author: WOODALL, Justice. LYONS, Justice SHAW, Justice

text:
    GULF STATE PARK AUTHORITY et al. v. GULF BEACH HOTEL, INC., et al. Gulf State Park Authority et al. v. Charley Grimsley et al.
    1071551 and 1071552.
    Supreme Court of Alabama.
    March 27, 2009.

      William A. Gunter IV, gen. counsel, Alabama Department of Conservation and Natural Resources, for appellants Alabama Department of Conservation and Natural Resources, its officials, and Gulf State Park Authority.
    Albert L. Jordan, deputy atty. gen., and Annemarie C. Axon of Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, for appellants Alabama Department of Conservation and Natural Resources and its officials.
    Matthew C. McDonald and Kirkland E. Reid of Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, L.L.P., Mobile; James L. North of North & Associates, Birmingham; and Jon G. Waggoner, special counsel to the president of Auburn University, for appellants Auburn University, Jay Gogue, as successor to Edward R. Richardson, and West Paces Hotel Group, LLC.
    Benjamin H. Albritton and J. Matt Bled-soe, asst, attys. gen., for appellants Governor Bob Riley and Jim Main.
    William J. Baxley, Joel E. Dillard, and Elizabeth W. McElroy of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for appellee Gulf Beach Hotel, Inc.
    Robert D. Segall and Shannon L. Holli-day of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellee Alabama Education Association.
    Frank C. Ellis, Jr., and William R. Justice of Wallace, Ellis, Fowler & Head, Columbiana, for amici curiae Shelby County, Alabama, and the Wilcox Area Chamber of Commerce, in support of the appellants.
    John L. Lawler, Mobile, for amici curiae Alabama Gulf Coast Convention and Visitors Bureau, Alabama Gulf Coast Area Chamber of Commerce, and South Baldwin Chamber of Commerce; Wanda J. Cochran, Mobile, for amicus curiae City of Orange Beach; Donald J. Stewart, Mobile, for amicus curiae City of Gulf Shores; and J. Casey Pipes, Mobile, for amicus curiae City of Foley, in support of the appellants.
    William T. Stephens, gen. counsel, Retirement Systems of Alabama, for amicus curiae Retirement Systems of Alabama, in support of the appellant.
    Mays R. Jemison of Jemison & Mendel-sohn, Montgomery, for amici curiae Joint Legislative Committee on State Parks and Alabama State Parks System Improvement Corporation, in support of the appellants.
   WOODALL, Justice.

In separately filed declaratory-judgment actions, Gulf Beach Hotel, Inc., and Charley Grimsley (hereinafter referred to collectively as “the hotel”) attacked the legality of an agreement, a memorandum of understanding, between the Alabama Department of Conservation and Natural Resources (“the Department”) and Auburn University (“the University”) for the long-term lease of a portion of Gulf State Park (“the park”), more specifically, the site of the former Gulf State Park Lodge (“the lodge”), which was destroyed by Hurricane Ivan in 2004. The trial court consolidated the declaratory-judgment actions. The defendants named in those consolidated actions were Governor Bob Riley; M. Barnett Lawley, commissioner of the Department; Finance Director James Allen Main; the University; Gulf State Park Authority (“the Authority”); the Department; Dr. Jay Gogue (successor to Edward R. Richardson), president of the University; West Paces Hotel Group, LLC; and Marcus Easterwood, Richard Liles, and Terry Boyd, officials of the Department. Gulf Beach Hotel, Inc., operates the Perdido Beach Resort, a hotel and conference center located near the park. Grimsley is a citizen and taxpayer of the State of Alabama.

The Alabama Education Association (“the AEA”) and the Alabama State Employees Association were allowed to intervene as plaintiffs. Ultimately, the trial court entered a summary judgment in favor of the hotel and the intervenors, holding that the arrangement proposed by the memorandum of understanding and between the Department and the University violates various statutory and constitutional provisions. The defendants filed a notice of appeal in each declaratory-judgment action, and the appeals have been consolidated. We dismiss the Department, the University, and the Authority as defendants, and we vacate the trial court’s judgment insofar as those defendants are concerned; otherwise, we affirm in part and reverse in part.

I. Applicability of Doctrine of State Immunity

Article I, § 14, Alabama Constitution of 1901, provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” “This Court has extended the restriction on suits against the State found in § 14 ‘to the state’s institutions of higher learning’ and has held those institutions absolutely immune from suit as agencies of the State.” Ex parte Troy Univ., 961 So.2d 105, 109 (Ala.2006). Consequently, we vacate the judgment as to the University and dismiss the University as a defendant. See Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004).

The Department is a State agency. See § 9-2-1 et seq., Ala.Code 1975. Therefore, § 14 affords it absolute immunity from suit and deprives the trial court of subject-matter jurisdiction insofar as the Department is concerned. Ex parte Alabama Dep’t of Transp., 990 So.2d 366, 368 (Ala.2008). We vacate the trial court’s judgment insofar as the Department is concerned and dismiss the Department as a defendant.

Similarly, the Authority is “a public corporation and instrumentality of the state.” § 9-14B^(a), Ala.Code 1975. Consequently, it is also entitled to the absolute immunity afforded by § 14. The trial court’s judgment is vacated as to the Authority, and we dismiss the Authority as a defendant. Although three defendants have been dismissed, the presence of the remaining defendants is sufficient to require our consideration of the merits of these appeals.

II. Factual Background

It is the duty of the Department “[t]o maintain, supervise, operate and control all state parks -” § 9-2-2(3), Ala.Code 1975. The park, one of the largest in the State-park system, is located on the coastline in Gulf Shores. For many years, the facilities at the park included the lodge, which provided accommodations for both lodging and meetings. At times, the Department itself operated the lodge; at other times, the lodge was operated by concessionaires pursuant to contracts with the Department. In 2004, the lodge was destroyed by Hurricane Ivan, and it has not been replaced.

Following Governor Riley’s election and his appointment of Lawley as the commissioner of the Department, even before the lodge was destroyed by Hurricane Ivan, the development of a new hotel and conference center on the property on which the lodge was located became a priority of Governor Riley’s and the Department. In 2005, after the lodge had been destroyed, the Department agreed to lease the property upon which the lodge once stood to the University for a term of not less than 70 years and 1 day. The University would in turn “subleas[e] the property for development and operation as a resort and conference center, and for the utilization of the property in [its] curriculum for its hotel and restaurant management programs and other educational programs.” Defendants’ brief, at 11-12. The Department and the University executed a lengthy memorandum of understanding concerning both the lease and the sublease. The memorandum of understanding provides that the primary use of the property will be as a “hotel and coastal resort” and that the University’s use of the property for educational purposes will be allowed only “so long as such activities do not materially or unreasonably interfere with the primary use.” Further, the agreement provides that guests of the proposed new facility “shall be entitled to certain rights and privileges within the ... Park.”

The University has expressed an interest in involving West Paces Hotel Group as a sublessee in developing and operating the resort. The memorandum of understanding provides that the Department and the University will jointly select the sublessee. Plans for the development of the proposed facility will have to be approved by the Department, and the memorandum of understanding gives the Department the right to inspect the property to ensure that it is being properly maintained, as well as the right to cure any maintenance deficiencies. The University’s liability for payments due the Department under the proposed lease will be limited to the proceeds available from any financing for the development and construction of the resort and any money received from the sublessee.

III. The Summary Judgment

In its summary judgment in favor of the hotel and the intervenors, the trial court held that the lease and sublease contemplated by the memorandum of understanding between the Department and the University violated three statutes: the State Parks Concession Act, § 9-14-20 et seq., Ala.Code 1975 (“the Concession Act”); the Gulf State Park Improvement Act, § 9-14B-1 et seq., Ala.Code 1975 (“the Improvement Act”); and the State Land Sales Act, § 9-15-70 et seq., Ala.Code 1975 (“the Sales Act”). The trial court also concluded that the proposed transactions violated two provisions of the Alabama Constitution of 1901, namely §§ 93 and 213.32 (Off.Recomp.) (Amend, no. 617, Ala. Const.1901). On appeal, the defendants challenge each of those holdings. We will, as the parties agree that we should, review each holding de novo.

TV. Analysis

A. The Sales Act

The defendants argue that the Sales Act does not apply to the proposed lease to the University or to the University’s proposed sublease to a developer and, therefore, that the defendants are not required to comply with the competitive-bid provision of the Sales Act. We agree.

The Sales Act “applies to all real property and interests therein owned by the State of Alabama and the departments ... and agencies of the state with the exception of those sales, transfers, and reversions set out in Section 9-15-82.” (Emphasis added.) Section 9-15-82, Ala.Code 1975, provides, in pertinent part, that the Sales Act “shall not apply to the transfers of real property between departments, boards, bureaus, commissions, institutions, corporations, or agencies of the state.” Thus, a lease from the Department to the University would not be subject to any requirement of the Sales Act.

Also exempt from the requirements of the Sales Act are “[gjround leases and leases of facilities by institutions of higher education ... for institution-related purposes which are designed to enhance the operation of the institution and are declared to be in the best interest of the institution by the board of trustees.” § 9-15-82. It is undisputed that the University’s proposed involvement in the development of a resort at the park would be for educational purposes, including the enhancement of its hotel-and-restaurant-management program. Further, it is undisputed that the University’s board of trustees, by a duly approved resolution, authorized the University’s president to proceed with the transactions contemplated in the memorandum of understanding.

Because the Sales Act is not applicable to the proposed transactions, the trial court erred in holding that the defendants are required to comply with the competitive-bid requirements in the Sales Act. Therefore, as to the holding that the plan proposed by the memorandum of understanding violated the Sales Act, the trial court’s judgment is reversed.

B. The Improvement Act

In holding that the proposed development violated the Improvement Act, the trial court stated that the “[djefendants may not engage in the planning and construction of any hotel and convention center at Gulf State Park that fails to effectively and meaningfully consider the per capita income and average family income of Alabamians in its design and costs in accordance with Ala.Code § 9-14B-7.” The defendants argue that § 9-14B-7 does not apply to any of them. We agree.

The Joint Legislative Committee on State Parks (“the committee”) was created by § 9-14A-21(a), Ala.Code 1975. The committee is not a defendant in either of these consolidated declaratory-judgment actions.

Assuming, without deciding, that the Improvement Act is otherwise applicable to the proposed lease and sublease, it is clear that § 9-14B-7(a) imposes no duty upon any defendant. Instead, it provides only that the committee, under certain circumstances, “shall take into consideration the per capita income and average family income of Alabamians in planning and approving the design and costs of lodging facilities in Gulf State Park .... ” Consequently, the trial court erred in extending an expanded version of that duty to the defendants, and, to the extent that it did so, its judgment is reversed.

C. Section 93, Alabama Constitution of 1901

Section 93, Alabama Constitution of 1901, provides, in pertinent part:

“The state shall not engage in works of internal improvement, nor lend money or its credit in aid as such, except as may be authorized by the Constitution of Alabama or amendments thereto; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation, except as may be expressly authorized by the Constitution of Alabama or amendments thereto.”

In its judgment, the trial court stated that, “[i]n planning, constructing, operating and maintaining any hotel ... and conference facility on property at Gulf State Park, Defendants must not create a state interest in private enterprise in violation of [§ 93] by engaging in works of internal improvement or the lending of money or credit for works of internal improvement without specific constitutional authority.” The defendants argue that “[t]he record does not support a violation or application of § 93 of the Alabama Constitution.” Defendants’ brief, at 38. We agree.

The development contemplated by the memorandum of understanding will not be financed, in whole or in part, by bonds issued by any State entity. Under the memorandum of understanding, the sublessee, not the Department or the University, “will contract for the construction, maintenance and operation of the [h]otel and other improvements related thereto.” Consequently, there is no substantial evidence supporting the trial court’s conclusion that the defendants plan to “create a state interest in private enterprise ... by engaging in works of internal improvement or the lending of money or credit for works of internal improvement without specific constitutional authority.” Further, neither a lease nor a sublease to which the State is a party, standing alone, unlawfully engages the State in a private business. See Corning v. Patton, 236 Ala. 354, 357, 182 So. 39, 41 (1938)(“We fail to see how the operation of the lease will incur any pecuniary liability on the county or that it engages the county in a private business. It is a straight out ground lease for a fixed rental to be absorbed in part by valuable improvements which are to revert to the county upon the expiration of the lease. The fact that the rental is to be enhanced by a commission based upon the volume of business of the lessee does not make the county a party engaging in a business entailing upon it a profit and loss.”). Thus, the trial court, to the extent that it concluded that the proposed transactions violate § 93, erred, and, to that extent, its judgment is reversed.

D. Section 213.32, Alabama Constitution of 1901 (Ojf.Recomp.)

In its judgment, the trial court stated that “[a]ny facility planned and constructed upon property at Gulf State Park must be operated and maintained exclusively by employees of the Department ... in compliance with [§ 213.32] of the Alabama Constitution.” In challenging this portion of the judgment, the defendants argue, in pertinent part, that § 213.32 does not apply to the contemplated project, “because the bond proceeds authorized by [§ 213.32] will not be used to finance the project.” Defendants’ brief, at 28. We agree.

Section 213.32 provides, in pertinent part:

“The State of Alabama is authorized to become indebted for the purpose of the acquisition, provision, construction, improvement, renovation, equipping, and maintenance of the state parks system, public historical sites, and public historical parks, and in evidence of the indebtedness so incurred to sell and issue bonds, in addition to all other bonds of the state, not exceeding one hundred ten million dollars ($110,000,000) in aggregate principal amount.... One hundred four million dollars ($104,000,000) of the bonds shall be issued for the state by the Alabama State Parks System Improvement Corporation pursuant to the appropriate resolutions adopted by the board of directors of the corporation and the proceeds thereof shall be appropriated and used exclusively for the purpose of paying the expenses incurred in the sale and issuance of the bonds and for payment of the costs of the acquisition, provision, construction, improvement, renovation, equipping, and maintenance of the state parks system .... Such acquisition, provision, construction, improvement, renovation, equipping and maintenance of the state parks system, shall be completed at the direction of the Alabama State Parks System Improvement Corporation with the advice and concurrence of the Joint Legislative Committee on State Parks, and all state park system land and facilities, except for existing concession operations or other existing permitted operations, shall thereafter be exclusively and solely operated and maintained by the Department .... ”

It is clear that any obligation imposed by this section is limited to “[s]uch acquisition, provision, construction, improvement, renovation, equipping [or] maintenance of the state parks system [as may] be complied at the direction of the Alabama State Parks System Improvement Corporation with the advice and concurrence of the Joint Legislative Committee on State Parks,” using the proceeds of the bonds authorized by § 213.32. (Emphasis added.) The project contemplated by the memorandum of understanding between the Department and the University will not involve the use of the proceeds of any bonds issued by a State entity. Further, neither the Alabama State Parks System Improvement Corporation (“the corporation”) nor the committee will be involved in the project.

We have not ignored the hotel’s argument that an earlier use of the bond proceeds authorized by § 213.32 “in furtherance of the planned development at the ... Park,” hotel’s brief, at 9, should subject the project contemplated by the memorandum of understanding to the requirements of that section. However, the hotel does not explain how the use of such proceeds triggered any obligations under the section. Further, there is uncontroverted evidence that all bond proceeds arguably associated with the property upon which the lodge once stood have been refunded to the corporation.

For these reasons, the trial court erred in imposing upon the defendants what it construed to be a requirement of § 213.32. Consequently, to the extent that the trial court did so, its judgment is reversed.

E. The Concession Act

The Concession Act authorizes the Department to “enter into contracts with persons, firms or corporations to maintain and operate concessions within the state park areas for the welfare of the general public in the use and enjoyment of the state park system.” § 9-14-20. However, the Department’s authority to enter into contracts is not unlimited. Instead, the Concession Act prescribes a competitive-bid procedure. See §§ 9-14-21 to -25, Ala.Code 1975. Further, § 9-14-24(b) provides, in pertinent part, that “[a]ll concession contracts of whatever nature or form shall provide for the reasonableness of the concessionaire’s rates and charges to the public .... ” Finally, § 9-14-27 limits the length of the term of a concession contract:

“No concession contract shall be granted, the term of which exceeds six years, unless the concessionaire is required by the terms of the contract to expend major monetary sums for the purpose of improving, furnishing, equipping or enlarging existing facilities or constructing and/or furnishing additional facilities on the concession premises. In the event such major expenditures are made by a concessionaire, the term of his concession contract may be extended, but in no event exceed 12 years.”

The trial court held that the transactions contemplated by the memorandum of understanding between the Department and the University would violate these statutory requirements. We agree.

The defendants do not argue that a contract for the construction and operation of a lodging-and-meeting facility within a State park is not a concession contract. Also, they do not contend that the proposed transactions would comply with the requirements of the Concession Act. Instead, they argue that the proposed lease and sublease are not subject to the Concession Act. The defendants offer several reasons in support of this argument, all of which are without merit.

The Concession Act prescribes the requirements for contracts regarding “concessions within the state park areas for the welfare of the general public in the use and enjoyment of the state park system.” § 9-14-20 (emphasis added). The defendants point out that the commissioner has the authority to lease a portion of the park. See § 9-2-3, Ala.Code 1975. See also Cotton Bayou Ass’n v. Department of Conservation, 622 So.2d 924 (Ala.1993). They then argue, citing no authority, that the proposed lease of a portion of the park would remove the leased portion from the park and the State-park system, thereby taking “the proposed lease ... outside the scope of the Concession Act.” Defendants’ brief, at 25. However, as the AEA argues, “leasing the land at issue would not magically remove the land from the state park.” AEA’s brief, at 13. Indeed, the Concession Act itself specifically contemplates that a concession contract may be in the form of a lease. See, e.g., § 9-14-21(e) (“All concessionaires shall be fully responsible for the maintenance and upkeep of the state facility leased.” (emphasis added)).

Section 9-2-3, Ala.Code 1975, in pertinent part, gives the Department “full power and authority to ... lease lands under its jurisdiction when in its judgment it is advantageous to the state to do so in the orderly development and management of state parks and parkways.” This general language in no way compels the conclusion that a lease of State-park property for use as a “hotel and coastal resort,” a use complementary to the recreational purpose of the park, would somehow cause the leased property to cease to be a part of the park.

Cotton Bayou provides no support for the defendants’ argument. That ease “present[ed] the single issue of whether a State of Alabama agency has the authority to negotiate for the lease of real property or must lease real property pursuant to the competitive bid law, Ala.Code 1975, § 41-16-1 et. seq.” 622 So.2d at 924-25. This Court simply held in Cotton Bayou that the competitive-bid law did not apply and that, therefore, the Department could lease the real estate in question by a negotiated lease. There is no indication in Cotton Bayou that the lease at issue there involved a concession within a State-park area.

As previously discussed, the proposed lease and sublease are not subject to the competitive-bid requirements of the Sales Act because the Sales Act exempts transfers between State agencies and leases by institutions of higher education for institution-related purposes. The defendants argue, as a matter of statutory construction, that the Concession Act cannot be construed to apply to the proposed project. They state, without citing authority, that, in light of the Sales Act, it is “an implausible construction of [the Concession Act] to apply its restrictions to an institution of higher education administering one of its programs.” Defendants’ brief, at 26. They support this conclusion with a preceding paragraph:

“Moreover, the application of the Concession Act to the [memorandum of understanding] leases would provide the kind of restrictions on the lease which are specifically exempted by the ... Sales Act. The ... leases are exempted from competitive auction and sealed bids by Ala.Code [1975,] § 9-15-82[,] because of its educational purpose. To require compliance with the Concession Act would render the ... Sales Act, and its application to the ... leases, irrelevant. The ... Sales Act has its own bidding requirements, and educational purpose ground leases are plainly exempted.”

Defendants’ brief, at 25-26.

As previously noted, the Sales Act exempts the transfer from the Department to the University from competitive bidding. The Concession Act is phrased in terms that contemplate regulation of transactions between the Department and the private sector. This Court set forth rules of statutory construction germane to the issue here presented in Weill v. State ex rel. Gaillard, 250 Ala. 328, 334, 34 So.2d 132, 137 (1948):

“A statute often speaks as plainly by inference as in any other manner, and it is a general rule that that which is clearly implied from the express terms of a statute is as much a part thereof, and is as effectual as that which is expressed. This rule applies to provisos, and under it an act which, although neither expressly forbidden nor authorized, is contrary to the plain implication of a statute, is unlawful.
“Another rule which we think has application here is that construction should be avoided which affords an opportunity to evade the act, and one favored which would defeat subterfuges, expediencies or evasions employed to continue the mischief sought to be remedied by the statute, or to defeat compliance with the terms, or' any attempt to accomplish by indirection what the statute forbids.”

(Emphasis added.) The transaction proposed by the memorandum of understanding is an attempt to circumvent legislative intent by having the Department carry out through an intermediary acts prohibited by the legislature in the Concession Act. Although the Concession Act does not expressly prohibit the Department from contracting with another State agency to accomplish what it could not do if it acted without an intermediary, such conduct constitutes activity “which, although neither expressly forbidden nor authorized, is contrary to the plain implication of [the] statute.” Likewise, such activity is “[an] attempt to accomplish by indirection what the statute forbids.” Based on the rules expressed in Weill v. State ex rel. Gaillard, we reject the defendants’ contention that it is implausible to construe the Concession Act so as to apply it to the transaction between the University and the sub-lessee.

Finally, the defendants argue that the Sales Act, enacted in 1995, repealed by implication the aforementioned requirements of the Concession Act, enacted in 1971. Citing only Kimbrell v. State, 272 Ala. 419, 425, 132 So.2d 132, 137 (1961), for the general proposition of law that “the particular will govern the general,” the defendants argue:

“[T]he specificity of the 1995 statute ... implies that the more general 1971 statute is not meant to control. Section 9-15-82 is part of a 1995 statute specifically addressing educational-purpose ground leases. There is nothing specific in the 1971 Concessions Act about educational-purpose leases related to park land. Therefore, the 1971 act does not apply to educational-purpose ground leases as it is repealed impliedly.”

Defendants’ brief, at 26. The AEA responds that “there is no basis on which to find an implied repeal, as is evidenced by a straightforward application of the law of implied repeals.” AEA’s brief, at 17. We agree with the AEA.

It is well established that repeal by implication is not favored. See, e.g., Willis v. Kincaid, 983 So.2d 1100, 1106 (Ala.2007). More specifically, this Court has recognized “[t]he rule that implied repeal is disfavored when the earlier act is specific and the subsequent act is general.” Marks v. Tenbrunsel, 910 So.2d 1255, 1262 (Ala.2005).

The application of the Concession Act is specifically limited to the Department’s “contracts with persons, firms or corporations to maintain and operate concessions within the state park areas .... ” § 9-14-20, Ala.Code 1975. On the other hand, the Sales Act “applies to all real property and interests therein owned by the State of Alabama and the departments, boards, bureaus, commissions, institutions, corporations, and agencies of the state with the exception of [certain] sales, transfers, and reversions set out in Section 9-15-82.” § 9-15-70, Ala.Code 1975. The defendants argue that the Sales Act is, by reason of its exemption of leases by institutions of higher education for institution-related purposes, the more specific of the two acts. However, looking at the subject matters of the two acts, it is clear that the Sales Act is the more general act, because an act relating to a broad range of lease or sales transactions made by any State entity is far more general than the Concession Act, which covers only concession contracts entered into by the Department involving State-park land. The defendants cite no authority for the proposition that the subject matter of an act is determined by its exceptions and not by the general scope of the act. Further, it would be illogical to conclude that the legislature, by granting the University authority to enter into certain leases, intended to remove the limitations on the Department’s authority to enter into concession contracts. Indeed, such a conclusion would allow the Department, by first leasing the property to the University, to do indirectly what it may not do directly, namely, to enter into a contract for the operation of a concession within the park without first complying with the Concession Act. “[The Department] may not do indirectly what the Legislature prohibits [it] from doing directly.” Richardson v. Stanford Props., LLC, 897 So.2d 1052, 1059 (Ala.2004).

The defendants have not demonstrated any error in the trial court’s holding that the proposed transactions would violate the Concession Act. Therefore, to the extent of that holding, the trial court’s judgment is affirmed.

V. Conclusion

In summary, we dismiss the University, the Department, and the Authority as defendants, and, insofar as they are concerned, we vacate the trial court’s judgment. We reverse the trial court’s judgment insofar as it held that the Sales Act, the Improvement Act, § 93, Ala. Const.1901, and § 213.32, Ala. Const. 1901 (Off.Recomp.), have been, or would be, violated by the past or proposed actions of the defendants. Finally, we affirm the trial court’s judgment insofar as the trial court held that the Concession Act has been, or would be, violated by the past or proposed actions of the defendants.

1071551 — STATE DEFENDANTS DISMISSED AND JUDGMENT VACATED IN PART; AFFIRMED IN PART; AND REVERSED IN PART.

1071552 — STATE DEFENDANTS DISMISSED AND JUDGMENT VACATED IN PART; AFFIRMED IN PART; AND REVERSED IN PART.

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

LYONS and SHAW, JJ., concur in part and concur in the result.

LYONS, Justice

(concurring in part and concurring in the result).

The trial court found that the proposed plans to construct and operate a hotel and convention center on property at Gulf State Park must comply with § 93, Alabama Constitution of 1901, which prohibits the State from having an interest in private enterprise, with § 213.32, Alabama Constitution of 1901 (Off.Recomp.), which requires operation and maintenance of such a center exclusively by employees of the Department, with the Concession Act, which limits the term of such leases as contemplated here to a maximum of 12 years and requires reasonable rates, with the Improvement Act, which calls for consideration of per capita income and average family income of Alabamians in planning any such center, and with the Sales Act, which provides for competitive bids. No injunction issued. On appeal, the main opinion addresses each of the several issues.

The main opinion correctly affirms the judgment of the trial court as to its finding of applicability of the Concession Act, including the provisions in that act for competitive bidding, reasonable rates and charges for lodging facilities, and a maximum lease term of 12 years. I concur fully in this aspect of the main opinion. In order to analyze the issue of the applicability of the Concession Act the main opinion was required to address the effect of the Sales Act.

The main opinion also reviews other aspects of the trial court’s order beyond the Concession Act and the Sales Act, specifically, § 93, Alabama Constitution of 1901, prohibiting the State from having an interest in private enterprise, § 213.32, Alabama Constitution of 1901 (Off.Recomp.), requiring operation and maintenance of State-park property exclusively by employees of the Department, and the Improvement Act, calling for consideration of per capita income and average family income of Alabamians, aspects not essential to analysis of the foregoing issue of the proper construction of the Concession Act.

The trial court’s judgment consists of several separate declarations dealing with five areas of Alabama law it found applicable to the proposed plans to construct and operate a hotel and convention center on property at Gulf State Park. If this were an appeal from a summary judgment for a defendant in an action for damages, we would examine the issues raised by the plaintiff-appellant and, upon finding a basis on which to reverse the judgment as to a single issue, we would do so and deem it unnecessary to consider other issues that might also justify a reversal. See, e.g., Phillips v. Wayne’s Pest Control Co., 623 So.2d 1099, 1101 (Ala.1993) (“Because we reverse on this ground, we pretermit other arguments by the Phillipses.”). Here, we have multiple declaratory judgments as to separate issues, all adverse to the interests of the defendants. However, finding a basis on which to reverse the trial court’s judgment on any one issue would not dispense with the necessity to deal with other issues, because all other declarations adverse to the defendants’ interests would remain in force. On the other hand, finding a basis on which to affirm the trial court’s judgment on any one of the requirements of Alabama law that the defendants under the undisputed facts have not satisfied obviates the necessity for consideration of any other issues until such time as the defendants’ proposed plans are shown to be in compliance with the Concession Act, as to which we have today held the defendants are not in compliance, and any requirements of Alabama law dealing with that act. In other words, given that the defendants are not now in compliance with the Concession Act, until such time as they come forward with a proposal that meets the requirements of the Concession Act (competitive bidding, maximum 12-year lease, reasonable rates), we need not address the remaining bases upon which the trial court’s judgment might be affirmed. For all that appears, such a new proposal may never eventuate, and any holdings on other issues at this time, while they may be helpful with respect to some new proposal not yet made and obviously not now before us, is contrary to our disinclination to render a declaratory judgment on hypothetical questions. See Bedsole v. Goodloe, 912 So.2d 508, 518 (Ala.2005) (“The Declaratory Judgment Act, §§ 6-6-220 through -232, Ala.Code 1975, ‘does not “ ‘empower courts to ... give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.’ ” ’ ” (quoting Bruner v. Geneva County Forestry Dep’t, 865 So.2d 1167, 1175 (Ala.2003), quoting in turn Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963) (emphasis added in Stamps))).

Because I do not consider it necessary to reach these other issues, I concur only in the result as to those issues.

SHAW, Justice

(concurring in part and concurring in the result).

I concur with Part I of the main opinion vacating the trial court’s judgment as to Auburn University (“the University”), the Alabama Department of Conservation and Natural Resources (“the Department”), and the Gulf State Park Authority. I also concur with Parts IV.A. (dealing with the Sales Act), IV.B. (dealing with the Improvement Act), IV.C. (dealing with § 93, Alabama Constitution 1901), and IV.D. (dealing with § 213.32, Alabama Constitution 1901 (Off.Recomp.)).

With respect to Part IV.E. of the main opinion (dealing with the Concession Act), I concur in the result. I agree that the memorandum of understanding between the Department and the University contemplates a contract to operate what would be considered a “concession.” The dispositive issue is whether the contemplated contract is regulated by the Concession Act. As the main opinion notes, Ala. Code 1975, § 9-14-21, anticipates that portions of the State-park system may be leased for concessions. Because the Concession Act anticipates that a portion of a park may be leased as a concession, I cannot conclude, as the defendants argue on appeal, that the mere lease of the property would remove it from the operation of the Concession Act, and the defendants offer no other argument or authority that would require the reversal of the trial court’s judgment on this issue.


source: Caselaw Access Project

author: SMITH, Justice. COBB, Chief Justice MURDOCK, Justice

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    Ex parte FAIRFIELD NURSING AND REHABILITATION CENTER, L.L.C. (In re Leisa Roby, individually and as the personal representative of the estate of Brenda Joyce Roby, deceased v. Fairfield Nursing and Rehabilitation Center, L.L.C., et al.) Ex parte Fairfield Nursing and Rehabilitation Center, L.L.C. (In re Myrtis Hill and Fred Hill v. Fairfield Nursing and Rehabilitation Center, L.L.C., et al.)
    1080158 and 1080160.
    Supreme Court of Alabama.
    March 27, 2009.

      Thomas M. Rockwell and Tom B. Walsh of Rockwell & Kaufman, L.L.C., Mobile, for petitioner.
    Barry Walker of The Walker Law Firm, Birmingham, for respondents.
   SMITH, Justice.

These two petitions for the writ of mandamus, which have been consolidated for purposes of issuing one opinion, involve separate actions against Fairfield Nursing and Rehabilitation Center, L.L.C. (“Fair-field”), in the Jefferson Circuit Court. The trial court entered an order in both actions requiring Fairfield to produce certain documents that Fairfield asserts are privileged under § 22-21-8, Ala.Code 1975, and therefore not subject to discovery. We grant the petitions and issue the writs.

Facts and, Procedural History

Fairfield is a long-term-care facility. In case no. 1080158, Leisa Roby, individually and as the personal representative of the estate of Brenda Joyce Roby, deceased, alleged medical-malpractice claims against Fairfield relating to Brenda’s death while she was a patient at Fairfield. In case no. 1080160, Myrtis Hill and Fred Hill sued Fairfield asserting medical-malpractice claims based on injuries Myrtis allegedly suffered as a result of Fairfield’s actions. Leisa Roby and the Hills are hereinafter collectively referred to as “the plaintiffs” or “the respondents.”

In the underlying cases, the plaintiffs filed requests for the production of documents. In the Roby action, Leisa requested “any and all incident reports and/or complaints involving Brenda Roby.” The Hills filed a similar request in their action, seeking “incident reports regarding Myrtis Hill from June 1992 to Present.” Fairfield filed an objection to both requests based on several grounds, including the contention that the requests sought information privileged under § 22-21-8, Ala.Code 1975.

The plaintiffs in each case moved the trial court to compel the production of the requested documents. The trial court granted the motions to compel. Fairfield filed a motion to “reconsider” in each case, citing § 22-21-8. Accompanying each motion were affidavits asserting that Fair-field does not keep in the ordinary course of business incident reports and witness statements concerning residents and that any such documents do not become part of a resident’s medical chart. Additionally, the affidavits asserted that incident reports and witness statements are created for quality-assurance purposes.

Following oral arguments on Fairfield’s motions to reconsider, the trial court, in each case, ordered Fairfield to produce the requested documents. Fairfield then petitioned this Court for a writ of mandamus in each case.

Standard of Review

“Mandamus is an extraordinary remedy and will be granted 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 Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); .... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala.1992).”

Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136-37 (Ala.2003).

Discussion

The issue presented by these petitions is whether Fairfield sufficiently demonstrated that it is entitled to the privilege in § 22-21-8, Ala.Code 1975, with respect to the requested documents. Section 22-21-8 provides:

“(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, ad-visor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.
“(b) All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation, quality assurance or similar materials nor should any person involved in preparation, evaluation, or review of such materials be prevented from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation, or review of accreditation, quality assurance or similar materials.”

In support of its assertion of the privilege in both of the underlying cases, Fair-field offered the affidavits of Donna Guthrie, the executive director of its facility, and Janie Dawson, the former director of nursing at the facility. Both Guthrie’s and Dawson’s affidavits identically stated as follows:

“Incident reports and witness statements concerning residents are not kept in the ordinary course of business, nor do they become a part of the resident medical chart. ... Incident reports and witness statements are created for quality assurance purposes. The creation of the reports and the gathering of statements are needed to guarantee the high quality of care for all residents. ... The confidentiality of the incident reports and witness statements is needed to keep investigations of incidents at the facility candid and open. Production of incident reports and witness statements to those outside the facility would be detrimental to the quality of care provided for all residents.”

In Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208 (Ala.2000), this Court reaffirmed the principle that the party asserting the privilege under § 22-21-8 has the burden of proving the existence of the privilege and the prejudicial effect of disclosing the information. 789 So.2d at 219-20 (citing Ex parte St. Vincent’s Hosp., 652 So.2d 225, 230 (Ala.1994)). Fairfield contends that the affidavits it submitted with its motions to reconsider sufficiently demonstrated that the requested documents were privileged “quality assurance” materials under § 22-21-8 and that disclosing the information would be prejudicial to Fairfield. Fairfield primarily relies on two cases in support of its position: Ex parte Qureshi, 768 So.2d 374 (Ala.2000), and Kingsley v. Sachitano, 783 So.2d 824 (Ala.2000).

In Ex parte Qureshi, the plaintiff, Larri-more, sought information and documents from Vaughan Regional Medical Center, Inc., pertaining to Dr. F.H. Qureshi, one of its staff physicians. Specifically,

“Larrimore issued a notice of deposition to Vaughan Regional. The notice sought, pursuant to Rule 30(b)(6), Ala. R. Civ. P., to have a representative of Vaughan Regional testify regarding several subjects, including Dr. Qureshi’s qualifications, training, education, and board certification in the field of orthopedic surgery. The notice further sought any investigations or evaluations of Dr. Qureshi and his qualifications, training, education, and board certification in the field of orthopedic surgery conducted or received by Vaughan Regional before Dr. Qureshi was granted staff privileges. In addition, pursuant to Rule 30(b)(5), Ala. R. Civ. P., the notice asked that Vaughan Regional produce certain documents at this deposition, including the following:
“ ‘3. All documents which evidence, or relate or pertain in any way to, the business or contractual relationship between Vaughan Regional Medical Center, Inc., and Dr. F.H. Qureshi, including, without limitation, the following:
“ ‘h. documents evidencing, or pertaining in any way to, any investigations or evaluations of Dr. Qureshi and his qualifications, training, education and board certification in the field of orthopaedic surgery conducted or received by [Vaughan Regional] before it entered into a contractual relationship with Dr. Qureshi;
“ ‘i. documents evidencing, or pertaining in any way to, Dr. Qureshi’s qualifications, training, education and board certification in the field of or-thopaedic surgery;
“ ‘j. correspondence between [Vaughan Regional] and the American Board of Orthopaedic Surgeons, and/or documents received by [Vaughan Regional] from the American Board of Orthopaedic Surgeons, pertaining in any way to Dr. Qureshi; and
“ ‘k. correspondence between [Vaughan Regional] and any other institution or hospital, or documents received by any other institution or hospital, where Dr. Qureshi has practiced medicine or received training, pertaining in any way to Dr. Qureshi.’ ”

768 So.2d at 375.

In its response to the motion to compel production of the requested information, Vaughan Regional included

“the affidavit of Dr. Lotfi Bashir, who was then serving as chairman of Vaughan Regional’s credentialing committee. In the affidavit, Dr. Bashir stated that the documents that would be responsive to Request 3(h)-(k) were maintained as part of Vaughan Regional’s credentialing file on Dr. Qureshi. Dr. Bashir further stated that it was essential that the materials gathered by the hospital be kept confidential, so as to ensure that physicians applying for hospital staff privileges would provide complete and accurate information about their qualifications. Moreover, Dr. Ba-shir stated, if the information did not remain confidential then ‘physicians and health care institutions from whom materials are requested in the credentialing process would be less inclined to provide frank and open criticisms of physician applicants where warranted.’ ”

768 So.2d at 375-76 (footnote omitted). This Court held that the requested information was privileged under § 22-21-8. 768 So.2d at 380.

In Kingsley, the plaintiff, a vascular surgeon, sued three doctors alleging, among other things, “negligence or wantonness in the performance of a peer review of the plaintiff by the Tissue and Transfusion Committee of Russell Hospital.” 783 So.2d at 825. The plaintiff issued a subpoena to Russell Hospital seeking certain peer-review documents. Citing § 22-21-8, Russell Hospital objected to the subpoena. 783 So.2d at 825.

At the request of the plaintiff in Kings-ley, the trial court “ ‘held an evidentiary hearing to afford the plaintiff an opportunity ... to seek the production of [the] documents.’ ” 783 So.2d at 826 (quoting an order of the trial court). The trial court held that the subpoenaed documents were privileged under § 22-21-8.

In affirming the order of the trial court, this Court stated:

“In Ex parte Krothapalli, 762 So.2d 836 (Ala.2000), this Court chronicled the reasoning behind confidentiality statutes such as § 22-21-8, which have been adopted by many states. The statutes provide confidentiality for peer-review processes as a method of ‘encouraging self-regulation by the medical profession through peer review and evaluation.’ Cruger v. Love, 599 So.2d 111, 113-14 (Fla.1992) (quoted in Krothapalli, 762 So.2d at 838). The Florida Supreme Court, in Cruger, explained that the statutes were enacted ‘in an effort to control the escalating cost of health care by encouraging self-regulation by the medical profession through peer review and evaluation.’ 599 So.2d at 113-14 (quoted in Krothapalli, 762 So.2d at 838).
“In support of his position, the plaintiff cites Ex parte St. Vincent’s Hospital, 652 So.2d 225 (Ala.1994), in which this Court declined to apply § 22-21-8 so as to prevent disclosure of the records of a hospital’s infection-control committee. However, in that case there was no evidence that a function of the committee was accreditation or quality assurance.
“The trial judge in this case had before him the deposition of Frank Harris, president and chief executive officer of Russell Hospital. Harris testified that he had reviewed the documents requested by the plaintiff and had determined that they were the subject of quality assurance, credentialling, and accreditation and thus were subject to the privilege of § 22-21-8.
“We have carefully reviewed the record in this case, and we find no abuse of discretion on the part of the trial judge. His judgment is due to be affirmed, on the authority of Ex parte Qureshi, 768 So.2d 374 (Ala.2000), and Ex parte Krothapalli, supra.

783 So.2d at 828.

We agree with Fairfield that the evidence presented in the affidavits submitted in support of the assertion of the privilege is substantially similar to the evidence presented in the affidavits in Kingsley and Ex parte Qureshi The affidavits Fairfield offered stated that the requested documents were created for quality-assurance purposes, that the documents are needed to guarantee the high quality of care for all residents, and that the confidentiality of the reports and statements is necessary. Section 22-21-8 expressly applies to “quality assurance” materials.

The affidavit in Kingsley stated that the requested documents “were the subject of quality assurance, credentialling, and accreditation.” 783 So.2d at 828. The affidavit in Ex parte Qureshi stated that the requested documents were a part of the hospital’s credentialing file. 768 So.2d at 376. Additionally, the affidavit in Ex paHe Qureshi stated that “it was essential that the materials gathered by the hospital be kept confidential” to ensure that “complete and accurate information” would be provided regarding the qualifications of physicians seeking privileges at the hospital. 768 So.2d at 376.

The respondents in these present cases have not offered any evidence in opposition to the affidavits submitted by Fairfield with its motions to reconsider. The respondents contend, however, that Fairfield was required to provide more detailed facts in support of its assertion of the privilege.

They argue that Fairfield was required to show (1) that the incident reports and witness statements were considered by a quality-assurance committee and (2) that the records were created at the direction of such a committee and not in the regular course of business.

In Ex parte Krothapalli, 762 So.2d 836 (Ala.2000), this Court applied § 22-21-8 to a request for a hospital to produce the credentialing files of one of its physicians. This Court stated:

“In construing a statute, we must ascertain and give effect to the intent of the Legislature as that intent is expressed through the language of the statute. See BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052, 1054 (Ala.1996). The intent of the Legislature in adopting a statute may be gleaned from considering the language used, the reason and necessity for the statute, and the goals the Legislature sought to accomplish. Id. Section 22-21-8 was enacted as Act No. 81-801, Ala. Acts 1981. The title to that Act reads: ‘To provide for the confidentiality of all written materials and activities concerning the accreditation, quality assurance, or similar function of any hospital, clinic, or medical staff.’
“In construing this statute, we adopt the reasoning of the Florida Supreme Court and the South Carolina Supreme Court in the following cases, in which those courts construed peer-review statutes substantially similar to § 22-21-8.
“In Cruger v. Love, 599 So.2d 111 (Fla.1992), the Florida Supreme Court, construing Florida’s peer-review statute, Fla. Stat. Ann. § 766.101(5) (1989), stated:
“ ‘The Florida Legislature enacted these peer review statutes in an effort to control the escalating cost of health care by encouraging self-regulation by the medical profession through peer review and evaluation. In order to make meaningful peer review possible, the legislature provided a guarantee of confidentiality for the peer review process....
“ ‘... While we recognize[ ] ... that the discovery privilege [impinges] upon the rights of litigants to obtain information helpful or even essential to their cases, we assume[] that the legislature balanced that against the benefits offered by effective self-policing by the medical community.
“ ‘We hold that the privilege provided by [the peer-review statutes] protects any document considered by the committee or board as part of its decision-making process. The policy of encouraging full candor in peer review proceedings is advanced only if all documents considered by the committee or board during the peer review or credentialing process are protected. Committee members and those providing information to the committee must be able to operate without fear of reprisal. Similarly, it is essential that doctors seeking hospital privileges disclose all pertinent information to the committee. Physicians who fear that information provided in an application might someday be used against them by a third party will be reluctant to fully detail matters that the committee should consider.’
599 So.2d at 113-14. (Citation omitted.)
“Similarly, the South Carolina Supreme Court, in McGee v. Bruce Hosp. System, 312 S.C. 58, 439 S.E.2d 257 (1993), explained:
“ ‘The overriding public policy of the confidentiality statute is to encourage health care professionals to monitor the competency and professional conduct of their peers to safeguard and improve the quality of patient care. The underlying purpose behind the confidentiality statute is not to facilitate the prosecution of civil actions, but to promote complete candor and open discussion among participants in the peer review process....
“ ‘We find that the public interest in candid professional peer review proceedings should prevail over the litigant’s need for information from the most convenient source.’
312 S.C. at 61-62, 439 S.E.2d at 259-60. (Citations omitted.)
“It seems clear to us, as it did to the Supreme Courts of Florida and South Carolina, that the purpose of a peer-review statute is to encourage full candor in peer-review proceedings and that this policy is advanced only if all documents considered by the committee or board during the peer-review or credentialing process are protected. In the title to Act No. 81-801, the Legislature stated the purpose of the Act as being *[t]o provide for the confidentiality of all written materials and activities concerning the accreditation, quality assurance, or similar function of any hospital, clinic, or medical staff.’ Given the broad language used by the Legislature in the title to this Act, we conclude that the documents the plaintiff seeks from the two hospitals are privileged.”

762 So.2d at 838-39.

There is language in Ex parte Krothapalli suggesting that the hospital in fact had an official “committee” presumably similar to the entity respondents argue § 22-21-8 requires. However, the opinion does not state clearly whether such a committee existed, nor does it suggest that the existence of such a committee is a prerequisite to a valid assertion of the privilege under § 22-21-8.

More importantly, the language of § 22-21-8 does not require that a quality-assurance “committee” exist, nor does it limit the privilege to materials created solely at the direction of such a committee. Rather, § 22-21-8(a) provides that

“[t]he confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.”

(Emphasis added.) Further, subsection (b) provides that “[a]ll accreditation, quality assurance credentialling and similar materials ... shall not be subject to discovery or introduction in evidence in any civil action against a health care ... institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities.”

To support their argument that § 22-21-8 requires Fairfield to prove the existence of a quality-assurance committee, the respondents rely primarily on the following two Alabama cases: Ex parte Anderson, 789 So.2d 190 (Ala.2000), and Ex parte Cryer, 814 So.2d 239 (Ala.2001). Neither of those cases, however, supports the respondents’ argument that Fairfield must affirmatively demonstrate the existence of an official committee as a part of its assertion of the privilege provided in § 22-21-8.

The respondents cite Ex parte Anderson for its statement that

“information and documents that specifically concern the ... incident and that may be obtained from [the defendant doctor] himself as an ‘original source’ are discoverable. ...
“... [The plaintiff] is entitled to any information and documents regarding her specific allegations that can be obtained from [the defendant doctor] himself as an original source. Likewise [the plaintiff] is entitled to any material produced by the hospital or any associated committee in its regular course of business.”

789 So.2d at 203 (citations omitted). The respondents in these present cases have not argued, however, that the requested documents fall under the “original source” category described in Ex parte Anderson. See also § 22-21-8(b). Moreover, the affidavits that Fairfield submitted state that the requested documents are not kept in the regular course of business. Thus, Ex parte Anderson does not support the respondents’ position.

Ex parte Cryer involved a claim of privilege as to handwritten notes a defendant doctor had made in preparation for a meeting with the physician shareholders of Mobile Ob-Gyn, P.C., another of the defendants in the case. 814 So.2d at 243-44. This Court held that § 22-21-8 did not apply to the notes under the circumstances of the case because the shareholder physicians did not qualify as “medical staff’ under § 22-21-8. 814 So.2d at 244-45. This Court stated:

“[Act No. 81-801, Ala. Acts 1981, from which § 22-21-8 is codified,] specifically provides for the confidentiality of all written materials and activities concerning the accreditation, quality assurance, or similar function of any hospital, clinic, or medical staff. Accreditation and quality-assurance functions generally are considered to be connected to hospitals, clinics, etc., that are regulated in a manner different from an individual physician or a group of physicians operating as a private association or a private corporation, as is the case here. Consequently, we conclude that the Legislature intended only to provide for the confidentiality of all written materials and activities concerning hospitals and clinics, not private associations or corporations or individual physicians.”

814 So.2d at 245 (emphasis added). In the present case, however, it is undisputed that Fairfield, as a long-term-care facility, qualifies under § 22-21-8 as a “hospital, clinic, or medical staff.” Therefore, Ex parte Cryer is distinguishable from the present case.

The respondents also contend that

“if [Fairfield’s] argument is extended to its logical (or, rather, illogical) conclusion, nearly every document created by [Fairfield], including garden-variety medical records, would be privileged because they are all somehow related to the quality of patient care. Such a tenuous connection to ‘quality assurance’ would, in effect, bar discovery in a medical negligence action.”

That contention of the respondents, however, overlooks the particular facts of the unopposed evidence Fairfield presented in these cases in support of its assertion of the privilege — i.e., the testimony in the affidavits indicating that the requested documents are not kept in the ordinary course of business and do not become a part of a resident’s medical chart.

Finally, the respondents suggest that Fairfield was required to submit the documents for the trial court to conduct in camera examinations. See, e.g., Roby’s answer, p. 10 (“Indeed, [Fairfield] did not ever submit the requested documents to the trial court for an in camera review.”). However, the respondents do not indicate that they ever requested such an in camera review, and they do not cite any authority indicating that Fairfield was required to voluntarily submit the documents for such an inspection in the absence of an order requiring it to do so.

Conclusion

Because Fairfield offered sufficient evidence demonstrating that it is entitled to the privilege provided in § 22-21-8, the trial court exceeded its discretion in ordering Fairfield to produce the requested documents in the underlying actions.

The petitions for the writ of mandamus are granted.

1080158 — PETITION GRANTED; WRIT ISSUED.

1080160 — PETITION GRANTED; WRIT ISSUED.

LYONS, WOODALL, STUART, BOLIN, and SHAW, JJ., concur.

PARKER, J., concurs in the result.

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

COBB, Chief Justice

(dissenting).

I join Justice Murdock’s dissenting opinion; I agree completely with his analysis. In addition, I offer the following observations. These petitions present the Court with the critical issue whether it should displace the trial court’s determination, made in the exercise of its sound discretion, that Fairfield was not entitled to the privilege against discovery afforded by Ala.Code 1975, § 22-21-8. I recognize that the information sought by the respondents might ultimately be discoverable through discovery attempts directed at the original sources of the information even if Fairfield is granted the § 22-21-8 privilege. See, e.g., Ex parte Krothapalli, 762 So.2d 836 (Ala.2000). Generally, this Court has upheld the privilege under § 22-21-8 when the health-care provider has shown: (1) that a review committee existed; (2) that the disputed discovery documents or testimony was created by the committee or sets forth the activities of the committee; and/or (3) that the disputed documents were submitted for an in camera inspection. See, e.g., Ex parte Cryer, 814 So.2d 239 (Ala.2001) (holding that a doctor’s handwritten notes were not protected by the § 22-21-8 privilege). See also Ex parte Qureshi, 768 So.2d 374 (Ala.2000)(upholding privilege where hospital produced testimony of chairman of credentialing committee stating that the documents requested were maintained as part of a doctor’s credentialing file); Krothapalli, supra (upholding privilege where documents were submitted to the trial court for an in camera inspection); and Ex parte Burch, 730 So.2d 143 (Ala.1999) (upholding privilege where hospital produced testimony to the effect that a quality-assurance committee existed and that its function was to review certain cases to lead to an improvement in the care of patients at the hospital).

Although the majority attempts to distinguish Cryer based on Fairfield’s status as a long-term-care facility, that distinction does not address the fact that Fair-field failed to show that the materials in question were generated as a function of a committee created to perform a quality-assurance evaluation. It is worth contrasting these facts with those in Kingsley v. Sachitano, 783 So.2d 824 (Ala.2000), in which the Court held that sufficient evidence was presented to uphold the privilege against discovery because the material sought was from a peer-review committee. In Kingsley, the Court distinguished its prior decision in Ex parte St. Vincent’s Hospital, 652 So.2d 225 (Ala.1994), in which it held that the hospital did not meet its burden. This Court in Kingsley recognized that in St. Vincent’s the hospital had failed to show that the material sought was created as a process of a committee whose purpose was accreditation or quality assurance. The opinion in St. Vincent’s states:

“The discovery sought by Zeneca is not privileged under either § 22-21-8 or § 34-24-58. The Infection Control Committee is a standing hospital committee, coordinated by Becky Harrison, a registered nurse. The burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on St. Vincent’s. St. Vincent’s has produced no evidence that the Infection Control Committee served as a utilization review committee and no evidence that a function of that committee was accreditation or quality assurance. The trial judge did not abuse his discretion in ordering that St. Vincent’s to produce the records.”

652 So.2d at 230 (emphasis added).

Moreover, I respectfully dissent from the suggestion in the majority opinion that the respondents were under some sort of burden to require Fairfield to seek an in camera review. After the trial court had granted discovery in each case of the material Fairfield sought to avoid disclosing, the burden was entirely on Fairfield to demonstrate that it was entitled to protective orders.

“Typically, when an objection to a discovery request is made, the burden is on the objecting party to state specifically and to support the reasons for the objection. See Rules 26(b)(1) and (c), Ala. R. Civ. P.
“ ‘[T]he party who seeks a protective order has the burden of showing good cause why discovery should not be had.
“ ‘ “Thus, to be entitled to a protective order, a movant must either show good cause why the objected-to deposition or production of documents would be unduly burdensome or expensive, oppressive, embarrassing or annoying, or that the subject matter sought to be discovered is privileged.” ’
“Ex parte Scott, 414 So.2d 939, 941 (Ala.1982) (quoting Assured Investors Life Ins. Co. v. National Union Assocs., Inc., 362 So.2d 228, 231 (Ala.1978)); see, e.g., Ex parte Garrick, 642 So.2d 951, 952-53 (Ala.1994) (‘Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception.’).”

Ex parte CIT Commc’n Fin. Corp., 897 So.2d 296, 300 (Ala.2004). See also Ex parte Cuna Mut. Ins. Soc’y, 507 So.2d 1328 (Ala.1987), and Ex parte Scott, 414 So.2d 939 (Ala.1982). It was not the respondents’ burden to have Fairfield present the material in question for an in camera review to support its motions for a protective order; it was Fairfield’s burden. It is undisputed that Fairfield failed to demonstrate that the materials in question should be afforded the privilege of § 22-21-8 by submitting the material to the trial court for an in camera inspection. Under the circumstances of these cases, I do not believe that this Court can correctly hold that the trial court exceeded its discretion in denying Fairfield’s motion for a protective order. Accordingly, I respectfully dissent.

MURDOCK, Justice

(dissenting).

Fairfield Nursing and Rehabilitation Center, L.L.C. (“FNRC”), asks this Court to hold that the trial court abused its discretion.

The trial court’s orders at issue are discovery orders. The orders require the disclosure of materials that, for all that appears, will reveal what happened to the plaintiffs’ injured family members, who was responsible for the injuries, and in what measure such person or persons might be culpable.

FNRC’s position that the trial court abused its discretion is based on nothing more than bare — indeed, bare minimum— assertions in identically worded affidavits signed by one former employee and one current employee. The key averment included in each of these affidavits is a con-clusory one that the requested materials are somehow related (how, we are not told) to something called “quality assurance.” The affidavit speaks not of an established “quality assurance” program or procedures, but instead simply borrows from § 22-21-8(b), Ala.Code 1975, the term “quality assurance,” an obviously general term that appears at best to be ambiguous.

Although FNRC asserts that these affidavits were “unopposed,” I submit that the trial judge could have acted within his discretion to employ his common sense and experience with regard to the issue at hand and, in the context of the above-described concerns, to find inadequate the conclusory assertions found in these affidavits. Roby, for example, argues in her brief that the affidavits fail to provide any facts that would be material to aiding the trial court in determining whether the privilege is applicable here:

“Although the affiants state that the materials are allegedly ‘created for quality assurance purposes,’ the affiants do not state what alleged system of ‘quality assurance’ that FNRC has in place or what its alleged methods and procedures for ensuring ‘quality assurance’ are. Nor do the affidavits attempt to describe what individuals or committee (if any) is responsible for monitoring ‘quality assurance.’ Finally, although the affidavits give conclusory assurances that the materials ‘are needed to guarantee the high quality of care for all residents’ and ‘to keep investigations of incidents at the facility candid and open,’ the reader is left to guess as to ‘why’ and ‘how’ these things are allegedly achieved.”

Roby brief, at 10. Roby also argues:

“[T]his Court has never construed the words ‘quality assurance’ so loosely as FNRC argues should be done in this case. Nor should the Court do so. Indeed, if FNRC’s argument is extended to its logical (or, rather, illogical) conclusion, nearly every document created by FNRC, including garden-variety medical records, would be privileged because they are all somehow related to the quality of patient care. Such a tenuous connection to ‘quality assurance’ would, in effect, bar discovery in a medical negligence action. Moreover, it would turn the § 22-21-8 privilege into a full-fledged ‘self critical analysis’ privilege— a privilege this Court has expressly refused to adopt.”

Roby brief, at 11-12 (citing Ex parte Cryer, 814 So.2d 239 (Ala.2001)) (emphasis in original).

The general rule in Alabama is that

“‘“[discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.” ’ Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208 (Ala.2000) (quoting Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992)).”

Ex parte Cryer, 814 So.2d at 243. Nevertheless, “ ‘[t]he writ of mandamus is a drastic and extraordinary remedy, to be issued,”’ among other things, only when the petitioner has shown “‘a clear legal right ... to the order sought.’ ” Id. (quoting Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 216 (Ala.2000)). “““[T]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,” ’ and “ ‘the writ will not issue where the right in question is doubtful.’ ” ’ ” Id. (quoting Ex parte Coosa Valley Health Care, Inc., 789 So.2d at 216 (quoting earlier eases)). Given the limited and conclusory nature of the assertions contained in the affidavits presented by FNRC, as well as the discretion afforded the trial court with respect matters of discovery, I cannot conclude that the petitioner in these cases has made the required showing. I therefore, respectfully, must dissent.

COBB, C.J., concurs.

      . This Court in Ex parte Orkin, Inc., 960 So.2d 635, 640 (Ala.2006), "reaffirm[ed] the principle that 'the party seeking a writ of mandamus in a discovery dispute must properly move for a protective order under Rule 26(c), Ala. R. Civ. P.[, before petitioning for the writ].’ " (Quoting Ex parte CIT Commc’n Fin. Corp., 897 So.2d 296, 298 (Ala.2004).). In Ex parte Gentiva Health Services, Inc., 8 So.3d 943, 947-48 (Ala.2008), this Court held that a motion to "reconsider” that was in substance a motion for a protective order satisfied the requirement that a party seeking a writ of mandamus in a discovery dispute first move for a protective order under Rule 26(c), Ala. R. Civ. P. (“Gentiva's motion to 'reconsider' the trial court's order requiring production of [the] resignation letter specifically sought to prohibit discovery of [the] resignation letter, as protected under § 6-5-551, Ala.Code 1975, and the motion clearly afforded the trial court the opportunity to address its alleged error before Gentiva sought mandamus relief from this Court to correct the alleged error. In substance, Gentiva’s motion to 'reconsider' was actually a motion for a protective order. ... Therefore, Gentiva filed a motion for a protective order before it petitioned this Court for the writ of mandamus; thus, Gentiva is not procedurally barred from seeking mandamus relief on the basis that it failed to file a motion for a protective order.”).

      . The dissenting opinion of Justice Johnstone in Ex parte Krothapalli notes that the only evidence offered in support of the assertion of the privilege was an affidavit that described the contents of the requested file as
      " 'the medical staff credentials file regarding the hospitals credentialing of Dr. Radha Krothapalli and the nature and scope of his privileges to practice medicine at Baptist Medical Center South. Baptist considers the contents of the file to be confidential pursuant to Section 22-21-8 of the Code of Alabama, 1975.' ”
      762 So.2d at 839-40 (Johnstone, J., dissenting).

      . The respondents also cite caselaw from other jurisdictions including Arizona, Connecticut, Florida, Illinois, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Rhode Island, Texas, Utah, Washington, and West Virginia. The respondents have not demonstrated, however, that any of those foreign decisions involve the application of a privilege statute substantially similar to § 22-21-8, Ala.Code 1975, to facts analogous to those in the present cases.

      . We emphasize that the fact that Fairfield offered evidence by affidavit distinguishes the instant case from decisions in which no evidence was submitted in support of the assertion of the privilege under § 22-21-8. See, e.g., Ex parte Coosa Valley Health Care, Inc., 789 So.2d at 219-20 ("Coosa Valley has offered no evidence to show that the information sought was maintained for purposes of quality assurance or for any other purpose covered by § 22-21-8. Compare Ex parte Qureshi, 768 So.2d 374 (Ala.2000); Ex parte Krothapalli, 762 So.2d 836 (Ala.2000) (in each of those cases, the petitioner submitted evidence in the form of affidavits establishing that the information sought by the discovery requests was privileged). Accordingly, Coosa Valley did not meet its burden of proving that the information sought by the discovery requests was privileged.”); Ex parte St. Vincent's Hosp., 652 So.2d 225, 230 (Ala.1994) ("The discovery sought by Zeneca is not privileged under either § 22-21-8 or § 34-24-58. The Infection Control Committee is a standing hospital committee .... The burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on St. Vincent’s. St. Vincent's has produced no evidence that the Infection Control Committee served as a utilization review committee and no evidence that a function of that committee was accreditation or quality assurance.”).

      . " ' "Discovery matters are within the trial court's sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.” Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992) ...."’ Ex parte John Alden Life Ins. Co., 999 So.2d 476, 480 (Ala.2008) (quoting Ex parte Henry, 770 So.2d 76, 79 (Ala.2000)). See also Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003).

      . The ambiguity of the term "quality assurance” is lessened, however, if it is understood " ‘to embrace only objects similar in nature to those objects enumerated' ” by the terms that precede and follow it in § 22-21-8(b), i.e., "accreditation” and "credentialing,” an understanding that suggests something more in the way of procedure and substance than was shown to the trial court in this case. See Ex parte Emerald Mountain Expressway Bridge, L.L.C., 856 So.2d 834, 842-43 (Ala.2003)(discussing the principles of context, noscitur a sociis, and ejusdem generis in relation to statutory construction).