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Defendant's Attorney: ROBERT F. STACY JR.
JOSHUA A. TURNER

Description:

Jackson, MS - Personal Injury lawyer represented plaintiffs with suing alleging that Smith’s negligence caused the accident.

In August 2019, Robinson, Sims, and Smith were involved in a two-car wreck at the
intersection of Highway 8 and Highway 51 in Grenada. Robinson and Smith were driving
the respective cars, while Sims was a passenger in Robinson’s car.
¶4. In March 2020, Robinson and Sims filed a complaint against Smith in the Grenada
County Circuit Court. They alleged that Smith’s negligence caused the wreck.
¶5. On May 20, 2020, Smith filed an answer denying liability. The same day, Smith also
filed a separate document entitled “Counter-Claim.” The Counter-Claim alleged that
Robinson’s negligence caused the wreck and sought compensatory damages fromRobinson.
The answer and the Counter-Claim were filed by different attorneys. The answer’s
certificate of service stated that it was served on plaintiffs’ counsel by United States mail on
May 15, 2020. The Counter-Claim’s certificate of service stated that it was served on
plaintiffs’ counsel “by electronic mail and United States mail” on May 15, 2020.
¶6. Robinson did not answer or otherwise respond to Smith’s Counter-Claim. On June
22, 2020, Smith filed an application for entry of default and a motion for a default judgment
on his Counter-Claim. The same day, the clerk entered a default, and the circuit judge signed
a default judgment against Robinson “as to liability for the negligence outlined in [Smith’s
Counter-Claim].” The judgment stated that damages would be determined at a later date.
The default judgment was entered four days later on June 26, 2020.
¶7. On July 30, 2020, Smith filed a motion for summary judgment and dismissal of the
plaintiffs’ claims against him. Smith argued that the default judgment on the Counter-Claim
3
established that Robinson’s negligence caused the accident as the “law of the case.”
¶8. On August 4, 2020, the plaintiffs filed a motion to set aside the default judgment.
They argued that Smith’s stand-alone “Counter-Claim” was procedurally improper because
a counterclaim must be filed in an answer under the Mississippi Rules of Civil Procedure.
On August 7, 2020, the plaintiffs filed a response to Smith’s motion for summary judgment.
They argued that summary judgment should be denied because the default judgment should
not have been entered.
¶9. On September 21, 2020, the circuit court denied the plaintiffs’ motion to set aside the
default judgment, granted Smith’s motion for summary judgment, and dismissed all the
plaintiffs’ claims against Smith with prejudice. The court concluded that Smith’s CounterClaim was procedurally proper, that Robinson was in default because he failed to respond,
and that the plaintiffs waived any objection to the form of the Counter-Claim by failing to
respond. The court further reasoned that Smith was entitled to summary judgment on all the
plaintiffs’ claims against him because the default judgment established as the “law of the
case” that Robinson’s negligence caused the accident. The court subsequently entered an
order certifying its order granting summary judgment and dismissing the plaintiffs’ claims
against Smith as “final” pursuant to Mississippi Rule of Civil Procedure 54(b).
¶10. On September 29, 2020, the plaintiffs filed a motion for reconsideration. In this
motion, the plaintiffs denied—for the first time—that Smith properly served the CounterClaim. They admitted that Smith had served his answer by mail, but they denied that Smith
ever properly served his separate Counter-Claim. They pointed out that Smith’s answer did
4
not mention any counterclaim. They also noted that the Counter-Claim’s certificate of
service stated that it was being served by both United States mail and email, but they denied
that Smith had in fact served the Counter-Claim by either mail or email. The plaintiffs
claimed that they were unaware of the Counter-Claim until after the default judgment had
been entered, at which point plaintiffs’ counsel requested and received a copy of the CounterClaim from the circuit clerk.2
¶11. In his response to the plaintiffs’ motion for reconsideration, Smith asserted that on
May 15, 2020, he had served the Counter-Claim on plaintiffs’ counsel “via electronic mail.”
Smith argued that service by email is permissible under Mississippi Rule of Civil Procedure
5(b)(1). The record does include a copy of a May 15, 2020 email from Smith’s attorney to
plaintiffs’ counsel that appears to attach the Counter-Claim. Smith acknowledged that he did
not serve the Counter-Claim by United States mail, as stated in his certificate of service.
Smith characterized this misstatement in his certificate of service as a “[c]lerical error.”
¶12. In rebuttal, the plaintiffs argued that Smith failed to properly serve the Counter-Claim
by email pursuant to Rule 5(b)(1) because there was no “acknowledgment” of receipt.3
It is
not clear whether plaintiffs’ counsel denies that he, in fact, received the subject email and
attachment or only denies that Smith obtained an “acknowledgment” of receipt.
2 The circuit court’s docket sheet reflects that the clerk mailed a copy of the CounterClaim to plaintiffs’ counsel three days after the default judgment was entered.
3
See M.R.C.P. 5(b)(1) (“Service by electronic meansis complete when the electronic
equipment being used by the attorney or party being served acknowledges receipt of the
material. If the equipment used by the attorney or party being served does not automatically
acknowledge the transmission, service is not complete until the sending party obtains an
acknowledgment from the recipient.”).
5
¶13. On October 23, 2020, the circuit court denied the plaintiffs’ motion for
reconsideration. The court found that the plaintiffs “waived any right to complain about the
service of the [C]ounter-[C]laim when they failed to raise the issue” in their prior motion to
set aside the default judgment.
¶14. On November 2, 2020, the plaintiffs filed a motion to dismiss Smith’s Counter-Claim,
alleging that Smith failed to file a pre-suit notice of claim, as required by the MTCA. See
Miss. Code Ann. § 11-46-11 (Rev. 2019).
¶15. On November 5, 2020, the plaintiffs filed a notice of appeal from the circuit court’s
order granting summary judgment and dismissing their claims against Smith. As noted
above, the circuit court had certified that ruling as final pursuant to Mississippi Rule of Civil
Procedure 54(b). Several months later, the circuit court denied the plaintiffs’ motion to
dismiss the Counter-Claim pursuant to the MTCA. The court held that the plaintiffs waived
all defenses under the MTCA by failing to file an answer to the Counter-Claim.
¶16. On appeal, the plaintiffs argue that the circuit court erred (1) by denying their motion
to set aside the default judgment, (2) by granting Smith’s motion for summary judgment, (3)
by denying their motion to reconsider the order granting summary judgment, and (4) by
denying their motion to dismiss the Counter-Claim pursuant to the MTCA.
ANALYSIS
I. Pursuant to Mississippi Rule of Civil Procedure 54(b), this Court
has jurisdiction to review the circuit court’s order granting
summary judgment and dismissing the plaintiffs’ complaint.
Because that order depends on the circuit court’s prior orders
granting a default judgment on Smith’s Counter-Claim and
denying the plaintiffs’ motion to set aside the default judgment, we
6
must review those orders as well.
¶17. We begin our analysis by identifying which aspects of the case are before this Court
on appeal. In general, an appeal may be taken only from a final judgment. LaFontaine v.
Holliday, 110 So. 3d 785, 787 (¶8) (Miss. 2013); Miss. Code Ann. § 11-51-3 (Rev. 2019).
“Generally, a final judgment is one that adjudicates the merits of the controversy and settles
all issues between all parties.” LaFontaine, 110 So. 3d at 787 (¶8). In this case, there is no
“final judgment” because there has been no final adjudication of Smith’s Counter-Claim
against Robinson. As to the Counter-Claim, although the circuit court entered a default
judgment against Robinson on the issues of negligence and liability, there has been no
determination of damages.
¶18. “An exception to the final judgment rule is found in Rule 54(b) of Mississippi Rules
of Civil Procedure, which allows the trial court to expressly direct the entry of final judgment
as to fewer than all of the claims or parties in an action.” Walters v. Walters, 956 So. 2d
1050, 1053 (¶10) (Miss. Ct. App. 2007). In this case, the circuit court certified its order
granting summary judgment in favor of Smith and dismissing the plaintiffs’ claims against
Smith as final pursuant to Rule 54(b). A grant of summary judgment that results in the
dismissal of a claim may be certified as final under Rule 54(b) because it finally decides that
claim. See Brown v. Collections Inc., 188 So. 3d 1171, 1176 (¶¶16-17) (Miss. 2016) (stating
that a judgment may be certified as final under Rule 54(b) if it “finally dispose[s] of” or
“adjudicate[s]” a “claim”). Therefore, the order granting summary judgment in favor of
Smith and dismissing the plaintiffs’ claims is properly before this Court on appeal.
7
¶19. The circuit court did not certify the default judgment on Smith’s Counter-Claim or the
order denying the plaintiffs’ motion to set aside the default judgment as final pursuant to
Rule 54(b). The default judgment and the denial of the motion to set it aside were not
eligible for certification under Rule 54(b) because the default judgment only determined
liability and did not determine damages. A judgment on the issue of liability without a
determination of damages cannot be certified as final under Rule 54(b) because it leaves “a
portion of the claim pending—i.e., that portion dealing with the relief due.” White v. Mills,
735 So. 2d 428, 431 (¶15) (Miss. 1999). Therefore, the default judgment and the order
denying the motion to set it aside are not the subject of the plaintiffs’ notice of appeal.
¶20. Nonetheless, the judgment that is properly before this Court on appeal depends
entirely on the default judgment and the circuit court’s order denying the plaintiffs’ motion
to set aside the default judgment. As discussed above, the circuit court held that Smith was
entitled to summary judgment and dismissed the plaintiffs’ complaint against him only
because the court believed that the default judgment had established the “law of the case” on
the issues of negligence and liability. Therefore, in order to determine whether the circuit
court erred by granting summary judgment on the plaintiffs’ claims, it is necessary for this
Court to determine whether the circuit court erred by entering or refusing to set aside the
default judgment on Smith’s Counter-Claim. Thus, of necessity, this Court must review the
propriety of the default judgment and the denial of the motion to set it aside.4
4
See Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997) (holding that an appellate court
has jurisdiction to review a non-appealable ruling if it is “inextricably intertwined” with an
appealable ruling or if review is “necessary to ensure meaningful review” of an appealable
ruling (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51 (1995))).
8
II. The circuit court erred by entering a default judgment against the
plaintiffs. Smith’sCounter-Claim was procedurally improper, and
the plaintiffs had no obligation to file a responsive pleading under
the Rules of Civil Procedure.
¶21. Under Rule 55(a), “the clerk shall enter [a] default” only “[w]hen a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as
provided by [the Mississippi Rules of Civil Procedure] and that fact is made to appear by
affidavit or otherwise.” M.R.C.P. 55(a) (emphasis added). Thus, before a default or a
default judgment may be entered, it must be shown that the party allegedly in default failed
to file a responsive pleading required by the Rules of Civil Procedure or otherwise failed to
defend in some manner required by the Rules of Civil Procedure. The proper interpretation
of the Rules of Civil Procedure is a question of law that we review de novo based on “the
plain and ordinary meanings of the Rules.” Veal v. J.P. Morgan Tr. Co., 955 So. 2d 843, 845
(¶6) (Miss. 2007). A default judgment erroneously entered against a party not in default must
be set aside. Smith v. Everett, 483 So. 2d 325, 327-28 (Miss. 1986); Fairchild v. General
Motors Acceptance Corp., 254 Miss. 261, 266, 179 So. 2d 185, 187-88 (1965); McDaniel v.
Burroughs, 739 So. 2d 461, 464 (¶10) (Miss. Ct. App. 1999) (stating that “the grant or denial
of a 60(b) motion [to set aside a default judgment] is generally within the lower court’s
discretion,” but a default judgment entered against a party who is not “in default” is “void
ab initio” and must be set aside).
¶22. In the present case, we conclude that Robinson was not in default under the Rules of
Civil Procedure because Smith’s stand-aloneCounter-Claimwas procedurallyimproper, and
Robinson had no obligation under the Rules to file a responsive pleading. Our conclusion
9
is based on the plain language of Rules 7, 12, and 13.
¶23. Rule 7(a) provides:
(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains
a cross-claim; a third-party complaint, if a person who is not an original party
is summoned under the provisions of Rule 14; and a third-party answer, if a
third-party complaint is served. No other pleading shall be allowed, except
that the court may order a reply to an answer or a third-party answer.
M.R.C.P. 7(a) (emphasis added). As this Court has explained, “Rule 7 clearly limits parties
to the described type and number of pleadings.” Transfer of Structured Settlement Payment
Rights by Saucier v. Saucier, 207 So. 3d 689, 693 (¶9) (Miss. Ct. App. 2016). A stand-alone
“Counter-Claim” is not permitted because it is not among the pleadings allowed under Rule
7(a). M.R.C.P. 7(a); see Keyes v. Berry, 995 So. 2d 861, 864-65 (¶¶19-20) (Miss. Ct. App.
2008) (affirming by an evenly divided Court).
¶24. Moreover, as the plaintiffs “correctly point out, ‘a ‘counterclaim’ is a claim asserted
against a party opposite in a responsive pleading.’” Keyes, 995 So. 2d at 864 (¶19) (quoting
Jeffrey Jackson, Mississippi Civil Procedure § 5:20 (2008)). Rule 13 provides that a
counterclaim must be asserted in “[a] pleading.” M.R.C.P. 13(a)-(b). As explained above,
a counterclaim is not itself a “pleading.” Rather, Smith “was required to assert his
counterclaim in a responsive pleading, in this case [his] answer.” Keyes, 995 So. 2d at 865
(¶20) (emphasis added).5
5
If a counterclaim could be asserted in a stand-alone document rather than in an
answer, there would be no effective deadline for asserting counterclaims under the Rules of
Civil Procedure. Rule 12(a) provides that “[a] defendant shall serve his answer within thirty
days after the service of the summons and complaint,” M.R.C.P. 12(a) (emphasis added), but
no rule states when a defendant must assert a “counterclaim.” Rule 12(a)’s deadline applies
10
¶25. Finally, Rule 12(a) specifies the circumstances in which a partymust file a responsive
pleading under the Rules of Civil Procedure. In relevant part, Rule 12(a) provides that a
“plaintiffshall serve his reply to a counter-claimin the answer within thirty days after service
of the answer.” M.R.C.P. 12(a) (emphasis added). Thus, a plaintiff is required to file a
“reply to a counter-claim in the answer.” Id. (emphasis added). The Rule does not require
a response to a stand-alone Counter-Claim that is not asserted “in the answer.”6
¶26. Our interpretation of our Rules of Civil Procedure is consistent with federal cases
interpreting the substantially similar provisions of Rules 7, 12, and 13 of the Federal Rules
of Civil Procedure. Federal courts have consistently held that a counterclaim must be
asserted in a responsive pleading (an answer) and that a party cannot file a stand-alone
counterclaim because a “counterclaim” is not among the pleadings permitted by Rule 7 of
the Federal Rules of Civil Procedure.7 We generally consider decisions interpreting the
to counterclaims onlybecause the Rules of Civil Procedure provide that a counterclaimmust
be asserted in the answer.
6 Rule 12(a)’s deadline for filing a reply to a counterclaim—“within thirty days of
service of the answer”—only makes sense if the counterclaim must be asserted in the
answer. Otherwise, a defendant could file a stand-alone counterclaim sometime after filing
its answer and thereby shorten the plaintiff’s time for filing a reply.
7
See, e.g., KAABOOWorks Servs. LLCv. Pilsl, No. 17-CV-02530-CMA-KLM, 2019
WL 1979927, at *4 (D. Colo. May 3, 2019) (“Both compulsory and permissive
counterclaims . . . must be asserted in one of the seven pleadings defined by [Rule] 7(a). In
other words, a counterclaim filed as a standalone document is improper; a counterclaim
incorporated into an answer is proper.”); Nat’l Ass’n of Gov’t Emps. Inc. v. Nat’l Emergency
Med. Servs. Ass’n Inc., 969 F. Supp. 2d 59, 67 (D. Mass. 2013) (“[P]ursuant to [Rules 12
and 13], counterclaims can onlybe asserted in a ‘pleading[,]’” not “as a stand-alone filing.”);
Safety Today Inc. v. Roy, No. 2:12-CV-510, 2013 WL 1282384, at *2 (S.D. Ohio Mar. 27,
2013) (“A counterclaim is not a stand-alone pleading; rather, a counterclaim is to be
included in a pleading.” (quotation marks omitted)); N. Valley Commc’ns LLC v. Qwest
11
Federal Rules of Civil Procedure to be “highly persuasive” because “the Mississippi Rules
of Civil Procedure, with few exceptions, were developed to comport with the Federal Rules
of Civil Procedure.” Fletcher v. Limeco Corp., 996 So. 2d 773, 779 (¶16) (Miss. 2008).
¶27. In summary, based on the plain language of Rules 7, 12, and 13 of the Mississippi
Rules of Civil Procedure, we agree with the plaintiffs that Smith’s Counter-Claim was
procedurally improper8
and that Robinson was under no obligation to file a responsive
pleading. As discussed above, a party is in default only if he “has failed to plead or
otherwise defend as provided by [the Mississippi Rules of Civil Procedure].” M.R.C.P.
Commc’ns Co. LLC, No. CIV. 11-4052-KES, 2012 WL 523685, at *2 (D.S.D. Feb. 16,
2012) (“Federal Rule of Civil Procedure 7(a) exhaustively lists allowable pleadings and
‘counterclaim’ is not listed. . . . Because a counterclaim is not a stand alone pleading, it must
be stated within a pleading.”); Microsoft Corp. v. Ion Techs. Corp., 484 F. Supp. 2d 955,
965 (D. Minn. 2007) (holding that the defendants “improperly asserted their counterclaims”
“in a separate document on the same day that they filed their [a]nswer” because
“[c]ounterclaims . . . must appear in a pleading, and a separate document that contains
counterclaims is not a permissible pleading”); Bernstein v. IDT Corp., 582 F. Supp. 1079,
1089 (D. Del. 1984) (holding that a counterclaim must be asserted in a pleading, not as a
standalone document, and that “Rule 12(a) . . . only requires response to a counterclaim
when the counterclaim is stated in an answer”).
8 We note that this case is distinguishable from the recent case of Gordon v.
Dickerson, No. 2020-CA-00601-COA, 2021 WL 4166102 (Miss. Ct. App. Sept. 14, 2021)
(petition for writ of certiorari pending). Gordon originated in justice court, where a
defendant is not required to file an answer. See RJC 14. The defendant did not file an
answer, an order of eviction was entered against her, and she then appealed to county court.
Under the Uniform Rules of Circuit and County Court, such an appeal proceeds “as if a
complaint and answer had been filed” in justice court. URCCC 5.07. In that specific
context, the lead opinion for this Court determined that the county court did not err by
allowing the defendant-appellant to assert a standalone counterclaim. Gordon, 2021 WL
4166102, at *5 (¶28). Unlike Gordon, this case began as an original civil action in circuit
court in which the defendant was required to—and did—file an answer. We also note that
there was no majority opinion in Gordon. Rather, the judgment of the lower court was
affirmed by a 5-5 vote.
12
55(a). Because Robinson was under no obligation to file a responsive pleading, it necessarily
follows that he was never in default and that no default judgment should have been entered
against him. A default judgment entered against a party who is not “in default” is “void ab
initio” and must be set aside. McDaniel, 739 So. 2d at 464 (¶10). Therefore, the circuit court
erred by denying the plaintiffs’ motion to set aside the default judgment on the CounterClaim.
9
¶28. Because Robinson was not in default, the circuit court had no discretion to decline to
set aside the default judgment. Therefore, we need not address the three-prong test that
governs a court’s discretion to set aside a properly entered default judgment. See BB Buggies
Inc. v. Leon, 150 So. 3d 90, 101 (¶23) (Miss. 2014).
III. The circuit court erred by granting Smith’s motion for summary
judgment and dismissing the plaintiffs’ claims.
¶29. After the circuit court denied the plaintiffs’ motion to set aside the default judgment
entered against Robinson, the court granted Smith’s motion for summary judgment with
respect to the plaintiffs’ claims against him. The circuit court reasoned as follows:
This court finds that the issue of liability as to the cause of the accident giving
9 Although not raised by the plaintiffs, we also note that Smith does not appear to
have complied with the requirement of Rule 55(a) that “[i]f the party against whom
judgment by default is sought has appeared in the action, he (or if appearing by
representative, his representative) shall be served with written notice of the application for
judgment [by default] at least three days prior to the hearing of such application[.]”
M.R.C.P. 55(a). The plaintiffs clearly had “appeared in the action” prior to Smith’s motion
for a default judgment. Nonetheless, Smith apparently obtained a hearing on his motion for
a default judgment the same day he filed it. The application for entry of default, the clerk’s
entry of default, and the motion for a default judgment were all filed on June 22, 2020. The
same day, the judge also signed an order granting a judgment by default as to negligence and
liability.
13
rise to this cause of action was established when no response was filed to the
[C]ounter-[C]laim. By failing to file a response to the [C]ounter-[C]laim,
Robinson admitted that his negligence was the sole proximate cause of the
accident. Based on the law-of-the-case doctrine, the sole cause of the accident
was the negligence of Lionel Robinson. Consequently, neither Robinson nor
Sims are entitled to recover any damages from Smith. Thus, this court finds
that [Smith’s] Motion for Summary Judgment should be granted.
Thus, the circuit court’s order granting summary judgment and dismissing both plaintiffs’
claims against Smith was based entirely on the default judgment.
¶30. Because the circuit court erred by entering a default judgment against Robinson, it
necessarily follows that it erred by relying on that default judgment to grant summary
judgment against both Robinson and Sims. Therefore, we reverse the order granting Smith’s
motion for summary judgment and dismissing the plaintiffs’ claims.10
IV. The denial of the plaintiffs’ motion to dismiss the Counter-Claim
pursuant to the MTCA is not before this Court on Appeal.
¶31. As noted above, the plaintiffs also argue that the circuit court erred by denying their
motion to dismiss the Counter-Claim pursuant to the MTCA. They argue that the CounterClaim fails as a matter of law because Smith failed to serve pre-suit notice of his claim on
10 We also note that the circuit court dismissed both Robinson’s claims and Sims’s
claims even though Robinson was the only party allegedly in default. We see no reason why
Sims’s claims should have been dismissed based on Robinson’s alleged default. See, e.g.,
Lemache v. Tunnel Taxi Mgmt. LLC, 354 F. Supp. 3d 149, 155 (E.D.N.Y. 2019) (holding
that a “liability determination” based on a default judgment “has no collateral estoppel or
law of the case effect on the parties who are actually appearing”); Maersk Inc. v. Neewra
Inc., 687 F. Supp. 2d 300, 334 (S.D.N.Y. 2009) (holding that default judgments entered
against certain defendants did not establish “the law of the case” or entitle the plaintiff to
summary judgment against co-defendants who were not in default); Mrs. Condies SaladCo.
v. Colorado Blue Ribbon Foods LLC, No. 11-CV-02118-KLM, 2012 WL 5354848, at *5
(D. Colo. Oct. 30, 2012) (“The findings and conclusions in a default judgment are not
binding as ‘law of the case’ against other defendants who are not in default.”).
14
the City of Grenada, as required by the MTCA. See Miss. Code Ann. § 11-46-11. However,
Smith argues that this ruling is not properly before this Court on appeal because it was
entered months after the plaintiffs filed their notice of appeal.
¶32. We agree that the order is not properly before us. Aside from the fact that the order
was entered well after the notice of appeal was filed, an order denying a motion to dismiss
is interlocutory and not appealable. Moreover, such an order is not eligible for certification
as “final” under Rule 54(b) because it does not finally decide any claim. See Jourdan River
Estates LLC v. Favre, 278 So. 3d 1135, 1154-55 (¶78) (Miss. 2019) (holding that a trial court
cannot certify a denial of summary judgment under Rule 54(b) because such an order does
not decide a claim). Finally, it is not necessary for us to address this issue in order to review
the rulings that are properly before this Court on appeal. See supra ¶20 & n.4.
¶33. In addition, our holding that Smith’s stand-alone Counter-Claim was procedurally
improper effectively renders moot the order denying the plaintiffs’ motion to dismiss. On
remand, Smith may seek leave of court to amend his answer to assert a procedurally proper
counterclaim. See M.R.C.P. 15(a). If leave is granted, Robinson or the City of Grenada may
assert whatever defenses are available to them under the MTCA. See M.R.C.P. 12.

Outcome: Robinson was not “in default” because he had no obligation under the Rules of Civil
Procedure to file a pleading in response to Smith’s stand-alone Counter-Claim. Therefore, the circuit court erred by entering a default judgment against Robinson, by denying the plaintiffs’ motion to set aside the default judgment, by granting Smith’s motion for summary judgment, and by dismissing the plaintiffs’ claims against Smith. The case is reversed and remanded for further proceedings consistent with this opinion.

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