A.W., a minor child, by and through her next friend Kelli Hogeland, and W.B., a minor child, by and through his next friend Shara Fortenberry v. J. Walter Wood, Jr., in his capacity as executive director of the Department of Youth Services, et al.

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REL:06/25/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1081428 A.W., a m i n o r c h i l d , by and t h r o u g h h e r n e x t f r i e n d K e l l i H o g e l a n d , and W.B., a m i n o r c h i l d , by and t h r o u g h h i s n e x t f r i e n d Shara Fortenberry v. J . W a l t e r Wood, J r . , i n h i s c a p a c i t y as e x e c u t i v e d i r e c t o r of the Department o f Youth S e r v i c e s , e t a l . Appeal BOLIN, from Montgomery C i r c u i t (CV-08-900530) Court Justice. A.W., a m i n o r c h i l d , Hogeland, a n d W.B., by and through a minor f r i e n d Shara Fortenberry, child, appeal her next friend by and through from t h e t r i a l Kelli h i s next court's order 1081428 denying t h e i r motion t o a l t e r , judgment i n favor amend, o r v a c a t e of J . Walter Wood, J r . , e x e c u t i v e of the Department o f Youth S e r v i c e s o f A.W.'s a n d W.B.'s c l a i m s superintendent James Carr, Education; Inc. superintendent operates educational Board Fuller, o f E d u c a t i o n , and of the Blount Facts County Board of findings. and P r o c e d u r a l facilities services for, t o , delinquent district formulates consisting of five has i t s own and implements History and p r o v i d e s i n accordance w i t h s t a t e law. school d i s t r i c t school (2) t h e d i s m i s s a l d e f e n d a n t s Randy County on p a r t i a l Underlying custody director a n d (3) a j u d g m e n t i n f a v o r o f A l a b a m a Y o u t h Homes, ("AYH"), b a s e d DYS ("DYS"); against of the Shelby ( 1 ) a summary youth educational committed and to i t s DYS h a s i t s own s p e c i a l separate board social of schools. education, policy T h e DYS which and procedures t h a t comply w i t h s t a t e law and Alabama Department o f E d u c a t i o n guidelines. Wood, a s e x e c u t i v e d i r e c t o r o f DYS, i s u l t i m a t e l y responsible f o rensuring facilities fully of E d u c a t i o n Because custody, complies that the education program with s t a t e l a w and w i t h a t DYS Department g u i d e l i n e s and/or r e g u l a t i o n s . of the great DYS c o n t r a c t s number with of juveniles placed independent 2 entities i ni t s throughout 1081428 A l a b a m a t o p r o v i d e some h o u s i n g custody of DYS. independent arrange Pursuant entities to that of Education Shelby County educated. Girls a t which Westover Group contract between w o u l d be e d u c a t e d the Blount either to provide or to with a n d W.B. a n d W.B. was Board Board of Education, would comply with the local DYS would be h o u s e d a n d assigned respectively, to Pursuant AYH's to the t h a t A.W. a n d W.B. school authorities, i . e . , of Education state case, i nBlount County and County. DYS a n d A Y H , AYH a g r e e d County l a w and t o A Y H ' s O n e o n t a G r o u p Home f o r i n Shelby through state In this facilities A.W. County, Home these regulations. A.W. was a s s i g n e d i n Blount contracts, complies c o n t r a c t e d w i t h AYH t o o p e r a t e in those are required f o r education Department f o r j u v e n i l e s committed t o the and t h e Shelby and t h a t their l a w and Department of County education Education regulations. On others May similarly complaint punitive and 2 1 , 2008, A.W., situated, on b e h a l f sued sought i n j u n c t i v e r e l i e f damages f o r n e g l i g e n c e AYH's educational alleged programs failure Wood and and AYH. a l l A.W.'s as w e l l as compensatory and and wantonness based to provide and o p p o r t u n i t i e s . 3 of herself A.W. with on Wood adequate Specifically, A.W. 1081428 a l l e g e d t h a t Wood a n d AYH d e n i e d public school County -- Blount County and t h a t approximately and In four hours access from h i g h September a d d W.B. s h e was Alternative was n o t g i v e n graduation to i n the d i s t r i c t her the opportunity to attend i n which instead School, she l i v e d required where of educational to the course AYH required where 2 0 0 8 , A.W. him to attend mandated Education. to filed instruction of study a first W.B. held ultimately for a p e r day required f o r amended law complaint alleged that High and t h a t although School, Wood they instead County A l t e r n a t i v e the core state 10, School, curriculum and by the and course of Department of a r e h e r e i n a f t e r sometimes High denied 2008, an o r d e r School. a hearing summary only referred as " t h e p l a i n t i f f s . " seeking i n Chelsea him there the Shelby a n d W.B. September injunction, court by A.W. collectively On him to enroll he d i d n o t r e c e i v e study to attend the school. a s a named p l a i n t i f f . failed Blount she r e c e i v e d t h e W e s t o v e r G r o u p Home i s z o n e d f o r C h e l s e a and -- W.B. moved preliminary r e q u i r i n g Wood a n d AYH t o e n r o l l On O c t o b e r on t h e r e q u e s t the request. judgment. for a That 4 f o r an On M a r c h same 28, 2008, the t r i a l injunction 19, 2009, d a y , Wood AYH moved and moved for a 1081428 summary judgment. Wood argued, was immune f r o m l i a b i l i t y . the arguments plaintiffs among o t h e r t h i n g s , On M a r c h a deemed a p p r o p r i a t e motion On M a r c h t o compel because he 2 0 , 2 0 0 9 , AYH a d o p t e d a l l Wood made i n h i s m o t i o n . filed that and 24, 2009, t h e f o r sanctions as c o u n s e l f o r Wood h a d n o t p r o d u c e d r e q u e s t e d d o c u m e n t s r e g a r d i n g DYS's p o l i c i e s a n d p r o c e d u r e s i n relation had to the p l a i n t i f f s ' canceled argued Wood's that necessary the scheduled requested and because deposition. documents f o r them t o be a b l e t o r e s p o n d summary-judgment m o t i o n s . which claims and Wood's c o u n s e l The plaintiffs deposition t o Wood's a n d A Y H ' s Immediately before a proceeding at o r e t e n u s e v i d e n c e was t o b e p r e s e n t e d , t h e t r i a l denied both Wood's and court held were AYH's summary-judgment court motions as evidence was untimely. The presented during trial ore tenus which had v i o l a t e d the city on M a r c h the p l a i n t i f f s day s h a l l p e r day u n l e s s board 30, 2009, sought of n o t be l e s s 31, 2009, Wood a n d AYH which provides that than s i x hours of actual o t h e r w i s e o r d e r e d by t h e county education; A d m i n i s t r a t i v e Code and March t o show t h a t 1) A l a . C o d e 1 9 7 5 , § 1 6 - 1 - 1 , scholastic teaching a proceeding at which 2) Rule (State Department 5 290-3-1.02, or Alabama of Education), which, i n 1081428 part, requires hours, that exclusive the length of lunch of a school and r e c e s s ; day s h a l l a n d 3) A l a . be s i x Code 1 9 7 5 , § 16-6B-2, w h i c h , i n p a r t , e s t a b l i s h e s t h e c o r e c u r r i c u l u m and minimum e l e c t i v e s trial, Randy Foster, a Shelby regardless only a Board child n o r AYH director testified. Matt Their the local County Board o f E d u c a t i o n and of Education, i n which had that went the child to lived, authority. a n d W.B. p e r day. education had the a u t h o r i t y t o i n i t sjurisdiction a n d 15 m i n u t e s and only t h a t he was a w a r e t h a t A.W. 3 hours day of t h e f o r AYH, director, that o f t h e zone Wood testified clinical i . e . , the Blount where neither AYH County During the f i r s t the program established authorities, decide Hale, former testimony the t o be o f f e r e d . Hale, school, and however, attended He s t a t e d that that school he h a d i n q u i r e d of t h e B l o u n t County Board of E d u c a t i o n about whether the hours were sufficient a n d was t o l d that "everything was fine." The time, for he plaintiffs the t r i a l a deposition court then called Wood indicated that pursuant to the t r i a l had not appeared. The c o u r t to testify. Wood h a d b e e n court's ordered that order At that scheduled and t h a t the hearing be p o s t p o n e d u n t i l M a r c h 3 1 , 2 0 0 9 , a n d t h a t Wood i m m e d i a t e l y s i t 6 1081428 for a deposition afternoon resumed of of March on M a r c h the hearing. repeatedly parties by 30, AYH County and strictly Shelby boards to allow complaint, plaintiffs filed defendants Fuller, Board of Education, superintendent of court continued second fulfilled that Homes and Blount AYH's only i n hisindividual local add On school to their complaint were educational the April W.B. in until opportunity they amended 2, to June amend respective 2009, t h e to of the Shelby add as County c a p a c i t y , and C a r r , t h e County Board of Education, 7 their education. the t r i a l an the superintendent of the Blount wrong the and c u r r i c u l u m , the as d e f e n d a n t s . a sued relating hours, the p l a i n t i f f s of education judge i n the respective a l l decisions suggesting the t r i a l o n c e A.W. Group purview The t r i a l t h e second day respectively, them d i d the proceedings plaintiffs' and Westover to enroll the had stated that i n c l u d i n g placement, within 2009, their was court had Wood the County, thereafter, authorities. 15, and regarding a t t h e Oneonta education, the evidence, both arrived districts; a n d Wood t e s t i f i e d the p l a i n t i f f s the t r i a l Wood ore tenus that responsibilities responsibility which The After hearing that Specifically, 2009. 31, 2009, stated and the p l a i n t i f f s , in his 1081428 individual joint capacity. motion Thereafter, to dismiss. On Fuller April 20, s e c o n d m o t i o n f o r a summary j u d g m e n t , and o t h e r documents filed May a motion 5, 2009, and C a r r 2009, f o r a judgment the p l a i n t i f f s based filed a affidavits defense. on p a r t i a l a response a filed Wood now a t t a c h i n g i n support of h i s immunity filed findings. to Fuller C a r r ' s m o t i o n t o d i s m i s s . On May 8, 2 0 0 9 , t h e p l a i n t i f f s a consolidated to AYH's regard for a judgment the plaintiffs Wood, on p a r t i a l because the t o AYH's m o t i o n , and t r i a l trial opportunities, that With R u l e 56, the deposition educational findings. summary- In response argued argued t h a t F u l l e r ' s and C a r r ' s a f f i d a v i t s Wood, filed the R. C i v . P. with and was u n t i m e l y a n d n o t c o m p l i a n t w i t h judgment motion Ala. On r e s p o n s e t o Wood's s u m m a r y - j u d g m e n t m o t i o n a n d motion to AYH the p l a i n t i f f s directly conflicted testimony of Hale, Foster, testimony hours, indicated and c u r r i c u l u m and that the offered to the p l a i n t i f f s w e r e d e c i d e d b y AYH p u r s u a n t t o A Y H ' s a g r e e m e n t to p r o v i d e f o r t h e e d u c a t i o n o f s t u d e n t s p l a c e d b y DYS a t i t s facilities. On Carr's May 12, motion to summary j u d g m e n t , 2009, the dismiss; trial court i t granted granted Wood's a n d i t g r a n t e d AYH's m o t i o n 8 Fuller motion and for a f o r a judgment 1081428 on partial pursuant alter, findings. Rule to On Ala. 59(e), amend, o r v a c a t e t h e June 11, Civ. R. trial 2009, P., court's the plaintiffs, filed a motion judgment, which to was denied. Fuller The as and plaintiffs' defendants Carr's Motion to Dismiss amended c o m p l a i n t a d d i n g F u l l e r and Carr alleges: "16. T h a t [ F u l l e r and C a r r ] i n d i v i d u a l l y or a c t i n g i n c o n c e r t f a i l e d to p r o v i d e to Plaintiffs the educational opportunities, programs, courses g u a r a n t e e d and m a n d a t e d by t h e A l a b a m a C o n s t i t u t i o n , s t a t e law and a g e n c y r e g u l a t i o n s . "17. That [Fuller and Carr] willfully, fraudulently, i n bad f a i t h , without authority or u n d e r a m i s t a k e n i n t e r p r e t a t i o n o f t h e law and in violation of state law and regulation denied Plaintiffs the educational programs and opportunities to w h i c h t h e y were e n t i t l e d while committed to the l e g a l c u s t o d y of [DYS]." On April dismiss 17, the 2009, claims immunity." Their that suing inappropriate authority. the being them -- them m o t i o n does not is in a Fuller Carr in part, asserting, immunity and against capacities, agent Fuller their proposition and Carr 9 a in their defense of state asserted; filed or Statestates capacities which submitted "governmental i t merely individual to individual specify that rather, for motion is they no their cited individual 1081428 a f f i d a v i t s with t h e i r motion to d i s m i s s . a response viable claim l a w s and granted the f o r the appeal, 12(b)(6), whether whether that the and Carr's Carr Ala. Civ. P., R. namely, the that the plaintiff Blackstock, and 484 dismissal reviewing may 2d 297 pleadings i n Rule denomination regulations. The stated a state trial without court specifying 2d for failure does by on Civ. the 1079 to a state not only Nance a motion to v. dismiss, f o r summary j u d g m e n t P.], trial (Ala. regardless court." as of i t s Boles 1986). "When t h e t r i a l c o u r t i s c a l l e d u p o n t o c o n s i d e r a Rule 12(b)(6) motion, i t must examine the a l l e g a t i o n s i n t h e c o m p l a i n t , o r , as i n t h e i n s t a n t case, the c o u n t e r c l a i m , and construe i t so as to 'resolve a l l doubts concerning [its] sufficiency in f a v o r of the [ c l a i m a n t ] . ' I n so d o i n g , the court does not consider whether the claimant will 10 a consider but citing Rule However, "where m a t t e r s i n t o a motion [ A l a . R. standard to prevail, prevail, considered 1077, applicable ultimately (Ala. 1993). treatment applicable court possibly are 12(c), So. standard will plaintiff So. had filed violated certain both s i d e s a s s e r t t h a t the i s the the had they motion to d i s m i s s case the that plaintiffs dismissal. motion i s converted provided asserting in this M a t t h e w s , 622 outside Fuller F u l l e r and review claim, opposition, Department of E d u c a t i o n basis On of in The v. 1081428 ultimately prevail, o n l y w h e t h e r he h a s s t a t e d a c l a i m u n d e r w h i c h he may p o s s i b l y p r e v a i l . F o n t e n o t v . B r a m l e t t , 470 So. 2 d 6 6 9 , 671 ( A l a . 1 9 8 5 ) , c i t i n g F i r s t N a t i o n a l Bank v. G i l b e r t I m p o r t e d Hardwoods, I n c . , 398 So. 2 d 258 ( A l a . 1 9 8 1 ) , and K a r a g a n v. C i t y o f M o b i l e , 420 So. 2 d 57 ( A l a . 1 9 8 2 ) . " I f the motion, however, i s c o n v e r t e d to a Rule 56[(c), A l a . R. Civ. P.,] motion for summary j u d g m e n t , t h e ' m o v i n g p a r t y ' s b u r d e n c h a n g e s a n d he is o b l i g e d to demonstrate that there exists no g e n u i n e i s s u e a s t o a n y m a t e r i a l f a c t a n d t h a t he i s entitled to a judgment as a matter of law.' P a p a s t e f a n v . B&L C o n s t . Co., 356 S o . 2 d 158 ( A l a . 1978), citing C. Wright a n d A. Miller, Federal P r a c t i c e a n d P r o c e d u r e : C i v i l § 1366 (19 6 9 ) . " Hightower 2d 698, In & Co. 702-03 the v. U n i t e d States Fidelty Fuller instant not draft made the and an case, Carr's nothing order granting following notations the motion "dismissed." i n the on to dismiss, record the Thus, F u l l e r ' s and C a r r ' s evidence into So. expressly considered in ruling The court to trial Instead, face of i t would the t r i a l affidavits. court the a motion f o r a summary j u d g m e n t . 11 motion: that, in necessarily Moreover, indicate that did i t merely the appear gave the p a r t i e s n o t i c e of i t s i n t e n t t o c o n v e r t dismiss 527 record the motion. ruling no court the to dismiss. and considered in motion "granted" on Co., ( A l a . 1988). i n d i c a t e s which m a t e r i a l the t r i a l on & Guar. there i s trial court the motion See Hales to v. 1081428 First that of N a t ' l Bank o f M o b i l e , the record the trial must 380 S o . 2 d 797 demonstrate court's intention that to a l l p a r t i e s were treat c o n v e r t e d t o a summary-judgment m o t i o n ) . Drift this Owners' Court Ass'n, I n c . , 607 So. (Ala. 1980)(noting 2d the motion aware as one I n Graveman v. Wind 199, 202 ( A l a . 1992), stated: "The requirements of Rule 56 apply to a c o n v e r t e d Rule 12(b)(6) m o t i o n . Hales v. F i r s t N a t ' l Bank o f M o b i l e , 380 S o . 2 d 7 9 7 , 7 99 ( A l a . 1 98 0 ) . T o g e t h e r , R u l e s 12 a n d 56 r e q u i r e t h a t t h e n o n m o v a n t receive (1) a d e q u a t e n o t i c e t h a t t h e t r i a l court intends t o t r e a t t h e m o t i o n a s one f o r summary j u d g m e n t a n d (2) a r e a s o n a b l e o p p o r t u n i t y t o p r e s e n t m a t e r i a l i n o p p o s i t i o n . D a v i s v . H o w a r d , 561 F . 2 d 565, 571-72 ( 5 t h C i r . 1977); Hales, a t 799. T h i s Court has h e l d that t h e same 10 days' notice r e q u i r e d when a p a r t y m o v e s f o r summary j u d g m e n t i s a l s o r e q u i r e d f o r a c o n v e r t e d m o t i o n f o r summary judgment. H a l e s , a t 799. T h i s C o u r t has f u r t h e r h e l d that 'the r e c o r d must a d e q u a t e l y d e m o n s t r a t e that all counsel were aware o f t h e i n t e n t i o n s o f t h e [trial] j u d g e t o t r e a t t h e m o t i o n as c o n v e r t e d . ' H a l e s , a t 799-800 ( q u o t i n g D a v i s , a t 5 7 1 - 7 2 ) . " See a l s o Drees v. T u r n e r , 2008)("[A]lthough apparently a motion parties both neither been aware t h a t for a that parties remanded."); summary 10 S o . 3d 6 0 1 , 603 ( A l a . C i v . App. the p a r t i e s nor the t r i a l court t h e m a t t e r had been c o n v e r t e d judgment, the f a i l u r e had into to n o t i f y t h e m o t i o n h a d b e e n c o n v e r t e d was p r e j u d i c i a l and, Jacobs therefore, the v. 987 Whaley, 12 cause So. 2d was 1143, due to the to be 1147 ( A l a . 1081428 Civ. App. 2007)(remanding case communicate t o t h e p a r t i e s dismiss as observe the procedural Civ. one for a whether a trial summary judgment, requirements failed to to treat i t s intention a motion to thereby failing to of Rule court 5 6 ( c ) , A l a . R. P.). Consequently, side when the t r i a l because court i t s intention summary i n this to treat judgment, procedural i t i s not c l e a r we safeguards case of Rules the record communicated the motion remand from to t o d i s m i s s as one f o r the cause to assure that Upon remand, " t h e t r i a l directed hearing, affording proper genuine So. notice a proper pursuant issue to Rule of material the 1 2 ( b ) a n d 5 6 ( c ) , A l a . R. C i v . P., a r e a f f o r d e d b o t h s i d e s . to conduct either fact court i s both 56, t o d e t e r m i n e parties any Hightower, i s present." whether 527 2d a t 703. Wood's On March Motion 19, f o r a Summary 2009, Wood first judgment, arguing, among other supporting materials were attached summary-judgment m o t i o n . untimely. During second motion The t r i a l a continuance Judgment moved things, to for a immunity. the March No 19, 2009, court denied the motion of the t r i a l , Wood f o r a s u m m a r y j u d g m e n t , now a t t a c h i n g 13 summary filed as a affidavits 1081428 and other i n favor t o Wood's response support motion, of h i s immunity the p l a i n t i f f s argument. argued s u m m a r y - j u d g m e n t m o t i o n was n o t p r o p e r b e c a u s e and b e c a u s e of Wood f a i l e d t o f i l e the motion Following the by Rule court's entry the p l a i n t i f f s that the i t was u n t i m e l y summary i n s u p p o r t 56, A l a . R. o f a summary C i v . P. judgment i n f i l e d a R u l e 5 9 , A l a . R. C i v . P., a g a i n a r g u i n g t h a t Wood's s u m m a r y - j u d g m e n t m o t i o n untimely argued required the t r i a l Wood's f a v o r , motion, as a narrative In and n o t i n compliance that trial at the time with the t r i a l proceedings were in Rule 56. The court granted recess during was plaintiffs the motion, the direct e x a m i n a t i o n o f Wood a n d t h a t t h i s e x a m i n a t i o n h a d a l r e a d y b e e n delayed appear Wood by t h e a c t i o n s o f Wood's at the scheduled would have had plaintiffs' case t o seek "Ordinarily, novo." 2d not counsel deposition. They the opportunity at this i n not having also argued the close that of the relief. Court reviews a summary judgment de V e r n e u i l l e v . B u c h a n a n L u m b e r o f M o b i l e , I n c . , 914 S o . 8 2 2 , 824 ( A l a . 2005). a p p r o p r i a t e here However, t h a t because standard of review i s the p l a i n t i f f s , i n both r e s p o n s e t o t h e summary-judgment motion and t h e i r motion, Wood argued only that Wood's 14 summary-judgment their postjudgment motion was 1081428 procedurally (noting defective. that de novo See Verneuille, review of a 914 summary So. 2d at is judgment a p p r o p r i a t e where t h e c a s e "does n o t i n v o l v e t h e i s s u e the record material as shows fact a matter of law.' denial relief (Ala. or Rule discretion." 'genuine i s s u e [movant] i s e n t i t l e d whether as to a to any judgment Civ. P."). Thus, A l a . R. vacate 59(e) Bradley a postjudgment motion judgment. ... v. C i v . P., is Town "Whether within of the Argo, 2 to trial So. 3d grant court's 819, 823 2008). The plaintiffs first m o t i o n was u n t i m e l y . for a R u l e 5 6 ( c ) ( 3 ) , A l a . R. 59(e), amend, under the of not apply the standard of review a p p l i c a b l e to the of a Rule alter, absence and t h a t t h i s Court w i l l to the 824 a denied summary this The f a c t s judgment motion argue that as on summary-judgment i n d i c a t e t h a t Wood f i r s t March being Wood's 19, 2009. The The trial untimely. moved trial court court also deemed t h e m o t i o n i n c o m p l e t e b e c a u s e d i s c o v e r y i n t h e c a s e h a d not been bench completed. trial on The March trial court 30, 2009, and thereafter March s e c o n d d a y -- M a r c h 3 1 , 2 0 0 9 -- t h e t r i a l intention to continue resume June on 15, the t r i a l , 2009. On court w h i c h was April 15 31, 2, conducted a 2009. the indicated i t s ultimately 2009, On the set to plaintiffs 1081428 filed a second defendants. for a On A p r i l summary plaintiffs' the amended fact complaint 20, 2009, judgment on Wood a l l discovery filed amended had been and C a r r as a renewed a l l claims c o m p l a i n t and f i r s t that t o add F u l l e r alleged motion i n the c o m p l a i n t - - b a s e d on completed. Wood also s u b m i t t e d t h e s u m m a r y - j u d g m e n t m o t i o n a s a new m o t i o n b a s e d o n all claims asserted complaint. in the The m o t i o n was a c c o m p a n i e d referenced 17 a t t a c h m e n t s , including discovery responses, transcript. We p r e s u m e u n d e r d e e m e d Wood's m o t i o n the merits. discretion timely i n applying court the time 673 S o . 2 d 7 6 2 , 764 A l a . R. reversed pleading probably parties." or App. set aside that transcripts, preliminary-injunction that the t r i a l court i tgranted the motion i s afforded a wide requirements (quoting range on of of Rule 56.'" Hale v. Union i n Verneuille)). states ... that Foundry f o r error affected Moreover, " [ n ] o judgment as be t o any matter of substantial complained of has rights Under t h e c i r c u m s t a n c e s , t h e p l a i n t i f f s 16 Rule may o r p r o c e d u r e , u n l e s s ... t h e e r r o r injuriously amended ( A l a . C i v . A p p . 19 9 5 ) ( C r a w l e y , J . , added P., deposition these facts because second by a 35-page b r i e f the 914 S o . 2 d a t 824 dissenting)(emphasis 45, and "'The t r i a l Verneuille, Co., plaintiffs' of the rights were 1081428 not s u b s t a n t i a l l y p r e j u d i c e d . motion on A p r i l Wood f i l e d h i s s u m m a r y - j u d g m e n t 20, 2 0 0 9 - - w e l l b e f o r e t h e June 15, 2009, trial date. The motion plaintiffs' failed motion argument to include i s without that Wood's a n a r r a t i v e summary merit. Rule 56(c), summary-judgment i n support of i t s A l a . R. C i v . P., provides: "(1) Form o f M o t i o n and S t a t e m e n t i n O p p o s i t i o n Thereto. The motion shall be supported by a n a r r a t i v e summary o f w h a t t h e m o v a n t c o n t e n d s t o b e the undisputed material facts; that narrative summary may b e s e t f o r t h i n t h e m o t i o n o r may b e a t t a c h e d a s a n e x h i b i t . The n a r r a t i v e summary s h a l l be s u p p o r t e d b y s p e c i f i c r e f e r e n c e s to pleadings, p o r t i o n s o f d i s c o v e r y m a t e r i a l s , or a f f i d a v i t s and may include c i t a t i o n s to legal authority. Any s u p p o r t i n g d o c u m e n t s t h a t a r e n o t on f i l e s h a l l be a t t a c h e d as e x h i b i t s . I f t h e o p p o s i n g p a r t y c o n t e n d s that material facts are i n dispute, that party shall f i l e and s e r v e a statement i n o p p o s i t i o n supported in t h e same m a n n e r a s i s p r o v i d e d herein for a summary o f u n d i s p u t e d m a t e r i a l f a c t s . " (Emphasis As included added.) previously a immunity; 35-page the attachments. Gilliam, claims that brief brief In 659 noted, So. Wood's i n which referenced International 2d 24 summary-judgment he numerous Fidelity ( A l a .1995), a movant h a d f a i l e d 17 argued this motion the issue exhibits Insurance Court t o comply w i t h Co. of and v. addressed the narrative- 1081428 summary that requirement the motion sufficient 56." 659 facts, of Rule for a brief, 56. response postjudgment reveals opportunity (quoting App. trial section to argue 817 court i t neither to rule upon."'" ( A l a . C i v . App o f Human 19 8 8 ) ( e m p h a s i s court plaintiffs' "'"in error upon 1995), postjudgment 18 This Court 914 S o . 2 d a t 824 o f Human quoting R e s . , 668 S o . 2 d i n turn i t sdiscretion motion or i n t h e i r n o r was p r e s e n t e d t h e i n Verneuille)). d i d not exceed argue, court i n either R e s . , 527 S o . 2 d 1 3 2 2 , 1 3 2 4 added they on m a t t e r s w h i c h t h e Verneuille, Dep't specific the p l a i n t i f f s from t h e judgment. ruled J.K. v. Lee C o u n t y Dep't However, argument b e f o r e t h e t r i a l f o rrelief of h i s alternatively t o Wood's s u m m a r y - j u d g m e n t m o t i o n motion of the t o meet t h e r e q u i r e m e n t s t o immunity. not place a t r i a l record State this of Rule submission references On a p p e a l , t h e p l a i n t i f f s to raise their 813, Wood's t h e s u m m a r y j u d g m e n t was n o t p r o p e r b e c a u s e , failed exhibits summary r e q u i r e m e n t i s sufficient Wood was n o t e n t i t l e d will with concluded "included a r e c o n t a i n e d i n t h e argument attachments/exhibits, that This Court judgment So. 2d a t 27. L i k e w i s e , which Rule summary t o meet t h e n a r r a t i v e accompanying of 56(c)(1). based on Wilson (Ala. v. Civ. Accordingly, the i n denying the the plaintiffs' 1081428 argument that the motion summary j u d g m e n t was procedurally i s , therefore, defective. The affirmed. A Y H ' s M o t i o n f o r a J u d g m e n t B a s e d on P a r t i a l Findings P u r s u a n t t o R u l e 5 2 ( c ) , A l a . R. C i v . P. ^As day previously noted, the t r i a l of the ore tenus hearing trial in order complaint continued their and to add complaint Carr AYH judgment granted. allow the by filed based The a a Rule individual 52(c), to trial and C a r r motion the second findings, plaintiffs appeal was their ultimately dismiss, Fuller which At the C i v . P., m o t i o n which the was same for a the t r i a l denial of 52(c), court their amend, o r v a c a t e t h e j u d g m e n t i n o f AYH. Rule the t h e r e a f t e r amended affidavits. A l a . R. amend as d e f e n d a n t s . to partial postjudgment motion to a l t e r , favor The The p l a i n t i f f s joint their on plaintiffs defendants. t o add F u l l e r filed during on M a r c h 3 1 , 2 0 0 9 , c o n t i n u e d t o June 15, 2009. accompanied time, to court, A l a . R. C i v . P., provides: " ( c ) J u d g m e n t on P a r t i a l F i n d i n g s . I f d u r i n g a t r i a l w i t h o u t a j u r y a p a r t y h a s b e e n f u l l y h e a r d on an i s s u e a n d t h e c o u r t f i n d s a g a i n s t t h e p a r t y on t h a t i s s u e , t h e c o u r t may e n t e r j u d g m e n t against that party with respect to a claim or defense that c a n n o t u n d e r t h e c o n t r o l l i n g l a w be m a i n t a i n e d or d e f e a t e d w i t h o u t a f a v o r a b l e f i n d i n g on t h a t i s s u e , o r t h e c o u r t may d e c l i n e t o r e n d e r a n y j u d g m e n t 19 1081428 u n t i l the c l o s e of a l l the e v i d e n c e . Such a judgment may be s u p p o r t e d b y f i n d i n g s o f f a c t a n d c o n c l u s i o n s of law." On not appeal, fully the p l a i n t i f f s heard on AYH's argue primarily liability because, that they they were say, they were d e n i e d the o p p o r t u n i t y t o o f f e r a d d i t i o n a l t e s t i m o n y from Fuller AYH, on and t h e one Carr r e g a r d i n g the hand, and and evidence [AYH], as Fuller and agreements between the Blount County Board the Shelby County Board specifically, actual o f E d u c a t i o n , on t h e o t h e r h a n d . they argue t h a t " t h e y had r e g a r d i n g the a c t u a l evidenced in James C a r r . " part a g r e e m e n t s and from During yet to o f f e r the only Blount of the County Board Education, residing zoning. in had its T h e r e was regarding the A.W. W.B. Blount local and and plaintiffs school of E d u c a t i o n the authority district also number and to attended limited the school, testimony of hours and received while attending Shelby County p o i n t out the from school systems, t h a t AYH, pursuant 20 course where a ore the Board child regardless AYH of of officials curriculum within respectively. to Randy case County school of established this Shelby determine of two-day officials in More practices of the authorities, and testimony affidavits the course t e n u s p r o c e e d i n g , t h e t e s t i m o n y f r o m AYH that of E d u c a t i o n the The i t s contract with 1081428 DYS, had a duty that complied to provide with regulations. They state also A.W. a n d W.B. law and contend that with Department there A.W. Unfortunately, issues were dismissed the the only AYH people officials. educational who t e s t i f i e d The had a chance affidavits Carr, W.B.'s trial of Education of education arrangements. regarding court appear t o depose to offer i n hisaffidavit, them. another side these i n this t h e c l a i m s a g a i n s t F u l l e r and Carr a p p a r e n t l y plaintiffs Carr's and education was some s o r t o f a g r e e m e n t b e t w e e n AYH a n d t h e r e s p e c t i v e b o a r d s regarding an case before Fuller's of the story. states, i n part: "[AYH] o f f i c i a l s contacted the Blount County Board o f E d u c a t i o n sometime i n o r around August o f 2006. The c o n t a c t was made t o the Board of Education. The s u b j e c t o f t h e d i s c u s s i o n s r e l a t e d t o e d u c a t i o n a l s e r v i c e s t h a t c o u l d be p r o v i d e d t o s t u d e n t s who w o u l d b e p l a c e d i n a new A l a b a m a Y o u t h Homes f a c i l i t y l o c a t e d i n B l o u n t C o u n t y , A l a b a m a . " D i s c u s s i o n s w i t h our Blount County s t a f f and AYH r e l a t e d t o what e d u c a t i o n s e r v i c e s w o u l d be b e n e f i c i a l and a p p r o p r i a t e w i t h i n t h e s t r u c t u r e s o f the AYH program: what counseling; what i n d i v i d u a l i z e d s e r v i c e s ; what t r a n s p o r t a t i o n w o u l d be n e e d e d a n d p r o v i d e d . " (Emphasis added.) Fuller, i n hisaffidavit, states, i n part: 21 and 1081428 " S t a t e d o t h e r w i s e , t h e [Shelby County] Board has i m p l e m e n t e d a c o o p e r a t i v e a g r e e m e n t w i t h [AYH] s i n c e a t l e a s t 1 9 9 8 . ... " S t u d e n t s who a r e p l a c e d i n t h e p r o g r a m o f t h e B o a r d b y [AYH] r e c e i v e a f u l l d a y o f i n s t r u c t i o n b y highly qualified teachers pursuant to the State approved curriculum. I t i s a f u l l day o f s c h o o l . I t i s my u n d e r s t a n d i n g t h a t Donna D i c k s o n monitors the program w i t h [AYH]." (Emphasis added.) As p r e v i o u s l y n o t e d , R a n d y H a l e , AYH, testified hours and inquiry be "everything discovery was f i n e . " issues that we attended He also of those County In other c a n be that the t r i a l pending have d e f e r r e d rendering further discovery. court i n favor AFFIRMED Lyons, o f AYH Parker, upon h o u r s , he h a d b e e n Board of appears to only by o f AYH court's Education further officials. judgment i n a judgment i n favor o f AYH t h e judgment of the i s reversed. I N PART; AND REMANDED. a n d Shaw, J J . , c o n c u r . 22 3 was p r e m a t u r e a n d t h a t Accordingly, I N PART; R E V E R S E D Stuart, only that, words, there cross-examination conclude school stated resolved o f AYH, u n d e r t h e c i r c u m s t a n c e s , should trial p e r day. and a d d i t i o n a l Consequently, it minutes by someone a t t h e B l o u n t outstanding favor the p l a i n t i f f s as t o t h e a p p r o p r i a t e n e s s informed that 15 that the program d i r e c t o r f o r 1081428 Cobb, C . J . , and W o o d a l l and Murdock, J J . , c o n c u r result. 23 i n the

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