text:
    Paul MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00063-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, Randall Harris, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Paul Moore was convicted of intimidating a witness, and he was sentenced by the Circuit Court of Hinds County to five years in the custody of the Mississippi Department of Corrections. Moore now appeals and asserts: (1) the trial court erred in denying his motion for a new trial after the State failed to comply with discovery rules regarding an immunity agreement between the State and the victim, and (2) the trial court erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On February 1, 2008, Moore’s brother, Sharrod Moore, was arrested and charged with the capital murder of Jackson Police Officer R.J. Washington. Shar-rod was indicted and arrested based on statements made by Harold Hackett. The next day, Hackett filed a complaint against Moore. In his complaint, Hackett claimed Moore had made a threat to kill him if he did not recant his statement to the police that Sharrod told him that he had killed Officer Washington.

¶ 3. At Moore’s trial, Tamara Cheatham testified she was with Hackett at the Van Winkle Pool Hall (pool hall) when Moore walked in and asked to talk to Hackett. Moore and Hackett then went outside. Cheatham stated that she overheard Moore tell Hackett that “he needed to go down to the police department and tell them he had lied.” According to Cheatham, Moore showed Hackett his gun and then allowed Hackett to walk away.

¶ 4. Hackett’s cousin, Cory Brown, testified that he was also with Hackett at the pool hall when Moore came in and asked to speak with Hackett outside. According to Brown, Hackett came back inside the pool hall and told Brown to “come on and hurry up and come outside.” Brown stated that he walked outside and heard Moore say to Hackett “I come here to kill you for my brother.” Brown testified that Moore had a gun and pointed it at Hackett, and Moore told Hackett that he “should kill him right then.” Brown and Hackett then got into Hackett’s vehicle and left the pool hall.

¶ 5. Jackson Police Officer Reggie Jones testified that he was contacted by Hackett on the night the incident occurred at the pool hall. Officer Jones stated that Hack-ett told him that Hackett had a confrontation with Moore and that Moore had threatened to kill Hackett for talking about “some charges that had been brought up about Sharrod Moore.” Officer Jones told Hackett to go down to the Jackson Police Department and file a complaint against Moore.

¶ 6. Hackett then went to the police department and filed a complaint against Moore. Moore was then arrested and charged with intimidating a witness. A Hinds County grand jury indicted Moore, and a trial was held in the Hinds County Circuit Court. At trial, Hackett repeatedly stated on the witness stand that he did not want to testify. Hackett stated that he feared for his life and the lives of his family members. Hackett testified that someone had pulled a gun on him at the pool hall, but he testified it was not Moore.

DISCUSSION

¶ 7. Moore contends that the trial court erred in denying his motion for a new trial after the State failed to disclose an immunity agreement with Hackett. Hackett’s immunity agreement with the State gave him “absolute immunity from prosecution for any part he may have played in the commission of any such crime investigated.” Moore contends that the State had a duty to timely disclose the existence of the immunity agreement and failed to do so. Moore asserts that the failure of the State to disclose the immunity agreement violated Moore’s rights under the Confrontation Clause and the rules of discovery.

¶ 8. It is well-settled law that “reversible error results when evidence of an immunity agreement between the State and its key witness is removed from the jury’s consideration.” Slaughter v. State, 815 So.2d 1122, 1129 (¶ 34) (Miss.2002). However, any error assigned to the lack of production of the immunity agreement between Hackett and the State is harmless when considering the overwhelming evidence of Moore’s guilt. “An error is harmless only when it is apparent on the face of the record that a fair[-]minded jury could have arrived at no verdict other than that of guilty.” Jefferson v. State, 818 So.2d 1099, 1112 (¶ 36) (Miss.2002). Two eyewitnesses testified that Moore had intimidated and threatened Hackett to withdraw his statement and affidavit given to the police that implicated Moore’s brother, Sharrod, in the murder of Officer Washington. Accordingly, we find that the jury was provided direct evidence regarding the intimidation of Hackett.

¶ 9. Hackett’s immunity agreement was immaterial to Moore’s defense when considering the overwhelming evidence of Moore’s guilt. Consequently, we find no prejudicial error was committed, and this issue is without merit.

¶ 10. Moore asserts that his guilty verdict is against the overwhelming weight of the evidence because Hackett unwillingly testified before the court and because Hackett recanted his original statement he had made to the police.

¶ 11. In Bush v. State, 895 So.2d 886, 844 (¶ 18) (Miss.2005), the supreme court discussed appellate review of the weight of the evidence supporting a jury’s verdict:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

¶ 12. While it is true that Hackett gave conflicting testimony on the witness stand, it is clear from the record and the two eyewitnesses, Cheatham and Brown, that Moore did in fact intimidate Hackett to change his original statement that he had given to the police.

¶ 13. On our review of the record, viewing the above evidence in a light most favorable to the verdict, we find that the jury’s verdict is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF INTIMIDATING A WITNESS AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: PER CURIAM. STUART, Justice MURDOCK, Justice

license: Public Domain

text:
    Ex parte MONROE COUNTY BOARD OF EDUCATION and Frankye Beal. (In re Pamela Jones Al-Sulaibe, as next friend of Rashid Jones, a minor child v. Monroe County Board of Education and Frankye Beal).
    1090387.
    Supreme Court of Alabama.
    May 14, 2010.

      Mark S. Boardman and Clay R. Carr of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for petitioners.
    Debbie Lindsey Jared of Jared & Brun-son, Elba, for respondent.
   PER CURIAM.

The Monroe County Board of Education (“the Board”) and Frankye Beal, a fifth-grade teacher at Beatrice Elementary School in Monroe County, petition this Court for a writ of mandamus directing Judge Dawn W. Hare to grant their motions for a summary judgment dismissing Pamela Jones Al-Sulaibe’s tort claims against them because, they say, they are entitled to immunity — absolute immunity as to the Board and State-agent immunity as to Beal. We grant the petition and issue the writ as to the Board; we deny the petition as to Beal.

Facts

On February 27, 2007, Beal disciplined then 12-year-old Rashid Jones for having repeatedly disrupted his fifth-grade class. Jones was repeating the fifth grade and was two years older than most of his classmates. In the hall outside the classroom, Beal initially attempted to “hand-paddle” Jones using two rulers taped together to strike Jones’s palms. Jones resisted by pulling his hand away several times. Beal then told Jones that she would have to paddle him, and she retrieved her paddle from the classroom. She and Jones entered an empty classroom next door to Beal’s classroom. Beal instructed Jones to touch his feet and Beal attempted to paddle Jones. Jones repeatedly moved to avoid the spanking, and at one point he grabbed the paddle and attempted to take it away from Beal. As Jones moved, Beal struck him on the back of his thigh. According to Beal, she made no further attempt to paddle Jones, who then disobeyed Beal again by not returning to the fifth-grade classroom. According to Jones, Beal continued to strike him and he suffered injuries to one of his legs and an arm. The next day, Jones’s mother removed Jones from Beatrice Elementary School and enrolled him in another school where he finished the fifth grade.

On February 26, 2008, Pamela Jones Al-Sulaibe, as next friend of Jones, sued the Board, asserting claims of negligent en-trustment and negligent supervision. Jones also sued Beal, asserting claims of negligence, wantonness, and assault. According to Al-Sulaibe’s complaint, Beal did not have good cause to discipline Jones, Beal did not first attempt to give Jones a “hand-paddling,” and Beal struck Jones several times with the paddle, hitting his arm and leg. The Board and Beal answered, asserting immunity.

On August 31, 2009, the Board and Beal moved for a summary judgment. The Board asserted absolute immunity; Beal asserted State-agent, schoolmaster’s, and statutory immunity. To support the motion, the Board and Beal submitted affidavits from Beal and her supervisors testifying that Beal acted at all times within the scope of her authority and in compliance with the Board’s policies. Al-Sulaibe filed an opposing brief without supporting evidence and without addressing Beal’s arguments regarding statutory and schoolmaster’s immunity.

On November 4, 2008, the trial court summarily denied the Board and Beal’s motion. The Board and Beal timely filed this petition for a writ of mandamus.

Standard of Review

“‘While the general rule is that denial of a summary-judgment motion is not immediately reviewable by an appellate court, the exception to the general rule is that a denial of a motion for a summary judgment grounded on a claim of immunity is immediately reviewable by a petition for a writ of mandamus.... ’

“Ex parte Wood, 852 So.2d 705, 708 (Ala.2002).

“ ‘A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’

“Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).

“ ‘This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-58 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce “substantial evidence” as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).’
“Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).”

Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1101-02 (Ala.2008). Additionally, in conducting our appellate review, we will consider only the factual material submitted to the trial court for its consideration in deciding the summary-judgment motion. Ex parte Madison County Bd. of Educ., 1 So.3d 980, 986 (Ala.2008).

Discussion

The Board contends that the trial court erred in denying the motion for a summary judgment as to it because, it says, claims against the Board are barred by absolute immunity under Ala. Const, of 1901, § 14.

‘Section 14, Ala. Const.1901, provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” This section affords the State and its agencies an “absolute” immunity from suit in any court. Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001) (stating that Ala. Const.1901, § 14, confers on the State of Alabama and its agencies absolute immunity from suit in any court); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (“Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state .... ”). Indeed, this Court has described § 14 as an “almost invincible” “wall” of immunity. Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). This “wall of immunity” is “nearly impregnable,” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002), and bars “almost every conceivable type of suit.” Hutchinson v. Board of Trustees of Univ. of Ala., 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Moreover, if an action is an action against the State within the meaning of § 14, such a case “presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.” Patterson, 835 So.2d at 142-43.’
“Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (emphasis added). For purposes of § 14 immunity, county boards of education are considered agencies of the State. Louviere v. Mobile County Bd. of Educ., 670 So.2d 873, 877 (Ala.1995)(‘County boards of education, as local agencies of the State, enjoy [§ 14] immunity.’). Thus, this Court has held that county boards of education are immune from tort actions. See Brown v. Covington County Bd. of Educ., 524 So.2d 623, 625 (Ala.1988); Hutt v. Etowah County Bd. of Educ., 454 So.2d 973, 974 (Ala.1984).”

Ex paHe Jackson County Bd. of Educ., 4 So.3d at 1102-03.

In Ex parte Hale County Board of Education, 14 So.3d 844 (Ala.2009), this Court revisited the issue whether county boards of education were immune from suit, overruling Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976), and Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920), and stating that “because county boards of education are local agencies of the State, they are clothed in constitutional immunity from suit” and that the immunity accorded a county board of education is absolute.

The Board is a local agency of the State that has absolute immunity under Ala. Const, of 1901, § 14. Therefore, the Board is entitled to a summary judgment and the trial court erred in denying the motion for a summary judgment as to the Board.

Next, Beal contends that the trial court erred in refusing to enter a summary judgment for her because, she says, Al-Sulaibe’s claims against her are barred by State-agent immunity. Specifically, Beal contends that because she is certified by the State of Alabama as a school teacher, because, at the time of the incident with Jones, she was exercising her judgment in performing official duties for supervising and educating students, and because there is no evidence indicating that she exceeded her authority, she is entitled to State-agent immunity.

“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
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in .... educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal 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.”

Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000) (plurality opinion)(adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000)).

Beal contends that when she was disciplining Jones she was exercising her judgment in performing her official duties as an employee of the Board, in supervising and educating students “in all aspects of the education process.” Ex parte Trottman, 965 So.2d 780, 783 (Ala.2007). See also Ex parte Nall, 879 So.2d 541 (Ala.2003). In support of her contention that she was exercising her judgment in performing her official duties and that she did not exceed the scope of her authority, she submitted her own affidavit and affidavits from her supervisors with the summary-judgment motion. In her affidavit, Beal attested:

“I was authorized by [the Board] and the principal of Beatrice Elementary School to administer corporal punishment as I deemed necessary. There were no other students present at the time that I tried to paddle [Jones] and I never succeeded in paddling him. Furthermore, because mine was the only classroom on the hallway that was being used at that time, my class was isolated from the rest of the school. My responsibilities as a teacher included maintaining supervision of my students. In order to. obtain another professional employee to be present, it would have been necessary for me to leave all my students unsupervised, including [Jones] and the other student who had been misbehaving. It was impossible for me both to maintain that amount of supervision of the students that I believed was necessary and also to go ask another professional employee to be present during corporal punishment. As I initially intended only to spank the palms of [Jones’s] hand, I decided that it was most appropriate under the circumstances to proceed without getting another teacher to be present. This enabled me to maintain continuous supervision of my class. I was at all times close enough to my classroom to hear any disturbance and to respond immediately if necessary. If I had left to get another teacher, however, I would not have been able to monitor my classroom as closely as I thought was necessary.
“I was not angry with [Jones] at any time while I attempted to discipline him. My only intention was to correct his misbehavior, to have him follow the classroom rules and my instructions as his teacher, and to prevent further disruptions of the students’ work. I acted at all times in a good faith attempt to carry out those responsibilities. I had been given no specific instructions nor guidelines to follow in determining how to proceed in a situation like this, where I was unable to carry out two of my duties simultaneously and had to choose between them. In deciding what was best under the circumstances, I relied upon my judgment based on the facts I knew at that time. I also took into account [Jones’s] age, size, gender, and physical condition in deciding what punishment would be reasonable and proper, although I never actually punished him because of his physical resistance and his refusal to follow my instructions. I did not have on February 27, 2007 or at any other time, any ill will or malice toward [Jones] and I acted at all times within my authority in a good faith effort to carry out the duties assigned to me by [the Board].
“On February 27, 2007, and at all times relevant to this lawsuit, I was certified by the State of Alabama as a school teacher and was employed by [the Board]. I acted at all times within the scope of my authority and employment responsibilities for [the Board], in conformity with federal, state and local laws and the policies of [the Board]. As a result of my education, certification, training and experience, I am familiar with the standard of care required of public school teachers in Monroe County, Alabama. I met that standard of care on February 27, 2007.”

Additionally, Beal submitted the affidavit of Johnny Pleasant, the principal of Beatrice Elementary School and Beal’s immediate supervisor at the time of the incident. Pleasant attested:

“During the 2006-2007 school year, [Beal’s] assigned classroom was on a hallway with only one other room. The room other than [Beal’s] was set up as a computer lab, and it was used at only certain times during the day. It is my understanding that at the time of the incident made the basis of this lawsuit, the computer lab was not in use. Consequently, there was no other teacher on [Beal’s] hallway to witness corporal discipline of a student. It would have been necessary for [Beal] to get another teacher from the second floor of the building, or from another hallway. This could have resulted in her class being unattended for a period of time. However, teachers in the Monroe County School System are expected to maintain proper supervision, control and discipline among their students and, to the best of their abilities, to preserve a learning environment that is quiet and free of disruptions and distractions. Teachers must use their judgment and discretion to determine the degree of supervision that this requires for a given class or for specific students. I had not given [Beal] any specific instructions about how to proceed in the circumstances that confronted her on February 27, 2007. She had to exercise her own judgment to determine the appropriate course of action under those circumstances. [Beal] acted on February 27, 2007 within her discretionary authority and in compliance with the requirements of [the Board] for student supervision.
“There was no reason that [Beal] should not have been allowed to supervise students on February 27, 2007 or at any other time. She was certified by the State of Alabama as a school teacher and was a tenured employee of [the Board] with no history of complaints or disciplinary actions against her.”

Beal also submitted the affidavit of Dennis Mixon, the superintendent of the Board at the time of the incident. Mixon attested:

“Teachers in the Monroe County school system, as part of their assigned duties, are expected to maintain proper supervision of students in their classes. This does not mean that teachers must maintain constant visual supervision of every student throughout the school day, however. The degree of supervision that is appropriate for a specific class or for individual students is a matter necessarily left to the judgment and discretion of the teacher. Teachers are also expected to maintain order and discipline among the students in their classes and, to the best of their abilities, to preserve a learning environment that is quiet and free of disruption and distractions.
“I understand that on February 27, 2007, [Beal’s] classroom was the only one of the two rooms on her hallway that was used for classes throughout the day. Consequently, in order for [Beal] to get another teacher to be present while she disciplined a student, it would have been necessary for her to leave her class unattended and go to another floor or to a different wing of the building. Under those circumstances, [Beal] had to decide whether to leave her class unattended, with the possibility that additional disruption or misbehavior would occur, or to correct the students’ misbehavior without another professional employee present. I had not given [Beal] any specific instructions about how to proceed in those circumstances. She had to exercise her own judgment to determine the appropriate course of action. [Beal] acted on February 27, 2007 within her discretionary authority and in compliance with the requirements of [the Board] for student supervision.
“There was no reason that [Beal] should not have been allowed to supervise students on February 27, 2007, or at any other time. She was certified by the State of Alabama as a school teacher and was a tenured employee of [the Board] with no history of complaints or disciplinary actions against her.”

Beal also submitted a similar affidavit from Melanie Ryals, the superintendent of the Board at the time the summary-judgment motion was filed.

The foregoing affidavits assert that a teacher has discretion in whether to follow rules established by the Board applicable to the administration of corporal punishment. However, the materials before us describing the rules consist entirely of answers given by Beal in her deposition, a transcript of which she submitted in support of the motion for a summary judgment. Beal’s deposition established unequivocally that the Board’s policy required witnesses to be present when corporal punishment was administered. When asked about factors that would justify not following that policy, she stated: “It [the unavailability of another teacher] may not justify it, but by the same token, the authority that’s given me as a teacher should allow me to use my professional judgment in certain situations. It would be impossible, I would think, to stipulate every situation that would occur.” (Emphasis added.) She then testified as to the absence of anything in the guideline regarding corporal punishment that authorized a teacher to dispense with the requirement that there be a witness present. She further testified that she subsequently received correspondence from either her principal or the Board, or both, stating: “[I]f I had to administer some discipline, that it has to follow the Board’s guidelines.” (Emphasis added.) Her justification for deviating from the policy of requiring the presence of another professional during the administration of corporal punishment is supported only by her opinion and those of some of her superiors, not by the guidelines themselves. Because Beal did not administer the corporal punishment in the presence of another employee, she did not adhere to the Board’s policy, she exceeded the scope of her authority, and she was not entitled to a summary judgment based on State-agent immunity.

Although the rules of a board of education governing the administering of corporal punishment might be improved by incorporating into those rules a provision authorizing a teacher to disregard those rules in exigent circumstances, it is not the province of this Court to fashion more appropriate guidelines after the fact in litigation stemming from a failure to adhere to guidelines. If we were to do so then this Court’s reiteration in Cranman of the absence of immunity when a rule promulgated for the purpose of regulating the activities of a governmental agency is not followed, a circumstance where the exercise of judgment is therefore not necessary, will become meaningless because the disobedient party will be able to point to reasons why the rule should not be followed. It is up to the rulemakers — not this Court — to determine whether the exercise of judgment in following rules is desirable.

Conclusion

The Board has established that it is entitled to absolute immunity, and it has a clear legal right to the dismissal of Jones’s claim against it. We therefore grant the petition as to the Board and direct the trial court to enter a summary judgment in its favor. Beal, however, has not established that she is entitled to State-agent immunity; we therefore deny the petition as to her.

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

COBB, C.J., and LYONS, WOODALL, PARKER, and SHAW, JJ., concur.

STUART, SMITH, BOLIN, and MURDOCK, JJ., concur in part and dissent in part.

STUART, Justice

(concurring in part and dissenting in part).

I agree with the conclusion in the majority opinion that the Monroe County Board of Education is entitled to a summary judgment because the claims against it are barred by absolute immunity. I respectfully disagree with the conclusion that Frankye Beal is not also entitled to a summary judgment on the basis of State-agent immunity.

According to the majority, Beal did not establish a prima facie showing that no genuine issue of material fact existed because, it concludes, Beal’s deposition testimony establishes that, in dispensing corporal punishment, she did not adhere to the Board’s policy and that she exceeded the scope of her authority. I acknowledge that Beal testified that the Board policy required the presence of a witness when a teacher administers corporal punishment. That fact alone, however, is not dispositive of the issue whether Beal is entitled to State-agent immunity. The dispositive fact is whether Beal testified that the policy does not provide for exceptions or allow for the exercise of a teacher’s discretion. The majority’s conclusion that the policy does not provide for discretion on the part of the teacher rests on Beal’s response when she was asked about factors that would justify a teacher’s not following the guideline regarding the administration of corporal punishment, stating: “It [the unavailability of another teacher] may not justify it, but by the same token, the authority that’s given me as a teacher should allow me to use my professional judgment in certain situations. It would be impossible, I would think, to stipulate every situation that would occur,” and on her testimony that the guideline did not include “anything” that authorized the use of corporal punishment without the presence of a witness. See 48 So.3d at 628. In my opinion, this testimony establishes that Beal did not recall any specifics listed in the guidelines. It does not establish a genuine issue of material fact as to whether the Board’s policy vests a teacher with discretion. The words “should” and “I would think” qualify Beal’s statements and indicate her understanding of the guidelines; the usage of those words does not establish a genuine issue of material fact as to whether the policy allows for teacher discretion in the administration of corporal punishment. Indeed, the affidavits of Beal’s principal, the superintendent of the Board at the time of the incident, and the superintendent when the Board and Beal’s summary-judgment motion was filed indicate that a teacher does have discretion. Moreover, I do not read Beal’s admission that she had received correspondence from the Board stating, “[I]f I had to administer some discipline, that it has to follow the Board’s guidelines” to require the conclusion that in. attempting to administer corporal punishment on Rashid Jones Beal did not follow the Board’s policy. In my opinion, the foregoing simply does not create a genuine issue of material fact.

The evidence submitted by Beal presented a prima facie showing that Pamela Jones Al-Sulaibe’s claims arose from Beal’s exercise of her judgment in the discharge of her duties in educating students and, consequently, that she was entitled to State-agent immunity. The burden then shifted to Al-Sulaibe to produce “substantial evidence” showing that Beal was not entitled to State-agent immunity — that Beal “act[ed] willfully, maliciously, fraudulently, in bad faith, [or] beyond [her] authority.” Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000). Al-Sulaibe, however, failed to present any evidence, much less substantial evidence, to support her contention and, consequently, did not establish that a genuine issue of material fact existed to overcome Beal’s prima facie showing that she was entitled to a summary judgment based on State-agent immunity. Because I believe that the materials before us establish that a summary judgment for Beal is proper on the basis of State-agent immunity, I respectfully dissent from the majority’s conclusion otherwise.

SMITH and BOLIN, JJ, concur.

MURDOCK, Justice

(concurring in part and dissenting in part).

I concur with the conclusion in the majority opinion that the Monroe County Board of Education is entitled to a summary judgment because the claims against it are barred by absolute immunity. I respectfully dissent from the conclusion that Frankye Beal is not also entitled to a summary judgment.

I dissent as to the latter issue because of concerns I previously have expressed to the effect that this Court is over-applying the “beyond-authority” exception to State-agent immunity. These concerns are summarized in my special writing in Ex parte Watson, 37 So.3d 752, 765-66 (Ala.2009) (Murdock, J., concurring in part and dissenting in part):

“Adopting the analysis provided by Ex parte Cranman, 792 So.2d 392 (Ala.2000), this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000), held that a State employee sued in his or her individual capacity for tortious wrongdoing enjoys State-agent immunity from liability if the wrongdoing occurs while the employee is performing certain types of activities previously categorized as ‘discretionary functions.’ In addition, consistent with the pre-Cran-man recognition of immunity for so-called ‘ministerial duties,’ Cranman and Butts recognized the availability of State-agent immunity for tortious conduct committed by an employee while ‘ “discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner.” ’ Butts, 775 So.2d at 178 (quoting Cranman, 792 So.2d at 405). I do not think that the converse of the latter rule is part of our immunity law. That is, when an employee does not do everything in complete accordance with an applicable regulation or other directive, I do not believe the ‘beyond authority exception recognized in Butts necessarily strips the employee of any State-agent immunity he or she would otherwise have.
“Specifically, from the perspective of how the law views the employee’s relationship to the injured party, I do not believe that the failure of an employee to follow every applicable regulation or every instruction given to the employee by a supervisor necessarily means that the employee, for purposes of a State-agent-immunity analysis, has acted beyond the authority otherwise given to him or her by law. In a given case, it may be that the employee has acted in bad faith in not following an applicable directive (and as a result falls within the bad-faith exception to State-agent immunity) or perhaps has acted wantonly (though Alabama has not recognized an exception to State-agent immunity for wanton conduct). I am concerned, however, that we are moving to a place in our law in which we consider any violation of any regulation and any violation of a memorandum of instruction (or for that matter even an oral instruction) from a supervisor to deprive an employee of otherwise applicable State-agent immunity on the ground that he or she is acting ‘beyond his or her authority.’
“Obviously, in one sense, no State employee is ‘authorized’ to violate any applicable regulation, federal or state, or to disregard appropriate instructions from a supervisor. Must we not be circumspect, however, in concluding that merely because an employee fails to follow a requirement of a regulation or all the instructions given to him or her in a memorandum from a supervisor, the employee, insofar as a third party is concerned, has acted beyond his or her authority as an official or employee of the agency or department involved? If that is the sense in which we are to address the matter, then would we not be obliged to say that an employee told by his or her supervisor always to refrain from any tortious conduct vis-á-vis third parties will be acting beyond the employee’s authority whenever he or she does otherwise? Indeed, a directive from a supervisor to this effect would not even be necessary because, in this sense, an employee never has the authority to act tortiously toward others.
“This Court has in the past often looked to the Restatement (Second) of Torts § 895D (1979) for guidance in this area. See Bell v. Chisom, 421 So.2d 1239, 1240 (Ala.1982). The Restatement, as it now reads and as it has read for over 80 years, provides the following insight as to what is meant when we speak of an employee acting beyond his or her authority:
“‘An immunity protects an officer only to the extent that he is acting in the general scope of his official authority. When he goes entirely beyond it and does an act that is not permitted at all by that duty, he is not acting in his capacity as a public officer or employee and he has no more immunity than a private citizen. It is as if a police officer of one state makes an arrest in another state where he has no authority.’
“Restatement (Second) of Torts § 895D cmt. g (emphasis added). In other words, the concept of a State employee acting beyond his or her authority corresponds with the concept of an employee acting outside the line and scope of his or her employment. It has never been a concept intended to address every situation in which a State employee, while acting within the general line and scope of his or her employment, nonetheless violates some federal or state regulation, instructions from his or her supervisor, or, taken to its logical conclusion, Alabama law prohibiting negligent conduct. ence with or sanction of an employee’s conduct is tantamount to interference with or sanction of conduct of the State itself. Just as the concept of line and scope of employment describes the circumstance in which an employee’s conduct is treated as the conduct of the employer for purposes of tort law generally, it helps describe those situations in which a State employee cannot be considered as acting ‘beyond his or her authority for purposes of this exception to State-agent immunity.”

(First emphasis added.)

Consistent with the foregoing, the affidavits submitted by Beal in the case before us establish that Beal was not acting beyond her “employment responsibilities” generally. Moreover, the understanding of the “beyond-authority” exception expressed above avoids the problematic nature of applying our current approach to a situation, like that presented here, in which an employee is confronted with what could be inconsistent instructions by a manual and/or a supervisor. In addition to the need to impose corporal discipline in the presence of another professional employee, Beal was also under instructions to maintain supervision of her students and yet, in the exercise of her discretion, she also deemed it necessary to proceed with the discipline of the unruly student in order to maintain control in her classroom. See generally Ex parte Kennedy, 992 So.2d 1276, 1280 (Ala.2008) (“ ‘State-agent immunity protects State employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities.’” (quoting Ex parte Hayles, 852 So.2d 117, 122 (Ala.2002))).

Even applying the understanding of the beyond-authority exception in the main opinion, I am inclined to agree with Justice Stuart’s view of the evidence in this particular case.

      . Although the text of the guidelines is not in the record, the evidence concerning their content comes from Beal's deposition offered by Beal in support of her motion for a summary judgment. Beal did not complain about the absence of the best evidence of the guidelines in the trial court nor does she contend that she was mistaken in her deposition when she confirmed the existence of a guideline requiring the presence of another professional when a teacher administers corporal punishment. The absence of a copy of the guidelines themselves suggests that the text does not support the degree of flexibility insisted on below and in this Court as the basis for State-agent immunity.

      . The extent to which there is a causal relation between the matters made the basis of the complaint and the deviation from the guideline is an issue we do not decide. When entertaining interlocutory review of the denial of a summary judgment in the context of immunity we do not address other matters dealing with the merits of tort liability. Ex parte Simpson, 36 So.3d 15 (Ala.2009). See also Ex parte Hudson, 866 So.2d 1115, 1120 (Ala.2003) (“We confine our interlocutory review to matters germane to the issue of immunity. Matters relevant to the merits of the underlying tort claim, such as issues of duty or causation, are best left to the trial court ....”).

      “ The ‘beyond authority’ concept appears to have been borrowed from the law of respondeat superior, and its import and field of operation for purposes of immunity law arguably are guided accordingly. As explained in Cranman and countless other immunity cases decided by this Court, the whole object of our attempt to articulate standards and exceptions in this area is to explain under what circumstances judicial interfer-

      . I am not persuaded that, in a case where there is no connection between the aspect in which the State agent has acted beyond his or her authority and the injuries suffered by a third party, this fact would not be germane to the issue whether the employee should be deprived of immunity under the beyond-authority exception.


author: PER CURIAM. THOMAS, Judge,

text:
    SOUTHERNCARE, INC. v. Margaret COWART.
    2071117.
    Court of Civil Appeals of Alabama.
    July 31, 2009.
    Thomas L. Oliver II, Joseph H. Driver, and Richard E. Trewhella, Jr., of Carr Allison, Birmingham, for appellant.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   PER CURIAM.

On June 24, 2008, the Calhoun Circuit Court entered an “interim judgment” determining that Margaret Cowart’s injuries had occurred within the line and scope of her employment with SouthernCare, Inc., and ordering that SouthernCare authorize Dr. James White to treat Cowart for those injuries. SouthernCare filed a motion challenging the “interim judgment” on July 23, 2008; that motion was denied by the trial court on August 4, 2008. On August 8, 2008, SouthernCare filed a petition for the writ of mandamus seeking relief from the “interim judgment”; that petition was denied on August 19, 2008, without an opinion. Ex parte SouthernCare, Inc., 30 So.3d 474 (Ala.Civ.App.2008) (table). SouthernCare then filed a timely appeal from the denial of its motion directed to the “interim judgment.”

Cowart argues that SouthernCare’s appeal is due to be dismissed because it is an attempt to appeal from a nonfinal judgment. Cowart relies on Presiding Judge Thompson’s opinion concurring in the result in Ex parte Publix Super Markets, Inc., 963 So.2d 654, 661 (Ala.Civ.App.2007) (Thompson, P.J., concurring in the result):

“Initially, I note that a petition for a writ of mandamus is the appropriate method of review in this action. In Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003), this court determined that an order that held an employer to be liable for an injured employee’s medical treatment was not sufficiently final to support an appeal. See also Sign Plex v. Tholl, 863 So.2d 1113 (Ala.Civ.App.2003) (order determining whether injury was compensable was not sufficiently final to support an appeal). The trial court’s September 15, 2006, order, because it required Publix to provide medical treatment for the employee, was, in essence, a determination of the compensability of the employee’s injury No other rights of the parties were addressed in the September 15, 2006, order, and, therefore, that order was not a final judgment capable of supporting an appeal. Accordingly, the appropriate method for reviewing the trial court’s September 15, 2006, order is pursuant to a petition for a writ of mandamus. See Ex parte Brookwood Med. Ctr., Inc., 895 So.2d 1000 (Ala.Civ.App.2004) (reviewing a nonfinal order in a workers’ compensation action pursuant to a petition for a writ of mandamus); see also Ex parte Amerigas, 855 So.2d 544, 546 (Ala.Civ.App.2003) (‘Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal.’).”

We agree with Cowart that Southern-Care’s appeal is due to be dismissed based on the holdings of Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003), and Sign Plex v. Tholl, 863 So.2d 1113 (Ala.Civ.App.2003).

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

THOMAS, J., dissents, with writing, which MOORE, J., joins.

THOMAS, Judge,

dissenting.

I respectfully dissent from the dismissal of SouthernCare’s appeal. SouthernCare argues in its statement of jurisdiction that the “interim judgment” is a final judgment for purposes of appeal because Ala.Code 1975, § 25-5-81(e), provides that an aggrieved party may appeal to this court from “an order or judgment” entered by the circuit court in a workers’ compensation action. This language, argues South-ernCare, is clear and unambiguous, and, it argues, § 25-5-81(e) does not require that the judgment be “final” as does Ala.Code 1975, § 12-22-2.

This argument is akin to the analysis advanced by Judge Moore in his writing concurring in the result in SCI Alabama Funeral Services, Inc. v. Hester, 984 So.2d 1207, 1211 (Ala.Civ.App.2007) (Moore, J., concurring in the result), in which I concurred. In his special writing, Judge Moore pointed out that § 25-5-81(a)(l), in his opinion, permitted “piecemeal” litigation and appeals.

“That statute recognizes that the parties may have a dispute about ‘the right to compensation,’ ‘the amount thereof,’ or both. By using the term ‘controversies,’ the legislature also recognized that the parties may disagree as to the components of compensability and/or one or more of the various amounts due the employee. That statute provides that the parties may submit the controversy or controversies to the appropriate circuit-court judge for resolution in a summary manner. By the plain terms of the statute, the judge’s decision thereon becomes ‘conclusive and binding,’ i.e., final, and ‘subject to the right of appeal,’ i.e., appealable.
“In enacting the workers’ compensation laws, the legislature created a wholly new and different remedy unlike the right to civil damages existing under the common law. See Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (Ala.Civ.App.2007). The legislature also created procedures unique to workers’ compensation law to enforce that remedy. See Birmingham Belt R.R. v. Ellenburg, 215 Ala. 395, 396, 111 So. 219, 220 (1926) (‘Without further analysis of the matter, we think compensation proceedings are quite as distinct in purpose and procedure from the ordinary action of law as is a suit at law from a suit in equity.’). The rules of procedure applicable to ordinary civil actions do not apply to the extent that they conflict with the procedure set out in the Workers’ Compensation Act. See Rule 81(a)(31), Ala. R. Civ. P.; Pittman Constr. Co. v. Boles, 233 Ala. 187, 188, 171 So. 268, 268 (1936) (‘It must be noted that the procedure under this act is governed by its terms and requirements and not by the ordinary method of procedure.’).
“In ordinary civil cases, the courts abhor piecemeal litigation and appeals. See Wesley v. Brandon, 419 So.2d 257, 259 (Ala.Civ.App.1982). However, the purpose and unique nature of workers’ compensation cases warrant deviation from the ordinary civil practice. Workers’ compensation law is designed to bestow monetary and medical benefits on injured employees at the moment they are most needed — when the employee is unable to earn income and is in need of medical care. See Ex parte Puritan Baking Co., 208 Ala. 373, 375, 94 So. 347, 349 (1922). Workers’ compensation law is further intended to provide a certain remedy. See Reed v. Brunson, 527 So.2d 102, 115 (1988). To serve both the purposes of expediency and certainty, controversies as to an employee’s right to benefits and the amounts thereof should be decided as they arise, and any determination of those controversies should be subject to immediate appellate review, even if the result is piecemeal litigation and appeals.”

Hester, 984 So.2d at 1212.

Because I joined Judge Moore’s opinion concurring in the result in Hester, I would take this opportunity to overrule those cases requiring that all aspects of an employee’s compensation claim be determined by a judgment before that judgment can be considered final. I am convinced that the Workers’ Compensation Act intended to provide for judicial determinations regarding less than all the claims an employee may advance against his or her employer relating to workers’ compensation and that immediate appeal of orders resolving those issues separately is provided for under § 25 — 5—81(a)(1) and (e).

MOORE, J., concurs.

      . A petition for a writ of mandamus must be filed within a reasonable time; according to Rule 21(a), Ala. R.App. P., the presumptively reasonable period within which to file a petition for a writ of mandamus is the same 42-day period allowed for an appeal. According to our supreme court, however, a motion seeking reconsideration of an interlocutory order does not toll the time for taking an appeal and will not serve to prevent a petition for a writ of mandamus filed after the ruling on a motion to reconsider and more than 42 days after the entry of the interlocutory order being challenged from being considered presumptively untimely. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003).


author: PER CURIAM.

text:
    Ex parte SOUTHERNCARE, INC. (In re SouthernCare, Inc. v. Margaret Cowart).
    1081550.
    Supreme Court of Alabama.
    May 14, 2010.
    Thomas L. Oliver II, Joseph H. Driver, and Richard E. Trewhella, Jr., of Carr Allison, Pugh, Howard, Oliver <& Sisson, P.C., Birmingham, for petitioner.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for respondent.
   PER CURIAM.

The writ of certiorari is quashed.

In quashing the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

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


author: THOMAS, Judge.

text:
    Harold Bernard POWE v. Corrine POWE.
    2080557.
    Court of Civil Appeals of Alabama.
    Nov. 20, 2009.
    Rehearing Denied Feb. 12, 2010.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090657.

      W. Gregory Hughes, Mobile, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Harold Bernard Powe (“the husband”) and Corrine Powe (“the wife”) were married in January 1982. In June 2005, the wife moved out of the marital residence, prompting the husband to file a complaint seeking a divorce in November 2007. After a trial, at which only the two parties testified, the trial court entered a judgment divorcing the parties and dividing their property; the judgment further addressed, by agreement, custody of the parties’ minor child and child support.

The trial court also awarded the wife $500 per month from the husband’s military-retirement benefits. The husband had retired from the military in 1999, after 20 years of service. He was receiving approximately $1,428 per month in combined military-retirement and military-disability benefits at the time of the divorce trial. The husband appeals the award to the wife of a portion of his military-retirement benefits, arguing that the award violates the requirements set out in Ala.Code 1975, § 30-2-51 (b), which permits a trial court to award one spouse a portion of the other spouse’s retirement benefits, subject to certain requirements.

Section 30-2-51(b) reads:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

The husband argues both that the wife failed to establish the present value of his military-retirement benefits and that the wife failed to establish the amount of those benefits that accrued during the parties’ marriage. Because the husband failed to argue to the trial court that the wife had failed to prove the amount of his military-retirement benefits that had accrued during the parties’ marriage, we cannot address that issue. See Killingsworth v. Killingsworth, 925 So.2d 977, 983 (Ala.Civ.App.2005). However, the husband did raise in the trial court the issue whether the wife had proved the present value of his retirement benefits.

In general, this court has held that the failure to establish the present value of the retirement benefits at issue precludes an award of a portion of those benefits under § 30-2-51(b).

“In Wilson v. Wilson, 941 So.2d 967 (Ala.Civ.App.2005); Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003); and McAlpine v. McAlpine, 865 So.2d 438, 440 (Ala.Civ.App.2002), this court held that, in order to support an award to one spouse of a portion of the other spouse’s retirement benefits pursuant to § 30-2-51(b), the spouse seeking such an award must introduce evidence establishing the ‘present value’ of the retirement benefits. Moreover, this court stated that ‘ “[t]he failure to present the necessary evidence of the present valuation of retirement benefits ... prevents the trial court from exercising its ... discretion to award one spouse any portion of the retirement benefits of the other spouse. McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002).” ’ Wilson, 941 So.2d at 970 (quoting Applegate, 863 So.2d at 1124).”

Brattmiller v. Brattmiller, 975 So.2d 359, 362 (Ala.Civ.App.2007).

More recently, however, in Campbell v. Campbell, 41 So.3d 775, 784 (Ala.Civ.App.2009), in a case in which the retiree was already receiving benefits, we indicated that the present value of the retirement benefits was proved by establishing the amount of monthly benefits the retiree was receiving. The husband in the present case, like the husband in Campbell, is receiving monthly military-retirement benefits. However, unlike the husband in Campbell, the husband in the present case is also receiving, as a part of his monthly benefit of $1,428, disability benefits, which are not subject to division upon divorce. Stone v. Stone, 26 So.3d 1232, 1238 (Ala.Civ.App.2009) (citing Mansell v. Mansell, 490 U.S. 581, 584, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989)).

Although the record does not contain a retirement statement indicating what portion of the husband’s benefits are retirement benefits and what portion are disability benefits, the parties’ joint tax return for 2006 indicates that the husband’s taxable pension benefits are $13,020 per year, or $1,085 per month. The remainder of the husband’s $1,428 in benefits, then, must be disability benefits, which are not taxable.

Based on our holding in Campbell, the evidence at trial established the present value of the husband’s retirement benefits to be $1,085 per month. The award of $500 per month to the wife is less than 50% of the present value of the husband’s military-retirement benefits. Because the husband failed to argue to the trial court that § 30-2-51(b)(2) barred an award of his military-retirement benefits to the wife, we must affirm the award of $500 per month in military-retirement benefits to the wife.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.


author: MOORE, Judge. BRYAN, Judge,

text:
    BIRMINGHAM CITY BOARD OF EDUCATION v. Carla HAWKINS.
    2080784.
    Court of Civil Appeals of Alabama.
    Dec. 18, 2009.
    Rehearing Denied Feb. 26, 2010.
    Thomas L. Stewart and Leslie M. Klas-ing of Waldrep Stewart <& Kendrick, LLC, Birmingham, for appellant.
    Gayle H. Gear, Birmingham; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for appellee.
    Frederick L. Fohrell and Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville, for amicus curiae Alabama Education Association, in support of the appellee.
   MOORE, Judge.

In this appeal, this court holds that a teacher who fails to renew his or her teaching certificate does not thereby automatically lose the protections of the Teacher Tenure Act, Ala.Code 1975, § 16-24-1 et seq.

The Alabama State Department of Education issued a Class B, early childhood teaching certificate to Carla Hawkins on February 25, 1994. Subsequently, the Birmingham City Board of Education (“the Board”) entered into a teaching employment contract with Hawkins covering the 1994-95 school year, which the Board annually renewed thereafter. On April 1, 2002, Vivian Davis, the Executive Director of Human Resources for the Board, notified Hawkins by letter that Hawkins’s teaching certificate would expire “this year.” The letter set out the steps Hawkins needed to take in order to renew her teaching certificate, which included completing an application, obtaining and verifying continuing-education credits, and paying the application fee. Apparently, Hawkins did not follow those instructions, because, on April 10, 2006, Samuetta H. Drew, a human-resource officer for the Board, sent Hawkins a letter indicating that Hawkins’s teaching certificate had expired on June 30, 2002, and that Hawkins still needed to follow the steps listed in the first letter in order to reinstate her certificate. In November 2007, Jeffery McDan-iels, the new Executive Director of Human Resources for the Board, sent Hawkins a third letter in which he stated:

“The Alabama State Department of Education has informed you and Birmingham City Schools that your professional educator certificate has expired, although a valid professional educator certificate is a condition for continued employment as a continuing service status (i.e. tenured) teacher.”

The letter asked Hawkins to meet with the Human Resources Department on December 4, 2007, to “measure where you are in the [renewal] process one last time.” Hawkins asserts that, some time after September 2007, she filed her certificate-renewal application with the Board along with the $20 application fee. After that, Hawkins maintains, “[s]he heard nothing further and believed that all was being handled by the Board.”

On April 18, 2008, the Board listed Hawkins on its nonrenewal list, indicating that Hawkins’s employment contract would not be renewed effective May 30, 2008. Hawkins received that list on or about April 24, 2008. On May 23, 2008, Hawkins filed an appeal to the Chief Administrative Law Judge of the Office of Administrative Hearings, Division of Administrative Law Judges, Office of the Attorney General (“the ALJ”). See Ala.Code 1975, § 16-24-21(a). In that appeal, Hawkins maintained that she held the status as a tenured teacher pursuant to Ala.Code 1975, § 16-24-1, which, she asserted, prevented the Board from canceling her teaching employment contract without cause and without following the procedures set out in Ala. Code 1975, §§ 16-24-9 and 16-24-10. Hawkins requested an order directing the Board to follow the teaching-contract cancellation procedures set out in the Teacher Tenure Act.

The Board filed an answer to the appeal on June 16, 2008. In that answer, the Board argued that Hawkins had no rights under the Teacher Tenure Act because, it asserted, once her teaching certificate expired and had not been renewed, Hawkins no longer met the statutory definition of “teacher.” See § 16-24-1. As such, the Board argued, it could freely cancel Hawkins’s employment contract without following the notice and hearing requirements set out in §§ 16-24-9 and 16-24-10. On July 2, 2008, the Board amended its answer to add a motion to dismiss the appeal, arguing that the ALJ had no jurisdiction over the appeal because, it asserted, only a teacher with a current valid teaching cer-tifícate has a right to appeal to the ALJ under Ala.Code 1975, § 16-24-21(a). In response, on July 22, 2008, Hawkins filed an amended notice of appeal in which she alleged that, if she was not covered by the Teacher Tenure Act as a result of the expiration of her teaching certificate, she was still entitled to relief under the Fair Dismissal Act (“the FDA”), Ala.Code 1975, § 36-26-100 et seq. The Board answered the amended appeal on July 25, 2008, disputing the applicability of the FDA.

The ALJ initially set the appeal for a hearing but, after reviewing the briefs of the parties, concluded that the facts were largely undisputed and that the appeal could be decided based on the pleadings alone. On December 5, 2008, the ALJ entered an order concluding that, once a teacher has gained continuing-service status, the employment contract of that teacher may be canceled only according to the procedures set out in the Teacher Tenure Act. Finding that Hawkins had gained continuing-service status before the expiration of her teaching certifícate, the ALJ held that Hawkins remained entitled to the protections of the Teacher Tenure Act and remanded the case to the Board to afford Hawkins a hearing.

On January 5, 2009, the Board filed a petition for a writ of certiorari to the Montgomery Circuit Court, along with a motion to stay execution of the ALJ’s order. Hawkins responded to the petition on January 26, 2009, arguing, alternatively, that the petition should be dismissed as being from a nonfinal judgment or that the petition should be denied. The Board filed a written response to Hawkins’s brief. After considering the parties’ briefs and oral arguments, on April 29, 2009, the circuit court denied the petition for a writ of certiorari, concluding that the ALJ had correctly applied the law to the facts. The Board moved the circuit court to stay its ruling on May 29, 2009, and it filed an appeal with this court that same date.

On appeal, the Board argues that the circuit court erred in denying the petition for a writ of certiorari. The Board maintains that the ALJ erred as a matter of law in holding that Hawkins remained covered by the Teacher Tenure Act following the expiration of her teaching certificate. The Board also maintains that, once her teaching certificate expired, Hawkins automatically lost her status as a “teacher” within the meaning of the Teacher Tenure Act and, hence, had no right to notice and a hearing before her employment contract was not renewed and further had no right to appeal to the ALJ to seek such notice and a hearing. The Board further maintains that the circuit court erred by adopting the incorrect legal conclusions of the ALJ.

In South Alabama Skills Training Consortium v. Ford, 997 So.2d 309 (Ala.Civ.App.2008), a case decided under the FDA, this court stated that, in appeals from a judgment of a circuit court on a petition for a writ of certiorari, this court uses the same standard of review as the circuit court. 997 So.2d at 324. That standard of review allows this court to consider only'

“ ‘ “ ‘questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings. The appropriate office of the writ is to correct errors of law apparent on the face of the record. Conclusions of fact cannot be reviewed, unless specially authorized by statute. The trial is not de novo but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.’ ” ’ ”

Ford, 997 So.2d at 324 (quoting G.W. v. Dale County Dep’t of Human Res., 939 So.2d 931, 934 n. 4 (Ala.Civ.App.2006), quoting in turn City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 252, 82 So. 519, 520 (1919), quoting in turn, Postal Tel. Co. v. Minderhout, 195 Ala. 420, 71 So. 91 (1916)). We thus review the record to determine whether the ALJ properly exercised jurisdiction over Hawkins’s appeal and issued an order within its authority.

Section 16-24-21(a) provides, in pertinent part:

“A teacher who has attained continuing service status and has been denied a hearing before the local board of education as required by Section 16-24-6, 16-24-9, 16-24-15, or 16-24-18[, Ala. Code 1975,] shall have the right to appeal directly to the Chief Administrative Law Judge of the Office of Administrative Hearings, Division of Administrative Law Judges, Office of the Attorney General for relief.... [T]he judge shall do one of the following: (1) Order a hearing before the local board, (2) determine that the teacher has been transferred, suspended, or dismissed in violation of the law and rescind the action taken by the local board, or (3) sustain the action taken by the local board.”

By its plain language, § 16-24-21(a) applies only to “[a] teacher who has attained continuing service status.” The term “teacher” is defined in § 16-24-1 to include

“all persons regularly certified by the teacher certificating authority of the State of Alabama who may be employed as instructors, principals or supervisors in the public elementary and high schools of the State of Alabama.... ”

In Ex parte Turner, 601 So.2d 995 (Ala.1992), the supreme court held that, in order to be “regularly certified,” a teacher must have received a certificate to teach through a valid, proper, and nondefective certification process. 601 So.2d at 996-97 (citing Athens City Board of Educ. v. Reeves, 388 So.2d 515 (Ala.1980)). Section 16-24-2, Ala.Code 1975, provides, in pertinent part:

“(a) Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system for the succeeding school year.”

In this case, it is undisputed that Hawkins had been “regularly certified” and had attained continuing-service status before the 2001-02 school year.

Pursuant to § 16-24-8, Ala.Code 1975, a teacher who has attained continuing-service status may be discharged only for “good and just cause.” Section 16-24-9 provides that the superintendent of the employing board of education must notify the teacher in writing of the superintendent’s intention to cancel the teacher’s employment for cause. Between 20 and 30 days later, the employing board of education shall meet to consider the superintendent’s recommendation. The teacher may request a public or private conference with the board regarding the proposed cancellation. The board shall then decide whether to cancel the employment contract of the teacher. See § 16-24-9(a), Ala. Code 1975. If the employment contract of the teacher is canceled, the superintendent must provide written notice of the cancellation to the teacher within 10 days of that decision and inform the teacher of the right to contest that decision by filing with the superintendent a written notice of contest within 15 days of receipt of the notice. See § 16-24-9(b). If the teacher contests the cancellation, the teacher is entitled to a de novo hearing before a hearing officer selected by the teacher and the employing board, after which the hearing officer can, among other things, order that the employment of the teacher be continued with or without disciplinary action. See Ala. Code 1975, § 16-24-10(a). It is undisputed that Hawkins did not receive written notice of the proposed cancellation of her teaching contract; that Hawkins did not get the opportunity to confer with the Board regarding the proposed cancellation; that the Board did not meet to vote on the proposed cancellation of her teaching contract; that Hawkins did not receive written notice of the cancellation of her teaching contract; and that Hawkins was never given an opportunity to contest the cancellation.

The Board argues that it had “good and just” cause not to renew Hawkins’s teaching contract because, it says, Hawkins no longer held a valid teaching certificate. Indeed, in addition to § 16-24-1, which requires a teacher to be regularly certified, § 16-23-1, Ala.Code 1975, provides:

“No person shall be employed in the public schools of the state as county superintendent of education, city superintendent of schools, assistant superintendent, supervisor, principal, teacher or attendance officer unless such person shall hold a certificate issued by the State Superintendent of Education.”

Hawkins acknowledges that, based on § 16-23-1, the failure to obtain a valid teaching certificate can constitute good and just cause for the cancellation of a teaching contract in this state.

However, the parties differ on the mechanism for effecting that cancellation. The Board maintains that once a teaching certificate expires, the teacher is no longer “regularly certified” and loses his or her status as a “teacher” with “continuing service” within the meaning of the Teacher Tenure Act. Hence, the Board contends, the employment contract of that noncom-pliant teacher may be summarily nonre-newed without following the notice, conference, and contest procedures set out in §§ 16-24-9 and 16-24-10. On the other hand, Hawkins argues that once a teacher attains continuing-service status, that status remains even after the certification of the teacher lapses. Hawkins contends that loss of certification may be grounds for the cancellation of the contract, but it does not relieve the Board from following the procedures set out in §§ 16-24-9 and 16-24-10 in order to give the teacher an opportunity to explain the lapse and to provide the hearing officer with mitigating evidence that would justify less severe disciplinary action than cancellation.

Both Hawkins and amicus curiae, the Alabama Education Association, point out that the Colorado Supreme Court has decided the very issue before this court in favor of the teacher. In Frey v. Adams County School District No. 14, 804 P.2d 851 (Colo.1991), Carol Frey was a tenured teacher whose teaching certifícate had expired in 1987. The local board of education notified Frey in writing that it was terminating her employment due to the lapse of her teaching certificate, which the local board characterized as a. forfeiture of her tenured status. 804 P.2d at 851. The local board rejected Frey’s request for a hearing, which prompted an appeal to the Colorado Court of Appeals. 804 P.2d at 852. The Colorado Court of Appeals held that it had no jurisdiction to consider the appeal because, once her teaching certificate expired, Frey was no longer a “teacher” within the meaning of Colorado’s teacher-tenure statutes and, hence, had no appellate rights. See Frey v. Adams County Sch. Dist No. 14, 771 P.2d 27 (Colo.Ct.App.1989). On petition for a writ of certiorari, the Colorado Supreme Court affirmed the decision of the Colorado Court of Appeals, but for different reasons.

Under the statutory teacher-tenure scheme existing in Colorado at the time, the employment of a “tenure teacher” in Colorado could be terminated only for “good and just cause” as established through specified notice and hearing procedures similar to those in Alabama. See Colo.Rev.Stat. § 22-63-116 and -117 (1988). Also, like in Alabama, the term “teacher”

“mean[t] any person who is regularly certified by the teacher certifying authority for the state of Colorado, and who is employed to instruct, direct, or supervise the instructional program .... ”

Colo.Rev.Stat. § 22-63-102(9) (1988). Based on that definition, the employing board argued, and the Colorado Court of Appeals held, that Frey had lost her status as a tenured teacher when her teaching certificate had expired. On certiorari review of that holding, the Colorado Supreme Court stated:

“We believe that the school board’s position is based on too narrow a reading of the relevant provisions of the Act [the Teacher Employment, Dismissal, and Tenure Act of 1967, Colo.Rev.Stat. §§ 22-63-101 to -118 (1988) ] and is not consistent with the constitutional protections accorded to tenure teachers. As Frey points out, if the statute is to be read literally, a board of education could deprive a person of status as a teacher by terminating that person’s employment, because the definition in § 22-63-102(9) describes a teacher as one ‘who is employed to instruct, direct, or supervise the instructional program.’ (Emphasis added.) Such a fundamentally unfair result could not have been intended by the legislature. See § 2-4-201(l)(e), IB C.R.S. (1980) (it is presumed that legislature intended just and reasonable result). This serves to illustrate that an unbendingly literal reading of the definitional sections of the Act does not supply the key to legislative intent. We look instead to the overall legislative plan with respect to teacher certification and termination of employment of tenure teachers to determine whether a hearing is required in order to terminate the employment of a tenure teacher whose teacher’s certificate has expired. See, e.g., Martinez v. Continental Enterprises, 730 P.2d 308, 315 (Colo.1986) (‘statute is to be construed as a whole to give consistent, harmonious and sensible effect to all its parts’).
“In order to acquire status as a ‘teacher’ under the definition in § 22-63-102(9), it is necessary that a person become certified. Milan v. Aims Junior College Dist., 623 P.2d 65, 67 (Colo.App.1980). The only explicit statutorily imposed sanction for loss of certification during a contract of employment is loss of the right to compensation. § 22-63-104, 9 C.R.S. (1988). Nothing in the statutes suggests that expiration of a teacher’s certificate held by a person employed as a tenure teacher automatically results in loss of right to employment.
“With limited exceptions not applicable here, a tenure teacher has the right to a hearing before the sanction of dismissal can be imposed. § 22-63-117(1), (3). The Act comprehensively enumerates the reasons for dismissal of a teacher who has acquired tenure. § 22-63-116, 9 C.R.S. (1988). This indicates intent to limit the bases for dismissal.... The Act does not specifically list loss of certification as a ground for dismissal of a tenure teacher. In view of the central importance of certification to the statutory scheme, however, we believe that the term ‘other good and just cause’ in section 22-63-116 is sufficiently encompassing to include issues surrounding the expiration of a teacher’s certificate, thereby requiring that the procedure prescribed in section 22-63-117 be followed before a tenure teacher can be dismissed for loss of certification.
“Our determination that the statutes must be construed to require a hearing before the employment of a person who has once acquired status as a tenure teacher can be terminated also finds support in constitutional principles. A tenure teacher has a property right in continued employment. Howell v. Woodlin School Dist. R-104, 198 Colo. 40, 45-46, 596 P.2d 56, 60 (1979); accord Slochower v. Board of Educ., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); see also deKoevend v. Board of Educ. of West End School, 688 P.2d 219, 227-28 (Colo.1984) (irregular procedures violated tenure teacher’s ‘due process right to a fair and impartial determination by the board.’); cf. Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972) (teacher without tenure and without contractual right to renewal of employment has no protectible interest in reemployment). The state cannot deprive a person of such a right without due process. Cleveland Bd. of Educ. v. Loudennill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Howell, 198 Colo, at 45-46, 596 P.2d at 60.
“Even where termination is for expiration of a teacher’s certificate, factual inquiries are necessary to determine, among other things, if the certificate has, in fact, expired, and whether such expiration constitutes ‘good and just cause.’ ”

804 P.2d at 853-56 (footnotes omitted).

The Colorado Supreme Court held that Frey did not automatically lose her right to continued employment based on the expiration of her teaching certificate. 804 P.2d at 854. Rather, she retained her right to notice and a hearing to prove that her employment should not be terminated due to that lapse. The court further held that the decision to terminate the employment of a tenured teacher could be appealed to the court of appeals only following the guaranteed hearing. Because no hearing had been conducted, the supreme court held that the court of appeals had never obtained jurisdiction over the appeal. 804 P.2d at 856-57.

Given the similarities between Alabama’s teacher-tenure laws and those of Colorado discussed in Frey, we find the reasoning of the Colorado Supreme Court particularly persuasive, and we are inclined to adopt that reasoning to affirm the circuit court’s judgment in this case. However, we are constrained to follow the decisions of our own supreme court. See Ala.Code 1975, § 12-3-16. In Barger v. Jefferson County Board of Education, 372 So.2d 307 (Ala.1979), the now-defunct State Tenure Commission ruled that Bar-ger, a tenured teacher, had been improperly discharged in violation of the then-existing teacher-tenure laws. When the employing board did not immediately reinstate his employment following that ruling, Barger brought an action in circuit court seeking an order compelling the employing board to reinstate his employment and to provide backpay. However, before the circuit court could rule on Bar-ger’s petition, Barger’s teaching certificate expired. The circuit court therefore held that it would be improper to compel the school board to reinstate Barger. 372-So.2d at 308. On appeal, Barger argued that the record before the circuit court showed that the school board bore responsibility for the lapse of his teaching certificate. The Alabama Supreme Court ruled, however, that under the circumstances of that case, Barger could not reasonably have relied on the school board to assure his continued certification. The court then stated:

“In light of the clear statutory mandate that certification is a condition precedent to employment as an instructor, principal or supervisor, Code 1975, §§ 16-23-1, 16-24-1, the trial court did not err in refusing to reinstate the appellant.”

372 So.2d at 308.

Barger is admittedly difficult to follow. On the one hand, the excerpt quoted above suggests that, once certification, the “condition precedent to employment as an instructor,” lapses, the employment of the teacher may be summarily terminated without notice and an opportunity to be heard. After all, once it determined that Barger’s teaching certificate had expired, the circuit court did not remand the case for a hearing before the employing board or the State Tenure Commission as to whether the lapse precluded Barger’s reinstatement. Instead, the circuit court decided that issue itself. On the other hand, it appears from the following discussion in Barger that the circuit court actually considered the facts surrounding the lapse of the certificate. The Barger court- stated:

“[Barger] asserts that he relied upon the Jefferson County Board of Education to apply for the renewal of his teaching certificate. Whether under some set of circumstances a teacher might reasonably rely upon a school board to renew the certificates of the teachers in its employ, we need not decide. In the instant case, [Barger] had been discharged, albeit wrongfully, by the Board of Education prior to the time for application for renewal of his certificate. Despite the fact that his reinstatement had been ordered by the State Tenure Commission, he had not been reinstated at the time of his certificate’s expiration.
“Although [Barger] presented evidence indicating that the Jefferson County Board of Education had unilaterally requested that his certificate be renewed in 1973 when it was due to expire, he has not established that the Board, as a matter of common practice, automatically requested that the State Board of Education renew certificates of its teachers, instructors, and other educators. We are not persuaded that [Barger] was entitled to rely on the Board of Education to renew his certificate in this instance, especially in light of the difficulties which had developed between [Barger] and the Board with respect to his employment.
“Moreover, the record reflects that the State Board of Education has raised questions relative to additional requirements before [Barger’s] certificate could be renewed. Under these circumstances, it was [Barger’s] responsibility to assure his continued certification.”

372 So.2d at 308. That discussion indicates that the circuit court made some sort of record regarding the reasons for the expiration of Barger’s teaching certificate and that, had those reasons been sufficient, the outcome of the case may have been different.

After carefully reviewing that opinion, we do not interpret Barger as holding that a teacher with continuing-service status automatically loses that status, and the associated rights guaranteed by the Teacher Tenure Act, once his or her teaching certificate expires. Rather, Barger holds only that the expiration of a teaching certificate may constitute a good and just cause to cancel the employment contract of a tenured teacher when the record shows that the teacher had no justifiable reason for allowing the lapse. Consistent with the Teacher Tenure Act as it exists today, that record can only be produced at a hearing before the employing board or a hearing officer in compliance with the procedures mandated by §§ 16-24-9 and 16-24-10. Hence, Barger does not conflict with the reasoning or holding in Frey that we adopt in this opinion.

Based on the foregoing, we hold that the lapse of her teaching certificate did not automatically divest Hawkins of her status as a teacher with continuing service. Hence, the Board could not have lawfully canceled her employment contract without complying with §§ 16-24-9 and 16-24-10. When the Board attempted to nonrenew Hawkins’s employment contract without providing Hawkins notice or an opportunity for a hearing, Hawkins had a right, under § 16-24-21(a), to appeal to the ALJ, and the ALJ had jurisdiction to decide that appeal. The ALJ ordered the Board to provide Hawkins with a hearing, which is one of the actions authorized by § 16-24-21(a). Thus, the circuit court did not err in affirming the jurisdiction and ruling of the ALJ.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

BRYAN, J., concurs in the result, with •writing.

BRYAN, Judge,

concurring in the result.

I agree with the main opinion that “‘[e]ven where termination is for expiration of a teacher’s certificate, factual inquiries are necessary to determine, among other things, if the certificate has, in fact, expired, and whether such expiration constitutes “good and just cause.” ’ ” 48 So.3d at 644 (quoting Frey v. Adams County Sch. Dist. No. 14, 804 P.2d 851, 856 (Colo.1991)). I note that the expiration of a teaching certificate may, in some circumstances, constitute good and just cause for a dismissal.

      . Because the ALJ found that Hawkins remained entitled to the protections of the Teacher Tenure Act, the ALJ did not address the argument that Hawkins was covered by the FDA.

      . On September 18, 2009, the Board moved this court for a stay, asserting that its motion to stay filed in the circuit court had been denied by operation of law on August 27, 2009. This court denied that motion on October 28, 2009.

      .We deny Hawkins’s motion to strike the reply brief of the Board, but we note that, in reaching our decision, we did not consider any issues not raised in the Board’s principal brief.


author: LYONS, Justice. COBB, Chief Justice

text:
    Ex parte BIRMINGHAM CITY BOARD OF EDUCATION. (In re Birmingham City Board of Education v. Carla Hawkins).
    1090792.
    Supreme Court of Alabama.
    May 7, 2010.

      Thomas L. Stewart and Leslie M. Klas-ing of Waldrep, Stewart & Kendrick, LLC, Birmingham, for petitioner.
    Submitted on petitioner’s brief only.
   LYONS, Justice.

The petition for the writ of certiorari is denied. See Rule 39(d)(3), Ala. R.App. P.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and MURDOCK, J., dissent.

COBB, Chief Justice

(dissenting).

Although the petitioner in this case filed its petition in the form of a brief rather than by explicitly following the form specified by Rule 39, Ala. R.App. P., I believe the legal arguments and analysis in that brief were in substantial compliance with Rule 39. Under these circumstances, I conclude that the petitioner presented sufficient indicia of merit to support granting this petition. Accordingly, I respectfully dissent.

MURDOCK, J., concurs.


author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    Robert COCKING v. CITY OF MONTGOMERY.
    2081198.
    Court of Civil Appeals of Alabama.
    March 12, 2010.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090894.

      Stevan K. Goozée, Birmingham, for appellant.
    Wallace D. Mills, Montgomery, for ap-pellee.
   MOORE, Judge.

This case concerns the issue whether an employee may recover benefits from his or her employer under Article 4 (“the occupational-disease article”), Ala.Code 1975, § 25-5-110 et seq., of the Alabama Workers’ Compensation Act (“the Act”), Ala. Code 1975, § 25-5-1 et seq., for post-traumatic stress disorder caused by purely nonphysical stimuli.

Robert Cocking (“the employee”) worked for 25 years as a firefighter for the City of Montgomery (“the employer”). His job duties including responding to emergency situations imperiling the life and health of citizens within the employer’s jurisdiction. On October 14, 2008, the employee filed a complaint in the Montgomery Circuit Court (“the trial court”) alleging that he had contracted “the occupational disease of post traumatic stress disorder” due to “multiple incidents occurring on the job.” The employee attested in responses to interrogatories propounded by the employer that his condition resulted from “continuous exposure to stressful, life threatening trauma and death to members of the community,” most particularly an occasion on October 3, 2005, on which he failed to revive a two-and-a-half-year-old infant who had been suffocated and an event on June 29, 2008, in which a 52-year-old woman died while he was administering CPR to her. In his complaint, the employee averred that the employer had failed or refused to pay him any benefits on account of his contraction of the disorder and the disablement resulting therefrom.

After the employer filed an answer and the parties participated in a period of discovery, the employer filed a motion for a summary judgment on June 9, 2009. In that motion, the employer argued solely that the claim was not compensable because the employee’s post-traumatic stress disorder resulted from purely nonphysical stimuli. The employer maintained that mental disorders that are not proximately caused by a physical injury to the body fall outside the scope of the coverage of the occupational-disease article of the Act. The employee filed a brief opposing the summary-judgment motion. In that brief, the employee conceded, as he did at oral argument before this court, that his post-traumatic stress disorder did not result from a physical injury to his body. The employee offered medical evidence indicating that his disorder resulted exclusively from emotionally traumatic events that the employee had experienced as a firefighter. However, the employee maintained that purely mental diseases are compensable under the plain language of the occupational-disease article of the Act. The trial court entered a summary judgment for the employer on September 22, 2009. The employee timely appealed to this court, which held oral argument on the case on February 8, 2010.

The issue whether the occupational-disease article of the Act covers purely mental disorders has twice been before this court — in Herchenhahn v. Amoco Chemical Co., 688 So.2d 847 (Ala.Civ.App.1997), and in Couch v. City of Rainbow City, 910 So.2d 772 (Ala.Civ.App.2004). In both of those cases, the respective trial court entered a summary judgment against the worker on the ground that the occupational-disease article of the Act does not cover mental disorders arising solely from nonphysical stimuli. See Herchenhahn, 688 So.2d at 848; and Couch, 910 So.2d at 773. In Herchenhahn, this court affirmed the summary judgment on a different ground. This court determined that Herchenhahn’s occupational-disease claim failed because he had not proven legal causation, i.e., that the job duties of a computer-systems administrator had exposed Herchenhahn to a peculiar risk of harassment. 688 So.2d at 848-50. In Couch, the entire court appeared to agree that a physical injury is a necessary component of a claim seeking compensation for a mental disorder under the occupational-disease article of the Act, 910 So.2d at 775, but the majority of the court focused its decision to affirm the summary judgment based on the failure of Couch to produce substantial evidence indicating that her job as a police dispatcher had exposed her to a peculiar hazard of acquiring an emotional disease resulting from the death of coworkers. 910 So.2d at 776. In special writings concurring in the result in Couch, Presiding Judge Crawley and Judge Murdock stated that the summary judgment should have been affirmed based on the absence of a physical injury. 910 So.2d at 777-80. Hence, the law remains unclear whether the mere absence of a physical injury necessarily defeats a claim for benefits under the occupational-disease article of the Act.

That question confronts this court in this case in the posture of an appeal from a summary judgment. In such appeals, this court reviews the judgment de novo, applying the same standard as was applied in the trial court. Barrett v. Lee Brass Co., 883 So.2d 227, 228 (Ala.Civ.App.2003). A motion for a summary judgment is due to be granted when no genuine issue of material fact exists and the movant is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. In this case, at least for the purposes of the summary-judgment motion, the parties agree as to the essential facts. Thus, the only question for this court to decide is whether the employer is entitled to a judgment as a matter of law.

We begin our analysis with an acknowledgment that the occupational-disease article does not expressly exclude purely mental disorders from coverage. The Act defines an “occupational disease” as:

“[a] disease arising out of and in the course of employment, including occupational pneumoconiosis and occupational exposure to radiation as defined in subdivisions (2) and (3), respectively, of this section, which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease, including, but not limited to, loss of hearing due to noise, shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of exposure, over a period of time, to the normal working conditions of the trade, process, occupation, or employment.”

Ala.Code 1975, § 25-5-110(1). Nothing in that statutory definition states that a mental disease that otherwise meets the criteria for an occupational disease will not be covered in the absence of a physical injury.

However, Ala.Code 1975, § 25-5-111, states that “the disablement or death of an employee caused by the contraction of an occupational disease, as defined in Section 25-5-110, shall be treated as an injury by accident .... ” (Emphasis added.) At the time the occupational-disease article was adopted in 1971, see Act No. 668, Ala. Acts 1971, and still today, the term “accident” was and is statutorily defined as requiring “injury to the physical structure of the body....” See Title 26, § 262, Ala.Code 1940 (Recomp. 1958), and Ala.Code 1975, § 25-5-1(7). That plain language indicates that, in the absence of a physical injury, a mental injury will not be compen-sable. Blansit v. Cornelius & Rush Coal Co., 380 So.2d 854, 855 (Ala.Civ.App.1979) (“It is the duty of the court to ascertain and give effect to the legislative intent as expressed from the words of a statute.”). Therefore, by equating the contraction of an occupational disease with an “injury by accident,” the legislature incorporated that limiting concept into the occupational-disease article.

The legislature removed any doubt as to its intent by subsequently amending the definition of “injury.” In 1992, the legislature amended the definition of “injury” to exclude purely mental injuries. Ala. Acts 1992, Act No. 92-537, § 2, p. 1082. The Act now provides:

“ ‘Injury and personal injury shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except for an occupational disease or where it results naturally and unavoidably from the accident.... Injury does not include a mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body.”

Ala.Code 1975, § 25-5-1(9). Within the same paragraph, the legislature simultaneously acknowledges that the Act covers occupational diseases and excludes purely mental disorders or mental injuries. The juxtaposition of those provisions indicates the legislative understanding that the general coverage of occupational diseases does not extend specifically to purely mental diseases.

The legislature has further declared that the definitions of “accident” and “injury,” as set out above, apply “[tjhroughout this chapter, ... unless the context ... clearly indicate^] a different meaning in the connection used.” Ala.Code 1975, § 25-5-1. Reading the various provisions of the Act in pari materia, see USX Corp. v. Bradley, 881 So.2d 421, 426 (Ala.Civ.App.2003), unless the context clearly indicates otherwise, the language of § 25-5-111 indicates that an occupational disease does not include a mental disorder resulting from exclusively nonphysical stimuli.

The context of § 25-5-111 does not clearly indicate that the legislature intended a different meaning for “injury by accident” than that prevailing throughout the remainder of the Act. No language in the occupational-disease article evinces a legislative intention to include purely mental diseases within the scope of its coverage. In fact, the act adopting the occupational-disease statute, Ala. Acts 1971, Act No. 668, in listing examples of compensable occupational diseases, refers solely to physical diseases, such as occupational pneumoconiosis and loss of hearing. See Ala.Code 1975, § 25-5-110. The ejusdem generis rule of statutory construction provides that when general words or phrases follow or precede a specific list of classes of persons or things, the general word or phrase is interpreted to be of the same nature or class as those named in the specific list. Ex parte Mitchell, 989 So.2d 1083, 1091 (Ala.2008). By mentioning only physical diseases, the legislature indicated its understanding, at the time it adopted the occupational-disease article, that mental diseases would not be covered.

In summary, we believe the legislature intended by the terms employed in § 25-5-111 to treat occupational diseases similarly to injuries by accident by requiring an injury to the physical structure of the body. In accidental-injury cases, in order for a worker to recover for a psychological disorder, the worker must have suffered a physical injury and that physical injury must have proximately caused the psychological disorder. Ex parte Vongsouvanh, 795 So.2d 625, 628 (Ala.2000). We hold that a worker must present the same evidence in order to recover benefits for a mental disease under the occupational-disease article. Because it is undisputed that the employee relates his post-traumatic stress disorder exclusively to emotional trauma, and not to any physical injury, arising out of and in the course of his employment, the trial court did not err in entering a summary judgment for the employer.

AFFIRMED.

PITTMAN and THOMAS, JJ„ concur.

THOMPSON, P.J., concurs in the result, with writing.

BRYAN, J., recuses himself.

THOMPSON, Presiding Judge,

concurring in the result.

The allegations set forth in Robert Cooking’s complaint, if proven, would indicate that he suffers from post-traumatic stress disorder (“PTSD”) and that the disorder is directly attributable to emotional trauma he experienced while he was on the job as a firefighter for the City of Montgomery. If Cocking also had received a physical injury, it is possible that his PTSD would be compensable. However, in the context of workers’ compensation statutes, the Alabama Legislature has explicitly excluded from the definition of “injury” “a mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body.” § 25-5-1(9), Ala.Code 1975.

Because of the manner in which “injury” is defined in § 25-5-1(9), I must conclude that purely mental diseases such as Cooking's PTSD are not currently compensable, and this court has no alternative but to affirm the trial court’s summary judgment in favor of the City of Montgomery. Accordingly, I concur in the result reached by the main opinion.