                  IN THE SUPREME COURT OF MISSISSIPPI

                             NO. 2017-IA-01435-SCT

HEALTH MANAGEMENT ASSOCIATES, INC.,
CLARKSDALE HMA PHYSICIAN
MANAGEMENT, LLC, CLARKSDALE HMA, LLC
INDIVIDUALLY AND d/b/a NORTHWEST
MISSISSIPPI MEDICAL CENTER, MARK
CATON, REGINA ROBINSON, MATTHEW
TORMEY AND TEENA ROWE

v.

ROGER WEINER, M.D.

DATE OF JUDGMENT:                      10/12/2017
TRIAL JUDGE:                           HON. LINDA F. COLEMAN
TRIAL COURT ATTORNEYS:                 RALPH E. CHAPMAN
                                       DANA J. SWAN
                                       ANDY LOWRY
                                       JAMIE F. JACKS
COURT FROM WHICH APPEALED:             COAHOMA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:              ANDY LOWRY
                                       THOMAS L. KIRKLAND, JR.
                                       BILL LUCKETT, JR.
                                       JAMIE F. JACKS
                                       GERALD H. JACKS
ATTORNEYS FOR APPELLEE:                DANA J. SWAN
                                       H. SCOT SPRAGINS
                                       LAWRENCE J. TUCKER, JR.
NATURE OF THE CASE:                    CIVIL- TORTS-OTHER THAN PERSONAL
                                       INJURY & PROPERTY DAMAGE
DISPOSITION:                           REVERSED AND REMANDED - 03/07/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1.   Dr. Roger Weiner brought a malicious-prosecution claim against Health Management
Associates Inc. and Teena Rowe. Dr. Roger Weiner based his malicious-prosecution claim

on the federal district court’s dismissal of his criminal prosecution. The court had dismissed

the case for lack of jurisdiction. Health Management Associates Inc. and Teena Rowe filed

a motion for partial summary judgment on the malicious-prosecution claim, arguing that a

jurisdictional dismissal is not a favorable termination for the purposes of a malicious-

prosecution claim. The trial court agreed. Later, with a new trial judge on the bench, Dr.

Weiner sought reconsideration. The trial court reconsidered and reversed the former judge’s

order. Health Management Associates Inc. and Teena Rowe appealed. The Court reverses

and remands the judgment of the trial court, holding that it erred in denying the partial

summary-judgment motion.

                                 STATEMENT OF FACTS

¶2.    Dr. Roger Weiner was prosecuted in federal district court for violating the Mann Act.

See 18 U.S.C. § 2422(a) (2012). Dr. Weiner sought dismissal of the charges, alleging that

the interstate-commerce element was not met. The district court dismissed the charges for

lack of federal jurisdiction, stating that “the federal nexus to interstate commerce necessary

to create federal jurisdiction simply is not present in the case at bar.” The order stated that

dismissal was jurisdictional and that “[i]n this case the court is not ruling on whether

prostitution was never discussed and would never have been engaged in. If state or local

prosecutorial authorities want to pursue a state law prosecution of solicitation of prostitution,

that is their prerogative.”




                                               2
¶3.    Subsequently, Dr. Weiner brought a civil suit against Health Management Associates

Inc. (HMA) and Teena Rowe.1 The suit alleged a number of claims, including a claim for

malicious prosecution. HMA and Rowe filed a motion for partial summary judgment on the

malicious-prosecution claim. HMA and Rowe argued that the malicious-prosecution claim

should be dismissed because a dismissal for lack of jurisdiction of the underlying criminal

prosecution did not amount to a “favorable termination” under the elements of a malicious-

prosecution claim.

¶4.    The trial judge granted HMA and Rowe’s motion for partial summary judgment. The

trial judge then denied Dr. Weiner’s motion for reconsideration and certified the order

granting partial summary judgment as a final order.

¶5.    Dr. Weiner filed a petition for interlocutory appeal and a direct appeal on the grant of

the partial summary-judgment motion. The Court denied the petition for interlocutory

appeal, holding that a Mississippi Rule of Civil Procedure 54(b) certification had been

entered. Subsequently, HMA and Rowe filed a motion to dismiss the direct appeal, arguing

that the order had been improperly certified as a final order under Rule 54(b). The Court

granted the motion and dismissed the appeal.

¶6.    Thereafter, the trial judge assigned to the case retired, and a new trial judge was

assigned to the case. Dr. Weiner filed a “Motion to Reconsider the Former Trial Court[’]s

Granting of HMA Defendants’ Motion for Partial Summary Judgment.”2 Under Rule 54(b)

       1
       Teena Rowe did not file her own briefs, but she joined and adopted the entire
substance of HMA’s brief and HMA’s reply brief.
       2
       Dr. Weiner’s second motion for reconsideration was filed in May 2017. The first trial
judge had granted HMA and Rowe’s motion for partial summary judgment nearly six years

                                              3
of the Mississippi Rules of Civil Procedure, the new trial judge granted the motion to

reconsider and denied HMA and Rowe’s partial summary-judgment motion on the issue of

malicious prosecution. She stated that the prior federal case was decided in Dr. Weiner’s

favor because the order of dismissal “went to the substantive elements of the crime of the

Mann Act.”

¶7.    HMA and Rowe filed an interlocutory appeal. A panel of the court granted

permission for the appeal.

                             STATEMENT OF THE ISSUES

¶8.    The parties argue two general issues regarding whether the underlying termination

supports a claim for malicious prosecution and whether the grant of the motion to reconsider

was proper. The Court considers only one issue, as it is dispositive. The Court restyles the

issue as follows:

       Whether the underlying termination of the federal criminal action constitutes
       a favorable termination for the purposes of a malicious- prosecution claim.

                                       ANALYSIS

       Whether the underlying termination of the federal criminal action
       constitutes a favorable termination for the purposes of a malicious-
       prosecution claim.

              A.     Standard of Review

¶9.    The trial court granted Dr. Weiner’s motion to reconsider. The trial court then denied

HMA’s motion for partial summary judgment on the claim of malicious prosecution.




before, in November 2011.

                                             4
¶10.   The grant or denial of a motion for summary judgment is considered de novo.

Bearden v. BellSouth Telecomms., Inc., 29 So. 3d 761, 764 (Miss. 2010). Summary

judgment is appropriate if the record shows “no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56. “In

making such a determination, the evidence must be viewed in the light most favorable to the

nonmoving party.” Id.; Bearden, 29 So. 3d at 764 (internal quotation omitted). Further, to

the extent that questions of law are at issue, the standard of review is de novo. Barlow v.

Miss. State Bd. of Chiropractic Exam’rs, 233 So. 3d 223, 227 (Miss. 2017).

       B.     Whether the underlying dismissal for lack of jurisdiction of the federal
              criminal action constitutes a favorable termination for the purposes of
              the malicious-prosecution claim.

¶11.   Dr. Weiner maintains that the underlying dismissal for lack of jurisdiction of the

federal criminal action constitutes a favorable termination for the purposes of the malicious-

prosecution claim. HMA and Rowe consider the termination procedural and, therefore,

conclude that it does not constitute a favorable termination for the purposes of the malicious-

prosecution claim. For the reasons discussed below, the Court agrees with HMA and Rowe.

¶12.   In Bearden, in considering an issue of first impression for Mississippi, the Court held

that a dismissal of the underlying criminal action for a lack of jurisdiction is not a favorable

determination for malicious-prosecution purposes. Bearden, 29 So. 3d at 761. Before

reaching its holding, the Bearden Court reviewed the competing interests in malicious-

prosecution cases.

¶13.   First, it considered “[t]he public policy interest in crime prevention [which] insists that

private citizens, when aiding law enforcement personnel, ought to be protected against the

                                               5
prejudice that is likely to arise from the termination of the prosecution in favor of the

accused.” Id. at 765 (quoting Benjamin v. Hooper Elec. Supply Co., Inc., 568 So. 2d 1182,

1187-1188 (Miss. 1990)). Second, it considered the interest “which protects individuals from

being wrongly accused of criminal behavior which results in unjustified and oppressive

litigation of criminal charges.” Id.

¶14.   The Bearden Court also specifically stated that the dismissal must “reflect on the

merits of a criminal action or the innocence of the accused,” noting that “[t]he record is

totally void of any indication of why the justice court concluded that it had no jurisdiction.”

Bearden, 29 So. 3d at 764, 766. Further, it held that “the dismissal of the case for lack of

jurisdiction does not reflect on the merits of the criminal case against Bearden.” Id. at 766.

¶15.   Dr. Weiner maintains that, although the criminal dismissal here was jurisdictional,

Bearden is distinguishable. Stating that federal courts are courts of limited jurisdiction, Dr.

Weiner concludes that, unlike in state court, if a federal court lacks subject-matter

jurisdiction, no federal crime exists. On the other hand, he claims that in state court, if a

court lacks jurisdiction, the criminal charge may be brought elsewhere. HMA and Rowe

argue that the jurisdictional requirement to federal crimes is merely a jurisdictional hook.

¶16.   Dr. Weiner is correct to note the fundamental precept that “federal courts are courts

of limited jurisdiction. They possess only that power authorized by Constitution and statute

. . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673,

1675, 128 L. Ed. 2d 391 (1994). Thus, federal criminal laws differ from state criminal laws

in that “state crimes do not contain interstate commerce elements because a State does not

need such a jurisdictional hook.” Torres v. Lynch, 136 S. Ct. 1619, 1625, 194 L. Ed. 2d 737

                                              6
(2016). Here, the Mann Act required interstate commerce as a jurisdictional requirement.

See 18 U.S.C. § 2422(a). The district court dismissed the criminal action against Dr. Weiner,

citing a lack of jurisdiction due to the missing element of interstate commerce.

¶17.   Although Bearden addressed dismissal for lack of jurisdiction, it did so for a state

crime, not a federal crime. Here, the question for the Court is also one of first impression:

whether the dismissal for lack of jurisdiction for a federal crime in federal court is a

termination in Dr. Weiner’s favor for the purposes of malicious prosecution. The instant

issue presents an issue of law, which the Court reviews de novo. See Barlow, 233 So. 3d at

227.

¶18.   The parties cite Torres, arguing that it supports their arguments. The issue in Torres

is notably different than the issue here. The Supreme Court was faced with determining

whether a state crime can count as an aggravated felony under the Immigration and

Nationality Act when the only difference in the state-law offense and the federal offense is

the interstate-commerce element. Torres, 136 S. Ct. at 1622. In other words, the issue was

whether the jurisdictional element precluded the state crime from being considered an

aggravated felony. The Supreme Court determined that the jurisdictional element was

immaterial and that a state offense, which otherwise mirrors the federal offense, constituted

an aggravated felony under the Act. Id. Despite the factual differences in Torres, the Court

agrees with the parties that Torres provides guidance regarding the effect of a jurisdictional

element of a federal crime.

¶19.   Dr. Weiner points out that Torres refers to federal jurisdiction as an element of the

crime. Dr. Weiner states that the Torres Court noted that both kinds of elements must be

                                              7
proved to a jury beyond a reasonable doubt. See Torres, 136 S. Ct. at 1630. Dr. Weiner then

interpreted Torres to conclude, “If neither is proven beyond a reasonable [doubt], the accused

is not guilty!”

¶20.   The Torres Court did state that both elements must be proved beyond a reasonable

doubt, but it went on to provide that the two types of elements are not the same. It said,

       Both kinds of elements must be proved to a jury beyond a reasonable doubt;
       and because that is so, both may play a real role in a criminal case. But still,
       they are not created equal for every purpose. To the contrary, courts have
       often recognized—including when comparing federal and state offenses—that
       Congress uses substantive and jurisdictional elements for different reasons and
       does not expect them to receive identical treatment.

Torres, 136 S. Ct. at 1630. The Court then stated that the mens rea requirement is not needed

for a finding under the jurisdictional element. Id. at 1630-31. Further, it cited United States

v. Yermian, 468 U.S. 63, 68, 104 S. Ct. 2936, 2939, 82 L. Ed. 2d 53 (1984) for the point that

“[j]urisdictional language need not contain the same culpability requirement as other

elements of the offense.” Torres, 136 S. Ct. at 1631. The Torres Court also held that the

jurisdictional element is “properly ignored when determining if a state offense counts as an

aggravated felony . . . .” Id. at 1634. Similarly, for the Mann Act, the mens rea requirement

for the interstate-commerce element is not required. United States v. Hattaway, 740 F.2d

1419, 1428 (7th Cir. 1984) (“The defendant’s knowledge of whether a state line has been

crossed thus is irrelevant to whether he has violated the Mann Act . . . .”).

¶21.   The holdings of Torres and Hattaway illustrate that the jurisdictional element of a

federal crime does not reflect upon culpability. Stated differently, a dismissal for lack of

jurisdiction is not a dismissal on the merits of the crime. Thus, Torres and Hattaway offer



                                              8
guidance that a jurisdictional dismissal—even if it is in federal court—is not a favorable

determination for purposes of a malicious-prosecution claim. See Bearden, 29 So. 3d at 764

(The dismissal must “reflect on the merits of a criminal action or the innocence of the

accused.”). However, due to the fact that the instant issue is one of first impression in

Mississippi and due to the fact that the parties cite a number of additional cases, the analysis

continues.

¶22.   Dr. Weiner cites United States v. Prentiss, 256 F.3d 971, 982 (10th Cir. 2001),

overruled on other grounds by United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 152

L. Ed. 2d 860 (2002), for the point that “[i]f the Government alleged, but failed to prove

those elements, we would not say the district court was deprived of subject matter

jurisdiction to hear the case; rather we would say Defendant was entitled to acquittal.” To

understand the rule that can be garnered from Prentiss, the Court looks to the facts and issue

in Prentiss and its guiding authority.

¶23.   In Prentiss, the issue was whether the government properly had alleged in the

indictment the Indian and non-Indian statuses of the defendant and the victim such that

federal jurisdiction was triggered. Id. at 974-75. Notably, however, a distinction exists

between subject-matter jurisdiction to hear the case and the ultimate dismissal due to the lack

of a jurisdictional element. Prentiss, 256 F.3d at 982. Thus, in concluding that the

indictment’s failure to allege the jurisdictional element did not affect the court’s ability to

hear the case, the Prentiss Court stated that the defendant would be entitled to an acquittal

if the government failed to prove the jurisdictional element. Id. at 982–83. While Prentiss’s

mention of acquittal does seem to reflect upon innocence, it does not sway the Court.

                                               9
¶24.   First, the issue of Prentiss is distinguishable from the instant issue. Prentiss was not

specifically determining if the jurisdictional elements reflect on the merits of the crime.

Second, Prentiss’s acquittal pronouncement does not fit with additional federal law on

whether jurisdictional elements reflect on the merits. See Torres, 136 S. Ct. at 1631. Third,

Prentiss’s limited pronouncement makes more sense when considered alongside the case

Prentiss cited: United States v. Martin, 147 F.3d 529 (7th Cir. 1998).

¶25.   Like in Prentiss, Martin noted a distinction between the subject-matter jurisdiction

to hear the case and the jurisdictional element. Martin, 147 F.3d at 532 (“[The jurisdictional

element] is not jurisdictional in the sense that it affects a court’s subject matter jurisdiction,

i.e., a court’s constitutional or statutory power to adjudicate a case, here authorized by 18

U.S.C. § 3231.”).       Further, Martin stated that the interstate-commerce element is

“‘jurisdictional’ only in the shorthand sense that without that nexus, there can be no federal

crime . . . .” Id. at 531–32 (citing Kanar v. United States, 118 F.3d 527, 530 (7th Cir.

1997)); see also United States v. Sealed Appellant, 526 F.3d 241, 243 (5th Cir. 2008).

Martin provided this point in order to conclude the following: “Even if the government fails

to establish the connection to interstate commerce, the district court is not deprived of

jurisdiction to hear the case.” Martin, 147 F.3d at 532. Notably, Martin was distinguishable

from Prentiss. The issue in Martin was whether a defendant could reopen a guilty plea on

the ground that the government had failed to prove the jurisdictional element. Id. at 529.

However, the pronouncements in both Prentiss and Martin are focused on determining the

same central issue: whether a federal court has jurisdiction to decide a question of

jurisdiction.

                                               10
¶26.   Here, no similar central issue exists. The parties do not dispute that the federal district

court had subject-matter jurisdiction to rule that the government had failed to meet the

interstate-commerce, jurisdictional element. The issue is whether the dismissal due to the

lack of the jurisdictional element constitutes a favorable termination for the purposes of a

malicious-prosecution claim. Thus, Prentiss’s and Martin’s pronouncements do nothing to

add to or change the need for a determination on the merits.

¶27.   In fact, if anything, Martin provides guidance that falls along the same lines of the

guidance provided by Torres. Martin stated,

       This court has recognized for decades that, despite defendants’ tendency to
       confuse facts essential to be alleged as elements of the crime with
       jurisdictional requirements arising as a matter of law, once a defendant pleads
       guilty in court which has jurisdiction of the subject matter and of the
       defendant, as did the court in the instant case, the court’s judgment cannot be
       assailed on grounds that the government has not met its burden of proving
       so-called jurisdictional facts.

Id. at 532 (emphasis added) (internal quotations omitted) (citing United States v. Hoyland,

264 F.2d 346, 352–53 (7th Cir. 1959); La Fever v. United States, 279 F.2d 833, 834 (7th Cir.

1960)). The above-quoted language in Martin illustrates that an inherent difference exists

in elements of the crime and the jurisdictional element. Combined with Torres’s guidance

that “[j]urisdictional language need not contain the same culpability requirement as other

elements of the offense,” the Court concludes that, although the jurisdictional element is an

element of the federal crime, it is not an element that reflects upon the merits. Torres, 136

S. Ct. at 1631.

¶28.   As stated above, Bearden specifically provided that the dismissal must “reflect on the

merits of a criminal action or the innocence of the accused” to be considered a favorable

                                               11
termination. Bearden, 29 So. 3d 761 at 764. Further, holding that a dismissal on the

jurisdictional element in federal court does not reflect on the merits is consistent with

caselaw from around the country. In Bearden, the Court looked to Hatch v. Davis, 102 P.3d

774, 776 (Utah 2004). Notably, the underlying criminal case in Hatch dealt with a dismissal

in federal court for a lack of jurisdiction. Hatch, 102 P.3d at 776. Hatch considered that a

jurisdictional dismissal does not reflect on the merits, and it concluded that “a defendant is

required to have the underlying action resolved on the merits in his or her favor prior to

initiating a claim for wrongful use of civil proceedings.” Id. at 780-81. More recently than

Martin, the United States Court of Appeals for the Seventh Circuit has stated,

       Although not “mere surplusage,” a jurisdictional element does little more than
       ensure that the conduct regulated in a federal criminal statute is within the
       federal government’s limited power to proscribe, thereby preventing the
       federal government from usurping power from the “States [who] possess
       primary authority for defining and enforcing the criminal law.”

Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 502 (7th Cir. 2008) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 635, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)). Mukasey

went on to state that “[t]he only purpose of the commerce element . . . is to obtain federal

jurisdiction over the crime.” Mukasey, 518 F.3d at 502.

¶29.   Further, the United States Court of Appeals for the Second Circuit has addressed the

favorable-termination element of a malicious-prosecution claim in Murphy v. Lynn, 118

F.3d 938, 948 (2d Cir. 1997). “Where the prosecution did not result in an acquittal, it is

deemed to have ended in favor of the accused . . . only when its final disposition is such as

to indicate the innocence of the accused.” Murphy, 118 F.3d at 948 (emphasis added).

Murphy went on to state, “Certain types of dispositions that do not result from adjudication

                                             12
of the merits have generally been held not sufficiently favorable to the accused to be

indicative of innocence. These include dismissals for lack of subject matter jurisdiction.” Id.;

see also Fish v. Watkins, 298 F. App’x 594, 597 (9th Cir. 2008) (internal quotation omitted)

(“A judgment on the merits is a favorable termination, while a procedural or technical

dismissal is not.”)

¶30.   Turning to the instant case, the trial court pointed out that the federal district court’s

order “went to the substantive elements of the crime of the Mann Act.” While true that the

order did entertain substantive elements of the Mann Act, the entertainment constituted mere

dicta; the holding addressed only jurisdiction. The federal district court held, “For the

foregoing reasons, the court finds that the defendant’s motion to dismiss for lack of federal

jurisdiction should be and the same is hereby GRANTED.” Specifically, the order also stated

that “the government is confusing the elements required to prove the [elements] of an

‘attempted crime’ with the subject matter jurisdictional requirements for the court initially

to acquire jurisdiction even to hear the case.’” Finally, the order provided that a state-court

action could be brought, albeit without the federal jurisdictional requirement.

¶31.   Under a de novo review of the issues of law and summary judgment—specifically

considering Bearden and additional applicable caselaw—the Court holds that the instant

jurisdictional dismissal does not reflect on the merits of the crime. In order to constitute a

favorable termination for the purposes of a malicious-prosecution case, the dismissal must

reflect on the merits of the crime. Bearden, 29 So. 3d 761 at 764. Thus, the trial court should

not have denied the motion for partial summary judgment.




                                              13
       C.     Whether the government abandoned its prosecution of Dr. Weiner,
              creating a favorable termination for the purposes of the malicious-
              prosecution claim.

¶32.   Citing Mississippi caselaw, Dr. Weiner makes an alternative argument that a favorable

termination occurred when the government abandoned its prosecution by not appealing the

federal district court’s dismissal. The Court considers the instant issue de novo because it

presents an issue of law about whether a failure to take an appeal on a jurisdictional dismissal

amounts to an abandonment under Mississippi caselaw. See Barlow, 233 So. 3d at 227.

¶33.   In Joiner Insurance Agency, Inc. v. Principal Casualty Insurance Co., 684 So. 2d

1242 (Miss. 1996), the Court considered abandonment for the purposes of satisfying the

termination element of a malicious prosecution. Specifically, the Court stated that “if the

facts or circumstances underlying the dismissal without prejudice demonstrated that the claim

was abandoned because the plaintiff could not prevail on the merits, then the dismissal was

a final termination” for malicious-prosecution purposes. Joiner Ins., 684 So. 2d at 1245

(emphasis added).

¶34.   As analyzed above, a dismissal for lack of jurisdiction, even in federal court, does not

amount to a dismissal on the merits. Joiner Insurance shows that abandonment in

Mississippi (while not requiring dismissal with prejudice) requires the facts and

circumstances of the dismissal to illustrate a failure to prevail on the merits. See Joiner Ins.,

684 So. 2d at 1245. Therefore, Joiner Insurance does not support Dr. Weiner’s argument.

¶35.   Dr. Weiner also cites Lochridge v. Pioneer Health Services of Monroe County, Inc.,

86 So. 3d 942 (Miss. Ct. App. 2012). In considering whether the malicious-prosecution case

had accrued, the Lochridge Court determined that in order to accrue, the termination element

                                               14
of a malicious-prosecution claim does not require “an appealable judgment or dismissal with

prejudice.” Lochridge, 86 So. 3d at 946 (citing Joiner Ins., 684 So. 2d at 1244). The

Lochridge Court looked to the facts of the case to determine that abandonment had occurred.

Specifically, in Lochridge, Pioneer Health Services submitted a letter to the district attorney

stating that it did “not wish to pursue criminal charges against Linda Lochridge at this time.”

Lochridge, 86 So. 3d at 946.

¶36.   In Lochridge, specific proof of abandonment was provided. Aside from arguing that

the government failed to take an appeal, Dr. Weiner provides no such factually similar

information. Further, Lochridge does not address whether the failure to appeal amounts to

an abandonment, and most importantly, Lochridge does not change the rule that the dismissal

must reflect the merits. See Joiner Ins., 684 So. 2d at 1245.            Thus, Lochridge is

distinguishable from the instant case and does not provide support for Dr. Weiner’s

argument.

¶37.   Dr. Weiner also cites Hyer v. Caruso, 102 So. 3d 1232 (Miss. Ct. App. 2012). In

Hyer, the charges against Caruso “were remanded to the file.” Id. at 1236. Once again, Dr.

Weiner presents no such factually similar situation to garner guidance or support from Hyer.

¶38.   In sum, when a dismissal does address the merits, a failure of the government to

appeal does not amount to an abandonment. Therefore, the instant issue does not bar

summary judgment.




                                              15
                                     CONCLUSION

¶39.   Under a de novo review, the trial court erred in denying the partial summary-judgment

motion. The Court reverses the judgment and remands the case with instructions for the trial

court to enter an order granting partial summary judgment in favor of HMA and Rowe.

¶40.   REVERSED AND REMANDED.

    RANDOLPH, C.J., KITCHENS AND KING, P.JJ., BEAM, ISHEE AND
GRIFFIS, JJ., CONCUR.    COLEMAN AND MAXWELL, JJ., NOT
PARTICIPATING.




                                            16
