author: MYERS, P.J.,

text:
    SENIOR PARTNERS, INC., Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2005-CA-01835-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.
    Rehearing Denied April 17, 2007.

      Holmes S. Adams, R. Jarrad Garner, Ian C. Jones, Jackson, attorneys for appellant.
    Albert Bozeman White, Madison, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Senior Partners, Inc. seeks review of a Circuit Court of Hinds County judgment affirming the Mississippi Employment Security Commission’s decision finding Senior Partners an employer within the meaning of Mississippi Code Annotated section 71-5-11 (Rev.2000), and holding it liable to pay unemployment compensation taxes for workers it referred to perform sitter services. Finding that the Commission’s order is supported by substantial evidence, we affirm.

STATEMENT OF FACTS

¶ 2. Senior Partners, Inc. is a Mississippi corporation based in Jackson and engaged in the business of providing health care personnel consisting of sitters, aides, and certified nurse assistants to the elderly or sick. This case originated when Denisha Wilson, a sitter, filed a claim for unemployment benefits with the Mississippi Employment Security Commission (MESC), as a former employee of Senior Partners. Upon Wilson’s filing for unemployment benefits, an investigation and audit of Senior Partners ensued and the MESC found that Senior Partners had not reported any wages for Wilson.

¶ 3. The Chief of the MESC’s Contribution and Status Department rendered his April 2, 2003 decision finding that an employment relationship existed between Senior Partners and the sitters, implicating wage reporting and unemployment tax liabilities upon Senior Partners.

¶ 4. Senior Partners appealed the April 2, 2003 decision and a telephonic status hearing was held on August 19, 2003 to determine Senior Partner’s unemployment tax liability for its workers. Eldridge Rose, a MESC Unemployment Insurance Tax Field Representative, Senior Partners’ president, Price Hildebrand, and Senior Partners’ officer manager, Robin Aldridge, testified at length. On September 4, 2003, the hearing officer found that an employment relationship existed between Senior Partners and its workers. The hearing officer found, in pertinent part, the following facts:

[Slitters are required to complete an application for employment, pass a criminal background check, and a tuberculosis skin test before being cleared to serve.... The place of work and hours are established by the client without any supervision from the employer. The employer does require that the individuals have at least one year experience and conduct themselves in a professional manner while performing their job duties. The sitters cannot negotiate any pay with the clients or family members because the sitters are contracted with the employer and not with the client. Depending on where the sitters are required to work, they may have to comply to a dress code, however, this is informed to them by the employer before they are sent on their placements.... The sitters cannot relinquish their duties or hire someone else in their place because they are accountable to the employer and cannot relinquish their duties without the employer’s permission. The individuals sign an Independent Contractor Agreement indicating they were responsible for their own taxes and were not employees of this employer. Either party could terminate their working relationship without liability to the other party. In the event that the sitters had to take the client somewhere, the employer would charge the client $.30 per mile and reimburse the workers for the amount on a weekly basis. The work performed by the workers was an integral part of the employer’s business and not a service provided on an intermittent basis. All requirements and qualifications are initiated and are set by the Senior Partners, Inc. The workers must meet their requirements and work according to the standards they established.

¶ 5. Based on these findings, the hearing officer held that wages earned with Senior Partners were wages susceptible of reporting and ordered unemployment taxes paid. Following this decision of the hearing officer, Senior Partners appealed to the Full Commission. The commission, in its order dated February 13, 2004, adopted and affirmed the findings of the hearing officer stating that in this case, the finding that Senior Partners was an “employer” within the meaning of the Employment Security Act (Act) was supported by substantial evidence. Senior Partners then appealed to the Circuit Court of Hinds County and oral arguments were heard. On August 17, 2005, the circuit court entered its opinion and order upholding the Commission’s decision finding it was based on substantial evidence.

¶ 6. Senior Partners now timely appeals the circuit court’s affirmance to this Court and contends that the hearing officer, Commission, and circuit court erred as a matter of law in concluding that the sitters were under its control and' direction, and were not engaged in an independent trade. At issue on appeal is whether, in light of the Mississippi Supreme Court companion cases of Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838 (Miss.1991), and Miss. Employment Sec. Comm’n v. Total Care, Inc., 586 So.2d 834 (Miss.1991), the holding that Senior Partners is an employer within the meaning of the Mississippi Employment Security Law, Mississippi Code Annotated sections 71-5-1 to 71-5-541 (Rev.2000), is contrary to law, unsupported by substantial evidence, and therefore arbitrary and capricious. We disagree.

¶ 7. Under the Act, all employers found to be employing units are compelled to make contributions to the Employment Security Trust Fund (Fund) based upon a percentage of all wages paid. Miss.Code Ann. § 71-5-351-361 (Rev.2000). Although the language of the Act refers to mandatory levies as “contributions,” in effect, the statute operates as an excise tax. In review of an excise tax, we recognize that every doubt as to their application must be resolved in favor of the taxpayer and strictly against the taxing power. Mozingo v. Mississippi Employment Sec. Comm’n., 224 Miss. 375, 383-384, 80 So.2d 75, 78-79 (1955). The implications of finding a business to be an employer is that it is assessed unemployment excise taxes for each of its employees. Section 75-5-11(I)(14) (Supp.2006) of the Mississippi Code Annotated provides the following definition of “employment” for the purposes of assessing unemployment tax contributions:

Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.

¶ 8. Where a master and servant relationship is contested, the burden of proof is upon the party seeking to prove that the worker was not an employee and thus no “employment” exists. PDN, Inc., 586 So.2d at 840. Here, Senior Partners contests the findings which hold it to be an “employer.” The determination whether an employer has met its burden of proving the conjunctive requirements of section 75-5-11(1) has been addressed on several different occasions. See id.; Total Care, Inc., 586 So.2d at 838; Clark Printing Co. v. Miss. Employment Sec. Comm’n, 681 So.2d 1328, 1330 (Miss.1996).

STANDARD OF REVIEW

¶ 9. We find our standard for reviewing the findings and decisions of the MESC in Mississippi Code Annotated section 71-5-531 (Supp.2006): “In any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” We are restricted to reviewing only the findings of the MESC and will not disturb such findings if they are supported by substantial evidence and there is no fraud. PDN, 586 So.2d at 840.

DISCUSSION

¶ 10. Specific factors must be considered to determine whether the type of relationship between a health care placement service and a worker can be classified as “employment” within the meaning of the Act. We consider:

(1) The extent of control exercised over the details of the work;
(2) Whether or not the one employed is engaged in a distinct occupation or business;
(3) The skill required in the particular occupation;
(4) Whether the employer supplies the tools and place of work for the person doing the work;
(5) The length of time for which the person is employed;
(6) The method of payment, whether by the time or by the job; and
(7) Whether or not the work is part of the regular business of the employer.

PDN, Inc., 586 So.2d at 841-42 (citing Miss. Employment Sec. Comm’n v. Plumbing Wholesale Co., 219 Miss. 724, 69 So.2d 814 (1954)). Our supreme court has visited this precise issue of whether health care workers referred by an agency are employees of the agency in two cases handed down on the same day: Miss. Employment Sec. Com. v. Total Care, Inc. and Miss. Employment Sec. Comm’n v. PDN, Inc. These companion cases maintain that the most significant factor in the determination of whether a master and servant relationship exists is the level of control the employer retains over the worker in the substance and detail of the work performed. Total Care, 586 So.2d at 837; PDN, 586 So.2d at 842. However, the PDN and Total Care Court were unwilling to promulgate a bright line test for determining whether an employment relationship exists, and this Court declines to formulate one here. A proper review of an arrangement between a worker and a health care service provider draws from the law of master and servant and “incorporates a consideration of all of the facts and the economic realities.” Total Care, 586 So.2d at 838.

¶ 11. In PDN, the Mississippi Supreme Court affirmed the circuit court’s order in finding that an assessment of unemployment taxes to the health care placement service was improper because the alleged employer did not exercise sufficient control or supervision over the details of the work by the nurses that it placed with service providers. PDN, 586 So.2d at 843. PDN contracted and obtained assignments for sitters, nurses’ aides, and nurses to perform at several health care facilities and private homes. Id. at 842. The workers were responsible for obtaining their own licensing and qualifications. Id. In some instances, the health care facility or individual client would pay the worker the hourly fee, and the worker would, in turn, pay PDN its portion of the fees collected. Id. This payment arrangement was entirely at the discretion of the client and worker. Id. The individual clients had the exclusive right to discharge the worker. Id. at 842. PDN was able to assess penalty fees to workers who did not perform assignments agreed upon. Id. The workers could secure replacements for themselves. Id. at 842. The workers had the freedom to refuse assignments offered to them by PDN. Id. at 840. Based on this evidence, the Commission found that “in the minds of the public and patients, PDN is the employer.” Id. at 841. On review, the supreme court held that the Commission’s finding on this point was without evidentia-ry'support. Id. at 842.

¶ 12. Likewise in Total Care, the Mississippi Supreme Court affirmed the circuit court’s judgment that a personnel service provider that assigned health care workers to hospitals and individuals was not required to make contributions under the Act because the workers were not employees under the common law definition of master and servant. Unlike the wage payment arrangement of PDN, Total Care’s payment agreement required the client to pay the full hourly charge directly to Total Care, then Total Care would pay the worker their contracted hourly rate from these proceeds. PDN allowed a client to pay a worker directly for his or her services and the worker, in turn, paid PDN its share of the wage. The Total Care workers were supervised and under the control of the client or health care facility. Total Care required the employee to have the necessary licensing for their respective fields. The workers were not required to take any particular assignments, and could be discharged by either the client or Total Care. The circuit court found and the supreme court affirmed that these factors, taken together as a whole, indicated that the workers were independent contractors and not employees. Total Care, 586 So.2d at 838.

¶ 13. The case at bar is distinguishable from the aforementioned cases PDN and Total Care. While Senior Partners is in the business of providing sitters and companions, much like the businesses in Total Care and PDN, in this case Senior Partners exerts sufficient control over its employees as to create a situation of employment, warranting the assessment of unemployment contributions.

¶ 14. Senior Partners and the workers entered into contracts which indicated that the workers were responsible for their own taxes, required each worker to obtain a fidelity bond, and stated that the workers were not employees. This contract referred to the sitters, nurses’ aids and nurses as independent contractors. We follow the supreme court in stating: “However forceful such [contract] language may be inter se, they cannot seriously urge that it is binding upon third parties or upon the state through its Employment Security Commission.” Total Care, 586 So.2d at 837. The mere fact that a contract between Senior Partners required a sitter to sign a contract naming the worker an “independent contractor” is not conclusive as to whether the worker is an employee. “It is not necessary for us to decide, and we do not decide, whether the contract taken alone discloses an employer-employee relationship .... [B]oth the contract of service and the facts of operation thereunder must be considered in determining the relationship.” Mozingo, 224 Miss. at 384-85, 80 So.2d at 79.

¶ 15. Here, Senior Partners contractually forbids the clients to pay the workers directly or to negotiate pay with the clients. Senior Partners sends the workers on assignments and bills the clients for the worker’s services. While it is an uncontested fact that Senior Partners paid the workers, we recognize that this fact does not conclusively resolve whether it was an employer. Total Care, 586 So.2d at 836. However, this payment arrangement is a factor addressed in PDN as indicative of the level of control the placement service exerts over the workers. PDN, 586 So.2d at 842.

¶ 16. There is no provision in the contract between Senior Partners and the workers concerning whether a worker is able to relinquish his or her duties and hire someone else in his or her place for an assignment. However, testimony from Senior Partners’ president adduced that workers are unable to replace themselves unless they are already contracted with Senior Partners and have permission. Senior Partners requires that each sitter have at least one year experience, pass a criminal background check and a tuberculosis skin test before taking assignments. The workers are also subject to random and post-accident drug testing. Therefore, should a sitter seek to replace himself or herself at an assignment, the replacement would have to contract with and be approved by Senior Partners. The fact that the worker cannot find their own replacement weighs in favor of a finding that Senior Partners operates as an employer. Id. Further, testimony developed the fact that Senior Partners retained the ultimate decision making power to discharge a sitter by dropping the worker from the rotation list. The contractual agreement required thirty days notice for either the worker or Senior Partners to terminate the employment relationship without cause. Senior Partners’ termination procedures differ from that of PDN where the recipient of the service retained the exclusive right to discharge the worker, or in Total Care, the workers could be discharged by either the client or Total Care. Total Care, 586 So.2d at 835; PDN, 586 So.2d at 842.

¶ 17. We find that in this case, Senior Partners is engaged in employment as a matter of law under the meaning of Mississippi Code Annotated section 71-5-11(I)(14), and thus Senior Partners, as an employer, is subject to paying unemployment contributions. However, nothing in this opinion should be construed to hold that every similarly situated health care service provider is an employer within the meaning of the Act. Each such service provider arrangement should be examined based upon the facts of the individual case. Because we affirm the holding that Senior Partners was an employer of Wilson, we uphold the circuit court in finding that Senior Partners should have reported her income and paid unemployment taxes accordingly.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Effective July 1, 2004, the powers and responsibilities of the Mississippi Employment Security Commission were transferred to the Mississippi Department of Employment Security, Office of the Governor, established by Mississippi Code Annotated section 71-5-101 (Supp.2006). See Miss.Code Ann. section 71-5-11(f) (Supp.2006).


source: Caselaw Access Project

author: HARWOOD, Justice. SEE, Justice HARWOOD, Justice.

license: Public Domain

text:
    Ex parte Rosemary TRAWICK. (In re Fred V. and Rhonda V., as parents and next friends of J.V. and R.V., minors v. Miss Emma’s Day Care Home et al.).
    1050749.
    Supreme Court of Alabama.
    Aug. 4, 2006.
    Opinion Overruling Application for Rehearing Dec. 8, 2006.

      Troy King, atty. gen., and Kevin C. Newsom and James E. Long, deputy attys. gen., and Sharon E. Ficquette, asst. atty. gen., Department of Human Resources, for petitioner, on rehearing.
    Rickman E. Williams III of Pitts, Pitts & Williams, Selma, for respondents.
   HARWOOD, Justice.

Rosemary Trawick, an employee of the Dallas County Department of Human Resources (“DHR”), a designated agent of the Alabama Department of Human Resources (“ALDHR”), petitions for a writ of mandamus directing the Dallas Circuit Court to vacate its order denying her motion for a summary judgment based on State-agent immunity and to grant that motion. We grant the petition in part, deny the petition in part, and issue the writ.

Facts and Procedural History

At all times pertinent to this appeal, Trawick was a social worker employed by DHR. Trawick’s employment with DHR largely consisted of functions relating to the licensing of child day-care and nighttime-care centers.

In late 1999, James Anderson and Emma Anderson applied for a license to operate a family day-care facility for children. Trawick was assigned the task of performing the investigation necessary to determine the Andersons’ eligibility for such a license and to award them the requested license, if appropriate. On January 1, 2000, DHR issued to the Andersons the requested license. The Andersons then commenced operation of Miss Emma’s Day Care Home (“Miss Emma’s”). Miss Emma’s license was renewed in 2002.

At some point before June 2000, Fred V. and Rhonda V. began gathering information on day-care centers, including Miss Emma’s. During this period, Rhonda contacted both the Selma Police Department and DHR in an attempt to determine whether any complaints had been filed or allegations leveled against Miss Emma’s. When Rhonda contacted DHR, she spoke with Trawick. Rhonda asked Trawick whether Miss Emma’s was a licensed facility and whether anyone had complained to DHR about any employees of Miss Emma’s. Trawick responded that Miss Emma’s was a licensed facility; she additionally stated that no one had filed any complaint against Miss Emma’s and that no employees of Miss Emma’s had ever been accused of anything improper. In fact, Trawick stated that the employees at Miss Emma’s were “great people” and “never [had] been accused of anything.” In reliance upon Trawick’s representation, Fred and Rhonda enrolled their two children in Miss Emma’s.

Fred and Rhonda allege that, in contradiction to Trawick’s representation, Traw-ick knew of a complaint that had been filed against James Anderson. Specifically, Fred and Rhonda allege that before Rhonda’s telephone inquiry, Mary B., the grandmother of a child enrolled at Miss Emma’s, had filed a complaint with DHR accusing James Anderson of having molested her granddaughter. Fred and Rhonda learned this information in 2002, after James Anderson was arrested and charged with not only sexually abusing one of their children, but also with sexually abusing Mary B.’s granddaughter.

On December 31, 2003, Fred and Rhonda sued numerous parties, including Traw-ick in both her individual and official capacities. Their complaint alleged, among other things, that Trawick negligently and/or wantonly failed to advise or warn them about the complaint alleging that James Anderson had sexually abused a child enrolled at Miss Emma’s, that Traw-ick failed to maintain a complaint file and/or a report of the alleged abuse, that Trawick failed to properly investigate the employees of Miss Emma’s, and that Trawick had negligently licensed and/or renewed the license for Miss Emma’s.

Trawick filed a motion for a summary judgment, arguing that she was immune from suit under the doctrine of State-agent immunity. The trial court denied Traw-ick’s motion on February 2, 2006. Trawick has timely petitioned this Court for a writ of mandamus. Trawick has failed to in-elude among the attachments to her petition the summary-judgment motion she filed with the trial court. The Alabama Rules of Appellate Procedure require the attachment of “parts of the record that would be essential to an understanding of the matters set forth in the petition.” Rule 21(a)(1)(E), Ala. R.App. P. From the answer and briefs filed "with this Court, however, it is clear that Trawick has preserved for our review her immunity argument. Because of the clarity of the issue before us, we do not consider Trawick’s omission from her petition of a copy of her summary-judgment motion to be fatal to her petition.

Standard of Review

“ ‘ “While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: “(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).’
“Ex parte Nall, 879 So.2d 541, 543 (Ala.2003).
“This Court has established a ‘burden-shifting’ process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show, that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). ‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” ’ Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).”

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006).

Analysis

Trawick argues that she was immune from suit in both her official and individual capacities. The complaint alleges that Trawick is liable “individually and as an employee of Dallas County Department of Human Resources ” (emphasis added), and proceeds to demand monetary compensation. With respect to the claims against Trawick in her official capacity, she is clearly correct. As we made clear in Ex parte Butts, 775 So.2d 173, 177 (Ala.2000), “[a] complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by Art. I, § 14, Alabama Constitution of 1901. Ex parte Alabama Dep’t of Forensic Sciences, 709 So.2d [455,] 457 [ (Ala.1997) ].” Moreover, “a county department of human resources is considered to be a State agency for purposes of asserting the defense of sovereign immunity.” Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277, 1279 (Ala. 1996) (citing Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992)). Thus, to the extent the trial court denied Trawick’s summary-judgment motion as it pertained to her liability in her official capacity, we grant Trawick’s petition and issue a writ of mandamus directing the trial court to vacate its order and enter a summary judgment for Trawick on the claims asserted against her in her official capacity.

We next examine Trawick’s argument that she is entitled to immunity in her individual capacity because her alleged conduct fits within one of the categories of conduct protected under Ex parte Cranman, 792 So.2d 392 (Ala.2000), in which this Court explained, in pertinent part:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner....”

792 So.2d at 405.

In her motion for a summary judgment, Trawick bore the burden of presenting the trial court with evidence indicating that her actions, and, if relevant, the manner in which she undertook those actions, represented a discharge of duties of the type included in Cranman category (3). If Trawick demonstrated that to be the case, she met her burden, and the burden then shifted to Fred and Rhonda to present substantial evidence indicating that there were circumstances, of the type also described in Cranman, which served to preclude such immunity.

In her petition, Trawick attempts to demonstrate that each aspect of her “conduct made the basis of the claim” was undertaken in fulfillment of a duty imposed by law. She first notes the allegation that she failed to properly license, investigate, and monitor Miss Emma’s. Although Trawick acknowledges that this is one of the claims in the complaint and proceeds to offer a thorough history of exactly what she did in that connection, at no point does she actually argue that she was required by law to engage in or to refrain from certain actions. To the extent the trial court denied Trawick’s summary-judgment motion with respect to this allegation, we cannot hold that the trial court erred.

At no point in her petition does Trawick even acknowledge the allegation that she failed to maintain a complaint file and/or a report of the alleged abuse by James Anderson of Mary B.’s granddaughter. It goes without saying that she does not defend her conduct in that regard as having been required by law. Again, then, we cannot hold that the trial court erred in denying Trawick’s summary-judgment motion as to this allegation.

Trawick does raise, and devotes the overwhelming majority of her brief to, the claim that she negligently or wantonly failed to advise or warn Rhonda about any complaints accusing James Anderson of sexual abuse of a child enrolled at Miss Emma’s. The conduct alleged to form the basis for this claim is that when Trawick received Rhonda’s telephone call asking whether any complaints had been filed against Miss Emma’s, Trawick told Rhonda that there were no complaints against Miss Emma’s at that time, despite the fact that a complaint indeed had been filed against Miss Emma’s. . In her petition, Trawick argues only that she is entitled to State-agent immunity under category (3) of the Cranman test.

The central focus of the dispute between the parties concerns Ala.Code 1975, § 26-14-8. That statute provides a list of entities to which child-abuse-and-negleet records may be made available. Section 26-14-8 provides, in pertinent part:

“(c) The Department of Human Resources shall establish and enforce reasonable rules and regulations governing the custody, use and preservation of the reports and records of child abuse and neglect. Child abuse and neglect reports and records shall be limited to the purposes for which they are furnished and by the provisions of law under which they may be furnished. The reports and records of child abuse and neglect and related information or testimony shall be confidential, and shall not be used or disclosed for any purposes other than:
“(1) To permit their use to prevent or to discover abuse or neglect of children through the information contained therein.... ”

Trawick argues that this statute imposed on her a duty to keep confidential any information regarding the complaint made against James Anderson. Fred and Rhonda assert, however, that in Trawick’s summary-judgment motion — which, as noted above, has not been included by either party in attachments reviewable by this Court — she conceded that under the statute she was “permitted” to release the information because her disclosure to Rhonda could potentially “prevent ... abuse or neglect of children.” Regardless of whether Trawick did so in her summary-judgment motion, she has clearly conceded in her reply brief to this Court that § 26 — 14—8(c)(1) is “clearly permissive.” (Trawick’s reply brief, at 10.)

Trawick’s burden under Cranman is to make a prima facie showing that her actions were dictated by a duty imposed by statute, rule, or regulation. By conceding that she was “permitted” to disclose this information under the circumstances of this case, however, Trawick has conceded that under § 26-14-8 she was under no “duty” to keep confidential the information regarding the complaint against James Anderson.

Trawick also argues that Ala.Code 1975, § 38-7-13, requires that “[r]ecords regarding children and facts learned about children and their relatives shall be kept confidential by the child-care facility and by the department.” The basis of Fred and Rhonda’s claims, however, is not that Trawick refused to reveal information about a child or his family; rather, she is faulted for allegedly misrepresenting the safety of a child-care facility. This statute, then, imposed no duty to which Trawick was adhering in making her alleged representations to Rhonda.

Section 38-7-13 does, however, along with § 26-14-8, authorize ALDHR to promulgate rules and regulations governing the use and disclosure of certain information related to children and the child-care facilities they attend. Pursuant to that authority, ALDHR has implemented rules governing confidential materials. See Ala. Admin. Code (Department of Human Resources), Regulation 660-1-6. Trawick argues that Regulation 660-1-6-.07(7) “restrict[s] publicly available information on complaints against child care facilities to ‘founded’ or ‘indicated’ complaint determinations.” (Petition, at 14.) That regulation provides, in pertinent part:

“Upon the request of any adult, non-confidential information, including ... founded/indicated complaints of violations of the Code of Ala.1975, Title 38, Chapter 7, Minimum Standards, or Administrative Rules of this Department by individual ... non-exempt child care facilities ... located in a particular ... county may be disclosed or released. Except for official determinations relating to character and suitability to be involved in child care, information relating to the character and good name of any particular unlicensed or non-exempt person, group of persons, agency, association, or organization shall not be disclosed or released. Child abuse or neglect complaints and records shall not be disclosed or released except as provided for in Rule 660-1-6-.05. Names and facts learned about children and their families shall remain confidential.... Founded/indicated child care license complaint information includes only:
“(a) Child Care Minimum Standards violations] actually observed by the licensing consultant or other DHR personnel;
“(b) Child Care Minimum Standards violations admitted to by facility personnel;
“(c) Child Care Minimum Standards violations determined by an administrative or court decision.”

Trawick’s argument misapprehends the regulation. Although the regulation does allow the disclosure of “founded” and “indicated” complaint information, it does not authorize this disclosure as an exception to a general rule of confidentiality. Rather, the regulation avoids defining information as confidential or noneonfidential, stating only that certain noneonfidential information may be disclosed. Thus the regulation cited by Trawick fails to support her argument that she was prohibited from releasing information about James Anderson to Rhonda.

Finally, Trawick cites in support of her argument Ala. Admin. Code (Department of Human Resources), Regulation 660-1-6-.05, which governs child-abuse-and-neglect records. That regulation provides, in pertinent part:

“Child Abuse and Neglect (CA/N) records and other confidential information shall be disclosed and released without a subpoena to:
“(a) persons in a position to help or assist in the prevention or discovery of abuse or neglect of children through the information contained therein.... ”

The regulation continues with a list of eight additional categories of entities to which child-abuse-and-neglect records may be disclosed. Although Trawick correctly notes that “the list does not include parents seeking information on a DHR-licensed child care facility,” that list does include “persons in a position to help or assist in the prevention ... of abuse or neglect of children.” Given Trawick’s earlier concession that she was permitted to release information “to prevent ... abuse ... of children,” she can hardly argue that she was prohibited from releasing that information to “persons in a position” to do just that.

Because Trawick has failed to cite to this Court any statute, rule, or regulation that she contends imposes upon her a duty to keep confidential any information she may have learned about James Anderson’s improprieties with children at Miss Emma’s, she has necessarily failed to meet her initial burden of demonstrating that her conduct falls within a category of conduct that is protected under Cranman.

Moreover, although Trawick’s argument presupposes that she could withhold with impunity information concerning the complaint lodged against James Anderson, that is not the scenario presented by the materials accompanying the parties’ submissions to this Court. Rather, we must accept as true for purposes of this review that Trawiek undertook to disclose to Rhonda the presence or absence of child-abuse-and-neglect reports relating to Miss Emma’s and incorrectly advised her that no such reports were of record or known to Trawiek. Thus, Trawiek voluntarily bypassed any confidentiality of records and information she might otherwise have been entitled to maintain. We therefore conclude that Trawiek has failed to demonstrate a clear legal right for which a writ of mandamus should issue, and we deny the petition as to the issue of Trawick’s claim of State-agent immunity for actions taken in her individual capacity.

Trawiek finally argues that Fred and Rhonda’s claims are barred by the statute of limitations. In their answer, however, Fred and Rhonda note that “this argument was not made by [Trawiek] to the trial court and is therefore not properly before this appellate court.” (Answer, at 16.) Trawiek tacitly admits as much, responding to that assertion in her reply brief only by saying that she “did raise the statute of limitations in her Mandamus Petition.” (Emphasis added.) (Trawick’s reply brief, at 16.) Because it is undisputed that Trawiek failed to raise this argument in her summary-judgment motion, we cannot hold, on the basis of the statute of limitations, that the trial court erred by denying that motion.

Conclusion

We grant the petition for the writ of mandamus with respect to Trawick’s claim of State-agent immunity in her official capacity. We deny the petition with respect to Trawick’s claim of State-agent immunity in her individual capacity and to her statute-of-limitations argument.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

NABERS, C.J., and LYONS, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

SEE and SMITH, JJ., concur in the rationale in part and concur in the result.

SEE, Justice

(concurring in the rationale in part and concurring in the result).

I concur in the main opinion as to its resolution of all of the issues except one, as to which I concur only in the result.

Trawiek argues that in her individual capacity she is entitled to immunity from Fred and Rhonda’s claim that she negligently and wantonly failed to warn Rhonda about the complaints of James Anderson’s alleged child abuse. Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000), provides immunity to a State agent when “the conduct made the basis of the claim against the agent” is based upon her “discharging duties imposed ... by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner.... ” Trawiek claims that she is immune from Fred and Rhonda’s failure-to-warn claim because, she says, she was legally obligated to keep the complaints against James Anderson confidential.

Fred and Rhonda do not complain, however, that Trawiek kept information confidential. Instead, they complain that she actively misrepresented facts to Rhonda. Trawiek does not point to any statute, rule, or regulation that would impose upon her a duty to misrepresent facts to someone such as Rhonda. As the main opinion States, Trawick stated to Rhonda that the employees at Miss Emma’s were “great people” and “never [had] been accused of anything,” when, in fact, a child-abuse complaint had been filed against James Anderson. Because Trawick cites no statute, rule, or regulation that put her under an obligation to misrepresent facts to Rhonda, the Cranman provision upon which Trawick relies does not immunize her from suit. Because I differ in the rationale upon which I reach the conclusion that Trawick is not entitled to immunity in her individual capacity under Cran-man category (3), I concur only in the result as to this issue; in all other regards, I concur.

SMITH, J., concurs.

On Application for Rehearing

HARWOOD, Justice.

In her application for rehearing with respect to our August 4, 2006, opinion denying her petition for the writ of mandamus, Rosemary Trawick, a social worker for the Dallas County Department of Human Resources (“DHR”), argues that our decision “will have disastrous and wide-ranging effects on the State government’s ability to provide essential protective social services” and that “if [DHR] workers cannot make discretionary or professional decisions within the authority granted by the statute and be covered by State-agent immunity, there will be no ■ one to do the work.” In her rehearing application, she also attempts to present new arguments under the guise that those arguments were in fact made on original submission or that they should be recognized as “jurisdictional,” and she moves to “supplement the record” so that she can “file additional evidentiary materials.”

Because of Trawick’s apparent misapprehension about what our August 4, 2006, opinion actually held, resulting in her dire predictions of calamitous results for the State in its ability to provide protective social services, we respond to her application for rehearing for the purpose of putting things in proper perspective. In doing so, we emphasize that our opinion simply responded (1) to the facts put before us by virtue of the parts of the record selectively presented by the parties, and (2) to the legal arguments Traw-ick chose to make based on those facts.

Trawick was sued in her individual and official capacities; the complaint alleged, among other things, that Trawick had failed to inform the plaintiffs, Fred V. and Rhonda V., suing as parents and next friends of J.V. and R.V., minors, that a complaint had been made accusing James Anderson, a co-owner with his wife, Emma, of Miss Emma’s Day Care Home, of sexual abuse. The trial court denied Trawick’s motion for a summary judgment, and she filed a petition for a writ of mandamus in this Court, which we granted as to her claim of State-agent immunity in her official capacity but denied with respect to her claim of State-agent immunity in her individual capacity and with respect to her argument regarding the statute of limitations.

The thrust of Trawick’s argument in her petition for the writ of mandamus was that she is entitled to State-agent immunity under immunity category (3) of Ex parte Cranman, 792 So.2d 392 (Ala.2000), which affords immunity to a State agent “discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner....” 792 So.2d at 405. In her application for rehearing Trawick states that we mistook her argument on original submission and that it was her position that she was under a legal duty to keep confidential the sexual-abuse information because the prior complaint against James Anderson had been resolved as “not indicated.” Therefore, she argues, “by statute disclosure was prohibited,” citing a subsection of the Child Abuse and Neglect Reporting Act, Ala.Code 1975, § 26 — 14—8(c)(1). She faults this Court for quoting “only part” of that subsection in its opinion. In our opinion we quoted the Code section “in pertinent part” because that was the exact and only language Trawick chose to quote in her original submission to us. Specifically, Trawick first stated, in her petition, only that “DHR child abuse and neglect ‘reports and records and ... related information or testimony shall be confidential and shall not be used or disclosed for any purpose’ other than the ones listed in the statute. Ala. Code § 26-14-8(c).” In her reply brief she elaborated to state that

“[t]he [Child Abuse and Neglect Reporting] Act provides in part as follows:
‘“The reports and records of child abuse and neglect and related information or testimony shall be confidential, and shall not be used or disclosed for any purposes other than:
“ ‘(1) To permit their use to prevent or to discover abuse or neglect of children through the information contained therein,.... ’
“ALA[.] CODE § 26-14-8(c).”

We quoted in our opinion that same “part” of the subsection, exactly as truncated by Trawick. She now points out that subsection § 26-14-8(c)(l) reads in its entirety to provide that reports of child abuse shall not be disclosed for purposes other than:

“(1) To permit their use to prevent or discover abuse or neglect of children through the information contained therein, except reports or records in cases determined to be ‘not indicated’ shall not be used or disclosed for purposes of employment or other background checks; or”

(Emphasis supplied by Trawick.)

Using that additional language as a springboard for a new argument on rehearing, Trawick contends that because she stated in the affidavits submitted to the trial court in support of her summary-judgment motion that she had understood that earlier accusations of sexual abuse reported against James Anderson had been determined to be “not indicated,” she was not at liberty to disclose those accusations to Rhonda V. when Rhonda V. telephoned DHR to inquire if there had ever been any complaints or allegations of abuse against the child day-care facility operated by James and Emma Anderson. In other words, Trawick argues that, based on her understanding that the charges against James Anderson had been determined by another DHR worker to be “not indicated,” the reports of those charges could not be disclosed for purposes of “a background check.” Therefore, Trawick goes on to now argue, she was under a mandatory statutory duty not to disclose the fact that a report of sexual abuse had been made against James Anderson and was thus discharging her statutory duty when she did not disclose the sexual-abuse report against James Anderson to Rhonda V. As noted, however, in her petition for the writ of mandamus Trawick never quoted, or in any way alluded to, the concluding part of § 26-14-8(c)(1) on which she now relies; never argued that any part of subsection (c)(1) imposed on her a mandatory duty; and even now does not offer any discussion, much less citation to authority, concerning what constitutes “other background checks” for purposes of that subsection.

In fact, when Trawick offered her only discussion on original submission of the effect of § 26-14-8(c)(l), she stated categorically that “[t]he above Section is clearly permissive not mandatory.” Trawick now argues that she “fell under the ‘non-permissive’ portion of a ‘permissive’ subsection of a statute” and that the part of our opinion that “addresse[d] the ‘permissive’ nature of the statute, does not apply to the facts of the case or the argument made by Trawick.” All we stated in our opinion on original submission was that Trawick had taken the position that the “pertinent part” of subsection § 26-14-8(c)(1) quoted in the opinion was “clearly permissive” and thus, we explained, could not impose on her a mandatory statutory duty under Cranman State-agent immunity category (3).

Trawick argues in her rehearing application,' as she did in her petition, that she established that she complied with the statutory mandatory duty not to disclose any information about the sexual-abuse report lodged against James Anderson, because her affidavits submitted in support of her motion for a summary judgment explained that she could not recall having had any conversation with Rhonda V. and that, in any event, she would not have disclosed the information to Rhonda V. That, of course, flies in the face of Rhonda V.’s testimony that she spoke with Trawick over the telephone, inquired if there had been any complaints made against Miss Emma’s Day Care Home, and was told that no complaints had been filed against Miss Emma’s, that none of its employees had ever been accused of anything improper, and that its employees were all “great people” and had “never been accused of anything.”

We took pains in our opinion to point out in footnote 1 that, given our standard of review, we were obliged to view the facts in a light most favorable to the plaintiffs and that Trawick herself acknowledged in her petition that we must view the facts in that light. Trawick now notes that Justice See and Justice Smith took “a more narrow approach to the issue,” basing their special writing concurring in the rationale in part and concurring in the result on the fact that the contention by the plaintiffs was that Trawick had actively misrepresented facts to Rhonda V.; she responds, however, to that approach in her rehearing application simply by referencing the fact that in one of her affidavits filed with the trial court she “denies making any misrepresentations and states that she has never discussed complaints with [Fred V. and Rhonda V.].” Her denial in that regard is unavailing, given the controlling standard of review.

Finally, Trawick revisits the statute-of-limitations issue. We explained in our original opinion that Trawick had not included with her petition a copy of her summary-judgment motion and that Fred V. and Rhonda V. had asserted in their answer to the petition that Trawick had not asserted a statute-of-limitations defense before the trial court. We noted that Trawick had not contradicted that assertion in her reply brief, but had simply stated cryptically that she “did raise the statute of limitations in her Mandamus Petition.” We therefore took it to be “undisputed” that a statute-of-limitations argument had not been raised in the summary-judgment motion and that, therefore, we could not hold that the trial court had erred on that basis in denying Trawick’s summary-judgment motion. Trawick now moves to “supplement the record” so as to supply a copy of the omitted summary-judgment motion, arguing that it will show that she did include in it a statute-of-limitations argument. Of course, there is no “record on appeal” in a mandamus proceeding; it was Trawick’s obligation to attach to her petition “[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matter set forth in the petition.” Rule 21(a)(1)(E), Ala. R.App. P. Trawick attempts to justify her belated submission to this Court of the summary-judgment motion on the theory that the expiration of the statute of limitations in a criminal case and in a workers’ compensation case creates a jurisdictional bar and that “[sjince the issue of immunity is jurisdictional and the statute of limitations is jurisdictional in some contexts, the statute of limitations should be jurisdictional in immunity cases where the defendant is the state, a state agency, or an official or employee of the state.” Laying aside the issue whether the expiration of the statute of limitations in criminal cases and workers’ compensation cases actually creates a jurisdictional bar as Trawick contends, she offers no citation to authority or any analysis as to why a statute-of-limitations defense is so embedded in a State-agent-immunity defense that it should “share the jurisdictional” status of the State-agent-immunity defense. Consequently, we deny the motion to supplement the record to allow the belated submission of a part of the record available to Trawick on original submission, but which she chose to omit from the materials filed with her petition.

Moreover, Trawick ignores the fact that the complaint, which Trawick attached as an exhibit to her petition, states that “plaintiffs [J.V.] and [R.V.] are minor children who bring this lawsuit by and through their mother and father, Rhonda [V.] and Fred [V.].” Another exhibit to Trawick’s petition reflects that J.V. was born September 18, 1997, and R.V. was born November 17, 1999. The attachments to the original petition also include the combined narrative summary of undisputed facts and brief that the plaintiffs filed in opposition to the summary-judgment motions of the various defendants, and the last page of the brief points out to the trial court that because J.V. and R.V. were minors, § 6-2-8, Ala.Code 1975, suspends the statute of limitations, allowing them a period of three years after reaching the age of majority to file a civil case. Consequently, the plaintiffs correctly argued, the claims asserted by J.V. and R.V. were not time-barred. Nonetheless, in her application for rehearing Trawick persists in her argument that because the alleged abuse of' J.V. and R.V. occurred, and was discovered, more than two years before this action was filed, the action is barred by the two-year statute of limitations set forth at § 6-2-38C), Ala.Code 1975. Suffice it to- say that she has not shown a clear legal right to prevail on a statute-of-limitations defense.

Finally, Trawick requests oral argument, stating that in our opinion on original submission we misapplied or misapprehended applicable law and dispositive facts and asserting that it will have disastrous and wide-ranging effects on the State’s ability to provide essential, protective, and social services to its citizens. We believe that the foregoing explanation of the limited focus of our. August 4, 2006, opinion sufficiently allays Trawick’s concerns of any far-reaching implications, which are not warranted by the actual import of that opinion. Consequently, we deny the request for oral argument, and we deny the application for rehearing.

ORAL ARGUMENT DENIED; APPLICATION OVERRULED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . Before the trial court, Trawick denied that she was contacted by Rhonda or that she spoke to her with regard to Miss Emma’s. For purposes of her petition to this Court, Trawick has accepted as true Fred and Rhonda’s allegations. Even were Trawick to have contested those allegations, however, this Court’s standard of review for a summary judgment, even when reviewed on a mandamus petition, is to view the facts in the light most favorable to the nonmovant. Ex parte Sawyer, 876 So.2d 433, 439 (Ala.2003); Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000).

      . Cranman was a plurality decision. We subsequently adopted the test set forth in Cran-man by a majority vote in Ex parte Butts, supra.


author: STUART, Justice.

text:
    SAMFORD UNIVERSITY v. CITY OF HOMEWOOD.
    1050444.
    Supreme Court of Alabama.
    Oct. 13, 2006.
    Rehearing Denied Dec. 8, 2006.
    Jesse P. Evans III and Stephen A. Rowe of Adams & Reese, LLP, Birmingham, for appellant.
    Michael G. Kendrick, Susan J. Walker, and Brent G. Grainger of Waldrep, Stewart & Kendrick, LLC, Birmingham, for appellee.
    Edward S. Allen, Ed R. Haden, and Matthew F. Carroll of Balch & Bingham, LLP, Birmingham, for amicus curiae Alabama Power Company, in support of the appellee.
   On Application for Rehearing

STUART, Justice.

The opinion of August 18, 2006, is withdrawn and the following is substituted therefor.

On April 23, 2003, the City of Home-wood filed in the Probate Court of Jefferson County an application for an order of condemnation. The application was to condemn certain property, formally described as Lot 1 of University Park West, owned by Samford University. At the same time, Homewood filed a notice of lis pendens, pursuant to § 18-1A-75, Ala. Code 1975, giving prospective purchasers and encumbrancers of the property notice of the condemnation action. On August 28, 2003, the probate court entered an order granting the application for the order of condemnation and appointing commissioners to assess the compensation to which Samford was entitled. §§ 18-1A-279 through-281, Ala.Code 1975. On November 4, 2003, the probate court recorded the report of the commissioners, which awarded Samford $1,500,000 as compensation for the condemnation of Lot 1. On November 10, 2003, the probate court then entered its order confirming the report of the commissioners and condemning the land upon payment of the award.

On November 21, 2003, Samford filed a notice of appeal in the Jefferson Circuit Court for a trial de novo from the order of the probate court confirming the report of the commissioners and condemning the land upon payment of the award. Five days later Samford amended its notice of appeal to challenge Homewood’s right to take the property. On February 19, 2004, Homewood paid into the probate court the sum of $1,505,054, the amount of damages and costs assessed by the probate court’s November 10, 2003, order. On February 19, Homewood posted in the probate court an appeal bond in the sum of $3,000,000, i.e., double the amount of the assessed damages. See § 18-1A-284, Ala.Code 1975. On that date, the probate court issued an order, stating:

“[T]he Court acknowledges receipt of the amount of damages and costs in the amount of One Million, Five Hundred Five Thousand, Fifty-four Dollars ($1,505,054.00) and the posting of a bond in the amount of Three Million Dollars ($3,000,000.00), and does determine that such bond is made with good and sufficient sureties and the Court does, by the execution of this Order, approve such sureties and does order that, the City of Homewood has the right of entry upon the property described in the Order (the ‘Property5) pending the appeal, which has been taken by Samford University as owner of the Property to the Circuit Court of Jefferson County, Alabama.
“That the City of Homewood is entitled to the right of entry upon the Property and to take possession of and to use the Property pending the appeal in the Circuit Court of Jefferson County.”

On April 12, 2004, the probate court certified and transferred to the circuit court various documents pertaining to the condemnation and checks in the amount of $1,500,000. On June 10, 2004, Samford moved the circuit court to invest the $1,500,000. On June 23, 2004, the circuit court granted Samford’s motion and directed that the $1,500,000 be placed in an interest-bearing account.

On March 15, 2005, Homewood moved for a summary judgment. On April 22, 2005, the circuit court entered a summary judgment for Homewood declaring that Homewood had a right to condemn the property. The case then went to trial on the compensation issue.

On July 14, 2005, following a jury trial, the jury awarded Samford $2,650,000 as just compensation for the property. The circuit court entered its order on that verdict on July 14, 2005. On August 10, 2005, Homewood deposited .$1,150,000, the difference between the jury verdict of $2,650,000 and the commissioners’ award of $1,500,000 previously deposited with the clerk of the Jefferson Circuit Court. On August 26, 2005, Samford filed a motion requesting that the circuit court invest the $1,150,000 deposited by Homewood on August 10, 2005, in an interest-bearing account. The circuit court granted Sam-ford’s motion and ordered the $1,150,000 be deposited in an interest-bearing account.

On October 12, 2005, the circuit court entered a final judgment, awarding Sam-ford $2,650,000 for Lot 1 and setting the amount of interest awarded. On October 21, 2005, Samford moved to alter or amend the final judgment. Homewood responded, and on November 18, 2005, the circuit court amended its judgment as to the amount of the interest award. The circuit court in its amended judgment held that Samford was not entitled to prejudgment interest because, it reasoned, Homewood had not taken actual or physical possession of the property. Samford appealed.

Standard of Review

The facts of the case are not in dispute. The dispute involves when Homewood’s actions constituted a legal taking of Samford’s property; therefore, this Court is presented with a question of law. Thus, there is no presumption of correctness in favor of the circuit court’s judgment, and this Court’s review of the legal issues presented is de novo. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996).

Analysis

In 1985 the Alabama Legislature passed the Eminent Domain Code, §§ 18-1 A-l through 18-1A-311, Ala.Code 1975. The Eminent Domain Code provided for prejudgment interest on condemnation awards, to be computed from the “date of valuation” to the date of the circuit court’s judgment. Williams v. Alabama Power Co., 730 So.2d 172, 175 (Ala.1999). Before the enactment of the Eminent Domain Code, prejudgment interest was an element of compensation to be determined by the jury. McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780 (1969); Southern Natural Gas Co. v. Ross, 290 Ala. 195, 275 So.2d 143 (1973).

In 1995, the legislature amended the Eminent Domain Code to address only postjudgment interest, providing that the judgment would include interest at the 52-week United States Treasury Bills rate. § 18-1A-211, Ala.Code 1975. It was again amended in 2004. Section 18-1A-211 now provides, in pertinent part, as follows:

“[T]he judgment shall include interest at a rate equal to the most recent weekly average one-year constant maturity yield, as published by the Board of Governors of the Federal Reserve System, upon the unpaid portion of the compensation awarded. The interest shall commence to accrue on the date of entry of the judgment.

(Emphasis added.)

Clearly, the language in § 18-1A-211, Ala.Code 1975, as amended in 1995, does not provide for prejudgment interest. The Commentary to § 18-1A-211, however, was not amended to reflect this change; it states that § 18-1A-211 addresses prejudgment, rather than postjudgment, interest. This Court, in an opinion issued four years after § 18-1A-211 was amended to delete the reference to prejudgment interest, held that prejudgment interest was a component of the just compensation mandated by the Alabama Constitution for a taking of private property. Williams v. Alabama Power Co., supra.

Today, we are presented with the following question — when does prejudgment interest begin to run on a condemnation award? Our analysis requires us to address the history of prejudgment interest on compensation awards, which this Court has not addressed since the 1995 amendment to § 18-1A-211, Ala.Code 1975, and the legislature’s apparent repeal of the statutory provision for prejudgment interest on a compensation award.

In 1969, before the enactment of the Eminent Domain Code, this Court addressed the issue of when prejudgment interest begins to run on a condemnation award. In McLemore, supra, Alabama Power Company both posted bond and took possession of the disputed premises on the same day. Under those circumstances, this Court held, in accordance with the rule implemented in Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143 (1958), that “the owner [of the condemned property] is entitled to interest from the date [the] condemnor takes actual possession until the date of the jury’s verdict.” McLemore, 285 Ala. at 27-28, 228 So.2d at 787. This Court reasoned that it is more just for the party who initiated the condemnation proceedings to bear the risk of loss than the “party who is wholly without fault and [who] did not initiate the proceedings.” 285 Ala. at 27, 228 So.2d at 787. This Court explained this rationale as follows:

“During the time between the con-demnor’s taking actual possession and the jury’s award, the owner is deprived of the use of his land and also of the use of the money due him for the land. The condemnor is also deprived of the use of the money it has paid into court but the condemnor does have the use of the land.”

McLemore, 285 Ala. at 27, 228 So.2d at 787.

Four years later this Court expounded upon the question of when prejudgment interest begins to run in Southern Natural Gas, supra. This Court held that the date the prejudgment interest on the condemnation award begins to run is the day the bond is approved because that is the day the condemnor attains authority to enter the land. Recognizing that § 235, Ala. Const.1901, provided that municipal corporations and other entities and individuals entitled to take property for public use may pay a bond into court in double the amount of damages assessed in order to gain the right of entry upon the disputed property, this Court reasoned:

“When this bond in double the amount of the award was approved, the condem-nor for the first time had the right to enter the land and start to work. That was the first time in this proceeding that the owners lost the right to use the condemned strip as they pleased. This was the first day on which interest could have started, and we think that the interest should have been computed from the day the bond was approved and filed, July 26,1965.”

Southern Natural Gas, 290 Ala. at 199, 275 So.2d at 146.

This Court also held, however, that in the rare circumstance in which the con-demnor takes possession before filing a condemnation proceeding, the prejudgment interest would begin to run as of the date of the condemnor’s entry upon the property. Southern Natural Gas, 290 Ala. at 200, 275 So.2d at 147; see also Southern Ry. v. Cowan, 129 Ala. 577, 29 So. 985 (1901).

Southern Natural Gas remained determinative as to the issue of when prejudgment interest begins to run until 1985, when the Alabama Legislature enacted the Eminent Domain Code. Section 18-1A-211(a) of the Eminent Domain Code, as enacted in 1985, provided that prejudgment interest “shall commence to accrue at the date of valuation.” Following the passage of the Eminent Domain Code, this Court held that “the valuation date is the date the application to condemn is filed in the probate court.” State v. McGee, 543 So.2d 669, 671 (Ala.1989).

This was the rule until § 18-lA-211(a) was amended in 1995 to address only post-judgment, rather than prejudgment, interest. Four years after the amendment to § 18-lA-211(a), this Court held that although Alabama was now without a statutory provision specifically providing the right to prejudgment interest in a condemnation action, prejudgment interest was a part of the just compensation mandated by the Alabama Constitution for a taking of property. Williams v. Alabama Power Co., 730 So.2d at 174-76. This Court held that prejudgment interest was to be calculated “from the date of the taking.” Williams, 730 So.2d at 178. This Court in Williams did not, however, address what constituted “the date of the taking” but stated that the determination of that date would be “a factual finding.” Id. Therefore, the question of what constitutes the “date of the taking” for purposes of determining when prejudgment interest on a condemnation award begins to run has not been answered by this Court since the Eminent Domain Code was amended in 1995 and the statutory right to prejudgment interest was extinguished.

The question of law as to what is the date of the taking and, consequently, when prejudgment interest begins to run on a condemnation award is now squarely before this Court.

This Court has stated that when common law is repealed by a statute that itself is subsequently repealed, the common law is thereby revived.

“However, unless we would attribute to the Legislature a general lack of understanding as well as inattention to the requirement of the Constitution, there was but one purpose to be inferred — the purpose to re-enact the law which had theretofore been repealed by the original repealing act. The rule of common law was that when a statute or common-law rule was repealed and afterwards the repealing act was itself repealed by a later statute, the earlier law was thereby revived. This rule rested upon the presumed intent of the Legislature in passing the later repealing statute.”

Cooke v. Burke, 177 Ala. 155, 159-60, 58 So. 984, 986 (1912); see also Ex parte James, 836 So.2d 813 (Ala.2002); and Albany Warehouse Co. v. F.B. Fisk Cotton Co., 12 Ala.App. 527, 532, 67 So. 728, 730 (1914).

As noted above, until the Eminent Domain Code was adopted in 1985, Southern Natural Gas was determinative as to the issue of when prejudgment interest begins to run. The 1995 amendment to § 18-1A-211, Ala.Code 1975, effectively repealed this 1985 change, thereby reenacting the rule of Southern Natural Gas. This Court now reaffirms the rule set out in Southern Natural Gas — that prejudgment interest begins to run on the date the condemnor posts bond on a prospective condemned property, unless the condem-nor has taken actual possession of the property before posting bond, in which case the prejudgment interest on the condemnation award begins to run on the date the condemnor took actual possession.

Samford asserts that the date of taking and, therefore, the date when prejudgment interest should begin to run is the date on which Homewood filed its application for an order of condemnation and notice of lis pendens — April 23, 2003. Samford argues that Homewood’s filing of the application and notice of lis pendens “effectively ousted Samford of its ability to derive income from its property by transfer” and therefore constituted a taking. In Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984), the United States Supreme Court specifically discounted this argument:

“It is certainly possible, as [the con-demnee] contends, that the initiation of condemnation proceedings, publicized by the filing of a notice of lis pendens, reduced the price that the land would have fetched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. At least in the absence of an interference with an owner’s legal right to dispose of his land, even a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation under the Fifth Amendment.”

467 U.S. at 15, 104 S.Ct. 2187 (citations and footnote omitted).

The Supreme Court held that the taking of the condemnee’s land occurred on the date the government paid for and acquired title to the land. 467 U.S. at 16, 104 S.Ct. 2187. However, the Court also noted that the commission’s valuation of the con-demnee’s land occurred three years before the taking and that the condemnee was entitled to the value of the land as of the time of taking, when the government acquired title to the land. 467 U.S. at 17, 104 S.Ct. 2187.

Applying the law and reasoning of Kirby Forest to the facts of this case, we reject Samford’s argument that the date of taking and consequently the date the prejudgment interest began to accrue was the date Homewood filed its application for condemnation and notice of lis pendens. The record establishes that on February 19, 2004, the probate court accepted the appeal bond posted by Homewood and that at that time Homewood had right of entry onto the property; therefore, in accordance with Williams and Southern Gas, Samford is entitled to prejudgment interest, which began to accrue on February 19, 2004. Therefore, we reverse the judgment of the circuit court insofar as it held that Samford was not entitled to prejudgment interest and remand the case for the circuit court to determine the proper rate of prejudgment interest to be applied during the period from the date of the taking, i.e., February 19, 2004, to the date of the judgment. See Williams, supra.

In light of our holding, we pretermit any discussion of the other issues Samford raises on appeal.

Conclusion

The judgment of the circuit court is reversed and this case is remanded for proceedings consistent with this opinion.

APPLICATION GRANTED; OPINION OF AUGUST 18, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH DIRECTIONS.

NABERS, C.J., and SEE, HARWOOD, and SMITH, JJ., concur.

BOLIN, J., recuses himself.


author: LYONS, Justice.

text:
    J. Paul WHITEHURST, as guardian ad litem for Joseph William Field v. Wilburn Michael BAKER, as executor of the estate of Elizabeth Rowland Baker, deceased Wilburn Michael Baker, as executor of the estate of Elizabeth Rowland Baker, deceased v. J. Paul Whitehurst, as guardian ad litem for Joseph William Field.
    1050871 and 1050964.
    Supreme Court of Alabama.
    Oct. 20, 2006.
    Rehearing Denied Dec. 8, 2006.

      J. Paul Whitehurst, pro se.
    Paige Oldshue, Chad L. Hobbs, and Amanda L. Cutshall of Rosen, Cook, Sledge, Davis, Shattuck & Oldshue, P.A., Tuscaloosa, for appellee/cross-appellant Wilburn Michael Baker.
   LYONS, Justice.

J. Paul Whitehurst (“the GAL”) was appointed guardian ad litem for Joseph William Field, the minor child of Elizabeth Rowland Baker, deceased. The GAL unsuccessfully contested the decedent’s will. He then claimed attorney fees and costs for acting as guardian ad litem, and the trial court ordered the estate to pay the GAL’s fees and costs. Wilburn Michael Baker, the executor of the decedent’s estate (“Baker”), petitioned the court for authority to satisfy the award to the GAL by the sale of certain specific assets of the estate. The trial court granted the petition. Because the assets to be sold were the subject of a specific bequest to Field, the GAL appealed, contending that Baker, as the executor, lacked authority to satisfy his claim for fees and costs from assets other than the residuary of the estate. Baker cross-appealed, contending that Ala. Code 1975, § 43-8-196, does not permit attorney fees and costs for a will contest to be taxed against the estate when the contest has been unsuccessful.

Because the issues presented by these appeals concern only questions of law involving statutory construction, the standard of review is de novo. See Taylor v. Cox, 710 So.2d 406 (Ala.1998). We address first the threshold question in Baker’s cross-appeal concerning whether the trial court has the authority to tax the GAL’s fees and costs against the estate.

Rule 17(d), Ala. R. Civ. P., states that when a “guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for services rendered.” Rule 17(d) further states that the guardian ad litem’s fee is “taxed as part of the costs in such action.” The GAL argues that general policy in Alabama requires “the fees for the guardian ad litem be paid by the prevailing party as a necessary cost in bringing the case.” (GAL’s reply brief at 18.) He claims that if the guardian ad litem’s fee is not taxed against the estate, the guardian ad litem would go unpaid.

The GAL relies upon several Alabama cases for the proposition that a trial court may require the estate to pay the fees and expenses in an unsuccessful will contest brought by a guardian ad litem. In Sellers v. Sellers, 270 Ala. 173, 117 So.2d 386 (1960), this Court held that in an action brought by three minors to quiet title to land, the guardian ad litem was entitled to his fee, even though he was unsuccessful in the action. In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Mills, 271 Ala. 192, 123 So.2d 138 (1960), this Court held that in a declaratory-judgment action against a minor to determine coverage under an insurance policy, the guardian ad litem was entitled to his fee, even though he was unsuccessful in his representation. In Webb v. Webb, 250 Ala. 194, 211, 33 So.2d 909, 923 (1948), this Court held that, in the contest of a final settlement of an estate brought by the successor executor against the administratrix of the estate of the original executor, an amount was due to the “estate after allowing [the administratrix] credit for executor’s fees, counsel and guardian ad litem fees.” In Bradley v. Andress, 30 Ala. 80, 83 (1857), this Court held that when an “administrator! ] contests] in good faith, he is entitled to reimbursement out of the estate.”

The foregoing cases are all distinguishable from the present case. None of them deal with the payment of fees and expenses after an unsuccessful will contest initiated by a guardian ad litem. Although Sellers and Mills dealt with the payment of the fees and expenses of an unsuccessful guardian ad litem, neither concerned a will contest. Webb, on the other hand, addressed the payment of the fees and expenses for an executor contesting a final settlement of an estate, and it dealt with the unique circumstance of collecting those fees and expenses from the estate of the original executor. The facts of these cases are entirely different from the facts here.

Of all the foregoing cases, only Bradley addressed the payment of attorney fees and costs following a will contest. However, in Bradley, the costs of the will contest were properly taxed against a prior administrator of that will after .he brought an unsuccessful will contest, and the Court addressed the distinct issue of reimbursing the prior administrator, out of the estate when the contest was brought in good faith. The GAL was at no time an administrator of the estate. Instead, he served as the guardian ad litem to a beneficiary of the estate.

Section 43-8-196, Ala.Code 1975, provides: “The costs of any [will] contest under the provision of this article must be paid by the party contesting if he fails.” (Emphasis added.) We are bound to give the language in § -43-8-196 its plain meaning, giving effect to the apparent intent of the legislature. Ex parte T.B., 698 So.2d 127, 130 (Ala.1997) (“When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.”). The plain and ordinary meaning of the words “must be paid by the party contesting if he fails” does not countenance any exception for payment of fees and expenses for guardians ad litem, as the GAL would have us recognize. To the contrary, the plain meaning of § 43-8-196 “requires that the contestant, in order to receive costs, including attorney fees, not fail in the contest of the will.” Hart v. Jackson, 607 So.2d 161, 164 (Ala.1992).

The GAL also cites Bleidt v. Kantor, 412 So.2d 769, 771 (Ala.1982), to support the proposition that § 43-8-196 has been construed to apply only when the will contest was frivolous. Because his will contest was not frivolous, the GAL contends, he should not be required to pay his own expenses; instead, the estate should be taxed with his fee and expenses. In Bleidt, the Court stated:

“[T]his Court construed § 59 (now § 43-8 — [196]) as authorizing attorneys’ fees against the contestant who fails only when the contest is without merit. That is, if there is some credible evidence offered by the contestant in support of the theory of the contest, the contestant is not to be charged with paying the attorneys’ fees of the proponent.”

412 So.2d at 771 (emphasis added). In other words, under § 43-8-196, a party contesting a will may be charged with the attorney fees of the proponent of the will only if the contest is without merit. In the present case, Baker is not seeking to charge the GAL with the attorney fees and expenses accrued by the estate in defending the will contest. Instead, Baker seeks only to compel the GAL to pay his own expenses as the losing party, under § 43-8-196.

The plain meaning of § 43-8-196 does not permit the estate to be charged with attorney fees and costs incurred by an unsuccessful contestant. The GAL’s concerns about the inequitable results flowing from such a rule should be addressed by the legislature. Our disposition of this threshold issue in Baker’s cross-appeal adversely to the GAL makes it unnecessary for us to consider the subsidiary issue in the GAL’s appeal concerning the sale of specific assets of the estate to pay the GAL’s claim.

The trial court erred as, a matter of law in taxing the GAL’s fee and costs against the estate. We therefore reverse its judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.