author: STUART, Justice.

text:
    CITY OF CROSSVILLE v. Donna HAYNES, as administratrix of the estate of Phillip Corley, deceased.
    1040126.
    Supreme Court of Alabama.
    Aug. 12, 2005.
    Rehearing Denied Oct. 14, 2005.

      H. Edgar Howard of Ford, Howard & Cornett, P.C., Gadsden, for appellant.
    Keith Jackson and Robert R. Riley, Jr., of Riley & Jackson, P.C., Birmingham, for appellee.
   STUART, Justice.

The City of Crossville appeals from a judgment entered by the DeKalb Circuit Court awarding Donna Haynes, as the ad-ministratrix of the estate of the Phillip Corley, deceased, $100,000 on her claim alleging that as a result of the City of Crossville’s failure to train its employees in proper intake and monitoring procedures Phillip Corley committed suicide while he was an inmate in the Crossville city jail. We reverse and remand.

Facts

In late 2001, the City of Crossville issued a warrant for the arrest of Phillip Corley based on his alleged issuance of a worthless check. Corley was arrested by the Cherokee County Sheriffs Department on January 23, 2002. In processing the arrest, the Cherokee County Sheriffs Department completed a “Cherokee County Detention Center Booking Sheet.” In response to the questions on this booking sheet, Corley revealed to the officers of the sheriffs department that he had been treated for drug addiction and for mental illness. Corley also revealed to the officers that he had been in “rehab 2 months ago.” Immediately below this informátion was the question: “Does officer feel arrestee is suicidal?” The arresting officer checked the box that indicated that he did not feel Corley was suicidal.

A City of Crossville police officer, Officer Chris West, picked Corley up from the Cherokee County Sheriffs Department later that same day. The City of Crossville had no policy or procedure in place requiring officers to ask prisoners or arrestees questions regarding their medical and mental-health background, and Officer West did not obtain a copy of the booking sheet prepared by the Cherokee County Sheriffs Department. Neither Officer West nor anyone else employed with the City of Crossville questioned Corley about his medical or mental-health background before placing him in the Crossville city jail. Therefore, neither Officer West nor anyone employed by the City of Crossville learned that Corley had been treated for drug addiction or for mental illness; neither Officer West nor anyone else employed by the City of Crossville learned that Corley had been in rehabilitation two months before his arrest. Corley did not volunteer this information.

Once he was returned to Crossville, Cor-ley was placed in a cell. Before he was placed in a cell, Corley was allowed to telephone his mother, Donna Haynes, to notify her that he was in the Crossville city jail. While in the cell, Corley was observed regularly by Kristie Towns and Peggy McLendon, police dispatchers for the City of Crossville. When Corley wanted to leave his cell to smoke, either officer Jacky Clayton or Chuck Priest, the acting chief of police for the City of Crossville, accompanied Corley outside. While Cor-ley was incarcerated at the Crossville city jail, Donna Haynes and Misty Shankles, Corley’s fiancée, visited Corley. He remained at the jail while his mother and Shankles attempted to arrange his bail.

On January 28, 2002, at approximately 5:45 p.m., during one of her routine checks, dispatcher McLendon discovered that Cor-ley had committed suicide in his jail cell by hanging himself. McLendon had last checked on Corley at 4:30 p.m.

Donna Haynes was appointed as the ad-ministratrix of Corley’s estate. She sued the City of Crossville, Chief Priest, Officer Clayton, Officer West, and dispatchers Towns and McLendon. In her complaint, Haynes asserted a claim of wrongful death against all of the defendants; she also asserted a claim of negligence or wantonness against the individual defendants and against the City of Crossville, under a theory of respondeat superior, based on Chief Priest’s alleged failure to train and supervise the employees of the police department and the jail in the proper intake, evaluation, and monitoring procedures for arrestees and prisoners. Haynes also purported to assert a negligence claim directly against the City of Crossville under § 11— 47-190, Ala.Code 1975, for failing to remedy a defect and for failing to train its employees in the proper intake, evaluation, and monitoring procedures for arrestees and prisoners.

The defendants filed a motion for a summary judgment. Haynes opposed the motion for a summary judgment, arguing, as to the City of Crossville, that the City of Crossville failed to provide its employees with the training required to properly evaluate, monitor, or supervise its arres-tees and prisoners and failed to provide its employees with the means to determine if the arrestees or prisoners presented a risk of harm to themselves. Haynes presented expert testimony by affidavit to the effect that the City of Crossville should have used a booking sheet or an intake sheet to enable the booking officers to determine the medical and mental-health background of persons being taken into custody, to determine whether those persons presented a risk of harm to themselves or to others, and to determine whether those persons suffered from mental illness or drug addiction. Haynes also presented evidence indicating that the dispatchers, Towns and McLendon, had not checked on Corley in accordance with the written policies and procedures of the Crossville city jail. Haynes also presented evidence indicating that a camera monitor installed at the Crossville city jail to allow the dispatcher to observe the prisoners while they were in their jail cells was not functioning on the day of Corley’s suicide. Haynes argued that evidence that the camera monitor was not functioning was evidence of the City of Crossville’s negligence or wantonness.

Haynes also opposed the defendants’ claim in their summary-judgment motion that Haynes had not established that the defendants had a duty to prevent the suicide, i.e., that Corley had not manifested suicidal proclivities in the presence of the individual defendants. Haynes presented evidence indicating that while Corley was incarcerated at the Crossville city jail, he requested on at least three occasions that the dispatcher/jailer contact his mother to obtain his medication. Although Haynes admitted that the dispatchers did contact Haynes to inform her that her son was requesting his medication, Haynes asserted that no one employed with the City of Crossville ever followed up with Corley to determine that the medication he was requesting was an antidepressant. Haynes also presented evidence indicating that Corley had soiled his pants while he was incarcerated at the jail and required a change of clothes, which, she asserted, should have alerted the defendants that Corley had a mental-health problem. Haynes also presented evidence indicating that, when Officer Clayton took Corley outside to smoke a cigarette, Corley revealed during their conversation that he had recently suffered a nervous breakdown and that a tornado had recently destroyed his business; Haynes asserts that these statements also should have alerted the employees of the City of Crossville Police Department that Corley had a mental-health problem. Haynes presented testimony from Shankles indicating that on one occasion when she visited Corley at the jail Corley was pacing and he appeared agitated.

Haynes argued that this evidence sufficiently established that Corley manifested suicidal proclivities in the presence of the individual defendants and that they should have reasonably foreseen that Corley would attempt to harm himself. Further, Haynes argued that if it was not foreseeable to the individual defendants that Cor-ley would attempt to harm himself, this lack of foreseeability was a result of the defendants’ negligence or wantonness in failing to have in place a training program, failing to have an intake system in place for incoming arrestees and prisoners, and failing to have a working camera monitoring system in place in the jail.

On January 28, 2004, the trial court entered summary judgments in favor of Chief Priest, Officer Chris West, and Officer Jacky Clayton. The trial court concluded that these defendants were protected by police-officer immunity under § 6-5-338(a), Ala.Code 1975, and/or State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000). The trial court stated that at the time of Corley’s suicide Chief Priest, Officer West, and Officer Clayton were (1) police officers, (2) performing law-enforcement-related duties (3) that required the exercise of judgment, and (4) their conduct did not depart from any statute, rule, regulation, or procedure adopted by the City of Crossville, and (5) that Haynes had not presented any evidence to establish that Chief Priest, Officer West, or Officer Clayton had acted willfully, maliciously, fraudulently, or in bad faith.

However, the trial court denied the summary-judgment motion as to the dispatchers, McLendon and Towns. The trial court found that Towns and McLendon were not peace officers and that they, thus, were not entitled to the immunity granted under § 6-5-338(a), Ala.Code 1975. Cf. Swan v. City of Hueytown, 920 So.2d 1075 (Ala.2005) (concluding, for purposes of that appeal and, on the basis that the appellant did not dispute the issue, that a police dispatcher was a “peace officer” as contemplated by § 6-5-338(a), Ala.Code 1975). Further, the trial court held that even if a police dispatcher could seek peace-officer immunity under § 6-5-338(a) Towns and McLendon would not be entitled to such immunity because substantial evidence had been presented indicating that McLendon and Towns had failed to comply with written policies and procedures for the Crossville city jail, which required dispatchers to visually check on the prisoners in their cells at least once every hour. The trial court held that under Howard v. City of Atmore, 887 So.2d 201 (Ala.2003) (holding that when a State agent fails to discharge duties that are set pursuant to detailed rules or regulations, State-agent immunity does not apply), McLendon and Towns were not entitled to State-agent immunity. The trial court also held that as to the claims asserted against the City of Crossville under a theory of respondeat superior, the City of Crossville was entitled to immunity based on the claims asserted against Chief Priest, Officer West, and Officer Clayton but was not entitled to immunity based on the claims asserted against McLendon and Towns.

The trial court also addressed the claim asserted by Haynes directly against the City of Crossville under § 11-47-190, Ala. Code 1975, alleging neglect, carelessness, or unskillfulness, or the failure to remedy some defect after the defect has been called to the city’s attention or after the defect had existed for such unreasonable length of time as to raise a presumption of knowledge of the defect. The trial court addressed Haynes’s claim that the failure of the camera monitor contributed to Cor-ley’s death. The trial court held that Haynes had failed to present substantial evidence to support this direct claim against the City of Crossville, and it entered a summary judgment on that claim for the City of Crossville.

Finally, the trial court addressed the foreseeability of Corley’s suicide. Relying on Popham v. City of Talladega, 582 So.2d 541 (Ala.1991), the trial court held that sufficient evidence had been presented to create a genuine issue of material fact on the issue whether Corley manifested suicidal proclivities in the presence of one or more of the individual defendants. Therefore, the trial court held that the issue whether the individual defendants, and vicariously the City of Crossville, should have foreseen an excessive risk of self-inflicted harm by Corley was a question of fact for the jury.

Haynes subsequently moved the trial court to vacate part of its summary judgment. Haynes argued that the City of Crossville was liable for negligently or wantonly failing to train the officers and employees of the police department in how to supervise, evaluate, and monitor its ar-restees and prisoners and that the claim could proceed directly against the City of Crossville under § 11-47-190, Ala.Code 1975, even though Chief Priest was protected by immunity under § 6 — 5—338(a), Ala.Code 1975. The trial court, relying on Couch v. City of Sheffield, 708 So.2d 144 (Ala.1998), agreed and, on June 1, 2004, vacated its summary judgment as to the “direct” claim against the City of Cross-ville. The trial court allowed Haynes to proceed with her claim that the City of Crossville was liable for the neglect, carelessness, or unskillfulness of some agent, officer, or employee.

In August 2004, Haynes’s claims against Towns, McLendon, and the City of Cross-ville went to trial. At the conclusion of the evidence, the City of Crossville, Towns, and McLendon moved for a judgment as a matter of law. The defendants argued that Haynes failed to establish as to any of the remaining defendants a duty, a breach, and causation. Additionally, the defendants argued that Chief Priest was responsible for making administrative decisions for the police department, including training the employees of the department in supervising, evaluating, and monitoring ar-restees .and prisoners. The City of Cross-ville argued that because Chief Priest was shielded by police-officer immunity for his decisions in that regard, the City of Cross-ville was also immune from liability for those decisions. The trial court denied the motion and submitted the claims to the jury.

The jury returned a verdict in favor of Towns and McLendon, finding that they had not acted negligently or wantonly. However, the jury returned a verdict against the City of Crossville on Haynes’s claim of failure to train. The jury awarded damages in the amount of $550,000.

The City of Crossville filed a motion to remit the jury verdict to $100,000, pursuant to § 11-93-2, Ala.Code 1975. The City of Crossville also renewed its motion for a judgment as a matter of law, and, in the alternative, moved to alter, amend, or vacate the judgment or for a new trial. On September 13, 2004, the trial court entered an order remitting the judgment from $550,000 to $100,000, pursuant to § 11-93-2, Ala.Code 1975.

The City of Crossville appeals, raising the following issues:

“1. Whether the trial court erred in allowing the negligent training claim to go forward against the City, where plaintiff failed to show sufficiently that the deceased had manifested suicidal proclivities in the presence of any of the [individual] defendants, and thus failed to sufficiently show that [Corley’s] suicide was foreseeable under Alabama law.
“2. Whether the trial court erred in denying the City the immunity provided under Alabama Code § 6 — 5—338(b).
“3. Whether the trial court erred in denying defendant’s Rule 59[, Ala. R. Civ. P.,] motion where the jury found that the jailers/dispatchers had used reasonable care toward [Corley], thus eliminating the causation between any negligence on the part of the City and the death of the decedent.
“4. Whether the trial court erred to reversal in allowing [Haynes] to ask an officer about any training received after the death of the decedent, where the answer (none) was irrelevant and highly prejudicial, and where the answer should have been excluded as analogous to a subsequent remedial measure.”

Analysis

The City of Crossville first asserts that the negligent-training claim asserted against it should not have been submitted to the jury. In Waddell & Reed, Inc. v. United Investors Life Insurance Co., 875 So.2d 1143 (Ala.2003), this Court stated the standard of review applicable to a trial court’s ruling on a motion for a judgment as a matter of law (“JML”):

‘When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.”

875 So.2d at 1152 (citations omitted).

The City of Crossville asserts that the requirements of Popham, supra, and its progeny, addressing suicides of inmates, were not met in this case. More specifically, the City of Crossville argues that it could not have foreseen Corley’s suicide because (1) he had no history of suicidal proclivities, (2) he did not manifest suicidal proclivities in the presence of the defendants, and (3) he was not admitted to the facility because of a suicide attempt. The City of Crossville, relying on Popham, supra; Smith v. King, 615 So.2d 69 (Ala.1993); Tittle v. Giattina Fisher & Co., Architects, 597 So.2d 679 (Ala.1992); and Williams v. Lee County, 78 F.3d 491 (11th Cir.1996), argues that the evidence presented in this case was not sufficient to give rise to a fact question on the issue of foreseeability.

“We have held that proof of the existence of a duty owing from the defendant to the injured party is a prerequisite for proving negligence or wantonness, Alabama Power Co. v. Laney, 428 So.2d 21 (Ala.1983), and that the question of whether a legal duty exists is essentially a question of law for the court, Rose v. Miller & Co., Inc., 432 So.2d 1237 (Ala.1983), to be resolved by determining whether the injury was foreseeable.”

Keebler v. Winfield Carraway Hosp., 531 So.2d 841, 844 (Ala.1988).

As this Court recognized in Keebler, supra, unless the resulting injury was reasonably foreseeable, no legal duty to prevent that injury exists and no liability results from failing to prevent the injury. Additionally, in Popham, 582 So.2d at 543, this Court stated:

“The controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated that the deceased would attempt to harm himself. Annot., 11 A.L.R.2d 751, 782-92 (1950). In Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988), this Court held ‘that foreseeability of a decedent’s suicide is legally sufficient only if the deceased had a history of suicidal proclivities, or manifested suicidal proclivities in the presence of the defendant, or was admitted to the facility of the defendant because of a suicide attempt.’ ”

This test of foreseeability remains the law applicable today in determining whether a duty to prevent a suicide exists. We must conclude that the evidence presented in this case does not rise to the level necessary to establish that the defendants could have or should have reasonably foreseen that Corley presented a threat to himself.

For example, in Popham, supra, Pop-ham was arrested for public intoxication. He violently resisted arrest, fought with the police officers, spat at them, and screamed at them to come back and fight him. Once the officers successfully placed Popham in the jail cell, he began to cry or whimper. As part of the intake procedures, the officers removed Popham’s belt, his shoes and shoelaces, and the contents of his pockets. The jailer observed Pop-ham on the jail-cell monitor for a while, but when he was no longer visible on the monitor, the jailer assumed he was sleeping off his intoxication on the cot in the cell, which was not within the range of the monitor. The next morning the jailer discovered Popham had hanged himself beside the shower stall. This area was outside the range of the monitor.

Evidence was introduced indicating that Popham had been suicidal before his arrest. He had attempted suicide one week before his arrest. His family members were aware of these facts. However, neither Popham nor Popham’s wife, who had visited the jail on the night of Popham’s arrest, informed the officers of this fact. Popham never mentioned suicide to the officers during his arrest or threatened to commit suicide. None of the officers or employees of the City of Talladega had knowledge of Popham’s previous suicide attempt or of his suicidal tendencies.

The Popham Court held that this evidence was insufficient to establish that Popham had manifested suicidal proclivities in the presence of the defendants. Because the plaintiff had failed to establish that the deceased (1) had a history of suicidal proclivities (known to the defendant), or (2) had manifested suicidal proclivities in the presence of the defendant, or (3) had been admitted to the facility of the defendant because of a suicide attempt, the Popham Court held that no fact issue had been presented on the question of foreseeability. If it is not foreseeable that a person will attempt suicide, a defendant has no duty to attempt to prevent the suicide. Therefore, the Popham Court affirmed the summary judgment in favor of the defendants.

In another suicide case, Smith v. King, 615 So.2d 69 (Ala.1993), this Court concluded that the evidence presented did not establish that the defendants could have or should have foreseen that the decedent, Smith, would take his own life. Smith had been admitted to a State-owned mental-health facility. Smith had made previous oral threats to harm himself, but he had not actually attempted to do so. Smith had admitted that he had previously made such oral threats in an attempt to manipulate his parents and the staff at the mental-health facility. Upon making those threats, Smith had been placed in seclusion for his own protection and to allow him to calm down.

On November 15, 1981, Smith became upset after speaking with his mother by telephone. He began making threats that he would harm himself, and, in accordance with the policies of the mental-health facility, he was placed in seclusion. Also in accordance with the policies of the facility, the staff at the facility made periodic checks on Smith. Shortly after Smith was placed in seclusion, the staff discovered that he had hanged himself.

Although the Court affirmed the summary judgment for the defendants on the basis of State-agent immunity, the Court also stated:

“Even if that defense [of State-agent immunity] was not available, we note that there is no evidence in the record that these defendants either should have or could have foreseen that Derryl Smith would take his own life. ... The trial court correctly concluded, based on all the pleadings and evidence, that, at the time and place it occurred, Derryl Smith’s suicide was not reasonably foreseeable by these defendants.”

Smith v. King, 615 So.2d at 73.

In Williams v. Lee County, 78 F.3d 491 (11th Cir.1996), the United States Court of Appeals for the Eleventh Circuit held that the evidence presented was legally insufficient to establish that Williams, the decedent, had manifested suicidal proclivities in the presence of the defendants. Williams had admitted himself to East Alabama Medical Center (“EAMC”) for detoxification and treatment for drug abuse; however, he left that facility without medical authorization. On March 8, 1989, the Lee County Sheriffs Department took Williams into custody on the order of the probate court; that court had ordered Williams committed to the State Department of Mental Health for treatment. Pending transfer to a State mental-health facility, Williams was being held at the Lee County jail.

The Lee County Sheriffs Department had information from the probate court commitment order that Williams was “mentally ill; ... he poses a real and present threat of substantial harm to himself and to others.” Williams, 78 F.3d at 492. The form also indicated that “Mr. Williams left the hospital without authorization and has homicidal intentions.” Id.

Based on this information, the sheriffs office kept Williams under constant observation for two days in the booking area of the sheriffs office. At that time he was moved to a cell where he was checked every 15 to 20 minutes. On the afternoon of March 10, between 4:30 and 5:00, an officer checked on Williams in his cell. Williams said to the officer, “ ‘I’m not going to make it. If I don’t do it myself, somebody else will.’ ” Williams, 78 F.3d at 492. The officer left the area of the cells, thought about the statement for several minutes, and concluded that Williams was presenting a threat to himself. When the officer returned to Williams’s cell, he discovered Williams hanging by a sheet from a sprinkler head in the ceiling. Williams was pronounced dead at the scene.

Williams’s father brought a wrongful-death action against Lee County and various individual defendants under Alabama law and a federal claim under 42 U.S.C. § 1983. The trial court entered a summary judgment for the defendants. In affirming the summary judgment on the state-law claim, the Eleventh Circuit Court of Appeals stated that “there was insufficient evidence offered to permit a jury to find that Williams’[s] suicide was foreseeable, based on any notice to the sheriffs officers or any manifestation of suicidal tendencies in the presence of defendants.” Williams, 78 F.3d at 493-94.

In Tittle v. Giattina, Fisher & Co., Architects, supra, this Court again found that the plaintiff had presented insufficient evidence to establish a duty to prevent the decedent’s suicide. In Tittle, the Court noted that the decedent, Tittle, had not been admitted to the Jefferson County jail because of a suicide attempt. He had expressly denied a history of emotional or mental problems. The officers stated that during the booking process, Tittle did not appear to be suicidal. The Court stated that it was undisputed that Tittle did not manifest suicidal proclivities in the presence of the defendants during his three-day stay at the Jefferson County jail. Based on that evidence, this Court affirmed the summary judgment in favor of the defendants.

Comparing the evidence presented in the instant case to that presented in Pop-ham, Smith, Williams, and Tittle, supra, we agree with the City of Crossville that Haynes failed to present sufficient evidence to withstand the City of Crossville’s motion for a judgment as a matter of law on the issue of the foreseeability of Cor-ley’s suicide. From the record, it is apparent that the City of Crossville knew only the following about Corley: (1) that he had been arrested on a worthless-check warrant; (2) that he had been picked up in Cherokee County and then transferred to DeKalb County; (3) that he had become irate on one occasion when he wanted to go outside to smoke and he later apologized for his behavior; (4) that he had mentioned to one of the officers that he had had a nervous breakdown and that a tornado had destroyed his business; (5) that he had soiled his pants when he first came to the Crossville city jail; (6) that he had asked on more than one occasion for some unidentified medication; and (7) that he had asked to speak with a Cherokee County drug-enforcement agent.

Corley’s fiancée claimed to have observed Corley pacing, babbling, or tapping his head, but she did not report it to anyone employed with the City of Cross-ville. Haynes did not present any evidence to indicate that anyone employed with the City of Crossville ever observed such behavior in Corley. Additionally, Corley’s family members knew that Corley had been treated for drug addiction and mental illness; however, that information was not provided to the City of Crossville. Further, Corley’s fiancée knew that Corley was asking for an antidepressant although one had not been prescribed for him. However, again, that information was not conveyed to the City of Crossville. The employees of the Crossville city jail knew only that Corley was requesting some unidentified medication. Additionally, the Cherokee County Sheriffs Department was aware of Corley’s treatment for drug addiction and mental-health problems by virtue of its booking sheet on Corley. However, no one employed with the City of Crossville obtained this information.

Thus, the evidence in this case does not rise even to the level of that presented in Smith, supra, and Williams, supra, because, in those cases, the jailers or officials were aware of the decedents’ mental illnesses. Further, Corley never made any actual or implied threat to harm himself, as did the decedents in Smith, supra, and Williams, supra. If the evidence proffered in Smith and Williams did not establish foreseeability on the part of the defendants, the evidence presented in this case cannot, as a matter of law, establish the necessary foreseeability. Without foreseeability that the decedent would attempt suicide, there can be no recognized legal duty to prevent a suicide attempt and, thus, no right of recovery.

Next, Haynes argues that if the necessary foreseeability has not been established, it is only because the City of Crossville negligently or wantonly failed to train its employees to perform a booking or intake evaluation on arrestees and prisoners and negligently or wantonly failed to train its employees to properly supervise, evaluate, and monitor arrestees and prisoners. This assertion was also the basis of the claim asserted against the City of Crossville under § 11-47-190, Ala.Code 1975. However, this argument fails to support the submission of Haynes’s claims to the jury for two reasons.

First, Chief Priest was charged with the responsibility of establishing the policies and procedures of the police department and the Crossville city jail, including the manner in which the employees of the police department were trained to supervise, evaluate, and monitor arrestees and prisoners. The establishment of such policies and procedures is within the exercise of the chief of police’s judgment in the administration of the department. Acts or omissions dealing with the establishment of such policies or procedures fall within the State-agent-immunity protections discussed in Ex parte Cranman, 792 So.2d 392 (Ala.2000). See Howard v. City of Atmore, 887 So.2d 201, 210 (Ala.2003). The trial court recognized that Chief Priest was protected by immunity and entered a summary judgment in his favor.

However, as recognized in Howard, if a state actor is immune from liability for a particular act or omission, the state or municipality is also immune from liability for the same act or omission. In Howard, this Court addressed a situation almost identical to the one presented here. Howard’s sister committed suicide while she was an inmate in the Atmore city jail. Howard sued, among others, the Atmore chief of police, Chief McKinley, asserting that the police chief had negligently failed to train his staff and had negligently failed to implement proper intake and monitoring procedures that would have allowed the jailers and officers to detect her sister’s suicidal nature. Howard asserted that Chief McKinley and, thus, the City of Atmore, were liable for the wrongful death of her sister. The trial court entered a summary judgment in favor of Chief McKinley and the City of Atmore. Howard appealed.

The Court held that Chief McKinley was entitled to State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), and peace-officer immunity under § 6-5-338, Ala.Code 1975. The Howard Court stated:

“Howard directs us to no statute, rule, or regulation binding on Chief McKinley that purports to direct him in a particular manner as to the ‘administration of [his] department,’ or to the training and supervision of its personnel. She merely contends that Chief McKinley’s department has failed ‘to implement modern penalogical practices such as intake screening forms or processes, removal of potentially lethal means of suicide such as shoe strings and belts (even after recommendations by the [Alabama Bureau of Investigation]),’ and, in this respect, has ‘lagged behind evolving standards of detention and incarceration.’ ... These allegations are based, however, on statistics regarding annual suicide rates from general publications, such as, National Institute of Corrections, U.S. Dep’t of Justice, Prison Suicido: An Overview and Guide to Prevention (1995).
“Thus, there is a conspicuous absence of binding authority as to how to identify and handle a potential suicide risk and what precautions to take in any particular case. In the final analysis, the responsibility falls upon Chief McKinley to formulate suicide-prevention rules for his department, based on a myriad of factors, including the availability of resources and personnel. Category (2) of the Cranman formula expressly contemplates this scenario.”

887 So.2d at 210. Thus, the Court in Howard held that the police chief was protected by State-agent immunity for his failure to implement intake and monitoring procedures that might have detected Howard’s sister’s suicidal tendencies.

Further, in addressing the claim asserted against the City of Atmore, the Howard Court stated:

“Howard contends that the City is ‘vicariously liable for the neglect, carelessness and unskillfulness’ of Chief McKinley and Officer Bryars. It is well established that, if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to § 6-5-338(b), the city by which he is employed is also immune. Section 6-5-338(b) provides: ‘This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers.’ (Emphasis added.) See Ex parte City of Gadsden, 781 So.2d 936, 940 (Ala.2000). On the other hand, if the statute does not shield the officer, it does not shield the city. Borders v. City of Huntsville, 875 So.2d 1168, 1183 (Ala.2003).
“In this case, § 6-5-338 shields the City from liability for the alleged ‘neglect, carelessness and unskillfulness’ of Chief McKinley. Thus, the trial court correctly entered a summary judgment for the City with respect to the claims against Chief McKinley. However, the statute does not shield the City from liability for the alleged ‘neglect, carelessness and unskillfulness’ of Officer Bryars, based on evidence indicating that he failed to comply with paragraph 7 of the order. Insofar as the summary judgment for the City was entered with respect to those claims, the trial court erred.”

Howard, 887 So.2d at 211.

It is significant to note that the plaintiff in Howard alleged that the City of Atmore was hable for Chief McKinley’s “neglect, carelessness or unskillfulness.” This is the pivotal language from § 11-47-190, Ala.Code 1975, the statute under which Haynes premised her “direct” claim against the City of Crossville. However, as stated in Howard, “if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to § 6-5-338(b), the city by which he is employed is also immune.” 887 So.2d at 211. It cannot be disputed that the Howard Court was applying the immunity granted a municipality under § 6 — 5—338(b) to an action asserted under § 11-47-190, Ala.Code 1975, against the city based upon the acts or omissions of its police chief.

Based on Howard, we conclude that the City of Crossville is immune from any liability arising out of the decisions made by the police chief for the City of Cross-ville regarding the intake, evaluation, and monitoring procedures of the Crossville Police Department at issue in this case. Because the police chief is immune from liability for those acts or omissions, the City of Crossville is also immune from liability for those acts or omissions. Because Chief Priest is the person charged with the administrative duty of implementing training programs and procedures for the police department and jail employees of the City of Crossville, there is no other agent, officer, or employee of the City of Crossville on whom liability for that failure to train can be predicated. Therefore, Haynes was not entitled to assert a “direct” claim against the City of Crossville under § 11-47-190, Ala.Code 1975. The trial court improperly reversed itself on the claim asserted “directly” against the City of Crossville.

Finally, we acknowledge that the claims Haynes asserted against the dispatchers individually were allowed to stand and to proceed to trial because, the trial court concluded, Towns and McLendon were not protected by peace-officer immunity and the evidence indicated that they had failed to follow a detailed regulation. However, based on our resolution of the issue of foreseeability, a judgment as a matter of law should have been entered for Towns and McLendon on those claims before the trial. Therefore, the trial court erred in submitting those claims to the jury. However, even if those claims had been properly submitted to the jury, the jury found in favor of the dispatchers. Thus, at the conclusion of the trial, the only verdict was against the City of Cross-ville on the claim that Crossville was vicariously liable for the “neglect, carelessness or unskillfulness or some agent, officer or employee” pursuant to § 11-47-190, Ala. Code 1975. However, because the jury found that no agent, officer, or employee of the City of Crossville had acted neglectfully, carelessly, or unskillfully, the element of causation is lacking. The verdict against the City of Crossville cannot stand.

We reverse the judgment against the City of Crossville and remand the cause to the trial court for entry of a judgment as a matter of law in favor of the City of Cross-ville.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . Out to the side of this notation, the words "Mountain View” were written. Mountain View is apparently a rehabilitation facility. It is unclear from the record whether the facility treats drug addiction, mental illness, or both.

      . Based on the 4:30 p.m. observation time, McLendon should have checked on Corley no later than 5:30 p.m. on January 28. However, McLendon testified that at 5:31 p.m. she received a radio call from Officer Jacky Clayton, indicating that he was leaving his police car on a call. She further testified that she was supposed to stay by the radio whenever an officer was "out of his car” on a call until the officer checked back in with her. Therefore, she stated, she could not perform the 5:30 p.m. check on Corley, but as soon as Officer Clayton checked in, McLendon checked on Corley.

      . Although the record contains a narrative statement of the facts, it does not contain a brief in support of this motion. However, the trial court indicated in its order that the motion was the subject of a hearing and that briefs and evidentiary materials were submitted in support of the motion.

      . Haynes has not appealed from the judgments entered in favor of Towns and McLen-don. Therefore, those judgments are not before this Court.

      . We acknowledge Haynes's assertion that Chief Priest and the City of Crossville acted negligently in not obtaining this information from Corley. We address that assertion later in this opinion.

      . The expert testimony offered by Haynes in this case is similar to that offered in Howard. Additionally, although we need not do so to resolve this case, we would decline to adopt the opinion of Haynes's expert that caring for an arrestee or prisoner requires the same level of care provided to "a new child.”


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte Basil Timothy CASE. (In re Basil Timothy Case v. Alabama State Bar).
    1041387.
    Supreme Court of Alabama.
    Oct. 14, 2005.

      William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for petitioner.
    J. Anthony McLain, gen. counsel, Alabama State Bar, for respondent.
   LYONS, Justice.

Basil Timothy Case filed a petition for a writ of mandamus requesting that this Court direct the Alabama State Bar to set aside a restraining order entered against him suspending him, on an interim basis, from practicing law or to dissolve that order pursuant to Rule 20, Ala. R. Disc. P. Case was suspended pursuant to the Alabama Rules of Disciplinary Procedure, which allow for an ex parte interim suspension, that is, an order of suspension entered without either notice to the affected lawyer or an opportunity to be heard.

Factual Background and Procedural History

Rule 20(a), Ala. R. Disc. P., states:

“On petition of the General Counsel, supported by an affidavit demonstrating facts personally known to the affiant, showing that a lawyer has been convicted of a serious crime, as defined in Rule 8 of these Rules, or that the lawyer’s continuing conduct is causing, or is likely to cause, immediate and serious injury to a client or to the public, or showing that grounds for summary suspension as defined in Rule 8(e) exist, the Disciplinary Commission may issue an order temporarily suspending the lawyer. General Counsel shall immediately file with the Alabama Supreme Court a copy of the order.”

On September 27, 2004, the Bar petitioned the Disciplinary Commission to enter an order of interim suspension for Case based on 10 pending complaints against him and his history of discipline with the Bar. The Disciplinary Commission entered an order on September 27 temporarily suspending Case from the practice of law and restraining him from maintaining an attorney trust account. Case learned about the suspension when the Bar’s Office of General Counsel faxed him a copy of the order on the afternoon of September 27. On September 28, the Lauderdale Circuit Court appointed a trustee to inventory Case’s files, manage his trust and fiduciary accounts, and protect the interests of his clients. Case filed a petition that same day with the Disciplinary Commission to dissolve the order of interim suspension. On September 30, the trustee notified Case’s clients of his suspension.

Case maintains that his petition to dissolve the order of interim suspension was a “triggering event” that should have resulted in a hearing on the merits of his interim suspension within seven days of his filing the petition, pursuant to Rule 20(d), Ala. R. Disc. P. The Bar contends in its response that during negotiations between Case and the Bar, Case and the attorney then representing him waived his right to such a hearing, but Case denies that he ever did so. No evidence of any waiver is before this Court. Case states that the Bar’s general counsel also failed to file formal charges against him within 28 days after the date of his interim suspension. Rule 20(c)(5), Ala. R. Disc. P., provides that if formal charges are not filed within 28 days, an interim suspension must be terminated. Case’s suspension, however, remained in force.

On April 8, 2005, new counsel representing Case filed a second petition for dissolution or termination of his interim suspension. The Disciplinary Commission conducted an evidentiary hearing that began on April 18, 2005. During the hearing, the Bar sought to introduce evidence concerning additional complaints it said it had received against Case after the September 27 order of interim suspension was entered. The hearing was continued for the hearing officer to determine the admissibility of the evidence of the additional complaints. On April 26, 2005, the hearing officer entered an order limiting the scope of evidence to be presented when the hearing resumed on May 2 to only those grievances that were the basis of the September 27 petition for interim suspension. That same day, April 26, the Bar filed a new petition seeking an order of interim suspension for Case that was based on the additional complaints against Case received after September 27. On April 27, 2005, the Disciplinary Commission entered a second ex parte order temporarily suspending Case from the practice of law and restraining him from maintaining an attorney trust account. Also on April 27, the Bar filed a motion to dismiss or dissolve the September 27 order of interim suspension because it had been superseded by the April 27 order; that motion was granted.

On May 6, 2005, Case petitioned the Montgomery Circuit Court for declaratory and injunctive relief. In his petition to this Court, he says he presented evidence to the court indicating his ongoing and substantial efforts to correct the effects of his alleged negligence that resulted in the complaints. Judge Charles Price issued a temporary restraining order (“TRO”) on May 6 prohibiting the enforcement of the Bar’s April 27 order or of any other order that “seeks to or purports to suspend, limit, prevent, or hinder [Case] from engaging in the practice of law.” The Bar states in its response to Case’s petition for the writ of mandamus that the TRO was entered without notice to the Bar and without allowing the Bar an opportunity to appear and be heard. The case was ultimately assigned to Judge Truman M. Hobbs.

On May 10, the Bar filed a petition for a writ of mandamus with this Court challenging Case’s petition in the circuit court on the ground that the Bar has exclusive jurisdiction in matters of lawyer discipline. On May 16, the TRO entered by Judge Price expired as a matter of law. This Court ordered the parties to mediate, but mediation efforts were not successful. On May 25, the Bar filed formal charges against Case in 50 cases, alleging numerous violations of the Alabama Rules of Professional Conduct. On June 2, Judge Hobbs held a hearing during which he informed the parties that he had concluded that the circuit court did not have jurisdiction to hear matters involving lawyer discipline. He entered an order on June 3 dismissing Case’s petition. Shortly after Judge Hobbs entered that order, this Court granted the Bar’s motion to dismiss its mandamus petition.

Case appealed the dismissal of his petition for injunctive relief and applied for a stay of enforcement of the Bar’s April 27 order. This Court denied the motion for a stay, noting that our order denying the stay did not preclude mandamus review by this Court. Case’s appeal remains pending. Case then filed the mandamus petition currently before us. He requests that we direct the Bar to set aside its April 27 order of interim suspension pending further orders of this Court, or, alternatively, that we exercise supervisory jurisdiction over proceedings before the Bar and dissolve the order. The Bar filed a motion to dismiss and a memorandum brief in response to Case’s mandamus petition, together with several exhibits.

Standard of Review

“Mandamus is an extraordinary remedy and requires a showing that there is: ‘(1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.’ ”

Ex parte Gates, 675 So.2d 371, 374 (Ala.1996) (quoting Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989)). “A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.” Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998) (citing Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991)).

Analysis

. Case argues that in depriving him of his law practice, in which he had a property-right, without notice and an opportunity to be heard the Bar denied him the due-process rights guaranteed by the Alabama and United States Constitutions. Although the Bar relied upon Rule 20(a), Ala. R. Disc. P., in temporarily suspending him, Case insists that when this Court adopted the Alabama Rules of Disciplinary Procedure, we did not, and indeed could not, suspend operation of §§ 10 and 13 of the Alabama Constitution of 1901 or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The two orders of interim suspension obtained by the Bar have resulted in a complete loss of his law practice for over a year, Case says, and he did not receive notice of the suspension proceedings or have an opportunity to be heard before the initial suspension was imposed.

The Bar argues that Case has deliberately bypassed the remedies and process afforded him under the Alabama Rules of Disciplinary Procedure, which the Bar maintains were established by this Court as a comprehensive procedural framework that provides due process to the lawyer and adequately protects the public, the profession,' and the administration of justice, and, therefore, it argues, he cannot meet the requirements necessary to obtain the extraordinary remedy of a writ of mandamus. The Bar insists that Case has not properly invoked the jurisdiction of the Disciplinary Board by filing a request for dissolution of the April 27, 2005, order of interim suspension, and, thus, it says, he does not have a clear legal right to the relief sought and the Disciplinary Board does not have an imperative duty to act. See Rule 20(d), Ala. R. Disc. P.

“It is well settled law that due process must be observed by all boards, as well as courts.” Katz v. Alabama State Bd. of Med. Exam’rs, 351 So.2d 890, 892 (Ala.1977); see also State Tenure Comm’n v. Madison County Bd. of Educ., 282 Ala. 658, 213 So.2d 823 (1968). In Katz this Court stated that procedural due process requires

“‘an orderly proceeding appropriate to the case or adapted to its nature, just to the parties affected, and adapted to the ends to be attained; one in which a person has an opportunity to be heard, and to defend, enforce, and protect his rights before a competent and impartial tribunal legally constituted to determine the right involved; representation by counsel; procedure at the healing consistent with the essentials of a fair trial according to established rules which do not violate fundamental rights, and in conformity to statutes and rules, conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed; revelation of the evidence on which a disputed order is based and opportunity to explore that evidence, and a conclusion based on the evidence and reason.’ ”

351 So.2d at 892 (quoting 2 Am.Jur.2d Administrative Law § 353). In Katz this Court held unconstitutional a statute authorizing the revocation or suspension of a certificate to practice medicine in Alabama without notice to the physician and an opportunity for the physician to be heard. “The right to engage in the practice of medicine in Alabama is a property right that may be denied only if the denial is consonant with due process of law.” 351 So.2d at 893.

Likewise, we conclude that the right to engage in the practice of law in Alabama is a property right that may be denied only if the denial comports with the procedural due process of law guaranteed by the Alabama and United States Constitutions. We recognize that in entering the order of interim suspension the Bar was merely following the disciplinary rule that this Court itself adopted. However, Case is correct when he argues that in adopting rules governing the discipline of lawyers, this Court cannot infringe upon constitutional rights.

Substantial caselaw supports the position that one who possesses a property right in his or her professional license cannot be deprived of that license without notice and an opportunity to be heard. In In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), the United States Supreme Court examined disbarment proceedings in Ohio against a lawyer who had been accused of misconduct. The Supreme Court held that disbarment, although designed to protect the public, is a punishment imposed on the lawyer, who accordingly is entitled to procedural due process, which includes notice of the charges against him or her and an opportunity to be heard on those charges. 390 U.S. at 550-51, 88 S.Ct. 1222. The Supreme Court rejected an argument that there had been no due-process violation because the lawyer had been given several months to respond to the charges after the disbarment proceedings had occurred. Likewise, the Supreme Court has held that even a prompt hearing following the deprivation is not adequate when an ex parte restraining order has been issued. Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 184, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) (“But this procedural right [to a hearing on not more than two days’ notice] does not overcome the infirmity in the absence of a showing of justification for the ex parte nature of the proceedings.”).

We now turn to the question whether the ex parte interim suspension deprived Case of due process. We conclude that it did. Rule 20(a), Ala. R. Disc. P., provides for an interim suspension in three instances: (1) if the lawyer has been convicted of a “serious crime” as that term is defined in Rule 8, Ala. R. Disc. P.; (2) if the lawyer’s conduct “is causing, or is likely to cause, immediate and serious injury to a client or to the public”; or (3) if grounds for summary suspension as defined in Rule 8(e) exist. We are not here presented with facts implicating the due-process rights of a lawyer who has been convicted of a “serious crime.” We note that in that instance, the lawyer so suspended has received notice of the criminal charges against him or her and has had an opportunity to be heard on those charges. Several of the cases cited by the Bar in support of its current ex parte suspension procedure involve circumstances in which an indictment for, or conviction of, a crime was at issue. See, e.g., FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988) (bank president indicted for making false statements to the FDIC; Supreme Court upheld ex parte order obtained by FDIC suspending Mallen as president of the bank where he was employed); In re Reiner’s Case, 152 N.H. 163, 872 A.2d 1038 (2005) (interim suspension followed by a postsuspension hearing for a lawyer who had been indicted comported with due process). The Bar also cites In re Lamm, 116 N.C.App. 382, 448 S.E.2d 125 (1994), in which the North Carolina Court of Appeals held that a summary suspension procedure for a lawyer impaired because of alcohol or drug abuse, where a prompt postdeprivation hearing could be obtained and the maximum suspension period was 180 days, satisfied the requirements of due process. We note with interest, however, the concluding comments of the North Carolina Court of Appeals:

“We note with approval that the Council of the North Carolina State Bar has, apparently as a result of the concerns raised by appellant in this case, proposed that Article VI, Section 5.i. of the State Bar Rules be revised to provide for presuspension notice and hearing except in emergency circumstances. See The North Carolina State Bar Newsletter, Vo. 19, No. 3, p. 9. While we hold that the procedures prescribed by the current rule, and employed in this case, meet the minimal requirements of due process under our State and federal constitutions, we commend the State Bar for providing increased safeguards for the rights of attorneys while continuing its efforts to protect the public from, and provide assistance to, practitioners impaired by alcoholism or other substance addictive illness.”

116 N.C-App. at 389, 448 S.E.2d at 130-31 (emphasis added).

Rule 4:01, § 12A, of the Rules of the Supreme Judicial Court of Massachusetts provides:

“Upon the filing with this court of a petition by the bar counsel alleging facts showing that a lawyer poses a threat of substantial harm to clients or prospective clients, or that the lawyer’s whereabouts are unknown, this court shall enter an order to show cause why the lawyer should not be immediately suspended from the practice of law pending final disposition of any disciplinary proceeding commenced by the bar counsel. The court or a justice, after affording the lawyer opportunity to be heard, may make such order of suspension or restriction as protection of the public may make appropriate. In the interest of justice, the court, upon application of the lawyer, may terminate such suspension at any time after affording the bar counsel an opportunity to be heard.”

The Supreme Judicial Court of Massachusetts has held that the foregoing rule satisfies the requirements of due process:

“We recognized that the ‘fundamental requisite of due process’ on temporary suspension is ‘an opportunity to be heard at a meaningful time and in a meaningful manner’ (citation omitted). [Matter of Kenney, 399 Mass. 431,] 435, 504 N.E.2d 652, [655 (1987) ]. This requirement is satisfied, we concluded, by the rule’s provisions for presuspension notice and a hearing, together with the availability of postsuspension review. Id. at 436, 504 N.E.2d [at 655].”

In re Abrams, 436 Mass. 650, 654, 767 N.E.2d 15, 18-19 (2002).

This Court has the inherent authority to admit lawyers to the practice of law, to approve or disapprove any rule governing lawyers’ conduct, to inquire into matters of any disciplinary proceeding, and to take any action it sees fit in disciplinary matters. Board of Comm’rs of the Alabama State Bar v. State ex rel. Baxley, 295 Ala. 100, 324 So.2d 256 (1975); Simpson v. Alabama State Bar, 294 Ala. 52, 311 So.2d 307 (1975). We conclude that under the circumstances of this case, we should exercise that authority to grant Case’s petition for a writ of mandamus and direct the Bar to dissolve the existing order of interim suspension against Case.

After considering all of the foregoing, we conclude that a rule that would allow for the interim suspension of a lawyer who has not been convicted of a “serious crime” only after notice and an opportunity to be heard in all but genuine emergency circumstances would both provide the affected lawyer with the necessary minimum requirements of due process and allow the Bar to fulfill its duty to protect the public from harm. In fashioning such a rule, we draw upon the protections provided for in Rule 65(b), Ala. R. Civ. P.:

“A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in tenting the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.”

(Emphasis added.) We are today by separate order revising Rule 20(a) and Rule 20(d) of the Alabama Rules of Disciplinary Procedure to read as follows:

Rule 20(a)

“(a) Grounds for Suspension — With and Without Notice.

“(1) Conviction of a Serious Crime. The Disciplinary Commission may issue an order temporarily suspending the lawyer without written or oral notice to the' lawyer on petition of the General Counsel, supported by an affidavit demonstrating facts personally known to the affiant, showing that a lawyer has been convicted of a serious crime, as defined in Rule 8 of these Rules.
“(2) Other Circumstances. The Disciplinary Commission may issue an order temporarily suspending the lawyer without written or oral notice to the lawyer on petition of the General Counsel, only if (i) it clearly appears from specific facts shown by affidavit demonstrating facts personally known to the affiant that the lawyer’s continuing conduct is causing, or is likely to cause, immediate and serious injury to a client or to the public, or showing that grounds for summary suspension as defined in Rule 8(e) exist, and (ii) General Counsel certifies to the Disciplinary Commission in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Unless the Disciplinary Commission is satisfied by the showing made pursuant to subsection (ii) above that suspension without notice is warranted under the circumstances, a lawyer, other than one convicted of a serious crime, shall not be suspended without notice and an opportunity to be heard.”
Rule 20(d)
(d) Dissolution or Amendment of Interim or Summary Suspension. The lawyer may request dissolution or amendment of an order of suspension or summary suspension entered without notice by filing a petition with the Disciplinary Board, a copy of which petition shall be served on the General Counsel. The petition shall be set for hearing before the Disciplinary Board within seven (7) days of its filing. The Disciplinary Board shall decide the petition with the utmost speed consistent with due process. The Disciplinary Board may modify the order of suspension, if appropriate, and continue such provisions of that order as may be appropriate until final disposition of all disciplinary charges against the lawyer. An appeal may be taken from decisions of the Disciplinary Board as provided in Rule 12(f) and (g); however, the suspension will not be stayed during the appeal process.”

The amendments to Rule 20(a) and (d) are effective immediately. Thus, any further proceedings to secure an interim suspension against Case must comply with Rule 20 as modified.

We therefore deny the Bar’s motion to dismiss this case, grant Case’s petition for the writ of mandamus, and direct the Disciplinary Board to dissolve the order of interim suspension entered against Case on April 27, 2005.

MOTION TO DISMISS DENIED; PETITION GRANTED; WRIT ISSUED.

SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . Rule 20(d), Ala. R. Disc. P., states, in pertinent part:
      "The lawyer may request dissolution or amendment of an order of interim suspension or summary suspension by filing a petition with the Disciplinary Board, a copy of which petition shall be served on the General Counsel. The petition shall be set for hearing before the Disciplinary Board within seven (7) days of its filing.”

      . Rule 20(d) states, in pertinent part:
      "The lawyer may request dissolution or amendment of an order of suspension or summary suspension by filing a petition with the Disciplinary Board.... The petition shall be set for hearing before the Disciplinary Board within seven (7) days of its filing. The Disciplinary Board shall decide the petition with the utmost speed consistent with due process.... An appeal may be taken from decisions of the Disciplinary Board as provided in Rule 12(f) and (g); however, the suspension process will not be stayed during the appeal process.”

      . Rule 8(e), Ala. R. Disc. P., provides for the summary suspension of a lawyer who fails to pay any ordered assessment, costs, or restitution or who fails to participate in disciplinary proceedings or to respond to requests for information concerning a disciplinary matter.

      . It appears that only a distinct minority of states allows for the interim suspension of a lawyer without notice as Alabama currently does. We asked the Bar to furnish information about similar rules in other jurisdictions, and its response indicates that only 9 of 50 states have a similar rule.


author: CRAWLEY, Presiding Judge.

text:
    Fannie HARWELL v. David ZIMMERMAN.
    2030832.
    Court of Civil Appeals of Alabama.
    June 10, 2005.
    Rehearing Denied July 22, 2005.
    Certiorari Denied Oct. 14, 2005 Alabama Supreme Court 1041703.

      Jonathan S. Wesson, Warrior, for appellant.
    Charles A. Stewart III and Angela Raines Rogers of Bradley Arant Rose & White, LLP, Montgomery, for appellee.
   CRAWLEY, Presiding Judge.

Fannie Harwell appeals from a summary judgment entered in favor of David Zimmerman (“the attorney”) on her claims filed pursuant to the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975. Specifically, Harwell complains that the trial court improperly entered a summary judgment in favor of the attorney on the legal-malpractice count in her complaint, which incorporated claims of fraud, libel, and slander. We affirm in part and reverse in part.

On or about February 2, 2001, the attorney drafted the articles of organization for Only’s Sports Bar and Grill, L.L.C. (hereinafter “the L.L.C.” or “the business”). Kimyatta Moss and Harwell were the sole members listed in the articles of organization for the L.L.C. It is undisputed that the attorney did not prepare an operating agreement for the L.L.C. In actuality, there were two other individuals with an ownership interest in the L.L.C.: Jerome Morris (“Romeo”), Moss’s boyfriend or common-law husband, and Donald Jiskoot. Additionally, it is undisputed that Moss prepared a document that the attorney typed that set forth each of the four owners’ interests in the L.L.C. According to the document, Moss owned 29%, Romeo owned 28%, Harwell owned 28%, and Jis-koot owned 15% of the L.L.C.

It is undisputed that, after the L.L.C. was established, Harwell and the attorney spoke regarding a copy machine that the attorney was going to give to the L.L.C. Harwell also claims that the attorney inquired as to whether the L.L.C. was screening and investigating its employees. The attorney testified upon deposition that he did not recall that conversation taking place.

Harwell testified that she assumed that the attorney was the attorney for the L.L.C. because he had incorporated the entity. Additionally, she testified that she assumed that the attorney represented Moss and her individually as well. She admitted that she knew that the attorney had represented Moss and Romeo previously regarding unrelated matters.

The record reflects that there was a falling out among the owners of the L.L.C. in May 2001. It is undisputed that Har-well stopped participating in the daily operations of the business. Harwell did not work at all in June 2001. Harwell also admitted that she had voluntarily left the business in May 2001 and that the attorney could not have prevented the business from failing.

It is undisputed that in July 2001 the attorney wrote a letter to the Alcohol Beverage Control Board (“the ABC Board”). The letter, written on behalf of the L.L.C., Moss, and Romeo, stated that Harwell was under investigation for conversion. The attorney based this letter on a police report filed by Moss alleging that Harwell had forged Moss’s signature on several checks.

In November 2001 Harwell and Jiskoot filed an action against Moss and Romeo. The complaint contained 37 counts including, among other things, claims alleging breach of contract, conversion, fraud, and civil conspiracy. Essentially, the complaint sought damages for the failure of the business. Moss and Romeo failed to appear or answer. Harwell obtained a default judgment against Moss and Romeo.

On January 21, 2003, Harwell filed a complaint containing eight counts against the attorney. The first three counts alleged fraud; the fourth count alleged libel; the fifth alleged slander; the sixth alleged legal malpractice; the seventh alleged civil conspiracy; and the eighth alleged the tort of outrage. The trial court dismissed all the counts of the complaint except Count 6, which specifically alleged legal malpractice. The sixth count, as set out in Har-well’s complaint, reads, in part, as follows:

“COUNT 6 “MALPRACTICE
“36) Plaintiff Harwell hereby incorporates numbers 1-35 as if fully set out herein.”

Thus, in Count 6, Harwell incorporates the first five counts of her complaint, which appear in “numbers 1-35” of her complaint, into her claim alleging legal malpractice. Those counts are the counts alleging fraud, libel, and slander. However, the seventh and eighth counts, which allege civil conspiracy and the tort of outrage, are not incorporated into the legal-malpractice count.

Section 6-5-573, Ala.Code 1975, creates one form of action against legal-service providers. That section provides: “There shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.” Section 6-5-572(1), Ala.Code 1975, defines a legal service liability action as:

“Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider’s violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.”

An underlying action is defined as follows:

“The term underlying action refers to the legal matter concerning the handling of which it is alleged that the legal services provider breached the applicable standard of care. The term is applicable in legal service liability actions in which the legal service provider’s liability is dependent in part upon or derived from the legal service provider’s acts or omissions concerning the handling of the underlying action.”

§ 6-5-572(5), Ala.Code 1975.

On February 5, 2004, the attorney moved for a summary judgment on Har-well’s legal-malpractice count and filed a brief in support of his motion. Harwell filed a brief in opposition to the motion for a summary judgment. Attached to her brief was an affidavit from a legal-malpractice expert. On March 1, 2004, the attorney filed an additional submission in support of his motion for a summary judgment; that submission attacked the sufficiency of the affidavit prepared by Har-well’s expert. On March 2, 2004, the trial court heard argument on the attorney’s motion for a summary judgment. The trial court entered a summary judgment in favor of the attorney on March 4, 2004. Harwell filed a Rule 59, Ala. R. Civ. P., motion in response to the summary judgment. The trial court denied Harwell’s motion on May 3, 2004. Harwell timely appealed the summary judgment; on appeal, the attorney has moved to strike the affidavit of Harwell’s expert. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

The grant or denial of a motion for a summary judgment is reviewed de novo. Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998). A motion for a summary judgment is. to be granted when there is no genuine issue of material fact and the moving party is entitled to a summary judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The party moving for a summary judgment must make a prima facie showing that there is no genuine issue of material fact and that it is entitled a judgment as a matter of law. Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the moving party meets its burden, then the burden shifts to the nonmoving party. The nonmoving party must then rebut the prima facie showing by substantial evidence. Id. “[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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). The court reviews the record in a light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Sessions v. Espy, 854 So.2d 515, 521 (Ala.2002).

In her first fraud count, which has not been addressed by the parties on appeal, Harwell averred that the attorney misrepresented the fact that he was an attorney capable of filing the articles of organization for the L.L.C. However, the record reflects that it is undisputed that the attorney did, in fact, draft and file the articles of organization for the L.L.C. Therefore, summary judgment as to this count was proper because the attorney made a prima facie showing that there was no genuine issue of material fact regarding the alleged misrepresentation. Because there is no genuine issue of material fact and because it is undisputed that there was no misrepresentation regarding the attorney’s ability to file the articles of organization for the L.L.C., the attorney was entitled to a judgment as a matter of law. Lee v. City of Gadsden, 592 So.2d at 1038.

As to the second and third fraud counts that were incorporated into the legal-malpractice count, the entry of a summary judgment was also proper. The second fraud count simply and generally alleged that the attorney “failed to disclose material information pertinent to [Harwell], her partner [Moss] and to their two silent partners [Romeo and Jiskoot].” In that count, Harwell also alleged that she was induced to act by the alleged failure to disclose and requested damages for lost wages and income as well as for lost profits. In his motion for a summary judgment and in his brief in support thereof, the attorney argued that Harwell had recovered damages resulting from the failure of the business in her action against Moss and Romeo. Additionally, and more importantly, Harwell admitted that the attorney had not caused the business to fail. Therefore, because Harwell admits that there is no proximate cause, the attorney made a prima facie showing that there was no genuine issue of material fact and that he was entitled to a summary judgment as a matter of law. Lee v. City of Gadsden, 592 So.2d at 1038.

As to the third fraud count, Har-well asserted that the attorney concealed the fact that there was no operating agreement, and she requested the same damages as she had requested as to the second fraud count. It is undisputed that the attorney had no duty to prepare the operating agreement. The third fraud count also alleges that the attorney failed to communicate to Harwell that Moss and Romeo were the attorney’s former clients. Harwell admitted that she knew that the attorney had previously represented Moss and Romeo and that Moss had informed Harwell of that fact before Harwell signed the articles of organization for the L.L.C. Even if the attorney did have a duty to disclose the a potential conflict of interest, Harwell admitted the damages she sought in relation to this count were not caused by the attorney. Therefore, the attorney made a prima facie showing that there was no genuine issue of material fact and that he was entitled to a judgment as a matter of law. Lee v. City of Gadsden, 592 So.2d at 1038.

However, the trial court improperly entered a summary judgment as to Har-well’s libel and slander claims incorporated in Harwell’s legal-malpractice count. Indeed, although the letter written by the attorney to the ABC Board, on which Har-well’s libel and slander claims are based, is referenced in the attorney’s motion for a summary judgment, the attorney failed to make a prima facie showing that no genuine issue of material fact existed as to the libel or slander claims. Therefore, the trial court erred in entering the summary judgment in favor of the attorney on the libel and slander claims incorporated in the legal-malpractice count.

A close reading of the attorney’s motion for a summary judgment and the submissions in support of his motion for a summary judgment reveal that the attorney did not even move for a summary judgment on the libel or slander claims incorporated in Harwell’s legal-malpractice count. Although the attorney mentions the letter to the ABC Board in his motion for a summary judgment, the motion and the submissions in support of the motion do not allege or establish that there is no genuine issue of material fact regarding Harwell’s libel claim. Additionally, the attorney’s motion and ■ the submissions in support of the motion completely fail to address Harwell’s slander claim. As a result, the trial court' erred by entering a summary judgment on that claim.

At the March 2, 2004, hearing on the summary-judgment motion, the attorney’s counsel asserted the affirmative defense that the published statement of which Har-well complained—i.e., the statement in the attorney’s letter to the ABC Board that Harwell was under investigation for conversion—was truthful. Additionally, counsel for the attorney argued that the only evidence presented regarding the statement was the Montgomery Police Department offense report, which indicated that Harwell had been accused of forging Moss’s name on several checks. At the summary-judgment hearing, Harwell argued that the totality of the circumstances demonstrated by the evidence indicates that the statement is not true. Resolving all reasonable doubts in favor of Harwell, we reverse the summary judgment as to Harwell’s libel claim because there are factual issues regarding, among other things, the truth of the statement.

In the trial court and in his brief on appeal, the attorney asserts that the affidavit of Harwell’s expert is insufficient and should be stricken. The attorney had the record on appeal supplemented to include two motions to strike the affidavit of Har-well’s expert that the attorney had filed in the trial court. However, because the attorney never moved for a summary judgment and never made a prima facie showing that there was no genuine issue of material fact regarding the libel and slander claims, Harwell was not required to produce an expert affidavit. Bodana v. Howie, 638 So.2d 749, 749 (Ala.l992)(“For a plaintiff in a legal malpractice action to defeat a motion for summary judgment filed by the attorney and supported by an expert’s affidavit, the plaintiff must ‘come forward with expert testimony to show negligence on the part of the attorney[ ].’ ” (quoting Phillips v. Alonzo, 435 So.2d 1266, 1267 (Ala.1983))).

The attorney himself filed an affidavit attached to his brief in support of his motion for a summary judgment. However, that affidavit only dealt with the standard of care in relation to the preparation of an operating agreement. The attorney’s affidavit provided, in pertinent part:

“4. In my opinion, as a practicing attorney in the state of Alabama, I did not breach any standard of care in preparing what I was asked to prepare, the Articles of Organization. Further, in my opinion, as an attorney licensed to practice in the State of Alabama, it is not a breach of the standard of care for Legal Service Providers to create the Articles of Organization for an LLC without creating an operating] agreement, particularly when members of the LLC do not retain the Legal Service Provider to create an operating] agreement.”

Because the attorney did not make a pri-ma facie showing that there was no genuine issue of material fact regarding the libel or slander claims, the trial court improperly entered a summary judgment for the attorney as to those claims and Har-well was not required to provide an expert affidavit. See Bodana v. Howie, supra. Additionally, because Harwell was not required to provide an expert affidavit regarding her libel and slander claims, the trial court did not err in failing to strike the affidavit of Harwell’s expert and the attorney’s motion to strike the affidavit on appeal is irrelevant to the issues at hand and, therefore, is denied.

MOTION TO STRIKE DENIED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MURDOCK, J., concurs.

PITTMAN, J., concurs in the result, without writing.

THOMPSON and BRYAN, JJ„ dissent, without writing.

      . Harwell conceded in the trial court and in her brief on appeal that the failure to prepare an operating agreement was not a breach of the standard of care.

      . Because those counts are not incorporated into the legal-malpractice count and because Harwell does not appeal the dismissal of those counts, they are not addressed in this opinion.

      . See note 1, supra.


author: THOMPSON, Judge.

text:
    R.M. v. J.D.C. and C.L.C.
    2040628.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2005.
    Certiorari Denied Oct. 14, 2005 Alabama Supreme Court 1041864.

      C. Robert Montgomery, Chatom, for appellant.
   THOMPSON, Judge.

R.M. filed an action against J.D.C. (“the mother”) in the Washington Juvenile Court (“the juvenile court”) seeking to establish his paternity of D.K.C. (“the child”). The juvenile court added the mother’s former husband, C.L.C. (“the husband”), as an additional defendant in the action. The mother had been married to the husband at the time the child was conceived and at the time of the child’s birth. The husband moved the juvenile court to dismiss R.M.’s paternity action based on his allegation that R.M. lacked standing. See Ex parte Presse, 554 So.2d 406 (AJa.1989) (holding that a man claiming to be the biological father of a child born during the mother’s marriage to another man lacked standing to initiate an action to establish his paternity of the child under the Alabama Uniform Parentage Act (“the AUPA”), § 26-17-1 et seq., Ala.Code 1975).

On August 26, 2003, the juvenile court entered a judgment in which it determined that R.M. lacked standing to prosecute the paternity action and dismissed the action. On September 8, 2003, R.M. appealed, pursuant to § 26-17-20, Ala.Code 1975, and Rule 28, Ala. R. Juv. P., to the Washington Circuit Court (“the trial court”).

The husband moved the trial court to dismiss the action based on R.M.’s lack of standing; the husband later moved for a summary judgment. R.M. opposed the husband’s motions, arguing that the presumption set forth in the AUPA in favor of the husband’s paternity of a child born during his marriage to the child’s mother did not apply because, R.M. alleged, the husband had “disclaimed” the child. See Ex parte Presse, 554 So.2d at 418 (a man does not have standing to establish his paternity of a child born during the mother’s marriage to another man where the mother’s husband “has not disclaimed his status as the child’s father”); and J.K. v. R.S., 706 So.2d 1262, 1264 (Ala.Civ.App.1997) (man had no standing to establish his paternity of a child born during the mother’s marriage to another man unless the mother’s husband had “disclaimed his status as the presumed father” of the child).

The trial court conducted an ore tenus hearing. On March 7, 2005, the trial court entered a judgment incorporating the juvenile court’s judgment and determining that the juvenile court was correct in concluding that R.M. lacked standing to prosecute his paternity action. R.M. filed a notice of appeal on April 7, 2005.

Although neither party addresses the issue whether this court has jurisdiction to consider this appeal, jurisdictional issues are of such importance that an appellate court may take notice of them at any time, ex mero motu. Nichols v. Ingram Plumbing, 710 So.2d 454 (Ala.Civ.App.1998). “The timely filing of a notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Rule 2(a)(1), Ala. R.App. P.

R.M.’s paternity action is governed by the AUPA. Ex parte Presse, 554 So.2d at 408. The AUPA provides that paternity actions brought under that act must be filed in the “juvenile or family court division of the district or circuit court and wherever used in this chapter the word ‘court’ shall mean the juvenile or family court division of the district or circuit court.” § 26-17-10(a), Ala.Code 1975. Thus, this action is a juvenile action governed by the Rules of Juvenile Procedure. Rule 1(A), Ala. R. Juv. P.; and C.D.W. v. State ex rel. J.O.S., 852 So.2d 159, 160-61 (Ala.Civ.App.2002). Under those rules, “[p]rocedure shall be uniform in all courts, whether a circuit or district court level or in the circuit court by trial de novo.” Rule 1(B), Ala. R. Juv. P.

An appeal from a juvenile matter must be filed within 14 days of the entry of the judgment from which the appeal is taken. Rule 28(C), Ala. R. Juv. P. The trial court entered its judgment on March 7, 2005. R.M. appealed on April 7, 2005, in excess of the 14 days allowed by Rule 28. Therefore, R.M.’s appeal is untimely, and, therefore, it must be dismissed. See Rule 2(a)(1), Ala. R.App. P.

APPEAL DISMISSED.

CRAWLEY, P.J., and PITTMAN, MURDOCK, and BRYAN, JJ., concur.


author: PER CURIAM.

text:
    William SULLIVAN v. William SMITH and Karen Smith.
    2040335.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2005.
    Certiorari Denied Feb. 10, 2006 Alabama Supreme Court 1050159.

      William Sullivan, pro se.
    Jack B. Hinton, Jr., and H. Robert Johnston of Gidiere, Hinton & Herndon, Montgomery, for appellees.
   PER CURIAM.

The plaintiff William Sullivan (“the plaintiff’), acting pro -se, appeals a summary judgment in favor of the defendants William Smith and Karen Smith (“the Smiths”). We affirm.

In April 1990, the plaintiff was convicted of murdering the Smiths’ son and was séntenced to life in prison. The plaintiff became eligible for parole in 2003, and, in order to determine whether he should be granted parole, the Aabama Board of Pardons and Paroles (“the Board”) received testimony from witnesses at a hearing on October 27, 2003. The Board heard witnesses on behalf of both the plaintiff and the victim’s family in accordance with § 15-22-24, Ala.Code 1975. All the testifying witnesses were sworn in by the Board’s bailiff. After swearing to tell the truth, the witnesses gave their testimony in narrative form. The Board did not question them. The Smiths gave testimony opposing the grant of parole. After hearing the testimony of all the witnesses, the Board determined that the plaintiff should be denied parole.

After he was denied parole, the plaintiff sued the Smiths in the Elmore Circuit Court. He alleged that the Smiths were liable for slander, perjury, and obstruction of governmental operations because they allegedly gave false testimony at the parole hearing.

The Smiths moved the trial court to dismiss the plaintiffs claims on the ground that they were entitled to absolute immunity because they gave their testimony during a quasi-judicial proceeding. The plaintiff responded by filing written objections to the Smiths’ motion to dismiss. The trial court then gave the parties notice that it would treat the Smiths’ motion to dismiss as a motion for a summary judgment and that it would allow the parties to submit evidentiary materials and briefs in support of, and in opposition to, the motion. The plaintiff filed a pleading titled “Addendum to ‘Plaintiffs Objection.’ ” The Smiths filed their affidavits, a transcript of the hearing before the Board, and a brief. Thereafter, the trial court entered a summary judgment in favor of the Smiths. The trial court concluded that the Board, in considering whether “to release” prisoners from prison, “in effect, acts in a quasi-judicial capacity.” The trial court further stated:

“Since an absolute privilege exists in favor of those involved in judicial proceedings, including judges, lawyers, jurors, and witnesses, shielding them from an action for defamation, this Court finds that witnesses who similarly testify before the Parole Board should be afforded the same privilege. Accordingly, this Court finds that anything that the [Smiths] might have said before the Parole Board is privileged and renders them immune from suit.
“It is therefore ORDERED that since the statements of the [Smiths] are privileged that this case is DISMISSED.”

The plaintiff timely appealed to the supreme court. Pursuant to § 12-2-7(6), Aia.Code 1975, the supreme court transferred the appeal to this court.

On appeal, the plaintiff argues that the trial court erred in concluding that the Board’s hearing was a quasi-judicial proceeding that afforded the Smiths absolute immunity. It is axiomatic that appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000).

The issue, “[wjhether a communication is privileged by reason of its character or the occasion on which it was made is a question of law for the judge.” Webster v. Byrd, 494 So.2d 31, 34 (Ala.1986).

It is well settled that “an absolute privilege attaches to communications made in the course of quasi-judicial proceedings.” Webster, 494 So.2d at 34. Quoting Supry v. Bolduc, 112 N.H. 274, 276, 293 A.2d 767, 769 (1972), our supreme court opined in Webster that “ ‘the availability of an absolute privilege must be reserved for those situations where the public interest is so vital and apparent that it mandates complete freedom of expression without inquiry into a defendant’s motives.’ ” Webster, 494 So.2d at 35. Furthermore, “the absolute privilege is ‘for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages.’ ” Webster, 494 So.2d at 35 (quoting O’Barr v. Feist, 292 Ala. 440, 445, 296 So.2d 152, 156 (1974)). “These policy considerations apply equally to judicial and to quasi-judicial proceedings.” Webster, 494 So.2d at 35.

Thus, in order to determine whether the Smiths’ testimony was entitled to an absolute privilege, we must first determine whether the proceeding at which the Smiths testified was a quasi-judicial one. In turn, in order to determine whether the proceeding at which the Smiths testified was a quasi-judicial one, we must determine whether the Board was functioning in a quasi-judicial capacity.

The Board makes discretionary determinations regarding whether a prisoner should be pardoned or paroled. Indeed, the Board’s parole decisions are completely discretionary. Thompson v. Board of Pardons & Paroles, 806 So.2d 374 (Ala.2001), and Ex parte Alabama Bd. of Pardons & Paroles, 849 So.2d 255 (Ala.Crim.App.2002): In Ex parte Alabama Bd. of Pardons & Paroles, the Court of Criminal Appeals analogized the role of the Board and the discretionary decisions it must make in parole determinations to that of a trial court and the discretionary decision it must make in granting or denying probation, because such a determination by the trial court is not reviewable on appeal .due to the complete discretion of the trial court. 849 So.2d at 261; see also Ellard v. State, 474 So.2d 743 (Ala.Crim.App.1984) (implicitly recognizing the quasi-judicial nature of the Board of Pardons and Paroles when it engages in a deliberative function). Moreover, in O’Barr v. Feist, 292 Ala. at 444-45, 296 So.2d at 155-56, quoting Perkins v. United States Fidelity & Guaranty Co., 433 F.2d 1303, 1304-05 (5th Cir.1970), quoting in turn Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843 (1907), the Alabama Supreme Court held:

“ ‘ “Judicial power is authority, vested in some court, officer, or person, to hear and determine, when the rights of persons or property, or the propriety of doing an act, are the subject-matter of adjudication. Official action, the result of judgment or discretion, is a judicial act. The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specific duty arising from fixed and designated facts, is a ministerial act.” ’ ”

(Emphasis added.)

The acts of the Board in granting or denying parole are the result of “judgment or discretion” and consequently are judicial in nature. They are not ministerial as described in O’Barr and Rainey.

Moreover, in Pate v. Alabama Bd. of Pardons & Paroles, 409 F.Supp. 478, 479 (M.D.Ala.1976), aff'd, 548 F.2d 354 (5th Cir.1977), in an action against members of the Board alleging that they negligently or willfully and wantonly performed their official duties, the federal district court found that the Board, “when performing [its] official duties, [is] engaged in ‘quasi-judicial’ activities.” The court went on to state that “[t]he function of the Parole Board is more nearly akin to that of a judge in imposing sentence and granting or denying probation than it is to that of an executive administrator.” Id. In Sellers v. Thompson, 452 So.2d 460 (Ala.1984), the Alabama Supreme Court adopted the reasoning of Pate. See also Cruz v. Skelton, 502 F.2d 1101 (5th Cir.1974) (recognizing that state officials who process applications for parole perform quasi-judicial functions); and Cole v. Star Tribune, 581 N.W.2d 364, 369 (Minn.Ct.App.1998) (holding that the Minnesota Board of Pardons is a quasi-judicial entity and that written statements submitted to it regarding a prisoner’s request for early release from prison are entitled to absolute privilege).

Furthermore, § 15-22-36(b), Ala.Code 1975, provides:

“Each member of the Board of Pardons and Paroles favoring a pardon, parole, remission .of a fine or forfeiture, or restoration of civil and political rights shall enter in the file his or her reasons in detail, which entry and the order shall be public records, but all other portions of the file shall be privileged.”

(Emphasis added.) In interpreting this provision, the Alabama Supreme Court has held:

“Principles of statutory construction bind this Court to interpret plain language of a statute ‘to mean exactly what it says’ and to engage in judicial construction only if the language in the statute is ambiguous. Ex parte Alabama Great Southern R.R., 788 So.2d 886, 889 (Ala.2000), quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998). The Legislature stated in § 15 — 22—36(b), Ala.Code 1975, with specificity and particularity, that ‘all other portions of the file shall be privileged.’ A plain reading of the statute indicates that the Legislature created an absolute privilege to provide individuals and entities an unfettered opportunity to provide information to the Board, without exposing the individuals and entities to public scrutiny and potential retaliation. To hold otherwise, this Court would have to engage in improper judicial construction.”

Ex parte Alabama Bd. of Pardons & Paroles, 814 So.2d 870, 872 (Ala.2001) (emphasis on “public scrutiny” original; other emphasis added).

On the basis of these legal authorities, we hold that the Smiths were testifying in a quasi-judicial proceeding when they testified before the Board and, therefore, are entitled to absolute immunity.

Because the Smiths were entitled to absolute immunity, we affirm the summary judgment in their favor.

AFFIRMED.

All the judges concur.

      . Specifically, the plaintiff argues that the following testimony at the parole hearing slandered him: Mrs. Smith’s testimony that “[o]utside the prison, outside [Sullivan] never abided by the laws; otherwise, my son would still be alive”; and Mr. Smith’s testimony that "William Larry Sullivan stabbed my son 17 times, and he does not need to be out, because he has vowed to kill his wife when he does get out, and this is in the court transcript.”


text:
    Richard A. JOHNSON v. Thresa L. JOHNSON.
    2040403.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2005.
    Michael S. McNair, Mobile, for appellant.

      Richard E. Shields of Shields, Ratliff, Green & Kern, P.C., Mobile, for appellee.
   CRAWLEY, Presiding Judge.

Richard A. Johnson (“the husband”) and Thresa L. Johnson (“the wife”) were divorced by the Mobile Circuit Court on February 12, 2003. The divorce judgment provided, in pertinent part:

“4. With respect to the [marital] homeplace, the home shall be listed for sale if the husband does not buy out the wife’s interest. The husband shall have first right of refusal to buy the wife’s interest out of the homeplace for $125,000.00 within 60 days. In the event the husband does not buy the wife’s interest out, the property shall be listed on the open market for sale through the Court-appointed commissioner Faye Brady at Lane, Lyons, Burton and Bullock. ...
“5. Pending the sale, the wife and child shall have exclusive possession of the homeplace and the husband shall pay the mortgage [of $711 per month] on the homeplace as periodic alimony.
“6. With respect to other periodic alimony, once the homeplace sells, the husband shall pay periodic alimony in the amount of $750.00 per month.”

The husband declined to buy out the wife’s interest in the marital home within 60 days of the entry of the divorce judgment, and the house was listed for sale in May 2003.

On January 21, 2005, the trial court entered an order approving a sale of the property. On January 27, 2005, the husband filed a motion to alter, amend, or vacate the order and to stay the sale on the ground that the proposed purchase price of $258,000 was substantially less than the appraised value of the property. On January 31, 2005, the trial court held a hearing on the husband’s motion, at which three witnesses' — the husband, the wife, and real estate commissioner Faye Brady — testified. In addition, the court received documentary evidence, including three real estate appraisals on the property. At the conclusion of the hearing, the trial court entered a judgment confirming its earlier order approving the sale and stayed the judgment conditioned upon the husband’s filing a supersedeas bond in the amount of $50,000. The husband appealed, arguing that the trial court had abused its discretion in approving the sale. The husband never filed a supersedeas bond.

On June 8, 2005, the wife filed with this court a motion for damages, asserting that the husband’s appeal was frivolous because the husband’s objection to the sale and appeal of the judgment affirming the sale resulted in the buyers’ withdrawing their offer on the property. The husband’s appeal is, therefore, moot.

The wife’s motion for damages is granted in the amount of $2,500, plus double her costs.

APPEAL DISMISSED AS MOOT.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.