and/or GAM were to make an initial payment to Smith and then additional payments over a 30-month period. In exchange, Smith agreed to provide a business asset, which is the object of the underlying litigation, to the defendants. Because the settlement agreement required payments to be made over a 30-month period, the circuit court did not enter a final judgment on the settlement agreement, but placed the case on its administrative docket with the intention of leaving it there until the payments to Smith were satisfied. There is no indication that a final judgment has been entered in the underlying cases.

On December 19, 2016, Przybysz, Byker, and GAM sued Smith in the federal district court asserting various claims based on Smith's alleged breach of the settlement agreement. On December 28, 2016, Smith and B2K Inc. filed an amended complaint in the circuit court asserting additional claims based on the defendants' alleged breach of the settlement agreement. Smith and B2K Inc. also filed a motion requesting that the circuit court find the defendants in contempt for filing the action in the federal district court and assessing sanctions against them. Lastly, Smith and B2K Inc. requested that the circuit court enter a consent judgment in their favor in the amount of $750,000.

On January 30, 2017, following a hearing, the circuit court entered an order denying Smith and B2K Inc.'s motion to find the defendants in contempt. However, the circuit court ordered Przybysz, Byker, and GAM to dismiss their action in the federal district court:

"4. The court continues to retain jurisdiction of this matter and of the execution of the settlement per the agreement of the parties.
"5. The defendants are ORDERED and DIRECTED to promptly dismiss any and all federal lawsuits filed ... pertaining to the settlement of this case or purporting to seek enforcement of the settlement of this case or relief from the terms of the settlement."

(Capitalization in original.)

Standard of Review

"A writ of mandamus will be granted where there is " ' "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' "
" ' Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala. 2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991) ). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala. 2004).'
" Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala. 2004)."

Ex parte Courtyard Citiflats, LLC, 191 So.3d 787, 789-90 (Ala. 2015).

Discussion

The defendants ask this Court to issue writs of mandamus ordering the circuit court to vacate the portion of its January 30, 2017, order requiring Przybysz, Byker, and GAM to dismiss their federal lawsuit against Smith. Relying on Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), the defendants argue that the circuit court lacked the authority to order Przybysz, Byker, and GAM to dismiss their federal lawsuit against Smith. We agree and issue the writs.

In Donovan, a group of property owners near a municipal airport filed a class action in a Texas trial court against the municipality to restrain it from building a runway to service the municipal airport and from funding the project through the issuance of bonds. The trial court entered a summary judgment in favor of the municipality, and the summary judgment was affirmed on appeal. Later, a group of citizens of the municipality, including several members of the class who filed the initial lawsuit in the Texas state court, filed a class action in the United States District Court for the Northern District of Texas against the municipality, among others, seeking similar relief. The municipality filed an answer to the class action in the federal court, but also "applied to the Texas Court of Civil Appeals for a writ of prohibition to bar all the plaintiffs in the case in the United States District Court from prosecuting their case there." 377 U.S. at 409, 84 S.Ct. 1579. Initially, the Texas Court of Civil Appeals denied the municipality's application. However, after being reversed by the Supreme Court of Texas, the Texas Court of Civil Appeals

"issued a writ prohibiting all the plaintiffs in the United States District Court case from any further prosecution of that case and enjoined them 'individually and as a class ... from filing or instituting ... any further litigation, law suits or actions in any court, the purpose of which is to contest the validity of the airport revenue bonds ... or from in any manner interfering with the proposed bonds ....' "

377 U.S. at 410, 84 S.Ct. 1579. Subsequently, the United States District Court for the Northern District of Texas dismissed the class action, and the class-action plaintiffs appealed.

After the class-action plaintiffs appealed, the Texas Court of Civil Appeals determined that several of the class-action plaintiffs had violated the court's prohibition and sanctioned the class-action plaintiffs. Although the United States Supreme Court denied certiorari review of the United States District Court for the Northern District of Texas's dismissal of the class action, the United States Supreme Court granted certiorari review "to review the State Supreme Court's judgment directing the Civil Court of Appeals to enjoin petitioners from prosecuting their action in the federal courts."

Donovan, 377 U.S. at 411, 84 S.Ct. 1579. In analyzing this issue, the United States Supreme Court stated:

"Early in the history of our country a general rule was established that state and federal courts would not interfere with or try to restrain each other's proceedings. That rule has continued substantially unchanged to this time. An exception has been made in cases where a court has custody of property, that is, proceedings in rem or quasi in rem. In such cases this Court has said that the state or federal court having custody of such property has exclusive jurisdiction to proceed. Princess Lida v. Thompson, 305 U.S. 456, 465-468, 59 S.Ct. 275, 83 L.Ed. 285 [ (1939) ]. In Princess Lida this Court said 'where the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other.' Id., 305 U.S. at 466, 59 S.Ct. 275. See also Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 [ (1922) ]. It may be that a full hearing in an appropriate court would justify a finding that the state-court judgment in favor of [the municipality] in the first suit barred the issues raised in the second suit, a question as to which we express no opinion. But plaintiffs in the second suit chose to file that case in the federal court. They had a right to do this, a right which is theirs by reason of congressional enactments passed pursuant to congressional policy. And whether or not a plea of res judicata in the second suit would be good is a question for the federal court to decide. While Congress has seen fit to authorize courts of the United States to restrain state-court proceedings in some special circumstances, it has in no way relaxed the old and well-established judicially declared rule that state courts are completely without power to restrain federal-court proceedings in in personam actions like the one here. And it does not matter that the prohibition here was addressed to the parties rather than to the federal court itself. For the heart of the rule as declared by this Court is that:
" '... where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court.... The fact, therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party ... who is a litigant in another and independent forum.' 12
"12 Peck v. Jenness, 7 How. 612, 625 [12 L.Ed. 841] [ (1849) ]. See also Central National Bank v. Stevens, 169 U.S. 432 [18 S.Ct. 403, 42 L.Ed. 807] [ (1898) ] ; cf. Baltimore & O.R. Co. v. Kepner, 314 U.S. 44, 54, n. 23 [62 S.Ct. 6, 86 L.Ed. 28] ( [1941) ]."

Donovan, 377 U.S. at 412-13, 84 S.Ct. 1579 (emphasis added; some footnotes omitted). See also General Atomic Co. v. Felter, 434 U.S. 12, 17, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977) ("It is ... clear from Donovan [v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964),] that the rights conferred by Congress to bring in personam actions in federal courts are not subject to abridgment by state-court injunctions, regardless of whether the federal litigation is pending or prospective."). The United States Supreme Court concluded that "[t]he Texas courts were without power to take away this federal right by contempt proceedings or otherwise." Donovan, 377 U.S. at 413-14, 84 S.Ct. 1579 (emphasis added).

The defendants argue that, "because this is an in personam breach of contract action, as opposed to an in rem proceeding, [the circuit court] is without authority to enjoin the federal action or order the [d]efendants to dismiss the federal action." In their response, Smith and B2K Inc. recognize the application of the above-discussed principles from Donovan. However, Smith and B2K Inc. appear to argue that the circuit court has the authority to decide if a federal district court would have jurisdiction over a pending suit in the federal district court. Smith and B2K Inc. conclude that, if the circuit court determines that a federal district court does not have jurisdiction over the case, then the circuit court may enjoin the action pending in the federal district court.

In support of their argument, Smith and B2K Inc. cite some cases for the unrelated proposition that "state courts have the power and duty to construe questions of federal law." However, none of those authorities stand for the proposition asserted by Smith and B2K Inc. that a state court may determine whether a federal court has jurisdiction over a case filed in that federal court. Smith and B2K Inc.'s argument is not supported by any relevant authority; thus, we need not consider it further. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007) ("Rule 28(a)(10), Ala. R. App. P., requires that arguments in an appellant's brief contain 'citations to the cases, statutes, other authorities, and parts of the record relied on.' Further, 'it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.' State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala. 2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001) ). This is so, because ' "it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." ' Butler v. Town of Argo, 871 So.2d 1, 20 (Ala. 2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) ).").

We agree with the defendants. Donovan makes clear that the circuit court does not have the authority to order Przybysz, Byker, and GAM to dismiss their federal action against Smith; the defendants have demonstrated a clear legal right to the relief they seek.

Conclusion

We grant the defendants' petitions and direct the circuit court to vacate that portion of its order requiring Przybysz, Byker, and GAM to dismiss their federal action against Smith.

1160381-PETITION GRANTED; WRIT ISSUED.

1160383-PETITION GRANTED; WRIT ISSUED.

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

Murdock, J., concurs in the result.

      Each petition is directed to a different circuit court number. It appears from the materials before this Court that the two cases were consolidated in the circuit court early in these proceedings and have traveled together since. The order to which these petitions are addressed concerns both circuit court case numbers.

      Ingenuity is named as a petitioner in both petitions even though it was not a party in the action in the federal district court.

      Przybysz and Ingenuity were involved with other aspects of the settlement agreement, a detailed explanation of which is not necessary for purposes of resolving the petitions that are the subject of this opinion.

      This well established principle from Donovan has been adopted in Alabama. See Moody v. State ex rel. Payne, 295 Ala. 299, 307, 329 So.2d 73, 79 (1976) (recognizing "the proposition stated in Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed. 2d 409 (1964), that 'state courts are completely without power to restrain federal-court proceedings in in personam actions' " and noting that this principle was previously "cited and applied by this [C]ourt in Johnson v. Brown-Service Ins. Co., 293 Ala. 549, 307 So.2d 518 (1974)").

      B2K Inc. is named as a respondent in both cases even though it was not a party in the action in the federal district court.


author: MAIN, Justice.

text:
    EX PARTE Dr. Eyston A. HUNTE and Eyston A. Hunte, M.D., P.A.
    (In re Lisa S. Johnson v. Dr. Eyston A. Hunte and Eyston A. Hunte, M.D., P.A.)
    1160164
    Supreme Court of Alabama.
    September 1, 2017
    Philip H. Partridge and Winston R. Grow of Partridge, Smith, P.C., Mobile, for petitioners.
    Submitted on mandamus petition only
   MAIN, Justice.

Dr. Eyston A. Hunte and Eyston A. Hunte, M.D. P.A. ("EAH"), petition this Court for a writ of mandamus directing the Mobile Circuit Court to vacate its order compelling production of a complaint made to the Alabama Board of Medical Examiners ("the Board") by a former patient of Hunte's. We grant the petition and issue the writ.

I. Facts and Procedural History

On July 21, 2014, Lisa S. Johnson filed this action against Hunte and EAH in the Mobile Circuit Court. In her complaint, Johnson alleged that she had seen Hunte on July 23, 2012, for a routine health exam and that Hunte sexually abused her during his examination. Johnson asserted claims of negligence, wantonness, invasion of privacy, the tort of outrage, negligent infliction of emotion distress, assault, and violation of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala Code 1975 ("AMLA"), against Hunte and EAH.

Johnson served discovery requests on Hunte and EAH, which included a request to produce "each and every claim or complaint that has been made against [Hunte] by a patient for assault or inappropriate touching." Hunte objected to this request on the ground that this information was protected from discovery. Johnson filed a motion to compel Hunte and EAH to produce the requested documents. Hunte and EAH, in turn, filed a motion for a protective order. Hunte and EAH admitted that Hunte possessed a document responsive to Johnson's request for production-a written complaint submitted to the Board in 2001 by a former patient. They argued, however, that this document was not discoverable because, among other reasons, it was privileged under the provisions of § 34-24-60, Ala. Code 1975. That section provides, in part, that "all information, interviews, reports, statements, or memoranda of any kind furnished to the [Alabama Board of Medical Examiners] or any committee of the board ..., unless presented as evidence at a public hearing, shall be privileged and confidential, ... and shall not be public records nor be available for court subpoena or for discovery proceedings." In support of the motion, EAH and Hunte submitted Hunte's affidavit. Hunte attested that the document was provided to him by the Board during formal proceedings stemming from the 2001 complaint. Hunte further testified that the document had never been published or made publicly available and that there were no public hearings before the Board related to the 2001 complaint. Additionally, Hunte and EAH submitted the document under seal to permit the trial court to review the document in camera.

On October 21, 2016, the trial court denied Hunte and EAH's motion for a protective order and ordered Hunte and EAH to respond to the discovery requests within 21 days. This petition followed.

II. Standard of Review

" 'Mandamus is an extraordinary remedy and will be granted only when there is "(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala. 2001).... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case-that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala. 1992).'
" Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1136-37 (Ala. 2003)."

Ex parte Fairfield Nursing & Rehab. Ctr., L.L.C., 22 So.3d 445, 447 (Ala. 2009).

III. Analysis

Hunte and EAH argue that the document in question, a 2001 complaint submitted to the Board by a former patient, is not discoverable for three reasons. First, they contend that the document is privileged under § 34-24-60. Second, they contend that Johnson's discovery request was not reasonably limited as to time and that the 2001 document was far too old to be reasonably calculated to lead to admissible evidence. Finally, Hunte and EAH argue that discovery of the 2001 complaint is barred by § 6-5-551, Ala. Code 1975, which prohibits discovery of prior acts or omissions in a claim brought under the AMLA.

With regard to the claim of privilege, § 34-24-60 provides:

"(a) All reports of investigations; documents subpoenaed by the [Alabama Board of Medical Examiners], reports of any investigative committee appointed by the board; memoranda of the board's counsel relating to investigations; statements of persons interviewed by the board or any committee of the board; all information, interviews, reports, statements, or memoranda of any kind furnished to the board or any committee of the board; and any findings, conclusions, or recommendations resulting from proceedings of the board or any committee of the board, unless presented as evidence at a public hearing, shall be privileged and confidential, shall be used only in the exercise of the proper functions of the board, and shall not be public records nor be available for court subpoena or for discovery proceedings.
"Nothing contained herein shall apply to records made in the regular course of business of an individual; documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented or considered during the proceedings of the Board of Medical Examiners or the Medical Licensure Commission."

(Emphasis added.)

It is evident from the materials before us that the 2001 complaint submitted to the Board by Hunte's former patient and provided to Hunte as a part of the proceedings before the Board is the type of document declared privileged and confidential under § 34-24-60. Generally, privileged matters are not subject to discovery. See Rule 26(b)(1), Ala. R. Civ. P. ("Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...."). We further note that Johnson has not filed an answer to this petition and has not presented any facts or argument to this Court indicating that the 2001 complaint is not privileged or that it is otherwise subject to discovery. Thus, we conclude that Hunte and EAH have shown a clear right to an order protecting the 2001 complaint in Hunte and EAH's possession from discovery. Given our conclusion that the document is privileged under § 34-24-60, we pretermit discussion on the other grounds raised by Hunte and EAH.

IV. Conclusion

We conclude that the 2001 complaint is not discoverable from Hunte and EAH. To the extent the trial court's order requires Hunte and EAH to produce the 2001 complaint, the trial court is directed to vacate that order.

PETITION GRANTED; WRIT ISSUED.

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

      Hunte initially objected to the discovery on the ground that the information was not discoverable under § 6-5-551, Ala. Code 1975, a provision of the AMLA that prohibits a plaintiff from "conducting discovery with regard to any other act or omission."

      We do not address whether the complaint would be discoverable from the patient who filed it, the original source.


author: SELLERS, Justice.

text:
    Bobby SAARINEN and Chris Williams v. Louis HALL
    1160066
    Supreme Court of Alabama.
    September 1, 2017
    Stephen V. Hammond of Chenault Hammond, P.C., Decatur; and Brian Hamilton of McDowell, Beason & Hamilton, P.C., Russellville, for appellants.
    Stephen D. Heninger of Heninger Garrison Davis, LLC, Birmingham, for appellee.
   SELLERS, Justice.

This Court granted Bobby Saarinen and Chris Williams permission to appeal, pursuant to Rule 5, Ala. R. App. P., from an interlocutory order of the Franklin Circuit Court denying their motion for a summary judgment in Louis Hall's personal-injury action against them.

In May 2014, Hall was injured while operating a power saw at his place of employment, a plant owned by Williams Manufacturing, Inc. ("Williams Manufacturing"). Hall sued Williams Manufacturing, as well as his co-employees Saarinen and Williams, who were in 2014 and still are supervisory employees at Williams Manufacturing ("the co-employees"). The record indicates that Williams is the owner of Williams Manufacturing and that Saarinen is the plant manager.

In his complaint, Hall asserted theories of negligence, "willfulness," and "recklessness." Williams Manufacturing moved to dismiss the claims against it, asserting that Hall's exclusive remedy was under the Alabama Workers' Compensation Act, §§ 25-5-1 et seq., Ala. Code 1975. The trial court granted Williams Manufacturing's motion and dismissed Hall's claims against it. Subsequently, Hall amended his complaint to allege that the co-employees had "caused or allowed the removal of a guard from the saw made the basis of this suit," had "fail[ed] to install a safety guard provided for the saw," and had "fail[ed] to replace the unguarded saw with a new guarded saw."

The co-employees filed a motion for a summary judgment. In support, they pointed to § 25-5-11, Ala. Code 1975. Section 25-5-11(a) provides, in relevant part:

"If the injury ... for which compensation is payable under Articles 3 or 4 of [the Workers' Compensation Act] was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, ... the employee ... may bring an action against the other party to recover damages for the injury ..., and the amount of the damages shall be ascertained and determined without regard to [the Workers' Compensation Act]. If a party, other than the employer, is ... an ... employee of the same employer, ... the injured employee ... may bring an action against ... [the] person ... only for willful conduct which results in or proximately causes the injury ...."

(Emphasis added.) See also Padgett v. Neptune Water Meter Co., 585 So.2d 900, 901 (Ala. 1991) (" Section 25-5-11(a) provides that actions may be maintained against those parties that may be jointly liable with the employer, provided that if the other party is a coemployee, then his actions, in order to give rise to liability, must be willful.").

Section 25-5-11(b) provides: "If personal injury ... to any employee results from the willful conduct, as defined in subsection (c) herein, of any ... employee of the same employer ..., the employee shall have a cause of action against the person ...." As is relevant to this appeal, § 25-5-11(c)(2) defines "willful conduct" as follows:

"The willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal; provided, however, that removal of a guard or device shall not be willful conduct unless the removal did, in fact, increase the danger in the use of the machine and was not done for the purpose of repair of the machine or was not part of an improvement or modification of the machine which rendered the safety device unnecessary or ineffective."

In their summary-judgment motion, the co-employees established that, on the day he was injured, Hall was operating a power saw manufactured by Kalamazoo Industries, Inc. During depositions, the saw was described as a "straight cut-off saw." Although it is not entirely clear, photographs in the record appear to depict a saw with a round blade. Hall states in his appellee's brief that he used the saw to cut aluminum pipe, that "[t]he blade is above the table and the operator pulls it down by hand to cut the pipes on the table," and that, "[a]fter the cut takes place, the blade is spring loaded to return to the 'up' position."

The saw, which was purchased used by Williams Manufacturing, was manufactured with a guard covering a portion of the blade; Hall, however, did not think the guard was adequate. According to Hall's appellee's brief, "the guard on [the] saw did not fully cover the blade when the saw had finished cutting and sprung back to the 'up' position," at which point "the blade would be exposed by about 1 ½ inches." At Hall's request, someone at Williams Manufacturing installed an additional guard. Hall testified as follows during deposition:

"Q. [The saw] had that orange guard on it that's depicted in these pictures, correct?
"A. Yes.
"Q. And later on, at your request, they added this silver guard.
"A. Yeah.
"Q. And I assume that was supposed to cover more of the blade; is that right?
"A. It was supposed to have.
"Q. Okay. But your testimony is that the blade would come down below the silver guard, correct-
"A. Correct.
"Q. -when you were cutting or after you'd cut, I suppose?
"A. After. After the saw went back up.
"Q. Okay. Then did the-when the saw went back up, did the silver guard cover the blade?
"A. Not completely, no."

After Hall's injury, Williams Manufacturing replaced the saw with a power saw manufactured by a different Company-DeWalt. Hall testified during deposition that, before he was injured, Williams Manufacturing had already purchased the saw that eventually replaced the saw that injured Hall. He testified that the replacement saw had been delivered at least a month before his injury but had not been installed because, he was told, Williams Manufacturing was too busy to change out the saws. As Hall points out, the co-employees' motion for a summary judgment states that, "[w]hen Hall asked the [coemployee ] defendants when they were going to replace the saw on which he was working, they said when they were less busy." Hall also points to Saarinen's testimony indicating that Williams Manufacturing was "in the middle of [its] busy season" and that "we were making rounds and reminding everybody that just because we were busy, we didn't want to lose focus on safety, [and] we didn't want people to do anything to injure themselves and get hurt." According to Hall, he would not have been injured if he had been using the DeWalt saw because, he says, "it had a full wrap around guard." The trial court denied the co-employees' summary-judgment motion. Thereafter, pursuant to Rule 5(a), Ala. R. App. P., the trial court certified the following controlling question of law for this Court's consideration:

"Is the presence of another saw on the premises that had not been installed and [that] was not manufactured by the manufacturer of the saw in question the equivalent of the removal of a safety guard under Alabama Code [1975,] § 25-5-11(c)(2) ?"

This Court granted the co-employees' request for permission to appeal from the trial court's interlocutory order denying their summary-judgment motion.

Hall argues that the failure to replace the Kalamazoo saw in question with the newer DeWalt saw, which allegedly had a superior guard, was "tantamount to [the] removal of a safety guard under § 25-5-11(c)(2)."

"[T]his Court has, on limited occasions, liberally interpreted the concept of 'removal' within the context of § 25-5-11(c)(2). In Bailey v. Hogg, 547 So.2d 498, 500 (Ala. 1989), this Court held that the 'failure to install' a safety device provided by the manufacturer equated to the intentional and willful 'removal' of a safety device. Likewise, in Harris v. Gill, 585 So.2d 831, 837 (Ala. 1991), this Court held that the act of 'bypassing' an original safety device by installing an alternative safety device equated with the intentional and willful 'removal' of a safety device. Finally, in Moore v. Reeves, 589 So.2d 173, 178-79 (Ala. 1991), we held that the 'failure to maintain and/or repair a safety guard' equated with the intentional and willful 'removal' of a safety guard."

Cumbie v. L&A Contracting Co., 739 So.2d 1099, 1102 (Ala. 1999).

In the present case, there is no evidence indicating that the co-employees failed to install a guard provided by the manufacturer of the saw that injured Hall or that they failed to maintain or repair the guard provided. Moreover, although an additional guard was installed on the saw, that guard was not "an alternative safety device" in that the original guard was not bypassed.

"To permit all actions based on negligence that 'pertains to safety or adds to the plaintiff's risk' would be contrary to the intent of the legislature. Hallmark[ v. Duke, 624 So.2d [1058], 1062 [ (Ala. 1993) ]. We adhere to the view that '§ 25-5-11(c)(2) cannot be construed to allow a co-employee action in every situation where an employee is injured on the job and that any change in the limited right of action provided for in § 25-5-11(c)(2) must be left to the legislature.' Lane v. Georgia Cas. & Sur. Co., 670 So.2d 889, 892 (Ala. 1995)."

Cumbie, 739 So.2d at 1103-04.

The Court declines to extend the definition of willfulness in § 25-5-11(c)(2) to encompass the circumstances involved in the present case. Accordingly, we answer the specific question certified by the trial court in the negative. Under the facts in this case, the failure to install another, presumably safer, saw that was present on the premises but that had not been put into operation and that was manufactured by a different manufacturer than the saw that injured the plaintiff is not the equivalent of the removal of a safety guard so as to constitute willful conduct under § 25-5-11(c)(2). Cf. Wadsworth v. Jewell, 902 So.2d 664, 669 (Ala. 2004) (failure to provide an employee with an ergonomic keyboard, even though the employer had access to ergonomic keyboards, did not constitute the removal of a safety device provided by the manufacturer of the computer the employee was using when the injury occurred). The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Parker, Shaw, Main, and Wise, JJ., concur.

Bolin and Bryan, JJ., concur in the result.

      We note that the portion of the record upon which Hall relies in asserting that the co-employees added a guard to the saw suggests that someone named "Nevell" added the guard. We also note that Hall does not assert that the addition of the second guard rendered the saw less safe.

      The Court does not express an opinion as to whether the failure to install an allegedly safer machine that is present on the premises and made by the same manufacturer as the machine that injured an employee might come within the operation of § 25-5-11(c)(2).