text:
    Randal L. HARRIS v. HEALTH CARE AUTHORITY OF THE CITY OF HUNTSVILLE d/b/a Huntsville Hospital, and Norman Solliday, M.D.
    1070271.
    Supreme Court of Alabama.
    Sept. 19, 2008.

      Scott P. Hooker, Birmingham, for appellant.
    Daniel F. Beasley and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital.
    H. Harold Stephens, Scott Burnett Smith, and Benjamin L. McArthur of Bradley Arant Rose & White, LLP, Huntsville, for appellee Dr. Norman Solli-day.
   SEE, Justice.

Randal L. Hands appeals from summary judgments entered by the Madison Circuit Court in favor of the Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital (“Huntsville Hospital”) and Dr. Norman Solliday. We affirm.

Facts and Procedural History

On February 10, 2005, Harris was admitted to Huntsville Hospital after he lost consciousness at his home. Dr. Solliday diagnosed Harris with possible delirium tremens and prescribed and administered Ativan, a mild tranquilizer and antianxiety medicine, as treatment for Harris’s medical condition. Harris became increasingly agitated and restless under the administration of Ativan. Dr. Solliday increased the dosage of Ativan in order to sedate Harris and transferred him to the intensive care unit, where he was intubated for airway protection. Harris was subsequently placed in soft restraints to prevent him from interfering with his treatment or from removing his breathing tube.

Three days after Hams was admitted to Huntsville Hospital, Harris’s medication was changed from Ativan to Diprivan. Harris responded positively to the Dipri-van. Several days after Harris’s medical condition had improved, he was extubated and the soft restraints were removed. Harris was discharged nine days after he was first admitted to Huntsville Hospital. After his discharge, Harris complained of residual numbness in his right hand. Harris was subsequently examined by Dr. Lynn Boyer, who diagnosed Harris as suffering from a severe nerve injury to the forearm and biceps of his right arm.

On February 22, 2006, Harris sued Huntsville Hospital and various fictitiously named defendants pursuant to the Alabama Medical Liability Act, § 6-5-480 et seq., Ala.Code 1975, and the Medical Liability Act of 1987, § 6-5-540 et seq., Ala. Code 1975, alleging that he had sustained severe nerve injury to his right arm because Huntsville Hospital had breached the applicable medical standard of care by failing to monitor Harris’s condition while he was restrained.

Huntsville Hospital answered the complaint, and the trial court set the case for a scheduling conference. At Harris’s request, the scheduling conference was continued until November 20, 2006. At the scheduling conference, the trial court set the case for trial on December 20, 2007, and issued an order specifying certain dates for the completion of discovery and for the disclosure of expert witnesses. That order required Harris to disclose any expert witnesses by April 16, 2007, and Huntsville Hospital was required to disclose its expert witnesses by July 31, 2007. The trial court’s order also instructed the parties to submit their witness and exhibit lists 30 days before trial.

On February 12, 2007, Harris amended his complaint to add Dr. Solliday as a defendant. One month later Dr. Solliday answered Harris’s amended complaint and served Harris with interrogatories and requests for production. Specifically, Dr. Solliday requested that Harris identify all expert witnesses Harris intended to call at trail. Harris did not respond to Dr. Solli-day’s discovery requests and, on June 6, Dr. Solliday moved the trial court to compel Harris to respond. Two days later, the trial court granted Dr. Solliday’s motion to compel and ordered Harris to respond to Dr. Solliday’s discovery requests within 20 days. Harris failed to respond within 20 days and failed to comply with the trial court’s scheduling order to disclose by April 16, 2007, the identity of the expert witnesses he intended to call at trial.

On July 31, Huntsville Hospital moved for a summary judgment. In support of its motion for a summary judgment, Huntsville Hospital attached the affidavit of Chasity Killen, a nurse who had administered medical care to Harris while he was being treated at Huntsville Hospital. Nurse Killen testified that the nursing staff at Huntsville Hospital had, at all times, met the applicable standard of care in treating Harris. Over two weeks later, Dr. Solliday moved for a summary judgment and supported that motion with his own affidavit, in which he testified that he too had, at all times, met the applicable standard of care in rendering medical treatment to Harris. The trial court scheduled both summary-judgment motions for a hearing on September 19.

On September 18, Harris moved the trial court pursuant to Rule 56(f), Ala. R. Civ. P., to deny both summary-judgment motions or, in the alternative, to continue the hearing on the motions. Harris argued in his motion that the testimony of Dr. Richard Berryman was essential to his opposition of the summary-judgment motions. Harris included in his motion the affidavit of his attorney, in which the attorney stated that Harris was unable to obtain Dr. Berryman’s testimony because Dr. Berry-man was then undergoing chemotherapy treatment. Harris did not, however, move the trial court to amend its scheduling order. The following day Huntsville Hospital and Dr. Solliday responded to Harris’s motion, and the trial court conducted the scheduled hearing on the summary-judgment motions.

The day after the hearing, Hams filed a brief responding to Huntsville Hospital’s and Dr. Solliday’s motions for summary judgments and in opposition to Harris’s request for a continuance. In support of his brief, Harris attached the affidavits of Mary Seales, R.N., and Dr. Boyer. Huntsville Hospital moved the trial court to strike both affidavits, arguing that the affidavits were submitted after the deadline established in the trial court’s scheduling order and after the trial court had already held a hearing on the summary-judgment motions.

The trial court granted Huntsville Hospital’s motion to strike the affidavits of Nurse Seales and Dr. Boyer and entered a summary judgment in favor of Huntsville Hospital. The trial court also entered a summary judgment in favor of Dr. Solli-day, finding that Harris had not produced substantial evidence to rebut Dr. Solliday’s showing that he had met the applicable standard of care in treating Harris. In this same order, the trial court denied Harris’s motion to deny or to continue the hearing on the summary-judgment motions of Huntsville Hospital and Dr. Solli-day.

Harris appealed and filed a statement of proceedings pursuant to Rule 10(d), Ala. R.App. P.' Harris attached to his statement of proceedings an affidavit executed by Dr. Berryman. Dr. Solliday moved the trial court to strike Harris’s statement of proceedings on the ground that the trial court did not hear ore tenus evidence at the hearing on the summary-judgment motions. The trial court granted Dr. Sol-liday’s motion, finding that Harris’s statement of proceedings, including Dr. Berry-man’s affidavit, was not properly before the court. Harris now appeals.

Standard of Review

“ ‘We review the trial court’s grant or denial of a summary judgment motion de novo.’ Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006) (citing Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present ‘substantial evidence’ of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989);" see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmov-ant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala.1993). ‘The trial court’s ruling on a question of law carries no presumption of correctness, and this Court reviews de novo the trial court’s conclusion as to the appropriate legal standard to be applied.’ Dunlap v. Regions Fin. Corp., 983 So.2d 374, 377 (Ala.2007) (citing Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)).” McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala.2008). This Court will not reverse a trial court’s decision to grant or to deny a motion for a continuance unless the party challenging the trial court’s ruling demonstrates that the trial court exceeded its discretion. See Ex parte H.P.W., 628 So.2d 514, 517 (Ala.1993) (“It is well settled that the disposition of a motion for a continuance is vested in the sound discretion of the trial court and that its ruling will not be disturbed on appeal, except upon a clear showing of abuse of discretion.”). This Court reviews a trial court’s decision to amend or not to amend a pretrial order to determine whether the trial court exceeded its discretion. Hughes v. Arlando’s Style Shop, 399 So.2d 830, 831 (Ala.1981).

Analysis

Harris argues that the trial court exceeded its discretion by failing to amend its scheduling order and by denying his Rule 56(f), Ala. Civ. P., motion asking the trial court to deny the summary-judgment motions or, in the alternative, to continue the hearing on the motions. He further argues that the trial court erred when it “sanctioned” him by excluding the affidavits of Nurse Seales, Dr. Boyer, and Dr. Berryman and entering summary judgments in favor of Huntsville Hospital and Dr. Solliday.

A. Tibe trial court’s scheduling order

Harris first argues that the trial court exceeded its discretion by not amending its scheduling order to change the date for the disclosure of expert witnesses. Harris argues that the “exclusion of witnesses pursuant to a scheduling order is to prevent a party from being ‘ambushed’ at trial.” Harris’s brief at 1. Harris further contends that strict compliance with a trial court’s scheduling order is not required when the opposing party knows that the noncompliant party intends to call expert witnesses to testify at trial. Huntsville Hospital and Dr. Solliday, however, argue that Harris cannot demonstrate that the trial court exceeded its discretion by not amending its scheduling order because Harris never moved the trial court to do so.

Rule 16(b), Ala. R. Civ. P., provides: “The court may enter a scheduling order that limits the time ... to complete discovery.... Once a scheduling order is issued, the schedule set thereby shall not be modified except by leave of court upon a showing of good cause.” (Emphasis added.) Harris is unable to demonstrate that the trial court exceeded its discretion in not amending its scheduling order. In response to the summary-judgment motions, Harris admitted that he “did not file a motion to amend the scheduling order, assuming that it would automatically be amended with the addition of a party .... ” Harris did not seek or obtain, by motion or otherwise, modification of the scheduling order, and he never showed that he had good cause for modification of the order. Harris did not ask the trial court to modify the scheduling order, and this Court will not reverse an order for a trial court’s failing to do what it was not asked to do. See Barnett v. Estate of Anderson, 966 So.2d 915, 920 (Ala.2007) (“We decline to review an issue ... that was not considered by the trial court.”).

Moreover, none of the caselaw cited by Harris supports his argument that the amendment of a complaint to add a new defendant requires the trial court sua sponte to modify its scheduling order to extend the time for the disclosure of expert witnesses. Harris cites Mitchell v. Moore, 406 So.2d 347 (Ala.1981), and Erwin v. Sanders, 294 Ala. 649, 320 So.2d 662 (1975), in support of that argument. In Mitchell, this Court held that the trial court did not exceed its discretion in allowing the plaintiff to call a witness to testify at trial after the plaintiff had not amended her answers to the defendants’ interrogatories to reflect her intention to call the witness. 406 So.2d at 350. This Court stated that the trial court had not exceeded its discretion in concluding that, “under the circumstances, plaintiff had not knowingly concealed the identity of [the witness] in violation of Rule 26(e)[, Ala. R. Civ. P.],” because the plaintiff “originally learned of [the witness’s] identity through answers to interrogatories propounded to defendants.” Mitchell, 406 So.2d at 350.

In Erwin, plaintiffs counsel had indicated that he was considering obtaining an expert witness. Defense counsel then obtained an additional expert witness the weekend before the start of the trial on Monday. He notified the plaintiffs attorney of the newly retained expert witness at the docket call on the morning of the trial. Two and one-half days after the trial began, the plaintiffs attorney objected to the testimony of the recently acquired expert witness, arguing that the plaintiff was prejudiced because defense counsel had failed to supplement the answer to an interrogatory requesting the identity of each person expected to testify as an expert witness, in accordance with Rule 26(e)(1), Ala. R. Civ. P. Erwin, 294 Ala. at 652, 320 So.2d at 663. The trial court overruled the plaintiffs objection, and this Court held that the trial court did not exceed its discretion in doing so.

Mitchell and Erwin are inapposite here. Neither case addresses whether a trial court should automatically amend a scheduling order to change the date for the disclosure of expert witnesses when the plaintiff amends a complaint to add a new party as a defendant. Instead, those cases address whether the trial court exceeded its discretion by allowing certain witnesses to testify even though the party calling them had not complied with Rule 26(e)(1), Ala. R. Civ. P., by supplementing their answers to interrogatories to disclose the identities of the witnesses. Mitchell, 406 So.2d at 350 (“[U]nder the circumstances, plaintiff had not knowingly concealed the identity of [the witness] in violation of Rule 26(e)[, Ala. R. Civ. P.]”, because the plaintiff “originally learned of [the witness’s] identity through answers to interrogatories propounded to defendants.”); Erwin, 294 Ala. at 652, 320 So.2d at 664 (holding that the trial court did not exceed its discretion in allowing the expert witness to testify, because there was “ample evidence to show that the defendants, faced with the possibility that the plaintiff would have a ‘live’ expert at trial, would also seek, as a matter of trial strategy, to obtain expert testimony”). Because the authority Harris relies on is inapposite, we conclude that Harris has not demonstrated that he was entitled to have the trial court, sua sponte, amend its scheduling order to alter the date for the disclosure of expert witnesses after Harris amended his complaint to add Dr. Solliday as a defendant.

Moreover, Erwin lends support to our holding today. In Erwin, this Court concluded that plaintiffs counsel could have pursued several ameliorative alternatives to counter the defense expert’s testimony; those alternatives included announcing the plaintiffs readiness to proceed to trial subject to the plaintiffs deposing the defense’s expert, requesting a continuance, taking the expert’s deposition while the trial was in recess, or requesting that the trial court adjourn for a sufficient time to allow the plaintiff to take the deposition. Erwin, 294 Ala. at 652, 320 So.2d at 664. Harris never availed himself of such ameliorative alternatives in the trial court. In particular, Harris never asked the trial court to amend its scheduling order to extend the deadline for disclosing the identity of expert witnesses. Because Harris failed to pursue other alternatives, he has not demonstrated that the trial court exceeded its discretion when it did not amend its scheduling order.

B. Harris’s motion for a continuance

Harris argues that the trial court exceeded its discretion in denying Harris’s Rule 56(f), Ala. R. Civ. P., motion to deny the summary-judgment motions or to continue the hearing on those motions. Rule 56(f), Ala. R. Civ. P., provides:

“Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

This Court has stated that “[t]he burden is on the nonmoving party to comply with Rule 56(f)[, Ala. R. Civ. P.], or to otherwise prove that the matter sought by discovery is or may be crucial to the nonmoving party’s case.” McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 162. In McCullar, this Court also noted that “a trial judge has broad discretion to grant or to deny a motion for a continuance.” 687 So.2d at 161 (citing Wood v. Benedictine Soc’y of Alabama, Inc., 530 So.2d 801, 805 (Ala.1988)).

Harris cites McGhee v. Martin, 892 So.2d 398, 401 (Ala.Civ.App.2004), for the proposition that a trial court should grant a Rule 56(f) motion “ ‘if the nonmoving party can demonstrate that the outstanding discovery is crucial to his case.’ ” (quoting Wright v. State, 757 So.2d 457, 459 (Ala.Civ.App.2000)). Harris contends that the trial court exceeded its discretion in denying his Rule 56(f) motion because, Harris says, his motion was accompanied by the supporting affidavit of his attorney indicating that Dr. Berryman’s testimony was necessary to oppose the summary-judgment motions. Hands also alleges that the supporting affidavit stated that Harris needed additional time to obtain Dr. Berryman’s testimony because Dr. Berryman had been out of town and was unable to complete his testimony by affidavit.

Although the affidavit of Harris’s counsel did state why Dr. Berryman’s testimony was necessary to oppose the summary-judgment motions, Harris has not demonstrated that the trial court exceeded its discretion in denying his Rule 56(f) motion. In Griffin v. American Bank, 628 So.2d 540 (Ala.1993), this Court addressed a similar situation. In that case, Griffin’s counsel moved the trial court for a Rule 56(f) continuance on the morning of the scheduled hearing on the bank’s summary-judgment motion. The Rule 56(f) motion specifically alleged that counsel had been unable to contact Griffín and that obtaining his evidence and affidavit was necessary “to defend his cause.” Griffin, 628 So.2d at 542. This Court held that the trial court did not exceed its discretion in denying the last-minute Rule 56(f) motion because Griffin’s attorney had “received a copy of the motion for summary judgment” nearly two weeks before the scheduled hearing and “the attorney had adequate notification of the hearing.” Griffin, 628 So.2d at 543. This Court further stated that “[a] typical situation for the application of Rule 56(f) is where the opposing party cannot present by affidavits facts essential to justify his opposition because knowledge of those facts is exclusively with, or largely under the control of, the moving party.” Griffin, 628 So.2d at 542.

Harris’s case is analogous to Griffin in several important respects. First, Griffin’s counsel moved the trial court for a continuance the morning of the hearing on the summary-judgment motion, contending that more time was required to obtain Griffin’s affidavit, which counsel said was essential to Griffin’s defense. Similarly, in this case, Harris moved the trial court for a Rule 56(f) continuance the day before the scheduled hearing on the summary-judgment motions and included an affidavit stating that Harris had been unable to procure the affidavit of a witness whose testimony was essential to his defense of the summary-judgment motions. Second, just as Griffin’s counsel had received copies of the summary-judgment motion and had received adequate notice of the hearing, Harris’s attorney received copies of the summary-judgment motions and had over four weeks’ notice of the scheduled hearing. Finally, as was the case in Griffin, Harris’s inability to obtain the affidavit testimony of Dr. Berryman is not a “typical situation” calling for the application of Rule 56(f). This is not a situation where Harris “cannot present by affidavits facts essential to justify his opposition because knowledge of those facts is exclusively with, or largely under the control of, the moving party.” Griffin, 628 So.2d at 542. Harris has not demonstrated that the trial court exceeded its discretion in not granting a continuance or denying the summary-judgment motions based on Harris’s Rule 56(f) motion.

C. The summary judgments

Harris argues that the trial court erred in entering summary judgments because, he says, the summary judgments were improper “sanctions” under Rule 37(b), Ala. R. Civ. P., for his failure to disclose his experts in accordance with the trial court’s scheduling order. Harris contends that the trial court could not sanction him because neither Huntsville Hospital nor Dr. Solliday moved the trial court to compel Harris to disclose the identity of any expert witnesses.

Huntsville Hospital and Dr. Solliday argue that the trial court did not sanction Harris for failing to disclose the identity of any expert witnesses. Instead, Huntsville Hospital and Dr. Solliday argue that the trial court entered the summary judgments in their favor because Harris failed to produce substantial evidence to demonstrate that a genuine issue of material fact exists. We agree.

Addressing first Harris’s argument that the summary judgments entered by the trial court were improperly imposed sanctions under Rule 37(b), Ala. R. Civ. P., we conclude from reviewing the trial court’s summary-judgment order that the trial court did not enter the summary judgments as a sanction. Rather, the trial court found that Harris had failed to present evidence demonstrating the existence of a genuine issue of material fact. The trial court did not consider the affidavits of Nurse Seales and Dr. Boyer because they were disclosed after the scheduling-order deadline for the disclosure of expert witnesses had passed and a day after the trial court had held a hearing on the summary-judgment motions. Specifically, in entering a summary judgment in favor of Dr. Solliday, the trial court found that there was no genuine issue of material fact because Harris “has presented no qualified expert testimony to support his claims that Dr. Solliday breached the applicable standard of care.” Likewise, the trial court found that a summary judgment in favor of Huntsville Hospital was appropriate because Harris “did not file any evidence in opposition to the motion until September 20, 2007, the day after the Court heard the motion and took it under submission.”

“In a medical-malpractice action, the plaintiff must present expert testimony establishing the appropriate standard of care, the doctor’s deviation from that standard, and ‘a proximate causal connection between the doctor’s act or omission constituting the breach and the injury sustained by the plaintiff.’ ” Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987, 988 (Ala.2002) (quoting Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988)). “If the movant in a medical-malpractice case makes a prima facie showing that there is no genuine issue of material fact, then, as in other civil cases, the burden shifts to the nonmovant to present substantial evidence creating such an issue.” Cain v. Howorth, 877 So.2d 566, 575 (Ala.2003) (citing Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 311 (Ala.2001)). To demonstrate that a genuine issue of material fact exists in a medical-malpractice action, a nonmovant must present “expert testimony in support of [his] claim.” Swendsen v. Gross, 530 So.2d 764, 768 (Ala.1988).

In this case, Dr. Solliday supported his summary-judgment motion with his affidavit, in which he testified that he did not breach the applicable standard of care in diagnosing and treating Harris. Huntsville Hospital supported its motion for a summary judgment with the affidavit of Nurse Killen, in which she stated that Huntsville Hospital had adhered to the standard of care in administering medical treatment to Harris. These two affidavits shifted the burden of proof to Harris, requiring him to produce substantial evidence in the form of expert testimony to support his claims that Huntsville Hospital and Dr. Solliday had breached the applicable standard of care in rendering medical care. See Carraway v. Kurtts, 987 So.2d 512, 515 (Ala.2007) (holding that Dr. Kurtts’s affidavit denying “that he breached the applicable standard of care” constituted “sufficient evidence to shift the burden of proof to [the plaintiff]”); S.A. v. Thomasville Hosp., 636 So.2d 1, 2 (Ala.1993) (“Dr. Prescott’s affidavit was accompanied by hospital records sufficient to shift the burden of proof to S.A. to offer evidence creating a genuine issue of material fact and indicating that the defendants were not entitled to a judgment as a matter of law.”).

The burden shifted to Harris to produce substantial evidence indicating that Huntsville Hospital and Dr. Solliday had breached the applicable standard of care in caring for Harris. Harris failed to present any evidence, let alone substantial evidence, indicating that Huntsville Hospital and Dr. Solliday had breached the standard of care, because Harris did not provide the affidavit testimony of Nurse Sea-les and Dr. Boyer until the day after the trial court held the hearing on the summary-judgment motions. Rule 56(c)(2), Ala. R. Civ. P., provides that “any statement or affidavit in opposition [to a motion for a summary judgment] shall be served at least two (2) days prior to the hearing.” Because Harris did not provide his expert affidavit testimony at least two days before the hearing, he did not carry his burden of providing substantial evidence creating a genuine issue of material fact that Huntsville Hospital and Dr. Solliday had breached the applicable standard of care. Therefore, the trial court properly entered summary judgments in favor of Huntsville Hospital and Dr. Solliday, and Harris’s argument that the trial court entered the summary judgments as a sanction under Rule 37(b), Ala. R. Civ. P., is without merit.

Conclusion

We conclude that Harris has failed to demonstrate that the trial court exceeded its discretion in not amending its scheduling order and in denying Harris’s Rule 56(f) motion. We also conclude that Harris has not demonstrated that the trial court erred in entering summary judgments in favor of Huntsville Hospital and Dr. Solliday. We, therefore, affirm the trial court’s judgments.

AFFIRMED.

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

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

      . Delirium tremens is a severe form of alcohol withdrawal that can cause acute physiological and psychological reactions. See Dor-land's Illustrated Medical Dictionary 469 (29th ed.2000).

      . Rule 56(f), Ala. R. Civ. P., provides:
      "Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

      . The parties do not state and the record does not indicate whether Nurse Seales was employed by Huntsville Hospital. Harris apparently presented Nurse Seales's affidavit in order to controvert the affidavit testimony of Nurse Killen.

      . Rule 10(d), Ala. R.App. P., provides, in pertinent part:
      "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection."

      . Rule 26(e)(1), Ala. R. Civ. P., provides, in pertinent part:

        “A party is under a duty seasonably to supplement the response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the witness's testimony.”

      . The remaining cases cited by Harris are likewise inapposite. See Edwards v. Valentine, 926 So.2d 315, 330 (Ala.2005) (holding that the trial court did not exceed its discretion in allowing the plaintiff's expert witness to testify about Valentine’s loss of earning capacity when that portion of the testimony did not differ from the conclusions in the expert witness's report that had been disclosed to the defendants months before trial); Coastal Lumber Co. v. Johnson, 669 So.2d 803, 811 (Ala.1995) (''[T]he admission of testimony from witnesses whose identity may not have been disclosed in accordance with properly conducted pretrial discovery procedure is within the trial court's sound discretion.”); Cone Builders, Inc. v. Kulesus, 585 So.2d 1284 (Ala.1991) (holding that the trial judge did not exceed his discretion in admitting the testimony of the plaintiff’s expert witness when Cone Builders failed to adequately use the discovery process to discover the nature of the expert's testimony).

      . Rule 37(b)(2), Ala. R. Civ. P., provides, in pertinent part:
      “If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just ...."


source: Caselaw Access Project

author: BOLIN, Justice. LYONS, Justice

license: Public Domain

text:
    Ex parte AUBURN UNIVERSITY, Dr. Jay Gogue, and Dr. Gaines Smith. (In re Brenda M. Allen et al. v. Auburn University et al.).
    1070174.
    Supreme Court of Alabama.
    Oct. 3, 2008.

      David R. Boyd, Dorman Walker, and Kelly F. Pate of Balch & Bingham, LLP, Montgomery; and Lee F. Armstrong, gen. counsel, Auburn University, for petitioners.
    Jim L. DeBardelaben, Montgomery; and James B. Sprayberry, Auburn, for respondents.
   BOLIN, Justice.

Auburn University, its president Dr. Jay Gogue, and Dr. Gaines Smith (hereinafter collectively referred to as “the petitioners”) petition this Court for a writ of mandamus directing the Lee Circuit Court to enter a summary judgment in their favor based on sovereign immunity and State-agent immunity as to the claims asserted against them by Brenda M. Allen, Austin K. Hagan, Charles C. Mitchell, Jr., James L. Novak, J. Walter Prevatt, Eugene H. Simpson III, and James 0. Donald (hereinafter collectively referred to as “the plaintiffs”), all tenured professors employed by Auburn University (“the University”).

Facts and Procedural History

The plaintiffs are faculty members in both the College of Agriculture and the School of Forestry and Wildlife Sciences. Before the 1987-1988 academic year, the plaintiffs were designated as federal Schedule A appointees employed by the University-affiliated Alabama Cooperative Extension Systems (“ACES”) as extension specialists. ACES delivers research findings/information of the various land-grant universities to Alabama’s farmers. As Schedule A appointees, the plaintiffs were eligible for certain federal benefits, including participation in the Federal Civil Service Retirement System. During the 1987-1988 academic year, the University’s Board of Trustees approved a reorganization of the University’s administrative structure. As part of this reorganization, the plaintiffs were merged into the College of Agriculture and the School of Forestry and Wildlife Sciences as faculty members and were given rank and tenure. Each plaintiff was given the title “Extension Specialist & Professor” and was no longer considered an ACES employee. However, the plaintiffs, as Schedule A appointees, remained eligible for federal benefits, including the participation in the Federal Civil Service Retirement System.

Before 1997, faculty in the University’s College of Agriculture and School of Forestry and Wildlife Sciences were hired on 12-month appointments. Under the 12-month appointments, the faculty members worked for the University year-round. Beginning in 1997, the University began hiring faculty in the University’s College of Agriculture and School of Forestry and Wildlife Sciences on nine-month appointments. The University also allowed faculty members who had been hired before 1997 to convert from 12-month appointments to 9-month appointments. Chapter 7, § B.l., of the University’s Faculty Handbook provides:

“Faculty participation in programs and projects administered or conducted by the University and supported by extramural contracts, grants, or other types of agreements shall be considered a part of the faculty member’s responsibilities to the University. During the time that a faculty member is under contract to the University, be it on a nine-month or a 12-month appointment, the individual is expected to fulfill his or her total responsibilities. Therefore, if a faculty member is participating in an extramural program or project within the University, whether it is in his or her own or a different department or division of the University, an appropriate part of the faculty member’s salary shall be provided by the program or project budget. Under these circumstances, no increase in the faculty member’s base compensation shall be permitted.”

The import of this policy is that a faculty member on a nine-month appointment is free to supplement his or her salary by pursuing other opportunities, such as research grants through extramural funding, during the three months of the year that he or she is not obligated to the University. A faculty member on a 12-month appointment is obligated to the University on a year-round basis and is unable to supplement his or her base salaries through extramural funding because participation in externally funded programs during the period of the faculty member’s appointment, whether it be 9 months or 12 months, is considered part of the faculty member’s responsibility to the University and a portion of that faculty member’s salary is already provided for by the externally funded program.

When a faculty member converts from a 12-month appointment to a 9-month appointment, that faculty member agrees to a permanent reduction in his or her base salary to approximately 91% of his or her 12-month salary. Faculty members who were converting from 12-month appointments to 9-month appointments were guaranteed by the University two summer salaries at 25% of the 9-month base salary until extramural funding could be obtained. Once the University had met its commitment as to the summer salaries, it was the faculty member’s responsibility to obtain extramural funding to supplement his or her nine-month base salary, and there was no guarantee that the faculty member could obtain the extramural funding.

Dr. Smith, the interim director of ACES during the conversion, contacted the United States Department of Agriculture (“the USDA”) in June 2002, to inquire as to the possibility of Schedule A appointees converting from 12-month appointments to 9-month appointments. The USDA responded that Schedule A appointees were not eligible for nine-month appointments, stating that Schedule A appointees must be “employed [by the University] under a permanent year round arrangement with Extension functions being performed at least 50% of the time throughout the entire year.”

Section 7220 of the Farm Security and Rural Investment Act of 2002 terminated all Schedule A appointments on January 31, 2003. However, the plaintiffs, as former Schedule A appointees, remained eligible for participation in the Federal Civil Service Retirement System under the Farm Security and Rural Investment Act if the plaintiffs remained employed by the University on a permanent year-round basis with at least 50% of their employment time being devoted to extension functions. ACES is required to certify annually to the USDA that the former Schedule A appointees are meeting the USDA’s requirements in order to maintain their eligibility for the Federal Civil Service Retirement. These former Schedule A appointees were also permitted to begin participating in the State of Alabama Retirement Systems at a rate of 50% of their annual salaries. The vast majority of the University’s faculty, who are not former Schedule A appointees, are not eligible to participate in the Federal Civil Service Retirement System.

In April 2005, the plaintiffs expressed to Dr. Smith their discontent with being denied the opportunity to participate in the nine-month conversion process afforded the other faculty members in their departments. The plaintiffs had determined that their being denied the opportunity to participate in the nine-month conversion process had resulted in their annual compensation levels falling below those of their colleagues who were not former Schedule A appointees, who had been allowed to convert to nine-month appointments. The plaintiffs requested an increase of 13.75% to 21.13% in their base salary in order, they said, to create equity with the salaries of their colleagues who, as nine-month appointees, were allowed to enhance them salaries through extramural sources during the summer months.

Dr. Smith responded to the plaintiffs by letter in June 2005, expressly informing the plaintiffs that conversion from 12-month appointments to nine-month appointments was prohibited by the federal regulations of the USDA. Dr. Smith also denied the plaintiffs’ requested salary increases as unjustified, explaining:

“There are two additional points to consider. First, all faculty who have elected to convert their salaries at 91% or less have opted to have their base salary reduced permanently. While summer salary, whether guaranteed or funded from funds raised by the faculty member, increases compensation, it does not increase the base salary for these individuals.
“Secondly, after summer funding commitments are met, then the faculty member is responsible for raising funds for additional compensation. There is a risk for the individual that the funds will not be available. By electing to shift to a nine-month appointment, the individual has assumed the risk.
“Therefore, based on these points relating to the conversions, the requested increase in base salary for a continuing 12-month appointment would place your benefits substantially above others in the College. Further, the average salary of your group making this request is 120% of the southern region average for Extension specialists. Hence, your requested salary adjustments are not approved.”

Although Dr. Smith denied the plaintiffs’ request to increase their salaries, he did offer the plaintiffs the following option:

“There is, however, another straightforward process for removing the circumstances that disallows you to be on a nine-month appointment; that is, your former Schedule A federal appointment that requires a 12-month appointment can be ended through retirement or job abolishment. As the designated administrator responsible for the management of federal Schedule A appointees, I have the authority to abolish your current position making you eligible to receive an immediate federal retirement annuity and free to negotiate a nine-month appointment as others in the College of Agriculture have done.
“For those eligible, the same can be accomplished through regular retirement.
“Let me know if there is any interest in either of these options. We can initiate the process immediately.”

The plaintiffs rejected this option, apparently because they did not want to forgo their federal benefits.

In sum, the plaintiffs, as former Schedule A appointees, are prohibited by federal regulations from converting from 12-month appointments to 9-month appointments; if they converted to 9-month appointments, they would lose their eligibility to participate in the Federal Civil Service Retirement System. University policy prohibits the plaintiffs, as 12-month appointees, from supplementing their base salaries through participation in externally funded programs.

On January 31, 2006, the plaintiffs sued the University; its president, Dr. Ed Richardson, in his official capacity; and Dr. Smith, in both his official and individual capacities, alleging against all the defendants a denial of them equal protection as established by the Constitution of Alabama of 1901 and age discrimination under the Alabama Age Discrimination in Employment Act, § 25-1-20 et seq., Ala.Code 1975. The petitioners answered the eom-plaint on March 13, 2006, asserting, among other things, that they were immune from suit based on the doctrines of sovereign immunity and State-agent immunity and that the complaint failed to state a claim upon which relief could be granted.

The plaintiffs amended them complaint on August 22, 2006, to assert a fraud claim against the University, the president of the University (now Dr. Gogue), in his official capacity, and Dr. Smith, in his official and individual capacities. The plaintiffs also alleged that Dr. Smith had acted beyond the scope of his authority in denying the plaintiffs’ request for increases in their base salaries. The petitioners answered the amended complaint on November 8, 2006, again asserting the doctrines of sovereign immunity and State-agent immunity. The petitioners also asserted that the amended complaint failed to state a claim upon which relief could be granted.

Both sides moved the trial court for summary judgments and filed briefs in support of their respective motions. On September 14, 2007, the trial court entered an order denying the summary-judgment motions and expressly determining: (1) that the “issues involving sovereign immunity” would be decided during the course of the trial and (2) that an issue of fact existed as to whether Dr. Smith had acted beyond his authority, which would have removed him from the protection of State-agent immunity as to the plaintiffs’ claims asserted against him in his individual capacity. This petition followed.

Standard of Revieiv

This Court has stated: -

“ ‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim, of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala.1996)....
“ ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“ ‘An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).’ ”

Ex parte Turner, 840 So.2d 132, 135 (Ala.2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner demonstrates: “ ‘(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 Nall, 879 So.2d 541, 543 (Ala.2003) (quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001)).

Discussion

The petitioners argue that the trial court erred in choosing to address them sovereign-immunity defenses at trial rather than addressing them at the summary-judgment stage of the litigation. “ ‘One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.’ ” Ryan v. Hayes, 831 So.2d 21, 31 (Ala.2002) (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Additionally, this Court has stated:

“ ‘Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Ibid. As a result, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).’ ”

Ryan, 831 So.2d at 31-32 (quoting Saucier v. Katz, 533 U.S. 194, 199-202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

The trial court reasoned that because the parties had waived the right to a jury trial in this case, in favor of a bench trial, a “great deal of costs and expense” associated with a jury trial would be alleviated. However, by delaying until trial its determination of the sovereign-immunity defenses asserted by the petitioners, the trial court has effectively denied the petitioners their privilege of not being subjected to suit and their right to not stand trial and face the burdens of litigation should their immunity defenses prove dispositive. Ryan, supra. Accordingly, we conclude that the trial court erred in failing to address the sovereign-immunity defenses at the summary-judgment stage of the litigation.

The petitioners next argue that the trial court erred in finding that a genuine issue of fact existed as to whether Dr. Smith had acted fraudulently or beyond his authority thereby removing him from the protection of State-agent immunity.

In Ex parte Cranman, 792 So.2d 392 (Ala.2000), a plurality of this Court restated the test for determining when a State employee 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
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or 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.”

792 So.2d at 405. Although Cranman was a plurality decision, the restatement of law as it pertains to State-agent immunity set forth in Cranman was subsequently adopted by this Court’s decisions in Ex parte Rizk, 791 So.2d 911 (Ala.2000), and Ex parte Butts, 775 So.2d 173 (Ala.2000).

Additionally, this Court has stated:

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

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

Dr. Smith, as the interim director of ACES during the period faculty members were converting from 12-month appointments to 9-month appointments, exercised his judgment in the administration of that agency, thereby establishing that he was engaged in a function that would entitle him to State-agent immunity. Ex parte Cranman, supra. Therefore, the burden then shifted to the plaintiffs to show that Dr. Smith acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority in order to remove Dr. Smith from the protection of State-agent immunity. Ex parte Estate of Reynolds, supra.

The plaintiffs alleged in their complaint that Dr. Smith fraudulently represented to them that federal regulations prohibited the plaintiffs, as former Schedule A appointees, from supplementing them base salaries with externally funded programs when, in fact, it was University policy, not federal regulations, that prohibited the plaintiffs from supplementing their salaries as 12-month appointees. Assuming that Dr. Smith did misrepresent to the plaintiffs that federal policy prevented them from supplementing their salaries, we nevertheless conclude that Dr. Smith’s conduct did not fall within the willful, malicious, and fraudulent exception to State-agent immunity. The plaintiff in Segrest v. Lewis, 907 So.2d 452 (Ala.Civ.App.2005), was employed with the Retirement Systems of Alabama (“the RSA”) as an administrative support assistant I. During her probationary period, the plaintiff interviewed for a similar position with the State Board of Pardons and Paroles (“the Parole Board”). On March 18, 2002, the Parole Board decided to employ the plaintiff. On March 20, 2002, William Segrest, then the executive director of the Parole Board, sent the plaintiff a letter informing her that she had been approved for employment with the Parole Board and that she was to report to work on April 8, 2002, to begin her employment. However, the State Personnel Department did not approve the plaintiffs transfer from the RSA to the Parole Board.

In reliance upon the letter from Segrest, the plaintiff, on March 22, 2002, sent a letter to the RSA stating that she would be leaving the RSA on April 5, 2002, to assume a position with the Parole Board. However, because the State Personnel Department had not approved the plaintiffs transfer to the Parole Board, she requested that she be allowed to retract her resignation from her employment with the RSA. The RSA informed the plaintiff on April 2, 2002, that her request to retract her resignation could not be approved because her resignation had been accepted and a “Certification of Candidates” had been issued to fill her position. Segrest, supra.

On May 3, 2002, the plaintiff sued Seg-rest, among others, seeking to enforce Segrest’s “commitment to employ” her. She also alleged fraudulent misrepresentation and sought backpay and benefits. On December 5, 2003, the trial court entered a judgment in favor of the plaintiff, and Seg-rest appealed. Segrest, supra.

The plaintiff argued on appeal that Seg-rest’s conduct in communicating the decision to employ her fell within the exception to State-agent immunity that applies when a 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 at 405. In reversing the decision of the trial court, the Court of Civil Appeals determined that the facts of the case were such that Segrest was protected from liability by the doctrine of State-agent immunity. The court stated:

“We do not read this provision from Ex parte Cranman [, 792 So.2d 392 (Ala.2000),] and Ex parte Butts [, 775 So.2d 173, 178 (Ala.2000) ], nor do we read any of the progeny of those cases, as holding that an innocent misrepresentation by a state agent falls outside the protection that for so long has been provided by our law to state officials and employees while acting within reason and in good faith in the discharge of their responsibilities to the public. If something more were not required in order for conduct to fall within the exception relied upon by [the plaintiff], that exception would ‘swallow’ the whole of the general rule of immunity itself. Any misrepresentation is beyond the authority of a state agent. Indeed, any misstep by any state employee or other state agent that wrongs another can be said to be beyond his or her authority and/or committed under a mistaken interpretation of the law. Construing the exception at issue in the manner urged by [the plaintiff] would mean that missteps by a state agent, no matter how innocently or reasonably taken, would in every case pull the agent out from under the umbrella of state-agent immunity provided by Ex parte Cranman and Ex parte Butts and supported by the results reached in decades of decisions that preceded those cases. See Howard v. City of Atmore, 887 So.2d 201, 206 (Ala.2003) (Cranman is a ‘restatement of the law of immunity, not a statute ’). Our conclusion in this regard is supported by the fact that the word ‘fraudulently’ appears in the exception articulated in Ex parte Cranman and Ex parte Butts sandwiched between the terms ‘willfully, maliciously,’ and ‘in bad faith. Cf. King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir.1941)) (‘ “Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used....”’).
“Our conclusion in this regard also is consistent with the manner in which our appellate courts have applied the principles of immunity to state agents both before and after Ex parte Cranman and Ex parte Butts. Com.pare, e.g., Byrd v. Lamar, 846 So.2d 334 (Ala.2002) (holding that acts of promissory fraud — which require proof that the defendants intended not to perform promised acts— were not protected by state-agent immunity); Tuscaloosa County v. Henderson, 699 So.2d 1274, 1277 (Ala.Civ.App.1997) (holding that state-agent immunity was not available to a county employee who sued the plaintiff and had him arrested for operating without a business license because the evidence showed that, in so doing, the defendant acted with ‘malice, willfullness, or ... so beyond his authority that sovereign immunity would not apply’ (footnote omitted)); Ex parte Tuscaloosa County, 796 So.2d 1100, 1106-07 (Ala.2000) (holding that a state agent was entitled to immunity notwithstanding the fact that there was sufficient evidence for a jury to return a verdict for malicious prosecution, because malice for purposes of malicious prosecution can be based upon a lack of probable cause but such ‘malice in law’ is not enough to satisfy the Ex parte Cranman exception for acts committed ‘willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law’); Bayles v. Marriott, 816 So.2d 38 (Ala.Civ.App.2001).”

Segrest, 907 So.2d at 456-57.

In this case, Dr. Smith allegedly represented to the plaintiffs that federal regulations prohibited the plaintiffs from supplementing their 12-month salaries with externally funded programs, when in fact it was actually University policy that prohibited the plaintiffs from supplementing their salaries. Like the State agent in Segrest, Dr. Smith did no more than misspeak when he allegedly communicated to the plaintiffs that federal regulations prohibited them from supplementing their 12-month salaries. In fact, both the federal regulations and University policy acted together to prevent the plaintiffs from supplementing their salaries with externally funded programs. University policy prohibits 12-month appointees from supplementing their salaries, while the federal regulations prohibit the plaintiffs, as Schedule A appointees, from converting to nine-month appointments so as to be allowed to supplement their salaries. Dr. Smith simply miscommunicated to the plaintiffs the source of the prohibition against their supplementing their salaries. He did not miscommunicate to the plaintiffs that they were prohibited from supplementing their salaries. Nothing in the record before this Court indicates that Dr. Smith acted “willfully, maliciously, fraudulently, or in bad faith” so as to remove him from the umbrella of protection afforded him by State-agent immunity.

Although not entirely clear, it appears that the plaintiffs argued that Dr. Smith had acted beyond his authority in his June 2005 letter by offering, even though he allegedly lacked the authority to do so, to abolish “[their] current position making [the plaintiffs] eligible to receive an immediate federal retirement annuity and free to negotiate a nine-month appointment.” The plaintiffs submitted the affidavit of Dr. James L. Smith, the former associate director for human resources for ACES, who testified that the plaintiffs were not ACES employees and that ACES had no authority over them.

The plaintiffs’ contention that Dr. Smith acted beyond his authority in stating that he had the authority to abolish them positions fails for the same reasons that their contention that he acted fraudulently in communicating to them that federal regulations, and not University policy, prohibited them from supplementing their salaries. Assuming Dr. Smith did not have the actual authority to abolish the plaintiffs’ positions, thus making them eligible to negotiate nine-month appointments, nothing in the record indicates that the plaintiffs’ positions could not in fact be abolished by the person with the actual authority to do so, thereby making the plaintiffs eligible to negotiate nine-month appointments. In other words, Dr. Smith may have miscom-municated to the plaintiffs as to who actually had the authority to abolish their positions, but he did not miscommunicate when he stated that their positions could be abolished, thus making them eligible for nine-month appointments. Further, Dr. Smith also correctly informed the plaintiffs that they could become eligible for 9-month appointments if they simply resigned their 12-month positions. The plaintiffs offer nothing in contradiction to this representation by Dr. Smith. Nothing in the record indicates that Dr. Smith was acting in bad faith when he miscommuni-cated to the plaintiffs that he had the authority to abolish their positions in order to make them eligible to negotiate nine-month appointments.

Accordingly, we conclude that Dr. Smith is entitled to State-agent immunity as to the claims asserted against him in his individual capacity by the plaintiffs in their amended complaint.

We grant the petition for a writ of mandamus and direct the trial court to address the petitioners’ sovereign-immunity claims and to enter a summary judgment in favor of Dr. Smith as to the claims asserted against him in his individual capacity in the plaintiffs’ amended complaint.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SEE, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

LYONS, J., concurs in the result.

LYONS, Justice

(concurring in the result).

The complaint, as initially filed, contained two counts. Count one sought to enjoin the defendants from discriminating against the plaintiffs on the basis of age, as well as backpay, plus costs and reasonable attorney fees, pursuant to § 25-1-22, Ala. Code 1975. Count two sought damages for a denial of equal protection under the Alabama Constitution of 1901. An amended complaint added count three, seeking damages for intentional and willful misrepresentation of material facts and bad faith, and count four, seeking damages for action by Dr. Gaines Smith allegedly in excess of his authority.

The defendants moved for a summary judgment based upon 1) sovereign immunity, 2) the unavailability of relief against the State officials in their individual capacities on the age-discrimination claim because neither individual is the employer of the plaintiffs, 8) the absence of any provision for equal protection of the laws under the Alabama Constitution of 1901, and 4) failure of the fraud and bad-faith count (count three) to state a claim upon which relief can be granted. After receiving briefs and hearing arguments, the trial court entered what is best described as an oblique order that, among other things, stated: “[T]he remaining issue before the Court was whether or not Dr. Gaines Smith should be granted immunity.” The trial court concluded that there was a genuine issue of material fact as to whether Dr. Smith had acted beyond his authority, justifying imposing individual liability under the exception recognized in Ex parte Cranman, 792 So.2d 392 (Ala.2000), for conduct beyond a State agent’s authority. Specifically, the trial court concluded that there was a genuine issue of material fact as to whether Dr. Smith “exceeded his authority by misstating his actual authority.” The trial court found that “the Defendants’ motion for summary judgment is due to be denied on this ground.” (Emphasis added.) The trial court then concluded: “In our case at bar, the issue of sovereign immunity does not need to be addressed prior to further litigation, and the case may go forward with a. discussion of the issue of immunity during the course of the bench trial.” In conclusion, the trial court stated: “[Sjince all issues will be heard in a bench trial, making a determination as to sovereign immunity can best be decided by hearing all of the testimony regarding the subject instead of bifurcating the issues.” (Emphasis added.)

The trial court did not specifically refer to the necessity of further proceedings with respect to the merits of the age-discrimination claim, the equal-protection claim, or the fraud and bad-faith count. The propriety of summary judgment as to the merits of those claims or, indeed, whether the trial court indirectly disposed of them by failing to refer to them, is not before us on this proceeding, which is limited solely to the availability of the defense of immunity.

Evidence as to the personal liability of Dr. Smith by reason of his action in excess of his authority is the sole basis for the trial court’s recognition of the existence of a genuine issue of material fact as to the availability to Dr. Smith of the defense of State-agent immunity. Only count four of the amended complaint refers to action in excess of authority. However, the trial court’s reference to Dr. Smith’s “misstating his actual authority” could also be relevant to count three of the complaint, charging fraud and bad faith. Thus, the trial court’s order can be said to sweep in favor of triable issues as to the availability of State-agent immunity as to both counts three and four. Whether the trial court’s order should also be correctly interpreted as recognizing or rejecting triable' issues as to immunity with respect to counts one (age discrimination) and two (equal protection) simply cannot be determined at this juncture. I am not willing to address an issue that mere speculation might suggest is properly before us. Thus, the sole issue before this Court at this stage of the proceeding coming to us by a petition for a writ of mandamus seeking enforcement of the defense of immunity is whether the trial court erred in not entering a summary judgment in favor of the defendants as to counts three and four of the amended complaint.

The controversy centers around Dr. Smith’s having described his authority in a letter to the plaintiffs in terms that erroneously attributed to him greater authority than he in fact possessed. We recognize an exception to State-agent immunity “when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” See Ex parte Cranman, 792 So.2d at 405. The plaintiffs argue before us that they are entitled to the exception from immunity described as “a mistaken interpretation of the law.” Respondents’ brief, p. 14. However, count four of the complaint does not allege a mistaken interpretation of the law; instead, as previously noted, it charges that Dr. Smith acted beyond his authority. Confining review to that issue, in Finnell v. Pitts, 222 Ala. 290, 293, 132 So. 2, 4 (1930), this Court stated: “If in the promotion of the state’s business its officers without authority of law apply private property to the state’s enterprises, they are guilty of the same nature of wrong, as if they were acting as agents of a private corporation.” We lose the sense of the exception if we take it beyond the context of intentional conduct, such as the taking of property as was the case in Pitts, one of the early cases in which it was recognized. See also Elmore v. Fields, 153 Ala. 345, 351, 45 So. 66, 67 (1907) (“Here, we have an agent charged with a tort [trespass], setting up by plea that he was acting for and in behalf of the state, and the authorities hold that he has no authority to act for the state in the commission of a tort.”). The foundation of the trial court’s denial of immunity — the inaccurate description of Dr. Smith’s authority — does not in and of itself constitute a freestanding intentional tort to which the exception from immunity based on action beyond a State agent’s authority can apply.

With respect to the allegation of fraud in count three of the amended complaint, I agree with the conclusion in the main opinion that an innocent misrepresentation does not fall within an exception to State-agent immunity. Therefore, the petition for a writ of mandamus can be denied if a question of fact exists as to whether Dr. Smith acted willfully in misstating his authority. The petitioners (the defendants in the trial court) did not provide a complete record of the responses filed by the plaintiffs in opposition to their summary-judgment motion. In Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 232 n. 2 (Ala.2004), this Court explained the role of the parties in assembling a record in a mandamus proceeding:

“The materials reviewed by this Court in considering a petition for writ of mandamus consist of exhibits provided by the parties:
“ ‘[A] petitioner for a writ of mandamus is obliged to provide with the petition “copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.” Rule 21(a), Ala. R.App. P. In the event the petition is not denied, the respondent is directed to file an answer to the petition, which provides the respondent with an “opportunity to supplement the ‘record’ by attaching exhibits of its own....” ’
“Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003) (quoting Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala.1988)).”

In their answer to the petition the plaintiffs attach numerous affidavits and documents as exhibits, but they fail to attach any responses to the summary-judgment motion. Of course, such responses do exist, as some of the materials attached to the petition respond to them. The plaintiffs do not argue in their brief in opposition to the petition that there is a genuine issue of material fact as to a state of mind consistent with intentional misrepresentations on the part of Dr. Smith. Nothing in the trial court’s order suggests the existence of a genuine issue of material fact as to Dr. Smith’s state of mind.

I would grant the petition and order the trial court to hold further proceedings, before holding any bench trial, with respect to the defendants’ motion for a summary judgment, with such proceedings to culminate in an order either entering or denying a summary judgment as to each count of the complaint and with such further proceedings to be governed by the conclusions expressed herein with respect to the absence of any impediment to State-agent immunity arising from Dr. Smith’s having exceeded his authority or misstated his authority.

      . While this case was pending below, Dr. Gogue was substituted for Dr. Ed Richardson, the former president of Auburn University. See Rule 25(d)(1), Ala. R. Civ. P.

      . See note 1.

      . The plaintiffs' motion for a summary judgment and supportive briefs have not been included in the materials filed in opposition to the petitioners’ petition for a writ of mandamus.

      . The plaintiffs do not include in the argument section of their brief a description of how Dr. Smith acted fraudulently or beyond the scope of his authority so as to remove him from the protection afforded him by State-agent immunity. Instead, they simply refer to Dr. Smith’s conduct as "acting under a mistaken interpretation of the law” with almost no development of this argument. Therefore, it could be assumed that the plaintiffs have abandoned their contentions on appeal as they relate to Dr. Smith’s claim of State-agent immunity. However, because the trial court found that a genuine issue of material fact existed as to whether Dr. Smith had acted fraudulently and/or beyond his authority and, therefore, whether he was entitled to State-agent immunity, we will address the issue whether Dr. Smith was entitled to State-agent immunity.

      . In June 2005, Dr. Smith responded by letter to the plaintiffs' request for an increase in their base salaries allegedly to create equity with the nine-month appointees. In that letter Dr. Smith simply stated that federal policy prohibited the plaintiffs from converting from 12-month appointments to 9-month appointments and still remain eligible for their Federal Civil Service Retirement. He did not state that federal policy prohibited the plaintiffs from supplementing their 12-month salaries through externally funded programs. Dr. Smith later testified in his deposition and affidavit that it was the University's policy that prohibited the plaintiffs from enhancing their 12-month salaries with externally funded programs.