author: GRIFFIS, P.J.,

text:
    Desmond SHIELDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01506-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.
    Desmond Shields, appellant, pro se.

      Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. On April 8, 2005, Desmond Shields pleaded guilty to manslaughter and robbery. Pursuant to a plea bargain, Shields was sentenced to twenty and fifteen years, respectively, and the sentences were ordered to be served consecutively.

¶ 2. On May 5, 2010, Shields filed in the circuit court a “Motion For a Modification of Sentence.” The motion contended that Shields had not actually been involved in the robbery of the victim. It claimed that this fact had been established at the trials of the other participants in the crime. Shields’s motion requested that the circuit court vacate or otherwise modify Shields’s conviction and sentence for robbery.

¶ 8. The circuit court treated the motion as one for post-conviction relief (PCR) and dismissed it as time-barred as it was filed more than three years- after the entry of Shields’s conviction. See Miss.Code Ann. § 99-89-5(2) (Supp.2011). Shields appeals.

STANDARD OF REVIEW

¶ 4. A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the ease that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2011). An appellate court will affirm the summary dismissal of a PCR motion if the movant has “failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009). We review the dismissal of a PCR motion for an abuse of discretion, and we will not disturb the trial court’s factual findings unless they are shown to be clearly erroneous. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009); Williams v. State, 872 So.2d 711, 712 (¶2) (Miss.Ct.App.2004). But we will reverse and remand for a hearing if the movant has “alleged facts which require further inquiry in the expanded setting of an evidentiary hearing.” Mitchener v. State, 964 So.2d 1188, 1192-93 (¶ 10) (Miss.Ct.App.2007).

DISCUSSION

¶ 5. Shields filed his motion more than five years after the entry of his conviction; it is clearly time-barred by section 99-39-5(2), which requires that a PCR motion be filed within three years. None of the exceptions to the time bar apply.

¶ 6. Notwithstanding the time bar, Shields’s claims are without merit. Shields contends in his motion that he did not commit a robbery and should not have been punished for that crime. However, this is belied by his own testimony at the plea hearing:

[Judge] Now, I need to hear what you did.
[Shields] I was, I was there. I participated.
[Judge] How did you participate?
[Shields] I aided and abetted.
[Judge] Okay. How did you do that? What did you actually do? I’ve heard two trials and another plea, so I’m familiar with a lot of the facts. Did you receive a phone call from your cousin?
[Shields] Yes, sir.
[Judge] Did he request your assistance in disposing of a body?
[Shields] Yes, sir.
[Judge] And completing of a robbery?
[Shields] Yes, sir.
[Judge] Did you agree to do that?
[Shields] Yes, sir.
[Judge] How? What did you do? What did you do?
[Shields] They came and picked me up.
[Judge] Who is “they”?
[Shields] My co-defendants on the case, Anthony Booker, Shawn Davis, Mary Scarbrough [sic].
[Judge] Were they friends of yours? Friends and relatives of yours?
[Shields] Just a relative.
[Judge] Okay.
[Shields] They were friends of his.
[Judge] Of your cousin?
[Shields] Yes, sir.
[Judge] Your cousin was?
[Shields] Anthony Booker.
[Judge] Right. They arrived at your house?
[Shields] Sir?
[Judge] They arrived at your house?
[Shields] Yes, sir. They arrived at my house. They picked me up. We proceeded to Vancleave where they—
[Judge] The victim, Dorian Johnson, was present?
[Shields] Yes, sir.
[Judge] You were in two vehicles?
[Shields] Yes, sir.
[Judge] And you were driving, operating the vehicle with Mr. Johnson in it?
[Shields] Yes, sir.
[Judge] So, you drove him to the location his body was found?
[Shields] Yes, sir.
[Judge] He was alive at that time?
[Shields] Yes, sir.
[Judge] What happened when you arrived?
[Shields] When we arrived they, Davis and Booker removed him from the vehicle. They took him down the logging trail. They proceeded to—
[Judge] Did you participate in that?
[Shields] Not, not with removing the body, but I, I was present at the time of, of when they was [sic] doing it.
[Judge] And property was stolen from Mr. Johnson?
[Shields] Yes, sir.
[Judge] What property?
[Shields] The vehicle.
[Judge] The vehicle?
[Shields] Yes, sir.
[Judge] Any personal property?
[Shields] And a[sic] ATM card, the wallet.
[Judge] And you were with the others while this was going on?
[Shields] Yes, sir.
[Judge] After y’all left that scene, what did you do with the vehicle?
[Shields] We cleaned, we cleaned it up and dumped it at the airport in Gulf-port, the Biloxi-Gulfport Airport, and proceeded on.

¶ 7. The Mississippi Supreme Court has held that “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham[,] no hearing is required.” Young v. State, 731 So.2d 1120, 1122-23 (¶ 10) (Miss.1999). Additionally, appellate court decisions reviewing the trials of the other participants in this crime suggest that Shields’s specific claim about the testimony in the trials is false — the victim was robbed after Shields joined in. See Booker v. State, 5 So.3d 411, 416 (¶ 3) (Miss.Ct.App.2008); Scarborough v. State, 956 So.2d 382, 384 (¶¶ 10-12) (Miss.Ct.App.2007).

¶ 8. When the circuit court took Shields’s guilty plea, it informed him that by pleading guilty he was waiving his rights to testify or offer evidence in his defense, cross-examine witnesses, and make the State prove every element of each offense at trial. His claims of innocence are procedurally barred and without merit.

¶ 9. In his brief on appeal, Shields raises additional issues, alleging that his indictment for robbery was “faulty” and “illegal” and that he pleaded guilty under duress. These claims are time-barred, but they also barred because they were not raised in Shields’s motion before the circuit court; they have been made for the first time on appeal. Foster v. State, 716 So.2d 588, 540 (¶9) (Miss.1998). Moreover, these contentions unsupported in the record. Shields was originally charged with capital murder, with the underlying felony of robbery. The charges were reduced to robbery and manslaughter pursuant to a plea agreement. It appears that Shields executed a valid waiver of indictment on the robbery charge, shortly before he pleaded guilty. At any rate, a valid guilty plea waives certain constitutional rights, including in-sufficiencies or defects in the indictment. Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992). Shields’s claims of duress are unsupported except by bare assertion in his brief, and they are contradicted by Shields’s testimony at the plea hearing. Notwithstanding the procedural bars, we find both of these claims meritless.

¶ 10. Shields also alleges that he was denied a copy of the record to use in drafting his brief on appeal, but the record contains a notice and certificate of completion filed by the Circuit Clerk of Jackson County, which states that the record was timely completed and made available to Shields. Shields’s claim is unsupported by the record.

¶ 11. We find Shields’s PCR motion time-barred and without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. MYERS, J„ NOT PARTICIPATING.


source: Caselaw Access Project

author: SHAW, Justice. SHAW, Justice. SHAW, Justice

license: Public Domain

text:
    Jerry Wayne SUTTLES and City of Homewood v. Eldetraud “Trudy” ROY.
    1071453.
    Supreme Court of Alabama.
    May 21, 2010.
    As Modified on Denial of Rehearing July 22, 2011.

      Timothy P. Donahue and A. Donald Scott, Jr., of Donahue & Associates, LLC, Birmingham, for appellant Jerry Wayne Suttles.
    Thomas S. Hale and Terry A. Sides of Hale, Sides & Akins, L.L.C., Birmingham, for appellant City of Homewood.
    Rip Andrew, Alan B. Lasseter, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
    Lorelei Lein, deputy gen. counsel, Alabama League of Municipalities, Montgomery, for amicus curiae Alabama League of Municipalities, in support of the appellants.
    George W. Royer, Jr., and Scott W. Faulkner of Lanier Ford Shaver & Payne, P.C., Huntsville, for amicus curiae City of Huntsville, in support of the appellants.
    Alex L. Holtsford, Jr., Rick A. Howard, and April W. McKay of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery; and David A. McDowell of McDowell, Faulk & McDowell, LLC, Prattville, city atty., City of Prattville; Art Eisner, city atty., City of Millbrook; Richard Manley of Manley Trager Perry & Stapp, De-mopolis, city atty., City of Demopolis; and Jimmy Nunn, city atty., City of Selma, for amici curiae City of Prattville, City of De-mopolis, City of Selma, and City of Mill-brook, in support of the appellants.
    Rocco J. Leo and Horace V. O’Neal, Jr., of Leo & O’Neal, Birmingham, for amicus curiae Alabama Association of Police Chiefs, in support of the appellants.

      Dan Warnes of Warnes & Logan, Gun-tersville, for amicus curiae City of Gun-tersville, in support of the appellants.
   SHAW, Justice.

The City of Homewood (“Homewood”) and Jerry Wayne Suttles, a police officer employed by Homewood, appeal by permission, in accordance with Rule 5, Ala. R.App. P., from the denial of their motion for a summary judgment in a personal-injury action filed by Eldetraud “Trudy” Roy. We affirm in part, reverse in part, and remand.

Facts and Procedural History

According to the complaint, in May 2006 Roy was walking along Central Avenue in Homewood. When she approached the corner of 29th Court Street and Central Avenue, several Homewood police officers on motorcycles were stopped at the intersection directing traffic. Apparently, a fund-raising event known as the “Torch Run” was underway and participants were about to proceed through that intersection.

Roy alleges that she was given permission by one of the police officers to cross the intersection. As she did so, she was struck by a motorcycle being driven by Suttles: Roy contended that, at the time of the collision, Suttles “was driving at a high rate of speed while conducting ‘leap frog’ maneuvers purportedly to control traffic during the Torch Run event.” Roy suffered numerous injuries.

On April 14, 2007, Roy filed a complaint seeking damages from Homewood, Suttles, and fictitiously named defendants, claiming that they had caused her injuries. She also alleged that Homewood was vicariously hable for Suttles’s actions and for the actions of certain fictitiously named defendants. Roy named Suttles in both his official capacity as a Homewood police officer and in his individual capacity. Suttles and Homewood separately answered Roy’s complaint.

In September 2007, Suttles and Home-wood filed a joint motion seeking a partial summary judgment on the issue of damages. Specifically, they alleged that, at the time of the accident, Suttles was acting in the line and scope of his employment as a police officer of Homewood. Under Ala. Code 1975, § 11-93-2 and §§ ll-47-24(a) and -190, they contended, the maximum amount of damages Roy could recover in her action against them was $100,000. Thus, Homewood and Suttles sought a partial summary judgment, stating:

“The applicable law in the present case is clear. Officer Suttles and the City of Homewood cannot settle or compromised the plaintiffs claims against them for any amount greater than the statutory $100,000 cap. Rather than spend the extraordinary time and expense involved with the litigation of this cause of action, the defendants should be allowed to settle the plaintiffs claims pursuant to the statutory cap. Therefore, there is no genuine issue of material fact as to the maximum amount of damages that the plaintiff could recover from the defendants, and the defendants are entitled to judgment as a matter of law pertaining to their maximum liability of $100,000.
“WHEREFORE, premises considered, the defendants respectfully request this Honorable Court enter an Order, as requested in defendants’ Memorandum of Law, granting Summary Judgment in their favor and holding that the Statutory Cap of $100,000 applies to this cause of action.”

Suttles subsequently also moved for a summary judgment claiming that he was entitled to State-agent immunity as to the claims alleged against him in his individual capacity.

Roy opposed Homewood and Suttles’s motion for a partial summary judgment on the damages issue, arguing that, although the damages for claims against Homewood and against Suttles in his official capacity may be capped at $100,000, the cap does not apply to the claim against Suttles in his individual capacity.

In an order dated June 12, 2008, the trial court granted in part and denied in part the joint motion:

“The City of Homewoodf’s] motion asking this Court to enter judgment stating as a matter of law that the Plaintiff Eldetraud ‘Trudy’ Roy cannot recover against the city an amount exceeding the damages limitations under Ala.Code [1975,] § 11-98-2, is hereby GRANTED.
“To the extent the Defendants’ Motion for Summary Judgment attempts to limit Officer Suttlesf’s] liability of One Hundred Thousand Dollars ($100,000.00) under Plaintiffs claim against him in his personal and individual capacity, Defendants’ Summary Judgment is DENIED.
“The Court further finds that there are genuine issues of fact and that it is for a jury to decide whether Officer Suttles is liable for claims against him in his individual and personal capacity.”

The trial court subsequently certified its June 12 order as appropriate for an interlocutory appeal under Rule 5, Ala. R. App P., and stated that the action presented three controlling questions of law “as to which there are substantial grounds for difference of opinion.” Homewood and Suttles petitioned this Court for an interlocutory appeal pursuant to Rule 5; we granted the petition and ordered answer and briefs.

I.

The first question identified by the trial court is as follows:

“1. Given [Roy’s] concession that the acts which form the basis of her claims against the City of Homewood and Officer Suttles were performed by Suttles in the line and scope of his employment as a police officer for the City of Home-wood, can [Roy] nevertheless state a cognizable, direct claim for relief against Officer Suttles in his individual and personal capacity?”

On appeal, Homewood and Suttles argue that because the accident occurred while Suttles was working in the line and scope of his employment for Homewood, Roy cannot pursue an action against Suttles in his individual capacity. Homewood and Suttles’s sole argument in support of this contention relies on the rationale of our recent decision in Ex parte Hale, 6 So.3d 452 (2008). In Hale, this Court, citing Ex parte Davis, 930 So.2d 497 (Ala.2005), noted that sheriffs (and deputy sheriffs) may be immune, under Ala. Const.1901, art. I, § 14, from a civil action seeking damages from them in their individual capacities. Hale, 6 So.3d at 457. See also Davis, 930 So.2d at 501 (noting that deputy sheriffs enjoy the same immunity as sheriffs). Homewood and Suttles contend that Sut-tles should be afforded similar immunity from a suit naming him in his individual capacity. We disagree.

Sheriffs and municipal peace officers are protected from suits seeking damages from them in their individual capacity by two different forms of immunity: sheriffs are protected by State immunity under § 14, and municipal peace officers are protected by State-agent immunity. These two types of immunity, and accordingly sheriffs and municipal peace officers, are treated differently under Alabama law.

Generally, sheriffs enjoy State immunity under § 14 from actions against them in their individual capacities for acts they performed in the line and scope of their employment. Davis, 930 So.2d at 500-01 (noting in an action against a deputy sheriff that “a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment”); see also Hale, 6 So.3d at 457 (holding that acts by a sheriff, which gave rise to the plaintiffs claim against him, were taken “in the execution of his duties as sheriff,” and, thus, the sheriff was immune under § 14 from an action seeking damages against him in his individual capacity). This immunity is not unlimited and, in certain instances, § 14 does not protect sheriffs from an action against them in their individual capacity. Alexander v. Hatfield, 652 So.2d 1142, 1144 (Ala.1994) (noting situations in which § 14 does not shield sheriffs from an action brought against them in either their official or individual capacities).

Conversely, peace officers are afforded immunity by Ala.Code 1975, § 6-5-338(a), and the test for State-agent immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), as modified in Hollis v. City of Brighton, 950 So.2d 300 (Ala.2006) (incorporating the peace-officer-immunity standard provided in § 6-5-338(a) into the State-agent-immunity analysis found in Cranman). See Ex parte Kennedy, 992 So.2d 1276 (Ala.2008), and City of Birmingham v. Brown, 969 So.2d 910, 916 (Ala.2007) (“Immunity applies to employees of municipalities in the same manner that immunity applies to employees of the State.” (citing Cranman, supra)). Under that formulation,

“ ‘[a] State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala.Code 1975.’

Hollis, 950 So.2d at 309 (quoting and modifying Cranman, 792 So.2d at 405). In certain circumstances, a peace officer is not entitled to such immunity from an action seeking liability in his or her individual capacity:

“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Cranman, 792 So.2d at 405.

The immunity provided to sheriffs and deputy sheriffs stems from the fact that a sheriff is an executive officer of the State: “A sheriff is an executive officer of the State of Alabama, who is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office.... ” Parker v. Amerson, 519 So.2d 442, 442-43 (Ala.1987). See also Ala. Const.1901, art. V, § 112 (“The executive department shall consist of a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county.”). “[A] suit against a sheriff is ‘essentially a suit against the state’ and thus ‘not maintainable’ ” under § 14 of the constitution. Parker, 519 So.2d at 446 (quoting Montiel v. Holcombe, 240 Ala. 352, 199 So. 245 (1940)).

Municipal peace officers, however, are “deemed to be officers of this state” for purposes of Ala.Code 1975, § 6-5-338(a), and thus whether they are afforded immunity when sued in their individual capacity is determined under a different standard:

“ “Whether [§ 14] immunity serves as a defense to an action against a state officer or employee sued in his individual capacity depends upon the degree to which the action involves a State interest....
“ ‘When determining whether a State interest in an action against a state official or employee in his or her individual capacity is sufficient to trigger the immunity granted by § 14, our cases distinguish between the standards applied to those state agents or employees whose positions exist by virtue of legislative pronouncement and those who serve as the constitutional officers of this State. We have held that State-agent immunity may bar an action against a state agent or employee under the principles announced in Ex parte Cranman, 792 So.2d 392 (Ala.2000). See Ex parte Butts, 775 So.2d 173 (Ala.2000) (adopting, by majority, the Cranman restatement of the rule governing State-agent immunity). However, this Court has consistently held that a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment.’ ”

Hale, 6 So.3d at 457 (quoting Davis, 930 So.2d at 500-01 (emphasis in Hale omitted; other emphasis added)).

Homewood and Suttles contend that “[tjhere is no factual or legal basis for treating these immunities any differently under these circumstances.” Homewood and Suttles’s brief at 15. However, as the above authorities indicate, the distinction between the type of immunity afforded sheriffs and the type afforded municipal peace officers is rooted in the unique constitutional status of sheriffs as executive officers, juxtaposed against the position of municipal peace officers, which is created by statute. Although Suttles may be entitled to State-agent immunity under the test in Cranman, as extended in Hollis, Homewood and Suttles have not demonstrated that he is entitled to § 14 immunity under the rationale of Hale, or that Hale provides Suttles with blanket immunity from an action against him in his individual capacity. Homewood and Sut-tles have thus not established that the trial court erred in denying their motion for a summary judgment on this ground.

II.

The trial court’s second controlling question of law is as follows:

“2. If [Roy] can state a cognizable, direct claim against Officer Suttles in his individual and personal capacity (notwithstanding [Roy’s] concession that Suttles’[s] alleged actions which form the basis of her claims were performed by him in the line and scope of his employment), does Alabama law nevertheless cap at no more than $100,000 the damages which, in the event of a finding of liability, [Roy] may in the aggregate recover against the City of Homewood and Officer Suttles?”

Homewood and Suttles argue, citing Benson v. City of Birmingham, 659 So.2d 82 (Ala.1995), and Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala.1999), that if Roy can maintain an action against Suttles in his individual capacity, then Alabama law caps the recoverable damages against Suttles to $100,000.

Alabama Code 1975, § 11-47-190, states generally that a city or town may be found liable for the actions of its employees, and provides for a statutory cap of recovery:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured. However, no recovery may be had under any judgment or combination of judgments, whether direct or by way of indemnity under Section 11^47-24, or otherwise, arising out of a single occurrence, against a municipality, and/or any officer or officers, or employee or employees, or agents thereof, in excess of a total [of] $100,000 per injured person up to a maximum of $300,000 per single occurrence, the limits set out in the provisions of Section 11-93-2 notwithstanding.”

Section 11-93-2 similarly provides a $100,000 cap for recovery against “a governmental entity”:

“The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence. Recovery of damages under any judgment or judgments against a governmental entity shall be limited to $300,000.00 in the aggregate where more than two persons have claims or judgments on account of bodily injury or death arising out of any single occurrence. Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth.”

Further, under § 11^47-24(a), municipal corporations are required to indemnify their employees in certain situations:

“Whenever any employee of a municipal corporation of the State of Alabama shall be sued for damages arising out of the performance of his official duties, and while operating a motor vehicle or equipment engaged in the course of his employment, such government agency shall be authorized and required to provide defense counsel for such employees in such suit and to indemnify him from any judgment rendered against him in such suit. In no event shall a municipal corporation of the state be required to provide defense and indemnity for employees who may be sued for damages arising out of actions which were either intentional or willful or wanton.”

In Benson, supra, this Court was called upon to determine whether the $100,000 damages cap on municipal liability found at § 11-93-2 was applicable to indemnity claims under § ll-47-24(a). Specifically, the trial court in that case entered a judgment on a jury verdict in a wrongful-death action against the City of Birmingham (“the City”) and one of its police officers for $1,600,000. The City made a payment of $100,000, plus interest, to the plaintiff, arguing that under § 11-93-2 it was required to pay no more than that amount. However, the plaintiff argued that § 11-47-24 required the City to indemnify its employee and that there was no limitation on the amount of indemnity provided by that Code section; thus, the plaintiff argued, the City was responsible for the entire amount of the $1,600,000 judgment.

This Court described the issue on appeal as “whether the City may be liable for more than $100,000 when it is required to indemnify a negligent employee.” 659 So.2d at 86. Harmonizing the two Code sections, this Court stated:

“For § 11-93-2 to be given proper effect, the cap must be applicable to indemnity actions. If it were not, the City could be subjected to judgments over $100,000 just as surely as if the cap were not in place, because almost all actions against municipalities will be based on allegations of negligence by municipal employees. Thus, if plaintiffs were able to circumvent the cap simply by naming an employee as a defendant and then requiring the city to indemnify the employee for the entire amount of a large judgment, the cap would effectively be repealed. This result can be avoided by construing the two statutes harmoniously — holding that § 11-47-24 provides for indemnification only to the limits of § 11-93-2.”

659 So.2d at 86. We thus held “that a municipality may indemnify a negligent employee only up to the limits specified in §11-93-2....” 659 So.2d at 87.

Additionally, in Smitherman, supra, the plaintiffs sued various county officials and employees for damage sustained as the result of an allegedly improperly maintained roadway. The Court held that the claims against the county officials and county employees named in their official capacity were subject to the $100,000 cap of § 11-93-2. 746 So.2d at 1008. This was because “claims against county commissioners and employees in their official capacity are, as a matter of law, claims against the county....” Smitherman, 746 So.2d at 1007. See also Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002) (“A suit against ... State agents in their official capacities[ ] is a suit against the State.”).

Insofar as Roy’s action seeks damages against Suttles in his official capacity, as noted in Smitherman,, the cap of § 11-93-2 limits any recovery against Homewood and Suttles to $100,000. Suttles and Homewood thus contend that “it makes no sense at all” for the claims against Suttles in his official capacity “to be governed by the statutory damages cap” without the claims against him in his individual capacity also being subject to the cap. Home-wood and Suttles’s brief at 20. This distinction — capping damages for claims against Suttles in his official capacity but not capping damages for claims asserted against him in his individual capacity— however, is clearly provided by the cited authorities.

Section 11-93-2 caps the damages one may recover “against a governmental entity.” The policy of § 11-93-2 is to “preserve” and “protect! ] the public coffers, for the benefit of all of the citizenry....” Benson, 659 So.2d at 86-87. A claim against an employee in his or her individual capacity, however, does not seek to recover damages from the governmental entity. See Gamble v. Florida Dep’t of Health & Rehabilitative Servs., 779 F.2d 1509, 1513 (11th Cir.1986) (“Whether a state officer is being sued for damages in an official or an individual capacity is not mere semantics; the question is whether the plaintiff is reasonably seeking relief from the state coffers or from the individual’s assets.” (quoted in Ex parte Troy Univ., 961 So.2d 105, 110 (Ala.2006))).

Homewood and Suttles contend that at the time of Roy’s injuries Suttles was acting in the line and scope of his employment and that there is no factual distinction between Roy’s claims against Suttles in his official capacity and in his individual capacity. They thus argue that “the inescapable conclusion is that it makes no sense at all” for damages sought against him in his official capacity to be capped, while damages sought against him in his individual capacity are not. However, no authority is cited or argument advanced demonstrating that this Court or the trial court can consider the individual claim against Suttles as, in substance, an official-capacity claim subject to the cap of § 11-93-2; further, nothing in Benson, Smitherman, or § 11-93-2 allows such a result. “Rule 28(a)(10), Ala. RApp. P., requires that an argument in an appellant’s ... brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ ” Long v. Bryant, 992 So.2d 673, 683 (Ala.2008). “ ‘[Wjhere no legal authority is cited or argued, the effect is the same as if no argument had been made.’ ” Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala.2005) (quoting Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala.Civ.App.1987)). Thus, Homewood and Suttles have not demonstrated that the trial court erred in denying their motion for a summary judgment on this issue.

III.

In its third question, the trial court asks whether a determination of State-agent immunity under Cranman is a question of law or a question of fact:

“If [Roy] can state a cognizable, direct claim against Officer Suttles in his individual and personal capacity (notwithstanding [Roy’s] concession that Sut-tles’[s] alleged actions which form the basis of her claims were performed by him in the line and scope of his employment), [then] Suttles’[s] liability is dependent on, among other things, whether he is entitled to immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), and its progeny. Is it a question of law for the court (as is the similar defense of qualified immunity in federal actions under 42 U.S.C. § 1983) or a question of fact for the jury whether Suttles is entitled to such immunity? If it is [a] question of law for the court, then based on the record evidence, is Suttles immune from [Roy’s] claims?”

In its order denying Homewood and Suttles’s motion for a summary judgment, the trial court stated: “The Court further finds that there are genuine issues of fact and that it is for a jury to decide whether Officer Suttles is liable for claims against him in his individual and personal capacity.” Homewood and Suttles construe this as a holding that the availability of State-agent immunity is a question of fact for the jury.

Prior decisions of this Court state that “ ‘ “[t]he applicability of the doctrine of discretionary function [now called State-agent immunity] must be determined on a case-by-case basis, and it is a question of law to be decided by the trial court.” ’ ” Ex parte Sawyer, 984 So.2d 1100, 1106-07 (Ala.2007) (quoting Ryan v. Hayes, 831 So.2d 21, 28 (Ala.2002), quoting in turn Ex parte Davis, 721 So.2d 685, 689 (Ala.1998)). See also Lightfoot v. Floyd, 667 So.2d 56, 64 (Ala.1995) (“The question whether a public official is entitled to qualified immunity is one to be decided as a matter of law.”). In determining whether immunity under Cranman applies, this Court has established a “burden-shifting” process:

“In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone [v. Douglas, 874 So.2d 1046,] 1052 [ (Ala.2003) ]; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). ‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’” Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).”

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006). When applied in the context of a motion for a summary judgment, this process may result in an issue of disputed material fact, and a determination of that fact may require resolution by a jury: “If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P.” Ex parte Wood, 852 So.2d 705, 708 (Ala.2002); Blackwood v. City of Hanceville, 936 So.2d 495, 507 (Ala.2006) (holding that there was a genuine issue of material fact as to the State-agent defendant’s rate of speed; a jury’s determination of that speed would determine whether the defendant was entitled to State-agent immunity and privilege under Ala.Code 1975, § 6-5-338(a) and § 32-5A-7(b)(3)). The existence of a genuine issue of material fact may require a factual issue to be determined by a jury, “under appropriate instructions from the trial court,” Blackwood, 936 So.2d at 507, but the availability of State-agent immunity is ultimately a question of law to be determined by the court. To the extent that the trial court held that the jury would determine the availability to Suttles of State-agent immunity, and not just disputed issues of fact, the trial court’s denial of the motion for a summary judgment is due to be reversed.

Suttles and Homewood request this Court to review the evidence and determine whether Suttles was entitled to State-agent immunity under Cranman. However, it is unclear whether the trial court has yet undertaken such an examination. Specifically, the third question states in part: “If [the existence of State-agent immunity] is [a] question of law for the court, then based on the record evidence, is Suttles immune from [Roy’s] claims?” This issue must first be addressed by the trial court, subject, under appropriate circumstances, to review by this Court.

Conclusion

The trial court’s denial of Homewood and Suttles’s motion for a summary judgment as to the claims against Suttles in his individual capacity is affirmed. That part of the trial court’s judgment holding that the jury is to decide whether Suttles is entitled to State-agent immunity is reversed, and the cause is remanded for the trial court to determine whether Suttles’s summary-judgment motion demonstrates that he is entitled to a judgment as a matter law on that issue.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

On Application for Rehearing

SHAW, Justice.

APPLICATION FOR REHEARING. OVERRULED; OPINION OF MAY 21, 2010, MODIFIED.

COBB, C.J., and WOODALL, STUART, PARKER, and MURDOCK, JJ., concur.

BOLIN and SHAW, JJ., concur specially.

SHAW, Justice

(concurring specially).

I concur in overruling the application for rehearing. I write specially to address some of the concerns expressed by the parties and amici curiae in briefs filed on application for rehearing.

Arguments Advanced by Homewood and Suttles

As noted in the opinion on original submission, the first question certified for this permissive appeal asked whether Suttles, who was allegedly acting in the line and scope of his employment at the time of the incident that is the basis of the underlying action, could be sued in his individual capacity. Homewood and Suttles offered a very limited argument on this issue on original submission, focusing their argument on the rationale of this Court’s decision in Ex parte Hale, 6 So.3d 452 (2008), a decision involving the immunity from suit afforded sheriffs deputies under Ala. Const. 1901, art. I, § 14. The opinion addresses only that argument; other grounds that may prevent Suttles from being sued in his individual capacity were not raised and therefore are not addressed. Whether some other law or legal rationale offers Suttles immunity from being sued in his individual capacity is left to another day.

On application for rehearing, Homewood and Suttles state that they cited authorities other than Hale for the proposition that Suttles could not be sued in his individual capacity; specifically, they note that they argued in their reply brief that Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala.1999), holds that a public officer or employee engaged in the performance of official duties acts only within his or her official capacity and may be sued only in that capacity. This is a proposition distinct from the Hale argument. However, issues raised for the first time in a reply brief are not properly before us. See, e.g., Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002) (“[T]his Court does not address issues raised for the first time in a reply brief.”). The opinion on original submission in note 4, 75 So.3d at 98, tacitly acknowledges that Homewood and Suttles mentioned, but failed to argue, this issue in their initial brief; nevertheless, we addressed and rejected that argument.

In their application for rehearing, Homewood and Suttles argue that in Smitherman “this Court held that a public officer or employee who is engaged in the performance of his official duties acts only within his official capacity and is only subject to suit in his official capacity....” I disagree that that was the holding of Smitherman.

In Smitherman, the plaintiffs sued various county commissioners and a county engineer seeking damages for personal injury sustained as the result of an allegedly improperly maintained roadway. The trial court noted that under Cook v. St. Clair County, 384 So.2d 1 (Ala.1980), the county commissioners could not be subject to suit in their individual capacities. Smitherman affirmed the holding that, under Cook, the commissioners were subject to suit only in their official capacities. In other words, the Court noted what appears to be a per se rule barring individual-capacity suits against county commissioners.

The individual-capacity claim against the county engineer involved a different analysis. The trial court held: “ ‘There is no evidence that County Engineer, Bob Pi-rando, acted in his individual capacity with regard to the issues presented in the Plaintiffs’ Complaint. Accordingly, Bob Pirando, in his individual capacity, is dismissed with prejudice.’ ” 746 So.2d at 1003. On appeal, as to that aspect of the trial court’s judgment, this Court held:

“With regard to the claim against the county engineer in his individual capacity, the plaintiffs present no argument as to why the summary judgment was not proper as to the county engineer, and the record supports that summary judgment as to the county engineer. Consequently, we affirm the judgment as it relates to the county commissioners and the county engineer in their individual capacities.”

746 So.2d at 1004 (emphasis added). Smitherman gives no explanation as to what evidence the record contained in support of the summary judgment as to the county engineer. It is impossible to determine what actions the engineer did or did not undertake or how those acts occurred as part of, or could not be outside of, the line and scope of the engineer’s duties. It is clear, however, that the Court did not hold that the per se rule of Cook barring individual-capacity claims against county commissioners also applied to county employees. Indeed, there would have been no authority for the Court to do so, because nothing in Cook indicates that the rule addressed there would extend to county employees who are not part of a county’s governing body: “Because counties, as bodies corporate, act through their governing bodies, the county commission[s], [the county] commissioners likewise are subject to suit in tort, not in their individual capacities but only in their official capacities.” 384 So.2d at 7 (opinion on rehearing). In other words, the per se rule barring an individual-capacity action against a county commissioner exists by virtue of the county commissioner’s role as a part of the governing body of the county.

There is no argument before us in the instant case to the effect that municipal employees share the same “immunity” from suit in their individual capacities as county commissioners. Homewood and Suttles appear to assume that the evidence in Smitherman indicated that the county engineer — a county employee — was acting within the scope of his official duties and that the per se rule of Cook also barred individual-capacity claims against such county employees. However, all we know is that the trial court stated, without explanation, that there was no evidence indicating that the county engineer was acting within his “individual capacity.” We cannot infer from this statement the broad overarching rule that a municipal employee performing official duties can be sued only in his official capacity. Smitherman certainly does not state such a broad rule, and no case since Smitherman was decided has cited Smitherman as standing for such a proposition. There can be no argument that the opinion in this case creates new law, that it treads new ground, or that it removes protections once afforded county or municipal employees.

However, none of this matters. The Court in Smitherman explicitly did not address the issue because the summary judgment in favor of the county engineer in his individual capacity was not challenged on appeal: “[T]he plaintiffs present no argument as to why the summary judgment was not proper as to the county engineer.... ” 746 So.2d at 1004. Because the issue was not raised, the Court could not — indeed there was no reason to — address it. See Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 462 (Ala.1993) (“This Court’s review is limited to the issues raised on appeal.”), and Ex parte Town of Lowndesboro, 950 So.2d 1203, 1210 (Ala.2006) (holding that an issue' that was “not decided by the courts made part of the opinion of the case ... cannot be binding precedent on the issue” (footnote omitted)). Although the trial court in Smitherman may have held that the county engineer’s actions were all taken in his official capacity and, thus, that he was not subject to a suit in his individual capacity, this Court passed no judgment on that holding, which was not challenged on appeal. Thus, Smitherman cannot be read to make any holding on that issue. I see nothing in what has been presented on application for rehearing indicating that this Court misapprehended the law in interpreting Smitherman.

Homewood and Suttles also contend that, as a matter of public policy, municipal police officers should be granted blanket immunity from actions against them in their individual capacities, as are sheriffs deputies, who are afforded immunity under § 14. This is contrary to current Alabama law, which is to the effect that § 14 immunity “does not extend to municipalities or its agents.” Ex parte City of Tuskegee, 932 So.2d 895, 901 n. 3. (Ala.2005); see also Norris v. City of Montgomery, 821 So.2d 149, 152-53 (Ala.2001) (holding that absolute immunity does not extend to municipalities); and Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975) (abolishing the doctrine of municipal immunity). No authority is cited for the proposition that the § 14 immunity afforded sheriffs deputies can or should be extended to municipal police officers. I thus see nothing indicating that this Court misapprehended the law on this issue in the opinion on original submission.

In any event, “it is well established that the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama.” Boles v. Parris, 952 So.2d 364, 867 (Ala.2006). See also Marsh v. Green, 782 So.2d 223, 231 (Ala.2000) (“Matters of policy are for the Legislature and, whether wise or unwise, legislative policies are of no concern to the courts.”). Moreover, the legislature, in Ala.Code 1975, § 6-5-338, has acted to extend a form of immunity to shield municipal officers who are sued in their individual capacities. This form of immunity has been incorporated into the analysis for determining State-agent immunity under the rule as restated in Ex parte Cranman, 792 So.2d 392 (Ala.2000), which analysis the trial court in this case has yet to perform. To argue that the decision in the instant case strips police officers of protection from suit ignores the fact that protections are afforded officers and that the underlying litigation has not yet reached the point where the trial court must examine whether those protections apply.

In the third issue in their brief on rehearing, Homewood and Suttles contend that, if Roy is able to assert individual-capacity claims against Suttles, then any damages award must be capped at $100,000 by Ala.Code 1975, § 11-47-190. As noted in the opinion on original submission, we have refused to address this issue based on the lack of argument regarding it in Homewood and Suttles’s initial brief. Because we do not address this issue, it must wait to be resolved on another day.

Lastly, Homewood and Suttles contend that the indemnification provisions of Ala. Code 1975, § 11-47-24, will require Home-wood to indemnify Suttles for any judgment he is required to pay, regardless of whether he was named in his individual or official capacity. Homewood and Suttles contend that this Court “erred in failing to recognize” that fact.

This specific issue was not argued in Homewood and Suttles’s initial brief on appeal. The arguments regarding § 11-47-24 related only to the issue whether Roy should be allowed to pursue a claim against Suttles in his individual capacity. Further, we noted that no authority was cited for the proposition that § 11-93-2 capped any claims against Suttles in his individual capacity at $100,000. Whether the caps on governmental liability found in § 11-93-2 or § 11-47-190 also act as caps on the personal liability of a governmental employee because of the duty to indemnify, or whether the statutory caps simply limit the amount of indemnification required to be paid by the governmental entity, are issues to be resolved another day.

Arguments of the Amici Curiae

Numerous amici curiae have filed briefs' in support of granting a rehearing in this case. Many of these briefs contain arguments regarding the questions certified by the trial court. Specifically, several arguments are made that there may exist other bases for holding that acts performed by a municipal officer in the line and scope of employment could not form the grounds for an individual-capacity claim against such officer. However, issues and arguments raised by amici curiae and not argued by the parties to the ease are not considered by this Court. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 174 (Ala.2005) (stating that, to the extent an amicus curiae advances different arguments from the actual parties to the suit, those arguments cannot be considered). Thus, those issues are left ‘“for decision when properly raised and presented.’” Courtaulds Fibers, Inc. v. Long, 779 So.2d 198, 202 n. 1. (Ala.2000) (quoting State ex rel. Baxley v. Johnson, 293 Ala. 69, 74, 300 So.2d 106, 110 (1974)).

Other amici curiae have argued that this Court should address separate issues related to whether municipal or county employees can be held liable for actions taken while on the job or while engaging in their official duties. However, “[t]his Court’s review is limited to the issues raised on appeal.” Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 462 (Ala.1993). Thus, a decision on these separate issues will have to wait until they are actually presented to this Court by parties to a proceeding properly before this Court.

Finally, some amici curiae have grossly misinterpreted our opinion in this case. One amicus curiae argues that our decision effectively overrules Cook v. St. Clair County, supra, which holds that county commissioners are not subject to suit in their individual capacities. However, the opinion makes no holding regarding county commissioners and, in fact, states that county commissioners cannot be sued in their individual capacities. Additionally, the issue whether municipal officers are to be treated the same as county commissioners under Cook was never argued on appeal; therefore, the opinion is simply silent as to this issue.

Several amici curiae also appear to contend that the opinion has stripped counties of all protection in litigation. However, the opinion affirms the principle that § 11— 93-2 caps the liability of “governmental entities,” even with respect to claims against the officials of those entities in their official capacities. See also § 11-47-190. Further, we note that individual-capacity claims do not seek damages from the governmental entity. Finally, individual-capacity claims are subject to a State-agent immunity defense under Cranman. I see nothing in the opinion substantiating their contention that we have removed all protection in litigation from counties.

Other amici curiae appear to believe that we actually held that § 11-47-190 does not apply, which, they allege, would create disastrous results. This argument is completely without merit, as we explicitly state in note 5 that “we decline[d] to address this issue.” 75 So.3d at 99.

Because the application for rehearing and the supporting brief do not demonstrate that this Court overlooked or misapprehended any points of law or the facts, see Rule 40(b), Ala. R.App. P., I concur to overrule the application.

BOLIN, J., concurs.

      . Although the trial court’s June 12, 2008, order did not purport to rule on Suttles's separate summary-judgment motion asserting State-agent immunity, the trial court nevertheless ruled that Homewood and Suttles’s immunity issue presented genuine issues of fact.

      . "Governmental entity” is defined in Ala. Code 1975, § 11-93-1(1), and includes both municipalities and counties.

      . See generally Prattville v. Corley, 892 So.2d 845 (Ala.2003), for a discussion of the difference in the scope of § 11-47-190 and § 11-93-2, which is not pertinent in the instant case.

      . Homewood and Suttles in their initial brief appear to cite Smithennan for the proposition that because the allegedly tortious acts that form the basis of Roy's claims were performed by Suttles while he was acting in the line and scope of his employment, Roy could sue Suttles only in his official capacity. In an amicus curiae brief, the City of Huntsville specifically argues that Smithennan held “that a public officer or employee defendant engaged in the performance of their official duties acts only within their official capacity and may only be sued in that capacity.” Smitherman, however, does not stand for this proposition. In that case, the trial court held that a county engineer sued in his individual capacity was entitled to a summary judgment because there was "no evidence” indicating that he "acted in his individual capacity with regard to the issues” presented in the complaint. 746 So.2d at 1003. We affirmed the trial court’s judgment because the appellant did not, on appeal, challenge the summary judgment in favor of the county engineer on the claim alleged against him in his individual capacity. Although this Court went on to state, in dicta, that the record supported the trial court’s judgment, this Court did not affirm on the basis of the rationale of the trial court's holding. Id. at 1004.

      . Suttles and Homewood also state in the "summary of the argument” and in the "conclusion" portions of their brief that the plain language of § 11-47-190 provides that no recovery may be had against an employee of a municipality in excess of $100,000, regardless of whether the employee is sued in his individual or official capacity. No explanation or elaboration on this argument is found in the initial brief, and no authority is cited supporting their interpretation of the Code section. Therefore, we decline to address this issue.

      . There is much discussion in the briefs — both on original submission and on rehearing— regarding a "concession” by Roy that Suttles was working in the line and scope of his duties as an officer at the time the incident occurred. The argument is that, because he was performing official duties, Suttles can be sued only in his official capacity. However, Homewood and Suttles never raised a cogent argument addressing this issue in their initial brief; instead, they offered the very limited argument based on Hale mentioned above. Additionally, whether Suttles's actions were taken while he was acting in the line and scope of his employment is an issue that is addressed in determining whether State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), applies. Roy has not conceded that Suttles’s actions are protected by Cranman. The trial court has yet to undertake a Cranman analysis.
      In a related argument, some amici curiae maintain that Roy’s allegations support no claim of individual- and personal-capacity liability; instead, the argument goes, her allegations are limited to acts Suttles performed in his official capacity. This is not accurate. Roy alleged in her complaint, in response to the motion for a summary judgment, and on appeal that Suttles’s actions in driving the motorcycle violated both the Homewood Police Department’s internal policies as well as state law. Roy continues to make such allegations, arguing that they are to be examined when the Cranman analysis takes place.

      . Municipal officers are routinely sued in their individual capacities. See, e.g., Ex parte Dixon, 55 So.3d 1171 (Ala.2010) (police officer sued in individual capacity); City of Birmingham v. Brown, 969 So.2d 910 (Ala.2007) (city employee sued in individual capacity); Ex parte City of Tuskegee, 932 So.2d 895 (Ala. 2005) (police officers and municipal employees sued in individual capacities); Howard v. City of Atmore, 887 So.2d 201 (Ala.2003) (police officer and police chief sued in individual capacities); and Key v. City of Cullman, 826 So.2d 151 (Ala.Civ.App.2001) (police officer sued in individual capacity).

      . A consistent argument in the briefs of amici curiae is that in Smitherman this Court held that, as a matter of law, individual-capacity claims were not maintainable against a public official or employee who is sued for actions taken in the line and scope of official duties. Essentially, some of the amici curiae construe Smitherman as extending the per se rule in Cook that county commissioners cannot be sued in their individual capacities to any governmental employees acting in the line and scope of their employment. Because we did not hold in our opinion on original submission in this case that Smitherman contained such a per se rule for employees, many of the amici contend that the effect of our opinion is that such employees are subject to "unlimited individual liability” for actions taken in the line and scope of their employment. This is simply incorrect. Officers acting in the line and scope of their employment are protected by State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000). See Moore v. Crocker, 852 So.2d 89, 90 (Ala.2002) ("[Alabama Code 1975, § 6-5-338], by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.”), and Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala.2006) (formally incorporating § 6-5-338 into the Cranman rule governing State-agent immunity). If officers act outside their duties as described in Cranman, there is no immunity because the officers have, more or less, acted outside the line and scope of their employment. Our opinion on original submission in this case actually does not foreclose a per se rule forbidding individual-capacity actions; instead, we simply state that Homewood and Suttles’s authorities failed to demonstrate that such a rule existed.

      . For example, the Association of County Commissions of Alabama argues that, under general principles of agency law, Suttles should not be sued in his individual capacity. However, it was Homewood and Suttles’s duty to present this argument in their initial brief. Because this argument was not presented on appeal, our opinion does not address it, and resolution of that issue will have to wait until another day.


author: MAIN, Justice.

text:
    FIRST UNION NATIONAL BANK OF FLORIDA v. LEE COUNTY COMMISSION and Phillip Summers.
    1090804.
    Supreme Court of Alabama.
    June 30, 2011.

      George W. Walker III, J. David Martin, and C. Nelson Gill of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.
    C. Richard Hill, Jr., of Webb & Eley, P.C., Montgomery; and Stanley A. Martin, S. Allen Martin, Jr., and Christopher M. Bazzell of Law Office of Stanley A. Martin, Opelika, for appellee Lee County Commission.
   MAIN, Justice.

First Union National Bank of Florida (“First Union”), the plaintiff in a declaratory-judgment action filed in the Lee Circuit Court, appeals from a judgment entered in favor of the Lee County Commission (“the Commission”) and Phillip Summers, the defendants in that action. We affirm.

I. Factual Background and Procedural History

The parties stipulated to the following facts:

“1. The real property which is involved in this dispute is designated as parcel number 43-02-05-15-0-000-001.017 and is more specifically described as follows:
“Part of Lot 8 Shady Grove Farms Subdivision, recorded in Plat Book 13, Page 141 in the Office of the Judge of Probate of Lee County, Alabama, being located in Section 15, Township 20 North, Range 28 East, Lee County, Alabama, described as follows: begin at the Northeast corner of said Lot 8 on the South right of way of Lee Country [sic] Road No. 272, thence run South 01 Degrees 23 minutes East 300 feet, thence run South 88 degrees 52 minutes West 146.6 feet, thence run North 01 degrees 2.7 minutes West 300 feet to the South right of way of said highway, thence along said right of way North 88 degrees 52 minutes East 146.6 feet to the Point of Beginning, containing 1.0 acre,
“(hereinafter, the ‘Property’).
“2. During March of 1994, Summers contracted with Jim Walter Homes, Inc. (hereinafter, ‘JWH’) for JWH to build Summers a house to be constructed by JWH on the Property.
“3. On March 22, 1994, Summers executed a Non-Negotiable Promissory Note in the amount of One Hundred Seventeen Thousand Five Hundred Forty and 00/100 Dollars ($117,540.00) for the purchase price of the house to be constructed by JWH on the Property.... In addition, Summers executed a Mortgage on March 22, 1994, securing payment of the debt evidenced by the Non-Negotiable Promissory Note.
“4. The Mortgage was recorded by JWH on April 25, 1994 in the office of the Probate Judge of Lee County, Alabama and can be found at Real Property Book 2092, Pages 122-123.
“5. As a condition of the Mortgage, Summers agreed to ... ‘pay all taxes, assessments, and other liens taking priority over’ the Mortgage.
“6. On June 10, 1994, JWH executed an Assignment of Mortgage purporting to ‘grant, bargain, sell, assign, transfer and set over’ unto Mid-State Homes, Inc. the Mortgage and Non-Negotiable Promissory Note described therein. This Assignment of Mortgage was recorded on October 4,1994 in the office of the Probate Judge of Lee County, Alabama and can be found at Real Property Book 1891, Page 95.
“7. On April 12, 1995, Mid-State Homes, Inc. executed an Assignment of Mortgages purporting to ‘grant, bargain, sell, assign, transfer and set over’ unto Mid-State Trust IV the Mortgage and Non-Negotiable Promissory Note described therein. On the same day, and within the same document, Mid-State Trust IV purports to ‘grant, bargain, sell, assign, transfer and set over’ unto First Union National Bank of Florida the Mortgage and Non-Negotiable Promissory Note described therein. This Assignment of Mortgages was recorded on April 21, 1995 in the office of the Probate Judge of Lee County, Alabama and can be found at Real Property Book 1941, Pages 9-16.
“8. The 2004 ad valorem taxes for the Property were assessed to Summers by the Lee County Revenue Commissioner, Oline Price. The sum of the taxes assessed to Summers was $363.24.
“9. The 2004 ad valorem taxes were not paid. Therefore, the Lee County Revenue Commissioner gave notice that the Property would be sold at public auction. On May 4, 2005, the Property was sold at public auction to a third party, Plymouth Park Tax Services, LLC. Plymouth Park Tax Services, LLC paid $9,600.00 for the Property. The sum of the taxes assessed to Summers, interest, fees, and advertising costs was $447.00. Therefore, the Lee County Revenue Commissioner received an excess in the amount of $9,153.00. Lee County deposited the excess received from the sale into a non-interest bearing fiduciary account.
“10. On August 31, 2007, U.S. Bank, N.A. as successor in interest to Wacho-via Bank, NA, successor by merger to First Union National Bank, formerly known as First Union National Bank of North Carolina and successor by merger to First Union National Bank of Florida, executed a Power of Attorney. The Power of Attorney states: ‘US Bank desires to grant a power of attorney to Walter Mortgage Company and Jim Walter Homes, Inc., upon the terms and conditions set forth herein.’ The terms and conditions of the Power of Attorney state that Walter Mortgage Company and/or JWH are appointed ‘to execute, acknowledge, verify, swear to, deliver, record, and file, in the name, place, and stead of U.S. Bank ... all instruments, documents, and certificates which may from time to time be required in connection with [certain documents].’ The Power of Attorney further states that U.S. Bank ‘may terminate the Power of Attorney at any time by recording in the office where this Power of Attorney is recorded an instrument signed by U.S. Bank.’ The Power of Attorney was recorded on October 17, 2007....
“11. On July 24, 2008, Bill English, Judge of Probate, issued a Tax Deed to Wachovia Custodian for Plymouth Park Tax Services pursuant to ALABAMA CODE § 40-10-29 (1975). The Tax Deed was recorded on August 1, 2008 in the office of the Probate Judge of Lee County, Alabama....
“12. On August 11, 2008, Summers informed a representative of Walter Mortgage Company that the Property had been sold for back taxes. Prior to August 11, 2008, neither First Union nor Walter Mortgage Company had received actual notice of the fact that the Property had been sold at a public auction.
“13. On August 22, 2008, Walter Mortgage Company — acting as attorney-in-fact for First Union pursuant to the Power of Attorney described herein— made a payment directly to Plymouth Park Tax Services, LLC in the amount of $17,880.69 with the intent of effectuating a redemption of the Property.
“14. At the time Walter Mortgage Company paid Plymouth Park Tax Services, LLC, Summers was financially unable to satisfy his tax delinquency.
“15. Upon the instructions of Walter Mortgage Company, and in return for the payment made by Walter Mortgage Company to Plymouth Park Tax Services, LLC, Plymouth Park Tax Services, LLC executed a Quit Claim Deed to the Property to Summers on September 17, 2008. This Quit Claim Deed was recorded on October 14, 2008 in the office of the Probate Judge of Lee County, Alabama....
“16. Following Walter Mortgage Company’s payment to Plymouth Park Tax Services, LLC no person or entity applied for redemption of the Property at the Probate Office or deposited any money with the Judge of Probate in that regard.
“17. On or about July 28, 2009, a Verified Statement of Claim was presented to the Lee County Commission by Walter Mortgage Company on behalf of First-Union. The Verified Statement of Claim claims that First Union is entitled to the $9,153.00 excess arising from the tax sale.
“18. When an application is made to Lee County for the excess proceeds arising from a tax sale, Lee County’s policy is to (1) examine the Certificate of Land Sold for Taxes, (2) identify the person or entity assessed the taxes, (3) request identification to confirm that the person or entity applying for the excess was the person or entity who was assessed the taxes, and (4) if proper identification is presented, pay the excess proceeds to the applicant.
“19. Pursuant to ALABAMA CODE § 6-5-20 (1975), Walter Mortgage Company’s Verified Statement of Claim was disallowed by Lee County by operation of law.
“20. On June 16, 2009, Summers requested the excess proceeds and presented identification.”

William J. Wade, in his capacity as trustee for Mid-State Trust IV, sued the Commission and Summers in January 2009, seeking a judgment declaring who was entitled to the excess redemption proceeds from the tax sale of Summers’s property. Wade later filed a motion to substitute First Union as the real party in interest; the trial court granted the motion. First Union then filed an amended complaint in July 2009, seeking, as did Wade, a judgment declaring who was entitled to the excess redemption proceeds from the tax sale of Summers’s property. The parties agreed to submit the case to the trial court on stipulations, depositions, exhibits, and the parties’ briefs. The Commission then moved for a summary judgment. Summers appeared at the hearing on the Commission’s summary-judgment motion, and the Commission says Summers “informed the Court that his intention was to use any monies received as a result of this action to pay back the debt owed to First Union.” Commission’s brief, at 8. The trial court entered a judgment declaring that Summers was entitled to the excess funds from the tax sale. The trial court stated:

“The issue in this case is whether the Plaintiff First Union National Bank of Florida, as mortgagee, is entitled to receive excess funds held by Lee County pursuant to a tax sale. ALABAMA CODE § 40-10-28 (1975) governs the disposition of excess funds received by a county at a tax sale. Section 40-10-28 states that excess funds ‘shall be paid over to the owner, or his agent, or to the person legally representing such owner, or into the county treasury.’
“After considering the legal arguments of the parties and the facts of this case, the Court hereby finds that the Plaintiff First Union National Bank of Florida, as mortgagee, is not ‘the owner, or his agent, or ... the person legally representing such owner.’ As a result, the Plaintiff First Union National Bank of Florida is not entitled to the excess funds under ALA. CODE § 40-10-28. The Court finds that ‘the owner’ under ALA. CODE § 40-10-28 is the person or entity against whom the taxes were assessed. In addition, the Court finds that the Plaintiff First Union National Bank of Florida has not proven it is the owner’s agent or legal representative.
“Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that the Defendant Lee County Commission is not required to issue a check made payable to the Plaintiff First Union National Bank of Florida. Each party is to bear its own costs.”

(Capitalization in original.)

II. Standard of Review

“Our standard of review of this case is governed by statute. Section 12-2-7(1), Ala.Code 1975, states:

“ ‘[I]n deciding appeals, no weight shall be given the decision of the trial judge upon the facts where the evidence is not taken orally before the judge, but in such cases the Supreme Court shall weigh the evidence and give judgment as it deems just.’
“In a case in which a trial court has not heard live testimony, this Court has held that ‘a reviewing court will not apply the presumption of correctness to a trial court’s findings of fact and that the reviewing court will review the evidence de novo.’ Eubanks v. Hale, 752 So.2d 1113, 1122 (Ala.1999). Our statutory obligation in a case such as this is to ‘weigh the evidence and give judgment as [we] deem[ ] just.’ ”

Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 70-71 (Ala.2005).

III. Analysis

When a property owner fails to pay taxes owed on real property, the probate court of the county in which the property is located may order the sale of the property. § 40-10-1, Ala.Code 1975. If the purchaser of the property at the tax sale pays more than the taxes owed on the property plus applicable costs and expenses, § 40-10-28, Ala.Code 1975, specifies how the excess funds are to be distributed. Section 40-10-28 provides, in pertinent part:

“The excess arising from the sale of any real estate remaining after paying the amount of the decree of sale, and costs and expenses subsequently accruing, shall be paid over to the owner, or his agent, or to the person legally representing such owner, or into the county treasury, and it may be paid therefrom to such owner, agent or representative in the same manner as ... the excess arising from the sale of personal property sold for taxes is paid. If such excess is not called for within three years after such sale by the person entitled to receive the same, upon the order of the county commission stating the case or cases in which such excess was paid, together with a description of the lands sold, when sold and the amount of such excess, the county treasurer shall place such excess of money to the credit of the general fund of the county and make a record on his books of the same, and such money shall thereafter be treated as part of the general fund of the county. At any time within 10 years after such excess has been passed to the credit of the general fund of the county, the county commission may on proof made by any person that he is the rightful owner of such excess of money order the payment thereof to such owner, his heir or legal representative, but if not so ordered and paid within such time, the same shall become the property of the county.”

In this case, excess funds in the amount of $9,158 were paid to Lee County after Summers failed to pay the ad valorem taxes on the property for 2004. First Union sought the excess funds as the mortgagee and redeemer of the property. Because the trial court held that First Union was not the owner of the property and was not the owner’s agent or the person legally representing him, the trial court held that First Union was not entitled to the excess proceeds.

First Union argues that the trial court’s decision reaches what it says is an inequitable result in that a mortgagee who holds legal title to property and who has redeemed the property after a tax sale cannot recover the excess funds it paid to redeem the property. First Union contends that if effect is given to the plain meaning of § 40-10-28, it would be considered the owner of the property. It contends that, under Alabama law, a mortgagee is the legal “owner” of the real property that is the subject of the mortgage. Because Alabama is a title state, argues First Union, the plain and ordinary meaning of the term “owner” is the person holding legal title. Barclay v. State, 156 Ala. 163, 165, 47 So. 75, 76 (1908) (“The term ‘owner’ must be given, as employed in this act, its primary meaning, which is he who has the title, as distinguished from a mere possessory right, to the premises.”). Although the law in some states is to the effect that a mortgage is merely a lien on the mortgaged property, First Union says, Alabama is a title state in which the execution of a mortgage passes legal title to the mortgagee as security for the mortgagor’s debt. In support of its argument, First Union cites Trauner v. Lowrey, 369 So.2d 531, 534 (Ala.1979) (“Alabama classifies itself as a ‘title’ state with regard to mortgages. Execution of a mortgage passes legal title to the mortgagee.”); Bank of Powell v. Peoples Bank, 503 So.2d 845, 845-46 (Ala.1987) (“In Alabama, upon the execution of a mortgage, the mortgagee receives legal title.... The mortgagor retains an equity of redemption.”); and Baxter v. SouthTrust Bank of Dothan, 584 So.2d 801, 804 (Ala.1991) (same). Therefore, First Union reasons, at the time of the tax sale, Summers merely held an equitable right of redemption that would ripen into legal title when the debt evidenced by the mortgage was satisfied. Because Summers did not hold legal title, First Union says, he was not the “owner” of the property and was not entitled to the excess funds. A mortgagor has the right to use and convey the property so long as the terms of the mortgage are satisfied and can hold himself out to third parties as the owner, but, First Union argues, the mortgagee is still the legal owner of the property. First Nat’l Bank v. Federal Land Bank of New Orleans, 225 Ala. 195, 196, 142 So. 546, 546 (1932) (“ ‘The mortgagor, remaining in possession of lands, either by virtue of stipulations entitling him so to do, or by grace of the mortgagee, is, as to all persons other than the mortgagee, the owner of the lands.’ ” (quoting Federal Land Bank v. Wilson, 224 Ala. 491, 493, 141 So. 539, 540 (1932))). Of course, First Union says, when a mortgagor fails to comply with the terms of the mortgage, the mortgagee is entitled to immediate possession and the mortgagor loses even equitable title. In this case, the mortgage specifically provides that Summers was responsible for paying the taxes on the property, and his failure to pay those taxes constituted a default. First Union concludes that the trial court’s ruling in this case — that Summers, a defaulted mortgagor who has no rights in the property, is the only party entitled to the excess funds — is incorrect and that First Union is the owner entitled to the excess funds.

The Commission argues that the trial court properly granted its summary-judgment motion because, it argues, First Union, as the mortgagee, is not the owner of the property for purposes of § 40-10-28. The Commission considers Summers to be the owner of the property because the ad valorem taxes on the property were assessed to him, and First Union considers itself to be the owner of the property because it was the mortgagee on the date of the tax sale. The legislature does not define the term “owner” within Chapter 10 of Title 40, Ala.Code 1975, and the parties have not identified any caselaw on point defining “owner” for purposes of § 40-10-28.

There are, however, rules of statutory construction that guide this Court’s interpretation of a statute. In Archer v. Estate of Archer, 45 So.3d 1259, 1263 (Ala.2010), this Court described its responsibilities when construing a statute:

“ ‘ “[I]t is this Court’s responsibility in a case involving statutory construction to give effect to the legislature’s intent in enacting a statute when that intent is manifested in the wording of the statute.... ““ “[I]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ” ’ ... In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section.”
‘Ex parte Exxon Mobil Corp., 926 So.2d 303, 309 (Ala.2005). Further,
“ ‘ “when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute.... When the language is clear, there is no room for judicial construction.... ”
‘Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 607 (Ala.2002).’ ”

(Quoting Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala.2009).) Similarly, in Lambert v. Wilcox County Commission, 623 So.2d 727, 729 (Ala.1993), the Court stated:

“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute.... In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses ... and words are given their plain and usual meaning.... Moreover, just as statutes dealing with the same subject are in pari materia and should be construed together, ... parts of the same statute are in pari materia and each part is entitled to equal weight.’ ”

(Quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979).) When other sections in Title 40, Chapter 10, entitled “Sale of Land,” are examined, the meaning of the term “owner” becomes clear. For example, in § 40-10-1, Ala.Code 1975, the statute governing when the probate court may order land sold, the term “owner” refers to the person or entity against whom taxes are assessed:

“The probate court of each county may order the sale of lands therein for the payment of taxes assessed on the lands, or against the owners of the lands, when the tax collector shall report to the court that he or she or the holder of a tax lien ... was unable to collect the taxes assessed against the land, or any mineral, timber or water right or special right, or easement therein, or the owner thereof, without a sale of the land.”

Section 40-10-120(a), Ala.Code 1975, governs when land sold for unpaid taxes may be redeemed, and, more importantly, who may redeem it.

“Real estate which hereafter may be sold for taxes and purchased by the state may be redeemed at any time before the title passes out of the state or, if purchased by any other purchaser, may be redeemed at any time within three years from the date of the sale by the owner, his or her heirs, or personal representatives, or by any mortgagee or purchaser of such lands, or any part thereof, or by any person having an interest therein, or in any part thereof, legal or equitable, in severalty or as tenant in common, including a judgment creditor or other creditor having a lien thereon, or on any part thereof....”

(Emphasis added.) The list of those who can redeem property sold for taxes in § 40-10-120 is broader than the list of those entitled to claim excess proceeds under § 40-10-28. The more expansive language in § 40-10-120 includes both “the owner” and “any mortgagee,” but the narrower language in § 40-10-28 includes only “the owner, or his agent, or ... the person legally representing such owner.” The Commission argues that if the legislature separately named both owners and mortgagees in § 40-10-120, then it could not have intended for the term “owner” in § 40-10-28 to include “mortgagee.” We agree.

First Union attempts to refute the Commission’s argument that provisions in Chapter 10 of Title 40 other than in § 40-10-28 support the interpretation that the term “owner” as used in § 40-10-28 does not include a mortgagee. The Commission, First Union says, contends that the word “owner” in § 40-10-28 could refer only to Summers, the party in possession of the property. First Union argues that it remains the legal title holder of the property and therefore the legal owner of the property, regardless of the fact that Summers retained possession and use of the property and was responsible for paying the taxes on the property.

First Union’s argument presumes that legal title is the equivalent of absolute ownership of property, but that presumption is incorrect. See Alabama Home Mortgage Co. v. Harris, 582 So.2d 1080, 1088-84 (Ala.1991) (recognizing that there is no “absolute owner” of property until there is a merger of equitable title and legal title). First Union’s interpretation of the term “owner” in § 40-10-28 fails to consider the fact that when real property is mortgaged, only legal title passes to the mortgagee, and the mortgagor retains his or her other status as “owner and holder of equitable title.” Sims v. Riggins, 201 Ala. 99, 108, 77 So. 393, 397 (1917) (the mortgagor is “the owner and holder of the equitable title”). Until there has been a foreclosure, the mortgagor continues to “own” the property. Alabama Home Mortgage, 582 So.2d at 1083-84.

First Union criticizes the Commission as citing cases arising out of the insurance context, pointing out that this Court long ago held that a mortgagor was the owner of property for purposes of an insurance policy. One of those cases is Loventhal v. Home Insurance Co., 112 Ala. 108, 20 So. 419 (1896). First Union argues that Lo-venthal determined whether the insurer could void the insurance policy because of the mortgage on the property, holding only that it could not, and that the Court in Loventhal did not address the issue before it in this case. First Union contends that the fact that a mortgagor may be considered an owner for purposes of an insurance policy does not mean that the mortgagor is the legal owner of the property for purposes of § 40-10-28.

Contrary to First Union’s contention, this Court’s decision in Loventhal, in which this Court discussed the distinction between legal title and equitable title, is applicable to this case. In Loventhal, the issue was the meaning of ownership in the context of a contested fire-insurance policy. The Court held that the condition in the fire-insurance policy that the insured’s interest in the property be sole and unconditional was not violated by the fact that there was a mortgage on the property. In so holding, the Court stated:

“The term ‘fee simple’ has never been used to distinguish between legal and equitable estates. It is used to denote the quantity or duration of estates— whether the enjoyment is limited or unlimited in point of continuance or duration. It defines the largest estate in land known to the law. It is an estate of inheritance, unlimited in duration, de-scendible to all the heirs alike of the owner to the remotest generations. It may be of a legal or equitable nature. If of the latter, the legal holder is a mere trustee for the equitable, who is the real owner, and, restrained by no provision of the trust, in cases not within the statute of uses, may at any time be compelled to execute the legal estate in him.”

112 Ala. at 115, 20 So. at 420 (emphasis added). According to Loventhal, equitable title is more than an interest in property; it is ownership of the property. See also Alabama Home Mortgage, 582 So.2d at 1080.

First Union calls this Court’s attention to other jurisdictions that have held that the mortgagee is the owner of the property and is the proper party to collect excess funds following a tax sale. It cites Alexander Investment Group, Inc. v. Jarvis, 263 Ga. 489, 491, 435 S.E.2d 609, 612 (1993), which held that the mortgagee is superior to the mortgagor as to collecting the excess funds under Georgia’s tax-sale statutes. Generally, First Union says, Georgia courts have reasoned that when a lienor/mortgagor causes property to be sold because of the lienor’s/mortgagor’s failure to pay taxes as required by the mortgage, that lienor/mortgagor has no standing to collect the excess funds, especially if the lienee/mortgagee has made a claim for the excess funds. First Union then argues that “[t]he exact same result should be reached in this case” because, it says, Summers should not have standing to collect the excess funds. First Union’s brief, at 23. First Union also cites McKelvey v. Creevey, 72 Conn. 464, 466-67, 45 A. 4, 5 (1900) (mortgagee is owner of land, and as between mortgagor and mortgagee, the mortgagee is regarded as having legal title to the land). In conclusion, First Union argues, there is no authority to support the trial court’s decision in this case that a mortgagor who has not paid taxes on the property and thereby defaulted defeats a mortgagee as to who is the owner of the land. First Union argues that the trial court should have found that First Union was the owner for purposes of § 40-10-28 and was therefore the party entitled to the excess funds.

The Commission calls this Court’s attention to the definition of “owner” in other statutes, such as § 35-11-232, Ala. Code 1975, a statute dealing with materialmen’s liens (“Every person ... for whose use, benefit or enjoyment of any building or improvement shall be made is embraced within the words ‘owner or proprietor,’ as used in this division.”), and § 35-9A-141(9), Ala.Code 1975, relating to landlords and tenants (“one or more persons, jointly or severally, in whom is vested (i) all or part of the legal title to property or (ii) all or part of the beneficial ownership and a right to present use and enjoyment of the premises. The term includes a mortgagee only when in possession....”) Furthermore, the term “owner” in the property-tax-assessment statutes, § 40-7-1 et seq., Ala.Code 1975, clearly refers to the person against whom taxes are assessed. In view of the various Alabama statutes in which the legislature has clearly expressed its intent that the term “owner” of property is not broad enough to include within its definition a mortgagee, we are not persuaded by authority from other jurisdictions in which the term “owner” is more broadly defined. We conclude that when the legislature directs in § 40-10-28 that the excess funds from a tax sale “shall be paid over to the owner, or his agent,” the term “owner” means the person against whom taxes on the property are assessed.

First Union next argues that, even if Summers is considered to be the owner of the property, First Union should at least be considered his legal representative so as to entitle it to the excess funds in that capacity. First Union says that in one of its briefs to the trial court the Commission argued that a mortgagee is a mere trustee for the mortgagor. That is generally not a correct statement under Alabama law, First United says, but, if that is true, it asserts, a trustee is a party’s legal representative, citing Sessions v. Espy, 854 So.2d 515 (Ala.2002) (trustee in bankruptcy is a party’s legal representative). First Union then says that it has shown that, as the mortgagee, it is the legal owner under Alabama law because it holds legal title to the property, but, it argues, even if the Commission is correct that the mortgagee is merely a trustee for the mortgagor, it would also be the proper party to receive the excess funds because it would be the party legally representing Summers.

The Commission contends that First Union did not present to the trial court its argument that the trial court should have at least found it to be the legal representative of the owner. That argument was not well developed in the briefs First Union filed in the trial court, but First Union did make a cursory argument that if it is considered to be only the trustee for the owner, then it should be considered the owner’s legal representative and entitled to the excess funds in that capacity. The Commission relies upon an opinion issued by the Alabama Attorney General answering the following question: “Can anyone other than the true owner make a claim for excess funds arising from a tax sale?” Opinion to Patrick D. Pinkston, Elmore County Attorney, Op. Att’y Gen. No. 2009-058 (March 29, 2009). That opinion references a previous attorney general’s opinion for the proposition that “any excess funds arising from the sale of real estate for unpaid property taxes is properly payable to the former owner, i.e., the person who initially failed to pay the taxes on the property.” Id. (citing Opinion to Preston Hornsby, Macon County Probate Judge, Op. Att’y Gen. No. 88-0401 (July 28, 1983)). The Commission says that Op. Att’y Gen. No. 2009-058 also addresses the specific question of payment to a third party and explains when an agent or trustee for the owner can apply for the excess funds. It states:

“Section 40-10-28 states that the excess can be paid to the owner, his agent, or to the person legally representing such owner. If the third party discussed above has a valid agreement with the prior owner rightfully to obtain the excess, Elmore County could rightfully pay this money over as the third party has become the person legally representing such owner.”

The Commission states that if Summers had executed any written agreement to allow First Union to represent him, such as a power of attorney, the county could rely on that clear statement of authority from Summers to First Union and pay the excess funds to First Union. Anything less, the Commission says, would be inadequate to establish an agency or trustee relationship for a county trying to determine who should receive the excess funds from a tax sale without having to litigate or interplead funds every time the question arose. We agree with the Commission that, in the absence of a written instrument naming First Union as Summers’s legal representative, the trial court correctly held that First Union cannot claim the excess funds on that basis.

Finally, First Union argues that fairness dictates that it be the proper party to collect the excess funds. The Commission argued to the trial court, First Union says, that First Union should not be entitled to the excess funds because it would be burdensome for Lee County to determine the correct mortgagee. First Union refers to this position as a “feigned argument of hardship.” First Union’s brief, at 26. Mortgages are recorded in the probate court of the county in which the property is located, First Union states, and tax sales are ordered by the probate court of that same county. It clearly would not be burdensome, First Union insists, for the probate court to review the records relating to the property being sold and to give notice to the mortgagees, as well as to the delinquent taxpayer, of any excess received at the tax sale. First Union then argues that the Commission has no desire to notify anyone of the excess funds because, it says, the county wants to keep the excess funds; moreover, it alleges, if the delinquent taxpayer is the only one notified of a tax sale and the only one who can claim the excess funds, then the Commission “has found a creative way to greatly increase its coffers.” First Union’s brief, at 27. The trial court’s holding is wrong, First United says, because Summers, who defaulted on a $863.24 property-tax assessment, did not redeem the property. Instead, First Union says, it redeemed the property, paying the $9,153 excess to the third-party tax-sale purchaser, and, as a result of its redemption, Summers was able to keep his home. According to First Union, the trial court’s decision not only allows Summers to keep his home, but also gives him an additional windfall of $9,153 for doing nothing except failing to pay his taxes. Such a result, says First Union, is inconsistent not only with the clear terms of § 40-10-28, but also with basic considerations of fairness and justice.

The Commission argues that public-policy considerations weigh in favor of defining the term “owner” so as not to include a mortgagee. Defining the term to include a mortgagee as well as the person against whom the taxes are assessed, the Commission says, “would create enormous uncertainty for Alabama counties regarding who is entitled to the excess proceeds arising from a tax sale.” Commission’s brief, at 37. The Commission argues that in order to avoid paying the excess funds to the wrong person, the county’s revenue commissioner would have to pay for and/or conduct a title search on the property each time a person called for the excess funds arising from a tax sale. This would be a significant burden, the Commission says, and would not necessarily resolve the uncertainty. Without a specified person who is allowed to claim the excess funds, a county commission’s only alternative would be to interplead the excess funds after every tax sale, which would create substantial attorney fees, filing fees, and costs for the county.

We agree with the Commission that a broad definition of the term “owner” would place an unnecessary burden on counties, especially in light of other remedies that are available to a mortgagee, such as First Union, to protect itself in the event property on which it holds a mortgage becomes subject to a sale for unpaid taxes. For example, many mortgagees place the responsibility for paying ad valorem taxes upon the mortgagor, but set up an escrow account whereby the mortgagee pays the ad valorem taxes, thus protecting itself by assuming the responsibility of paying the property taxes directly to the county on behalf of the owner. Other mortgagees require the mortgagor to pay the ad valo-rem taxes, but if the taxes are not paid, allege that the mortgagor has breached the contract, a breach that allows the mortgagee to foreclose upon the property, purchase it at the foreclosure sale, and thereby merge the equitable title with the legal title, thus becoming entitled to any excess funds. The fact that a mortgagee chooses not to own the property by way of foreclosure should not place a burden on the county or alter the plain meaning of § 40-10-28. A mortgagee could also require the mortgagor to execute a power of attorney as part of an agreement not to foreclose, or, if the mortgagee learns after the fact that property has been sold for taxes, it can require the owner to execute a power of attorney before it redeems the property. The mortgagee could then become entitled to the excess proceeds under § 40-10-28 as the person “legally representing such owner.”

IV. Conclusion

Because we hold that trial court correctly declared (1) that the term “owner” in § 40-10-28 means the person or entity against whom the taxes were assessed, (2) that First Union cannot be considered Summers’s legal representative for purposes of § 40-10-28, and (3) that Summers, and not First Union, is entitled to the excess funds from the tax sale, we affirm the judgment in favor of the Commission and Summers.

AFFIRMED.

COBB, C.J., and STUART, PARKER, MURDOCK, SHAW, and WISE, JJ„ concur.

BOLIN, J., dissents.

      . Mid-State Trust IV assigned the mortgage to First Union before the tax sale occurred.