text:
    Jane DOE, Appellant v. HUNTER OAKS APARTMENTS, L.P., Appellee.
    No. 2011-CA-00795-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.

      James Ashley Ogden, James W. Smith Jr., Wendy Michelle Yuan, Jackson, attorneys for appellant.
    William M. Dalehite Jr., Jackson, James Seth McCoy, attorneys for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. “It is basic tort law that before one can be found negligent he must owe a duty to the injured party.” Here, Jane Doe, the manager of Shadowbrook Apartments, sued Hunter Oaks Apartments L.P., an adjacent apartment complex, alleging the brother of one of Hunter Oaks’ tenants went through a hole in Shadowbrook’s fence and sexually assaulted Doe in Sha-dowbrook’s office. Doe sought to hold Hunter Oaks liable for her assailant’s criminal act because it did not evict the attacker’s brother or repair the hole in Shadowbrook’s fence. The circuit court granted summary judgment in favor of Hunter Oaks on Doe’s negligence claim, finding Hunter Oaks owed her no duty.

¶ 2. On appeal, we find Hunter Oaks’ alleged failure to act can only support a claim of breach of duty if Hunter Oaks owed Doe a duty to act. And because Hunter Oaks had neither an existing duty nor a voluntarily assumed duty to control the conduct of Doe’s assailant outside its premises, we affirm the grant of summary judgment in favor of Hunter Oaks.

Background

¶ 3. Hunter Oaks leased an-apartment to Joe Beard and his mother. Joe’s brother, Matthew Beard, though not on the lease, often stayed with Joe in the apartment. Apparently the Beard brothers were part of a group of loiterers who lived in “the back” of Hunter Oaks. They were also frequent trespassers on Shadowbrook’s property, accessing the property through a hole in Shadowbrook’s wooden fence that separated the two apartment complexes. According to Doe, she complained to Hunter Oaks’ property manager, Lee Reese, about the trespassers and their drug activity on Shadowbrook’s property. When Doe described the trespassers, Reese identified the Beard brothers as part of the group. Reese purportedly told Doe, “I’m going to take care of that; I’m cleaning up the riff-raff.” Based on this representation, Doe asserts she believed Reese meant Hunter Oaks was going to evict Joe.

¶ 4. A month later, Doe again spoke to Reese about the trespassers. Doe claimed Shadowbrook had just repaired the fence, only for the hole to immediately reappear. When Doe again complained to Reese about the fence, Reese assured her not to worry because Hunter Oaks was “getting rid of’ the troublemakers.

¶ 5. The day before the assault, one of the trespassers came onto Shadowbrook’s property. He entered Doe’s office and asked if he could use her restroom. Doe thought he had an ulterior motive because he acted suspiciously and immediately left when one of the groundskeepers entered the office. Believing the trespasser had been “casing” the office, Doe called her supervisor and told her to anticipate a robbery that night. Doe also called Sha-dowbrook’s courtesy officer and the Clinton Police Department. One of the police officers who took her complaint was also a courtesy officer for Hunter Oaks. He identified the trespasser as Matthew, one of the troublemakers who lived in Hunter Oaks. Early the next day, Matthew returned to Shadowbrook’s office and sexually assaulted Doe at gunpoint.

¶ 6. Doe sued Hunter Oaks for negligence. The Hinds County Circuit Court granted Hunter Oaks summary judgment. The circuit court found Doe failed to show Hunter Oaks owed her “a definable legal duty.” Specifically, the circuit court found: “Mississippi law does not impose a duty on the management of Hunter Oaks to remove any individual from Hunter Oaks property at the request of the Plaintiff,” and “any conversations between ... Jane Doe and the manager of Hunter Oaks did not as a matter of law impose any duty on the part of Hunter Oaks to Jane Doe.”

¶ 7. Doe timely appealed.

Standard of Review

¶ 8. We review grants of summary judgment de novo, employing the same standard as the trial court. If all evidence before the court, viewed in the light most favorable to the non-moving party, shows the moving party is entitled to a judgment as a matter of law, summary judgment should be granted. M.R.C.P. 56(c); Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 762 (Miss.1989) (citation omitted). We also review questions of law de novo. Belmont Homes, Inc. v. Stewart, 792 So.2d 229, 232 (¶ 11) (Miss.2001) (citing In re Estate of Bodman, 674 So.2d 1245, 1247 (Miss.1996)).

¶ 9. The circuit court granted summary judgment, finding, as a matter of law, Hunter Oaks owed no duty to Doe. Whether a duty exists in a negligence case is a question of law to be determined by the court, not a question of fact for the jury. Kimbrough v. Keenum, 68 So.3d 738, 740 (¶ 11) (Miss.Ct.App.2011).

Discussion

¶ 10. No one disputes Matthew assaulted Doe and caused her injuries. Instead, our inquiry focuses on the duty element of negligence. The particular question we must decide is whether Hunter Oaks had a duty to control Matthew’s conduct and prevent him from assaulting Doe.

¶ 11. Hunter Oaks certainly did not have an existing duty to control Matthew or protect Doe from Matthew’s criminal acts, which did not occur on Hunter Oaks’ premises. But Doe argues Hunter Oaks, nonetheless, assumed a duty through Reese’s promises to clean up “the riff-raff” from Hunter Oaks’ property and to repair the fence.

I. When a Legal Duty Exists

¶ 12. “Common law traditionally has not imposed a broad duty upon individuals to control the conduct of others.” Warren ex rel. Warren v. Glascoe, 852 So.2d 634, 639 (¶ 17) (Miss.Ct.App.2003) (citation and quotation omitted). The Restatement (Second) of Torts § 315 (1965) illustrates:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Neither such relationship existed here.

A. No Special Relationship Between Hunter Oaks and Matthew

¶ 13. In Mississippi, only those who “take charge” of a third party have the duty to control that third party’s criminal acts. Doe v. State ex rel. Miss. Dept. of Corr., 859 So.2d 350, 359 (¶ 33) (Miss.2003) (citation omitted); see also Restatement (Second) of Torts § 319 (1965). And to “take charge” of a third party, one has to have “the ability to control another’s conduct.” Doe, 859 So.2d at 360 (¶ 33). “A person who does not have the ability to control another’s conduct should not have liability imposed upon him or her for the tortious act of that other person.” Id.

¶ 14. In Doe v. State, a rape victim sought to hold the Mississippi Department of Corrections (MDOC) liable because her attacker was a state parolee. But the Mississippi Supreme Court noted it was “a naive fiction to say parole officers have control over felons who are free on parole.” Id. Here, while Hunter Oaks’ manager said he was “taking care” of the trespassing problem and “getting rid” of the Beard brothers, Hunter Oaks did not have the ability to control Matthew’s actions. Hunter Oaks could have evicted Joe and instructed Matthew to stay off Hunter Oaks’ property. Yet it had no ability to control where Matthew went after he left Hunter Oaks’ property. Nor did it have the ability to prevent him from committing a crime off Hunter Oaks’ property. Drawing from Doe v. State, if the MDOC does not have the level of control over its parolees to impose liability for their criminal acts, Hunter Oaks, the mere landlord of Matthew’s brother, certainly did not have the requisite control to impose a duty upon the complex.

B. No Special Relationship Between Hunters Oaks and Doe

¶ 15. While not exclusive, the Restatement specifically lists four special relationships that give rise to a right of protection from a third party’s actions: (1) a common carrier and its passengers, (2) an innkeeper and his guests, (3) a landowner and his invitees, and (4) a custodian (such as a jailer or schoolteacher) and a person who is deprived “of his normal opportunities for protection” (such as a prisoner or kindergartner). Restatement (Second) of Torts § 314A (1965). Hunter Oaks was in none of those relationships with Doe.

¶ 16. Hunter Oaks is a landowner. And as such, it “owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another.” Simpson v. Boyd, 880 So.2d 1047, 1051 (¶ 14) (Miss.2004) (citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (¶ 6) (Miss.2002)). But Doe was not an invitee of Hunter Oaks when she was attacke d. Doe admits the assault occurred on Shadowbrook’s premises, not Hunter Oaks’.

¶ 17. We recently refused to extend a landowner’s duty to protect beyond “property neither owned nor controlled by the landlord.” Kimbrough, 68 So.3d at 740 (¶ 12). In Kimbrough, the victims of a pit-bull attack sued the landowner of the property where the dogs had been kept. Neither the landowner nor her tenant owned the dogs — they belonged to the tenant’s boyfriend. And the attack did not occur on the landowner’s property. Because the landowner neither controlled the dogs nor the property where the attack occurred, this court held, as a matter of law, the landowner owed the victims no duty. Id. at 741 (¶ 15).

¶ 18. Like Kimbrough, in addition to not controlling Matthew, Hunter Oaks had no control over Shadowbrook, where the assault occurred. So Hunter Oaks was not in a special landowner-invitee relationship giving rise to a duty to protect Doe.

II. When a Legal Duty Is Assumed

¶ 19. Doe argues that, while no duty arose out of a special relationship between Hunter Oaks and Matthew or Hunter Oaks and Doe, Hunter Oaks assumed a duty. Doe claims Hunter Oaks assumed a duty to evict Joe and keep the Beards off both Hunter Oaks’ and Shadow-brook’s property when Reese assured Doe he was going to “get [the Beards] off the property” and “take care of the problem.” And by once repairing the hole in Shadow-brook’s fence, Doe claims Hunter Oaks assumed the duty to maintain the fence to keep its tenants from accessing Shadow-brook’s property. But Doe fails to show detrimental reliance on Reese’s promises — a requirement for a gratuitous promise to create a legal duty — or that preventing Matthew from assaulting Doe off Hunter Oaks’ premises fell within the scope of any promise undertaken by Reese.

A. No Detrimental Reliance

¶ 20. A duty can be assumed either by contract or by a gratuitous promise that induces detrimental reliance. Doe ex. rel Doe v. Wright Sec. Servs., Inc., 950 So.2d 1076, 1080 (¶ 13) (Miss.Ct.App.2007) (citations omitted); Wagner v. Mattiace Co., 938 So.2d 879, 885 (¶ 20) (Miss.Ct.App.2006). While Doe partly relies on Doe v. Wright Security, that case concerns a duty assumed through a contract. Here, Doe presented no evidence that Hunter Oaks entered any contract for which she was a third-party beneficiary. Cf. Doe, 950 So.2d at 1081 (¶ 15) (holding a security company, which entered a contract with a school district to monitor a bus stop, contractually obligated itself to a duty to protect the students as third-party beneficiaries). So if a duty was assumed, it had to be assumed through a gratuitous promise by Reese, as Hunter Oaks’ agent — which means Doe had to show detrimental reliance.

¶ 21. The mere promise to act does not create a duty to act. Wagner, 938 So.2d at 886 (¶ 24) (citing Restatement (First) of Agency § 378 (1933)). The promise to act must induce detrimental reliance for liability to arise. “[F]or a party to be held liable for negligent performance of a gratuitous or voluntary act, the plaintiff must .show detrimental reliance on the performance.” Id. at 885 (¶21) (citing Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1147 (¶ 41) (Miss.2004); Century 21 Deep S. Props, v. Corson, 612 So.2d 359, 368-69 (Miss.1992); Higgins Lumber Co. v. Rosamond, 217 Miss. 1, 8, 63 So.2d 408, 410 (1953)).

¶ 22. There is no evidence Doe detrimentally relied on Reese’s assurances. Doe did not forego any security measures already in place in light of Reese’s comments. Nor did she refrain from trying to keep the trespassers off Shadowbrook’s property. According to Doe’s deposition testimony, the day before the attack, Doe alerted her supervisor, Shadowbrook’s courtesy officer, and the Clinton Police Department about Matthew’s coming into the office. So Doe cannot show she forwent any security measures in reliance on an assumed duty by Hunter Oaks. See Rein, 865 So.2d at 1147 (¶ 41) (holding a landscaper owed no assumed duty to provide pest control because the property owner “was not induced to forego other methods of pest control in reliance on any assumed duty by [the landscaper]”).

¶ 23. Similarly, without detrimental reliance, providing a gratuitous service in the past does not create a duty to continuously perform the service in the future. Wagner, 938 So.2d at 886 (¶ 24) (citation omitted). While Doe presented some evidence that Hunter Oaks once repaired the fence in the past, there was also evidence Sha-dowbrook had more recently repaired the fence. So Doe cannot show that Shadow-brook forewent further repair of the fence in detrimental reliance that Hunter Oaks would continue to make repairs.

B. Not Within the Scope of the Undertaking

¶ 24. Even if Doe can show an assumed duty based on detrimental reb-anee, the assumed duty is limited to the scope of the gratuitous undertaking. Wagner, 938 So.2d at 885 (¶ 21). This is different from an existing duty (i.e., a duty that arises out of a special relationship), in which the existence of a duty to act is determined by the reasonable foreseeability of the injury. Id. at 884 (¶ 17), 886 (¶ 22). With an assumed duty, “foreseeability [of the injury] is not a factor to consider when determining if a duty is voluntarily assumed[.]” Id. at 884 (¶ 17). Even if the party who assumed a duty reasonably foresees that its failure to act will cause injury, it will not be held liable if the failed action is not within scope of the duty assumed. See id. at 885-86 (¶¶ 21-22).

¶ 25. For example, Wagner was a slip- and-fall case in which the plaintiff sued, among other parties, the company that had cleaned and made a few repairs to the location where the plaintiff fell, before the lessee had moved in. The plaintiff alleged she fell on a ridge in the floor, left when the old lessee, a grocery store, moved its shelving units out. She claimed the cleaning company had assumed the duty to remove the ridge because it was reasonably foreseeable she would be injured if the ridge was not removed. Id. at 886 (¶ 22). But this court rejected that logic. Because the issue was an assumed duty, we found the cleaning company’s duty was limited to the scope of its undertaking, which did not include removing the ridges from the floor. Id. at (¶ 23). And because the plaintiff “did not allege that breach of any of these assumed duties caused her injuries,” her claim against the cleaning company failed. Id.

¶ 26. So even if Hunter Oaks, through Reese’s gratuitous promises, assumed a duty to evict Joe and, through previous repair of the fence, assumed a duty to continue to repair the fence, its duties were limited to those tasks. Doe places a great deal of emphasis on what Reese knew or should have known about: (1) the hole in the fence, (2) Matthew’s living in Joe’s apartment, and (3) Joe’s criminal background. But what Reese knew or should have known goes to the issue of foreseeability, which is not relevant in determining whether an assumed duty exists. See id. at 884 (¶ 17), 886 (¶ 22); see also Kimbrough, 68 So.3d at 741 (¶ 15) (finding that, because the landlord owed no duty to the dog-attack victims injured off premises by a third-party’s dogs, the issue of whether the landlord knew the dogs were dangerous was moot). Consequently, what Reese reasonably foresaw would happen if the Beard brothers were not evicted or the fence was not repaired is also irrelevant.

¶27. Instead, the relevant inquiry is whether Doe alleged that the breach of any of Hunter Oaks’ duties caused her injuries. See Wagner, 938 So.2d at 886 (¶ 23). Doe’s injuries were caused by the criminal acts of Matthew. While Hunter Oaks may have assumed a duty to evict Joe and, consequently, Matthew, it did not assume the duty to undertake the type of control over Matthew required to impose liability for his criminal actions. And while Hunter Oaks may have promised to make its premises safer by removing tenants who were also trespassing on Sha-dowbrook’s property and repairing the fence through which tenants had trespassed, it did not undertake to protect Doe from Matthew’s criminal acts performed off its premises.

¶28. The victims in Kimbrough had also argued assumption of duty, based on the landlord’s admission in her deposition that she had a duty to protect her neighbors from the dogs on her property. Kimbrough, 68 So.3d at 741 (¶ 16). But this court rejected that argument since there was no evidence the landlord had contractually or voluntarily assumed a duty to control the dogs. Id. The same is true here. There is no evidence Hunter Oaks voluntarily assumed the level of control of Matthew or protection of Doe to make it liable for Matthew’s criminal actions.

¶ 29. Because Doe failed to establish the existence or assumption of a duty owed to her by Hunter Oaks in relation to Matthew’s criminal attack, we affirm the circuit court’s grant of summary judgment in favor of Hunter Oaks on Doe’s negligence claim.

¶ 30. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . Century 21 Deep S. Properties, Ltd. v. Corson, 612 So.2d 359, 368 (Miss.1992).

      . Doe also sued Shadowbrook, who settled, and Shadowbrook’s management company and her supervisor, who were both dismissed based on the exclusive remedy provided under workers’ compensation law, leaving Hunter Oaks as the only defendant.

      . Matthew was convicted of sexual battery and is currently serving a twelve-year sentence.

      .“It is well settled that to prevail on a negligence claim, a plaintiff must prove, by a preponderance of the evidence, duty or standard of care, breach, causation and damages. [And][s]ummary judgment is appropriate where the nonmoving party cannot make a prima facie showing of all of the elements of his or her claim.” Huynh v. Phillips, 95 So.3d 1259, 1262 (¶ 9) (Miss.2012) (citations omitted).


source: Caselaw Access Project

author: WISE, Justice.

license: Public Domain

text:
    William HARRIS, in his official capacity as president of Alabama State University, et al. v. Felisa OWENS.
    1110421.
    Supreme Court of Alabama.
    Sept. 21, 2012.

      Kenneth L. Thomas, chief legal officer, Alabama State University, Montgomery; and Frederic A. Bolling of The Bolling Law Firm, LLC, Pleasant Grove, for appellant.
    Fred F. Bell, Montgomery, for appellee.
   WISE, Justice.

The respondents, William Harris (“Harris”), in his official capacity as president of Alabama State University (“ASU”), and the individual members of ASU’s Board of Trustees (“the Board”), in their official capacities as members of the Board, appeal from the circuit court’s order granting the petition filed by Felisa Owens seeking a writ of mandamus and declaratory relief as a result of the termination of her employment with ASU and awarding Owens full backpay and benefits.

Facts and Procedural History

On October 19, 2009, Carmen Douglas, vice president of ASU’s Office of Human Resources, delivered a notice-of-termination letter to Owens. The letter stated that Harris had approved a recommendation to terminate Owens’s employment and informed Owens of her right to request a hearing in accordance with ASU policy.

On October 20, 2009, Owens requested a hearing. On October 22, 2009, Owens was placed on administrative leave with pay pending the outcome of the hearing. After conducting a hearing, the hearing officer recommended that Owens be suspended for 30 days without pay.

ASU’s Office of Human Resources received a copy of the hearing officer’s findings and recommendation on January 4, 2010. Douglas subsequently sent Owens a letter dated February 1, 2010. In that letter, Douglas stated that Harris had rejected the hearing officer’s findings and recommendation; that the termination of Owens’s employment was upheld; that the termination of her employment was effective January 31, 2010; and that she would cease receiving benefits effective March 1, 2010. Owens appealed her termination to the Board.

Owens stopped receiving salary and benefits bn March 1, 2010. Subsequently, Douglas sent Owens a letter dated May 7, 2010, informing her that the Board had upheld the decision to terminate her employment.

On June 29, 2010, Owens filed a “Petition for Writ of Mandamus and Petition for Declaratory and Injunctive Relief’ in the Montgomery Circuit Court. Harris was named as a respondent in his official capacity as the president of ASU. Elton Dean, Oscar Crawley, Bobby Junkins, Taylor Hodge, Buford Crutcher, Thomas Figures, Lawrence Lemak, Marvin Wiggins, and Herbert Young were also named as respondents in their official capacities as members of the Board. In her petition, Owens alleged that, at the time she was notified that Harris had approved the recommendation to terminate her employment, she was a permanent employee of ASU; that § 2.6 of the Non-Academic Handbook (“the handbook”) stated that a permanent employee may not be dismissed except through the due-process procedures set forth in the handbook; and that, in terminating her employment, the respondents did not comply with the due-process procedures set forth in the handbook.

On August 17, 2010, the respondents filed a motion for a summary judgment in which they argued that Owens could not meet the initial requirement for a writ of mandamus, i.e., she could not establish a clear legal right to the order sought because she had received written notice of the allegations against her and had had an evidentiary hearing before a hearing officer; that the procedural defects about which Owens complained did not amount to violations of the handbook; and that, even if the defects did amount to violations of the handbook, any error was harmless and would not support Owens’s claim for relief.

On September 7, 2010, the circuit court conducted a hearing on the respondents’ motion for a summary judgment, and, on October 6, 2010, the circuit court denied the motion for a summary judgment. After conducting some discovery, the respondents, on June 21, 2011, renewed their motion for a summary judgment, in which they again argued that the alleged procedural defects did not amount to violations of the handbook and that, even if the defects did amount to violations of the handbook, any error was harmless and did not justify the relief sought by Owens. Owens filed a response, and, after conducting a hearing, the circuit court denied the renewed motion for a summary judgment.

On September 14, 2011, the circuit court entered a final order. In that order, the circuit court stated that the facts were undisputed and that the issue involved was predominantly a legal one. The circuit court found that, in terminating Owens’s employment, the respondents did not comply with the procedures set forth in the handbook. It also found:

“The Foreword to the Handbook makes clear that ‘[a]ny policies issued by any individuals or agency in conflict with these policies are null and void.’ The actions of the officials at ASU in terminating [Owens] conflict with the policies set forth in the Handbook. Respondents do not dispute the sworn allegations of [Owens]; rather, they argue the Respondents’ failure to follow the mandated policies at ASU amounts to harmless error and that they are afforded wide discretion. The Court is not persuaded and disagrees.
“By refusing to follow the mandates of the Handbook, Respondents abused their discretion and exercised that discretion in an arbitrary and capricious manner. As such, mandamus will lie to compel a proper exercise of that discretion. The Court finds that [Owens’s] request for mandamus and declaratory judgment relief is due to be GRANTED.
“The Court having reviewed the petition, answer, motions and responses, oral arguments of counsel, the applicable law, and having reviewed the submissions of the parties, it is ORDERED, ADJUDGED, and DECLARED as follows:
“(A) that the Respondents have violated their mandatory policies with respect to the termination of [Owens];
“(B) that [Owens] has not been properly terminated pursuant to the mandatory policies of ASU;
“(C) that [Owens] still has permanent status as an employee of ASU;
“(D) that [Owens] still has permanent status as an Academic Records Analyst at ASU;
“(E) that the Respondents follow their mandated policies, reinstating [Owens] to her former position or another position with commensurate duties, salary and benefits, with full back pay and back benefits;
“(F) that Respondents reinstate [Owens’s] pay from the date that it ceased to the present, with a reinstatement of benefits and a reinstatement of [Owens] assuming the duties of her position; and
“(G) that costs are taxed against the Respondents for which execution may commence.”

(Capitalization in original.)

On October 13, 2011, the respondents filed a motion to alter, amend, or vacate the circuit court’s final order, which the circuit court denied. This appeal followed.

Standard of Review

“The circuit court’s order issuing a writ of mandamus involves only questions of law. Therefore, the same standard of review applies to both the appeal and petition: a de novo standard. See, e.g., George v. Sims, 888 So.2d 1224, 1226 (Ala.2004) (observing in a case in which the plaintiff sought a petition for mandamus that ‘[b]ecause the facts are undisputed and we are presented with pure questions of law, our standard of review is de novo.’).”

Regions Bank v. Reed, 60 So.3d 868, 877 (Ala.2010). We note that, in Ex parte Miles, 841 So.2d 242, 243-44 (Ala.2002), we stated:

“‘“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).” ’
“(Quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).) Moreover, ‘[t]he burden is on the petitioner who seeks a writ of mandamus to show that each element required for issuance of the writ has been satisfied.’ Ex parte Patterson, 853 So.2d 260, 263 (Ala.Civ.App.2002) (citing Ex parte Consolidated Publ’g Co., 601 So.2d 423 (Ala.1992)).”

Ex parte Serio, 893 So.2d 1148, 1150 (Ala.2004).

Discussion

The respondents argue that the circuit court erred when it granted Owens’s petition for a writ of mandamus and her request for declaratory judgment and awarded Owens backpay and benefits. The respondents contend that they are immune from any claim for monetary damages under Art. I, § 14, Ala. Const. 1901, and that there was not sufficient evidence to support the circuit court’s judgment.

A.

Initially, the respondents contend that the circuit court erred in awarding Owens backpay and benefits because, they say, they are immune from liability for monetary damages pursuant to Art. I, § 14, Ala. Const.1901.

“‘It is settled beyond cavil that State officials cannot be sued for damages in their official capacities. Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 132-33 (Ala.2002).’ Ex parte Dangerfield, 49 So.3d [675,] 681 [(Ala.2010)].”

Ex parte Montgomery Cnty. Bd. of Educ., 88 So.3d 837, 842 (Ala.2012). In Vandenberg v. Aramark Educational Services, Inc., 81 So.3d 326 (Ala.2011), this Court stated:

“This Court has held that the immunity afforded the State by § 14 applies to instrumentalities of the State and State officers sued in their official capacities when such an action is effectively an action against the State. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003). We have specifically ‘extended the restriction on suits against the State found in § 14 “to the state’s institutions of higher learning” and ha[ve] held those institutions absolutely immune from suit as agencies of the State.’ Ex parte Troy Univ., 961 So.2d 105, 109 (Ala.2006) (quoting Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983)). This § 14 bar also prohibits ‘actions against officers, trustees, and employees of state universities in their official capacities.’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004). We have, however, stated that certain causes of action are not barred by § 14:
“ ‘ “ ‘There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, 280 Ala. [635] at 639, 197 So.2d 428 [(1967)]; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).” ’
‘Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006) (quoting [Ex parte] Carter, 395 So.2d [65,] 68 [(Ala.1980)]) (emphasis omitted). These actions are sometimes referred to as “exceptions” to § 14; however, in actuality these actions are simply not considered to be actions “ ‘against the State’ for § 14 purposes.” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those “exceptions,” noting that “ ‘[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiff's recovery of money from, the [S]tate.’ ” Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones).’
“Alabama Dep’t of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala.2008). As clarified in Harbert, these ‘exceptions,’ including the exception for actions seeking a declaratory judgment under the Declaratory Judgments Act, apply only to actions against State officials, not actions against State agencies. Id. at 841. The defendant boards of trustees are corporate bodies governing the universities, and there is no exception to the immunity afforded the State by § 14 that would permit the trial court to entertain an action against them, regardless of whether monetary, injunctive, or declaratory relief is being sought. Accordingly, the boards of trustees are due to be dismissed as parties with regard to all the claims alleged by the students, and we need only consider those claims as they relate to the university administrators and the food-service vendors.

81 So.3d at 332-33 (some emphasis added).

In this case, § 14 immunizes the respondents from any claim for monetary damages. Therefore, the circuit court did not have subject-matter jurisdiction over Owens’s claim for backpay and benefits. See Ex parte Alabama Dep’t of Transp., 978 So.2d 17 (Ala.2007). “ ‘ “ ‘Lacking subject matter jurisdiction [a court] may take no action other than to exercise its power to dismiss the [claim].... Any other action taken by a court lacking subject matter jurisdiction is null and void.’ ” ’ Ex parte Blankenship, 893 So.2d [303,] 307 [(Ala.2004)] (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999), quoting in turn Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996)).” Ex parte Alabama Dep’t of Transp., 978 So.2d at 27. Thus, the circuit court’s order was void to the extent it purported to award backpay and benefits to Owens. “Our remedy in such a situation, when we find no subject-matter jurisdiction in the trial court, is to dismiss the appeal and vacate the trial court’s judgment.” Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 898 (Ala.2008). Accordingly, we dismiss the respondents’ appeal as to the portion of the circuit court’s final order awarding Owens back-pay and benefits, and we vacate that portion of the circuit court’s order.

B.

The respondents also contend that the circuit court erred when it granted Owens’s petition for a writ of mandamus and declaratory relief because

“there is insufficient evidence in the record to support the trial court’s judgment. The evidence before this Court shows that Owens was provided all process that she was due and that any deviation from the strictures of procedures set forth in ASU’s Handbook amounts to ‘harmless error’ and does not form a sufficient basis for overturning ASU’s employment decision.”

(Respondents’ brief, at p. 15.) We note that the respondents cite no specific authority in support of their harmless-error argument, in contravention of Rule 28, Ala. R.App. P.

“ ‘The purpose of Rule 28, Ala. R.App. P., outlining the requirements for appellate briefs, is to conserve the time and energy of the appellate court and to advise the opposing party of the points he or she is obligated to make. United States v. Levy, 391 F.3d 1327 (11th Cir.2004) (discussing the rule that issues not briefed are waived and Rule 28, Fed. R.App. P., which sets out the requirements for appellate briefs in the federal courts). Rule 28(a)(10), Ala. R.App. P., provides that the argument section of the appellant’s brief shall set out “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Additionally, “ ‘[i]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undel-ineated general propositions not supported by sufficient authority or argument.’” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).’
“Ex parte Borden, 60 So.3d 940, 943 (Ala.2007). Because Gracie has not complied with Rule 28(a)(10), we do not consider this issue.”

Van Voorst v. Federal Express Corp., 16 So.3d 86, 92-93 (Ala.2008).

‘“It is well established that general propositions of law are not considered “supporting authority” for purposes of Rule 28. Ex parte Riley, 464 So.2d 92 (Ala.1985).’ S.B. v. Saint James Sch., 959 So.2d 72, 89 (Ala.2006). This Court will not ‘create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). Further, it is well settled that ‘ “[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’” Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993)(quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).”

Allsopp v. Bolding, 86 So.3d 952, 960 (Ala.2011).

The only citations to authority included in the respondents’ argument stand for the general propositions that “[t]he doctrine that error, in order to furnish a ground for reversal, must be prejudicial is generally applied to review of a decision by an administrative board” and that “ ‘[a]n appellate court should view with less strictness the procedural aspects of proceedings before an administrative body than when dealing with procedural aspects occurring in a lower court.’ State v. Alabama Public Service Commission, 293 Ala. 553, 562-63, 307 So.2d 521, 528-29 (1975).” Ferguson v. Hamrick, 388 So.2d 981, 984 (Ala.1980). However, the respondents do not cite any authority that supports their specific contention that the harmless-error rule would apply to their failure to comply with the procedures set forth in the handbook. Therefore, the respondents’ argument in this regard does not comply with Rule 28(a)(10), Ala. R.App. P., and we will not consider this issue. Accordingly, we affirm the portion of the circuit court’s final order granting mandamus and declaratory relief.

For the above-stated reasons, we dismiss the appeal insofar as it is from the portion of the circuit court’s final order awarding Owens backpay and benefits, and we vacate that portion of the circuit court’s final order. However, we affirm that portion of the circuit court’s judgment granting mandamus and declaratory relief.

AFFIRMED IN PART; APPEAL DISMISSED IN PART AND JUDGMENT VACATED IN PART.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.

      . The record does not include a transcript of the September 7, 2010, hearing.

      . The record does not include a transcript of this hearing.

      . The respondents do not contend that they are entitled to immunity as to Owens’s claims for mandamus and declaratory-judgment relief.

      “7 However, although the students may seek injunctive and declaratory relief against the university administrators, § H still immunizes those State officials from any claim for money damages. Harbert, 990 So.2d at 839-41.”

      . This Court in Ferguson was reviewing a decision by the Board of Medical Examiners. Also, this Court in Ferguson noted that there was a statute that specifically provided that the harmless-error rule applied to decisions of the Board of Medical Examiners. However, the respondents do not cite any statute that provides that the harmless-error rule applies to the review of a decision of the Board in this case.


author: BRYAN, Judge.

text:
    Vannessa McGLATHERY v. ALABAMA AGRICULTURAL AND MECHANICAL UNIVERSITY et al.
    2101017.
    Court of Civil Appeals of Alabama.
    Aug. 3, 2012.

      Robert C. Lockwood and Christopher L. Lockwood of Wilmer & Lee, P.A., Huntsville; and Walter S. Turner, Montgomery, for appellant.
    William R. Lunsford and Stephen D. Davis II of Maynard, Cooper & Gale, P.C., Huntsville; and Angela Redmond Debro, gen. counsel, Alabama Agricultural & Mechanical University, Normal, for appellees Alabama Agricultural & Mechanical University, Dr. Andrew Hugine, and Nancy Washington Vaughn.
    Roderic G. Steakley and Matthew B. Reeves of Sirote & Permutt, P.C., Huntsville, for appellees the Board of Trustees of Alabama Agricultural & Mechanical University and the individual trustees.
   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of April 13, 2012, is withdrawn, and the following is substituted therefor.

Vannessa McGlathery appeals from a judgment granting the Rule 12(b)(6), Ala. R. Civ. P., motions to dismiss of Alabama Agricultural and Mechanical University (“the university”); the Board of Trustees of the university (“the board”); the individual members of the board (“the board members”), in their official capacities; Dr. Andrew Hugine, Jr. (“the president”), the president of the university, in his official capacity; and Nancy Washington Vaughn, the university’s director of human resources, in her individual capacity. We affirm in part, reverse in part, and remand.

Procedural History

On December 16, 2010, McGlathery sued the university, the board, the board members, the president, Vaughn, and Dr. Tommy Coleman, a member of the university’s faculty. McGlathery’s complaint contained the following pertinent factual allegations:

“7. Plaintiff, Vannessa McGlathery commenced employment with the University as a Technical Assistant in approximately 1998.
“8. In approximately 2006, Ms. McGlathery was assigned to serve as Administrative Support Coordinator at the AAMU Research Institute (‘AAMU-RP).
“9. AAMURI’s facilities are located on the University’s campus, but AAMURI is not a state agency and is not a subsidiary of the University. Rather, AAMURI is a Section 501(c)(3) nonprofit corporation and is a private entity independent of the University.
“11. While working at AAMURI, Ms. McGlathery served as a dual employee of both the University and AAMURI.
“22. On or about July 20, 2010, Nancy Washington Vaughn issued a letter stating that Ms. McGlathery’s employment with the University would end on August 6, 2010.
“23. Ms. Vaughn has no authority to terminate any employee of the University.
“24. On or about August 6, 2010, Ms. McGlathery instituted a grievance alleging that her employment with the University had been improperly terminated.
“25. On or about August 11, 2010, Ms. Vaughn issued a letter to Ms. McGlath-ery stating that Ms. McGlathery was not eligible to file a grievance because she had not been an employee of the University. Ms. Vaughn’s letter to Ms. McGlathery stated in pertinent part as follows:
“ ‘The Office of Human Resources has determined that the matter for which you seek redress is not subject to the [university] grievance procedure because you are an employee of the AAMURI.... As an employee of the AAMURI, your employment rights have not [sic] adversely affected due to a violation of [the university’s] policies and procedures. Therefore, [the university] is constrained from approving your recent request for a grievance hearing.’
“26. The Defendants are legally bound to follow the policies set forth in the University’s Staff Handbook, adopted by the Board of Trustees on October 29, 1993.
“27. The Staff Handbook is applicable to Ms. McGlathery’s employment with the University.
“28. On or about September 1, 2010, Ms. McGlathery filed an amended and supplemental grievance alleging that she was indeed an employee of the University and that the University had not abid-ed by its adopted policies in attempting to terminate her employment.
“29. The Defendants have failed or refused to respond to Ms. McGlathery’s amended and supplemental grievance.”

Based on those factual allegations, McGlathery stated five claims against the university, the board, the board members, and the president (collectively referred to as “the university defendants”) and one claim against Vaughn. The first claim against the university defendants asserted that McGlathery’s dismissal violated § 16-49-23, Ala.Code 1975, because, she asserted, that Code section granted the board the exclusive and nondelegable power to dismiss university employees. That claim sought a judgment declaring that § 16-49-23 granted the board the exclusive and nondelegable power to dismiss university employees, that her dismissal violated § 16-49-23, that she was entitled to reinstatement, and that she was entitled to wages and benefits she had lost as a result of her dismissal.

McGlathery’s second claim against the university defendants also asserted that her dismissal violated § 16-49-23 because, she asserted, that Code section granted the board the exclusive and nondelegable power to dismiss university employees; however, the second claim sought a writ of mandamus directing the university defendants to reinstate McGlathery and to pay her the wages and benefits she had lost as a result of her dismissal.

McGlathery’s third claim against the university defendants asserted, as an alternative to her first and second claims, that, if § 16-49-23 granted the board the power to delegate its power to dismiss university employees, her dismissal violated policy 9.3 of the university’s staff handbook (“policy 9.3”) because, she asserted, she had not been given three weeks’ notice of her dismissal and her dismissal had not been approved by the president. McGlathery’s complaint alleged that policy 9.3 stated:

“ ‘Staff employees are employees at will and may be terminated without cause by the University upon three weeks notice. Such terminations must ultimately be approved by the President. Termination without cause shall not affect the employee’s right to recover unemployment compensation.’ ”

The third claim against the university defendants sought a judgment declaring that McGlathery’s dismissal was invalid because it violated policy 9.3, that she was entitled to reinstatement, and that she was entitled to wages and benefits she had lost as a result of her dismissal.

McGlathery’s fourth claim against the university defendants asserted that her dismissal without three weeks’ notice and without the approval of the president constituted a breach of contract and sought reinstatement and the wages and benefits she had lost as a result of her dismissal. McGlathery’s fifth claim against the university defendants asserted that her dismissal was not “in accordance with the laws of the State of Alabama or the policies and procedures of the University” and sought a writ of mandamus directing the university defendants to reinstate her and to pay her the wages and benefits she had lost as a result of her dismissal.

McGlathery’s sole claim against Vaughn asserted that Vaughn had intentionally interfered with McGlathery’s business or contractual relations with the university and sought compensatory and punitive damages.

The university defendants and Vaughn filed Rule 12(b)(6) motions to dismiss, and McGlathery filed a pleading in opposition. Following a hearing, the trial court, on April 21, 2011, entered a judgment granting the Rule 12(b)(6) motions. Because it did not dispose of McGlathery’s claim against Dr. Coleman, the trial court certified the judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

In its judgment, the trial court concluded that Article I, § 14, Alabama Constitution of 1901 (“§ 14”), barred all McGlathery’s claims against the university defendants insofar as those claims sought wages and benefits. The trial court further concluded that McGlathery’s first two claims against the university defendants failed to state a valid claim for declaratory relief and a writ of mandamus, respectively, because § 16-49-28 granted the board the power to delegate its power to dismiss university employees. The trial court concluded that McGlathery’s third claim against the university defendants failed to state a valid claim for declaratory relief because the staff handbook did not constitute an “administrative regulation” for purposes of the declaratory-relief exception to § 14. The trial court concluded that the fourth claim against the university defendants failed to state a valid claim for a writ of mandamus because policy 9.3 stated that staff employees of the university were employees at will who could be dismissed without cause and the language stating that dismissals without cause were to be made with three weeks’ notice and with the ultimate approval of the president did not constitute contractually binding promises that would support a breach-of-contract claim.

The trial court concluded that the fifth claim against the university defendants failed to state a valid claim for a writ of mandamus because McGlathery’s dismissal did not violate § 16-49-28 and the language of policy 9.3 stating that dismissals without cause were to be made with three weeks’ notice and with the ultimate approval of the president did not constitute contractually binding promises.

The trial court concluded that McGlath-ery’s claim of intentional interference with business or contractual relations against Vaughn failed to state a claim upon which relief could be granted because Vaughn, as a co-employee of McGlathery, was not a “third party” or a “stranger” to the relationship between McGlathery and the university and because Vaughn was entitled to State-agent immunity.

On May 20, 2011, McGlathery filed a postjudgment motion, which the trial court denied on June 15, 2011. McGlathery then timely appealed to this court. Due to lack of jurisdiction, we transferred the appeal to the supreme court, which transferred it back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

Analysis

Initially, we note that McGlathery has not argued on appeal that the trial court erred in concluding that § 14 barred her claims against the university defendants insofar as those claims sought wages and benefits. Therefore, she has waived the issue whether the trial court erred in that regard. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”). Consequently, we affirm the trial court’s judgment insofar as it concluded that § 14 barred McGlathery’s claims against the university defendants insofar as those claims sought wages and benefits.

We also note that McGlathery has not argued on appeal that the trial court erred in dismissing her claims against the university defendants insofar as those claims were based on the university defendants’ alleged violation of policy 9.3. Therefore, she has waived the issue whether the trial court erred in that regard. Id. Consequently, we affirm the trial court’s judgment insofar as it dismissed McGlathery’s claims against the university defendants insofar as those claims were based on the university defendants’ alleged violation of policy 9.3.

McGlathery does argue that the trial court erred in concluding that § 16-49-23 granted the board the power to delegate its power to dismiss university employees. Before June 9, 2011, § 16-49-23 provided:

“The board of trustees has the power to organize the university by appointing a president, whose salary shall be fixed by the board, and by employing a corps of instructors, who shall be nominated to the board in writing by the president and who shall be styled the faculty of the university and such other instructors and officers as the interests of the university may require; and to remove any such instructors or other officers, and to fix their salaries or compensation and increase or reduce the same at its discretion; to regulate, alter or modify the government of the university, as it may deem advisable; to prescribe courses of instruction, rates of tuition and fees; to confer such academic and honorary degrees as are usually conferred by institutions of similar character; and to do whatever else it may deem best for promoting the interest of the university.”

(Emphasis added.)

McGlathery argues that the language of § 16-49-23, as it existed before June 9, 2011, providing that the board “has the power ... to remove any such instructors or other officers” grants the board the exclusive and nondelegable power to dismiss university employees. The trial court, on the other hand, concluded that the language of § 16-49-23 providing that the board “has the power ... to regulate, alter or modify the government of the university, as it may deem advisable,” grants the board the power to delegate its power to dismiss university employees.

McGlathery cites Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941), in support of her argument that the language of § 16-49-23, as it existed before June 9, 2011, providing that the board “has the power ... to remove any such instructors or other officers” grants the board the exclusive and nondelegable power to dismiss university employees. In Baugh, the supreme court considered the issue whether the power to dismiss teachers granted to local boards of education by section 10 of the Teacher Tenure Act (“section 10”) was delegable. Section 10 provided:

“ ‘Any teacher in the public schools, whether in continuing service status or not, shall be deemed reemployed for the succeeding school year at the same salary, unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school year in which the teacher is employed; provided, however, that in no case shall such notice be given the teacher later than the first day of May of the termination of such employment, and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the first day of June.’ ”

Baugh, 240 Ala. at 394, 199 So. at 824 (emphasis added). The supreme court held that the power to determine whether a teacher should be dismissed is a power that “involves a delicate exercise of a wise discretion,” that the legislature had granted that discretionary power to the local boards of education, and that the local boards of education could not delegate that discretionary power. 240 Ala. at 395, 199 So. at 825. Baugh exemplifies the rule that “[w]hen the legislature has made clear its intent that one public official is to exercise a specified discretionary power, the power is in the nature of a public trust and may not be exercised by others in the absence of statutory authorization.” 63C Am.Jur.2d Public Officers and Employees § 229 (2009). “However, this rule should not be applied when the legislature provides statutory authorization for the delegation of such powers.” Id.

Section 10 contained no language indicating that the legislature intended to grant the local boards of education the power to delegate their power to determine whether teachers should be dismissed. However, § 16-49-23, as it existed before June 9, 2011, not only granted the board the discretionary power to determine whether university employees should be dismissed but also granted it the power “to regulate, alter or modify the government of the university, as it may deem advisable[,] ... and to do whatever else it may deem best for promoting the interest of the university.”

In IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344, 346 (Ala.1992), the supreme court stated:

“The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. 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. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687 (Ala.1991).”

Section 6-49-28, as it existed before June 9, 2011, did not contain any language prohibiting the board from delegating its power “to remove any such instructors or other officers,” and the language granting the board the power “to regulate, alter or modify the government of the university, as it may deem advisable!,] ... and to do whatever else it may deem best for promoting the interest of the university,” is broad enough to include the power to delegate its power “to remove any such instructors or other officers.”

McGlathery, however, argues that the board’s power “to remove any such instructors or other officers” should be treated as an exception to its power “to regulate, alter or modify the government of the university, as it may deem advisable!,] ... and to do whatever else it may deem best for promoting the interest of the university” and cites Murphy v. City of Mobile, 504 So.2d 248 (Ala.1987), in support of that argument. In Murphy, four of the seven members of the Mobile City Council voted in favor of a resolution that Michael Thomas Murphy be appointed to the office of municipal judge; three members voted against it. The presiding officer of the council declared that the resolution had failed because it did not receive a favorable vote from five members. The presiding officer’s decision was based on § 11-44C-28, Ala.Code 1975, which provided that an affirmative vote of at least five members of the council was sufficient for the passage of any resolution. Murphy contended that the resolution had indeed passed because a majority of the members of the council had voted in favor of it and § 12-14-30, Ala.Code 1975, provided that municipal judges were to be appointed by a vote of a majority of the council’s members. The two Code sections conflicted in the ease of a seven-member council because one required five affirmative votes while the other, in the case of a seven-member council, required only four affirmative votes. The supreme court held that, because § 12-14-30 addressed the appointment of municipal judges specifically, while § 11-44C-28 addressed council business in general, § 12-14-30 should be construed as an exception to § 11-44C-28 and, therefore, that four affirmative votes were sufficient to pass the resolution appointing Murphy.

The present case is distinguishable from Murphy, however, because the language of § 16-49-23, as it existed before June 9, 2011, granting the board the power “to remove any such instructors or other officers” does not conflict with the language granting the board the power “to regulate, alter or modify the government of the university, as it may deem advisable!,] ... and to do whatever else it may deem best for promoting the interest of the university.” Likewise, there is no inherent conflict in the legislature’s granting the board the power to dismiss university employees and its granting the board the power to delegate its power to dismiss university employees.

Accordingly, we conclude that the language of § 16-49-23, as it existed before June 9, 2011, granting the board the power to “to regulate, alter or modify the government of the university, as it may deem advisable[,] ... and to do whatever else it may deem best for promoting the interest of the university” granted the board the power to delegate its power to dismiss university employees and, therefore, that Baugh is not controlling in the present case.

McGlathery has cited for the first time in her application for rehearing two other cases that are similar to Baugh, i.e., Chavers v. State Personnel Board, 357 So.2d 662 (Ala.Civ.App.1978), and Blanchard v. Lansing Community College, 142 Mich.App. 446, 370 N.W.2d 23 (1985). However, Chavers and Blanchard are distinguishable from the present case for the same reason as Baugh.

McGlathery also argues that the amendment of § 16-49-23 that became effective on June 9, 2011, indicates that the board did not have the power to delegate its power to dismiss university employees under § 16-49-23 as it existed before June 9, 2011. As amended effective June 9, 2011, § 16-49-23 provides:

“The board shall not engage in activity that interferes with the day-to-day operation of the university. The primary responsibility of the board of trustees is to set policy for the university and prescribe rates of tuition and fees. The board also has the power to organize the university by appointing a president, whose salary shall be fixed by the board. The president shall appoint a corps of instructors who shall be styled the faculty and such other instructors and officers as the interest of the university may require, remove any instructors or officers, fix their salaries or compensation, and define the authority or duty of such instructors or officers. The president may regulate, alter, and modify the organization of the university, subject to review and concurrence of the board. The president shall prescribe courses of instruction within academic programs that have been approved by the board. The president may confer academic degrees and such honorary degrees as are usually conferred by institutions of similar character upon the recommendation of the faculty.”

The June 9, 2011, amendment of § 16-49-23 granted the president some of the powers that its predecessor had granted to the board; however, it contains no language indicating that its predecessor prohibited the board from delegating its power to dismiss university employees. Therefore, we find no merit in McGlath-ery’s argument that the June 9, 2011, amendment indicates that the board did not have the power to delegate its power to dismiss university employees before June 9, 2011. Accordingly, for the reasons discussed above, we conclude that the trial court did not err in determining that § 16-49-23 granted the board the power to delegate its power to dismiss university employees, and we affirm the judgment of the trial court insofar as it dismissed McGlath-ery’s claims based on the allegation that § 16-49-23 granted the board the exclusive and nondelegable power to dismiss university employees.

McGlathery also argues that, even if the trial court correctly concluded that § 16-49-23 granted the board the power to delegate its power to dismiss university employees, it erred by assuming that a delegation of that power by the board had occurred in the absence of any evidence establishing that it had occurred. McGlathery’s first and second claims asserted that her dismissal violated § 16-49-23 because,- she asserted, that Code section granted the board the exclusive and non-delegable power to dismiss university employees. Those claims did not assert as an alternative claim that, if § 16-49-23 granted the board the power to delegate its power to dismiss university employees, her dismissal was invalid because the board had not taken any action to delegate its power to dismiss university employees. McGlathery’s third claim asserted, as an alternative to her first and second claims, that, if § 16^9-23 granted the board the power to delegate its power to dismiss university employees, her dismissal violated policy 9.3 because, she asserted, she had not been given three weeks’ notice of her dismissal and her dismissal had not been approved by the president. However, McGlathery’s third claim did not assert as an alternative claim that, if § 16-49-23 granted the board the power to delegate its power to dismiss university employees, her dismissal was invalid because the board had not taken any action to delegate its power to dismiss university employees. Likewise, none of her other claims asserted a claim that, if § 16-49-23 granted the board the power to delegate its power to dismiss university employees, her dismissal was invalid because the board had not taken any action to delegate its power to dismiss university employees. Moreover, in her pleading responding to the motions to dismiss, McGlathery did not argue that the motions to dismiss should be denied because she was asserting a claim that, if § 16-49-23 granted the board the power to delegate its power to dismiss university employees, her dismissal was invalid because the board had not taken any action to delegate its power to dismiss university employees. Indeed, we find no indication in the record that McGlathery argued to the trial court that she was asserting such a claim at any time before she filed her postjudgment motion. She did argue that she was asserting such a claim in her postjudgment motion; however, at that point, that argument constituted a new legal argument being presented for the first time in a postjudgment motion.

“ ‘ “[A] trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so.” ’ ” Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010) (quoting Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668, 678 (Ala.2007), quoting in turn Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988)). The trial court’s order denying McGlathery’s postjudgment motion stated: “This matter comes before the Court on [McGlathery’s] Motion to Alter, Amend, or Vacate filed on May 20, 2011. Having reviewed and considered the motion and the response by Defendants thereto, the Court hereby DENIES the motion at this time.” In Special Assets, supra, Special Assets, L.L.C. (“Special Assets”), and First Properties, L.L.C. (“First Properties”), filed a post-judgment motion in which they presented a new legal argument. The trial court’s order denying the postjudgment motion stated: “ 'After consideration of [First Properties and Special Assets’ post-judgment motion] and [Chase Finance’s] response thereto, the Court concludes that the motion is due to be denied.’ ” 991 So.2d at 676-77. First Properties and Special Assets contended on appeal that the word “consideration” in that order meant that the trial court had considered and ruled on the merits of the new legal argument they had presented in their postjudgment motion. The supreme court rejected that argument, stating that the general language the trial court had used in denying the postjudgment motion did not indicate that it had considered the merits of the new legal argument and that the supreme court would not presume that the trial court had done so. 991 So.2d at 677-78.

Like the trial court’s general language denying the postjudgment motion in Special Assets, the trial court’s general language denying McGlathery’s postjudgment motion in the present case does not indicate that the trial court considered the merits of the new legal argument McGlath-ery had presented in that motion, and we will not presume that it did so. Id.

McGlathery has not offered any justification for her delay in presenting her new legal argument. Therefore, the trial court did not exceed its discretion in refusing to grant McGlathery’s postjudgment motion on the basis of her new legal argument. See Espinoza, 46 So.Sd at 416. When a trial court does not exceed its discretion in refusing to consider a new legal argument in a postjudgment motion, an appellate court will not reverse the judgment of the trial court on the basis of that new legal argument. Id. Therefore, in the present case, because the trial court did not exceed its discretion in refusing to consider the new legal argument in McGlathery’s postjudgment motion, we will not reverse the trial court’s judgment on the basis of that new legal argument. Id.

On rehearing, McGlathery argues for the first time that the trial court erred because, she says, it did not give her an opportunity to amend her complaint to allege a claim that, if § 16-49-23 granted the board the power to delegate its power to dismiss university employees, her dismissal was invalid because the board had taken no action to delegate that power. However, appellate courts do not consider arguments raised for the first time on rehearing. See Water Works & Sewer Bd. of Selma v. Randolph, 838 So.2d 604, 608-09 (Ala.2002) (opinion on application for rehearing).

McGlathery also argues that the trial court erred on the ground that it stated in its judgment that, “if [McGlathery’s] contentions [that § 16-49-23 did not permit the board to delegate its powers] were correct, then [McGlathery] must also allege that her employment with the University was approved by the Board.” However, because we have concluded that the trial court correctly concluded that § 16-49-23 permitted the board to delegate its powers, the issue whether that statement of the trial court is correct is moot.

McGlathery next argues that the trial court erred in dismissing her claim of intentional interference with business or contractual relations against Vaughn in her individual capacity on the ground that Vaughn, as a co-employee of McGlathery, was not a “third party” or a “stranger” to the relationship between McGlathery and the university because, McGlathery says, she alleged in her complaint that Vaughn’s actions were beyond her authority and malicious.

The supreme court has held that a co-employee of a plaintiff will be deemed a third party or a stranger to a business or contractual relationship between the plaintiff and the employer only if the co-employee was “ ‘ “acting outside [his or her] scope of employment and [was] acting with actual malice....’”” Hanson v. New Tech., Inc., 594 So.2d 96, 102 (Ala.1992) (quoting Perlman v. Shurett, 567 So.2d 1296, 1297 (Ala.1990), quoting in turn Hickman v. Winston Cnty. Hosp. Bd., 508 So.2d 237, 239 (Ala.1987)). However, in this context, the supreme court appears to use the phrase “scope of authority” interchangeably with the phrase “scope of employment.” For example, in Hanson, after quoting Perlman for the proposition that a co-employee could be liable for intentional interference with business or contractual relations only if the co-employee was “‘“acting outside [his or her] scope of employment and [was] acting with actual malice,” ’ ” 594 So.2d at 102, the supreme court affirmed a summary judgment in favor of a co-employee defendant with respect to the plaintiffs claim of intentional interference with business or contractual relations because the supreme court concluded “not only that [the plaintiff] failed to establish that [the co-employee defendant] was acting outside the scope of her authority ..., but also that [the plaintiff] failed to establish that [the co-employee defendant’s] actions were taken maliciously,” 594 So.2d at 103 (emphasis added). McGlathery alleged that Vaughn was acting without authority and maliciously when she allegedly dismissed McGlathery. We conclude that those allegations sufficiently alleged that Vaughn was a third party or a stranger to the relationship between McGlathery and the university to withstand Vaughn’s motion to dismiss. See Hanson. Therefore, the trial court erred insofar as it concluded that McGlathery’s claim of intentional interference with business or contractual relations failed to state a claim upon which relief could be granted based on its determination that McGlath-ery had failed to allege that Vaughn was a third party or a stranger to the relationship between McGlathery and the university.

McGlathery also argues that the trial court erred in dismissing her claim of intentional interference with business or contractual relations against Vaughn in her individual capacity on the ground that Vaughn was entitled to State-agent immunity. Among other things, McGlathery argues that she alleged that Vaughn’s actions “were willful, malicious, fraudulent, in bad faith, beyond her authority, and/or under a mistaken interpretation of law” and that those allegations were sufficient to defeat a motion to dismiss based on State-agent immunity. In Ex parte Butts, 775 So.2d 173, 177-78 (Ala.2000), a majority of the supreme court adopted the test for determining when State employees sued in their individual capacities are entitled to assert the defense of State-agent immunity set forth in the plurality opinion in Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000). Under that test, a State agent “ ‘shall not be immune from civil liability in his or her personal capacity ... when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’ ” Butts, 775 So.2d at 178 (quoting Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000)). Thus, McGlathery’s allegations that Vaughn’s actions “were willful, malicious, fraudulent, in bad faith, beyond her authority, and/or under a mistaken interpretation of law” were sufficient to defeat a motion to dismiss based on State-agent immunity. Therefore, the trial court erred insofar as it concluded that McGlathery’s claim of intentional interference with business or contractual relations failed to state a claim upon which relief could be granted based on the defense of State-agent immunity.

Accordingly, we reverse the trial court’s judgment insofar as it dismissed McGlath-ery’s claim of intentional interference with business or contractual relations against Vaughn in her individual capacity and remand the cause for further proceedings consistent with this opinion. In all other respects, we affirm the trial court’s judgment.

APPLICATION FOR REHEARING GRANTED; OPINION OF APRIL 13, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The board members are Dr. Raymond Burse, James Montgomery, Odysseus M. Lanier, Rev. D. Tom Bell, Jr., Norman Hill, Chasi-dy Privett, Chris Robinson, Jerome Williams, Andre Taylor, and Lucien B. Blankenship.

      . Dr. Coleman is not a party to this appeal; therefore, we have omitted any discussion of the claim against him

      . Section 16-49-23 was amended effective June 9, 2011.