author: LEE, C.J., FOR THE COURT:

text:
    Toni Miles CULUMBER, Appellant v. Robert L. CULUMBER, Appellee
    NO. 2017-CA-00372-COA
    Court of Appeals of Mississippi.
    December 4, 2018
    ATTORNEY FOR APPELLANT: JOHN R. REEVES
    ATTORNEY FOR APPELLEE: ALBEN NORRIS HOPKINS JR.
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the Harrison County Chancery Court, Second Judicial District, erred when it granted Robert Culumber a divorce from Toni Culumber on the grounds of habitual cruel and inhuman treatment and habitual drunkenness and declined to award Toni rehabilitative alimony. Finding the chancellor's decision was supported with substantial credible evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Robert Culumber and Toni Miles Culumber were married on May 22, 2013, in Las Vegas, Nevada. Robert was nineteen years older than Toni and had one child from a previous relationship, but the parties had no children together. Sometime in July 2014, the parties separated after only thirteen months of marriage. On August 29, 2014, Robert filed for divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness or, in the alternative, irreconcilable differences. Toni filed her answer and counterclaimed for a divorce on grounds of habitual cruel and inhuman treatment, habitual drunkenness, habitual and excessive drug use, adultery, or in the alternative, irreconcilable differences. Following a trial, spanning dates from July 2015 to July 2016, the chancellor granted Robert a divorce from Toni on the grounds of habitual cruel and inhuman treatment and habitual drunkenness.

¶ 3. At trial, Robert testified that from the very beginning of the marriage, Toni had trust issues that led to "psychotic, manic, violent outbursts" throughout the marriage. He also testified that Toni was physically combative and struck him throughout the marriage, and that she would lunge at him and swing at him "constantly." According to Robert, when he would attempt to leave the home during these outbursts, Toni would threaten him. Robert testified that he feared for his safety and left the marital home fifty to sixty times during the marriage due to this fear. In addition to being afraid to stay in the home while Toni was there, Robert also stated that he would leave in an effort to avoid confrontation and avoid having the police called to the home. He also stated that he left so that he could get a restful night's sleep because he was working two jobs and that Toni did not respect his time, his job, or his clients. On these occasions when he left the home, Robert stayed with friends, neighbors, and his mother.

¶ 4. Robert testified that he lived in the marital home for twenty-one years prior to his marriage to Toni and had never received neighbor complaints or police visits. But, after just two months of marriage, the police were called to the residence due to neighbor reports of arguing between the parties. During the short marriage, the police were called at least four times to the marital home. Robert testified that during Toni's violent outbursts, she caused property damage to the home, with incidents where she cracked the granite kitchen-counter tops around the kitchen sink, destroyed custom cabinets that were installed prior to the marriage, smashed vases, knocked pictures out of frames and off the wall, knocked holes in the sheetrock of the wall, and kicked in doors. He also testified that one evening he came home from fishing and found all of their wedding gifts and picture frames "smashed out in the street" and that a neighbor helped him clean it up. Robert stated that the very next night, he came home and all of his suits had been thrown out in the front yard, and furniture from the house had been moved outside to the driveway. On a separate occasion, a neighbor had alerted him that sheets and blankets had been thrown on the house, covering windows and doors. In one particular incident, Robert came home, and as soon as he walked in the door, Toni threw hot, melted cheese in his face and on his body. She then slammed her head into the wall and called police alleging Robert had struck her. The police came and arrested Robert, though he was ultimately released, and no charges were pressed.

¶ 5. Robert also testified that Toni drank excessively throughout the marriage. He stated that she drank every night and was drunk five out of seven nights per week. He also said that she was prescribed pain pills which she took excessively and drank excessively in combination with the pills. Robert testified that many of the couple's fights and Toni's violent outbursts were precipitated by her drinking. Robert admitted at trial to occasional, recreational marijuana use.

¶ 6. Robert called Michael Newman to testify as a corroborating witness. Newman stated that he and Robert met in seventh grade and had known each other for forty-seven years. He and Robert had also been neighbors for the past twenty-one years. Newman testified that just three or four days after Robert and Toni married in Las Vegas, Robert was back in Biloxi and called Newman, saying that he and Toni were not getting along and that he did not feel safe staying in the marital home. Robert asked if he could stay with Newman, and Newman agreed. Newman testified that Robert stayed with him three nights the first time, five nights the second time, and then one to two nights on and off throughout the marriage. He also stated he was aware that Robert stayed with others, including Robert's mother, a friend named Ronnie Ellis, and even at a hotel room once or twice.

¶ 7. During his testimony about the first night Robert stayed with him, Newman described Robert as being in "extreme distress" and stated that he was "afraid to leave [Robert] alone." He stated that Robert was tremendously distraught about the situation with Toni and that he was "seriously concerned that [Robert] was going to have a heart attack or a stroke." Newman also expressed he "was actually concerned that [Toni] might kill [Robert]." When Toni cross-examined Newman about an incident where Robert had to leave the marital home due to Toni's behavior and then later, once Toni had left, Robert changed the locks, Newman answered that he "didn't want [Toni] sneaking into the house while [Robert] was asleep and killing him.... That's exactly what I thought."

¶ 8. When asked if he had ever been in the Culumber home during their marriage, Newman responded that he had and confirmed he had witnessed broken items and the home in disarray. He also described an incident where he noticed the Culumber house had "bedclothes, sheets draped all over the outdoor areas of the home, or any window or opening that might be observable from [Newman's] home." When Newman asked Robert about it, Robert speculated to him that Toni was afraid Newman, a private investigator, was surveilling or spying on Toni. Newman testified that he never spied or otherwise invaded Toni's privacy.

¶ 9. Newman also testified about the incident where Toni threw hot cheese on Robert. Newman stated he received a call from Robert, first asking where Newman was and then asking if he would please come over. According to Newman, Robert explained to him on the phone that when Robert walked through the door that evening after work, Toni "assaulted him by throwing a pot of melted Velveeta cheese onto his body, his head and his chest." Robert told Newman that Toni "then ran her head into the wall in the house and was in the process, as [they] spoke, of dialing 911." Robert requested that Newman come over and "stand by"-which he did. When Newman arrived at the Culumber house, he observed Robert with cheese on his face, shirt, shorts, and leg. He also testified that it "appeared to have burned his face and his hand in one spot that [he] could see." On both direct and cross examination, Newman reiterated his concerns for Robert's safety and stated that Robert feared for his own safety because of Toni's behavior. He said he was personally aware of four occasions when the police came to the home due to calls about domestic disturbance. He also stated that there had been meetings amongst the neighbors to discuss the domestic disturbances and the volatility of the situation.

¶ 10. Toni litigated pro se. Her counsel had withdrawn just prior to trial, and despite the numerous urgings of the chancellor that she hire an attorney, Toni continued pro se. During cross-examination, Toni admitted to violence in previous relationships. Specifically, she admitted to hitting one boyfriend, which resulted in her being arrested for domestic assault. She was again arrested for domestic assault in a different relationship where she admittedly bit her boyfriend repeatedly, broke the door frame, and damaged his apartment. In both these instances, Toni was arrested and the boyfriends were not. Toni also admitted that she had previously been arrested on cocaine charges, though the grand jury returned a no true bill. Toni admitted to having attended anger management. She testified that she had a history of anger issues and admitted that she, at the time of trial, still struggled with managing her anger. She also admitted that she experienced these anger episodes during the course of her marriage, often while drinking. She admitted to a family history of alcoholism.

¶ 11. Toni held active prescriptions for Adderall, for ADHD; Bupropion, for depression; and Hydrocodone, for neck pain. She admitted to drinking alcohol while taking the medications and testified that she was not advised against mixing the medication with alcohol. She admitted, however, that she would not be surprised if the warning labels advised against drinking alcohol with the medication because it could cause behavioral changes including aggression and hostility. Toni also admitted that on three of the four times that police were called to the home, she had been drinking. Toni's drug test, conducted during trial, showed the presence of opiates, amphetamines, and alcohol.

¶ 12. In its bench ruling, the court noted its responsibility to determine the credibility of the witnesses in evaluating the claims and grounds for divorce. The court explicitly stated that it was "clear" that Toni was not credible. The court went on to detail some of Toni's actions that it was "very concerned about" including that Toni secretly made recordings of court proceedings. When the issue came up during trial, Toni flatly denied making any recordings and stated to the court that she had only made notes during the trial. The court explained to her that she was not entitled to make any recordings and that it violated the court's rules. In its bench opinion, the court later explained that it could have excused Toni for making the recordings because she was not an attorney and may not have been aware of the rules, but what was "inexcusable" is that she later perjured herself. Toni stated she didn't know anything about the recordings or the making of any recordings, yet she submitted "transcripts" that she had prepared which the court found were "actual verbiage from the trial." The court stated that what Toni alleged was the product of note taking was "absolutely impossible ... even from a seasoned court reporter who can take shorthand by hand."

¶ 13. Additionally, the court noted that Toni had issues and found fault with almost all parties involved with the trial including her withdrawn counsel, opposing counsel, the temporary court reporter, the court's staff attorney, and even the sitting judge. The court also stated that the vast majority of what Toni provided to the court was "a total fiction and absolutely contrary and the opposite of what all of the evidence was produced from the witness stand and the documents in evidence."

¶ 14. The court also stated that early on in the case, through her attorney, Toni was "most interested in money from Mr. Culumber and was pushing to get as much money as possible from Mr. Culumber." The court noted that the offers Robert made to Toni during in-chamber, on-the-record settlement negotiations exceeded the bounds of what the court could award pursuant to statutory and case law guidelines. The court suggested to Toni's then counsel that Toni should take the offer, but Toni refused and later accused the court of prejudging the case for making such a recommendation. Noting that Robert was a certified public accountant and therefore at an advantage in terms of the ability to hide and structure money-an accusation Toni had made-the court indicated to Toni that it could order forensic accounting of Robert's finances, but she rejected the offer. She also put on no evidence that he had hidden, tampered with, or otherwise manipulated his financial assets and interests.

¶ 15. The court also noted that Toni denied receiving exhibits from Robert's counsel when she indeed had received them, stated to the court that she had properly subpoenaed people when she had not subpoenaed them, and stated that she paid their attendance fee-later admitting she had not paid the fees. The court stated that it "could go on with numerous other[ ] [things]," concluding "it's clear that [Toni] is not credible."

¶ 16. On the other hand, the court found that Robert was credible and also that he produced a credible, corroborating witness. As such, the trial court granted Robert a divorce from Toni on the grounds of cruel and inhuman treatment and habitual drunkenness, and the court declined to award Toni rehabilitative alimony.

¶ 17. Toni now appeals, arguing that the chancery court erred when it (1) granted Robert a divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness and (2) denied her request for rehabilitative alimony.

STANDARD OF REVIEW

¶ 18. "It is well settled that appellate courts are bound by a limited standard of review in domestic-relations matters." White v. White , 208 So.3d 587, 592 (¶ 10) (Miss. Ct. App. 2016). "This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Farris v. Farris , 202 So.3d 223, 230 (¶ 26) (Miss. Ct. App. 2016). "In the case of a divorce decree, facts will be viewed in a light most favorable to the appellee." White , 208 So.3d at 592 (¶ 10) (internal quotation marks omitted). "For questions of law, our standard of review is de novo." Id.

DISCUSSION

I. Grounds for Divorce

¶ 19. The chancery court granted Robert a divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. Toni appeals, arguing there was not substantial credible evidence to support a divorce on either of these grounds.

A. Habitual Cruel and Inhuman Treatment

¶ 20. Habitual cruel and inhuman treatment is behavior that "(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance." Baggett v. Baggett , 246 So.3d 887, 892 (¶ 13) (Miss. Ct. App. 2017) (quoting Horn v. Horn , 909 So.2d 1151, 1155 (¶ 7) (Miss. Ct. App. 2005) ). The party seeking the divorce on this ground must prove habitual cruel and inhuman treatment by a preponderance of the evidence. Id.

¶ 21. "The offending spouse's conduct must exceed 'unkindness or rudeness or mere incompatibility or want of affection' and 'must be shown to have been systematic and continuous.' " Id. (quoting Horn , 909 So.2d at 1155 (¶ 7) ). "Such conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself." White , 208 So.3d at 593 (¶ 12). "[T]he offended spouse must show a causal connection between the offending spouse's conduct and the impact on the offended spouse." Baggett , 246 So.3d at 892 (¶ 13). "Such an inquiry is subjective, and the focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person." Id. (internal quotation mark omitted).

¶ 22. "The party alleging cruel and inhuman treatment typically must corroborate the testimony." White , 208 So.3d at 593 (¶ 13). "[C]orroborating evidence need not be sufficient in itself to establish habitual cruelty, but rather need only provide enough supporting facts for a court to conclude the plaintiff's testimony is true." Id.

¶ 23. In the present case, there was testimony that Toni was not just unkind or rude or that she and Robert merely engaged in heated arguments, but that Toni was verbally and physically combative towards Robert constantly. She often exhibited what was described as "violent outbursts" that were not, per the chancellor's findings, precipitated or warranted by Robert's behavior. During such outbursts, she caused physical destruction to the couple's home and also physically assaulted Robert on more than one occasion. Robert testified that this conduct, which was constant, caused him to be in fear for his life and safety and also caused him to leave the marital home fifty to sixty times in just over one year of marriage. Toni herself admitted she had anger issues and also admitted to a history of exhibiting violence in relationships. Robert's testimony was corroborated by Newman, with whom Robert had stayed on several occasions during Toni's combative outbursts. Newman corroborated that Robert was physically and emotionally distraught over Toni's behavior and was fearful for his safety. Newman stated that he was concerned that Robert may have a heart attack or stroke, and he even feared that Toni was going to kill Robert. Newman also corroborated the volatility of the relationship, noting the police had come several times to the Culumber home and that the neighbors had discussed the volatile situation. Newman also knew that Robert had stayed with others, besides himself, when Robert had to leave the marital home because of Toni's behavior. Corroborating one particular incident, Newman witnessed hot, melted cheese on Robert's face and body, which Toni had thrown on Robert as soon as he walked in the door from work. Newman testified that Robert appeared to have burns from this incident.

¶ 24. "Upon review, this Court is reminded that the chancellor is vested with the sole authority and responsibility to assess witness credibility as no jury is present." White , 208 So.3d at 594 (¶ 16) (internal quotation mark omitted). "The chancellor alone hears the testimony and sees the demeanor of the witnesses." Id. (internal quotation mark omitted). "This Court cannot, and will not, reweigh the evidence or reconsider the credibility of the witnesses." Id. (internal quotation mark omitted). As such, the chancellor here found that Robert had proved habitual cruel and inhuman treatment, and we find that there was substantial credible evidence to support his decision. Toni's behavior was systematic and continuous to such a degree that it created a reasonable apprehension of danger, forcing Robert to leave the home on numerous occasions-evidencing the subjective effect that is to be considered. Toni's behavior was constant such that "its recurrence may be reasonably expected whenever occasion or opportunity presents itself." And Newman "provide[d] enough supporting facts for a court to conclude [Robert's] testimony [wa]s true." See Baggett , 246 So.3d at 892 (¶ 13). Accordingly, we do not find that the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. We find that the chancellor's grant of the divorce on ground of habitual cruel and inhuman treatment was based on substantial credible evidence.

B. Habitual Drunkenness

¶ 25. Toni also argues that there was no evidence to support a divorce on the ground of habitual drunkenness. Specifically, she states there was no medical testimony or medical evidence to show she had any issues with alcohol.

¶ 26. "A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial." Id. at 893 (¶ 15) (quoting Lee v. Lee , 154 So.3d 904, 906 (¶ 7) (Miss. Ct. App. 2014) ).

¶ 27. Robert's testimony, which the chancellor found credible, stated that Toni drank every night, drank excessively, mixed alcohol with contraindicated prescriptions, and was drunk five out of seven nights per week. Toni herself admitted that she had anger issues when she drank, that she was drinking on three of the four occasions police were called to the home, and that she drank while taking her prescription medications. Specific examples of Toni's drinking included Robert's testimony that on the last night of their honeymoon, security was called on them because Toni was passed out on the floor. Additionally, prior to trial proceedings, Robert and a notary went to Toni to have a property-settlement agreement signed, but when they arrived, Toni was passed out on the floor drunk. Drug testing during trial revealed alcohol in Toni's system along with the presence of her prescription drugs, which were contraindicated with alcohol use. As such, there was substantial credible evidence to support the chancellor's finding that Robert had proved Toni's habitual drunkenness. This issue is without merit.

II. Rehabilitative Alimony

¶ 28. Finally, Toni argues that in the event that the divorce was properly granted, then the chancery court improperly denied Toni's request for rehabilitative alimony. Toni alleges that even though the marriage was short, she is entitled to rehabilitative alimony payments because Robert paid all the bills and expenses in the marriage and that she needs assistance to become self supporting after the marriage.

¶ 29. We first note that alimony is considered only if after equitable division, one party is left with a deficit. Carney v. Carney , 201 So.3d 432, 440 (¶ 28) (Miss. 2016). "The decision of whether to award alimony, and if so, what amount, is left to the chancellor's discretion." Hearn v. Hearn , 191 So.3d 129, 132 (¶ 10) (Miss. Ct. App. 2016). When determining whether to award alimony, the chancellor is to consider the Armstrong factors:

(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.

Larson v. Larson , 192 So.3d 1137, 1142 (¶ 12) (Miss. Ct. App. 2016) (citing Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993) ).

¶ 30. In regard to the type of alimony Toni argues she is entitled to, we note that rehabilitative alimony is "an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim." Serio v. Serio , 203 So.3d 24, 30 (¶ 17) (Miss. Ct. App. 2016) (quoting Lauro v. Lauro , 847 So.2d 843, 849 (¶ 15) (Miss. 2003) ). It is "awarded to parties who have put their career on hold while taking care of the marital home." Id. "Rehabilitative alimony allows the party to get back into the working world in order to become self-sufficient." Id.

¶ 31. The chancellor stated that there was no basis for alimony. Toni alleges that the chancellor placed too much emphasis on the length of the marriage and did not properly consider the other factors. The record indicates otherwise. As the chancellor noted, Toni was not working at all when she came into the marriage. Additionally, she brought approximately $30,000 of debt into the marriage which Robert paid off in full. It is true, as the chancellor noted, that the marriage was very short-barely one year. The parties had no children. Per the chancellor's findings, Toni was "actually better off by virtue of the marriage in terms of her education, having her student loan paid off and other things to help her further her career, rather than lose it." Career wise, Toni was relatively young-being in her late thirties, while Robert was approaching retirement-being in his late fifties. In December 2013, Toni became employed, making around $38,000, and this employment continued at the time of trial. Robert paid all of the bills and expenses during the short-term marriage and assumed responsibility for all marital debt. Toni received payment for her equitable share of marital assets in the amount of $13,442.00. As we now affirm, the chancellor found Toni at fault in the marriage on grounds of habitual cruel and inhuman treatment and habitual drunkenness. We do not find that the chancellor abused his discretion in denying Toni an award of rehabilitative alimony. This issue is without merit.

CONCLUSION

¶ 32. We affirm the decision of the chancery court to grant Robert a divorce from Toni on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. We also affirm the chancery court's decision to deny Toni's request for rehabilitative alimony.

¶ 33. AFFIRMED.

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


source: Caselaw Access Project

author: SELLERS, Justice. SHAW, Justice (dissenting).

license: Public Domain

text:
    MITCHELL'S CONTRACTING SERVICE, LLC v. Robert Guy GLEASON, Sr., as administrator of the Estate of Lorena Gleason, deceased
    1160376
    Supreme Court of Alabama.
    December 8, 2017 Rehearing Denied March 23, 2018
    Edward G. Bowron, Forrest S. Latta, and Taylor Barr Johnson of Burr & Forman LLP, Mobile, for appellant.
    Thomas P. Willingham of Pope McGlamry, P.C., Birmingham; Wyman O. Gilmore, Jr., and R. Edwin Lamberth of Gilmore Law Firm, Grove Hill; Frederick P. Gilmore of Gilmore Law Offices, Selma; and William M. Pompey of Pompey & Pompey, Camden, for appellee.
   SELLERS, Justice.

Mitchell's Contracting Service, LLC ("Mitchell"), appeals from the Wilcox Circuit Court's denial of Mitchell's renewed motion for a judgment as a matter of law or for a new trial in a wrongful-death action brought by Robert Guy Gleason, Sr., as the administrator of the estate of Lorena Gleason, deceased. We reverse the trial court's judgment and remand the cause for a new trial.

Introduction

According to Gleason's complaint as amended, James Pettway and Derrick Turner were both driving dump trucks in their capacities as employees of Mitchell when one of the trucks caused Lorena's vehicle to leave the road, where it collided with a tree, resulting in her death. Gleason asserted claims against Mitchell based on vicarious liability for Pettway's or Turner's negligent and wanton acts and omissions. A jury returned a verdict in favor of Gleason for $2.5 million. The trial court entered a judgment on that verdict and denied Mitchell's postjudgment motion. This appeal followed.

Timeliness of Appeal

As an initial matter, we must consider Gleason's argument that Mitchell's appeal was not timely filed. After the trial court entered a judgment on the jury's verdict, Mitchell, on October 19, 2016, filed a renewed "Motion for Judgment as a Matter of Law, and Motion to Alter, Amend or Vacate the Judgment, or in the Alternative, Motion for New Trial." In its motion, Mitchell argued that it was entitled to a judgment as a matter of law because, Mitchell asserted, Gleason had not presented sufficient evidence in support of his claim. Alternatively, Mitchell argued that it was entitled to a new trial based on the trial court's allegedly improper evidentiary rulings and other alleged errors.

On October 24, 2016, the trial court entered an order stating:

"MOTION FOR JUDGMENT AS A MATTER OF LAW, AND MOTION TO ALTER, AMEND OR VACATE THE JUDGMENT, OR IN THE [sic] filed by MITCHELL'S CONTRACTING SERVICE, LLC is hereby DENIED."

(Capitalization in original.) Approximately one week later, the trial court entered a second order, stating: "The Court's 10-24-16 order denying defendant's motion to alter or amend is hereby vacated and set aside as it was done in error." The second order also set a hearing date, stating: "A Hearing on the Motion is set on 12-16-16." Thereafter, the parties stipulated that no hearing would be necessary. Accordingly, the trial court canceled the hearing. The trial court never entered another order ruling on Mitchell's postjudgment motion, and the parties considered it to have been denied by operation of law 90 days after it was filed, i.e., on January 17, 2017. See Rule 59.1, Ala. R. Civ. P.

In response to a show-cause order issued by this Court on the question of the timeliness of the appeal, filed on January 30, 2017, Gleason argues that the trial court's October 24, 2016, order constituted a final judgment adjudicating Mitchell's postjudgment motion in its entirety. In support of his contention, Gleason argues that the trial court did not have jurisdiction to set aside its order a week after it entered it; that Mitchell's deadline to appeal began to run on October 24, 2016; and, thus, that its appeal, filed on January 30, 2017, was untimely. See, e.g., Southeast Envtl. Infrastructure, LLC v. Rivers, 12 So.3d 32 (Ala. 2008) (indicating that a trial court does not have jurisdiction to "reconsider"

a postjudgment motion once the motion is denied); and Attalla Health Care, Inc. v. Kimble, 14 So.3d 883 (Ala. Civ. App. 2008) (indicating that a trial court does not have jurisdiction to, sua sponte, set aside an order denying a postjudgment motion). Mitchell, on the other hand, argues that the October 24, 2016, order did not completely resolve the postjudgment motion because, it says, the order did not rule on Mitchell's request for a new trial.

The legal effect of a judgment is to be declared in light of the literal meaning of the language of the judgment. Southeast Constr., LLC v. WAR Constr., Inc., 159 So.3d 1227, 1238 (Ala. 2014). By its literal language, the October 24, 2016, order does not rule on Mitchell's motion for a new trial. It simply includes the superfluous words "or in the" following the two types of motions specifically mentioned. See also Rule 58(b), Ala. R. Civ. P. ("A written order or a judgment will be sufficient if it is signed or initialed by the judge, ... and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication." (emphasis added)); and Carroll v. Buttram, 758 So.2d 1097, 1102 (Ala. 1999) ("A judgment must be clear and unambiguous in order to stand."). The language "or in the" was not sufficient to indicate an intent to deny Mitchell's motion for a new trial. Accordingly, the trial court's order of October 24, 2016, did not deny Mitchell's postjudgment motion in its entirety and Mitchell's appeal was timely filed.

Facts

On the day of the accident, Mitchell, pursuant to a contract with the owner of a paper mill in Wilcox County, was engaged in transporting wood ash from the paper mill to a dump site southeast of the paper mill. Wilmar Contracting Company ("Wilmar"), who Mitchell's corporate representative described as Mitchell's subcontractor, was also involved in transporting ash to the dump site. Some of the dump-truck drivers transporting ash were employed by Mitchell and some were employed by Wilmar.

After loading their dump trucks, the dump-truck drivers would leave the paper mill and travel south along a state highway. They would then turn onto Wilcox County Road 12 and travel west toward the dump site. The accident occurred on County Road 12, which was described during the trial as a narrow two-lane road.

Wilmar dump-truck drivers Raymond Lovelace and Steve Maness each testified that, after delivering loads of ash to the dump site on the morning of the accident, they were traveling east on County Road 12 toward the state highway, en route to the paper mill. Lovelace testified that a loaded white dump truck passed him traveling in the opposite direction on its way to the dump site; that the white dump truck was not entirely within its lane; and that Lovelace had to move his dump truck over to allow the white dump truck to pass safely. Maness testified that he too encountered a white dump truck traveling west along County Road 12 toward the dump site. Lovelace confirmed that the white dump truck was one of the trucks being operated by Mitchell. Mitchell's principal member, who testified as its representative, stated that Derrick Turner, who was an employee of Mitchell, was driving a white dump truck on the day of the accident.

Both Lovelace and Maness testified that there was not a car resting against the tree off County Road 12 where Lorena's car was found when they drove east along County Road 12. They did, however, testify that another driver, Daniel Hunter, who was also traveling east along County Road 12 at a distance behind Lovelace and Maness, telephoned each of them and indicated that he had seen that a car appeared to have left the road and was resting against a tree.

Lovelace testified that the white dump truck he encountered was the only dump truck he met on County Road 12 before Hunter informed him that Hunter had seen what turned out to be Lorena's car resting against a tree. Maness testified that he encountered two dump trucks as he was traveling east on County Road 12-the white truck and a black truck, which was also a Mitchell truck. Mitchell's representative testified that Mitchell employee James Pettway was driving a black dump truck on the day of the accident.

Hunter testified that, after he had delivered a load of ash to the dump site, he was traveling east along County Road 12 when a white dump truck passed him traveling in the opposite direction. He stated that he had personal knowledge of the truck and that he had no doubt that it was a truck being operated by a driver employed by Mitchell. Hunter testified that the truck was traveling at an excessive rate of speed, that the truck was traveling in the middle of the two-lane road, and that Hunter had to move his truck off the road to allow the truck to pass. According to Hunter, after the white dump truck passed him, he discovered Lorena's car against a tree and telephoned 911 emergency service. He also testified that he believed the accident had occurred recently because "smoke" was still coming out from under the hood of Lorena's car and because Lovelace, who was traveling in front of Hunter, had not seen the car.

Andrew Webb, Gleason's accident reconstructionist, testified that Lorena was traveling east on County Road 12 when she left the roadway onto the south-side shoulder, that she attempted to maneuver her vehicle back onto the road, that she over-corrected to the north side, that she lost control of her vehicle, and that her vehicle crossed over the road onto the north-side shoulder and struck a tree. Webb opined that Lorena had engaged in an avoidance maneuver in driving off the road onto the south-side shoulder and that there was no evidence of distracted driving on Lorena's part. He also opined that Lorena's vehicle struck the tree while traveling approximately 18 miles per hour. Photographs admitted into evidence show that the tree is relatively close to the north-side shoulder of the road. Mitchell's accident reconstructionist agreed that Lorena had originally left the road onto the south-side shoulder and that she lost control of the vehicle when she over-corrected in an attempt to move the car back onto the road. He testified, however, that the evidence was consistent with distracted driving.

Agee Smith testified that he witnessed a white dump truck force Lorena's vehicle off County Road 12:

"Q [By Gleason's attorney]. Now, Mr. Smith, on [the day of the accident], you were in Coy[, Alabama,] on that date?
"A. Oh, yes, sir.
"Q. Are you-where were you in Coy?
"A. I was traveling on County Road 12, but it be coming from my farm. It would be kind of east like northeast.
"Q. And what happened when you-you said you made it to the stop sign?
"A. As I approached on towards the stop sign, which would be down below the fire department, traveling on County Road 12. And we went on-I was turning north a little bit and still traveling on County Road 12, and I was coming around this curve-coming around the curve. I saw the little car kind of flank a little bit. And I said, well, what's going on? And as I was going on up, I could see this body of this big truck coming. And the big truck on the little small vehicle, it had it going on the side of the highway, it was all the way over cross the line, it was across the dividing line in the highway. It was on-
"Q. Will you tell the jury what kind of big truck you saw?
"A. It was a big dump truck. It was a big dump truck. And, you know, it was hauling some kind of soil, I believe.
"Q. And will you tell the jury, you said it was straddling the road. You mean, it was not in its lane.
"A. It was not in its lane. As I go to say, there was a northbound lane, so the truck was all in the northbound lane when it should have been-you know, it was southbound, but it was in the northbound lane when it should have been in the southbound lane.
"Q. And was there a vehicle in front of you? You was saying some little vehicle. Do you know what color it was? Can you describe it?
"A. It was a little red-little red vehicle, and I saw a struggle with the vehicle. I saw somebody-I felt that they was fighting, I guess, for their life or fighting to get the vehicle under control. But seconds after then, when I looked over, the vehicle jumped across the-after the big truck zoomed on, the vehicle across-I guess, it was trying to, you know, take control of the vehicle, whoever was driving the vehicle, but it didn't happen. It was a big oak tree when it went across the-it went across after the-after the big dump truck had passed by, that's where they-it went across. The big dump truck gone on. And, myself, I didn't go up to the vehicle. I was thinking things. I saw things coming from the vehicle, but it was the steam coming from the radiator.
"....
"Q. Now let's go back.
"A. Okay-
"Q. You say you saw the big truck on the wrong side of the road.
"A. Yes.
"Q. And you saw the red car leave the road.
"A. That's right.
"Q. And you saw it come back on the road and land[ ] on this big oak tree; is that right?
"A. Yes. Landed on the big oak tree which would be to my left.
"Q. But you saw this big dump truck on the wrong, side of the road.
"A. Yes.
"Q. Was it green, red, black, or-what color now?
"A. White.
"Q. White. So you saw a white dump trunk; is that right?
"A. Yeah."

Mitchell truck drivers Derrick Turner and James Pettway each testified that they were driving trucks on the route in question on the day of the accident and that, as they were traveling west on County Road 12 toward the dump site, they saw Lorena's car resting against a tree. They both denied that they had caused her car to leave the roadway.

Discussion

Judgment as a Matter of Law

Mitchell asserts that Gleason did not establish that Lorena's death was proximately caused by one of its drivers because, Mitchell argues, there is no evidence indicating that a truck driven by a Mitchell employee forced Lorena's vehicle off the road.

" 'The standard of review applicable to a ruling on a motion for [a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying [that motion]. Thus, in reviewing the trial court's ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
" '....
" '... In ruling on a motion for a [judgment as a matter of law], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been "substantial evidence" before the jury to create a question of fact. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' "
" American Nat'l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala. 1993). (Citations omitted.)."

Acceptance Ins. Co. v. Brown, 832 So.2d 1, 12 (Ala. 2001).

It is not our role to reweigh the evidence. General Motors Corp. v. Jernigan, 883 So.2d 646, 669 (Ala. 2003). Thus, the question for this Court to answer is not what conclusion its members would have reached had they been on the jury that heard the case. Rather, the issue is whether from the evidence presented " ' "fair-minded persons in the exercise of impartial judgment [could] reasonably infer the existence of the fact sought to be proved." ' " Acceptance Ins. Co., 832 So.2d at 12 (quoting American Nat'l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1367 (Ala. 1993) ).

Mitchell asserts that Gleason's theory of the case was based entirely on speculation because no one, including Agee Smith, testified that he or she witnessed a Mitchell dump truck force Lorena's vehicle off the road. The testimony, however, was sufficient to allow a fair-minded person to conclude that Lorena was forced off the road by a white dump truck traveling in the opposite direction and that the only dump truck in the area during the relevant time frame fitting that description was one driven by a driver employed by Mitchell. Accordingly, we cannot conclude that the trial court erred in denying Mitchell's motion for a judgment as a matter of law based on lack of proof that a Mitchell-operated dump truck caused the accident.

Mitchell also argues that a judgment as a matter of law was due to be entered based on Lorena's alleged contributory negligence in failing to maintain control of the vehicle she was driving.

"In order to prove contributory negligence, the defendant must show that the party charged 1) had knowledge of the condition; 2) had an appreciation of the danger under the surrounding circumstances; and 3) failed to exercise reasonable care, by placing himself in the way of danger. Hatton v. Chem-Haulers, Inc., 393 So.2d 950 (Ala. 1980) ; Wallace v. Doege, 484 So.2d 404 (Ala. 1986)."

Rowden v. Tomlinson, 538 So.2d 15, 18 (Ala. 1988).

" '[I]t must be demonstrated that the plaintiff's appreciation of the danger was a conscious appreciation at the moment the incident occurred. [Citations omitted.] Mere "heedlessness" is insufficient to warrant a finding of contributory negligence as a matter of law. [Citations omitted.]' Central Alabama Elec. Co-op. v. Tapley, 546 So.2d 371, 381 (Ala. 1989)."

John R. Cowley & Bros. v. Brown, 569 So.2d 375, 382 (Ala. 1990).

"Although ordinarily it is a question of fact for the jury, the question whether a plaintiff is guilty of contributory negligence becomes a matter of law, and therefore one for the court to decide, when the facts are such that all reasonable persons must draw the same conclusion therefrom. Gross v. Republic Steel Corp., 400 So.2d 383 (Ala. 1981)."

Rowden, 538 So.2d at 18. Based on the applicable standards and our review of the evidence, this Court cannot determine that all reasonable persons must conclude that Lorena was contributorily negligent in not maintaining control of her vehicle. The trial court did not err in denying Mitchell's motion for a judgment as a matter of law.

New Trial

Mitchell asserts that Gleason, in responding to Mitchell's interrogatories, failed to identify Agee Smith as an eyewitness to the accident and that, as a consequence, the trial court should have continued the trial to give Mitchell's counsel an opportunity to depose Smith and to otherwise prepare for Smith's testimony. Mitchell's interrogatories to Gleason asked him to identify "any witnesses to the accident known to [Gleason] or to [his] attorney." Mitchell also asked Gleason to identify each person with knowledge of the accident and to state the nature of that knowledge. Gleason did not identify Smith in his initial responses to Mitchell's interrogatories. One year later, in June 2015, Gleason supplemented his responses after the trial court entered an order compelling him to do so. In his supplemental responses, Gleason stated that he was unaware of any eyewitnesses to the accident and that he would further supplement his responses as more information was obtained. In August 2016, approximately six weeks before the trial began, Gleason submitted a list of witnesses who might testify at the trial. Gleason's witness list identified 21 specific individuals by name and address, including Smith. The witness list, however, did not indicate that Smith had actually witnessed the accident.

In support of Mitchell's postjudgment motion, Mitchell's lead counsel submitted an affidavit averring that, "[a]t the beginning of the trial, [he] did not know that [Smith] had any knowledge about the incident."

Counsel also averred that, when Smith entered the courtroom on the day of the trial, Mitchell's counsel "briefly questioned him about the purpose of his testimony and was informed that he sought to testify about his eyewitness accounts of the incident."

After Mitchell objected to Smith's testifying and requested a continuance, Gleason's counsel informed the trial court that he had learned of the substance of Smith's testimony approximately two months before the trial and had subsequently designated Smith on Gleason's witness list. Gleason's counsel also asserted that Mitchell's liability insurer had spoken with Smith in connection with its investigation of the claim, although there is no evidence indicating that Smith had informed Mitchell's insurer that he had witnessed the accident.

Mitchell points to Barganier v. Barganier, 669 So.2d 933 (Ala. Civ. App. 1995), for the following proposition:

" ' "Generally speaking, the purpose of modern discovery is to assist the administration of justice, to aid a party in preparing and presenting his case or his defense, to advance the function of a trial in ascertaining truth, and to accelerate the disposition of suits. Beyond this, the rules for discovery are designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments be rested upon the real merits of cases and not upon the skill and maneuvering of counsel." 23 Am. Jur. 2d, Depositions and Discovery, § 155 (1965). Stated otherwise, the rules seek to "make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter and Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) ; Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).' "

669 So.2d at 936 (quoting Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 103 (Ala. 1981) ). The Court in Dorsey Trailers, which the Barganier court quoted, provided a comprehensive discussion of the Rules of Civil Procedure relating to discovery and indicated that those rules should be liberally applied so as to provide for "full disclosure of relevant information." 397 So.2d at 103. The Court stated that "a party has a duty to provide all information available to him." Id. at 104.

Rule 26(e), Ala. R. Civ. P., provides:

"(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
"(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the witness's testimony.
"(2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which the party (A) knows that the response was incorrect when made, or (B) knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
"(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses."

It is not seriously disputed that Gleason failed in his duty to supplement his responses to Mitchell's interrogatories to specifically disclose his knowledge that Smith, who would be testifying as a witness, was an eyewitness to the accident.

Although trial courts are afforded considerable discretion in determining the sanctions for a party's failure to provide complete and truthful discovery responses, that discretion is not unlimited. See Edwards v. Valentine, 926 So.2d 315, 330 (Ala. 2005) (holding that allowing testimony of a previously undisclosed witness is a matter of discretion, which, if palpably abused, will result in a reversal of the judgment on appeal); and Eady v. Friese Materials Corp., 567 So.2d 857, 858 (Ala. 1990) ("Sanctions for failure to comply with a pretrial discovery order are within the discretion of the trial judge and will not be disturbed unless there is an abuse of discretion.").

We can find no cases where this Court has considered the consequences of a party's failure, in response to interrogatories in a civil action, to disclose the existence and identity of an eyewitness to an accident that resulted in death or serious injury preventing the accident victim from testifying. In this case, Gleason was reminded, if not directed, by the trial court to supplement his interrogatories as appropriate. When Gleason discovered two months before trial that Smith was an eyewitness to the accident (in fact the only eyewitness), he had an immediate and affirmative duty to disclose to Mitchell that Smith had witnessed the accident. In Evtush v. Hudson Bus Transportation Co., 7 N.J. 167, 81 A.2d 6 (1951), the representatives of two decedents sued the corporate operator of two buses and the individual drivers of those buses after the decedents were killed when the motorcycle they were riding collided with one of the buses. A response to an interrogatory asking the defendants to provide the names and addresses of "witnesses to the accident" identified only the individual bus drivers. During the trial, however, the defendants called two additional eyewitnesses, whom the trial court allowed to testify over the plaintiffs' objections. The jury returned a verdict in favor of the defendants, and the plaintiffs appealed. Both the New Jersey intermediate appellate court and the New Jersey Supreme Court concluded that the trial court had erred in allowing the witnesses to testify. The New Jersey Supreme Court stated:

"The rules for discovery here involved were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel. It necessarily follows, if such rules are to be effective, that the courts impose appropriate sanctions for violations thereof. We therefore conclude that the [intermediate appellate court] was right in reversing the judgment of the trial court and ordering a new trial, thereby eliminating the element of surprise which must have accrued to the benefit of the defendants at the previous trial because of their infraction of such rules."

7 N.J. at 173, 81 A.2d at 9. See also Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006) (reversing trial court's refusal to grant defendant restaurant relief from judgment against restaurant in dram-shop action based in large part on plaintiff's failure to supplement interrogatory response so as to inform restaurant that key eyewitness would, in direct contrast to her deposition testimony, testify during the trial that she had served restaurant customer alcohol while he was visibly intoxicated).

In the present case, Smith's testimony obviously was crucial, because he was the only person who claimed to have witnessed the accident firsthand. Even though Gleason's counsel learned of Smith's status as the only eyewitness two months before the trial started, he failed to inform Mitchell. Gleason's witness list identified Smith only as a possible trial witness; it did not disclose the substance of Smith's proposed testimony. In addition, Gleason provided his witness list to Mitchell only after Gleason had previously indicated that he was unaware of the existence of any eyewitnesses to the accident. Gleason's lack of candor in failing to supplement his responses to Mitchell's interrogatories prevented Mitchell from fully preparing for trial. Thus, it is clear to this Court that Mitchell was prejudiced initially by Gleason's failure to disclose that Smith was an eyewitness to the accident and critically by the trial court's refusal to continue the trial to allow Mitchell the opportunity to depose Smith.

Based on all the circumstances, this Court must conclude that the trial court exceeded its discretion in refusing Mitchell's request for a continuance. Accordingly, the trial court's judgment is reversed and the cause is remanded for a new trial. Because of our holding on this issue, this Court pretermits discussion of Mitchell's other arguments in support of its request for a new trial.

REVERSED AND REMANDED.

Stuart, C.J., and Wise, J., concur.

Sellers, J., concurs specially.

Murdock, J., concurs in part and concurs in the result.

Parker, J., concurs in the result.

Bolin, Shaw, Main, and Bryan, JJ., dissent.

SELLERS, Justice (concurring specially).

I concur in the main opinion, which I authored. I write specially to respectfully respond to Justice Shaw's dissenting opinion. The legal profession requires its members to act professionally. The hallmark of a professional is not necessarily remuneration or success; rather, it is the quality of the services provided. Part and parcel of that quality is professional courtesy to the court, to opposing counsel, and to the general public.

According to the Committee Comments on 1973 Adoption of Rule 26, Ala. R. Civ. P., "[t]he purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the presentation of his case." Notwithstanding the myriad studies on accuracy of eyewitness accounts, in the hierarchy of witnesses an eyewitness is at the top. The testimony of someone observing an accident or the commission of a crime is critical to the presentation of a case, especially one such as the present case. Paramount in preparing for trial is identifying eyewitnesses and the subject matter of their testimony.

In this case, defendant's counsel specifically asked the plaintiff to identify all eyewitnesses, and he was told the plaintiff knew of none. Asked to supplement his responses and compelled to do so by the trial court, the plaintiff again responded that he knew of no eyewitnesses. Two months before the trial, the plaintiff discovered that, in fact, there was an eyewitness to the accident. He did not, however, supplement his discovery responses. In keeping with the high standards of professional conduct, plaintiff's counsel had a duty to inform defense counsel that there was an eyewitness to the accident; it was not enough to include the witness's name and address on a general witness list.

Especially in the present case, testimony from an eyewitness is vastly different from that of an expert witness. An expert witness gives an opinion that may be refuted, but an eyewitness gives testimony of actual observation of the incident giving rise to the litigation. In this case, because there was only one eyewitness, defense counsel was not afforded a sufficient opportunity to question the witness's line of sight or otherwise to prepare to mitigate the impact of the eyewitness's critical testimony. The prejudice resulting from plaintiff's failure to disclose is obvious.

Inasmuch as plaintiff's counsel could have prevented that prejudice by identifying the witness as an eyewitness, the trial court, by simply allowing a short continuance to give defense counsel an opportunity to depose the witness, could have eliminated the prejudice. In my view, the failure to continue a trial and allow for the deposition of a known, but undisclosed, eyewitness borders on per se abuse of discretion. Rather than requiring defense counsel to further demonstrate prejudice, we should require plaintiff's counsel to explain why he failed to give notice of his discovery of an eyewitness.

MURDOCK, Justice (concurring in part and concurring in the result).

I fully agree with the analysis in the main opinion on the primary substantive issue presented. Specifically, I believe the failure of the plaintiff to disclose the nature of Agee Smith's testimony clearly violated discovery requirements and was prejudicial because Smith was the only eyewitness to testify at trial. Thus, I believe we are compelled under the particular facts of this case to conclude, as does the main opinion, that the trial judge exceeded his discretion in not granting a new trial.

I concur only in the result reached by the main opinion as to the procedural issue of the timeliness of this appeal. That is, I believe this appeal is timely, but not for the reason stated in the main opinion. In particular, I believe the main opinion places too much reliance on the apparent omission of certain words following the phrase "or in the" in the trial court's order and that it is plain that the trial court intended its October 24 order to dispose of Mitchell's postjudgment motion in its entirety.

That said, the appeal nonetheless was timely because what would otherwise have been the trial court's terminal order, i.e., its order denying Mitchell's postjudgment motion for relief, remained in the breast of the court for 30 days. Drennen Motor Co. v. Patrick, 225 Ala. 36, 38, 141 So. 681, 682 (Ala. 1932) ("Until thirty days have elapsed all judgments by default or nil dicit are within the control of the court, as often said, are within the breast of the court, and, over such judgment during such period, the court has a discretionary power, irrevisable by mandamus, or otherwise, except for abuse of its discretion."). See also, e.g., Loggins v. State, 910 So.2d 146, 148 (Ala. Crim. App. 2005) ("It is well settled that a circuit court generally retains jurisdiction to modify a judgment for ... 30 days after the judgment is entered."). Accordingly, the trial court had jurisdiction to correct itself and, in this particular case, simply to vacate that order a mere week after it was entered. Accordingly, Mitchell's original postjudgment motion was reinstated and was not denied until it was denied by operation of law 90 days after it was filed. The appeal in this case was filed within 42 days of the expiration of that 90-day period. Thus, the appeal before us was timely filed.

SHAW, Justice (dissenting).

I respectfully dissent. It is not clear to me that Mitchell's Contracting Service, LLC ("Mitchell"), the defendant below, demonstrated that the trial court exceeded its discretion in refusing to grant Mitchell's motion for a new trial.

It appears undisputed that Robert Guy Gleason, Sr., the plaintiff below, failed to properly supplement his interrogatory responses and to identify Agee Smith as an eyewitness to the accident. There is no dispute that Gleason had the opportunity to do so, although it appears that Smith was not discovered by Gleason until two months before trial and after the interrogatory responses and certain supplemental responses had been completed.

However, Smith's name was disclosed on Gleason's witness list filed some six weeks before trial. Mitchell subsequently deposed some of the witnesses on that list, but Smith was not deposed and it is not stated whether any actions were taken by Mitchell to discover the substance of Smith's proposed testimony.

After five witnesses had testified at trial, Mitchell moved the trial court to continue the trial or to declare a mistrial. After the motion was denied, Mitchell had the opportunity to cross-examine Smith.

In the motion for a new trial, Mitchell pointed out Gleason's failure to supplement his interrogatory responses and to disclose Smith as a witness to the accident. Mitchell asserted that, had Smith's status as an eyewitness been disclosed, Mitchell would have deposed him. Mitchell claimed that it had been denied the opportunity to depose Smith or to conduct further investigation to rebut his testimony.

Certainly, it is preferable that a party be able to depose an opposing witness before trial, and a deposition better prepares a party to address that witness's subsequent trial testimony. However, Mitchell did not explain what such additional discovery could reveal in this case or what portion of Smith's testimony additional discovery could have rebutted or called into question. Further, Mitchell did have the opportunity to depose Smith before trial, although, admittedly, because of Gleason's failures, Mitchell was not made aware of how important that deposition might be.

" '[W]e have consistently recognized that the admission of testimony from witnesses whose identity may not have been disclosed in accordance with properly conducted pretrial discovery procedure is within the trial court's sound discretion.' Coastal Lumber Co. [v. Johnson,] 669 So.2d [803,] at 811 [ (Ala. 1995) ] (emphasis added). 'Absent palpable abuse of that discretion, the trial court's decision will not be disturbed on appeal.' Id. See also Crane v. Rush, 577 So.2d 851 (Ala. 1991) ; Erwin v. Sanders, 294 Ala. 649, 320 So.2d 662 (1975)."

Edwards v. Valentine, 926 So.2d 315, 330 (Ala. 2005).

In Erwin v. Sanders, 294 Ala. 649, 320 So.2d 662 (1975), this Court held that the trial court did not exceed its discretion in allowing an expert witness to testify despite the fact that the expert had not been disclosed by supplementing interrogatory responses asking for the identity of any experts. In that case, notice of the witness was given on the day of trial. See also generally Crane v. Rush, 577 So.2d 851 (1991). Although I question the decision in Erwin, in the instant case, unlike in Erwin, Smith's existence as a witness, albeit not the substance of his testimony, was disclosed. Given that Smith was identified as a witness six weeks before trial; that, after Smith's designation, Mitchell apparently did not attempt to depose him or otherwise discover the nature of his testimony; and that Mitchell did not demonstrate how it was prejudiced, I do not believe that the trial court exceeded its considerable discretion in denying Mitchell's motion for a new trial.

Bolin and Main, JJ., concur.

      Gleason provides this Court with a "screen shot" allegedly generated by Alabama's electronic-filing system that, Gleason asserts, demonstrates that the trial court denied Mitchell's postjudgment motion in its entirety. The screen shot submitted by Gleason references the postjudgment motion and identifies its "disposition" as "denied." The screen shot, however, does not appear in the appellate record. Moreover, the Court does not agree that the status of the motion identified by the electronic-filing system should control over the language of the order itself.

      It is not clear which entity-Mitchell or Wilmar-Hunter was working for on the day of the accident.

      It appears that the portion of County Road 12 the dump trucks were using travels primarily east and west, although parts of it travel north and south.

      Mitchell contends that Agee Smith was not a credible witness. It is the jury's function, however, to judge the credibility of witnesses. Flint Constr. Co. v. Hall, 904 So.2d 236, 250 (Ala. 2004).

      Although there was some indication in Evtush that the defendants' failure to disclose the existence of two additional eyewitnesses to the accident might have been excused had the defendants not known the witnesses' identities at the time the defendants answered the plaintiffs' interrogatories, we have already determined that Gleason had a duty to supplement his interrogatory responses once he learned of the substance of Smith's testimony.

      The Court notes that Mitchell asserts in its initial brief on appeal that it was entitled to a judgment as a matter of law based on the trial court's error in allowing Smith to testify. Mitchell, however, does not develop that argument or point to any authority supporting it. Moreover, in its reply brief, Mitchell asserts that the admission of Smith's testimony necessitates reversal and a new trial, not a judgment as a matter of law.

      This 30-days-in-the-breast-of-the-court rule would not apply where a statute or our written rules of court specifically override that rule, as arguably would be the case with respect to the 90-day limitation imposed by Rule 59.1, Ala. R. Civ. P.

      There was some indication that Smith had been contacted by Mitchell's insurer's claim-investigation service, but there is no evidence substantiating or disproving this.


author: SELLERS, Justice.

text:
    Gloria AUSTILL and Mary Ella Etheridge v. John KROLIKOWSKI
    1160820
    Supreme Court of Alabama.
    January 12, 2018 Rehearing Denied March 16, 2018
    Thomas L. Carmichael and Lisa M. Ivey, Jasper, for appellants.
    Steve Marshall, atty. gen., and Mary Goldthwaite, asst. atty. gen., for appellee.
   SELLERS, Justice.

Gloria Austill and Mary Ella Etheridge appeal from an order of the Mobile Circuit Court entering a summary judgment in favor of Dr. John Krolikowski, a senior medical examiner with the Alabama Department of Forensic Sciences ("the ADFS"). They challenge on appeal the order insofar as it denied their motion to compel certain discovery. We affirm.

I. Facts and Procedural History

William Marshall Etheridge ("the decedent"), who was 86 years old and under hospice care, died on December 9, 2012. Mary Ella and Gloria are the decedent's widow and daughter, respectively. The Baldwin County District Attorney's Office authorized the ADFS to perform an autopsy on the decedent based on potential civil and/or criminal litigation against the nursing home where the decedent resided before his death. Dr. Krolikowski conducted the autopsy on the decedent, at which time the brain was saved and "fixed" in formalin. Following the autopsy, the decedent's body was transported to Radney Funeral Home in Mobile. While the decedent's body was at the funeral home, Mary Ella and Gloria (hereinafter referred to collectively as "the plaintiffs") requested that the decedent's brain be referred to the University of Alabama Hospital in Birmingham ("UAB") for a neuropathological examination. The plaintiffs then learned that the brain had not been returned to the body; it had been retained by Dr. Krolikowski.

On April 13, 2015, the plaintiffs sued Dr. Krolikowski, individually, as well as other fictitiously named parties, alleging that, following the autopsy, Dr. Krolikowski, without any compelling or legitimate reason, "harvested the decedent's entire brain without the family's permission and preserved it in his office for his own use." The plaintiffs sought compensatory and punitive damages based on claims of negligence and/or wantonness, trespass, conversion, breach of fiduciary duty, breach of implied contract, and the tort of outrage.

On May 22, 2015, Dr. Krolikowski filed a motion to dismiss the complaint on the basis of, among other things, State-agent immunity. The trial court granted the motion to dismiss as to the breach-of-implied-contract claim but denied the motion as to all other claims.

On July 7, 2015, the plaintiffs propounded written interrogatories and requests for production on Dr. Krolikowski. The parties, however, were unable to resolve a dispute as to whether Dr. Krolikowski was required to answer all discovery propounded or only discovery relevant to the issue of State-agent immunity. It was Dr. Krolikowski's position that the resolution of the State-agent-immunity issue was a prerequisite to full discovery. The plaintiffs ultimately withdrew their initial propounded discovery and substituted discovery they claimed related to the issue of State-agent immunity; Dr. Krolikowski responded in part and objected in part to the substituted discovery.

On December 9, 2016, Dr. Krolikowski filed a motion for a summary judgment pursuant to Rule 56(c), Ala. R. Civ. P., on the basis of State-agent immunity, citing Ex parte Wood, 852 So.2d 705, 712 (Ala. 2002) (noting that "the availability of the defense[ ] of ... State-agent immunity should be determined as a threshold issue in order to avoid the costs and expenses of trial where the defense is dispositive"). Dr. Krolikowski supported his motion for a summary judgment with, among other things, the sworn affidavits of Dr. Randy Lee Hanzlick, a board-certified forensic pathologist in Atlanta, Georgia, who had also served as Chief Medical Examiner of Fulton County, Georgia; Dr. Staci Turner, the regional Deputy Chief Medical Examiner for the ADFS in Mobile; Scott Belton, the Death Investigation Quality Manager for the ADFS; and Dr. Steven Frank Dunton, a senior medical examiner for the ADFS.

Dr. Hanzlick, who served as an expert in the case, inspected numerous documents, including (1) the ADFS death-investigation report; (2) the draft and final autopsy report, including the original audio dictation and its transcription; (3) the ADFS laboratory reports; (4) the UAB brain-examination report, chain-of-custody form, and an e-mail communication regarding disposition of the brain; (7) sections of Alabama law relating to coroners; and (8) sections of the ADFS Death Investigation Policy and Procedures Manual for medical examiners. Dr. Hanzlick stated in his affidavit that the decedent's brain was saved to facilitate diagnosis and to address potential legal issues because the autopsy had been requested by the district attorney as a result of questions surrounding the decedent's death. Dr. Hanzlick explained in his affidavit that, in general, there is sometimes a need to retain, after autopsy, an entire organ such as the brain so that a specific study, beyond the routine autopsy, may be conducted. Dr. Hanzlick stated that the decision whether to retain a brain or the organ is a professional discretionary decision and that the medical examiner's discretion must be accommodated inasmuch as the performance of an autopsy is a medical procedure and the medical examiner must have necessary information to develop diagnoses and to formulate expert opinions. He further stated that there is "no requirement in Alabama or most other states that family permission is needed to perform an autopsy or retain needed specimens." In summary, Dr. Hanzlick opined:

"Dr. Krolikowski made a prudent and professionally appropriate decision to retain the brain. He was aware that the case may be complicated and involved potential allegations of possible neglect, abuse, and maltreatment with potential legal ramifications, and that there was concern about a somewhat sudden deterioration in mental status with possible degenerative neurological disease that could be relevant to family members. Retaining the brain made it available for thorough examination after fixation and also made it available for examination by other specialist[s] or experts, if needed. It is my opinion that Dr. Krolikowski's retention of the brain was reasonable and appropriate professional procedure in the case in question, and the lack of family permission to save the brain and lack of notification to the family that the brain had been retained following the autopsy and not returned with the body are not in violation of any law or policy."

Dr. Turner stated in her affidavit that she supervised all medical examiners at the ADFS's Mobile office, including Dr. Krolikowski, and that there was no evidence indicating that Dr. Krolikowski had preserved the decedent's brain "in his office for his own use" as the plaintiffs alleged. Dr. Turner further stated that Dr. Krolikowski was not required to notify a decedent's family member that an organ, including a brain, had been retained following an autopsy, nor was he required to obtain permission from a decedent's family member to retain an organ, including a brain, following an autopsy. Dr. Turner specifically stated that Dr. Krolikowski's retention of the decedent's brain was a professional discretionary decision allowed under the ADFS Death Investigation Policy and Procedures Manual.

Belton stated in his affidavit that the ADFS Death Investigation Policy and Procedures Manual provided medical examiners the discretionary authority to retain an organ, including a brain, when conducting an autopsy and that a medical examiner was not required by ADFS policy and procedure to obtain permission from the decedent's family to retain an organ, including a brain. Belton stated that, in this case, the district attorney authorized the autopsy because of the potential for a criminal investigation into the decedent's death, as well as the potential for civil litigation because there were indications that the decedent's family intended to sue the nursing home where the decedent resided immediately before his death.

Finally, Dr. Dunton provided an affidavit stating that the circumstances of the case, including suspicion that the decedent suffered from Parkinson's disease and the possibility of civil litigation, could have easily prompted a medical examiner such as Dr. Krolikowski to retain the brain. He further stated that permission from the next of kin to retain an organ such as the brain following an autopsy is neither necessary nor required in the State of Alabama. Dr. Dunton concluded that, from a medical standpoint, the decedent received a thoughtful, professional, and thorough examination by Dr. Krolikowski and that, had he failed to harvest and preserve the decedent's brain for later examination, Dr. Krolikowski may have been subject to accusations concerning inadequate job performance.

The plaintiffs did not oppose the summary-judgment motion on the merits. Rather, acting pro se, they filed a motion to compel, asserting that the discovery sought was crucial to "the issues" in the case. The trial court set a hearing on the motion for a summary judgment but subsequently postponed the hearing pending resolution of the immunity issue. The plaintiffs responded by filing a motion, pursuant to Rule 56(f), Ala. R. Civ. P., to continue any ruling on the summary-judgment motion until Dr. Krolikowski fully responded to the outstanding discovery. The plaintiffs submitted with their Rule 56(f) motion the sworn affidavit of Gloria, who stated, in pertinent part:

"I cannot adequately respond to [Dr. Krolikowski's] motion for Summary Judgment until he properly responds to my [interrogatories]. For instance, interrogatory number 9 specifically asks [Dr. Krolikowski] to '[P]lease describe in detail any and all tests, procedures, examination, analysis, etc., performed by the Defendant on the brain of the decedent.' This interrogatory was asked to determine whether [Dr. Krolikowski] followed the policies and procedures set forth in [the ADFS Death Investigation Policy and Procedures Manual]. It is my belief upon a review of the records that portions of the brain of my deceased father were improperly taken by [Dr. Krolikowski] and still remain in the possession of [Dr. Krolikowski], which would directly violate the policies and procedures he was/is required to follow...."

(Emphasis added.)

On April 21, 2017, following a hearing, the trial court entered an order denying the plaintiffs' motion to compel, concluding that the discovery sought was not relevant to the immunity issue then before the court. The trial court noted in its order that the parties had had more than ample opportunity to engage in discovery relating to the issue of immunity. Accordingly, the trial court entered a summary judgment in favor of Dr. Krolikowski on the basis of State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala. 2000). This appeal followed.

II. Standard of Review and Applicable Law

A. Summary Judgment

" 'A summary judgment is proper and must be affirmed on appeal if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.' Hughes v. Hertz Corp., 670 So.2d 882, 885 (Ala. 1995) (citing Rule 56, Ala. R. Civ. P.). '[T]he summary-judgment stage is generally the appropriate point in litigation for determining [State-agent] immunity questions,' Cornner v. Mitchell, 886 So.2d 816, 816 (Ala. Civ. App. 2003) (Pittman, J., dissenting), 'following appropriate discovery.' Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837 So.2d 808, 813-14 (Ala. 2002).
" ' Rule 56(f) protects a party opposing a motion for summary judgment if the party states reasons why he cannot present essential facts.' Starks v. Commercial Union Ins. Co., 501 So.2d 1214, 1216 (Ala. 1987). Proper application of Rule 56(f) requires the nonmoving party to demonstrate by affidavit, Herring v. Parkman, 631 So.2d 996, 1002 (Ala. 1994), 'that matters it seeks by further discovery are "crucial" to its case.' Smith v. Yanmar Diesel Engine Co., 855 So.2d 1039, 1042 (Ala. 2003) (citing Stallworth v. AmSouth Bank, 709 So.2d 458, 468 (Ala. 1997) ); see also McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 161 (Ala. 1996) (nonmovant at summary-judgment stage has the 'burden of proving how information from [documents sought in discovery] is crucial to her case')...."

Vick v. Sawyer, 936 So.2d 517, 521-22 (Ala. 2006).

B. State-agent Immunity

"State-agent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities." Ex parte Hayles, 852 So.2d 117, 122 (Ala. 2002). In Ex parte Cranman, this Court restated the law governing State-agent immunity:

"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"....
"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner
"....
"Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
"....
"(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."

792 So.2d at 405.

Additionally,

"[t]his Court has established a 'burden-shifting' process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052 ; Ex parte Wood, 852 So.2d 705, 709 (Ala. 2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052 ; Wood, 852 So.2d at 709 ; Ex parte Davis, 721 So.2d 685, 689 (Ala. 1998). 'A State agent acts beyond authority and is therefore not immune when he or she "fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist." ' Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala. 2000) )."

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006).

III. Discussion

The plaintiffs argue that the trial court exceeded its discretion in granting Dr. Krolikowski's motion for a summary judgment and also in denying their motion to compel discovery, which, they say, is crucial to the issue whether Dr. Krolikowski is entitled to State-agent immunity. Specifically, the plaintiffs argue that their Rule 56(f) motion and Gloria's affidavit in support of the motion were sufficient to warrant a continuance of the summary-judgment hearing in order for Dr. Krolikowski to respond to the outstanding discovery relating to the State-agent-immunity issue.

Initially we note that the plaintiffs, from the inception of this lawsuit up until the filing of their Rule 56(f) motion and supporting affidavit, alleged that Dr. Krolikowski, following the autopsy, retained the decedent's brain without permission and without any compelling reason. The plaintiffs conceded in their filings that the autopsy itself was not at issue, i.e., that the allegations in their complaint were based on what happened after the autopsy-the retention of the decedent's brain without permission and without a compelling reason. The affidavits submitted by Dr. Krolikowski in support of his summary-judgment motion were based on those specific allegations. The plaintiffs, however, by way of their Rule 56(f) motion and supporting affidavit, changed course, stating that, although the affidavits submitted in support of the motion for a summary judgment suggest that Dr. Krolikowski's harvesting and retention of the decedent's brain is consistent with typical evidence-collection practices used by the ADFS at autopsy, the specifics of the procedures Dr. Krolikowski allegedly followed were not provided. The plaintiffs state that "[t]he interrogatories from the plaintiffs to [Dr. Krolikowski] which [Dr. Krolikowski] refuses to answer are routine standard questions and pertain to routine autopsy procedures." (Emphasis added.) Stated differently, the plaintiffs now claim that the specifics of the procedures Dr. Krolikowski used in performing the autopsy are "crucial" to the issue whether he was acting in accordance with the ADFS policies and procedures, whether he acted beyond his authority, and whether he failed to discharge his duties in the manner required to be entitled to State-agent immunity. We disagree.

The discovery the plaintiffs claim is crucial to oppose Dr. Krolikowski's summary-judgment motion-i.e., the specifics of all tests, procedures, and examinations performed on the decedent's brain in conjunction with the autopsy-is not dispositive of whether Dr. Krolikowski was acting within the scope of his discretionary authority as a medical examiner when he retained the decedent's brain allegedly without the family's permission and without a compelling reason. Rather, that discovery is related to the performance of the autopsy, which, as the trial court concluded, is irrelevant to the issue of immunity.

It is clear from Dr. Krolikowski's notes and the autopsy report that he performed nothing more than a routine autopsy on the decedent's brain:

"The brain is fixed. The brain weighs 1410 grams. The leptomeninges are thin, delicate and transparent and overlie a normal amount of clear cerebrospinal fluid. The epidural and subdural space is normal, and the sagittal sinus is unobstructed. The cerebral hemispheres are symmetric with a normally developed gyral pattern without areas of softening or discoloration. The vessels at the base of the brain are of normal caliber and distribution and unobstructed. The cranial nerves are symmetric. All central structures are midline, and there is no herniation noted."

The affidavit testimony submitted by Dr. Krolikowski in support of his summary-judgment motion indicates that the compelling reason for retaining the brain after the autopsy was to facilitate diagnosis and to address potential legal issues that might arise as the plaintiffs had suggested to the district attorney. The ADFS case-correspondence report confirms that the decedent's death "[was] not normally a case that is a medical examiner's case but due to the daughter's strong request for an autopsy, [the district attorney] requested the autopsy" and that "the daughter remained adamant about suing the nursing home for her father's death." Moreover, the ADFS Death Investigation Policy and Procedures Manual specifically states that the determination by a medical examiner to retain an organ such as a brain is discretionary:

"As each organ is individually examined and dissected, the [medical examiner] should take small samples of each organ for formalin fixed tissue stock to include, at a minimum, brain, heart, lungs, liver, kidneys, spleen, pancreas, thyroid, and adrenals. Depending upon the nature of the case the [medical examiner] using professional judgment may save additional tissue samples or whole organ. The retained samples/organ are placed in a plastic container containing formalin that has been labeled with a [laboratory information-management system ('LIMS') ] generated barcode label that identifies the case number, date, a name of the decedent, and name of the [medical examiner]. The stock cup will be stored in secure evidence storage areas. The storage of these items should be reflected in LIMS."

(Emphasis added.) The affidavit testimony further reflects that there is no law, nor is there any ADFS policy, requiring a medical examiner to seek permission from a decedent's family to retain an organ such as a brain. As stated by Dr. Hanzlick, whether to inform the decedent's family that an organ such as a brain is being retained is a discretionary matter-the family's permission to retain such an organ is not required.

Based on the undisputed materials submitted by Dr. Krolikowski in support of his motion for a summary judgment, we conclude that the trial court did not exceed its discretion in denying the plaintiffs' motion to compel discovery of items it concluded were irrelevant to the issue of State-agent immunity. See Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003) ("Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion."). Accordingly, because the plaintiffs do not make any argument concerning the correctness of the summary judgment on the merits, we affirm the summary judgment for Dr. Krolikowski.

IV. Conclusion

Because the plaintiffs failed to demonstrate, by way of their Rule 56(f) motion and affidavit in support thereof, that the discovery they requested was crucial to the issue of State-agent immunity, the trial court properly denied their motion to compel. Additionally, because the plaintiffs did not challenge the merits of the trial court's summary judgment in favor of Dr. Krolikowski, the summary judgment is affirmed.

AFFIRMED.

Stuart, C.J., and Wise, J., concur.

Parker and Shaw, JJ., concur in the result.

      According to the ADFS Death Investigation Policy and Procedures Manual, "[a] case will be accepted for investigation by a Medical Examiner's office when authorized by ... any District Attorney ... for the purpose of the investigation of unlawful, suspicious or unnatural deaths and crimes." In this case, it appears that Mary Ella and Gloria pressured the district attorney to request on autopsy on the ground that the decedent's death was suspicious.

      According to Dr. Staci Turner, the regional Deputy Chief Medical Examiner for the ADFS in Mobile, a brain is "fixed" by storing it in a formalin-filled container, supplied by ADFS for brain retention, to create the optimum conditions for further examination.

      The plaintiffs state that they sued Dr. Krolikowski only in his individual capacity and not his official capacity.

      Although the trial court's order denied only the plaintiffs' motion to compel, it is undisputed that the plaintiffs' substituted discovery, specifically interrogatory number 9, had become the subject of the motion to compel.

      We note that the plaintiffs commenced this action in April 2015 and that the case was originally assigned, without objection, to the court's expedited case-management system, which is designed to dispose of a case within 12 months. The case was not disposed of within 12 months. Rather, the trial judge granted the plaintiffs' request for additional time in which to conduct discovery, allowed the plaintiffs more than four months to respond to Dr. Krolikowski's motion for a summary judgment, and twice reset the hearing on the summary-judgment motion. Moreover, Dr. Krolikowski states that he has produced at least 469 documents and has answered those of the plaintiffs' interrogatories that directly relate to the issue of immunity.

      Cranman was a plurality opinion; the restatement of law as it pertains to State-agent immunity as set forth in Cranman was subsequently adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala. 2000).

      Dr. Krolikowski notes that the plaintiffs filed their complaint over two years after the autopsy was performed and that any claim concerning the autopsy itself would be barred by the applicable statute of limitations.