author: MURDOCK, Justice. MOORE, Chief Justice

text:
    Ex parte CITY OF BESSEMER et al. (In re Louise Alexander and White, Arnold & Dowd, P.C. v. City of Bessemer et al.).
    1101455.
    Supreme Court of Alabama.
    Oct. 18, 2013.

      J. Bentley Owens III, Philip G. Piggott, Alfred H. Perkins, Jr., G. Matthew Keenan, and Benjamin T. Presley of Starnes Davis Florie LLP, Birmingham, for petitioners.
    U.W. Clemon and William M. Bowen, Jr., of White Arnold & Dowd, P.C., Birmingham, for respondents.
   MURDOCK, Justice.

The City of Bessemer (“the City”) and Bessemer City Councillors Jimmy Stephens, Dorothy Davidson, Sarah W. Bel-cher, and Albert Soles (“the City council-lors”) petition this Court for a writ of mandamus directing the Jefferson Circuit Court to dismiss a claim alleging bad-faith failure to pay legal bills and costs stemming from a complaint filed by former City Councillor Louise Alexander and the law firm of White, Arnold & Dowd, P.C. (“WAD”). The City councillors also petition this Court to dismiss a racial-discrimination claim brought under 42 U.S.C. § 1983 and asserted in the same complaint. We grant in part and deny in part the petition for a writ of mandamus.

I. Facts and Procedural History

The plaintiffs allege that in 2006 and 2007 Alexander received three donations from a Tuscaloosa real-estate developer, which were properly used for charitable projects in Alexander’s district. During this same period, according to the complaint, two other City councillors, Davidson and Belcher, received similar donations from the same individual for charitable projects in their respective districts. According to the complaint, however, beginning in the early spring of 2007, plaintiff Alexander opposed several projects which the donor had proposed to the City and, therefore, the donor “vowed to retaliate against ... Alexander.” The complaint alleges that, because of the donor’s complaint to then Attorney General Troy King, a five-count indictment against Alexander was filed in August 2008 alleging violations of the Alabama Ethics Law, specifically Ala.Code 1975, § 36-25-5(a). That indictment essentially charged Alexander with using her office to solicit funds and then using those funds for her personal gain. The complaint asserts that similar charges were not brought against City Councillors Davidson and Belcher.

WAD represented Alexander during her criminal proceedings. Alexander was ultimately acquitted.

Alexander and WAD allege that the City has a “policy and practice” of paying legal fees of city officials charged with crimes relating to the fulfilment of their official duties if and when they are found to be not guilty of those crimes. They assert that the most recent example of the City following this practice was the case of then City Councillor Betty Woods, who was charged with six counts of violating the Aabama Ethics Law, by using her office for personal gain and by soliciting things of value. According to Aexander and WAD’s complaint, in 2006, after Woods was found not guilty of the charges against her, the City paid her legal fees.

WAD and Aexander allege that Aexan-der’s lead counsel, U.W. demon, appeared before the Bessemer City Council (“the City Council”) on May 26, 2009. Clemon presented the City Council with a bill for legal services rendered by WAD to date on Aexander’s behalf and requested that the City pay that bill. According to Aexander and WAD, in response to the presentation of the partial bill and request for its payment, the City attorney “represented that it was the policy and practice of the City to pay the legal expenses of a city official, but only after the official had been cleared of the charges.” Aexander and WAD further allege that, in reliance upon the City attorney’s representation and the fact of the City’s compliance with that policy and practice in the 2006 case involving Woods, WAD continued its work representing A-exander and deferred payments of its bills until such time as a successful outcome of the case might be achieved for Aexander. Aexander and WAD allege that the meeting concluded with all the City councillors aware of the “understanding that if and when Aexander was found not guilty, her counsel would be paid.”

Approximately eight months later, Aex-ander’s case proceeded to trial, and the jury acquitted Aexander on all charges.

On February 12, 2010, WAD submitted to the City Council a legal bill in the amount of $867,593.91. Councillor Stephens requested an advisory opinion from the general counsel of the Aabama Ethics Commission (“the Ethics Commission”) regarding whether the City could pay Aex-ander’s legal expenses. On April 7, 2010, the Ethics Commission issued an opinion in which it took the position that the City was legally prohibited from paying Aexan-der’s legal expenses. See Aabama Ethics Commission Advisory Op. No. 2010-04. According to the minutes of the February 16, 2010, meeting of the City Council, Councillor Jesse Matthews “made a motion to pay the amount of $367,593.51 to the Law office of White Anold & Dowd, P.C. on behalf of Councillor Louise Aexander. The motion did not receive a second and therefore the motion died.”

On February 18, 2010, an attorney with WAD sent the City attorney a revised bill that included time that had been inadvertently omitted from the previous bill, bringing the total amount of Alexander’s legal expenses to $373,348.91. At a City Council meeting on February 23, 2010, Councillor Matthews introduced a copy of an Ethics Commission advisory opinion dated March 5, 1997, which concluded that a public official charged with violating the Ethics Law and who was cleared of wrongdoing could not obtain reimbursement for legal expenses from the State because no proper corporate interest was involved. See Alabama Ethics Commission Advisory Op. No. 97-15. After summarizing the finding of the advisory opinion, Councillor Matthews stated that the “the payment of attorney fees will possibly have to be resolved in court.” According to the plaintiffs’ first amended complaint, the resolution to pay Alexander’s legal bill was on the agenda again for the City Council meeting held on March 2, 2010, but the resolution died for lack of a vote.

On March 16, 2010, Alexander and WAD sued the City and the City councillors, individually and in their official capacities, in the Jefferson Circuit Court, alleging failure to pay Alexander’s legal expenses. On April 15, 2010, the City and the City councillors filed motions to dismiss the complaint. Alexander and WAD subsequently filed a first amended complaint in which they asserted the following claims: (1) arbitrary and capricious conduct based on the defendants’ alleged breach of a legal duty to pay Alexander’s legal bills arising from Art. I, § 2.1, Bessemer City Ordinances; (2) bad-faith and wanton failure to pay legal bills “with full knowledge that [Alexander’s] case meets all of the requirements of City of Montgomery v. Collins, 355 So.2d 1111 (Ala.1978)”; (3) failure to pay legal bills based on a mistaken interpretation of law through reliance on an erroneous advisory opinion of the Ethics Commission; (4) bad faith and unjust enrichment; (5) breach of an implied contract based on an alleged policy of the City that “when a councilor solicits and receives private funds for a project in his/ her district, and the donated funds are paid into the Department of Revenue, the councilperson will be reimbursed for the expenses of the project up to the amount of the donated funds”; (6) fraudulent conduct based on the City councillors’ telling Alexander’s counsel that WAD’s bill would be paid once the criminal case was over if Alexander was found not guilty; (7) a judgment declaring that the defendants willfully violated Art. I, § 2.1, Bessemer City Ordinances; and (8) various claims against fictitiously named defendants.

The City and the City councillors filed motions to dismiss the first amended complaint. On February 15, 2011, the trial court entered an order dismissing all the plaintiffs’ claims except counts two and five against the City. With respect to count two, the trial court’s order stated, in pertinent part:

“This count is based on [City of] Montgomery v. Collins, 355 So.2d 1111 (Ala. 1978). That case create[s] a cause of action in favor of a city employee against a city in certain limited circumstances. Although the factual allegations of the Count Two claim, if proven, would probably not be sufficient to defeat a motion for a summary judgment, the Court would not say that [Alexander and WAD] ... cannot prove any set of facts upon which relief may be granted.”

Alexander and WAD subsequently filed their second amended complaint. In that complaint, the plaintiffs (1) sought in count one a judgment declaring that the defendants arbitrarily and capriciously and in violation of the City’s policies and practices failed to pay Alexander’s legal bills and asserted the following other claims in counts two through five: (2) bad-faith failure to pay legal bills and costs “with full knowledge that [Alexander’s] case meets all the requirements of City of Montgomery v. Collins, 355 So.2d 1111 (Ala.1978), and that the legal expenses of a similarly situated Bessemer councillor had been paid”; (3) bad-faith breach of an implied contract (comparable to count five of the first amended complaint); (4) fraud and suppression based on the allegation that the City attorney had misrepresented that Alexander’s legal bills would be paid provided she was found not guilty of violating the Ethics Law; and (5) racial discrimination based on the allegation that the City paid the legal bills of Councillor Woods, who faced similar criminal allegations, but refused to pay the legal bills of Alexander, with “[t]he difference between Plaintiff Alexander and her fellow Councillor [being] that Plaintiff Alexander is black, while Betty Woods is Caucasian.”

The City and the City councillors filed motions to dismiss the second amended complaint. Concerning the plaintiffs’ claim of racial discrimination based on § 1983, the City councillors contended that they were entitled to legislative immunity or to qualified immunity. Concerning the claim of bad-faith failure to pay legal expenses, the City contended that under § 11 — 47-190, Ala.Code 1975, a claim of bad faith could not be maintained against a municipality.

The trial court subsequently entered an order in which it dismissed all claims alleged in the plaintiffs’ second amended complaint with the exception of count two and count five. With respect to count two, in which the plaintiffs allege a bad-faith failure by the City to pay Alexander’s legal fees and costs, the trial court noted that this count was “substantially similar to the same claim” in the first amended complaint. Based on the grounds stated in the February 15, 2011, order, the trial court dismissed count two as to all the City councillors in their individual and official capacities, but it denied the motion to dismiss as to the City. With respect to count five, the § 1983 discrimination claim, the trial court stated that

“[c]ount Five of Plaintiffs’ amended complaint on its face states a claim for which relief might be granted, although the facts alleged to support the claim would not be sufficient to defeat a Motion for a Summary Judgment. For this reason, however, the Court at present denies the Defendants’ Motions to dismiss Count Five, to allow Plaintiffs to conduct discovery.”

The City and the City councillors petition this Court to direct the trial court to dismiss the bad-faith claim against the City, and the City councillors petition this Court to direct the trial court to dismiss the racial-discrimination claim against them on the basis of immunity.

II. Standard of Review

“The denial of a motion to dismiss ‘ “grounded on a claim of immunity” ’ is properly reviewable by a petition for a writ of mandamus. Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009). ‘A writ of mandamus is a drastic and ex- ■ traordinary writ that will issue to compel a summary judgment on immunity grounds only upon a showing of a clear legal right in the petitioner to the immunity sought.’ 36 So.3d at 22. ‘The burden of establishing a clear legal right to the relief sought rests with the petitioner.’ Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala. 2007).”

Ex parte Dickson, 46 So.3d 468, 471 (Ala. 2010).

III. Analysis

A. Preliminary Observations

Alexander and WAD contend that the trial court correctly refused to dismiss the bad-faith claim against the City and the § 1983 claims against the City councillors because, they say, a further exploration, outside the pleadings, of facts pertaining to the motivations of the defendants is necessary in order to assess the immunity claims asserted by the City and the City councillors, respectively. The immunity at issue as to the so-called bad-faith claim against the City is that of local-governmental immunity against tort actions. See discussion, infra. Motivation on the part of a municipal government, however, plays no part in the application of the principle of local-governmental immunity.

As to the § 1983 claims against the City councillors, the first type of potential immunity we address is “legislative immunity.” As is true with local-governmental immunity, however, the question of the defendants’ motivation is not pertinent to the issue whether the defendants are entitled to legislative immunity. Bogan v. Scottr-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (“Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.”); Ellis v. Coffee Cnty. Bd. of Registrars, 981 F.2d 1185, 1191 (11th Cir.1993) (observing that “an unworthy purpose does not remove absolute immunity protection from legislators acting in their legislative capacity”).

If it is determined, however, that legislative immunity is not available to the City councillors in response to the § 1983 claims against them, then the issue that will remain will be whether those City councillors are entitled to so-called “qualified immunity” under federal law. As discussed subsequently, an examination into the availability of qualified immunity for the City councillors in this case will, unlike the issue of legislative immunity, require an exploration of the facts regarding the motivation of the City councillors for declining to vote in favor paying Alexander’s legal expenses. This, in turn, will require an examination of material outside the pleadings. Indeed, the City councillors themselves admit that “the qualified immunity inquiry is fact specific.” Therefore, if legislative immunity is not available to the City councillors and a determination must be made as to whether the City councillors are entitled to qualified immunity for the § 1983 racial-discrimination claims against them, then the petition of the City councillors is due to be denied to allow for further proceedings before the trial court.

B. Plaintiffs’ Claim of Bad-Faith Failure to Pay Legal Expenses

At the outset, we note that, although the parties discuss the cognizability under Alabama law of the plaintiffs’ bad-faith claim in light of this Court’s decision in City of Montgomery v. Collins, 855 So.2d 1111 (Ala.1978), we do not address that issue. “ ‘Subject to certain narrow exceptions, we have held that, because an “adequate remedy” exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ ” Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 966 (Ala.2011) (quoting Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002)). One of the few “narrow exceptions” we have recognized to the aforesaid general rule is a petition for a writ of mandamus complaining of the denial of a motion to dismiss grounded on a claim of immunity. Ex parte Dickson, 46 So.3d 468, 471 (Ala.2010) (citing Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009)). Accordingly, we limit our review of the claim of bad-faith failure to pay legal fees and expenses to an examination of whether the City is immune from such a suit, leaving aside any questions as to the legal or factual merits of that claim.

The claim as alleged by Alexander and WAD appears to be in the nature of a tort claim. Alabama law has long embraced the common-law doctrine of local-governmental immunity applicable to tort actions against municipalities and counties. Indeed, this Court has explained that the doctrine predates, but survived, the adoption of the 1901 Constitution. Gamer v. Covington Cnty., 624 So.2d 1346 (Ala. 1993); Home Indem. Co. v. Anders, 459 So.2d 836 (Ala.1984). It is a doctrine designed to protect local governments and their coffers. See, e.g., Smith v. Schulte, 671 So.2d 1334, 1343-44 (Ala.l995)(abro-gated on other grounds, Ex parte Apicella, 809 So.2d 865 (Ala.2001)); Gamer, 624 So.2d at 1351. Because it was in fact a common-law doctrine and not created by the constitution, it was and is subject to modification by the legislature. Smith v. Schulte, supra (recognizing “the unique status” of counties and cities that enables the legislature to regulate their tort liability); Gamer, 624 So.2d at 1351. Our legislature has chosen to exercise that control with the enactment, among other statutes, of § 11-47-190, and its predecessors dating back to soon after the adoption of the 1901 Constitution and the debates over municipal liability that occurred at the constitutional convention. See Gamer, 624 So.2d at 1351-54 (quoting at length the convention debate regarding municipal-governmental liability and the ability of the legislature to abrogate it as it might see fit in the future); see also generally Suttles v. Roy, 75 So.3d 90 (Ala.2010) (reading §§ 11-47-190, 11-47-24, and 11-93-2 in pari materia); Anders, supra (reading §§ 11-47-190 and 11-93-2 in pari materia). Nothing in § 11 — 47-190, however, creates an exception to the doctrine of local-governmental immunity applicable in the present case.

Specifically, § 11-47-190 creates an exception to the general rule of immunity for municipalities (“[n]o city or town shall be liable ... unless”) when a plaintiff has suffered injury as a result of “the neglect, carelessness or unskillfulness” of some agent, or when the plaintiff suffers injury as a result of the “neglect or carelessness or failure to remedy some defect” in public works caused by a third party. Neither of those clauses creates any exception to the general rule of municipal immunity from liability in the case of intentional or malicious actions by the agents or officers of the municipality. Indeed, Alexander and WAD do not contest the position of the petitioners that the exceptions to local-governmental immunity described in § 11-47-190 are not applicable here. (Alexander and WAD concede that the bad-faith claim they seek to assert against the City is in the nature of an intentional tort.) Therefore, the trial court should have dismissed this claim against the City, and, accordingly, we grant the petition in this regard.

C. Plaintiffs’ Claim of Racial Discrimination under § 1983

In count five of the second amended complaint, the plaintiffs claimed that the City and the City councillors violated Alexander’s constitutional rights by refusing to pay her legal expenses when the City previously had paid the legal expenses of a similarly situated City councillor, Betty Woods. The plaintiffs claimed that the only difference between Woods and Alexander was that Woods is Caucasian and Alexander is African-American. Thus, the plaintiffs claimed that the City and the City councillors intentionally discriminated against Alexander in refusing to pay her legal expenses, a violation of Alexander’s constitutional right to equal protection under the law, a right enforceable under 42 U.S.C. § 1983.

In its July 31, 2011, order, the trial court denied the petitioners’ motions to dismiss count five of the complaint, concluding that “[c]ount Five of Plaintiffs’ amended complaint on its face states a claim for which relief might be granted.... ”

The City councillors challenge the trial court’s refusal to grant their motion to dismiss, contending that, under federal law, they are entitled either to legislative immunity or to qualified immunity for their action of refusing to vote for a resolution to pay Alexander’s legal expenses.

Concerning legislative immunity, this Court has explained:

“Section 1983 provides a remedy for persons alleging deprivations of their constitutional rights by government officials through action taken ‘under color of state law.’ Notwithstanding the unqualified nature of its language, however, § 1983 was not intended to abrogate the common law immunities enjoyed by persons performing certain governmental functions. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). It is now well settled that government officials performing legislative functions at the state level are entitled to absolute immunity from suits for damages under § 1983. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). State legislators ‘require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.’ 457 U.S. at 806, 102 S.Ct. at 2732. Likewise, in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), the United States Supreme Court held that the members of a ‘regional’ land planning agency performing legislative functions were entitled to absolute immunity from the plaintiffs § 1983 action and, although expressly reserving the question for a later date, strongly suggested that government officials performing legislative functions at the municipal level are also entitled to absolute immunity from § 1983 claims.”

Point Props., Inc. v. Anderson, 584 So.2d 1332, 1335-36 (Ala.1991). Since our decision in Point Properties, the United States Supreme Court has explicitly concluded that “[l]ocal legislators are entitled to absolute immunity from § 1983 liability for their legislative activities.” Bogan, 523 U.S. at 54.

If what we had before us was the adoption of a resolution or an ordinance whereby the City councillors established a new policy for the City of not paying legal fees and expenses of City officials charged with crimes regardless of the outcome of the trial of those charges, the individual City councillors might well enjoy legislative immunity for their action in voting for such a policy or declining to vote in favor of such a policy. As the United States Court of Appeals for the First Circuit explained:

“We find persuasive the analysis in Developments in the Law-Zoning, 91 Harv. L. Rev. 1427, 1510-11 (1978), which suggests two tests for distinguishing between legislative and administrative activity. The first test focuses on the nature of the facts used to reach the given decision. If the underlying facts on which the decision is based are ‘legislative facts’, such as ‘generalizations concerning a policy or state of affairs’, then the decision is legislative. If the facts used in the decisionmaking are more specific, such as those that relate to particular individuals or situations, then the decision is administrative. The second test focuses on the ‘particularity of the impact of the state of action’. If the action involves establishment of a general policy, it is legislative; if the action ‘single[s] out specifiable individuals and affect[s] them differently from others’, it is administrative. Measured by either of these tests, it is clear that the Planning Boards rejection of the developer’s mortgage in this case was an administrative act.”

Cutting v. Muzzey, 724 F.2d 259, 261 (1st Cir.1984).

Similarly, in Hughes v. Tarrant County, Texas, 948 F.2d 918, 921 (5th Cir.1991), the United States Court of Appeals for the Fifth Circuit cited Cutting with approval and applied the test articulated therein:

“Even though the decision concerned the allocation of county monies, it was not based on legislative facts; it was not based on general facts regarding any policy, but instead, it was based on specific facts of an individual situation related to the district court clerk. Furthermore, the action did not purport to establish a general policy; it was particular to Hughes. Because we find that the challenged conduct was not legislative, we hold that the commissioners are not entitled to absolute legislative immunity.”

See also, e.g., Associated Press v. Cook, 17 S.W.3d 447, 460 (Tex.App.2000) (applying the same test applied in Hughes).

Insofar as an examination of the issue of legislative immunity is concerned, however, the petitioners do not argue in their brief to this Court that the decision concerning the allocation of moneys in this case was based on any “legislative facts” or the “establishment of a general policy.” Instead, insofar as the specific issue of legislative immunity is concerned, the arguments presented in the petitioners’ brief in the present case focus solely on the fact that the decision was one that would impact the City’s coffers. The mere fact that a potentially discriminatory decision is made through an exercise of control over the public purse does not insulate the entity making that decision from a claim that the action is administrative in nature. E.g., Trevino v. Gates, 23 F.3d 1480 (9th Cir.1994); Hughes; O’Brien v. City of Greers Ferry, 873 F.2d 1115 (8th Cir.1989) (holding that a failure to approve an expenditure of money is not necessarily a legislative act).

The United States Court of Appeals for the Ninth Circuit explained in Trevino that

“[t]he burden of proof in establishing absolute immunity is on the individual asserting it. ‘[0]fficials seeking absolute immunity must show that such immunity is justified for the governmental function at issue.’ Hafer v. Melo, 502 U.S. 21, 29, 112 S.Ct. 358, 363, 116 L.Ed.2d 301 (1991) (citing Bums v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)).”

23 F.3d at 1482. Because the petition before us argues only that decisions regarding the expenditure of money are necessarily entitled to legislative immunity and does not argue that the decision to refuse payment of Alexander’s legal expenses was in fact based on “legislative facts” or was a reflection of the establishment of a new “general policy,” the petitioners have not here demonstrated a right to relief on the ground of legislative immunity.

Finally, we turn to the petitioners’ request for relief on the basis of “qualified” or “good-faith” immunity. “[Qualified or ‘good faith’ immunity has been extended to government officials performing discretionary functions that are characteristically executive or administrative.” Point Props., Inc., 584 So.2d at 1338.

“ ‘[Qualified immunity protects government officials performing discretionary functions from the burdens of civil trials and from liability,’ McMillian v. Johnson, 88 F.3d 1554, 1562 (llth Cir.1996) (citing Lassiter v. Alabama A & M Univ., 28 F.3d 1146,1149 (llth Cir.1994) (en banc)), ‘[i]n all but exceptional cases.’ Id. It is only “when an official’s conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known’” that ‘the official is not protected by qualified immunity.’ Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).”

Rioux v. City of Atlanta, Ga., 520 F.3d 1269,1282 (llth Cir.2008).

As it relates to the claims against the City councillors in the present case, we note that the Equal Protection Clause “ensures the right to be free from intentional discrimination based on race.” Id. (citing Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1268 (llth Cir.2003)). We also observe that

“[c]learly established law provides that state officials ‘can be motivated, in part, by a dislike or hostility toward a certain protected class to which a citizen belongs and still act lawfully .... ’ ‘[S]tate officials act lawfully despite having discriminatory intent, where the record shows they would have acted as they, in fact, did act even if they had lacked discriminatory intent.’ ”

Id. at 1283 (quoting Foy v. Holston, 94 F.3d at 1534, and Mt. Healthy v. Doyle, 429 U.S. 274, 286-87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and citing Village of Arlington Heights v. Metropolitan Hous. Dev., 429 U.S. 252, 269-71 n. 21, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). The question has also been framed as whether the defendants “had adequate lawful reasons to support [the] decision” in question. Id.

Accordingly, as noted in Part A above, the fact-specific nature of a qualified-immunity analysis (an analysis typically requiring an examination of evidence outside the pleadings, evidence of a type the trial court did not in fact examine in the present case) means that the issue presented is, as a general rule, better analyzed within the framework of a summary-judgment motion rather than within that of a motion to dismiss. As has already been noted, the City councillors concede that “the qualified immunity inquiry is fact-specific.”

Based on the foregoing, we conclude that the City councillors have not demonstrated in this proceeding that they are entitled to relief on the basis of qualified immunity.

IV. Conclusion

We grant the petition as it relates to the bad-faith claim alleged against the City. Because the City enjoys governmental immunity from such a claim, we direct the trial court to dismiss that claim.

We deny the petition with regard to the plaintiffs’ claim against the City councillors of racial discrimination brought pursuant to § 1983. The City councillors have not here demonstrated an entitlement to legislative immunity as discussed above, and whether they are entitled to qualified immunity is a question that would require further consideration of facts outside the pleadings.

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

STUART, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

Because I would deny the petition for a writ of mandamus on the issues raised by both the City of Bessemer and its city councillors, I concur in denying the petition on the 42 U.S.C. § 1983 claim against the councillors alleging racial discrimination, but I dissent to granting the petition on count two of the second amended complaint because I believe, as the trial court stated, that there could exist a set of facts under which Louise Alexander and White, Arnold & Dowd, P.C., would be entitled to relief.

      . Alexander and WAD also note that Woods is Caucasian and that Alexander is African-American. In response, the City and the City councillors observe that at the time the Bessemer City Council made its decision not to pay Alexander’s legal expenses, six of the seven City councillors were African-Americans.

      . The plaintiffs note that the advisory opinion was written by the same general counsel of the Ethics Commission who testified against Alexander in her criminal trial. The plaintiffs state that they have filed a separate action against the Ethics Commission seeking to have the advisory opinion set aside on the ground that it was biased.

      . The plaintiffs state that City councillors Earl Cochran and Matthews were listed as nominal defendants because they had indicated support for reimbursing Alexander's legal expenses.

      . It is unclear why the City councillors are included in the petition challenging the bad-faith claim given that the trial court expressly dismissed that claim as to them.

      . In arguing that they are clothed with qualified immunity, the City councillors cite the minutes of the relevant City Council meetings, the text of Art. I, § 2, Bessemer City Ordinances, and advisory opinions written by the Ethics Commission and the Office of the Alabama Attorney General. Considering these materials in making a determination as to whether the City councillors are entitled to qualified immunity necessarily would require converting the motion to dismiss into a motion for a summary judgment because "[i]f the trial court considers matters outside the pleadings, then the motion should be treated as a motion for summary judgment.” Stock-man v. Echlin, Inc., 604 So.2d 393, 394 (Ala. 1992). It is apparent from the language of the trial court's orders that it did not consider outside materials in reaching its decision.

      . Cf. Chavers v. National Sec. Fire & Cas. Co., 405 So.2d 1 (Ala.1981) (recognizing the intentional tort of bad faith in first-party insurance actions). The claim of a breach of an implied contract as alleged by Alexander and WAD in their first amended complaint, but dismissed by the trial court, is not at issue here.

      . In Gamer, this Court took note of the unique status of cities and counties:
      "Garner’s argument that § 11-93-2 violates § 11[, Ala. Const. 1901,] must be addressed in the context of the unique status of counties and cities as governmental entities. Because they are creations of the sovereign, the State of Alabama, and because they exercise certain governmental functions that are dependent upon tax dollars, actions against them have always been subject to reasonable regulation by the legislature on a basis not applicable to actions against individuals and other entities.”
      624 So.2d at 1351.

      .Section 11-47-190 provides, in pertinent part:

        “No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.”
      (Emphasis added.)

      . Presumably the City has not challenged the trial court's order on either of these grounds because "[qlualified official immunity and absolute legislative immunity are doctrines that protect individuals acting within the bounds of their official duties, not the governing bodies on which they serve.” Minton v. St. Bernard Parish Sch. Bd„ 803 F.2d 129, 133 (5th Cir.1986).


source: Caselaw Access Project

author: SHAW, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Curtis Earl SCARVER. (In re Curtis Earl Scarver v. State of Alabama).
    1121262.
    Supreme Court of Alabama.
    Oct. 25, 2013.
    Curtis Earl Scarver, pro se.
   SHAW, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from the Court’s decision to deny the petition for a writ of certiorari in this case. In 2009, Curtis Earl Scarver pleaded guilty to trafficking in cocaine, a Class A felony. At the time of his plea, Scarver had three prior felony convictions. Two of those prior convictions, dating to 1982, were for first-degree robbery, a Class A felony. The trial court had no choice but to impose a sentence of life imprisonment without the possibility of parole. § 13A-5-9(c)(4), Ala.Code 1975. At the plea hearing, the following colloquy occurred:

“THE COURT: You’d be looking at a mandatory life sentence without the possibility of parole. You understand that?
“SCARVER: Yes.
“THE COURT: Knowing that, you still want to plead guilty?
“SCARVER: Yes.”

I do not read the colloquy between Scarver and the trial court — particularly the judge’s imprecise “you’d be looking at” phrase — as Scarver’s acquiescence to a sentence of life imprisonment without the possibility of parole, but instead as his recognition that a sentence of life imprisonment without parole was an alternative available to the court.

Because I do not find it rational for a person to plead guilty to the maximum sentence allowed by law if he went to trial, I question whether Scarver fully understood the consequences of his plea and thus whether it was truly voluntary.

Scarver filed a Rule 32, Ala. R.Crim. P., petition challenging his guilty-plea conviction, which the trial court summarily dismissed. Scarver appealed to the Court of Criminal Appeals, which affirmed, without an opinion. Scarver v. State (No. CR-12-0741, July 3, 2013), - So.3d - (Ala.Crim.App.2013) (table). Scarver properly raises the issue of the voluntariness of his guilty plea in his Rule 32 petition, the first he has filed. “A challenge to the volun-tariness of a guilty plea may be presented for the first time in a timely filed Rule 32 petition.” Gilmore v. State, 937 So.2d 547, 550 (Ala.Crim.App.2005).

I would grant Scarver’s petition for a writ of certiorari to see if the record, including the transcript, if any, of the sentencing hearing, supports his claim that he did not understand the consequences of his guilty plea.


author: WISE, Justice. SHAW, Justice

text:
    Ex parte Opie Earl SULLIVAN. (In re Steven Ray Parnell v. Opie Earl Sullivan).
    1120855.
    Supreme Court of Alabama.
    Oct. 25, 2013.
    Christopher B. Estes of Vernis & Bowling of Southern Alabama, LLC, Mobile; and J. Burruss Riis of Hand Arendall LLC, Mobile, for petitioner.
    E. Tatum Turner and Gordon K. Howell of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, P.A., Chatom, for respondent.
   WISE, Justice.

PETITION DISMISSED. NO OPINION.

MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, MAIN, and BRYAN, JJ., concur.

SHAW, J., dissents.

SHAW, Justice

(dissenting).

Steven Ray Parnell sued Opie Earl Sullivan seeking damages for injuries he alleges were caused by Sullivan’s negligence and wantonness in causing a motor-vehicle accident. In the course of discovery, Parnell filed interrogatories and requests for production seeking information regarding, among other things, whether Sullivan had “transferred or conveyed any real or personal property to any third party” since the time of the accident. Sullivan responded, arguing that the information sought was not relevant to the subject matter involved in the action, that the information sought was inadmissible information that was not reasonably calculated to lead to the discovery of admissible information, and that the request violated Rule 403, Ala. R. Evid. Parnell filed a motion to compel Sullivan to respond to the interrogatories and requests for production. The trial court conducted a hearing and ultimately granted Parnell’s motion to compel.

Sullivan filed a petition for a writ of mandamus with this Court, challenging the trial court’s order compelling discovery. No stay of the lower court proceedings was originally requested. Soon thereafter, Parnell filed an amended complaint in the trial court adding a claim alleging fraudulent conveyance. This Court ordered answers and briefs to the petition. See Rule 21(b), Ala. RApp. P.

Mandamus relief 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 Grp., Inc., 823 So.2d 1270, 1272 (Ala.2001). This Court generally does not review discovery orders pursuant to extraordinary writs. Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003). However, we have identified certain circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus, including “when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party....” Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1137 (Ala. 2003).

Sullivan argues the discovery sought by Parnell is patently irrelevant. Parnell contends, however, that the addition of the fraudulent-conveyance claim mooted Sullivan’s objections because the discovery sought is relevant to the new claim. At this point, we are not in a position to determine whether the discovery sought is relevant to the new claim. Thus, I am unable to determine whether Sullivan’s mandamus petition is moot. Instead, the fact that the fraudulent-conveyance claim may render the trial court’s order proper precludes Sullivan from demonstrating a clear legal right to the relief sought. BOC, supra. I would thus deny the petition instead of dismissing it.


author: BRYAN, Judge.

text:
    JEFFERSON COUNTY v. Suzanne BIRCHFIELD.
    2090257.
    Court of Civil Appeals of Alabama.
    June 17, 2011.
    Certiorari Denied Nov. 15, 2013 Alabama Supreme Court 1101140.

      French A. McMillan, asst, county atty., Birmingham, for appellant.
    Candice J. Shockley of Shockley & King, LLC, Pelham, for appellee.
   BRYAN, Judge.

Jefferson County, the defendant below, appeals from a judgment in favor of Suzanne Birchfield, the plaintiff below. We reverse and remand.

Procedural History

On July 26, 2006, Birchfield sued Jefferson County. Her complaint, as ultimately amended, alleged that she had served as the appointed chief deputy tax assessor for the Bessemer Division of Jefferson County (“the chief deputy tax assessor-Bessemer”) from September 29, 1987, until October 15, 2006; that she was entitled to cost-of-living adjustments (“COLAs”) to her salary while she served as the chief deputy tax assessor-Bessemer; that John Scott, who was the elected assistant tax assessor for the Bessemer Division of Jefferson County (“the assistant tax assessor-Bessemer”) when she was appointed the chief deputy tax assessor-Bessemer, had represented to her in September 1987 that she was not entitled to COLAs because COLAs would cause her compensation to exceed 90% of his compensation, which would violate applicable law; that that representation constituted a misrepresentation of material fact; and that she was entitled to the COLAs that had not been paid to her from September 29, 1987, through September 30, 2002. Based on those allegations, Birchfield sought a judgment declaring that she was entitled to COLAs for the period September 29, 1987 through September 30, 2002, and damages based on theories of breach of contract and misrepresentation. Answering, Jefferson County denied that Birchfield was entitled to COLAs while she served as the chief deputy tax assessor-Bessemer and denied that Scott had misrepresented a material fact to Birchfield. Jefferson County also asserted various affirmative defenses including the applicable statutes of limitations.

Following a bench trial at which it received evidence ore tenus, the trial court entered the following judgment:

“This cause came on to be heard on Plaintiff, Suzanne Birchfield’s Complaint for payment of Cost of Living Adjustment Benefits due from Jefferson County. The Court took testimony on June 30th and July 6th, 2009. After considering said testimony and the exhibits received into evidence, this Court finds that the following order is due to be entered:
“1. On July 14, 1987, the Alabama Legislature enacted Act 87-421 which provided for the appointment of a Chief Deputy Tax Assessor by the Elected Jefferson County Tax Assessor and by the Elected Jefferson County Assistant Tax Assessor, Bessemer Division. Said act provided that the Deputy Tax Assessor would be ‘compensated at a rate equal to Jefferson County Merit System Class Thirty ... ’ and that ‘Said Chief Deputies shall receive any and all benefits that are received by Merit System Employees, including longevity payments. ...’
“2. One of the benefits to which the Merit System Employees of Jefferson County were and are entitled is a yearly Cost of Living Adjustment. The amount of the benefit is adjusted in the fall of each year by the Jefferson County Commission.
“3. Suzanne Birchfield was appointed as Chief Deputy Tax Assessor for the Bessemer Division of Jefferson County, Alabama on September 29, 1987 and held that position until October 15, 2006.
“4. Jefferson County by and through its employees and agents represented to Suzanne Birchfield that she was not entitled to the Cost of Living Adjustment Benefit from 1987 until July of 2004.
“5. Suzanne Birchfield learned for the first time that she was entitled to the Cost of Living Adjustment Benefit in August of 2004 when she received a copy of an opinion issued on July 27, 2004, by the Office of the Attorney General of the State of Alabama. This opinion, designated as Opinion 2004 — 189[,] provided in pertinent part:
“ ‘The acts state that the “Chief Deputy” shall receive any and all benefits that are received by Merit System Employees, including longevity payments....” (Citations omitted). It is the opinion of this Office that cost-of-living increases qualify as such a benefit. Therefore, if the Jefferson County Commission grants merit system employees in Jefferson County a cost-of-living increase, the chief deputies would be entitled to the same cost-of-living increase.’
“The opinion further provided:
“ ‘The chief deputies are entitled to a cost-of-living increase, however, because Acts 87-421, 88-936, and 88-946 state that the chief deputies are entitled to all of the benefits of county merit system employees. When the Jefferson County Commission grants a cost-of-living increase to merit system employees, the deputies should receive the same cost-of-living increase.’
“6. Suzanne Birchfield contacted the Jefferson County’s Attorney’s Office on August 2, immediately after she learned of the Attorney General’s opinion and requested payment of the Cost of Living Adjustment Benefits.
“7. On the 15th day of September, 2004, Ms. Birchfield received from Jefferson County the sum of $1,640.76, which Jefferson County claimed was payment of the Cost of Living Adjustment Benefit for the period October 1, 2003 through [September] 4, 2004.
“8. On the 28th day of February, 2005, Ms. Birchfield received from Jefferson County the sum of $1,352.40 which Jefferson County claimed was payment of the Cost of Living Adjustment Benefit for the period October 1, 2002 through September 30, 2003.
“9. Suzanne Birchfield submitted a claim to Jefferson County for the Cost of Living Adjustment Benefits which had been wrongfully denied to her for the time period September 29, 1987 through [September 30, 2002],
“10. Jefferson County refused to pay the claim.
“11. Suzanne Birchfield filed suit in this Court within two years of the time that she first learned that she, as the Chief Deputy Tax Assessor of [the Bessemer Division of] Jefferson County, was entitled to the Cost of Living Adjustment Benefit received by the Merit System Employees of Jefferson County.
“12. At trial, Suzanne Birchfield submitted an amended claim to this Court for the unpaid Cost of Living Adjustment Benefits in the amount of [$]141,-542.24.
“13. Section 6-5-101 of the Code of Alabama provides:
“ ‘Misrepresentations of a material fact made wilfully to deceive, or recklessly without knowledge and acted on by the opposite party, or if made by mistake innocently and acted on by the opposite party constitute legal fraud.’
“14. Jefferson County, through its officials, agents and employees represented to Suzanne Birchfield that she was not entitled to a benefit which she was, by law, entitled to receive. These false representations were continuing in nature and were made to Suzanne Birchfield with the intent that she should rely on them. Suzanne Birch-field relied on the false representations made by Jefferson County and she was damaged.
“15. Defendant, Jefferson County failed to pay to Suzanne Birchfield, the Cost of Living Adjustment benefit which was due to her, as mandated by the Legislature of the State of Alabama. Jefferson County owes to Suzanne Birchfield the sum of $141,542.24.
“Judgment is hereby rendered against Jefferson County and in favor of Suzanne Birchfield in the amount of $141,542.24 together with costs.”

Jefferson County timely appealed to the supreme court; the supreme court then transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Facts

The Alabama Legislature enacted Act No. 87-421, Ala. Acts 1987, in July 1987. In pertinent part, Act No. 87-421 provided:

“Section 1. The Elected Jefferson County Tax Assessor and the Elected Jefferson County Assistant Tax Assessor, Bessemer Division, are empowered to each appoint one person to serve as Chief Deputy....
“Section 3. Said Chief Deputies shall be compensated at a rate equal to Jefferson County Merit System Class Thirty, however, in no event shall such compensation exceed ninety percent of the compensation received by the Appointing Authority....
“Section 4. Said Chief Deputies shall receive any and all benefits that are received by Merit System Employees, including longevity payments.... ”

(Emphasis added.)

Birchfield testified that Scott had written the proposed bill that was submitted to the legislature and enacted as Act No. 87-421 and that she had been working as a merit-system employee in Scott’s office when he wrote the proposed bill. She further testified that, before she applied for the position of chief deputy tax assessor-Bessemer, Scott had told her that “it was his opinion ” that, if she were appointed deputy chief tax assessor-Bessemer, she would not be entitled to COLAs because COLAs would cause her compensation to exceed 90% of his compensation. (Emphasis added.) .Birchfield further testified that she nonetheless applied for the position of chief deputy tax assessor-Bessemer and that Scott appointed her to that position on September 29,1987.

Birchfield testified that Scott subsequently began receiving an automobile allowance in the amount of approximately $5,200 per year and that she had asked Scott whether she could receive a COLA because he was receiving that automobile allowance. According to Birchfield, Scott told her “[t]hat [her] salary was capped at 90% [of his]” and that “[e]ven though he was getting more money, there was no way that [she] could get more money.”

In 1989, the Alabama Legislature enacted Act No. 89-1009, Ala. Acts 1989. In pertinent part, Act No. 89-1009 provided:

“Section 1. Effective at the beginning of the next term of office, October 1, 1991, the Jefferson County tax assessor ... shall receive a salary of $55,800.00 per annum....
“Section 2. Effective at the beginning of the next term of office, October 1, 1991, the elected assistant tax assessor, Bessemer Division, ... shall receive a salary of 90 percent of the annual salary of the Jefferson County tax assessor....
“Section 3. Effective at the beginning of the next term of office, October 1, 1991, ... the chief deputy tax assessor, Bessemer Division, ... shall receive an annual salary equal to Jefferson County merit system class 30, step 5, but in no event shall such salary exceed 90 percent of the annual salary received by the appointing official.... It is further provided that the provisions of Alabama Act [No.] 87-421 ... shall be extended by the enactment of this bill.”

(Emphasis added.)

Birchfield testified that, in 1992, a question arose regarding whether she would be entitled to a longevity payment and that Jeanne Edwards, who was then the Jefferson County Payroll Manager, told Birch-field that she could not receive the longevity payment because it would result in her compensation exceeding 90% of the compensation of the assistant tax assessor-Bessemer. Birchfield further testified that she subsequently received a copy of a memorandum dated August 5, 1992, that Andy Strickland, who was then the Jefferson County Attorney, had sent to Edwards. In that memorandum, Strickland opined that, because Section 4 of Act No. 87-421 expressly provided that the chief deputy tax assessor-Bessemer was entitled to “all benefits ... including longevity payments” and Act No. 89-1009 had not repealed Section 4 of Act No. 87-421, the chief deputy tax assessor-Bessemer was entitled to longevity benefits “regardless of the statutory 90% cap on her salary” contained in Section 3 of Act No. 89-1009.

In 1996, the Alabama Legislature enacted Act No. 96-541, Ala. Acts 1996. That act provided:

“Section 1. Section 3 of Act No. 89-1009 ... is amended to read as follows:
“ ‘Section 3. Effective at the beginning of the next term of office, October 1, 1991, ... the chief deputy tax assessor, Bessemer Division ... shall receive an annual salary equal to Jefferson County merit system class 30, but in no event shall such salary exceed 90 percent of the annual salary received by the appointing official .... It is further provided that the provisions of Act [No.] 87-421 ... shall be extended by the enactment of this bill.’ ”

(Emphasis added.)

In 1996, Scott died, and Karen Tucker became the assistant tax assessor-Bessemer. Tucker renewed Birchfield’s appointment as chief deputy tax assessor-Bessemer.

In 1999, the Alabama Legislature enacted Act No. 99-647, Ala. Acts 1999. In pertinent part, that act provided:

“Section 2. (a) Commencing immediately following the effective date of this act, the elected Assistant Tax Assessor, Bessemer Division, of Jefferson County shall be entitled to an additional expense allowance in the amount of eleven thousand twenty dollars ($11,020) per an-num, which shall be in addition to all other expense allowances, compensation, or salary provided by law....
“(b) Beginning with the expiration of the term of the incumbent elected Assistant Tax Assessor, Bessemer Division, the annual salary for the elected Assistant Tax Assessor, Bessemer Division, shall be sixty-six thousand four hundred twenty dollars ($66,420) per annum ... and at that time, subsection (a) shall become null and void.
“Section 4. (a) Commencing on the first day of the month immediately following the effective date of this act, the Chief Deputy Tax Assessor, Bessemer Division, of Jefferson County shall be entitled to an additional expense allowance in the amount of nine thousand seven hundred twenty dollars ($9,720) per annum which shall be in addition to all other expense allowances, compensation, or salary provided by law....
“(b) Beginning with the expiration of the term of the incumbent Chief Deputy Tax Assessor, Bessemer Division, the annual salary for the Chief Deputy Tax Assessor, Bessemer Division, shall be fifty-nine thousand seven hundred seventy-eight dollars ($59,778) per annum ... and at that time, subsection (a) shall become null and void.”

On May 2, 2003, Strickland sent a memorandum to Tucker and a number of other Jefferson County officials in which he opined that Act No. 2000-108, Ala. Acts 2000, the Omnibus Compensation Act, entitled certain Jefferson County officials, including the assistant tax assessor-Bessemer, to a COLA in an amount equal to 3% of their base compensation. The list of officials who Strickland opined were entitled to COLAs by virtue of the Omnibus Compensation Act did not include the chief deputy tax assessor-Bessemer.

Birchfield testified that she received a copy of Strickland’s May 2, 2003, memorandum and that she and Tucker then began questioning Jefferson County officials regarding whether Birchfield was entitled to COLAs. Birchfield testified that she subsequently received a copy of an email that Doug Hand, who had become the Jefferson County Payroll Manager, had written Strickland on May 6, 2003. Hand noted that he was responding to a telephone call in which Strickland had informed Hand that, as a result of Strickland’s May 2, 2003, memorandum regarding COLAs, Birchfield and three other appointed employees of Jefferson County were claiming that they also were entitled to COLAs. Hand’s e-mail further stated:

“My interpretation of the applicable laws is that none of these positions is due an increase at this time as a result of your COLA opinion. Act No. 96-541 states that these positions ‘shall receive an annual salary equal to Jefferson County merit system class 30, but in no event shall such salary exceed 90 percent of the annual salary received by the appointing official.’ All of these positions reached the 90% maximum several years ago and your recent opinion regarding COLA’s has resulted in a present increase in expense allowances for the appointing officials, but not a present increase in their salary amounts.
“None of these four appointed positions in question received an expense allowance prior to the passage of Acts No. 99-647 and 2000-359 which established expense allowances of fixed dollar amounts for the remainder of this current term of office. These expense allowances are not tied to the salary or expense allowance amount being paid to the appointing officials.
“I hope this explains why none of these four appointed positions is due an increase in salary or expense allowance at this time....”

(Emphasis added.)

On May 9, 2003, Strickland forwarded a copy of Hand’s e-mail to Tucker. That same day, Tucker wrote Strickland a letter and an e-mail. In both her letter and her e-mail, Tucker expressed her belief that the chief deputy tax assessor-Bessemer was entitled to COLAs. On May 27, 2008, Tucker and at least one other elected Jefferson County official sent Strickland a letter requesting that he seek an opinion from the attorney general regarding whether the chief deputy tax assessor-Bessemer and certain other appointed Jefferson County officials were entitled to COLAs.

On September 25, 2003, Tucker sent Hand an e-mail in which she requested that he “please revisit Section 4 of Act No. 87-421 and compare to Section 4 of Act No. 2000-108 and explain why the 2003 3% COLA would not apply to Chief Deputies as ‘any and all benefits that are received by Merit System Employees.’ ” Birchfield testified that she was given a copy of Tucker’s September 25, 2003, e-mail to Hand.

Hand responded to Tucker’s e-mail in an e-mail dated September 29, 2003, in which he stated:

“I have a memo in my files dated June 10,1992 from Andy Strickland giving his opinion as to whether the Chief Deputy Tax Assessor was eligible for longevity payments. In that memo, Andy states, regarding Act 87-421: ‘The compensation limitation of “ninety percent” in Section 3 applies only to “such compensation.” It does not apply to the “benefits ... including longevity payments” in Section 4.’ Also, in the memo’s conclusion, Andy writes: ‘Section 4 of Act No. 87-421 which awards “all benefits ... including longevity payments” to said Chief Deputy is “extended” by Act No. 89-1009 and such benefits, including longevity payments, are in addition to the annual salary and are not limited by the 90% cap on the “salary” of the Chief Deputy.’
“If the benefits authorized by Section 4 of Act No. 87-421 are in addition to the annual salary, as Andy states, then the 3% COLA should not be considered such a benefit because the COLA is not in addition to the annual salary, but becomes a part of the annual salary (i.e., the COLA is an adjustment to the salary; it is referred to as a ‘salary adjustment increase’ throughout the Commission resolution which authorizes it). And if the argument is now being made that the COLA should be considered a benefit authorized by Section 4, then why have we not been paying (and no one, to my knowledge, has ever argued that we should have paid) the COLA to the Chief Deputies each year in the past since, in Andy’s opinion, such benefits were not limited by the 90% cap on salary?
“Unless instructed otherwise by my supervisors or the County Attorney’s office, we will proceed with implementing the pay rates for the Chief Deputies (which do not include the 3% COLA) as stated in the email I sent to you last week.”

Birchfield testified that Tucker gave her a copy of Hand’s September 29, 2003, e-mail.

Birchfield testified that, on September 30, 2003, she received an e-mail from Tucker, which stated:

“Ok so the COLA is not considered as a ‘benefit.’ So it becomes ‘compensation.’ Now the problem is the salary is set legislatively at $59,778 and is no longer at 90%. The 90% was used as a cap only and not as a minimum salary. Do you want to respond?”

Birchfield testified that she then sent Hand an e-mail on September 30, 2003, which stated:

“Doug — It looks like the basic problem is in terminology and definition. When Andy said in his last sentence ‘are in addition to the annual salary and are not limited by the 90% cap on the “salary of the Chief Deputy,’ he should have used the wording from the ’87 bill, Section 3, which states ‘compensation.’ I was appointed in 1987 under that enabling act and was told that my compensation would equal Merit System Grade 30 not to exceed 90% of the appointing authorities’ compensation. Other legislation passed in 89 (Act 89-1009) set the salary of the appointing authorities and the chief deputies (the chief deputies’ salary still did not exceed the 90% cap on compensation set under 87-421 but if it had we would have been limited to 90% of the compensation of the appointing authority). Act 96-541 simply eliminated the Step 5 within Class 30 and had no effect on the compensation of said Chief Deputies. Act 99-647 gave the appointing authorities and the chief deputies an expense allowance (another form of compensation) that rolled into salary and also set the salary of all effective October 1, 2003. Salary is just one form of compensation and should not be read as replacing the promise of compensation made to the Chief Deputies in Act 87-421. Act 99-647 which allowed expense allowances for the Chief Deputies as well as the Appointing Authorities clearly shows that other forms of compensation should [be] and are allowed to the Chief Deputies.
“The COLA granted to the Appointing Authorities is definitely a form of compensation even when it turns into salary at the beginning of the term. Salary being only a part of compensation, the chief Deputies should receive an allowance that takes them back up to 90% of the compensation of the Appointing Authorities.
“Act 99-647 does not have a repealing statement so it did not repeal 87-421. Acts 89-1009 and 96-541 which deal with salary of the Chief Deputies was not intended to repeal Section 3 of 87-421 because salary is clearly shown as a portion of compensation — there is no conflict there. In fact, both of these laws state that ‘It is further provided that the provisions of Act No. 87-421 and 88-946 shall be extended by the enactment of this bill,’ indicating that there was no intent to repeal anything.
“The Jefferson County Commission provides a Statement of Compensation annually to all its employees listing all the forms of compensation given to employees and stresses that salary is just a part of compensation.
“Please correct my compensation to include the salary as set under Act 99-647 and other allowances that would make the compensation equal to Grade 30 step 10 as provided under Act 87-421, not to exceed 90% of the compensation of the Assistant Tax Assessor, Karen Tucker.”

That same day, Hand sent Birchfield an e-mail stating:

“Effective October 1, 2003, your salary is set at an annual amount of $59,778 by Act # 98-647. As of that date, the amount you are paid no longer has anything to do with the amount paid to a Grade 30 in the Jefferson County Merit System nor is it affected in any way by the amount paid to the Tax Assessor-Bessemer (i.e., the maximum limitation of 90% of the salary paid to the Tax Assessor-Bessemer is no longer in effect).
“You make the statement ... that ‘Salary is just one form of compensation and should not be read as replacing the promise of compensation made to the Chief Deputies in Act 87-421.’ The issue of the amount of compensation to be paid to Chief Deputies is addressed in the first sentence of Section 3 of Act #87-421 which reads as follows: ‘Said Chief Deputies shall be compensated at a rate equal to Jefferson County Merit System Class Thirty, however, in no event shall such compensation exceed ninety percent of the compensation received by the Appointing Authority.’ I don’t see how this compensation described in Section 8 could be interpreted as anything other than salary, primarily because the compensation was set at a rate equal to a Jefferson County Merit System Class (or Grade) 30 and each Grade in the Merit System has a range of salary amounts assigned to it. So if you are talking about the amount paid to a Grade 30 in the system, you are talking about a salary amount. There is no other type of compensation assigned to a Grade 30 in the system, only salary. In fact, in the subsequent acts (#89-1009 and # 96-541) related to the pay of the Chief Deputies, the term salary is used in Section 3 of those acts when discussing the issue of the amount to be paid being equal to the amount paid to a Grade 30.
“With that being the case, I believe it becomes clear that Act # 89-1009 simply changed Section 3 to read Class (i.e., Grade) 30, Step 5 instead of just Class 30; Act #96-541 changed Section 3 to once again read just Class 30; and then Act # 99-647 set a new salary amount effective October 1, 2003 which replaces the salary amounts authorized by these previous acts.
“As for the implementation of these new pay rates, my plan remains the same as stated in the last paragraph of my email sent to Karen yesterday....”

Subsequently, Birchfield received a copy of an opinion of the Alabama Attorney General, which had been requested by a member of the Alabama Legislature. In pertinent part, that opinion, which was dated July 27, 2004, stated:

“The acts state that the ‘Chief Deputy shall receive any and all benefits that are received by Merit System Employees, including longevity payments ... ’ ... It is the opinion of this Office that cost-of-living increases qualify as such a benefit. Therefore, if the Jefferson County Commission grants merit system employees in Jefferson County a cost-of-living increase, the chief deputies would be entitled to the same cost-of-living increase. This cost-of-living increase will not be subject to a limitation of 90 percent of the cost-of-living increase received by the appointing authorities. The only limitation placed on the compensation of the chief deputies is that their salary should not ‘exceed 90 percent of the annual salary received by the appointing official.’ 1996 Ala. Acts No. 96-541, 757.”

(Emphasis added.)

Birchfield testified that, after she received a copy of the attorney general’s opinion, she telephoned Jeff Sewell, who was then the assistant county attorney, and asked him whether she would be entitled to COLAs, and that Sewell told her that the attorney general’s opinion “clearly state[d] that [she] should have had [COLAs] since 1987.” Birchfield further testified that she asked Sewell what course of action she should take to obtain COLAs and that Sewell told her to notify Hand. Birchfield testified that she told Sewell that she wanted to claim the COLAs she should have received since 1987 and that Sewell told her to tell the payroll clerk that she wanted to file a claim against the county. Birchfield also testified that she communicated the substance of her conversation with Sewell to Tucker and the persons who were appointed chief deputies in Birmingham and Bessemer.

On September 8, 2004, Birchfield submitted to Jefferson County a written claim for COLAs from 1987 through August 2004. Her claim totaled $98,575.49. Birchfield testified that, on September 15, 2004, Jefferson County paid her $1,640.76 as a COLA for the period October 1, 2008, through September 15, 2004. On September 28, 2004, Birchfield submitted an amended claim for COLAs for the period September 29, 1987, through September 30, 2003. In February 2005, Jefferson County paid Birchfield $1,352.40, which represented a COLA for the period October 1, 2002 through September 30, 2003. In January 2006, Birchfield submitted an amended claim for COLAs totaling $135,333.44. Birchfield later received COLAs for the periods October 1, 2005, through September 30, 2006, and October 1, 2006, through September 30, 2007.

Birchfield testified that, after receiving additional information from Jefferson County regarding the COLAs authorized by the Jefferson County Commission for the period from September 29, 1987, through September 30, 2002, she had calculated that the total COLAs she was due was $141,542.24.

Standard of Review

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Phil-pot v. State, 843 So.2d 122, 125 (Ala. 2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Ro-well, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Analysis

Jefferson County argues, among other things, that the trial court erred in finding in favor of Birchfield with respect to her misrepresentation claim because, Jefferson County says, the statements upon which Birchfield bases her misrepresentation claim were all expressions of opinion. In Jones v. McGujfin, 454 So.2d 509 (Ala. 1984), the McGuffins conditioned their purchase of a home on a favorable report by a structural engineer. Jones, the structural engineer, inspected the home and, although he noted several cracks in the walls, stated that “in [his] opinion” the home was in excellent structural condition. 454 So.2d at 510. The McGuffins purchased the home and soon thereafter had to spend over $12,000 to repair the foundation of the home. The McGuffins sued Jones and stated a claim of misrepresentation. The supreme court held that “mere statements of opinion are not material facts upon which actions for legal fraud can be maintained.” 454 So.2d at 512.

In the case now before us, the statutes governing Birchfield’s compensation did not specifically address the question whether she was entitled to COLAs. Consequently, until the legislature enacted an act specifically answering that question or that question was resolved by a court of last resort, see, e.g., Ex parte C.L.C., 897 So.2d 234, 236-37 (AIa.2004) (holding that an appellate court accords no presumption of correctness to a trial court’s ruling on a question of law and that, on certiorari review, the supreme court accords no presumption of correctness to the legal conclusions of an intermediate appellate court), any statement purporting to answer that question was necessarily a mere expression of opinion. Even the attorney general’s opinion concluding that Birch-field was entitled to COLAs was merely an advisory opinion. See Osborne v. Banks, 489 So.2d 695, 698 (Ala.1983) (“Although an attorney general’s opinion is entitled to great weight, it does not have the force and effect of law and is only advisory in nature.”). Birchfield admitted that, when Scott told her in 1987 that she would not be entitled to COLAs under Act No. 87-421, he was expressing his “opinion.” Accordingly, we conclude that the representations on which Birchfield bases her misrepresentation claim were merely expressions of opinion that will not support a misrepresentation claim and, therefore, that the trial court erred in finding in favor of Birchfield with respect to her misrepresentation claim. See Jones.

Paragraph 15 of the trial court’s judgment appears to find in favor of Birchfield with respect to her claim seeking a declaratory judgment. With respect to that ruling, Jefferson County argues, among other things, that the trial court erred because, Jefferson County says, the statute of limitations contained in § 6-2-38(m), Ala.Code 1975, bars Birchfield’s claim for declaratory relief. Section 6-2-38(m) provides:

“(m) All actions for the recovery of wages, overtime, damages, fees, or penalties accruing under laws respecting the payment of wages, overtime, damages, fees, and penalties must be brought within two years.”

The parties have not cited any caselaw specifically addressing the issue whether a COLAs constitutes “wages” within the meaning of § 6-2-38(m); however,

“[w]hen interpreting a statute, this Court is bound to look to the plain meaning of the words used by the legislature.
“ ‘ “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’
“ ‘ “Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992))....’”
“Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138,149 (Ala.2006).”

Cleburne County Comm’n v. Norton, 979 So.2d 766, 773 (Ala.2007). Black’s Law Dictionary 1610 (8th ed.2004) defines “wage” as follows:

“(usu[ally] pi [ural ]) Payment for labor or services, usu[ally] based on time worked or quantity produced; specifically], compensation of any employee based on time worked or output of production • Wages include every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, bonuses, and the reasonable value of board, lodging, payments in kind, tips, and any similar advantage received from the employer. An employer usu[ally] must withhold income taxes from wages.... ”

(Emphasis added.) Accordingly, we conclude that COLAs constitute “wages” for purposes of § 6-2-38(m). Consequently, § 6-2-38(m) barred Birchfield from recovering any COLAs she may have been owed for periods more than two years before she filed her action. Because she had been paid all COLAs she may have been owed for periods within two years before she filed her action, the trial court erred in finding in her favor with respect to the claim seeking a declaratory judgment. See § 6-2-38(m).

In summary, we reverse the judgment of the trial court insofar as it found in favor of Birchfield with respect to her claim of misrepresentation and her claim seeking a declaratory judgment, and we remand the cause to the trial court for further proceedings consistent with this opinion. We pretermit discussion of the other issues and arguments presented by Jefferson County.

REVERSED AND REMANDED.

PITTMAN and MOORE, JJ., concur.

THOMPSON, P.J., and THOMAS, J„ concur in the result, without writings.

      . This appeal was previously assigned to another judge of this court.

      . Because the resolution of this appeal does not require us to reach the issue whether Birchfield was entitled to COLAs from September 29, 1987, through September 30, 2002, we express no opinion regarding that issue.

      . The judgment of the trial court implicitly found in favor of Jefferson County with respect to Birchfield’s breach-of-contract claim, and that holding is supported by Alabama caselaw holding that "the salary of a public officer is not based upon a contract.” Cle-burne County Comm’n, 979 So.2d at 772. Neither party has challenged that ruling of the trial court on appeal.