text:
    EX PARTE Timothy Glenn BURCH, Jr.
    1151201 (2150403)
    Supreme Court of Alabama.
    October 21, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


source: Caselaw Access Project

license: Public Domain

text:
    EX PARTE Lisa ANTOINE
    1151213 (2150315)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE C.E.M.
    1151205 (CR-14-0577)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Robert Mate TAYLOR
    1151199 (CR-15-0071)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Bryan Douglas CANNON
    1151217 (CR-14-1352)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE K.K.
    1151220 (2150056)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lorenzo PEARSON and Clarissa A. Pearson
    1151236 (2150285)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Richard HENLEY
    1151223 (CR-15-1238)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Bryde SLEDGE
    1151224 (CR-15-0948)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lisa Hope ANTOINE
    1151226 (2150321)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Heather Marie Coomey SHIRAH
    1151230 (CR-15-0135)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Bennie McEarl CARTER
    1151239 (CR-15-0753)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kenneth S. TRAYWICK
    1151250 (2150531)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kenneth James JACKSON
    1151246 (CR-15-0898)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Stanley Riley CLEMMONS
    1151243 (CR-15-0483)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE K.H.S., JR.
    1151245 (CR-15-0407)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE William Joseph JOHNSON
    1151249 (CR-14-1659)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Tresvon Tyrone SPENCER
    1151251 (CR-14-1673)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Brandon Keith WILLIAMS
    1151252 (CR-15-0179)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Terrence Tyree EDWARDS
    1151267 (CR-15-0816)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Justin Ellis LOTT
    1151258 (CR-14-1518)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Cedric Devon LOWE
    1151259 (CR-14-1444)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Orlando S. MCKEITHEN
    1151261 (CR-15-0724)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Melissa P. PARKER
    1151255 (2150353)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kevin WRENN
    1151270 (CR-14-1535)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Carl D. HUTTO
    1151280 (CR-15-0587)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Taylor WILSON
    1151273 (CR-15-0458)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Bryan Lee DANIEL
    1151282 (CR-15-0877)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Amy Bishop ANDERSON
    1151283 (CR-15-0362)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Olivia Lee REYNOLDS
    1151284 (CR-14-1726)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ukee Rashaud KNOWLES
    1151291 (CR-14-1737)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Larry MCCALL
    1151293 (CR-15-0919)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Akeem Amadi JOHNSON
    1151288 (CR-15-0586)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE King Aron WILLIAMS
    1151285 (CR-15-0102)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Demericon Alex WILLIAMS
    1151294 (CR-15-0350)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Patrick Young Blake BALLARD
    1151286 (CR-15-0215)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Hazel Deann Kendrick STONE and Raymond Davis Stone, Jr.
    1151321 (CR-14-0497)
    Supreme Court of Alabama.
    November 18, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Philip Shawn PAYTON
    1151319 (CR-15-0180)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Johnny Shannon FUTRAL
    1151302 (CR-15-0213)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Robert BROWN
    1151307 (CR-15-0696)
    Supreme Court of Alabama.
    October 21, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE J.M.P.
    1151301 (CR-15-0251)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Trebell MCCALL
    1151306 (CR-15-0685)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Angela Yvonne ALLEN
    1151336 (CR-15-0942)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Allen Alto MADDOX
    1151323 (CR-15-0915)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Paul J. VISHAWAY
    1151335 (2150112)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Willie BROOKS
    1151332 (CR-15-1077)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Michael Wayne PRINCE
    1151324 (CR-15-0897)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Vincent LAMPKIN
    1151333 (CR-15-0698)
    Supreme Court of Alabama.
    October 14, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Terry BLAND
    1151356 (CR-15-1117)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Irving JOHNSON
    1151337 (2150714)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Cedric WHITE
    1151354 (CR-15-1106)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Alex Demetrius MCMILLIAN
    1151358 (CR-14-1757)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Robert LEVERT
    1151338 (CR-15-0676)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Michael SMITH
    1151351 (2150493)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Richard Conway DOBBINS
    1160017 (CR-15-0600)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE W.G.M.
    1160014 (CR-15-0840)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Tony Wayne MCELYEA
    1160009 (CR-15-0829)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kassey Bernard REEDY
    1160010 (CR-15-0720)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE J.W.
    1160015 (CR-15-0329)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE GEORGIA-PACIFIC CONSUMER PRODUCTS, LP
    1160016 (2150426)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Timothy W. CLARKE
    1160018 (2150449)
    Supreme Court of Alabama.
    November 18, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Timothy CHAMBERS
    1160019 (CR-15-1107)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Courtney Lamar MORRIS
    1160042 (CR-15-0935)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Carl Bernard KENNEDY
    1160021 (CR-15-0428)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kendramei JONES
    1160029 (CR-15-0904)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE John WILSON III
    1160041 (CR-15-0436)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Fitzgerald RUSSAW
    1160020 (CR-15-1027)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Darren Wayne CAUDLE
    1160024 (CR-15-1351)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Larry MCGEE
    1160047 (CR-15-0642)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Darrell DONALDSON
    1160043 (CR-15-0793)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Adrian STEWART
    1160057 (CR-15-0590)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ronald Odell KING
    1160072 (CR-15-0306)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE A.B.
    1160071 (2150592)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ricky Nelson BASS
    1160055 (CR-15-1088)
    Supreme Court of Alabama.
    November 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Terry TATUM
    1160108 (CR-15-0761)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Edward Wilson KYTTLE
    1160085 (CR-15-0484)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Kinwen L. STALLWORTH
    1160077 (CR-15-0433)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Elizabeth F. RIDGE and Donald Ridge
    1160118 (2150517)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE R.D.T.
    1160115 (2150646)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Everett Emerson CORNETT, Jr.
    1160106 (CR-14-1745)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Randall Timothy DOWNS
    1160129 (CR-15-0471)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE M.D.M.
    1160123 (CR-15-0790)
    Supreme Court of Alabama.
    December 9, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


author: BOLIN, Justice.

text:
    EX PARTE Yolanda TERRY
    (In re: Homer Lee Washington, as personal representative of the Estate of Mildred P. Collins v. Cherri Forrester et al.)
    1160087
    Supreme Court of Alabama.
    May 5, 2017 Rehearing Denied June 16, 2017
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Larry Lynn and Kimberly J. Dobbs, asst. attys. gen., Department of Human Resources, for petitioner Yolanda Terry.
    Robert Potter of Mann & Potter, P.C., Birmingham, for respondent Homer Lee Washington, as personal representative of the Estate of Mildred P. Collins
   BOLIN, Justice.

Yolanda Terry, a social worker employed by the Macon County Department of Human Resources ("DHR"), petitions this Court for a writ of mandamus directing the Macon Circuit Court to vacate its order denying her motion for a summary judgment based on State-agent immunity and to enter a summary judgment in her favor based on that defense. We grant the petition.

Facts

Mildred P. Collins, who was 85 years old at the time of her death on October 9, 2011, lived with her daughter Cherri Forrester, who was her legal guardian; Collins had suffered from Alzheimer's disease since approximately 2005. On September 30, 2011, Ronald Person, Collins's grandson, contacted DHR and reported that Forrester had been physically abusing Collins. On Thursday, October 6, 2011, DHR assigned the case to Terry. At approximately 10:00 a.m. on that same day, Terry attempted to make an unannounced investigative visit to Forrester's home. According to Terry's case-file memo, Forrester came to the door in her pajamas; she seemed agitated by Terry's visit; and she requested that Terry return the following day, explaining that neither she nor Collins was dressed and that they had not eaten breakfast. The case-file memo further indicates that Terry "did not feel threatened or influenced by Ms. Forrester's demeanor to come back the next day." Following the attempted unannounced visit, Terry returned to her office, at which time she contacted Person concerning the allegations of abuse. Terry indicated in her case-file memo the following concerning her conversation with Person:

"On 10/06/2011, [Terry] returned to the office and made a phone call to Mr. Person being that he was the reporter. Mr. Person began explaining the history behind the allegations in his report to the agency. Mr. Person revealed to [Terry] that he had some pictures of his grandmother with bruises to her face. When asked, Mr. Person could not recall the specific time and day that the pictures were taken. Based on the conversation, it seemed that the pictures had been taken 2 weeks prior, as Mr. Person referenced the time frame when he, his daughter, and mother had just moved out of the home with Ms. Forrester and his grandmother in Montgomery at the request of Ms. Forrester. Mr. Person agreed to e-mail some pictures to [Terry]. After several attempts, Mr. Person was not successful in his attempt to send the pictures of his grandmother with bruises to her face due [to] the formatting in his cell phone. Mr. Person stated that he was driving and that the pictures were in his cell phone. He stated that he would send them that night when he was able to send them from a computer instead of his cell phone. [Terry] was unable to view the pictures on 10/06/2011 as [Terry] had left for day. During the conversation, [Terry] also received information regarding [Collins] being tied with pantyhose and threatened with a gun. Mr. Person also reported that he hid a tape recorder at the home one night. Mr. Person stated that the next day when he retrieved the tape recorder and played it back he could hear the sounds of someone being hit. [Terry] did not hear the tape recording."

Person testified in his deposition that he also had informed Terry that Forrester had mental-health issues and suggested that she take law enforcement with her on her next visit to Forrester's home.

On Friday, October 7, 2011, Terry returned to Forrester's home for an investigative visit, which, according to Terry, lasted approximately one hour; Terry was accompanied by Catherine Stakely, a DHR social worker. The materials before us indicate the following concerning the October 7, 2011, visit: When Terry and Stakely arrived at Forrester's home, Collins was neatly dressed and well groomed; Collins appeared to show no signs of physical abuse but had a mark on her forearm that appeared to be a birthmark or some type of "skin-on-skin" contact mark; Terry did not interview Collins alone because Collins was not oriented to person, place, or time; Stakely discussed with Forrester receiving home-health services for Collins to provide Forrester some relief as a caregiver; Forrester denied the allegations of abuse; Forrester expressed her frustration with family members because they were always telephoning DHR; Terry observed no aggression on Forrester's part toward Collins during the visit; Forrester indicated that she had been in the military and that she was receiving services through the Department of Veterans Affairs; and Forrester signed a "Department of Human Resources HIPPA Privacy Authorization" permitting DHR to contact the Department of Veterans Affairs. Following the October 7, 2011, investigative visit, Terry met with her supervisor, TaRhonda Wiggins, to discuss the visit. As a result of her meeting with Wiggins, Terry agreed that, when she returned to work the following week, she would continue her investigation by conducting a follow-up visit with Forrester and Collins, conducting additional interviews with collaterals who reportedly had witnessed Forrester's maltreatment of Collins, and contacting the Department of Veterans Affairs concerning Forrester. Terry testified in her deposition that, based on her observations of both Forrester and Collins on October 7, 2011, she determined that Collins was not in imminent danger, and there was no indication that legal intervention was needed at that time to have Collins immediately removed from Forrester's home. Collins died two days later on Sunday, October 9, 2011. The evidence before us is conflicting concerning the cause of Collins's death; however, the death certificate indicates "blunt force abdominal injuries with hematoma."

On June 22, 2012, Homer Lee Washington, the personal representative of Collins's estate, sued Terry, in her individual capacity, among others, seeking monetary damages. The gist of Washington's complaint is that Terry violated DHR policy and procedures by failing to properly investigate the report of the alleged abuse of Collins by Forrester and, more specifically, by allowing Collins to remain in Forrester's custody.

On June 24, 2016, following extensive discovery, Terry moved for a summary judgment, asserting State-agent immunity as a defense. Washington filed an opposition to the summary-judgment motion on July 8, 2016. Following a hearing, the circuit court, on September 29, 2016, entered an order denying Terry's summary-judgment motion. This petition followed.

Standard of Review

A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: " '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' " Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) ).

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

Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala. 2000) ).

Discussion

Although of relatively recent origin as precedent, this Court has had occasion in numerous matters to apply the test restated in Ex parte Cranman, 792 So.2d 392 (Ala. 2000), for determining when a State agent sued in his or her individual capacity is entitled to State-agent immunity:

"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"(1) formulating plans, policies, or designs; or
"(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
"(a) making administrative adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring, assigning, or supervising personnel; or
"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
"(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or
"(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
"Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
"(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
"(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."

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

Additionally,

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

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

Terry asserts in her petition, and we agree, that, as a social worker with DHR, she is entitled to State-agent immunity under category (3) of the Cranman restatement because, she says, the actions for which she is being sued involve her discharging duties pursuant to DHR policy and procedures. Accordingly, Terry asserts, the burden shifted to Washington to show that, in investigating the reported allegations of abuse against Collins, Terry acted "willfully, maliciously, fraudulently, in bad faith, or beyond ... her authority." Ex parte Estate of Reynolds, supra. Washington asserts that Terry is not entitled to State-agent immunity because, he says, Terry acted beyond her authority by failing to comply with specific DHR policy and procedures concerning investigations of adults in need of protection. Specifically, Washington states that he offered substantial evidence to that effect through his expert, Alicia VanBuskirk, an Oklahoma registered nurse, who opined that Terry violated DHR policy and procedures by failing to complete an unannounced investigative visit to Forrester's home; by failing to notify law enforcement after being denied access to Forrester's home on October 6, 2011; by failing to interview Collins outside the presence of Forrester; and by failing to inspect all affected areas of Collins's body. Accordingly, the only issue for this Court's review is whether Washington presented substantial evidence, through his expert, establishing that Terry acted beyond her authority by allegedly failing to investigate the reported allegations of abuse against Collins pursuant to DHR policy and procedures so as to preclude Terry from being entitled to State-agent immunity.

DHR's "procedures of investigations and dispositions" state that the purpose of an investigation to determine whether an adult is in need of protection is "to establish facts that will be useful in determining whether the reported victim has been abused, neglected, or exploited" and "to secure sufficient information to determine what, if any, interventions are required by [DHR], whether to seek court action, and, to reach a disposition for each allegation and each person allegedly responsible." DHR policy and procedures concerning investigations of adults in need of protection state, in relevant part:

"All adults in need of protection who are the subject of abuse/neglect/exploitation reports must be seen and interviewed within seven calendar days of receipt of the report. Document any unusual circumstances that prevent seeing the person allegedly abused, neglected, or exploited. Unannounced investigative visits must be made to get the full picture of the home and the situation of the victim. There will be very limited circumstances when the worker's supervisor directs the worker to make an appointment. In most cases, a private interview is essential. The worker must discuss with the client each allegation that is part of the protective service report. ... Whenever possible, when the person allegedly responsible is a member of the household, the worker should arrange to observe the interaction between the client and that person after the individual interview.
"Where allegations of physical abuse are made, the worker will need to personally observe the affected areas (i.e. if allegation states bedsores on back, worker should observe this area). This must be done with the client's permission and preferably in the presence of another person. ...
"If there are allegations of neglect and/or self-neglect reported, the worker will need to observe for signs of deprivation of food, clothing, medications, or medical care. Supplies of food and medications should be checked as well as the condition of the victim's home including the kitchen, bathroom, and client's bedroom. Hazardous and unsanitary housing conditions, and improper or lack of supervision are also signs of neglect. ...
"....
"If the alleged victim refuses to talk to the worker or to allow access to the home, a systematic method should be used to gain acceptance. It is important to continue to seek entry by showing compassion and understanding to the client or caregiver who may feel threatened by 'someone from the State.' ... The worker must not force his/her way into a home and place his/her safety in jeopardy. Difficulties encountered in gaining access to the client and all efforts made to interview the client and observe his/her condition/situation must be carefully documented and fully detailed in the narrative.
"In some instances, the alleged victim may refuse to discuss the allegations with the worker. The client may be unable to communicate or may make a conscious decision not to do so because of fear, shame, or a sense of failure and uncertainty. The worker should continue with the investigation unless it appears that immediate court action for treatment, evaluation, or placement should be taken.
"....
"If a worker is denied access to the client because a caregiver or other person refuses to permit contact by the worker or because of locked doors, assistance should be requested from law enforcement officials. According to Code of Alabama 1975, Section 13A-10-2, obstructing government operations by means of intimidation, physical force, or interference where a person intentionally prevents a public servant from performing a government function is a Class A criminal misdemeanor. A petition must be filed in circuit court to gain access to the client to complete the investigation if all other strategies fail."

(DHR000184-000187.) (Some emphasis added.) DHR policy and procedures also state:

"It is likely that the worker may still need to do further work to complete the investigation, such as interview a collateral witness, obtain medical or psychological evaluation, secure bank records, etc., after the seven day period. However, all investigations should be completed, recorded and approved by a supervisor within 60 calendar days of the date the report is received by [DHR]. ..."

(DHR000203.)

1. Terry's compliance with DHR policy and procedures concerning unannounced investigative visits

Washington's expert, VanBuskirk, opined that Terry violated DHR policy and procedures by failing to make an unannounced investigative visit to Forrester's home because, according to VanBuskirk, the first step to any investigation involves an unannounced visit. VanBuskirk's opinion, however, is contrary to the plain language of DHR policy and procedures concerning unannounced investigative visits. DHR policy and procedures specifically state that "[u]nannounced investigative visits must be made to get the full picture of the home and the situation of the victim." (Emphasis added.) Pursuant to DHR policy and procedures, Terry had 7 days from the date DHR received the report of allegations of abuse to see and to interview Collins, and she had 60 days from the date DHR received the report of allegations of abuse to complete her investigation. DHR policy and procedures do not state at what point during this 60-day investigative period any unannounced visits have to be made, nor do they state that the initial investigative visit must be unannounced. Terry's supervisor, TaRhonda Wiggins, testified in her deposition that an unannounced visit has to be completed at some point within the 60-day investigative period. Here, the case was assigned to Terry on Thursday, October 6, 2011, and on that same day Terry attempted an unannounced visit-but was requested by Forrester to return the following day. On October 7, 2011, Terry returned to Forrester's home to see and to interview Collins, as well as Forrester. Thereafter, Wiggins advised Terry to follow up with neighbors and collateral contacts and to make an unannounced visit the following week. However, Terry was unable to conduct an unannounced visit the following week because Collins died on Sunday, October 9, 2011. Because DHR policy and procedures did not require Terry's initial investigative visit to be unannounced, Washington has failed to establish, through his expert, that Terry is not entitled to State-agent immunity.

2. Terry's compliance with DHR policy and procedures concerning the assistance of law enforcement

VanBuskirk opined that Terry violated DHR policy and procedures by failing to contact law enforcement after she was refused entry into Forrester's home on October 6, 2011-the date Terry attempted an unannounced visit. VanBuskirk stated in her deposition that, when Forrester refused to let Terry into her home at the time of the unannounced visit, Terry "definitely" should have notified law enforcement. DHR policy and procedures concerning access to a home state that, if a client, or in this case, the caregiver, "refuses to talk to the worker or to allow access to the home, a systematic method should be used to gain acceptance"; that "[i]t is important to continue to seek entry by showing compassion and understanding to the client or caregiver who may feel threatened by 'someone from the State' "; and that "[t]he worker must not force his/her way into a home and place his/her safety in jeopardy." In this case, Terry reported in her case-file memo that, when she arrived unannounced at Forrester's home on October 6, 2011, she agreed, at Forrester's request, to return the following day based on the fact that Forrester had come to the door in her pajamas and indicated that neither she nor Collins were dressed and that they had not eaten breakfast. Terry further reported in her case-file memo that "she did not feel threatened or influenced by Ms. Forrester's demeanor to come back the next day." This evidence demonstrates that Terry complied with DHR policy and procedures by showing Forrester, the caregiver, compassion and understanding by agreeing to return the following day and by not forcing herself into Forrester's home. Finally, the relative portion of DHR policy and procedures concerning assistance from law enforcement states that "[i]f a worker is denied access to the client because a caregiver ... refuses to permit contact by the worker or because of locked doors, assistance should be requested from law enforcement officials." (Emphasis added.) When questioned by Williams's counsel, Stakely, Terry's coworker, testified at length concerning DHR policy and procedures on this subject:

"Q. And what would prompt you to call law enforcement?
"A. If the worker is in danger-is at risk of being in danger or the individual that we are going to see.
"Q. Okay. What about if a worker has been denied access to an adult in need of services, is that a reason to call law enforcement?
"A. It would depend on the situation, because you may go back another day and not receive the same response from family members.
"Q. Okay.
"A. Because sometimes law enforcement will escalate a situation.
"....
"Q. And I just want to ask you, before we get into the policy, what would you consider access being denied?
"A. I would think that if I went to a home and I was informed that I was not going to be able to come into to the home and no matter who I brought, be it law enforcement or whomever, that would be denial of access to the home.
"Q. Does it have to be you are not coming in my home ever or you are not coming into my home today, or does it have to be a time limit on that denial to count as a denial of access?
"A. If the person informed me that I was not going to be able to enter the home and they were not going to allow me to come into the home, I would think of that as denial."

In this case, Forrester never denied Terry access to Collins; rather, Forrester requested that Terry return the following day, October 7, 2011, and Terry agreed. Stakely testified that if presented with these same circumstances she, too, would not have contacted law enforcement. Based on the foregoing, we conclude that DHR policy and procedures did not require Terry, under the facts indicated, to contact law enforcement. Accordingly, Washington failed to establish, through his expert, that Terry is not entitled to State-agent immunity.

3. Terry's compliance with DHR policy and procedures concerning private interviews

VanBuskirk opined that Terry violated DHR policy and procedures by failing to provide Collins an opportunity to be interviewed privately during which time Terry could have assessed Collins's mental condition. When questioned by Terry's counsel, VanBuskirk testified:

"Q. Did you read ... where Ms. Terry was interviewing [Collins] and ... her narrative indicates that [Collins] was not-she could not communicate.
"....
"A. [Terry] never interviewed [Collins] or was able to get into the home on the unannounced visit that was required, but on the announced visit she went in, and immediately ... started interviewing with [Collins] in the presence of the alleged perpetrator [Forrester]. Now, per policy [Terry] is supposed to give a private interview [during which time Terry] must discuss with [Collins] each allegation. Now, [Terry] may have at that time when she went in to do that private interview, decided that [Collins] was disoriented, but [Terry] never gave [Collins] an opportunity for that private interview. [Terry] immediately went in and did the interview with [Collins and Forrester] together.
"....
"Q.... [W]hat aspect of your education and training qualifies you to make that particular opinion?
"A. Because in my forensic nursing if there has been a report of any type of violence or abuse to a victim by an alleged perpetrator, and that perpetrator is in the home, it is very important that you interview that client separately to get their opinion on it before that perpetrator can coerce them, do any type of undue influence to them, any type of threats. So when you have the report that came in like we did on Ms. Collins, to keep them from being at risk of further threat or injury, it's important to speak with them so that you get their side of the story first."

(Emphasis added.)

In other words, VanBuskirk opined that, regardless of Terry's personal observation that Collins was not oriented to person, place, or time, and despite Collins's documented Alzheimer's disease, DHR policy and procedures required Terry to provide Collins an opportunity to be interviewed privately. According to VanBuskirk, Collins still had some ability to communicate and had some orientation as to person because she recognized Stakely. DHR policy and procedures, however, specifically state that a private interview is essential "in most cases"; it does not state such an interview is essential in all cases. (Emphasis added.) The materials before us indicate that, during the investigative visit, Forrester presented Terry with paperwork showing that she was Collins's legal guardian because Collins had been adjudicated incapacitated as a result of Alzheimer's dementia. Terry's case-file memo states the following concerning her observations of Collins:

"On 10/07/2011, after observing the verbal responses of Ms. Collins, it was clear that Ms. Collins was not person, place, or time oriented. During the interview with Ms. Forrester, Ms. Collins continuously asked Ms. Forrester about different family members that she had indicated had passed away. Worker did not feel that an interview with Ms. Collins would be capable of giving accurate information; therefore, [Terry] did not ask to interview Ms. Collins alone."

Wiggins, Terry's supervisor, testified in her deposition that a private interview would not be necessary where the social worker personally observes the client and determines that the client is incoherent. Stakely, Terry's coworker, testified in her deposition that social workers have "leeway" concerning private interviews. Stakely specifically stated that a social worker is not required to interview a client privately when the client "has disorientation to the point that [he or she is] not able to communicate with [the social worker]." Although DHR policy and procedures required Terry to "see and interview" Collins, the policy and procedures nonetheless afforded Terry the discretion to use her judgment in determining whether to interview Collins privately, especially where, as here, Terry personally observed Collins and determined that she would be incapable of giving accurate information because she was not oriented to person, place, or time. See, e.g., Ex parte Estate of Reynolds, 946 So.2d at 457 ("[A]lthough the manuals required ALDOT workers to make frequent inspections of the roads to discover defects, the workers nonetheless were required to make judgments in performing this duty."). Accordingly, Washington has failed to establish, through his expert, that Terry is not entitled to State-agent immunity.

4. Terry's compliance with DHR policy and procedures concerning her personal observations of the affected areas of Collins's body

VanBuskirk opined that Terry violated DHR policy and procedures by failing to look at the inside of Collins's lip, by failing to address an area on Collins's forearm that Terry perceived to be a birthmark or some type of skin-to-skin contact, and by failing to inspect Forrester's entire home in order to get a full picture of the home. Where allegations of physical abuse are made, DHR policy and procedures require that the social worker "personally observe the affected areas" of the client's body. VanBuskirk conceded that the affected areas in this case were Collins's two black eyes, a swollen eye, and a busted lip, as indicated in the following DHR intake report:

"On 9/30/2011 at 4:15 p.m., Mr. Ronald Person called in regards to his grandmother Mildred Collins. Mr. Person stated that his aunt, Cherri Forrester, is caring for her. Mr. Person stated that his grandmother has two black eyes. Mr. Person stated that his grandmother has Alzheimer's and she does not remember the abuse. ... According to Mr. Person, Ms. Forrester has threatened to kill Ms. Collins. Mr. Person stated that he reported the information to Ms. Collins's son, and he was supposed to call but he didn't. Mr. Person stated this has been an ongoing situation and it needed to be investigated. Mr. Person stated that Ms. Forrester makes Ms. Collins stand in the middle of the living room naked. Mr. Person stated that he has pictures of when Ms. Collins's lip was busted and eye was swollen."

(Emphasis added.)

Terry's case-file memo indicates the following concerning her observations of Collins:

"On 10/07/11, [Terry] returned to the family's residence along with co-worker, Ms. Stakely. Ms. Forrester appeared to be cordial on this day. Once inside the home, [Terry] observed Ms. Collins sitting on the sofa dressed in a short-sleeved Capri outfit, which allowed visibility of her arms from the elbow to her hands. Ms. Collins' pants revealed visibility of her legs from the calf area to her feet. Ms. Collins' clothes were observed to be clean. [Terry] noticed an area on Ms. Collins's forearm that appeared as it might have been a birthmark or some type of skin-to-skin contact mark. [Terry] did not observe any other marks or bruises on Ms. Collins during the visit. [Terry] did not ask Ms. Forrester about the pictures mentioned by [Person] for risk that it would reveal the identity of the reporter."

(Emphasis added.)

In other words, Terry did not observe any marks or bruises on Collins's body other than a mark of undetermined origin on her forearm, which Terry perceived to be a "birthmark or some type of skin-on-skin contact mark." Terry testified in her deposition that Collins's face was "clean, clear of bruises" and that there was "just no sign of-indication of any kind of abuse." Stakely testified in her deposition as well that she did not observe any marks on Collins's body indicative of injury or that she felt necessitated a physical exam. According to VanBuskirk, however, when Terry saw the mark on Collins's forearm, she should have delved deeper. However, Terry's testimony is clear that she did not perceive the mark on Collins's forearm to be indicative of any kind of physical abuse. DHR policy and procedures required Terry only to "personally observe the affected areas," i.e., Collins's eyes and lips. Terry further testified that she did not look inside Collins's lip to see if it was busted because her lip was not swollen. In fact, Terry indicated in her case-file memo that Person's pictures denoting the black eyes, swollen eye, and busted lip were taken at least two weeks earlier when he contacted DHR about the alleged abuse. Person himself testified in his deposition that the pictures he took of Collins's black eyes, swollen eye, and busted lip were actually taken two months before he contacted DHR about the alleged abuse. Based on the foregoing, we conclude that Terry complied with DHR policy and procedures because she "personally observe[d] the affected areas" of Collins's body. Accordingly, Washington has failed to establish, through his expert, that Terry is not entitled to State-agent immunity.

We further find unavailing VanBuskirk's opinion that Terry violated DHR policy and procedures by failing to inspect Forrester's entire home in order to get a full picture of the home. The portion of DHR policy and procedures that requires the social worker "to get a full picture of the home" relates to unannounced visits; as previously indicated, Terry did not make an unannounced visit to Forrester's home before Collins's death. DHR policy and procedures require the social worker to personally observe the condition of the home, i.e., the kitchen, the bathroom, and the client's bedroom, only when there have been allegations of neglect and/or self-neglect. It is undisputed that there was no report of neglect in this case, and VanBuskirk concedes as much in her deposition.

Based on the foregoing, we conclude that Washington failed to meet his burden of presenting substantial evidence, through his expert, that Terry acted beyond her authority by failing to discharge her duties, i.e., investigating the report that Collins was being abused, pursuant to DHR policy and procedures, because Terry complied with DHR policy and procedures concerning unannounced investigative visits, the need for involving law enforcement, private interviews of clients, inspections of the affected areas of a client's body, and inspections of the entire home.

Conclusion

Terry is entitled to State-agent immunity under the test set forth in Cranman. We hereby issue the writ of mandamus and direct the circuit court to vacate its order denying Terry's summary-judgment motion and to enter a summary judgment in her favor.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

Murdock, J., concurs in the result.

MURDOCK, Justice (concurring in the result).

In 2000, this Court attempted to articulate five defined categories within which allegedly wrongful conduct must fit to qualify for State-agent immunity, abandoning the general "discretionary public function" standard against which State-employee conduct had been measured up until that time. See Ex parte Butts, 775 So.2d 173 (Ala. 2000), adopting the analysis of the plurality in Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000). For the most part, the Cranman analysis attempted to delineate the activities that fall on the immunity side of a line "between conduct involved in planning or decision-making in the administration of government and the conduct of those required to carry out the orders of others or to administer the law with little choice as to when, where, how, or under what circumstances their acts are to be done." Cranman, 792 So.2d at 402. Such an endeavor, of course, ran the risk that the attempt to articulate such defined and limited categories would fail to anticipate every circumstance that should qualify a state actor for immunity and/or that would be captured by an appropriately worded general standard.

The conduct of a Department of Human Resources ("DHR") social worker conducting a field investigation and deciding upon appropriate actions in response thereto is an example of the type of activity that is quintessentially governmental in nature and that involves substantial "public-function discretion" but that was not fairly captured by any of the five so-called Cranman categories. In particular, I do not believe it is captured by category 3, which applies only "insofar as [a] statute, rule or regulation prescribes the manner for performing ... duties" and "the State agent performs the duties in that manner." 792 So.2d at 405. It does not appear to me that the "rules" at issue in this case "prescribe the manner" in which a DHR field agent must perform the duties at issue in a case like this but, instead, as thoroughly explained in the main opinion, imbue the DHR employee with meaningful discretion at almost every turn. (Instead of applying to discretionary activity such as that at issue in this case, a notion incompatible in my view with a plain reading of the language of category 3, it appears to me that category 3, unlike the other categories of Cranman immunity, was intended merely to refer to the execution by state employees of simple "ministerial duties.") In my special writing in Ex parte Randall, 971 So.2d 652, 672 (Ala. 2007) (Murdock, J., dissenting), I expressed these concerns.

In deference to the fact that the Court in Randall nonetheless chose to treat such DHR social-worker investigative activity as falling into category 3, I since have concurred in such cases as Ex parte Jefferson County Department of Human Resources, 63 So.3d 621 (Ala. 2010), and Ex parte Jones, 52 So.3d 475 (Ala. 2010). In hindsight, perhaps I should have, at most, "concurred in the result" in such cases so as not to suggest agreement with the notion that the type of conduct at issue in those cases actually fell within the category of conduct articulated in category 3 in Cranman. That is the approach I take today. In other words, in today's case, I vote to "concur in the result" reached by the main opinion because, although I can agree that such investigative activity is of the discretionary, quintessentially governmental nature that should qualify the actor for State-agent immunity, I cannot agree that category 3 as articulated in Cranman describes this activity. I believe we should acknowledge the latter fact and consider the need for a more general standard or, if we are to continue attempting to articulate defined "buckets" within which activity must fall in order to qualify for State-agent immunity, the need for an additional "bucket" that actually describes the type of activity at issue in cases such as this. See generally Ex parte Randall, 971 So.2d at 670 (Murdock, J., dissenting) ("If this Court is of the opinion that there is or should be some additional catchall category for the discretionary execution of governmental policy generally, it is incumbent upon us to so state and to express the parameters of that category.").

My vote to concur in the result in the present case also is a function of my disagreement with the "beyond-authority" exception to State-agent immunity that has been adopted by this court and that, understandably, is reflected in the main opinion.

See Ex parte Ingram, 229 So. 3d 220, 234 (Ala. 2017) (Murdock, J., concurring specially). In fact, this case highlights a significant reason why, in my opinion, the beyond-authority exception to State-agent immunity is misplaced.

The attempted application of the beyond-authority exception, at least as that exception has been understood by this Court, in a case like this one, in which the qualifying category for immunity is category 3 in the Cranman restatement, inherently requires us to engage in an analysis that either is redundant or risks contradictory results. I am not sure how, on the one hand, we can conclude that category 3 immunity applies because we have determined that a "statute, rule, or regulation prescribes the manner for performing the duties and the State agent perform[ed] the duties in that manner," Cranman, 792 So.2d at 405 (emphasis added), only to follow that very conclusion with a second inquiry, this time for purposes of the beyond-authority exception, into whether the State actor has "failed to discharge duties pursuant to detailed rules or regulations," Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006) (emphasis added). This analytical inconsistency seems to serve as further verification that the beyond-authority exception simply is out of place in State-agent-immunity analysis (and should not have been imported by Cranman from the State-immunity cases where it was and is recognized as an exception to the prohibition of actions for injunctive relief against state actors in their official capacities). See Ingram, supra (Murdock, J., concurring specially).

      A copy of the Lee County Probate Court order, adjudicating Collins incapacitated and granting letters of guardianship to Forrester, is included in the materials before us.

      Terry indicated in one of her assessment narratives that, during her October 7, 2011, investigative visit, Collins was moving back and forth in a rocking motion, that Collins repeatedly made small outbursts during her conversation with Forrester, and that Collins stated to Stakely that she knew her-to which Stakely replied "yes, you do." Stakely explained to Forrester that she had been involved with Collins years earlier because Collins "had been driving erratically in town and on the outskirts."

      The DHR policy and procedures manual defines neglect as follows:
      "Neglect, according to Section 38-9-2, [Ala. Code 1975,] Amended, means, 'The failure of a caregiver to provide food, shelter, clothing, medical services or health care for the person unable to care for himself or herself; or the failure of the person to provide these basic needs for himself or herself when the failure is the result of the person's mental or physical inability.' Lack of supervision, while not specifically defined in the statute, may meet the definition of neglect when lack of supervision results in lack of food, shelter, clothing, medical services or health care."


author: MAIN, Justice.

text:
    ROCHESTER-MOBILE, LLC, and Salzman-Mobile, LLC v. C & S WHOLESALE GROCERS, INC., and Southern Family Markets of Mobile South University BLVD, LLC
    1160185
    Supreme Court of Alabama.
    June 16, 2017
    James B. Newman and William W. Watts of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellants.
    Stephen A. Walsh and Aaron G. McLeod of Adams & Reese, LLP, Birmingham, for appellees.
   MAIN, Justice.

Rochester-Mobile, LLC, and Salzman-Mobile, LLC (hereinafter referred to as "Rochester-Salzman"), appeal from a judgment entered against them in a declaratory-judgment action relating to the validity of a 25-year sublease between Rochester-Salzman and Southern Family Markets of Mobile South University BLVD, LLC ("SFM"), and C & S Wholesale Grocers, Inc. ("C & S"). The trial court concluded that because the sublease was not recorded pursuant to § 35-4-6, Ala. Code 1975, the sublease was void for the remainder of the term extending beyond 20 years. We reverse and remand.

I. Facts and Procedural History

In July 1974, Multiple Properties, Ltd., entered into a ground lease with Casto Developers, a general partnership, related to a parcel of property located in Mobile County. The lease was for an initial term of 31 years with 5 successive 10-year renewal options. The lease agreement was duly recorded in the Probate Office for Mobile County on August 21, 1974. The land was developed as a shopping center, and Bruno's, Inc. ("Bruno's"), then obtained Casto Developers' leasehold interest.

On June 27, 1997, Bruno's entered into a sale-leaseback financing arrangement with Rochester-Salzman. In exchange for $7,000,000, Bruno's assigned its interest under the ground lease to Rochester-Salzman. On that same day, Rochester-Salzman, now the lessee by virtue of the assignment, subleased the premises back to Bruno's in a document titled "Lease and Agreement" ("the sublease"). The sublease was for a term of 25 years with 5 additional, successive 5-year renewal options. Bruno's agreed to make monthly basic rent payments of $55,500. The sublease was not recorded in the office of the judge of probate.

In 2009, Bruno's filed for bankruptcy. As a part of the bankruptcy proceedings, SFM was assigned the rights and assumed the obligations of Bruno's under the sublease. C & S guaranteed SFM's obligations under the sublease.

In 2015, Multiple Properties, LLC, the successor to Multiple Properties, Ltd., initiated this lawsuit, seeking a declaration as to whether Rochester-Salzman or Rochester-Salzman's mortgagees had timely exercised the option to renew the ground lease. C & S was added as a defendant at some time following the original complaint. Rochester-Salzman then filed a cross-claim against C & S and a third-party claim against SFM alleging violations of the sublease. In response, C & S and SFM filed a cross-claim and counterclaim, respectively, against Rochester-Salzman. Their claims sought a judgment declaring that, because the sublease was not recorded, it was due to terminate on the expiration of 20 years pursuant to § 35-4-6. Rochester-Salzman answered the cross-claim/counterclaim, admitting that the sublease had not been recorded within one year of its execution but denying that any such recordation was necessary under § 35-4-6. It further alleged that the sublease contained separate and independent agreements, promises, and covenants that continued in force notwithstanding the termination of the sublease. Rochester-Salzman then filed an additional counterclaim, requesting a judgment declaring that C & S and SFM continued to be obligated to Rochester-Salzman for the full 25-year term of the sublease.

C & S and SFM moved for judgment on the pleadings on the cross-claim/counterclaim, contending that the pleadings established that the sublease was not recorded within 1 year of its execution and that, therefore, the sublease was due to terminate on June 25, 2017, 20 years after it was executed, pursuant to § 35-4-6. Rochester-Salzman opposed the motion and moved for a summary judgment on its declaratory-judgment counterclaim. Rochester-Salzman argued that the recording of the ground lease satisfied the recording requirement of § 35-4-6. Rochester-Salzman also contended that the payment obligations contained in the sublease were part of a financing transaction and that those obligations were independent and enforceable regardless of the termination of the sublease agreement.

On October 3, 2016, the trial court entered an order granting C & S and SFM's motion for a judgment on the pleadings and denying Rochester-Salzman's motion for a summary judgment. The trial court held as follows:

"(1) The Lease and Agreement among [Rochester-Salzman] as Landlord and [Bruno's] as Tenant [d]ated June 27, 1997 ('the Lease') which is the subject of the parties' respective motions is a lease covered by Alabama Code [1975,] § 35-4-6.
"(2) It is undisputed that the Lease was not recorded within one year of its execution.
"(3) The Lease is unambiguous.
"(4) Although the Lease provides for a principal term greater than twenty years, the Lease's term is twenty years pursuant to Alabama Code [1975,] § 35-4-6 [,] because it was not recorded within one year of execution. The Lease expires on June 26, 2017.
"(5) To the extent the Lease by its terms extends beyond June 26, 2017, the Lease is void and unenforceable pursuant to Alabama Code [1975,] § 35-4-6. As a result, any rights or obligations (monetary or non-monetary) of C & S, SFM Mobile, or Rochester-Salzman which would otherwise accrue under the Lease or the Guaranty of Lease after June 26, 2017, including without limitation any obligation of C & S or SFM Mobile to pay Rent or Additional Rent (as defined in the Lease), are likewise void and unenforceable pursuant to Alabama Code [1975,] § 35-4-6."

On January 24, 2017, the trial court certified its October 3, 2016, order as final pursuant to Rule 54(b), Ala. R. Civ. P. Rochester-Salzman appealed.

II. Standard of Review

Our review of a judgment on the pleadings is de novo:

"When a motion for a judgment on the pleadings is made by a party, 'the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.' B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala. 1992). See also Deaton, Inc. v. Monroe, 762 So.2d 840 (Ala. 2000). A judgment on the pleadings is subject to a de novo review. Harden v. Ritter, 710 So.2d 1254, 1255 (Ala. Civ. App. 1997).... [I]n deciding a motion for a judgment on the pleadings, the trial court is bound by the pleadings. See Stockman v. Echlin, Inc., 604 So.2d 393, 394 (Ala. 1992)."

Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82-83 (Ala. 2000).

III. Analysis

The key inquiry in this case is whether § 35-4-6 applies to a sublease. Section 35-4-6 provides:

"No leasehold estate can be created for a longer term than 99 years. Leases for more than 20 years shall be void for the excess over said period unless the lease or a memorandum thereof is acknowledged or approved as required by law in conveyances of real estate and recorded within one year after execution in the office of the judge of probate in the county in which the property leased is situated."

Rochester-Salzman argues that § 35-4-6 should not be read to include a sublease. First, it notes that the statute, which imposes restrictions on the freedom to contract in the conveyance of property interests, is in derogation of the common law and, therefore, must be strictly construed. See Foster v. Martin, 286 Ala. 709, 712, 246 So.2d 435, 438 (1971) (noting that a statute in derogation of the common law must be strictly construed and that such a statute "will not be extended further than is required by the letter of the statute"). Next, Rochester-Salzman contends that the terms "lease" and "sublease" are not synonymous:

"A lease and a sublease involve different parties and different relationships of the parties to the real property involved. In a lease, an owner of land conveys a possessory interest in that land to a lessee for some period of time. A sublease involves not the landowner, but the lessee and a third party to whom the lessee conveys some portion of its leasehold interest."

(Rochester-Salzman's brief, at 30-31.) Rochester-Salzman further notes that the legislature knows how to include subleases in the express language of statutes, and it cites a multitude of examples from the Alabama Code in which the terms "lease" and "sublease," or derivatives of those terms, are used in the same section. Finally, it contends that the legislative purpose of § 35-4-6 -preventing landowners from tying up property by lease for long terms-is not served by requiring recording of a sublease, which, by definition, cannot add to the term of a master lease. For these reasons, Rochester-Salzman argues, § 35-4-6 does not apply to subleases.

SFM and C & S, on the other hand, contend simply that a sublease is, in fact, a lease. They argue that the language of § 35-4-6 unambiguously applies to all leases, including subleases.

In interpreting a statutory provision, "a court is required to ascertain the intent of the legislature as expressed and to effectuate that intent." Tuscaloosa Cty. Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa Cty., 589 So.2d 687, 689 (Ala. 1991).

"Words used in the 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."

IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992) ). " 'In the absence of a manifested legislative intent to the contrary, or other overriding evidence of a different meaning, legal terms in a statute are presumed to have been used in their legal sense.' " Crowley v. Bass, 445 So.2d 902, 904 (Ala. 1984) (quoting 2A D. Sands, Sutherland Statutory Construction § 47.30 (4th ed. 1973)).

"Our review of an issue concerning the intent of the legislature is confined to the terms of the legislative act itself, unaided by the views of observers of or participants in the legislative process. City of Daphne v. City of Spanish Fort, 853 So.2d 933, 945 (Ala. 2003). We can look to " 'the history of the times, the existing order of things, the state of the law when the instrument was adopted, and the conditions necessitating such adoption.' " City of Birmingham v. Hendrix, 257 Ala. 300, 307, 58 So.2d 626, 633 (1952) (quoting In reUpshaw, 247 Ala. 221, 223, 23 So.2d 861, 863 (1945) ). We can also look to an act's ' "relation to other statutory and constitutional provisions, view its history and the purposes sought to be accomplished and look to the previous state of law and to the defects intended to be remedied." ' Hendrix, 257 Ala. at 307, 58 So.2d at 633 (quoting Birmingham Paper Co. v. Curry, 238 Ala. 138, 140, 190 So. 86, 88 (1939) ).

King v. Campbell, 988 So.2d 969, 984 (Ala. 2007).

After careful consideration of the parties' arguments, and in light of the applicable canons of statutory interpretation, we conclude that the term "lease" as used in § 35-4-6 does not include a sublease.

First, the terms "lease" and "sublease" are not altogether synonymous. A lease is a contract by which the "possessor of real property conveys the right to use and occupy the property in exchange for consideration." Black's Law Dictionary 1024 (10th ed. 2014). Although a sublease is a species of lease, it has a distinct, refined legal meaning. A "sublease" is defined as "[a] lease by a lessee to a third party, conveying some or all of the leased property for a term shorter than that of the lessee, who retains a right of reversion." Black's, supra, at 1652. Indeed, a body of caselaw exists regarding the determination of whether an instrument is a sublease or an assignment and the resulting ramifications. See, e.g., Pantry, Inc. v. Mosley, 126 So.3d 152, 159 n.2 (Ala. 2013) ; Johnson v. Moxley, 216 Ala. 466, 468, 113 So. 656, 657 (1927) ; and Johnson v. Thompson, 185 Ala. 666, 668-89, 64 So. 554, 555 (1914).

That the drafters of § 35-4-6 did not intend the term "lease" to include a sublease finds ample support among the other provisions of the Alabama Code in which the legislature has used both "lease" and "sublease," or derivatives of those terms, in the same provision. " ' "There is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used." ' " Richardson v. Stanford Props., LLC, 897 So.2d 1052, 1058 (Ala. 2004) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala. Crim. App. 1997), quoting in turn 82 C.J.S. Statutes § 316, at 551-52 (1953) ). Thus, to hold that the term "lease" includes a sublease would render the term "sublease" superfluous in those numerous other statutes in which both terms, or derivatives of those terms, were used. Moreover, when the legislature has intended that the term "lease" include a "sublease," it has demonstrated the ability to expressly indicate its intent. See § 7-2A-103(1)(j), Ala. Code 1975 (defining "lease" and providing that, "[u]nless the context clearly indicates otherwise, the term [lease] includes a sublease").

Furthermore, the history and legislative purpose of § 35-4-6 support the proposition that § 35-4-6 was not intended to apply to subleases. The initial version of § 35-4-6, adopted in 1852, prohibited the creation of a leasehold estate for a longer term than 20 years. The policy underlying the statute was to prevent landowners from tying up property by leasing for long terms. Harco Drug, Inc. v. Notsla, Inc., 382 So.2d 1, 3 (Ala. 1980) ("The policy expressed by the statute is that a person should not be permitted to tie up his property by a lease for a period greater than twenty years."); Tennessee Coal, Iron & R.R. Co. v. Pratt Consol. Coal Co., 156 Ala. 446, 448, 47 So. 337, 337 (1908) ("The policy of the law is clearly expressed in the statute that a person shall not be allowed to tie his property up by lease for a longer period than 20 years ...."). Necessarily, the original version of the statute would have had no application to a sublease because, given that the original lessee could never have possessed a leasehold interest for a term greater than 20 years, the lessee could not have transferred a leasehold interest for a greater term. Thus, the original version of the statute placed no restrictions on a lessee's right to sublet a leasehold estate.

The statute was amended in 1911 to create what is, essentially, the current § 35-4-6. The 1911 amendment increased the maximum term of a lease to 99 years, but retained a vestige of the prior 20-year limit, providing that the term of any lease that extended beyond 20 years was void unless it had been recorded within 1 year of the execution of the lease. We have stated that the "plain purpose" of the recording requirement of § 35-4-6"is to provide notice to innocent purchasers of property who otherwise might purchase property and then discover an unrecorded lease on the property that deprives them of the benefits of ownership for up to 99 years." Eastwood Mall Assocs., Ltd. v. All American Bowling Corp., 518 So.2d 44, 46 (Ala. 1987).

The recognized legislative purpose of § 35-4-6 is not furthered by applying the recording requirement to subleases. First, a sublease by its nature cannot extend the lease term and thus cannot tie up property for any term longer than that held by the lessee under the master lease. Likewise, the recording of the master lease gives notice of the maximum length for which the property at issue is encumbered by lease. Thus, the legislative purpose of the statute is satisfied upon the recording of the master lease.

Moreover, once a leasehold estate of longer than 20 years-fully valid under § 35-4-6 -is established, there is no readily apparent basis for further restricting the alienability of that leasehold interest. In support of this point, we recognize that § 35-4-6 does not, by its terms, apply to assignments. Thus, a lessee who holds a leasehold for a term of more than 20 years can freely assign the entirety of his leasehold estate without the necessity of recording the assignment under § 35-4-6. Applying the statute to subleases, however, restricts a lessee's ability to transfer the estate for a lesser term. It seems to us that, if a leasehold estate is valid in its sum, it must also be valid-and alienable-in its parts.

Finally, in addition to the above-referenced canons of statutory construction, Alabama law has long provided that "[s]tatutes in derogation or modification of the common law are strictly construed." Arnold v. State, 353 So.2d 524, 526 (Ala. 1977). Statutes are presumed to not alter the common law in any way not expressly declared. Arnold, supra. Likewise, "[s]tatutes or ordinances which impose restrictions on the use of private property are strictly construed and their scope cannot be extended to include limitations not therein included or prescribed." Smith v. City of Mobile, 374 So.2d 305, 307 (Ala. 1979). We agree that § 35-4-6, which restrains the ability to transfer a leasehold interest, is in derogation of the common law, mandating the narrowest reasonable construction.

For the above-stated reasons, therefore, we hold that the sublease in this case is not void under the provisions of § 35-4-6. Accordingly, the trial court erred in entering a judgment on the pleadings in favor of SFM and C & S and against Rochester-Salzman. Given our holding, we pretermit discussion of the issue whether the sublease contained separate agreements that are independently enforceable, regardless of the validity of the sublease.

IV. Conclusion

The judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, J., concur.

Murdock and Bryan, JJ., concur in the result.

      See § 8-15-31(5), Ala. Code 1975 (defining "owner" of self-service storage facility as "owner, operator, lessor or sublessor of a self-service storage facility"); § 11-47-14.1(b), Ala. Code 1975 (providing that municipalities "may authorize the lessees in ... leases and their subleasees to construct or maintain buildings and other improvements upon the properties so leased and collect wharfage dues thereon and to sublet all or any part of said wharfs, buildings and other improvements"); § 11-88-7.1(f), Ala. Code 1975 (providing that county may "acquire by lease or sublease" property comprising a water system, sewer system, or fire-protection facility); § 11-89A-2(18), Ala. Code 1975 (defining "revenues" as all income or other charges received from, among other sources, a "lease [or] sublease"); § 11-97-2(21), Ala. Code 1975 (defining "revenues" as all rentals or other income received by utility-services facility from sale, "lease, [or] sublease"); § 24-8-3(10), Ala. Code 1975 (defining for purpose of Alabama Fair Housing law, "to rent" as "to lease, to sublease"); § 26-1A-204(2), Ala. Code 1975 (providing that power of attorney granting general authority with respect to real property authorizes agent to both "lease" and "sublease" property); § 26-1A-205(2), Ala. Code 1975 (providing that power of attorney granting general authority with respect to tangible personal property authorizes agent to "lease" and "sublease" personal property); § 33-10-19, Ala. Code 1975 (providing that commission created in that chapter "may lease or sublease lands leased from the State of Alabama"); § 35-8-4, Ala. Code 1975 (deeming each condominium unit real property, the ownership of which may be by "lease or sublease"); § 35-8A-412(a), Ala. Code 1975 (requiring declarant of condominium containing conversion buildings to give notice of conversion to "each of the residential tenants, and any residential subtenant in possession"); § 35-9-60, Ala. Code 1975 (providing that landlord of any storehouse or other building shall have a lien on the goods, furniture, and effects "belonging to the tenant, and subtenant, for rent"); § 35-9A-141(7), Ala. Code 1975 (defining, for purpose of Residential Landlord and Tenant Act, "landlord" to mean "the owner, lessor or sublessor of the dwelling unit"); and § 41-9-44(a)(6), Ala. Code 1975 (providing that Council on the Arts is authorized to "lease or sublease" real property).

      "No leasehold estate can be created for a longer term than twenty years."

      An early version of a statute or constitutional provision prohibiting long-term leases appeared in New York's constitution of 1846 and prohibited leases of agricultural land for terms longer than 12 years. The framers of that particular provision deemed long-term leases undesirable because, it was believed, tenants were unwilling to make improvements to land as to which they had no independent ownership. Stephens v. Reynolds, 6 N.Y. (2 Seld.) 454, 457 (1852).

      The statute was amended in 1989 to permit recording a memorandum in lieu of the actual lease.

      We have explained the differences between an assignment and a sublease as follows:
      " 'In general terms, the difference between an assignment and a sublease is that an assignment transfers the lessee's entire interest in the property, whereas a sublease transfers only a portion of that interest, with the original lessee retaining a right of reentry at some point during the unexpired term of the lease.' "
      Pantry, Inc. v. Mosley, 126 So.3d at 159 n.2 (quoting 69 Am. Jur. Proof of Fact 3d 191, Circumstances Establishing Landlord's Unreasonable Withholding of Consent to Assignment or Sublease § 4 (2002) (footnotes omitted)).


author: PARKER, Justice.

text:
    Lynda NEWMAN, individually and as personal representative of the Estate of Oscar Newman, deceased v. Michael D. HOWARD and Rhonda B. Howard
    1160226
    Supreme Court of Alabama.
    June 16, 2017
    Jason Knowles of Knowles & Sullivan, LLC, Gadsden, for appellant.
    Luke Montgomery of Montgomery Ponder, LLC, Birmingham; and Harry P. Long, Anniston, for appellees.
   PARKER, Justice.

Lynda Newman, individually and as personal representative of the estate of Oscar Newman, deceased, appeals the summary judgment entered by the Calhoun Circuit Court in favor of Michael D. Howard and Rhonda B. Howard.

Facts and Procedural History

This action concerns a piece of real property located in Calhoun County. The Howards owned the property in 2003 and in April 2003 mortgaged the property to secure a note. The mortgage was recorded with the Calhoun Probate Court on April 24, 2003.

On May 16, 2007, the Howards conveyed the property by general warranty deed to Lynda Newman and Oscar Newman, Lynda's husband who subsequently died. It is undisputed that, unbeknownst to the Newmans, the 2003 mortgage was not satisfied by the Howards before the conveyance and remains an encumbrance on the property.

Thereafter, the Newmans and the Howards were involved in litigation concerning numerous claims against one another, as well as others, involving deeds, financing agreements, mortgages, and contracts between the various parties concerning several pieces of real property, including the property at issue in this case. Before a final judgment was reached in that litigation, in December 2014 the parties dismissed the lawsuit and entered into a "settlement agreement and mutual release agreement" ("the agreement"). The agreement states, in pertinent part:

"8. In consideration of the dismissal of the lawsuit ... and other good and valuable consideration, receipt of which from [the Howards] is hereby acknowledged, [the Newmans], for themselves, their heirs, their legal representatives, successors, assigns, corporations, partnerships, joint ventures, related businesses, alter egos, employees, agents and attorneys, release and forever discharge [the Howards], their heirs, their legal representatives, successors, assigns, companies, corporations, partnerships, joint ventures, related businesses, alter egos, employees, agents, attorney and subsidiaries, from all claims, demands and causes of action that [the Newmans] may now have or that might subsequently accrue to [the Newmans] arising out of or connected with, directly or indirectly, the causes of action set forth or that could have been set forth in that certain lawsuit ... having case number CV-2011-900016.
9. Further [the Newmans], for themselves, their legal representatives, successors, assigns, corporation[s], partnerships, joint ventures, related businesses, alter egos, employees, agents and attorneys ... forever discharge[ ] [the Howards], their heirs, legal representatives, successors, assigns, companies, corporations, partnerships, joint ventures, related businesses, alter egos, employees, agents, attorneys and subsidiaries from all claims, demands, actions, and causes of action of any kind or nature at law or in equity which [the Newmans] may have against all or any of them from the beginning of time to the date of this agreement."

Also in December 2014, shortly after Lynda signed the agreement, she attempted to sell the property at issue here. During the process of closing on the sale of the property, Lynda's attorney conducted a title search of the property and discovered that the property was encumbered by the 2003 mortgage. Lynda requested that the Howards satisfy the mortgage pursuant to the terms of the May 16, 2007, warranty deed. The Howards refused.

On May 8, 2015, Lynda sued the Howards, alleging breach of warranty of title. On June 10, 2015, Michael filed an answer; Michael did not raise any affirmative defenses. Rhonda never filed an answer.

On October 19, 2015, the Howards filed a motion for a summary judgment. The sole argument raised by the Howards was that Lynda had waived any claims she may have had against the Howards regarding the property by signing the agreement. On March 3, 2016, Lynda filed a response to the Howards' summary-judgment motion. Lynda argued, among other things, that "[r]elease is an affirmative defense ... that ... cannot be raised for the first time in a motion for [a] summary judgment."

Following a hearing, on November 28, 2016, the circuit court granted the Howards' summary-judgment motion on the sole basis that Lynda had released any claims she may have had against the Howards. Lynda appealed.

Standard of Review

Our standard of review of a summary judgment is well settled:

" 'The standard of review applicable to a summary judgment is the same as the standard for granting the motion....' McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala. 1992).
" 'A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact-"evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala. Code 1975, § 12-21-12 ; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).'
" Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004)."

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala. 2006).

Discussion

Lynda argues that the circuit court erred in entering a summary judgment for the Howards based on the defense of release when the Howards did not raise that defense until they filed their summary-judgment motion. The Howards offer no argument in rebuttal. The Howards' argument that Lynda is barred from enforcing the May 16, 2007, warranty deed based on Lynda's signing of the agreement is an affirmative defense. See Rule 8(c), Ala. R. Civ. P. The record indicates that Lynda timely objected to the Howards' raising this affirmative defense for the first time in their summary-judgment motion and that the Howards never filed an amended answer to include the affirmative defense before the circuit court entered the summary judgment in their favor.

We addressed a nearly identical factual scenario in Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala. 1984), a case Lynda cites in support of her argument before this Court. In Bechtel, we stated:

"[The defendant] correctly points out that it is within the court's discretion to allow the defendant to raise an affirmative defense after the initial answer to the complaint. In support of this proposition it quotes from Freeman v. Blue Mountain Industries, 395 So.2d 1049 (Ala. Civ. App. 1981) :
" 'Rule 15(a), [Ala. R. Civ. P.], expressly provides that amendments should be freely allowed when justice so requires. Stead v. Blue Cross-Blue Shield, 294 Ala. 3, 310 So.2d 469 (1975). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar the amendment. Bracy v. Sippial Electric Co., Inc., Ala. 379 So.2d 582 (1980).'
" 395 So.2d at 1050.
"The weakness in [the defendant's] argument is that both Freeman and Rule 15(a) pertain to the amendment of pleadings. If [the defendant] had attempted to amend its answer to raise the defense, the discretion of the trial court would have been invoked, and the burden would have been upon [the plaintiff] to show that such amendment would cause actual prejudice or undue delay. This court has recently allowed a defendant to amend his answer in order to raise an affirmative defense after the defendant had filed a motion for summary judgment based on the defense. Piersol v. ITT [Phillips] Drill Division, Inc., 445 So.2d 559 (Ala. 1984). However, Rule 8(c) [, Ala. R. Civ. P.,] requires that in pleading, a party 'shall set forth affirmatively' any matter constituting an affirmative defense. In Piersol, the defendant, after answering the complaint, filed a motion for summary judgment, alleging that he was entitled to such a judgment based on the applicable statute of limitations. Some four months later, but before the court had ruled on the motion, the defendant filed an amended answer in order to raise the defense of the statute of limitations.
"In the case before us, five weeks lapsed between the filing of the motion for summary judgment and the court's hearing on the motion. There is no indication that [the defendant] attempted to amend its answer during that time, or thereafter, although [the plaintiff] had filed a 'Motion to Strike Affirmative Defense' within one week after the summary judgment motion was filed.
"The language of Rule 8(c) is mandatory. This court has held:
" '[An affirmative defense] is required to be specially pleaded under Rule 8(c). See Nash v. Vann, 390 So.2d 301, 303 (Ala. Civ. App. 1980). Under the Federal Rules of Civil Procedure, after which our rules are modeled, the consequences of a party's failure to plead an affirmative defense have been explained as follows:
" ' "If an affirmative defense is not pleaded it is waived to the extent that the party who should have pleaded the affirmative defense may not introduce evidence in support thereof, unless the adverse party makes no objection in which case the issues are enlarged, or unless an amendment to set forth the affirmative defense is properly made."
" '2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d Ed. 1948). See Funding Systems Leasing Corporation v. Pugh, 530 F.2d 91 (5th Cir. 1976).'
" Smith v. Combustion Resources Engineering, 431 So.2d 1249 (Ala. 1983). See, also, Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala. 1983).
"It is clear that [the plaintiff] made timely objection to the reliance on the affirmative defense in the motion for summary judgment, and equally clear that an amendment to the pleading to set forth the defense was not made. For this reason, the court erred in granting the summary judgment based on the defense.
"... [W]e do not intend by our decision to intimate an opinion as to whether the trial judge should, in the exercise of his discretion, allow the defendant's pleading to be amended following remand."

451 So.2d at 795-96.

Based on the nearly identical facts in Bechtel , we come to the same result as did the Court in Bechtel. It is clear that Lynda timely objected to the Howards' reliance on the affirmative defense of settlement and release in their summary-judgment motion and equally clear that an amendment to specially plead that affirmative defense was not made by the Howards. The circuit court erred in granting the Howards' summary-judgment motion based on the unpleaded affirmative defense of release.

Conclusion

We reverse the summary judgment for the Howards and remand this cause. As in Bechtel, 451 So.2d at 796, we do not express an opinion as to whether the circuit court, in exercising its discretion, should allow the Howards to file an amended answer on remand.

REVERSED AND REMANDED.

Stuart, C.J., and Shaw, Wise, and Sellers, JJ., concur.

      Oscar died during the course of the previous litigation. Accordingly, Lynda signed the agreement in her individual capacity and in her capacity as personal representative of Oscar's estate.