author: JOHNSTONE, Justice.

text:
    AUBURN UNIVERSITY et al. v. The ADVERTISER COMPANY d/b/a The Montgomery Advertiser, et al.
    1002096.
    Supreme Court of Alabama.
    May 23, 2003.

      David R. Boyd and Dorman Walker of Balch & Bingham, LLP, Montgomery; Lee F. Armstrong, gen. counsel, Auburn University; and Phillip E. Adams, Jr., of Walker, Hill, Adams, Umbach, Meadows & Walton, Opelika, for appellants.
    Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.
    J.R. Brooks and Taylor P. Brooks of Lanier Ford Shaver & Payne, P.C., Huntsville, for amici curiae Alabama Association of School Boards, Alabama League of Municipalities, and the University of North Alabama, in support of the appellants.
    Mary E. Pons, Montgomery, for amicus curiae Association of County Commissions of Alabama, in support of the appellants.
    C. Glenn Powell, gen. counsel, and Hattie E. Kaufman, counsel, Tuscaloosa, for amicus curiae Board of Trustees of the University of Alabama, in support of the appellants.
   JOHNSTONE, Justice.

I. Introduction

Defendants Auburn University and the members of the Auburn University Board of Trustees (“the Board”) appeal the summary judgment and the permanent injunction entered in favor of plaintiffs The Advertiser Company d/b/a The Montgomery Advertiser, and seven other newspapers (hereinafter collectively called “the newspapers”) on their claims for injunctive and declaratory relief to redress alleged violations of the Sunshine Law, § 13A-14-2, Ala.Code 1975. We affirm in part, reverse in part, and remand with instructions.

II. Procedural posture

On February 28, 2001, the newspapers filed a declaratory judgment action for a declaration that Auburn University had violated the Sunshine Law. They also sought an injunction prohibiting Auburn University from violating the Sunshine Law. Specifically, the newspapers sought to prevent (1) meetings and pollings of trustees by telephone, E-mail, and mail, (2) trustees’ gathering in groups of three or more to discuss Auburn University business, and (3) meetings of trustees in executive session. The newspapers sought to require Auburn University to disclose (1) the date, time, and place of any meeting of three or more trustees and (2) the date, time, issues addressed, and members “polled via telephone, e-mail, or regular mail” on any occasion within the two years next preceding the filing of the action by the newspapers.

On April 4, 2001, Auburn University filed a declaratory judgment action against the newspapers and asked the trial court to declare the Sunshine Law, § 13A-14-2, Ala.Code 1975, inapplicable to meetings of trastees unless a quorum of the Board “gathers to discuss the business of Auburn University.” On April 24, 2001, the newspapers amended their complaint by adding each individual trustee in his or her official capacity as an additional defendant. On April 25, 2001, “[b]y agreement of the .parties,” the trial court consolidated the two actions.

On May 9, 2001, the newspapers moved for a preliminary injunction

“enjoining [the trustees] from conducting committee meetings during the pen-dency of this suit without compliance with the Alabama Sunshine Law, including but not limited to, requirements to provide reasonable notice to the public of said meetings -and to refrain from meeting in executive session in committee meetings unless their discussions fall within recognized exceptions to the Alabama Sunshine Law.”

On June 11, 2001, the parties stipulated to the entry of a preliminary injunction. The stipulation expressly stated that Auburn University and the trastees did not concede the correctness of the newspapers’ interpretation of the Sunshine ■ Law. On June 12, 2001, the trial court entered a preliminary injunction, in pertinent part:

“1. Said Defendants are hereby enjoined and restrained from conducting any meeting of any standing committee of the Auburn University Board of Trustees unless such meeting is open to the public and has been preceded by reasonable advance public notice. See Slawson v. Alabama Forestry Commission, 631 So.2d 953 (Ala.1994). Exceptions to the Open Meetings Law, Ala.Code § 13A-14-2, that allow for executive sessions shall also be exceptions to this injunction.
“2. This preliminary injunction shall remain in effect until entry by the Court of its final judgment(s) in these consolidated actions, and shall automatically expire and have no further force and effect at that time.”

In their responses to requests for admissions, Auburn University and the trustees admitted to the following 16 violations of the Sunshine Law:

1. On April 9, 1999, the full Board met in secret session to discuss a possible merger with Wallace State Community College;
2. On June 7, 1999, the full Board met in secret session to discuss the organizational structure of the Board;
3. On August 20, 1999, the full Board met in secret session to discuss who could use the seats in the trustees’ football suite;
4. On September 22, 1999, the full Board met in secret session to discuss the then pending lottery legislation;
5. On November 4, 1999, without publishing notice, a quorum of the Board met as the Property and Facilities Committee;
6. On November 4, 1999, without publishing notice, a quorum of the Board met as the Investment Committee;
7. On November 5, 1999, the full Board met in secret session to discuss a potential campaign fund drive;
8. On November 9, 1999, without publishing notice, ,a quorum of the Board met as the AUM Committee;
9. On January 13, 2000, without publishing notice, a quorum of the Board met as the AUM Committee and the Athletic Committee;
10. On February 6, 2000, without publishing notice, a quorum- of the Board met as the-Investment Committee;
11. On March 1, 2000, without publishing notice, a quorum of the Board met as the Property and Facilities Committee;
12. On May 16, 2000, without publishing notice, a quorum of the Board met as the Property and Facilities Committee;
13. On May 25, 2000, without publishing notice, a quorum of the Board met as the Budget Committee;
14. On August 2, 2000, without publishing notice, a quorum of the Board met as the Property and Facilities, Budget, and AUM Committees;
15. On November 9, 2000, without publishing notice, a quorum of the Board met as the AUM, Investment, and Property and Facilities Committees; and
16. On December 2, 2000, without publishing notice, a quorum of the Board met in Atlanta before the Southeastern Conference championship game.

Auburn University and the trustees also admitted that the Board maintained a policy requiring that the Board meet in executive session to discuss awarding an honorary degree to an individual or to discuss naming a building after an individual. They admitted that the Board had met in executive session to address complaints about an Auburn University administrator by an alumni contributor. They further admitted that the Board maintained a policy of meeting in executive session with its attorney when the Board believed it was discussing matters protected by the attorney-client privilege regardless of whether litigation was pending.

On July 30, 2001, the newspapers moved for a summary judgment on the ground that Auburn University and the trustees had violated the Sunshine Law on 39 occasions from April 9, 1999 through February 14, 2001. Auburn University and the trustees also moved for a summary judgment on three grounds: (1) the statute of limitations barred any claims for conduct occurring before February 28, 2000; (2) the Sunshine Law does not restrict meetings of fewer trustees than a quorum; and (3) the newspapers had not submitted substantial evidence that a quorum of trustees was present at any meeting challenged by the newspapers.

The evidentiary materials in support of or in opposition to the cross motions for summary judgment were all written. No evidence was ore tenus. The materials included portions of deposition testimony. After a hearing, on August 15, 2001 the trial court entered the following order:

“1. There are no genuine issues of material fact in dispute.
“2. The Defendants ... as members of the Board of Trustees of Auburn University have violated the provisions of Section 13A-U-2[, Ala.Code 1975,] by:
“(a) Meeting in secret as a Board, and in Committees, without providing reasonable public notice of the time, date and location of said meetings; and
“(b) Meeting in executive sessions to discuss ‘good name and character’ of individuals and/or to discuss matters with attorneys which exceed permissible limits of the exceptions allowed by the Alabama Sunshine Law.
“This Opinion answers the request for Declaratory Judgment in Case # 2 [the case filed by Auburn University].
“IT IS, THEREFORE, ORDERED BY THE COURT that a permanent injunction is issued against the Defendants ... in their capacities as the Auburn University Board of Trustees enjoining them from:
“(1) Meeting in groups of three or more, either as a Board or in Committee, for the purpose of discussing the business of Auburn University without providing reasonable public notice of the time, date, and place of such meeting; and
“(2) Meeting in groups of three or more, either as a Board or in Committee, in executive session unless for the purpose of discussing the ‘good name and character’ of an individual as that phrase is defined by the Alabama Supreme Court in Miglionico v. Birmingham News[, 378 So.2d 677 (Ala.1979) ]; and
“(3) Meeting in groups of three or more, either as a Board or in Committee, in executive session unless for the purpose of receiving legal advice from the attorney for the Board of Trustees concerning ‘pending litigation’ as that phrase is defined by the Alabama Supreme Court in [Dunn v. Alabama State University Board of Trustees, 628 So.2d 519 (Ala.1993), overruled on other grounds, Watkins v. Board of Trustees of Alabama State University, 703 So.2d 335 (Ala.1997) ];
“It is further Ordered by the Court that the Motion for Summary Judgment filed by the Plaintiffs in Case No. CV 01-125 is GRANTED.” (Capitalization original; emphasis added.)

III. Undisputed facts

Auburn University is a “body corporate” under the control of a board of trustees. § 16-48-1, Ala.Code 1975. Before February 20, 2001, the Board was composed of 12 trustees. Amendment 161, Alabama Constitution of 1901. Six trustees constituted a quorum. § 16-48-8, Ala.Code 1975. The trustees organized themselves into various standing committees. Each of the various standing committees was composed of five trustees. However, any trustee could attend any standing committee meeting. Three members of a standing committee constituted a quorum for that committee. While a quorum of a committee was empowered to make recommendations to the Board, most committees required a consensus to recommend a proposal to the Board. Most standing committees did not vote on proposals. Except for the “Property and Facilities Committee” and for the “Athletic Committee,” no standing committee was authorized to take any action on behalf of the Board. The standing committees did not publish notice of their scheduled meetings. Additionally, on occasion, three or more trustees, but fewer than a quorum of the Board, met on an ad hoc basis to discuss Auburn University business.

Amendment 670, Alabama Constitution of 1901, ratified December 13, 2000, increased the membership of the Board to 14 trustees. On January 6, 2001, six trustees met as the Athletic Committee to discuss the “Athletics Foundation.” On February 20, 2001, the Alabama Senate confirmed two additional at-large trustees for membership on the Board. Ever since February 20, 2001, eight trustees have constituted a quorum. Amendment 670. On June 4, 2001, the Board amended its bylaws to increase the membership of each standing committee to six trustees. On July 23, 2001, the Board amended its bylaws to require “[e]ach standing or special committee [to] provide reasonable prior notice of scheduled meetings and [to] prepare and maintain minutes of its meeting except for meetings of the Executive Committee in Executive Session.” Further, section 4.8 of the bylaws provides:

“All matters considered by standing or special committees shall be reported to the Board with an advisory recommendation for action by the Board. The report shall include a summary of committee members’ comments on the matters reviewed and suggestions for further administrative action.”

TV. Issues

On appeal, Auburn University and the individual trustees raise four issues: (1) whether the one-year misdemeanor statute of limitations governs civil actions for violations of the Sunshine Law; (2) whether the Sunshine Law restricts meetings of fewer trustees than a quorum of a committee or of the Board; (3) whether the Board violated the Sunshine Law when a quorum of trustees met “in executive session to discuss whether to name a building or award an honorary degree to a person, and review the person’s ‘personal traits’ ”; and (4) whether the attorney-client privilege exception to the Sunshine Law established in Dunn v. Alabama State University Board of Trustees, 628 So.2d 519 (Ala.1993), ovetruled on other grounds, Watkins v. Board of Trustees of Alabama State University, 703 So.2d 335 (Ala.1997), includes meetings of the Board to discuss litigation threatened but not yet filed or to obtain legal advice about the legal ramifications and consequences of a specific proposal.

V. Standard of revieiu

“Appellate review of a trial court’s ruling on a motion for summary judgment submitted on exhibits and written evidentiary materials is de novo, with no deference to the decision by the trial court.” Ex parte Breitsprecher, 772 So.2d 1125, 1129 (Ala.2000). See also Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747 (Ala.2002). “Legal conclusions are never accorded a presumption of correctness on appellate review.” Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002).

“To grant a motion for a summary judgment, the court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. If the party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact.”

Bank of Brewton, Inc., 827 So.2d at 752 (citations omitted). “The appellate court will accept the tendencies of the evidence most favorable to the nonmoving party and will resolve all reasonable doubts in favor of the nonmoving party.” Ex parte Breitsprecher, 772 So.2d at 1129.

“The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So.2d 719 (Ala.1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992).”

Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996).

VI. Sunshine Law

The Sunshine Law, § 13A-14-2, provides:

“(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: Alabama Public Service Commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.
“(b) Any person or persons violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than $10.00 nor more than $500.00. Any person who remains in attendance upon any meeting of any of the above named boards or bodies which is being held in secret or executive session shall be deemed guilty of violating the provisions of this section.” (Emphasis added.)

In Advertiser Co. v. Wallis, 493 So.2d 1365 (Ala.1986), this Court defined the entities governed by the Sunshine Law:

“ ‘commission: a group of persons directed to perform some duty or execute some trust: a body of commissioners; a government agency having administrative, legislative, or judicial powers.’
‘board: a number of persons appointed or elected to sit in council for the management or investigation of a public or private business, trust, or other organization or institution.’
“ ‘body: a group or number of persons or things: as ... a group of individuals united by common ties or organized for some purpose.’
“Thus, these words all denote a group of individuals acting together to perform some purpose. We think significant also the phrase found in the definition of ‘board,’ that the persons ‘sit in council.’ As we shall set forth more fully in the following discussion, we find that the entities to which the Sunshine Law applies are only those governed by a group of individuals who sit as a deliberative body to set policy regarding the public matters with which the entity is entrusted. Indeed, it is meetings at which this group deliberation and decision making take place that must be open to the public.”

493 So.2d at 1368-69 (quoting Webster’s Third New International Dictionary of the English Language (Unabridged) (1971); emphasis added). See also Hargett v. Franklin County Bd. of Educ., 374 So.2d 1352 (Ala.1979), and Board of Educ. of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941).

VII. Limitation period for violations of the Sunshine Law

Auburn University and the trustees argue that, because § 13A-14-2(b) makes a violation of the Sunshine Law a misdemeanor, some of the claims in the action filed by the newspapers are barred by the 12-month limitation period of § 15-3-2, Ala.Code 1975, which requires a misdemeanor charge to be filed “within 12 months after the commission of the offense.”

The newspapers argue that either § 6-2-33(3), AIa.Code 1975, which provides a ten-year limitation period for actions for malfeasance or misfeasance in office or § 6-2-38(Z), Ala.Code 1975, which provides a two-year limitation period for “actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in” any other subsection of this Code section.

Section 6-2-33 provides, in pertinent part:

“The following actions must be commenced within 10 years:
“(3) Motions and other actions brought by or on behalf of the State of Alabama, a county, a municipality, or another political subdivision of the state against sheriffs, coroners, constables and other public officers for nonfea-sance, misfeasance, or malfeasance in office.”

Section 6-2-38(Z) provides:

“(i) All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”

Because the action filed by the newspapers is a civil action and not a criminal action, the 12-month limitation period of § 15-3-2 for filing misdemeanor charges does not apply. Similarly, because § 6-2-33(3) provides a ten-year limitation period for “actions brought by or on behalf of the State of Alabama, a county, a municipality, or another political subdivision,” and because the newspapers did not bring their action on behalf of the State of Alabama, § 6-2-33(3) is inapplicable.

Because the Code does not specify a limitation period for a civil action to enjoin a violation of the Sunshine Law in particular, the residuary catchall § 6-2-38(i) governs such an action. Because the newspapers filed their action on February 28, 2001, within two years of the first alleged violation of the Sunshine Law on April 9, 1999, no claim within the action is barred.

VIII. Applicability of the Sunshine Law to meetings of fewer than a quorum

We next address whether the Sunshine Law applies to a meeting of fewer than a quorum.

‘The attendance of a quorum is a condition precedent to everything. Until then there is an absolute incapacity to consider or act in any way upon any matter. When the body is so legally convened and constituted, it has power to consider what is within its jurisdiction and authority, and to declare the existence of facts other than the fact of its own existence. Until it comes into existence, it cannot proceed, nor make any record of its proceedings. It has no authority to make a record showing anything. Less than a quorum are without power to act or bind anybody in any manner. Their action, being absolutely void, may be ignored or attacked in any proceeding. The record of a legally constituted tribunal is aided and upheld by a presumption in favor of regularity. Surely, there can be no presumption in favor of a record made by persons who have no shadow of authority to act.’ ”

Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 160, 131 So. 14, 18 (1930) (quoting City of Benwood v. Wheeling Ry., 53 W.Va. 465, 476, 44 S.E. 271, 276 (1903); emphasis added). Accord Ex parte Atkinson, 493 So.2d 991, 992 (Ala.1986) (“In order to conduct business, a quorum of the Board must be present.”).

Thus, the Board can legally act to set policy regarding Auburn University only with the presence of a quorum of trustees. Amendment 670, Penton, supra, Wallis, supra, and Ex parte Atkinson, supra. Accordingly, fewer than a quorum of the Board meeting together do not constitute the Board acting as “as a deliberative body to set policy regarding” Auburn University. Wallis, 493 So.2d at 1369. Thus, the Sunshine Law does not apply to a meeting of fewer trustees than a quorum. See Amendment 670, Penton, supra, and Ex parte Atkinson, supra. Accord Graham County Elec. Coop., Inc. v. Town of Safford, 95 Ariz. 174, 388 P.2d 169 (1963); Adler v. City Council of Culver City, 184 Cal.App.2d 763, 7 Cal.Rptr. 805 (1960); Turk v. Richard, 47 So.2d 543 (Fla.1950); Daily Gazette Co. v. North Colonie Bd. of Educ., 412 N.Y.S.2d 494, 67 A.D.2d 803 (N.Y.Sup.Ct.1979); Orange County Publ’ns v. Council of Newburgh, 401 N.Y.S.2d 84, 60 A.D.2d 409 (N.Y.Sup.Ct.1978); State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 398 N.W.2d 154 (1987). See Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968).

Although the various standing committees of the Board met to consider proposals and to make recommendations, the standing committees, with the exceptions of the Property and Facilities Committee and the Athletic Committee, could not and did not take any action on behalf of the Board. Thus, but for the two exceptions, none of the standing committees met “as a deliberative body to set policy regarding the public matters with which the [Board] is entrusted” Wallis, 493 So.2d at 1369. Moreover, because fewer than a quorum of the Boat'd, eight trustees, cannot legally conduct the business of the Board, any meeting of one of the non-exceptional standing committees attended by fewer than eight trustees is not a meeting or session of a “group of individuals who sit as a deliberative body to set policy regarding the public matters with which the [Board] is entrusted,” id., and is not, therefore, a meeting or session within the meaning of the Sunshine Law. See Amendment 670, Benton, supra, and Ex parte Atkinson, supra. Accord Graham County Elec. Coop., Adler, Turk, Daily Gazette Co., Orange County Publications, and State ex rel. Newspapers, Inc., supra. Similarly, an ad hoc meeting of trustees attended by fewer trustees than a quorum is not a meeting or session of the Board within the meaning of the Sunshine Law. See Amendment 670, Penton, supra, and Ex parte Atkinson, supra. Accord Graham County Elec. Coop., Adler, Turk, Daily Gazette Co., Orange County Publications, and State ex rel. Newspapers, Inc., supra.

The newspapers did not challenge the action of the Board delegating its authority to act on behalf of Auburn University to the two exceptional standing committees— the Property and Facilities Committee and the Athletic Committee. Therefore, we do not address the validity of that action of the Board.

However, we infer from the record that a quorum of the Property and Facilities Committee or of the Athletic Committee is fewer than a quorum of the Board. Yet the Board has empowered these two exceptional standing committees to act on behalf of Auburn University. Therefore, so long as either of these two exceptional standing committees purports to act on behalf of Auburn University in any matter, any meeting of a quorum of such exceptional standing committee is subject to the Sunshine Law, within the parameters of this opinion.

IX. Executive sessions — honorary degrees and names of buildings

Next, we address whether the Board violated the Sunshine Law when a quorum met “in executive session to discuss whether to name a building or award an honorary degree to a person, and [to] review the person’s ‘personal traits.’ ”

“We believe that the legislature intended by the use of the words ‘character’ or ‘good name’ to permit executive sessions whenever there is a discussion of one’s general reputation, i.e., the estimate the public places on a person, his reputation, good or bad, and the personal attributes of an individual. It might also include such personal traits as honesty, loyalty, integrity, reliability, and other such characteristics, good or bad, which make up one’s individual personality. A discussion of any person relating to any such matters may therefore, under [§ 13A-14-2], be permitted at an executive session.
.. [T]he purpose of permitting the exception in question to our ‘sunshine laws’ is to permit the board, commission, council, etc., to have free and wide-ranging investigation and discussion as to the ‘character or good name’ of prospective appointees, personnel already employed, and the like; and, to protect the ‘character or good name’ of such persons during such discussions.”

Miglionico v. Birmingham News Co., 378 So.2d 677, 681-82 (Ala.1979) (footnote omitted). “If a closed session is held, nothing other than the individual’s good name or character may he discussed.” Dale v. Birmingham News Co., 452 So.2d 1321, 1322 (Ala.1984) (emphasis added).'

Unlike the city council in Miglionico, supra, and the school board in Dale, supra, the Board does not interview an individual it considers for an honorary degree or a building naming in executive session. In determining whether to award an honorary degree or a building name, the Board must determine whether that individual deserves such an honor and whether the individual, once honored, might embarrass Auburn University. Inquiry by the Board into the worthiness of an individual or the potential for embarrassment necessarily invites or even requires debate among the trustees about the individual’s “general reputation, i.e., the estimate the public places on a person, his [or her] reputation, good or bad, and [his or her] personal attributes,” or the individual’s “personal traits [such] as honesty, loyalty, integrity, reliability, and other such characteristics, good or bad, which make up one’s individual personality.” Miglionico, 378 So.2d at 681. Executive or closed sessions for this purpose allow candid and robust debate to promote and to protect the legitimate interests of Auburn University without publicizing any character or reputation defect in the individual. Accordingly, we conclude that the Board meeting in executive session to discuss awarding an honorary degree or a building name is within the “character and good name” exception of Miglionico, supra. Thus, this policy of the Board does not violate the Sunshine Law.

X. Attorney-client privilege

Last, we address whether the permanent injunction entered by the trial court impermissibly or unconstitutionally limits the right of the Board to confidential communications with its attorney or the right of the Board to legal advice from its attorney. Auburn University and the trustees contend that the attorney-client privilege exception to the Sunshine Law established in Dunn v. Alabama State University Board of Trustees, 628 So.2d 519 (Ala.1993), overruled on other grounds, Watkins v. Board of Trustees of Alabama State University, 703 So.2d 335, 341 (Ala.1997), includes meetings to discuss litigation imminently threatened but not yet filed or pending and includes meetings to obtain legal advice about a proposed specific act and the potential legal consequences of that act. Auburn University and the trustees contend that this Court should again follow the Tennessee appellate decisions, which have held that the attorney-client exception to the Tennessee Opening Meetings Act extends to such meetings, Van Hooser v. Warren County Bd. of Educ., 807 S.W.2d 230 (Tenn.1991), and Baltrip v. Norris, 23 S.W.3d 336 (Tenn.Ct.App.2000).

In Dunn, we held:

“The privilege of confidentiality represents one of the cornerstones of the attorney-client relationship....
“Matters bearing as directly on the attorney-client relationship as the privilege of confidentiality does are inherently subject to judicial oversight and control.
“This ‘inherent, continuing, and plenary’ control cannot, consistent with the Alabama Constitution, be abridged by legislative action. See Ala. Const.1901, § 43: ‘In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them ... to the end that it may be a government of laws and not of men.’ ...
“Although we must reject the defendants’ proposed rule, we also recognize the potential for abuse of the privilege that a broad application of the exception would invite. As the Supreme Court of Tennessee pointed out: ‘A public body could meet with its attorney for the ostensible purpose of discussing pending litigation and instead conduct public business in violation of the Act.’ Smith County Education Ass’n [v. Anderson], 676 S.W.2d [328, 335 (Tenn.1984) ]. To prevent such abuse, that court set forth the following restrictions on the scope of the exception to Tennessee’s ‘Open Meetings Act’:
“ ‘The exception is limited to meetings in which discussion of present and pending litigation takes place. Clients may provide counsel with facts and information regarding the lawsuit and counsel may advise them about the legal ramifications of those facts and the information given to him. However, once any discussion, whatsoever, begins among the members of the public body regarding what action to take based upon advice from counsel, whether it be settlement or otherwise, such discussion shall be open to the public and failure to do so shall constitute a clear violation of the Open Meetings Act.
“ ‘In summary, we hold that discussions between a public body and its attorney concerning pending litigation are not subject to the Open Meetings Act. We emphasize that this is a narrow exception and applies only to those situations in which the public body is a named party in the lawsuit.’
“Id. at 334-35 (emphasis added [in Dunn]). We agree with this standard and adopt it as the rule in Alabama.”

628 So.2d at 528-30.

In Van Hooser, supra, the Tennessee Supreme Court held that a school board

“had a right to meet with its attorney to discuss [a] pending controversy [not yet before the courts] pertaining to [a teacher], However, to the extent that the board made decisions or deliberated toward a decision, this was a ‘meeting’ to which the Open Meetings Act applies. T.C.A. § 8-44-102(c).”

807 S.W.2d at 237. In Baltrip, supra, the Court of Appeals of Tennessee stated:

‘We must now determine whether the Board violated the [Open Meetings] Act by the mere fact that it met with [its attorney] in private. The Act provides that it is ‘the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret.’ T.C.A. § 8-44-101(a) (1993). In Smith County Educ. Ass’n v. Anderson, 676 S.W.2d 328, 335 (Tenn.1984), the Supreme Court held that the Act did not apply to discussion between a school board and its attorney concerning pending litigation. The Court noted that this is a ‘narrow exception’ and would apply ‘only to those situations in which the public body is a named party in the lawsuit.’ Id. Further, the Court warned that
“ ‘once any discussion, whatsoever, begins among the members of the public body regarding what action to take based upon advice from counsel, whether it be settlement or otherwise, such discussion shall be open to the public and failure to do so shall constitute a clear violation of the Open Meetings Act.’
“Id. at 334.
“The Supreme Court further defined this ‘narrow exception’ in Van Hooser v. Warren County Bd. of Educ., 807 S.W.2d 230 (Tenn.1991). In that case, the school board retired during a meeting to discuss with its attorney the status of a teacher who was accused of paddling students. Id. at 233. The teacher argued that the Act was violated because no charges had been filed against her nor was any litigation pending token the meeting occumd. Id. at 237. The Court disagreed, finding that the Act is not violated by a closed meeting when there is ‘a pending controversy that [is] likely to result in litigation between the school district and [the teacher].’ Id. However, the Court found that in this closed meeting the board members had discussed and assented to the proposed conditions by which the teacher would return to work. Id. Because the board had ‘made decisions or deliberated toward a decision’ during the closed meeting, the Court found that the board had violated the Act. Id.
“We hold that the Board did not violate the Act in this case when it met loith its attorney. When the Board met with its counsel, there toas a ‘pending controversy that was likely to result in litigation,’ ie., a charge of unprofessional conduct had been lodged, and was then pending, against Baltrip. The depositions of the Board members show that during the meeting with [the attorney for the Board ], she advised them of three options in regard to Baltrip: (1) termination; (2) reinstatement; or (3) reinstatement with conditions. Every member of the Board testified by deposition that the meeting was limited to a discussion with [the attorney for the Board] about the Board’s possible legal options and that no deliberation or decision-making occurred. Baltrip has produced no evidence to the contrary. Thus, we affirm the trial court’s determination that the Act was not violated.”

23 S.W.3d at 341-42 (emphasis added).

We agree with the Tennessee appellate decisions. The attorney-client privilege exception to the Alabama Sunshine Law includes a meeting between a board, body, or commission and its attorney to discuss the legal ramifications of, and legal options for, not only pending litigation but also controversies not yet being litigated but imminently likely to be litigated, or imminently likely to be litigated if the board pursues a proposed course; provided, however, that the discussion at the meeting may not include the deliberations among the members of the board, body, or commission toward its decision on what option to choose or course to follow.

XI. Conclusion

The summary judgment and the injunction are invalid to the extent that they are inconsistent with this opinion. We therefore reverse them to that extent, affirm them to the extent that they are consistent with this opinion, and remand this cause for proceedings not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, and WOODALL, JJ„ concur.

      . Although the Board asks this Court to distinguish a ''meeting” from a "session,” under the Sunshine Law, § 13A-14-2 uses the terms interchangeably, and this Court rejected a similar argument in Dale v. Birmingham News Co., 452 So.2d 1321 (Ala.1984).


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    CONSECO FINANCE CORPORATION et al. v. Kathryn BURGESS.
    1012108.
    Supreme Court of Alabama.
    May 23, 2003.
    R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
    George W. Finkbohner, Jr., of Finkboh-ner Law Firm, L.L.C., Mobile, for appel-lee.
   HOUSTON, Justice.

Conseco Finance Corporation appeals from, and Conseco Finance Corporation-Alabama purports to appeal from, the trial court’s denial of Conseco Finance Corporation’s motion to “Alter, Amend, Vacate and Otherwise Set Aside” a default judgment entered against an entity described as “Conseco Finance Corp., f/k/a Green Tree Finance Corp.-Alabama.”

The trial court specifically found that Conseco Finance Corporation was not the defendant named in the complaint; therefore, it was not a party to the action and no judgment had been rendered against it. Accordingly, Conseco Finance Corporation lacks standing to appeal the trial court’s denial of its motion to vacate the default judgment. See Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221, 1223 (Ala.1993)(“To have standing to appeal a judgment, one must have been a party to the judgment below.”); Cupp v. Phelps, 543 So.2d 692 (Ala.1989) (holding that an individual who was not a party to an action to set aside a deed could not appeal from an order of the trial court denying the individual’s motion to void the judgment and to reopen the action to set aside the deed).

Conseco Finance Corporation-Alabama was not a party to Conseco Finance Corporation’s motion to “Alter, Amend, Vacate and Otherwise Set Aside” the default judgment. Therefore, the trial court’s denial of that motion was not adverse to it. Accordingly, Conseco Finance Corporation-Alabama has no standing to assert error in the denial of that motion. See S.W.M. v. D.W.M., 723 So.2d 1271, 1272 (Ala.Civ.App.1998) (“ ‘A party cannot claim error where no adverse ruling is made against him.’”) (quoting Holloway v. Robertson, 500 So.2d 1056, 1059 (Ala.1986)).

Accordingly, this appeal is dismissed.

APPEAL DISMISSED.

MOORE, C.J., and LYONS, JOHNSTONE, and WOODALL, JJ„ concur.


author: PER CURIAM. SEE, Justice

text:
    MACK TRUCKS, INC. v. Mary WITHERSPOON, as administratrix of the estate of Tonnie Ray Witherspoon, deceased.
    1992217.
    Supreme Court of Alabama.
    May 30, 2003.
    Donald F. Pierce, Forrest S. Latta, John C.S. Pierce, and J. Robert Turnipseed of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for appellant.
    Robert T. Cunningham, Jr., David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; and Gaines C. McCorquodale of McCorquodale & McCor-quodale, Jackson, for appellee.
   PER CURIAM.

Mack Trucks, Inc. (“Mack”), appeals from a judgment entered on a jury verdict in favor of Mary Witherspoon, administra-trix of the estate of Tonnie'Ray Wither-spoon, on her claim against Mack alleging liability under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) for the death of her son, Ton-nie Ray Witherspoon. On appeal, Mack argues that Mary failed to prove that the truck manufactured by Mack and being driven by Tonnie Ray at the time of the accident was defective. In addition, Mack argues that the $25 million punitive-damages award was excessive. We affirm conditionally.

I.

On November 6, 1995, Tonnie Ray was driving a Model RD600 tractor manufactured by Mack, which had been purchased from Gulf Coast Truck & Equipment Company, Inc. (“Gulf Coast”). The tractor was pulling a trailer loaded with logs. The tractor-trailer ran off the road and rolled over, coming to a rest upside down; the passenger-side door was facing the road, and the driver-side door was facing the embankment. The rollover jammed the passenger-side door so that it could not be opened. It also caused some of the logs on the trailer to shift forward, blocking the driver-side door and trapping Tonnie Ray inside the cab of the tractor. As a result of the impact, a small fire started; that fire spread and eventually engulfed the cab. Tonnie Ray died as a result of the fire.

Mary sued Mack and Gulf Coast, asserting claims of negligence, breach of express and implied warranties, and liability under the AEMLD. Gulf Coast moved for a summary judgment as to all claims asserted against it; Mack moved for a summary judgment on the negligence and breach-of-warranty claims. The trial court denied each of the motions, and the case proceeded to trial. On the morning of the trial, Mary dismissed her claims against Gulf Coast and dismissed her negligence and breach-of-warranty claims against Mack. As a result, the case was tried solely on Mary’s claim against Mack of liability under the AEMLD.

At the close of Mary’s case-in-chief and, again, at the close of all of the evidence, Mack moved for a judgment as a matter of law (“JML”); the trial court denied the motions. On April 12, 2000, the jury returned a verdict in favor of Mary, awarding punitive damages in the amount of $50 million. The same day, the trial court entered a judgment on that verdict. Mack renewed its motion for a JML, or, alternatively, moved for a new trial or for a remittitur of the punitive-damages award. The trial court granted Mack’s motion for a remittitur, reducing the punitive-damages award to $25 million. Mary accepted the remittitur.

II.

We have clearly stated the standard for appellate review of a trial court’s ruling on a motion for a JML made after the return of the verdict:

“The standard of review applicable to a ruling on a [renewed] motion for [a JML] is identical to the standard used by the trial court in granting or denying a motion for [a JML]. Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in the light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
“... In ruling on a [renewed] motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been ‘substantial evidence’ before the jury to create a question of fact. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

American Nat'l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993) (citations omitted).

“ ‘The jury’s verdict is presumed to be correct, and that presumption is strengthened by the trial court’s denial of the motion for a new trial.’ ” Williams v. Williams, 786 So.2d 477, 480 (quoting Friendly Credit Union v. Campbell, 579 So.2d 1288, 1291 (Ala.1991)). “This Court will not reverse a judgment on a jury verdict on a weight-of-the-evidence basis unless the evidence, when viewed in a light most favorable to the nonmovant, shows that the verdict was plainly and palpably wrong and unjust.” Id.

III.

Mack argues that Mary failed to show that the Mack truck Tonnie Ray was driving at the time of the accident was defective. Our review of the record leads us to conclude that Mary presented substantial evidence from which a jury could have reasonably concluded that the parties ular truck Tonnie Ray was driving was defective. We affirm the trial court’s judgment holding Mack liable for Tonnie Ray’s death based on the peculiar facts of this case. We note that this case is extremely fact intensive and under those circumstances has no meaningful prece-dential value.

IV.

Mack argues that the $25 million punitive-damages award is excessive in light of the “guideposts” set forth in BMW of North America, Inc. v. Gore, 701 So.2d 507, 512-15 (Ala.1997), and those factors recognized by this Court in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). We review the trial court’s award of punitive damages de novo, with no presumption of correctness. Acceptance Ins. Co. v. Brown, 832 So.2d 1, 24 (Ala.2001).

This Court has not addressed a punitive-damages award in a wrongful-death action brought under the .AEMLD of the magnitude of the $25 million punitive-damages award in this case. In General Motors Corp. v. Johnston, 592 So.2d 1054 (Ala.1992), the engine of a pickup truck stalled when the driver of the truck was attempting to drive through an intersection. A tractor-trailer truck struck the pickup truck, and the pickup-truck driver’s seven-year-old grandson died as a result of the collision. The child’s mother sued General Motors, alleging that the pickup truck was defective under the AEMLD. After a trial, the jury returned a verdict in the mother’s favor and awarded her $15 million in punitive damages. On appeal, the Court remitted the punitive-damages award to $7.5 million. Id. at 1064.

Our de novo review of the punitive-damages award in this case, made in light of Gore, Hammond, Green Oil, and Johnston, supra, leads us to conclude that the trial court should have further reduced the jury’s punitive-damages award and that the punitive-damages award should have amounted to no more than $6 million. Therefore, we affirm the trial court’s judgment on the condition that Mary file with this Court, within 21 days of the date of this opinion, an acceptance of a remittitur of the punitive-damages award in the amount of $19 million, which would result in a judgment for her of $6 million in punitive damages. If Mary does not file the acceptance of the remittitur as ordered herein, then the trial court’s judgment will be reversed and the case remanded for a new trial.

AFFIRMED CONDITIONALLY.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., concurs in the result.

SEE and STUART, JJ., dissent.

SEE, Justice

dissenting.

I respectfully dissent from the per cu-riam opinion. Based on my review of the record, I cannot conclude that Mary presented substantial evidence that would support a jury verdict against Mack of liability under the AEMLD. See Beech v. Outboard Marine Corp., 584 So.2d 447, 450 (Ala.1991).

STUART, J., concurs.


author: SEE, Justice.

text:
    Faye GARY v. Richard CROUCH.
    1011192.
    Supreme Court of Alabama.
    May 30, 2003.

      Marcus W. Reid, Anniston, for appellant.
    Christie D. Knowles and Joshua B. Sullivan of Henslee, Robertson, Strawn & Knowles, L.L.C., Gadsden, for appellee.
   SEE, Justice.

Faye Gary is a lieutenant with the Gadsden Police Department. Richard Crouch is the chief of police. Lt. Gary became frustrated when her superiors at the Gadsden Police Department rejected her attempt to “roll” a less senior officer to a less desirable shift so that she could stay on the first shift, informing her that she could not “roll” that officer because the officer was in a different unit from Lt. Gary and that department rules prevented cross-unit “rolls.” Lt. Gary mentioned her frustration with this situation while she was talking with Robert Avery, her friend and a member of the Gadsden City Coun-di. Councilman Avery was an outspoken critic of the administration of the Gadsden Police Department.

Councilman Avery asked Lt. Gary if he could discuss her situation with Chief Crouch, and Lt. Gary said he could. Councilman Avery and Chief Crouch were involved at the time in a public disagreement over allegations of brutality by the Gadsden Police Department. Avery combined his concerns about Lt. Gary’s situation with his other concerns about the Gadsden Police Department and placed those concerns in a letter to Chief Crouch. Avery also sent the letter to all members of the city council, the mayor, the local newspaper, and local radio stations.

Chief Crouch drafted a reply to Avery’s letter, the last paragraph of which read:

“I ... [instructed] ... Capt. Jeff Wright to inform Lt. Gary that if she wanted to improve her chances of receiving a specialized assignment she would 1) demonstrate some commitment to the objectives and missions of the Department, 2) demonstrate that she had some capacity for work (something which I have seen very little of over the past 14 months), and 3) set a better example for her subordinates by staying out of the hair salon and nail salon while on duty.... And no, Robert, I do not have a problem with females or blacks. I do have a problem with non-productive, ineffective police personnel, regardless of their rank, gender or race. And I also have a problem with elected officials whose main form of exercise is jumping to unfounded conclusions and whose political leadership is based in divisiveness and dissension, regardless of their gender or race.”

Before mailing the letter to Councilman Avery, Chief Crouch sent a draft of it to Mayor Steve Means and requested his opinion. Mayor Means crossed out the paragraph set out above and returned the draft to Chief Crouch. Chief Crouch nonetheless sent the letter, including the paragraph Mayor Means had deleted, to Councilman Avery, Mayor Means, the city council, the local newspaper, and local radio stations.

In response, Lt. Gary sued the City of Gadsden and Chief Crouch, alleging negligence against the City and alleging defamation and invasion of privacy against Chief Crouch. The City answered; Chief Crouch moved to dismiss, arguing that Lt. Gary had failed to state a claim upon which relief could be granted and that the statements made in the letter were not false and defamatory. The trial court denied Chief Crouch’s motion to dismiss, and Chief Crouch answered the complaint, denying all allegations.

The City moved for a summary judgment. Lt. Gary filed a response in opposition to the motion that included Chief Crouch’s deposition, with exhibits and a copy of the letter that is the basis of the complaint. The trial court held a hearing and granted the motion on November 30, 2001. Lt. Gary does not appeal the summary judgment for the City.

Chief Crouch moved for a summary judgment, supporting it with a brief and an evidentiary submission including Lt. Gary’s deposition, Commander Jeff Wright’s deposition, Avery’s deposition, and other evidence previously submitted by Lt. Gary. Lt. Gary filed a response in opposition to the motion. The trial court granted Chief Crouch’s summary-judgment motion and entered a final judgment of dismissal. On January 24, 2002, Lt. Gary moved to alter, amend, or vacate the judgment and filed a motion for recusal, seeking to have the trial judge recuse himself. The trial court denied these motions, and Lt. Gary appeals.

Lt. Gary raises four issues on appeal: (1) whether the trial court erred in entering a summary judgment for Chief Crouch based on State-agent immunity; (2) whether Lt. Gary established by substantial evidence the publication of the allegedly defamatory statements so as to survive Chief Crouch’s motion for a summary judgment; (3) whether publication was a required eler ment of every type of invasion of privacy and whether Lt. Gary’s invasion-of-privacy claim presented a genuine issue of material fact sufficient to withstand Chief Crouch’s summary-judgment motion; and (4) whether, the trial court erred in denying Lt. Gary’s motion to alter, amend, or vacate the judgment and her motion seeking the trial judge’s recusal.

Citing Williams v. City of Montgomery, 21 F.Supp.2d 1360 (M.D.Ala.1998), and Ex parte City of Montgomery, 758 So.2d 565 (Ala.1999), Lt. Gary first argues that the trial court erred in granting Chief Crouch peace-officer discretionary-function immunity under § 6-5-338, Ala.Code 1975. That Code section provides that every peace officer “shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.” As police chief, Chief Crouch qualifies as a peace officer. However, Lt. Gary argues that in this matter Chief Crouch should not be afforded the immunity in § 6-5-338 because, she argues, he engaged in the complained-of behavior in bad faith, or with malice or wilfulness, citing Williams, supra, and Ex parte City of Montgomery, supra.

Chief Crouch argues that he exercised discretion in performing the tasks required by his job, and that he is, therefore, entitled to peace-officer immunity. Chief Crouch contends that his job as police chief requires the exercise of discretion in supervising police department employees, managing the police department, and representing the police department before the city council and the mayor. Chief Crouch argues that his letter to Councilman Avery was an exercise of a discretionary function of his job, because he is required to respond to requests from his superiors for information about the police department and, he argues, the city council is one of the superiors to whom he must report if requested.

Lt. Gary argues that Chief Crouch acted in bad faith by including in the letter comments about her work performance even after Mayor Means had edited those portions from the letter. She also argues that Chief Crouch acted in bad faith in sending the letter, which ostensibly concerned internal department personnel matters, not only to Avery but also to local media outlets and to city officials. Because Chief Crouch acted in bad faith, she argues, he is not entitled to peace-officer immunity afforded by § 6-5-338, Ala.Code 1975.

In Ex parte City of Montgomery, we explained that, where a municipal police officer is engaged in a discretionary function with respect to the conduct complained of, he or she would be immune under § 6-5-338, “unless his [or her] actions were conducted with willful or malicious intent or in bad faith.” 758 So.2d at 570. Peace-officer immunity, like State-agent immunity, does not provide immunity from liability for the commission of an intentional tort, but only for negligence in the exercise of judgment. See Ex parte Turner, 840 So.2d 132, 136 (Ala.2002)(“ ‘a State agent shall not be immune from civil liability in his-or her personal capacity ... (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’ ” (quoting Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000)).

The trial court’s order, however, does not indicate that it entered the summary judgment for Chief Crouch on the basis of peace-officer immunity. The order states:

“[I]t is ordered, adjudged and decreed that it is the opinion of the Court that no genuine issue of material fact is presented herein and therefore said Defendant’s Motion for Summary Judgment is granted and he is hereby dismissed as a Defendant herein.”

By reaching the merits of the summary-judgment motion, the trial court actually indicates that it did not extend immunity to Chief Crouch.

If a defendant who claims immunity is found not to be immune, he must defend the claims against him as any other defendant would. Chief Crouch did so in his motion for a summary judgment, arguing defenses to each of Lt. Gary’s claims.

“We review a summary judgment de novo. Alabama Ins. Guar. Ass’n v. Southern Alloy Corp., 782 So.2d 203 (Ala.2000). We apply the same standard of review as the trial court in determining whether the evidence presented to the trial court demonstrated the existence of a genuine issue of material fact. Jefferson County Comm’n v. ECO Preservation Servs., L.L.C., 788 So.2d 121 (Ala.2000) (quoting Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988)). A summary judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.’ Rule 56(c)(3), Ala.R.Civ.P. See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999), and Lawson State Comm. College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988).”

Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 276 (Ala.2000). Once the movant for a summary judgment makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmov-ant to present evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence creating a genuine issue of material fact must be substantial; evidence is “substantial” if it is “of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Lt. Gary first argues that Chief Crouch’s letter constituted defamation. We consider each element of defamation to determine whether Lt. Gary has created a genuine issue of material fact sufficient to withstand Chief Crouch’s properly supported motion for a summary judgment.

“To establish a prima facie case of defamation, the plaintiff must show [1] that the defendant was at least negligent, see Mead Corp. v. Hicks, 448 So.2d 808 (Ala.1983); Restatement (Second) of Torts § 558, § 580B (1977), [2] in publishing [3] a false and defamatory statement to another [4] concerning the plaintiff, Restatement (Second) of Torts § 558, [5] which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod). Restatement (Second) of Torts § 558; see also Albert Miller & Co. v. Corte, 107 F.2d 432 (5th Cir.1939), cert. denied, Corte v. Albert Miller & Co., 309 U.S. 688, 60 S.Ct. 890, 84 L.Ed. 1031 (1940).”

Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1091 (Ala.1988). Chief Crouch concedes that the statements in his letter were made intentionally; therefore, under the circumstances of this case Lt. Gary has created a genuine issue of material fact on the first element of defamation, that in making the statement Chief Crouch was at least negligent.

The second element is publication to another. “A plaintiff usually satisfies the publication element by proof of communication of the defamatory matter to someone other than himself. W. Prosser, The Law of Torts § 113, at 776 (4th ed.1971).” K-Mart Corp. v. Pendergrass, 494 So.2d 600, 602 (Ala.1986). Lt. Gary alleges that the letter was published to local media outlets and to Councilman Avery. Chief Crouch argues that Lt. Gary did not place evidence before the trial court that definitively indicates that the local radio stations and the local newspaper to whom he admittedly sent copies of the letter actually received and understood the letter. While Lt. Gary and Councilman Avery testified in their depositions that the information in the letter had been discussed on local radio programs, they could not say whether that discussion occurred before or after Lt. Gary filed this action against Chief Crouch, and, therefore, were unable to say whether the fact that the radio stations had knowledge of the letter stemmed from the public record of this action or from Chief Crouch’s letter. However, Chief Crouch specifically stated in his deposition that it was his intention to send the letter to every outlet listed in the “ec” section at the bottom of his letter, which included the city council members other than Councilman Avery, the local newspaper, and various radio stations. We conclude that Lt. Gary has created a genuine issue of material fact as to whether Chief Crouch published the statements about her to third parties.

The third element is that the statement be false and defamatory. Chief Crouch argues that the statements he made about Lt. Gary were not false, and that, therefore, they were not defamatory. He bases this argument on information he purports came from Cmdr. Wright; however, Cmdr. Wright’s deposition testimony states at best that Cmdr. Wright knew that Lt. Gary had gone to an appointment at a hair salon once during her lunch hour, but that she asked his permission for that visit and he gave it to her. Cmdr. Wright denies having complained to Chief Crouch that Lt. Gary’s visits to the salons while she was on duty were a persistent problem, as Chief Crouch argues in his brief to this Court, and he also confirmed that male officers also got haircuts while they were on duty. Lt. Gary testified in her deposition that she had not received any reprimands while Chief Crouch was chief of police, and that she had received good performance reviews during the time Chief Crouch had been with the Gadsden Police Department. These conflicting allegations create a genuine issue of material fact regarding the truthfulness of Chief Crouch’s allegations about Lt. Gary in the letter. Lt. Gary has, therefore, presented sufficient evidence indicating that the statements in the letter are false and defamatory to avoid a summary judgment.

The fourth element is that the statements concern the plaintiff. Chief Crouch concedes that the statements concerned Lt. Gary.

Finally, Lt. Gary must show damage. Chief Crouch’s written comments regarding Lt. Gary’s job performance, her work ethic, and her alleged dereliction of duty are presumed to damage her reputation and are actionable per se.

“In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se.”

Marion v. Davis, 217 Ala. 16, 18, 114 So. 357, 359 (1927) (citations omitted), cited with approval in Blevins v. W.F. Barnes Corp., 768 So.2d 386 (Ala.Civ.App.1999); see also Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788 (1894). Lt. Gary has at least created a genuine issue of material fact as to whether the following statements in the letter exposed her to public ridicule or contempt and therefore are actionable per se: that in the performance of her professional responsibilities she needed to 1) “demonstrate some commitment to the objectives and missions of the Department, 2) demonstrate that she had some capacity for work ..., and 3) set a better example for her subordinates by staying out of the hair salon and nail salon while on duty.” Thus, Lt. Gary has at least created a genuine issue of material fact as to each element of defamation as to which the parties are in dispute.

Chief Crouch asserts that he is, nonetheless, protected from liability because, he argues, the letter to Councilman Avery, who confirmed that he received and understood the letter, was a privileged communication. Chief Crouch argues that Councilman Avery’s original letter to him inquiring into Lt. Gary’s situation required a response from Chief Crouch and required that he respond to all parties to whom Councilman Avery sent his original query.

“ ‘ “ ‘Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice.’ ”...
‘Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117 (Ala.1976), quoting Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290 (1923).’
“Fulton v. Advertiser Co., 388 So.2d 533, 537 (Ala.1980).”

Barnett v. Mobile County Personnel Bd., 536 So.2d 46, 53 (Ala.1988). Chief Crouch’s only support for his argument that he had a duty to respond to Councilman Avery’s letter is his contention that his position required him to respond to requests for information from city council members. Councilman Avery’s letter did not request specific details of Lt. Gary’s work performance or Chief Crouch’s opinion of that performance. The evidence before the trial court indicated that the mayor suggested to Chief Crouch, by his editing of the letter, that Chief Crouch remove the very portion of the letter Lt. Gary claims is defamatory and that Chief Crouch did not remove that language.

Chief Crouch argues that to survive his summary-judgment motion Lt. Gary must show that his statements were not made in good faith and that they were made with actual malice.

“ ‘[S]ince the privilege under consideration is merely a qualified one, it is subject to the general rules ... limiting qualified privileged communications; and there is no privilege where the communication is actuated by express or actual malice, and the privilege may be lost if the publication goes beyond what the occasion requires.’ ”

Barnett v. Mobile County Personnel Bd., 536 So.2d at 53. Thus, even if we accept the argument that Chief Crouch had a duty to respond to Councilman Avery’s letter, that duty does not immunize him from his decision to send the letter to local media outlets. “[T]he privilege may be lost if the publication goes beyond what the occasion requires,” and Chief Crouch’s mailing of the letter to the parties to whom he mailed it at least raises a genuine issue of material fact as to whether Chief Crouch’s publication of the letter goes beyond what the occasion required.

This Court has also stated that “common law malice in its traditional sense ‘may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like ... or by the violence of the defendant’s language, the mode and extent óf publication, and the like.’ Fulton [v. Advertiser Co.], 388 So.2d [533] at 538 [ (Ala.1980) ].” Barnett v. Mobile County Personnel Bd., 536 So.2d at 54. Chief Crouch’s discussion in the letter of Lt. Gary’s performance appears to go beyond what was necessary to respond to Councilman Avery’s request for information. Chief Crouch’s decision to send the letter .unedited,- leaving in the paragraph critical of Lt. Gary, and to send the letter to the people to whom he mailed it suggest malice and raise a genuine issue of material fact as to whether Chief Crouch made the statements in the letter about Lt. Gary with actual malice so that they are, therefore, not within the privilege. Lt. Gary created genuine issues of material fact as to all the elements of defamation; therefore, the trial court erred in entering a summary judgment for Chief Crouch on, Lt. Gary’s defamation claim.

Lt. Gary also argues that the trial court erred in entering a summary judgment for Chief Crouch on her invasion-of-privacy claim. Lt. Gary argues that Chief Crouch invaded her privacy under the theories of “ ‘false light’ invasion of privacy” and of publication of matters .that constitutes “invasive conduct that violates the ordinary decency.” (Lt. Gary’s brief at p. 32.) Chief Crouch counters that Lt. Gary made these matters public by communicating to Councilman Avery her problem with Chief Crouch’s refusal to allow her to “bump” a less senior officer and by filing a complaint against Chief Crouch with the Civil Service Board of the City of Gadsden based on Chief Crouch’s letter, thereby herself making the letter a matter of public record.

We consider whether Lt. Gary created a genuine issue of material fact as to whether the letter constitutes an invasion of privacy under Alabama law.

“The general nature of the right of privacy is described in 41 Am.Jur. p. 925. It has been defined ‘as the right of a person to be free from unwarranted publicity’ or ‘the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ 41 Am.Jur. p. 925; 54 C.J. p. 816. Its violation is a tort. And while its violation often assumes a form similar to libel, there are differences. For example ‘in actions for infringement of the right of privacy, truth is not a defense and it is never necessary to allege or prove special damages.’ 41 Am.Jur. p. 925; 138 A.L.R. pages 47, 48,168 A.L.R. page 452.”

Smith v. Doss, 251 Ala. 250, 252-53, 37 So.2d 118, 120 (1948). A more recent explanation of this tort is that it

“consists of four distinct wrongs: 1) the intrusion upon the plaintiffs physical solitude or seclusion; 2) publicity which violates the ordinary decencies; 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some element of the plaintiffs personality for a commercial use.”

Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705, 708 (Ala.1983)(footnote omitted).

Lt. Gary argues to this Court that her claim against Chief Crouch is based on the theories of (1) false-light invasion of privacy and (2) “invasive conduct that violates the ordinary decency.” She argues that Phillips stands for the proposition that publication is not an element of the tort of invasion of privacy if that tort is committed by means of what she terms “invasive conduct that violates the ordinary decency.” Lt. Gary impermissibly confounds two different types of invasion of privacy, mixing intrusion on her seclusion with publicity that violates “the ordinary decency.” Phillips states that publication is not an element where one alleges an invasion of privacy by means of intrusion on seclusion, and that the act of intruding on private issues can be sufficient to justify a finding of invasion of privacy on that ground, without any publication to others of anything learned through the intrusion. 435 So.2d at 709.

Lt. Gary has made no showing that Chief Crouch has intruded on her seclusion, because she has made no showing that he sought or obtained any private information about her, or that he intruded upon her “physical solitude or seclusion” by seeking any information that he did not properly have access to through his role as her supervisor in the police department. Lt. Gary has, therefore, created no genuine issue of material fact as to whether Chief Crouch intruded upon her seclusion.

Lt. Gary also argues that Chief Crouch committed the tort of invasion of privacy by placing her in a false light. The Restatement (Second) of Torts § 652E (1977) and the comments to that section define false-light invasion of privacy as follows:

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
“(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
“(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

See also Schifano v. Greene County Greyhound Park, Inc., 624 So.2d 178, 180 (Ala.1993).

We cannot reasonably conclude, from the evidence Lt. Gary presented in opposition to Chief Crouch’s summary-judgment motion, that before Lt. Gary made Chief Crouch’s letter a matter of public record, Chief Crouch had given publicity to facts that placed Lt. Gary in a false light that “would be highly offensive to a reasonable person.” Councilman Avery was asked at his deposition:

“[Chief Crouch’s attorney:] Have you ever seen this memo republished in the newspaper or any part of it republished in the newspaper?
“Avery: I don’t know.
“[Chief Crouch’s attorney:] Have you ever heard this memo read on the radio, or any portions of it read?
“Avery: Yeah. I think it was discussed on radio stations.
“[Chief Crouch’s attorney:] I don’t mean discussed; I mean did you ever hear it read, any portions of it read?
“Avery: Not the whole thing. I’m sure some of it out of — it was discussed. I don’t know if it was read, actually read.
“[Chief Crouch’s attorney:] On what radio station did you hear it?
“Avery: If I remember correctly, it was on ‘GAD and WMGJ. There was some discussion about it.”

Thus, Councilman Avery’s testimony was only that he had heard some, not all, of the contents of the letter discussed on the radio, and he did not state what content was discussed; therefore, Lt. Gary has not produced substantial evidence creating a genuine issue of material fact as to whether she was placed in a false light that “would be highly offensive to a reasonable person.”

We, therefore, conclude that the trial court did not err in granting Chief Crouch’s summary-judgment motion as to Lt. Gary’s invasion-of-privacy claim.

We turn, finally, to Lt. Gary’s motion for the recusal of the trial judge, made after the trial court entered a summary judgment in favor of Chief Crouch. Lt. Gary argues that the trial judge is the brother of a city councilman, that the city council member in question was a friend of Chief Crouch’s, and that, therefore, the judge was required to recuse himself from hearing a case, such as Lt. Gary’s, involving claims against Chief Crouch. We presume that a judge is qualified and unbiased; one who alleges otherwise and seeks a judge’s recusal has the burden of proving the grounds for the recusal. McMurphy v. State, 455 So.2d 924, 929 (Ala.Crim.App.1984).

Lt. Gary moved for the judge’s recusal under Canon 3.C.(1) of the Canons of Judicial Ethics, which requires a judge to re-cuse himself or herself in a case in which the judge’s “impartiality might reasonably be questioned.” Lt. Gary, relying on Councilman Avery’s testimony, claims that the judge’s brother spoke to the city council about Lt. Gary’s “bad habits,” and that the judge’s brother told the city council that he had received his information from Chief Crouch. The trial judge, however, is not accountable for his brother’s actions before the city council, and Lt. Gary has not presented any reason to believe that the trial judge is under the sway of his brother. We, therefore, find that Lt. Gary has not demonstrated that the trial judge should recuse himself from this case.

Therefore, we affirm the summary judgment for Chief Crouch on Lt. Gary’s invasion-of-privacy claim and we affirm the trial court’s denial of the motion seeking his recusal; we reverse the summary judgment for Chief Crouch on Lt. Gary’s defamation claim; and we remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., recuses himself.

      . As it related to Lt. Gary, the letter stated, in part:
      "[D]o you have a problem with females, or do you have a problem with blacks? It's obvious that you have some type of problem, based on the fact that Lt. Gary was bumped off her job due to length of service, and yet you won't let her bump someone else for the same reason. I hope my assumptions are wrong and I'm waiting for your reply....”

      . The test for State-agent immunity, as discussed in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted by a majority of this Court in Ex parte Butts, withholds immunity from State agents acting in their personal capacity, " 'when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’ ” Ex parte Butts, 775 So.2d 173, 178 (Ala.2000) (quoting Cranman, 792 So.2d at 405).

      . Lt. Gary does discuss a warning she received when she allowed her child to ride in her patrol car, but she said in her deposition that she was not formally reprimanded for having done so.

      . " 'Words are actionable which directly tend to the prejudice of any one in his office, profession, trade, or business, in any lawful employment by which he may gain his livelihood.' ” Gaither, 102 Ala. at 463, 14 So. at 789 (quoting Ostrom v. Calkins, 5 Wend. 263 (N.Y.1830)).

      . Phillips presented an example of invasion of privacy by means of intrusion upon seclusion; in that case a supervisor repeatedly demanded that a woman under his supervision grant him sexual favors and repeatedly inquired as to her private sexual activities with her husband. Phillips, 435 So.2d at 707.

      . If Lt. Gary intended to argue to this Court that Chief Crouch invaded her privacy through publicity that violates ordinary decency, then a mere showing of publication is not sufficient. Publicity is a concept more difficult to prove than publication. ' In Ex parte Birmingham News, 778 So.2d 814, 818 (Ala.2000), this Court adopted the definition of “publicity” from Comment a to § 652D of the Restatement (Second) of Torts, which defines publicity as
      "making a 'matter ... public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.’ See Johnston [v. Fuller], 706 So.2d [700] at 703 [(Ala.1997)]. 'Publication,' on the other hand, 'is a word of art, which includes any communication by the defendant to a third person.’ Restatement (Second) of Torts § 652D cmt. a; Johnston, 706 So.2d at 703. If a person has given 'publicity' to a matter, then the communication is sure to reach the public. Restatement (Second) of Torts § 652D cmt. a; Johnston, 706 So.2d at 703. Comment a adds:
      " 'Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term.... ’ "
      778 So.2d at 818. While Lt. Gary has created a genuine issue of material fact on the issue of publication as that term is used in the definition of defamation by libel, she has failed to provide sufficient evidence to create a genuine issue of material fact with regard to "publicity” as that term is defined in the caselaw on the tort of invasion of privacy.

      . See note 6, supra.

      . We do note that the trial judge in fact denied Chief Crouch's initial motion to dismiss.