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655 S.E.2d 528
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
GRADY COLIN KELLEY, II,
AND FRIEDA CAROL KELLEY,
Plaintiffs Below, Appellants
THE CITY OF WILLIAMSON, WEST VIRGINIA,
A MUNICIPAL CORPORATION, AND
MICHAEL BARNES, INDIVIDUALLY AND
IN HIS CAPACITY OF A POLICE OFFICER
EMPLOYED BY THE CITY OF WILLIAMSON,
Defendants Below, Appellees
Appeal from the Circuit Court of Mingo County
The Honorable Roger L. Perry, Special Judge
Case Nos. 02-C-226 and 02-C-227
REVERSED AND REMANDED
Submitted: September 19, 2007
Filed: November 21, 2007
Thomas M. Plymale
Plymale & Maddox, PLLC
Huntington, West Virginia
Counsel for the Appellants
Duane J. Ruggier, II
Katherine MacCallum Nichols
C. Scott Applegate
Pullin, Fowler & Flanagan, PLLC
Charleston, West Virginia
Counsel for the Appellee,
The City of Williamson
David J. Mincer
Vaughn T. Sizemore
Bailey & Wyant, PLLC
Charleston, West Virginia
Counsel for the Appellee,
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS and JUSTICE BENJAMIN dissent and reserve the right to file
SYLLABUS BY THE COURT
1. A circuit court's entry of summary judgment is reviewed de novo
. Syl. Pt.
1, Painter v. Peavy
, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. A motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal
Ins. Co. of New York
, 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. If there is no genuine issue as to any material fact summary judgment
should be granted but such judgment must be denied if there is a genuine issue as to a
material fact. Syl. Pt. 4, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York
, 148 W.Va.
160, 133 S.E.2d 770 (1963).
4. A party who moves for summary judgment has the burden of showing that
there is no genuine issue of material fact and any doubt as to the existence of such issue is
resolved against the movant for such judgment. Syl. Pt. 6, Aetna Cas. & Sur. Co. v. Federal
, 148 W.Va. 160, 133 S.E.2d 770 (1963).
5. Roughly stated, a 'genuine issue' for purposes of West Virginia Rule of
Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not
arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury
to return a verdict for that party. The opposing half of a trialworthy issue is present where
the non-moving party can point to one or more disputed 'material' facts. A material fact is
one that has the capacity to sway the outcome of the litigation under the applicable law.
Syl. Pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995).
6. West Virginia Code § 29-12A-5(b) provides that employees of political
subdivisions are immune from personal tort liability unless '(1) [h]is or her acts or omissions
were manifestly outside the scope of employment or official responsibilities; (2) [h]is or her
acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless
manner; or (3) [l]iability is expressly imposed upon the employee by a provision of this
code.' Syl. Pt. 1, Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317 (1993).
Grady Colin Kelley, II, and Frieda Carol Kelley (hereinafter Appellants or
Mr. Kelley and Mrs. Kelley) appeal from orders of the Circuit Court of Mingo County
granting summary judgment to Appellees City of Williamson and Williamson police officer
Michael Barnes. The Appellants allege that the trial court erred in granting summary
judgment where genuine issues of material fact exist for jury determination in the underlying
civil actions which were initiated by the Appellants as a result of the issuance of a citation
to Mr. Kelley and the arrest of Mrs. Kelley in the early morning hours of July 23, 2000, in
the City of Williamson. Subsequent to thorough review of the record, arguments of counsel,
and applicable precedent, this Court reverses the orders of summary judgment and remands
these matters to the trial court for additional proceedings consistent with this opinion.
I. Factual and Procedural History
On July 23, 2000, Appellant Mr. Kelley closed the bar he operated in
Williamson, West Virginia, called Colie's Club, and he proceeded toward his home in his
automobile, with several other passengers in the vehicle. During the ride home, Mr. Kelley
realized that he had left a cash bag at the bar, and he returned to the bar to retrieve the bag.
Once at the location of the bar, Mr. Kelley went inside and asked his passengers to wait in
the small entrance area between the bar's outer and inner doors. Mr. Kelley retrieved the
cash bag and proceeded toward the front of the bar to leave. He was greeted by Officer
Michael Barnes of the Williamson Police Department. Mr. Kelley contends that Officer
Barnes told Mr. Kelley, I told you I got you. I was going to get you. Mr. Kelley maintains
that animosity had existed between Mr. Kelley and Officer Barnes based upon prior
incidents. (See footnote 1)
As Officer Barnes escorted Mr. Kelley and his companions out of Colie's Club,
Mr. Kelley maintains that Officer Barnes pushed him against the police cruiser. After
Officer John Hall arrived at the scene, Mr. Kelley and the others were taken to the
Williamson Police Department. Mr. Kelley was issued a citation for the violation of ABCC
regulations requiring private clubs to be vacated by 3:30 a.m. on Sunday mornings. See
175-2-4.7 and 175-2-4.8. (See footnote 2)
To prove the allegations asserted against Mr. Kelley, it would
have been necessary for Officer Barnes to prove that Mr. Kelley was in the bar after 3:30
a.m. That essential fact is in dispute. The criminal citation filed on July 23, 2000, indicates
that the offense occurred at 4:30 a.m., but the statement Officer Barnes made in the criminal
complaint sworn before Magistrate Greene on January 22, 2001, indicates that it occurred
after the hour of 4:00 a.m. According to Mr. Kelley, he did not know precisely what time
he was retrieving the cash bag from the bar, but he testified that it was close to 3:30 a.m. (See footnote 3)
Mr. Kelley telephoned his family at approximately 4:00 a.m. to inform them that he was in
custody at the police station.
Upon learning that her son was in custody, Appellant Mrs. Kelley and her
husband, Colin Kelley, Sr., proceeded to the Williamson Police Department. Mrs. Kelley
testified that, upon arriving at the police station, she informed Officer Barnes that she was
concerned for the safety of her son and nephew, one of the passengers in Mr. Kelley's
automobile. All parties agree that Officer Barnes asked Mrs. Kelley to leave the police
station, alleging that she was behaving in a disruptive manner. Mrs. Kelley informed the
officers that she refused to leave without her son and nephew. Mrs. Kelley was eventually
handcuffed and arrested for disorderly conduct and willful disruption of a governmental
process. (See footnote 4)
Mrs. Kelley denies allegations that she interfered with the performance of the
officers' duties, behaved in a rude and aggressive manner, used profanity, and employed
racial slurs toward Officer Barnes. (See footnote 5)
Mr. Kelley and Mrs. Kelley filed separate lawsuits against Officer Barnes and
the City of Williamson. (See footnote 6)
Mr. Kelley's complaint asserted four causes of action: the tort of
outrage; battery; false swearing by Officer Barnes in the criminal complaint; and negligence
by the City in hiring and supervising Officer Barnes. Mrs. Kelley's complaint asserted four
causes of action: the tort of outrage; intentional infliction of emotional distress; battery; and
false swearing by Officer Barnes. The two actions were consolidated by order dated April
17, 2005, but the trials were scheduled to be bifurcated.
Upon motions for summary judgment filed by Officer Barnes and the City, the
trial court found that the arrest of Mrs. Kelley and the citation issued to Mr. Kelley were
lawful and proper. (See footnote 7)
The trial court granted summary judgment to Officer Barnes on the Mr.
Kelley action by order entered January 10, 2006; summary judgment to Officer Barnes on
the Mrs. Kelley action by order entered March 17, 2006; summary judgment to the City on
the Mrs. Kelley action by order entered April 10, 2006; and summary judgment to the City
on the Mr. Kelley action by order entered April 21, 2006. This Appellants assert that the trial
court erred in granting summary judgment to the City and Officer Barnes, contending that
genuine issues of material fact exist which should preclude the granting of summary
II. Standard of Review
Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary
judgment is required when the record reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law. W.Va.
R. Civ. Pro. 56(c); see also Hager v. Marshall, 202 W.Va. 577, 505 S.E.2d 640 (1998). In
examining a trial court's entry of summary judgment, this Court applies a de novo standard
of review. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (A
circuit court's entry of summary judgment is reviewed de novo).
This Court has repeatedly stated that [a] motion for summary judgment should
be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry
concerning the facts is not desirable to clarify the application of the law. Syl. Pt. 3, Aetna
Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). In
syllabus point four of Aetna Casualty, this Court explained: If there is no genuine issue as
to any material fact summary judgment should be granted but such judgment must be denied
if there is a genuine issue as to a material fact.
In determining whether a genuine issue of material fact exists, this Court
construes the facts in the light most favorable to the party against whom summary judgment
was granted. Alpine Prop. Owners Assn. v. Mountaintop Dev. Co.
, 179 W.Va. 12, 365
S.E.2d 57 (1987). Syllabus point six of Aetna Casualty
also explains: A party who moves
for summary judgment has the burden of showing that there is no genuine issue of material
fact and any doubt as to the existence of such issue is resolved against the movant for such
judgment. (See footnote 8)
With regard to determination of a summary judgment motion, this Court has
stated that [t]he essence of the inquiry the court must make is 'whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.' Williams v. Precision Coil, Inc
W.Va. 52, 61, 459 S.E.2d 329, 338 (1995) (citations omitted). Particularly in complex cases
. . . where issues involving motive and intent are present, summary judgment should not be
utilized as a method of resolution. See Masinter v. WEBCO Co., 164 W.Va. 241, 243, 262
S.E.2d 433, 436 (1980).
With these standards as guidance, we examine the assertions of the Appellants
in this matter.
The Appellants contend that the trial court erred in granting summary judgment
to Officer Barnes and the City on the claims asserted by the Appellants. A pivotal
foundational issue was raised by Officer Barnes and must be addressed prior to further
discussion. Officer Barnes contends that the provisions of the West Virginia Governmental
Tort Claims and Insurance Reform Act govern this matter. Specifically, with regard to
Office Barnes, West Virginia Code § 29-12A-5(b) (1986) (Repl. Vol. 2004) provides as
An employee of a political subdivision is immune from
liability unless one of the following applies:
(1) His or her acts or omissions were manifestly outside
the scope of employment or official responsibilities;
(2) His or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by
a provision of this code.
W.Va. Code § 29-12A-5(b) (emphasis supplied). Thus, Officer Barnes, as an employee of
the City, cannot be held liable for his alleged actions in this case unless one of the specific
conditions has been satisfied.
These statutory pronouncements were reiterated and examined by this Court
in Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317 (1993). Syllabus point one of Beckley provides a restatement of the statutory rule, as follows:
West Virginia Code § 29-12A-5(b) provides that
employees of political subdivisions are immune from personal
tort liability unless (1) [h]is or her acts or omissions were
manifestly outside the scope of employment or official
responsibilities; (2) [h]is or her acts or omissions were with
malicious purpose, in bad faith, or in a wanton or reckless
manner; or (3) [l]iability is expressly imposed upon the
employee by a provision of this code.
See also Goines v. James, 189 W.Va. 634, 637, 433 S.E.2d 572,
575 (1993), cert. denied, 510 U.S. 1057 (1994).
With respect to the immunity provisions potentially applicable to the
Appellants' claims against the City, West Virginia Code § 29-12A-4(b)(1) (1986) (Repl. Vol.
2004) provides, in pertinent part, as follows:
Except as provided in subsection (c) of this section, a
political subdivision is not liable in damages in a civil action for
injury, death, or loss to persons or property allegedly caused by
any act or omission of the political subdivision or an employee
of the political subdivision in connection with a governmental
or proprietary function. . . .
W. Va. Code § 29-12A-4(b)(1). However, potential liability is referenced in West Virginia
Code § 29-12A-4(c)(2), as follows: Political subdivisions are liable for injury, death, or loss
to persons or property caused by the negligent performance of acts by their employees while
acting within the scope of employment. W.Va. Code § 29-12A-4(c)(2) (emphasis supplied).
If, for example, a jury were to conclude that Officer Barnes acted negligently, within the
scope of his employment, in handling matters related to Mr. Kelley or Mrs. Kelley, the City
would not enjoy immunity and would be liable for Officers Barnes' acts of negligence.
The methodology for addressing these threshold immunity questions was
provided by this Court in Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649
(1996). In Hutchinson, this Court grappled with the question of when the immunity
determination is to be made and whether the trier of fact must determine underlying factual
conflicts prior to the trial court's determination of the immunity applicability. This Court
explained as follows in Hutchinson:
Though it is the province of the jury to determine
disputed predicate facts, the question of whether the
constitutional or statutory right was clearly established is one of
law for the court. In this connection, it is the jury, not the judge,
who must decide the disputed foundational or historical
facts that underlie the immunity determination, but it is solely
the prerogative of the court to make the ultimate legal
198 W.Va. at 149, 479 S.E.2d at 659. The Hutchinson Court also explained that the
immunity issue should be heard and resolved prior to any trial because, if the claim of
immunity is proper and valid, the very thing from which the defendant is immune _ a trial
_ will absent a pretrial ruling occur and cannot be remedied by a later appeal. Id. at 149,
n. 13, 479 S.E.2d at 659, n. 13.
The Minnesota court thoroughly examined this conundrum in Baker v. Chaplin, 517 N.W.2d 911 (1994), cert. denied, 513 U.S. 1077 (1995), and observed that even
discovery should ordinarily not be allowed until this threshold immunity question is
resolved. 517 N.W.2d at 914, n. 3; see also Siegert v. Gilley, 500 U.S. 226, 231 (1991). In Baker, the court recognized that [a]lthough qualified immunity is 'in part an entitlement not
to be forced to litigate,' when the law is clearly established, immunity from trial is
appropriate only when the plaintiff has not demonstrated any genuine issues of material fact
which must be resolved to determine whether the defendant's actions were reasonable under
clearly established law. Id. at 916 (footnote omitted) (emphasis provided). In Baker,
additional facts and circumstances were in dispute, and the court stated that [t]his court
cannot decide as a matter of law whether the officer's actions in this case were reasonable
without a finding of fact as to what those actions and the surrounding facts and circumstances
were. Id. at 917.
The Baker court held that [b]ecause applying the law in this case requires the
establishment of predicate facts, we remand to the district court for trial. Id.
Upon determination of the underlying factual issues by
the finder of fact, the trial court may make another legal determination regarding the issue of the reasonableness of
Chaplin's actions, and may find that Chaplin does enjoy
qualified immunity from liability. Our holding is limited to our
conclusion that Baker has submitted sufficient evidence to
demonstrate genuine issues of material fact in dispute and
evidence to support factual findings that would place the
conduct at issue outside the protection of qualified immunity.
Id. at 917, n. 10.
Similarly, in Brescher v. Pirez, 696 So.2d 370 (Fla. App. 1997), the Florida
court observed that [w]here the facts upon which the determination of qualified immunity
hinges are in dispute, then those facts may require a jury determination. 696 So.2d at 374; see also Butler v. City of Norman, 992 F.2d 1053 (10th Cir.1993) (holding that factual issues
precluded officers' summary judgment where plaintiff's deposition stated that officers beat
him with flashlight when his hands were handcuffed behind his back).
In examining the factual findings that must underlie the immunity
determination in the present case, this Court remains mindful that the evidence must be
viewed in a light most favorable to the Appellants and that summary judgment should be
denied where varying inferences could be drawn from the evidence. Officer Barnes claims
entitlement to qualified immunity based upon his assertion that his citation to Mr. Kelley, his
role in Mrs. Kelley's arrest, and the filing of criminal complaints did not violate any clearly
articulated statutes, laws, or regulations. Officer Barnes further contends that he did not act
in bad faith, maliciously, or wantonly and recklessly toward the Appellants.
Examining the facts as presented in the record, Mrs. Kelley was charged with
willful disruption of a governmental process, obstructing an officer, and disorderly conduct
when she appeared at the Williamson police station after being informed by her son that he
had been detained. In granting summary judgment for Officer Barnes on Mrs. Kelley's
claim, the trial court indicated that no dispute exists as to the facts material to the
adjudication of the sole issue of the case, whether the arrest . . . was lawful. A complete
reading of the record would suggest otherwise. A jury could conclude that Officer Barnes
did not have a legitimate basis for arresting Mrs. Kelley for her behavior at the police station.
The jury could possibly find that Officer Barnes' involvement in the charges of willful
disruption of a governmental process and disorderly conduct were in bad faith or with
malicious purpose. The evidence, when viewed in a light most favorable to Mrs. Kelley,
would support a jury finding that she was simply a concerned mother going to the police
station where her son was being processed for violation of an ABCC regulation. Mrs. Kelley
testified that she was aware of the history of animosity between her son and Officer Barnes
and that she was particularly distressed by her knowledge of Officer Barnes' reputation for
violence. According to Mrs. Kelley's version of the facts, the allegations of unruly behavior,
disruption, racial slurs, and profane language are greatly exaggerated. Other than admitting
that she used an expletive to reference a bodily function that would occur if the officers
would not permit her to use a restroom, Mrs. Kelley specifically contests essentially every
allegation against her. She denies any violent or boisterous action prior to her arrest.
With regard to Mr. Kelley, and viewing the evidence in a light most favorable
to the Appellants, a jury could find that Officer Barnes had improper motives underlying his
decision to arrive at Colie's Club at approximately the time it should have been vacated and
in writing a citation to Mr. Kelley. A jury could also conclude that Officer Barnes used
excessive force in dealing with an alleged violation of ABCC regulations or that the
detention of Mr. Kelley and the citations against him were unlawful based upon the
conflicting evidence regarding the precise time at which Officer Barnes observed Mr. Kelley
in Colie's Club. These factual discrepancies and conflicts in testimony create genuine issues
of material fact ripe for jury resolution. This is precisely the situation in which summary
judgment should not be utilized.
In Mallamo v. Town of Rivesville, 197 W.Va. 616, 477 S.E.2d 525 (1996), for
instance, this Court analyzed claims of immunity regarding a police chief and a municipality
and ultimately held that summary judgment was precluded by the existence of a question of
material fact regarding whether the police chief had conspired to conceal the truth
surrounding the shooting of the plaintiff and whether such action was outside the scope of
his employment or was with malicious purpose and in bad faith. 197 W.Va. at 623, 477
S.E.2d at 532. This Court found that the chief would not be immune from liability if a
conspiracy to conceal the facts surrounding the shooting incident were proven since such
concealment would be outside the scope of his employment, with malicious purpose, and in
bad faith. Id.
The Mallamo Court also resolved the issue of the municipality's immunity by
citing West Virginia Code § 29-12A-4(c)(2), as quoted above. This Court held even if
plaintiff were able to establish that [the chief] participated in a conspiracy to cover up the
shooting incident, a plain reading of W.Va. Code, 29-12A-4(c)(2)  would,
nevertheless, not impose liability on the Town of Rivesville. Id. at 624, 477 S.E.2d at 533.
The Court observed that West Virginia Code § 29-12A-4(c)(2)  provides for political
subdivisions liability for injury caused by the negligent performance of acts by their
employees while acting within the scope of employment. Id. In that conspiracy is an
intentional act, not a negligent one, the Town of Rivesville would not be liable for any
intentional malfeasance on the part of [the chief]. Id.
The role of this Court is to review this matter de novo
for the purpose of
determining whether there are any genuine issues of material fact precluding summary
judgment. This Court finds that genuine issues of material fact do exist in the present case,
and summary judgment was not an appropriate method to dispose of the issues. Before any
final resolution can be reached in this case, a jury must determine whether Officer Barnes
acted in a negligent manner, thus subjecting the City to liability for his actions under West
Virginia Code § 29-12A-4(c)(2), or if his acts were in bad faith, malicious, or wanton and
reckless, thus subjecting Officer Barnes to liability under West Virginia Code § 29-12A-5(b).
Based upon the foregoing evaluation, this Court reverses the lower court's orders granting
summary judgment and remands this matter for further proceedings.
Reversed and Remanded.
The Appellants contend that Officer Barnes' brother had allegedly shot at Mr.
Kelley, an act for which Officer Barnes' brother was convicted on wanton endangerment
charges. The Appellants also assert that Mr. Kelley had removed Officer Barnes from
Colie's Club due to Officer Barnes' alleged intoxication and aggressive behavior. The
Appellants contend that Officer Barnes had threatened to gain retribution against Mr. Kelley.
Officer Barnes also allegedly had maintained a romantic relationship with Ms. Reva Ruble,
owner of a rival bar, and Officer Barnes had allegedly made statements about his financial
interest in Ms. Ruble's bar. Mr. Kelley also claimed that Officer Barnes had routinely parked
his police cruiser outside Colie's Club in an effort to damage Mr. Kelley's business and
The regulations require that all clubs shall be cleared of all persons thirty
minutes after the sale of alcohol has expired, which in this instance would have been 3:30
a.m. Mr. Kelley was also issued a citation pursuant to West Virginia Code § 60-7-12(a)(11)
(1996) (Repl. Vol. 2005), which provides that it is illegal for a licensee of a private club to
[v]iolate any reasonable rule of the Commissioner.
The testimony regarding Mr. Kelley's recollection of the time proceeded as
Q. Okay. Would that have been after 3:30? [Going back to
retrieve the money bag]
A. It was probably - yeah, it was close because I close a few
minutes early, I try to close a few minutes early. . . .
West Virginia Code § 61-6-1b(a) (2002) (Repl. Vol. 2005) provides, in
pertinent part, as follows:
Any person who, in a public place, any office or office
building of the state of West Virginia, or in the state capitol
complex, or on any other property owned, leased, occupied or
controlled by the state of West Virginia, a mobile home park, a
public parking area, a common area of an apartment building or
dormitory, or a common area of a privately owned commercial
shopping center, mall or other group of commercial retail
establishments, disturbs the peace of others by violent, profane,
indecent or boisterous conduct or language or by the making of
unreasonably loud noise that is intended to cause annoyance or
alarm to another person, and who persists in such conduct after
being requested to desist by a law-enforcement officer acting in
his lawful capacity, is guilty of disorderly conduct, a
misdemeanor. . . .
West Virginia Code § 61-6-19 (2002) (Repl. Vol. 2005) provides: [i]f any person willfully
interrupts or molests the orderly and peaceful process of any department, division, agency
or branch of state government or of its political subdivisions, he or she is guilty of a
misdemeanor. . . .
Officer Barnes contends that Mrs. Kelley used derogatory language
concerning his African American race. Officer Hall's testimony supports that of Officer
Robin Maynard, Doug Ward, and Donald Wilkerson, passengers in Mr.
Kelley's vehicle, also filed suit against Officer Barnes and the City, and those cases were
resolved through settlement.
Prior to the summary judgment motions, the outrageous conduct, battery, and
false swearing charges against the City were dismissed, leaving only the negligence in
supervision charge to be resolved by summary judgment.
Syllabus point five of Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995),
defines genuine issue in the following manner:
Roughly stated, a genuine issue for purposes of West
Virginia Rule of Civil Procedure 56(c) is simply one half of a
trialworthy issue, and a genuine issue does not arise unless there
is sufficient evidence favoring the non-moving party for a
reasonable jury to return a verdict for that party. The opposing
half of a trialworthy issue is present where the non-moving
party can point to one or more disputed material facts. A
material fact is one that has the capacity to sway the outcome of
the litigation under the applicable law.