author: PARKER, Justice.

text:
    EX PARTE BIRMINGHAM AIRPORT AUTHORITY
    (In re: Terri Bargsley v. Birmingham Airport Authority)
    1170592
    Supreme Court of Alabama.
    September 28, 2018
    John C. Neiman, Jr., Lee E. Bains, Jr., and Brandt P. Hill of Maynard, Cooper & Gale, P.C., Birmingham; and Kem Marks Bryant, chief legal officer and gen. counsel, Birmingham Airport Authority, for petitioner.
    Gayle L. Douglas and M. Blair Clinton of Heninger Garrison & Davis, LLC, Birmingham, for respondent.
   PARKER, Justice.

Terri Bargsley filed a negligence and wantonness action in the Jefferson Circuit Court ("the circuit court") against the Birmingham Airport Authority ("the BAA") seeking to recover damages for injuries Bargsley allegedly incurred in a fall at Birmingham-Shuttlesworth International Airport ("the airport"), which the BAA manages and operates. The BAA filed a motion to dismiss Bargsley's tort action, claiming that it is entitled to immunity under various sections of the Alabama Code 1975. The circuit court granted the BAA's motion to dismiss in part and denied it in part. The circuit court determined that the BAA is entitled to immunity from Bargsley's negligence claim but that it is not entitled to immunity from Bargsley's wantonness claim. The BAA then petitioned this Court for a writ of mandamus directing the circuit court to vacate the portion of its order denying the BAA's motion to dismiss as to Bargsley's wantonness claim and to enter an order dismissing Bargsley's wantonness claim. We grant the petition and issue the writ.

Facts and Procedural History

The BAA is a public corporation organized under § 4-3-40 et seq., Ala. Code 1975, to manage and operate the airport, which is owned by the City of Birmingham. Bargsley alleges that, in April 2017, while traveling for business purposes, she was walking through the terminal at the airport when she slipped on a clear liquid and fell. Bargsley alleges that she suffered injuries as a result of the fall.

On October 10, 2017, Bargsley sued the BAA and several fictitiously named parties asserting claims of negligence and wantonness and seeking damages for her alleged injury. On October 23, 2017, the BAA filed a motion to dismiss Bargsley's tort action pursuant to Rule 12(b)(6), Ala. R. Civ. P. The BAA argued that it is entitled to immunity from Bargsley's tort action under §§ 4-3-7, 4-3-47, and 23-1-383, Ala. Code 1975. Section 4-3-7 states:

"No action or suit shall be brought or maintained against [an airport] authority, or any director thereof, for or on account of the negligence of such authority or director or its or his agents, servants or employees, in or about the construction, maintenance, operation, superintendence or management of any airport, heliport or other facility owned or controlled by the authority."

Section 4-3-47 states, in pertinent part, that "[t]he [airport] authority shall have the ... power ... [t]o sue and be sued in its own name in civil actions, excepting actions in tort against the authority."

On November 6, 2017, Bargsley filed a response in opposition to the BAA's motion to dismiss. Bargsley did not oppose the BAA's argument that it is entitled to immunity from her negligence claim, but she argued that the BAA is not entitled to immunity from her wantonness claim.

On February 15, 2018, following a hearing, the circuit court granted the BAA's motion in part and denied it in part. The circuit court stated "that the claims against [the BAA] asserting negligence are hereby dismissed with prejudice but the claims asserting wantonness against [the BAA] are not dismissed, but shall continue, unaffected by this order." (Capitalization omitted.)

On March 29, 2018, the BAA petitioned this Court for a writ of mandamus directing the circuit court to vacate the portion of its order denying the BAA's motion to dismiss as to Bargsley's wantonness claim and to enter an order dismissing in its entirety Bargsley's tort action.

Standard of Review

In Ex parte Rock Wool Manufacturing Co., 202 So.3d 669, 671 (Ala. 2016), this Court set forth the following applicable standard of review:

" ' " ' "The writ of mandamus is a drastic and extraordinary writ, to be 'issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ; see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995)." Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ].'
" ' " Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001).
" ' " 'Subject to certain narrow exceptions ..., we have held that, because an "adequate remedy" exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.' Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002)."
" ' Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 965-66 (Ala. 2011).'
" Ex parte MERSCORP, Inc., 141 So.3d 984, 990 (Ala. 2013). One of the exceptions to the general rule that the denial of a motion to dismiss is not reviewable by mandamus is where the motion to dismiss asserts a defense of immunity. See Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala. 2003) ('The denial of a motion to dismiss ... generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity.' (citing Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002) ) )."

The entire basis of the BAA's argument before this Court is that it is entitled to immunity from Bargsley's wantonness claim.

Discussion

The only issue before us is whether the circuit court erred in denying the BAA's motion to dismiss Bargsley's wantonness claim.

The BAA argues that the plain language of § 4-3-47 provides it with immunity from Bargsley's wantonness claim. Section 4-3-47 states, in pertinent part:

"The authority[ ] shall have the following powers, together with all powers incidental thereto or necessary to the discharge thereof in corporate form:
"....
"(2) To sue and be sued in its own name in civil actions, excepting actions in tort against the authority."

(Emphasis added.) The BAA argues that the plain language of § 4-3-47(2), Ala. Code 1975, clearly states that tort actions cannot be brought against an authority, such as the BAA, that Bargsley's wantonness claim is an action in tort, and that, therefore, the BAA is free from liability on the wantonness claim.

In response, Bargsley argues that, rather than simply reading the plain language of § 4-3-47(2), this Court must interpret the plain language of § 4-3-47(2) in light of § 4-3-50, Ala. Code 1975, which states:

"No civil action shall be brought or maintained against the authority or any director thereof for or on account of the negligence of such authority or director or its or his agents, servants or employees in or about the construction, maintenance, operation, superintendence or management of any airport, heliport or other facility owned or controlled by the authority."

(Emphasis added.) Bargsley argues that because the plain language of § 4-3-50 entitles an authority to immunity only from a negligence action, the plain language of § 4-3-47(2) cannot be read to entitle an authority to a broader immunity from any action in tort.

This Court set forth the applicable principles of statutory interpretation in Ex parte Ankrom, 152 So.3d 397, 409-10 (Ala. 2013) :

"In ascertaining the legislature's intent in enacting a statute, this Court will first attempt to assign plain meaning to the language used by the legislature. ... [T]his Court has held that '[t]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself.' Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala. 1991).
"We look first for that intent in the words of the statute. As this Court stated in Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala. 1999) :
" ' "When the language of a statute is plain and unambiguous, as in this case, courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning -- they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature." Ex parte T.B., 698 So.2d 127, 130 (Ala. 1997). Justice Houston wrote the following for this Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala. 1998) :
" ' "In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
" ' " ' "Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect." '
" ' " Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992) ); see also Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n, 589 So.2d 687, 689 (Ala. 1991) ; Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm'n, 524 So.2d 357, 360 (Ala. 1988) ; Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala. 1984) ; Dumas Brothers Mfg. Co. v. Southern Guar. Ins. Co., 431 So.2d 534, 536 (Ala. 1983) ; Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc., 376 So.2d 705, 708 (Ala. 1979). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala. 1997)." '
"Thus, only when language in a statute is ambiguous will this Court engage in statutory construction. As we stated in Ex parte Pratt, 815 So.2d 532, 535 (Ala. 2001), '[p]rinciples of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.' "

The plain language of § 4-3-47(2) is clear: an authority may be sued in civil actions, "excepting actions in tort." (Emphasis added.) Bargsley's wantonness claim is undisputedly an action in tort, which clearly violates the plain language of § 4-3-47(2). We conclude that the plain language of § 4-3-47(2) entitles the BAA to immunity from Bargsley's tort action, including her wantonness claim.

Bargsley argues that this Court's decision in Gaines v. Huntsville-Madison County Airport Authority, 581 So.2d 444 (Ala. 1991), implicitly interpreted § 4-3-47(2) as allowing a wantonness action against an authority. We disagree; Gaines is distinguishable. In Gaines, an airport authority was created pursuant to Act No. 780, Acts of Alabama 1961 (amended by Act No. 1219, Acts of Alabama 1969). Section 2 of Act No. 780 stated that "[a] public corporation may be organized under the provisions of this act in any county in this state having a population of not less than 110,000 nor more than 165,000." Section 10 of Act No. 780, amended by Act No. 1219, stated:

"No action or suit shall be brought or maintained against the authority or any director thereof, for or on account of torts arising out of simple negligence, willful negligence, wanton negligence, intentional negligence or willfulness, wantonness, recklessness or intentional misconduct of such authority or director, or its or his agents, servants, or employees in or about the construction, maintenance, operation, superintendence or management of any airport, heliport or other facility owned or controlled by the authority."

Subsequently, a traveler was walking through a municipal airport operated and managed by an airport authority created under Act No. 780 when the traveler slipped and fell on a flight of stairs. The traveler was injured as a result of the fall and sued the airport authority seeking damages under theories of negligence and wantonness. The airport authority filed a Rule 12(b)(6) motion to dismiss, alleging that it was entitled to immunity from the traveler's tort action under Section 10 of Act No. 780. Significantly, the airport authority did not argue that it was entitled to immunity under § 4-3-47(2), the statute at issue in the present case.

In Gaines, in response to the airport authority's immunity claim, the traveler argued that

"Act No. 780 and Act No. 1219 unconstitutionally deny him the due process and equal protection guaranteed under the Fourteenth Amendment to the United States Constitution and Article I, § 13, of the Alabama Constitution. Specifically, [the traveler] alleges that these acts are arbitrary and capricious because, he says, the legislature has 'unreasonably divided airport patrons and airport tort-feasors into arbitrary classes.' He says, 'If one were injured at an airport where the county population was less than 110,000 through the willful negligence of an airport employee, conceivably he could recover while an identically injured patron at Appellee's airport could not.' "

Gaines, 581 So.2d at 445-46. This Court stated that the traveler's argument raised the following issue:

"[T]he issue in this case is whether Act No. 780, as amended by Act No. 1219, unconstitutionally creates a classification that affords unequal protection to persons injured in an airport operated by an authority organized under Act No. 780 by depriving them of a remedy in tort 1 that is available to persons injured in airports operated by an authority organized under Article 1 of Chapter 3 and Chapter 4 of Title 4 ( Ala. Code 1975, §§ 4-3-1 through -24, §§ 4-4-1 through -16).
"____________________
"1 Persons injured in an airport operated by an authority organized under Article 3 or 4 could sue the authority for injuries caused by its wanton conduct, whereas persons injured in an airport operated by an authority organized under Act 780, as amended by Act No. 1219, may not sue the airport authority for any action in tort."

Gaines, 581 So.2d at 447. This Court concluded that the acts did, in fact, create an unconstitutional discriminatory classification and held that

"Act No. 780, as amended by Act No. 1219, by its terms and by comparison to Article 1 of Chapter 3 and to Chapter 4, does create a classification that affords unequal protection to persons injured in an airport operated by an authority organized under Act No. 780 by depriving them of a remedy for any tort."

581 So.2d at 448.

Bargsley notes that the Gaines Court seemed to accept the premise of the traveler's argument that an airport authority incorporated under § 4-3-2 was not entitled to immunity from a claim of wantonness. Bargsley appears to be correct in noting that the Gaines Court accepted that premise as true. However, nothing in Gaines indicates that this issue was actually presented to the Gaines Court or was decided by the Gaines Court. In fact, there is no citation to or discussion in Gaines concerning § 4-3-47(2), the statute at issue here, which clearly states that an airport authority incorporated under § 4-3-41 is entitled to immunity from all tort actions. As a result, we do not read Gaines as interpreting the plain language of § 4-3-47(2) in such a way that denies an airport authority incorporated under § 4-3-41 immunity from all tort actions; that was not at issue in Gaines. Rather, Gaines states that Act No. 780 and Act No. 1219, laws not at issue in the present case, unconstitutionally created a discriminatory classification, thereby depriving the plaintiff in that case from his equal-protection rights. The issue requiring this Court's decision in the present case -- whether the plain language of § 4-3-47(2) entitles the BAA to immunity from Bargsley's wantonness claim -- is entirely different from the issue decided in Gaines -- whether Act No. 780 and Act. No. 1219 created an unconstitutional discriminatory classification; Gaines is distinguishable from the present case.

We conclude that the plain language of § 4-3-47(2) entitles the BAA to immunity from Bargsley's wantonness claim. We note that the BAA also argues that it is entitled to immunity from Bargsley's wantonness claim under § 23-1-383, Ala. Code 1975. However, our conclusion that the BAA is entitled to immunity under § 4-3-47(2) pretermits discussion of the BAA's argument regarding § 23-1-383.

Conclusion

Based on the foregoing, we conclude that the BAA has demonstrated that it has a clear legal right to a dismissal of Bargsley's tort action, including her wantonness claim, based on its immunity under § 4-3-47(2). Therefore, we grant the BAA's petition for a writ of mandamus and order the circuit court to grant the BAA's motion to dismiss in its entirety.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Main, Wise, Bryan, Sellers, and Mendheim, JJ., concur.

      Bargsley did not challenge the BAA's motion to dismiss as to her negligence claim, and she presents no argument before this Court concerning her dismissed negligence claim.

      "Authority" is defined in § 4-3-40(7), Ala. Code 1975, as "[a] public corporation organized pursuant to the provisions of this article." It is undisputed that the BAA meets the definition of "authority."

      Bargsley urges this Court to consider the legislative histories of §§ 4-3-47 and 4-3-50 in order to ascertain the meaning of the plain language of § 4-3-47(2). However, such an exercise is neither necessary nor warranted under the principles set forth in Ex parte Ankrom, supra. The language used by the Legislature is not ambiguous; thus, there is no need to engage in judicial construction.

      Neither did the airport authority argue that it was entitled to immunity under § 4-3-11(2), Ala. Code 1975, which is identical in substance to § 4-3-47(2). Section 4-3-11(2) provides immunity from tort actions for authorities incorporated under Title 4, Chapter 3, Article 1, while § 4-3-47(2) provides immunity from tort actions for authorities incorporated under Title 4, Chapter 3, Article 2. Both statutes state that an authority has the power to sue and be sued in civil actions, "excepting actions in tort against the authority."


source: Caselaw Access Project

author: BRYAN, Justice. SELLERS, Justice (dissenting).

license: Public Domain

text:
    Beverly BURNS, Michael Ashley, and Debbie Elrod v. Joe Keith ASHLEY and James Wayne Ashley
    1170565
    Supreme Court of Alabama.
    September 28, 2018
    Rodney L. Ward, Gadsden, for appellants.
    Luther D. Abel, Gadsden, for appellee.
   BRYAN, Justice.

Beverly Burns, Michael Ashley, and Debbie Elrod (hereinafter collectively referred to as "the appellants") appeal from a judgment of the Etowah Circuit Court ("the circuit court") denying the appellants' will contest, admitting to probate the will of Rheba Sue Ashley ("Rheba"), and issuing letters testamentary to James Wayne Ashley ("James"). For the reasons set forth herein, the circuit court's judgment is void for lack of jurisdiction, and the appeal must therefore be dismissed.

Facts and Procedural History

On February 15, 2015, Rheba died testate, survived by her five children: the appellants, James, and Joe Keith Ashley. On April 22, 2015, James petitioned the Etowah Probate Court ("the probate court") for probate of a will executed by Rheba in 2014, which provides that the appellants are each to receive $10 from Rheba's estate and that James is to receive the remainder of Rheba's estate, and for letters of administration with the will annexed. The probate court did not admit the will to probate or appoint a personal representative of Rheba's estate.

On June 10, 2015, the appellants filed in the probate court a "Complaint Contesting Will" in which they alleged that Rheba had executed a prior will before she executed the 2014 will; that they were beneficiaries under the prior will; and that James used undue influence to procure Rheba's execution of the 2014 will. Simultaneously, the appellants filed in the probate court a petition to transfer the will contest to the circuit court pursuant to § 43-8-198, Ala. Code 1975. However, the probate court did not enter an order transferring the will contest to the circuit court.

On July 15, 2015, the parties filed in the probate court a joint motion seeking the appointment of Jonathan Welch as special administrator ad colligendum until the probate court appointed a personal representative of Rheba's estate. See § 43-2-47, Ala. Code 1975. That same day, the probate court granted the parties' motion and issued Welch letters of administration ad colligendum, which authorized Welch to collect and to preserve the assets of Rheba's estate until the probate court appointed a personal representative of the estate, at which time Welch's authority as special administrator ad colligendum would terminate. See § 43-2-47(d).

On August 18, 2015, the appellants filed in the circuit court a petition for the removal of the administration of Rheba's estate from the probate court, see § 12-11-41, Ala. Code 1975, and, on November 5, 2015, the circuit court entered an order to that effect. The circuit court subsequently held an evidentiary hearing and, on February 13, 2018, entered a judgment denying the will contest, admitting Rheba's 2014 will to probate, and issuing letters testamentary to James. The appellants filed a motion to alter, amend, or vacate the February 13, 2018, judgment, and the circuit court subsequently modified its judgment with respect to one evidentiary finding. However, the circuit court's modified evidentiary finding did not alter its original rulings denying the will contest, admitting Rheba's 2014 will to probate, and issuing letters testamentary to James. The appellants timely appealed.

Discussion

"Although neither party raises a question before this Court regarding the circuit court's subject-matter jurisdiction to consider the appellants' will contest, the absence of subject-matter jurisdiction cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction ex mero motu. See MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393 (Ala. 2011). If the circuit court's jurisdiction to consider the will contest was never properly invoked, then the judgment entered on [February 13, 2018], is void and [will] not support an appeal. MPQ, 78 So.3d at 394 (' "A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment." ' (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) ) )."

McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017).

" 'In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Ala. Code 1975, before probate, the contest may be instituted in the probate court or (2) under § 43-8-199, Ala. Code 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.'
" Stevens v. Gary, 565 So.2d 73, 74 (Ala. 1990)."

Bond v. Pylant, 3 So.3d 852, 854 (Ala. 2008).

In this case, the probate court never admitted Rheba's will to probate. Thus, pursuant to § 43-8-190, Ala. Code 1975, the appellants properly filed their will contest in the probate court. Bond, supra. As noted, the appellants, simultaneously with the filing of their will contest, sought to transfer the will contest to the circuit court. The transfer to circuit court of a will contest pending in probate court is governed by § 43-8-198, which provides, in pertinent part:

"Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court ...."

(Emphasis added.)

"The jurisdiction conferred on the circuit court by this section of the Code is a statutory and limited jurisdiction. Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941). Because will contest jurisdiction is statutorily conferred, the procedural requirements of the applicable statute must be complied with exactly."

Kaller v. Rigdon, 480 So.2d 536, 538 (Ala. 1985) (emphasis added). See also Bullen v. Brown, 535 So.2d 76, 78 (Ala. 1988) ("It is clear that will contest jurisdiction, being statutorily conferred, must comply with the statutory language strictly in order to quicken jurisdiction of the appropriate court." (emphasis added) ); and Marshall v. Vreeland, 571 So.2d 1037, 1038 (Ala. 1990)

(holding that compliance with § 43-8-198 is what gives a circuit court subject-matter jurisdiction over a will contest pending in the probate court).

Thus, a circuit court cannot assume jurisdiction over a will contest pending in probate court absent strict compliance with the procedural requirements of § 43-8-198. One of the procedural requirements of § 43-8-198 necessary to invoke a circuit court's jurisdiction over a will contest pending in probate court is that the probate court in which the will contest is pending must enter an order transferring the will contest to the circuit court; a circuit court cannot "reach down" and remove a will contest from probate court. See DuBose v. Weaver, 68 So.3d 814, 817 n. 3 (Ala. 2011) (recognizing the distinction between the authority of a probate court to transfer a pending will contest and the authority of a circuit court to remove the administration of a decedent's estate). Here, the probate court did not enter an order transferring the appellants' will contest to the circuit court, although it had an imperative duty to do so. See Ex parte McLendon, 824 So.2d 700, 705 (Ala. 2001). Thus, the procedural requirements of § 43-8-198 were not satisfied, and, as a result, the circuit court never obtained jurisdiction over the will contest. Kaller, supra ; Bullen, supra ; Marshall, supra. Accordingly, the circuit court's February 13, 2018, judgment, insofar as it denied the appellants' will contest, is void and will not support the appellants' appeal. McElroy, supra.

Consistent with our duty to notice ex mero motu the absence of subject-matter jurisdiction, McElroy, supra, we also conclude that the circuit court's November 5, 2015, order removing the administration of Rheba's estate from the probate court is void and that, as a result, the circuit court did not obtain jurisdiction over the administration of the estate.

Pursuant to § 12-11-41, Ala. Code 1975, the administration of an estate "may be removed from the probate court to the circuit court at any time before a final settlement thereof." However, a circuit court "cannot assume jurisdiction over the administration of an estate when the administration has not yet begun," and "the initiation of administration is a matter exclusively in the jurisdiction of the probate court." Ex parte Smith, 619 So.2d 1374, 1375-76 (Ala. 1993) (emphasis added). "In stating in Ex parte Smith that '[t]he circuit court cannot assume jurisdiction over the administration of an estate when the administration has not yet begun,' 619 So.2d at 1375-76, this Court was referring to subject-matter jurisdiction." Ex parte Berry, 999 So.2d 883, 887 (Ala. 2008).

Regarding when the administration of an estate begins, this Court has held that "the mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court." Ex parte Smith, 619 So.2d at 1376. In Ex parte Baker, 183 So.3d 139 (Ala. 2015), this Court discussed the duties of a special administrator ad colligendum in considering whether the Chilton Probate Court's appointment of such an administrator constituted an "act upon the petition" sufficient to initiate the administration of an estate:

"[A] special administrator ad colligendum is appointed at the discretion of the probate court for the specific purpose of collecting and preserving the assets of the estate when necessary, i.e., when no full-blown general administration of an estate has been ordered and no personal representative has been appointed. See Smith v. Snider, 497 So.2d 484 (Ala. 1986). The special administrator ad colligendum is not a personal representative of an estate and has only limited authority, because he or she may take no action with regard to any estate matters other than what is permitted by § 43-2-47[, Ala. Code 1975 ]. Smith, supra. The special administrator ad colligendum has no authority to deal with the duties and obligations of the administration of an estate and acts only as an officer or agent of the probate court for the purpose of collecting and preserving the assets of the decedent until proper letters testamentary or of administration are granted and the administration of the estate is initiated. DuBose [v. Weaver, 68 So.3d 814 (Ala. 2011) ], Smith, supra. See also Arnold v. Garrison, 255 Ala. 11, 49 So.2d 787 (1950) (holding that the special administrator ad colligendum is merely an officer or agent of the probate court)."

183 So.3d at 143-44 (emphasis added).

Thus, given that a special administrator ad colligendum is not a personal representative of a decedent's estate and is vested with only limited authority to collect and preserve the assets of the estate until a personal representative of the estate is appointed, the Baker Court concluded that the Chilton Probate Court's appointment of a special administrator ad colligendum "was insufficient to initiate the general administration of the estate." 183 So.3d at 143 (emphasis added). Accordingly, the Court held that,

"[b]ecause the probate proceeding was purportedly removed from the probate court to the circuit court before the initiation of the administration of [the decedent's] estate ..., the circuit court did not obtain proper jurisdiction of the matter. Thus, the circuit court's orders removing the matter from the probate court and subsequently denying Ruth's petition [for appointment as administrator of the estate] and appointing Huebner as administrator were void and must be vacated."

183 So.3d at 144.

Similarly, in this case, the only action the probate court has taken with respect to James's petition to probate Rheba's 2014 will is the appointment of Welch as administrator ad colligendum of Rheba's estate. Pursuant to Ex parte Baker, Welch's appointment was insufficient to initiate the general administration of Rheba's estate. Thus, because the probate court has not initiated the general administration of Rheba's estate, the circuit court could not assume jurisdiction over the administration. Ex parte Smith, supra ; Ex parte Berry, supra. Accordingly, the circuit court's November 5, 2015, order purporting to remove the administration of Rheba's estate from the probate court and its February 13, 2018, judgment, insofar as it admitted Rheba's will to probate and issued letters testamentary to James, are void for lack of jurisdiction and must therefore be vacated. Ex parte Baker, supra.

Conclusion

For the reasons discussed herein, the circuit court's November 5, 2015, order purporting to remove the administration of Rheba's estate from the probate court and its February 13, 2018, judgment are void. Because a void judgment will not support an appeal, McElroy, supra, we dismiss the appeal and direct the circuit court to vacate both the November 5, 2015, order and the February 13, 2018, judgment.

APPEAL DISMISSED.

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

Sellers, J., dissents.

SELLERS, Justice (dissenting).

I respectfully dissent. I believe that the probate judge's authentication of the record dated November 6, 2015, substantially complies with Ala. Code 1975, § 43-8-198. As the main opinion points out, that section requires that the probate court "must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court." There is no question that the probate judge certified all papers and documents filed in the probate court in his authentication of the record. Included in those documents was an order from the circuit court removing the administration of the estate to that court. The probate court's certification, while admittedly not an order per se, substantially complies with the statute in that the probate court acknowledges that the parties desire to take advantage of the equitable powers embodied in the circuit court and to have their will contest heard in that court. This is not an example of a circuit court improperly reaching down to remove a will contest without the knowledge or consent of the probate court. Rather, the probate court here is an accomplice in removing the case, acknowledging and confirming, if not consenting, to the transfer. To now cause the parties who have litigated their issues to, in effect, start over seems to exalt form over substance. The language contained in the probate court's authentication of the record comes very close to the substance of an order and clearly transfers the case file to the circuit court; I am not sure an order could accomplish more. After this case has proceeded through the circuit court, to now require the probate court to enter an order to effectively accomplish what was implicit in the authentication seems a waste of judicial economy. I therefore dissent from the main opinion.

      Rheba's 2014 will also provides that James "has full discretion to distribute any asset from [Rheba's] estate to ... Joe Keith Ashley at any time he sees fit."

      Rheba's 2014 will appoints Kimberly McWhorter executor, but on May 4, 2015, McWhorter renounced her appointment. See § 43-2-25, Ala. Code 1975.

      The circuit court's February 13, 2018, judgment found that the appellants
      "provided no evidence showing that at the time the 2014 Will was made the relationship between [James] and his mother had so changed from the natural mother and child relationship so that the mother was now rendered subservient to the child. However, even if the Court was to find that such evidence existed so that the burden shifted to [James] to rebuff the contention that there had been undue influence, there was no showing of actual fraud or coercion in regard to the 2014 Will. Nor was there any evidence presented that the 2014 Will did not reflect the testamentary intent of [Rheba]."
      In its postjudgment order, the circuit court modified the February 13, 2018, judgment to reflect that "sufficient evidence was presented that the relationship between [James] and his mother had changed to the point the mother was subservient." (Emphasis added.) Aside from that modification, however, the circuit court refused to modify the judgment.


author: BRYAN, Justice.

text:
    EX PARTE Teresa GILLAND
    (In re: Diane K. McCain v. City of Jasper, Alabama, et al.)
    1170642
    Supreme Court of Alabama.
    September 28, 2018
    David J. Canupp and J. Brad Emmons of Lanier Ford Shaver & Payne, P.C., Huntsville, for petitioner.
    Charles C. Tatum, Jr., and Seth L. Diamond, Jasper, for respondent.
   BRYAN, Justice.

Teresa Gilland petitions this Court for a writ of mandamus directing the Walker Circuit Court ("the trial court") to grant her motion to dismiss the claims filed against her by Diane K. McCain on the basis of State-agent immunity. For the reasons set forth herein, we grant the petition and issue the writ.

Facts and Procedural History

On May 29, 2015, McCain, a resident of Jasper, was attacked and bitten by a German Shepherd dog owned by her neighbor, Robert Barton. On January 4, 2017, McCain sued Barton; the City of Jasper ("the City"); Sonny Posey, then mayor of the City; Joe Matthews, director of the City's Public Works Department; Russell Smallwood, superintendent of the City's Street Department; and Gilland, an animal-control officer employed by the City. McCain's complaint set forth the following factual allegations:

"11. Barton is a former police officer of the City of Jasper and was the owner of a German Shepherd dog (hereinafter 'the Dog') that attacked [McCain] and her pet on the date complained of herein.
"12. Barton regularly kept [the Dog] outside tied to the back patio of his home, unmuzzled, and without a kennel or perimeter fence to prevent his escape.
"13. The chain used by Barton, however, was inadequate to keep the [D]og tethered and secured. The Dog would frequently escape running unleashed and unattended throughout the streets terrorizing the neighborhood.
"14. At all times pertinent, McCain lived on the same street as Barton and was Barton's next door neighbor.
"15. For years McCain and her neighbors would call the City of Jasper and complain about [the Dog] running wild through the streets terrorizing and frightening them by attempting to attack them and their pets.
"16. McCain and her neighbors lived in constant fear of [the Dog], making it nearly impossible for them to safely leave their homes and enjoy being outside without having to be on a constant lookout for the Dog.
"17. When the Dog was loose, McCain and her neighbors would call the City of Jasper for help. The City would come out and capture the [D]og, only to release and return the [D]og to Barton.
"18. On occasion, the [D]og attempted to bite the animal control worker, when she turned her back on the [D]og nipping her on the hand.
"19. The [D]og also attacked McCain's [other] neighbor, on two occasions. On the second occasion the [D]og jumped on the neighbor's back, clawing and scratching her while trying to maul and attack her neighbor's dog.
"20. Barton was aware [the Dog] was known to frequently escape, run-at-large, and terrorize his neighbors.
"21. Barton was told by Animal Control that he had to keep [the Dog] tethered and secure or it will hurt someone.
"22. Yet Barton failed to heed their warnings and failed to take sufficient action to contain and confine [the Dog] or protect McCain and her neighbors from being hurt by the [D]og.
"23. For at least two years, McCain repeatedly called the City of Jasper and reported [the Dog] had escaped and was terrorizing her, her neighbors, and their pets.
"24. McCain lived in constant fear of [the Dog], for her own safety and that of her beloved pet dog named Skipper.
"25. McCain could no longer enjoy going outside and taking walks with Skipper without being filled with intense fear at the first sight of [the Dog] charging after her and Skipper, causing her to race back inside for safety.
"26. One occasion while McCain was walking her dog, Skipper, in her back yard, [the Dog] pounced on Skipper, biting him until he bled before letting go.
"27. McCain reported the incident to the City of Jasper and was told that until [the Dog] bit a person they would do nothing to help.
"28. During the spring of 2015, after [the Dog] had escaped several times, Theresa Gilland, the City of Jasper Animal Control Officer, responded to the area and captured the [D]og.
"29. After capturing the [D]og, Gilland's supervisor, Russell Smallwood, told Gilland not to impound [the Dog] because they had no space at the shelter for biting and dangerous dogs.
"30. Gilland told Smallwood that the dog needed to be taken in and put down because it was dangerous and vicious and was going to hurt someone.
"31. Despite this warning by Gilland, Smallwood insisted that Gilland release the Dog.
"32. Having no authority to disobey Smallwood's demand, Gilland released the Dog.
"33. Even though Gilland appeared afraid of [the Dog], she informed McCain that she was instructed to turn the Dog loose and there was nothing she could do to help.
"34. Shortly afterwards, on May 29, 2015, while walking Skipper on a leash in her own front yard, [the Dog] had escaped again and came barreling onto McCain's property charging at her and her dog Skipper. [The Dog] viciously attacked Skipper, biting and shaking him with its powerful and deadly jaws.
"35. As McCain watched and listened to her pet and companion scream and yelp from this vicious attack, McCain pulled the leash with all her might to free Skipper from the grip of [the Dog's] mashing teeth when suddenly [the Dog] turned and attacked her.
"36. The Dog's teeth sunk into the flesh of McCain's upper arm. The Dog bit and thrashed McCain like [a] rag doll and forcing her to the ground and into a drainage ditch.
"37. McCain was in excruciating pain as she watched [the Dog] rip and tear the flesh from her arm.
"38. Despite being in shock from this vicious attack, McCain was somehow able to reach into her pocket with her other arm and spray [the Dog] with mace.
"39. After what seemed like an eternity, [the Dog] let go of McCain's threshed and ragged [sic] and ran-off.
"40. As McCain lay there trying to comfort her whimpering and dying pet and companion, she herself screamed and cried in agony and pain until being overcome and losing consciousness.
"41. Upon being revived, McCain found herself being transported by ambulance first to Walker Baptist Hospital and then to the UAB Trauma Center. She knew that her dog was dead, although no one told her.
"42. As a result of the Dog's attack, McCain ... remained hospitalized for weeks and underwent multiple reconstructive surgeries and physical therapy to repair the extensive injuries to her arm.
"43. McCain is permanently scarred, disfigured, and still suffers from pain due to the damage which serves as a constant reminder of the horror she experienced.
"44. As for McCain's pet and companion, Skipper, [the Dog] killed Skipper as a result of this brutal attack, adding unmeasurably to the suffering and misery inflicted upon ... McCain.
"45. When the police responded to the scene, they followed the [D]og back to Barton's house and shot it, dead when the [D]og charged at one of the police officers."

Based on those allegations, McCain asserted negligence and wantonness claims against Gilland for Gilland's alleged breach of "a duty to ... enforce animal control policies designed to protect the public from dogs running at large."

On June 12, 2017, Gilland, asserting State-agent immunity, filed a motion to dismiss McCain's claims against her. According to Gilland, she is entitled to State-agent immunity because, she said, the allegations in McCain's complaint indicate that, at all pertinent times, Gilland was acting in compliance with the City's Code of Ordinances ("the Code") and with the instructions Smallwood, her supervisor, gave her. Specifically, Gilland relied on Chapter 4, Article III, of the Code, which prescribes, among other duties, the duties imposed on the City's animal-control officers with respect to dogs found to be unlawfully at-large within the municipal limits of the City. According to Gilland, § 4-48 of the Code provides that, "when a dog running at large is seized by an animal control officer, the dog may be returned to the owner 'in the discretion of the officer' based on 'consideration of the facts surrounding the running at large and the available space within the city's animal shelter.' " Thus, Gilland argued, the allegations in McCain's complaint indicate that Gilland was acting in compliance with both § 4-48 and her supervisor's instructions when she returned Barton's dog, and, as a result, Gilland argued, she is entitled to State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala. 2000).

In response to Gilland's motion, McCain argued that Gilland was not entitled to State-agent immunity because, McCain said, § 4-23 of the Code required Gilland to impound Barton's dog after seizing it on May 29, 2015, and, McCain alleged, in failing to impound Barton's dog, Gilland was acting willfully, maliciously, fraudulently, in bad faith, or beyond her authority. See Cranman, 792 So.2d at 405. In reply to McCain's response, Gilland argued that McCain had "misread the relevant ordinances" and contended that, although the Code requires an animal-control officer to seize any dog found to be unlawfully at-large within the municipal limits of the City, the Code also "plainly grants the animal control officer a great degree of discretion in determining whether a dog -- even a 'vicious' one -- should be ... impounded, confined, or returned to its owner." Gilland also argued that McCain's allegation that Gilland had acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority was "belied by the very allegations of [McCain's] complaint."

On February 28, 2018, the trial court, without stating its reasons for doing so, denied Gilland's motion to dismiss. Gilland subsequently petitioned this Court for a writ of mandamus.

Standard of Review

" 'A writ of mandamus is a
" ' " 'drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' "
" ' Ex parte Wood, 852 So.2d 705 (Ala. 2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ). A petition for a writ of mandamus "is an appropriate means for seeking review of an order denying a claim of immunity." Ex parte Butts, 775 So.2d 173, 176 (Ala. 2000) ....
" 'In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review. [ Butts, 775 So.2d at 176 ]; see also Wood, 852 So.2d at 709 (review of a denial of a summary-judgment motion grounded on a claim of immunity by means of a petition for a writ of mandamus does not change the applicable standard of review). Under Rule 12(b)(6), Ala. R. Civ. P., a motion to dismiss is proper when it is clear that the plaintiff cannot prove any set of circumstances upon which relief can be granted. Cook v. Lloyd Noland Found., Inc., 825 So.2d 83, 89 (Ala. 2001). " 'In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [she] may possibly prevail.' " Id. (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993) ). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Butts, 775 So.2d at 177.'
" Ex parte Haralson, 853 So.2d 928, 931 (Ala. 2003) (footnote omitted)."

Atkinson v. State, 986 So.2d 408, 410 (Ala. 2007).

Discussion

As a threshold matter, we must address McCain's motion to dismiss Gilland's mandamus petition as moot. In support of her motion, McCain included a copy of an amended complaint she filed on July 2, 2018. McCain argues that her amended complaint supersedes her original complaint as the operative pleading and that "the questions of law raised by Gilland are pertinent only to the original complaint ... and are no longer relevant to this proceeding." Thus, McCain argues, Gilland's petition is moot and is due to be dismissed.

However, the amended complaint was not before the trial court when it ruled on Gilland's motion to dismiss. Rather, McCain filed her amended complaint more than four months after the trial court denied Gilland's motion to dismiss and more than two months after Gilland filed her petition in this Court. Thus, the amended complaint is not before this Court for its consideration. See Ex parte Cincinnati Ins. Co., 51 So.3d 298, 311 n. 6 (Ala. 2010) ("We note that [the respondent], in his answer, relies on an amended complaint that was served after the entry of the trial court's August 26, 2009, order and after [the petitioner] filed its petition for a writ of mandamus in this Court. Accordingly, the amended complaint is not before us for consideration, and, in view of our issuance of the writ, we do not consider it."); and Ex parte Interstate Freight USA, Inc., 213 So.3d 560, 572 (Ala. 2016) (stating, on petition for a writ of mandamus, that, "[b]ecause the petitioners' answer and counterclaim were not before the trial court at the time it ruled on the motion for a change of venue, we will not consider the answer and counterclaim or any argument based on those pleadings" (emphasis added) ). As a result, we are concerned only with whether Gilland was entitled to a dismissal based on the allegations in McCain's original complaint, i.e., whether Gilland was entitled to a dismissal based on the pleadings that were before the trial court when it ruled on Gilland's motion to dismiss. Accordingly, we deny McCain's motion to dismiss the mandamus petition and proceed to discuss the merits of the petition.

Gilland argues, as she did below, that she has a clear legal right to dismissal based on State-agent immunity. The test for State-agent immunity, established by this Court in Ex parte Cranman, supra, a plurality opinion, and subsequently adopted by this Court in Ex parte Butts, 775 So.2d 173, 178 (Ala. 2000), provides, in pertinent part:

"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
"....
"(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 ....
"....
"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
"....
"(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. "Immunity applies to employees of municipalities in the same manner that immunity applies to employees of the State. See Ex parte City of Birmingham, 624 So.2d 1018 (Ala. 1993). Ex parte Cranman, supra, did nothing to alter this application." City of Birmingham v. Brown, 969 So.2d 910, 916 (Ala. 2007).

"This Court has established a 'burden-shifting' process when a party raises the defense of State-agent immunity.
Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the 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)."

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006). Thus, our first inquiry is whether Gilland made a prima facie showing that McCain's claims arise from a function that would entitle Gilland to State-agent immunity. See Ex parte Brown, 182 So.3d 495, 504 (Ala. 2015) ("Officer Brown made a prima facie showing that he qualified for State-agent immunity, thus shifting the burden to Cupps to demonstrate that Officer Brown's conduct fell within one of the two exceptions to State-agent immunity.").

As noted, Gilland argued in her motion to dismiss that the allegations in McCain's complaint indicate that, at all pertinent times, Gilland was discharging the duties imposed on her by § 4-48 of the Code and that she was doing so in the manner prescribed therein. Thus, Gilland argued, she made a prima facie showing that she is entitled to State-agent immunity under the third Cranman category -- "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." Cranman, 792 So.2d at 405. We agree that Gilland satisfied her burden of making a prima facie showing that she qualifies for State-agent immunity.

Section 4-48 of the Code provides, in pertinent part:

"(a) Any dog found unlawfully to be at large within the City of Jasper is hereby declared to be in violation, and shall be seized by any police or animal control officer, and shall be cared for in a humane manner for a period of not less than seven (7) calendar days; provided, however, that in the discretion of the officer, and in consideration of the facts surrounding the running at large and the available space within the city's animal shelter, or the animal shelter used by the city, the officer shall have the discretion, if feasible, to return the dog to the owner or person in charge of the dog, and shall issue a citation or, at a minimum, a warning, for the violation of the prohibition against permitting said dog to run at large."

(Emphasis added.)

Thus, § 4-48 requires an animal-control officer to seize any dog found to be unlawfully at-large within the municipal limits of the City and dictates that the officer, subsequent to such a seizure, impound the dog at least seven days unless the officer, in his or her discretion, determines that the circumstances and the lack of space at the City's animal shelter warrant returning the dog to its owner. Should the officer elect to return the dog to its owner, § 4-48 requires the officer to issue the dog's owner a citation or a warning. Accordingly, § 4-48 imposes a duty on an animal-control officer of the City to seize a dog found to be unlawfully at-large within the municipal limits of the City and "prescribes the manner," Cranman, supra, in which the officer is to proceed subsequent to such a seizure, i.e., the officer is either to impound the dog for at least seven days or to return the dog to its owner with a citation or warning.

In her complaint, McCain alleged that Gilland responded to a report that Barton's dog was at-large and subsequently seized the dog; that Smallwood, Gilland's supervisor, informed Gilland that the City lacked available space to impound the dog; that Gilland informed Smallwood that the dog "needed to be taken in and put down because it was dangerous and vicious and was going to hurt someone"; that Smallwood, despite Gilland's warning, "insisted" that Gilland return the dog to Barton; that Gilland, "[h]aving no authority to disobey Smallwood's demand," returned the dog to Barton; and that Gilland informed McCain that Gilland had been "instructed" to return the dog to Barton and that "there was nothing she could do to help." Thus, McCain's allegations -- which, at this point in the proceedings, must be accepted as true, Ex parte Austal USA, LLC, 233 So.3d 975, 981 (Ala. 2017) -- indicate that Gilland seized Barton's dog as she was required to do by § 4-48 and returned the dog to Barton -- an option authorized by § 4-48 -- after her supervisor instructed her to do so based on the lack of space at the City's animal shelter. That is to say, the factual allegations of McCain's complaint indicate that Gilland was discharging the duties imposed on her by § 4-48 and was doing so both in a manner prescribed therein and in a manner consistent with her supervisor's instructions. Therefore, Gilland satisfied her burden of making a prima facie showing that she qualifies for State-agent immunity under the third Cranman category. Estate of Reynolds, supra. As a result, the burden then shifted to McCain to demonstrate that, in failing to impound Barton's dog, Gilland acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority. Id.

In response to Gilland's motion to dismiss, McCain argued that Gilland

"acted willfully, maliciously, fraudulently, in bad faith, beyond ... her authority, or under a mistaken interpretation of the law when she failed to enforce the City's rules and regulations designed to identify, confine, and protect McCain from vicious dogs running at large. Had Gilland followed protocol McCain would not have been injured."

Regarding the allegation that Gilland "failed to enforce the City's rules and regulations," McCain argued that Gilland had no discretion to return Barton's dog subsequent to the May 29, 2015, seizure because, McCain said, the Code required Gilland to impound Barton's dog. That is to say, McCain alleged that Gilland acted beyond her authority by failing to impound Barton's dog and that she did so willfully, maliciously, fraudulently, or in bad faith. See Ex parte Watson, 37 So.3d 752, 762 (Ala. 2009) (holding that a State agent acted beyond her authority when she failed to comply with certain requirements, thus "defeat[ing] her claim of State-agent immunity").

As to the allegation that Gilland acted beyond her authority by failing to impound Barton's dog, McCain's complaint does not identify any ordinance in the Code that unconditionally required Gilland to impound Barton's dog, and, as noted, § 4-48 authorized Gilland to return Barton's dog. In response to Gilland's motion to dismiss, McCain argued that her complaint alleged that Barton's dog was a "vicious dog" as defined by § 4-61 of the Code and that, as a result, Gilland was required to impound the dog pursuant to § 4-23 of the Code, which provides:

"Each person owning or having charge of any cat, or exotic animal as defined by state statute, that is vicious or dangerous shall keep said animal confined to the premises of the owner or keeper. Any such animals that are known to be vicious and mean shall be picked up by the city dog catcher if found upon the streets of the city and shall be confined at the pound in accordance with the provisions of this article."

(Emphasis added.) However, in addition to the fact that the plain language of § 4-23 provides that it is applicable only to "cat[s]" and "exotic animal[s]," § 4-23 is included in the Code in Chapter 4, Article II, which governs cats and exotic animals, not in Article III, which governs dogs. Thus, because § 4-23 is not applicable to dogs -- vicious or otherwise -- it imposed no duty on Gilland to impound Barton's dog. Accordingly, McCain failed to carry her burden of demonstrating that Gilland had a mandatory duty to impound Barton's dog and that she therefore acted beyond her authority by failing to do so.

As to the allegation that Gilland acted willfully, maliciously, fraudulently, or in bad faith by not impounding Barton's dog, McCain's complaint does not set forth any factual allegations that could even plausibly support such a conclusion. In fact, far from exhibiting that Gilland acted willfully, maliciously, fraudulently, or in bad faith, the factual allegations of McCain's complaint, which, again, must be accepted as true, Austal USA, supra, indicate that Gilland acted conscientiously by attempting to persuade her supervisor of the need to impound or exterminate Barton's dog and that she did everything in her power, short of disobeying her supervisor's instructions, to avoid returning the dog to Barton. Thus, as Gilland noted, McCain's factual allegations actually belie the conclusion that Gilland acted willfully, maliciously, fraudulently, or in bad faith and, instead, support Gilland's contention that she is entitled to State-agent immunity. Accordingly, McCain failed to carry her burden of demonstrating that Gilland "acted 'willfully, maliciously, fraudulently, [or] in bad faith' so as to remove [her] from the umbrella of State-agent immunity afforded [her] under Ex parte Cranman." Ex parte Harris, 216 So.3d 1201, 1214 (Ala. 2016).

We recognize that

"a motion to dismiss is typically not the appropriate vehicle by which to assert qualified immunity or State-agent immunity and that normally the determination as to the existence of such a defense should be reserved until the summary-judgment stage, following appropriate discovery. ' "[I]t is the rare case involving the defense of [State-agent] immunity that would be properly disposed of by a dismissal pursuant to Rule 12(b)(6), [Ala. R. Civ. P.]." ' Ex parte Butts, 775 So.2d [173,] 177 [ (Ala. 2000) ], quoting Patton v. Black, 646 So.2d 8, 10 (Ala. 1994) (quoting earlier cases)."

Ex parte Alabama Dep't of Mental Health & Retardation, 837 So.2d 808, 813-14 (Ala. 2002) (emphasis added). However, although such cases are rare, they do exist. See, e.g., Ex parte Alabama Dep't of Forensic Sci., 709 So.2d 455 (Ala. 1997) (granting a petitioner mandamus relief from the denial of his motion to dismiss based on qualified immunity, the pre- Cranman term for State-agent immunity, see Ryan v. Hayes, 831 So.2d 21, 27 (Ala. 2002) ); and Nance v. Matthews, 622 So.2d 297 (Ala. 1993) (affirming the dismissal of a complaint based on qualified immunity). Here, the allegations of McCain's complaint compel us to conclude that this is one of those rare cases. Gilland made a prima facie showing that her actions arose from a function that would entitle her to State-agent immunity under the third Cranman category. Estate of Reynolds, supra. In response, McCain failed to provide any factual basis for even plausibly concluding that Gilland acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority. Id. Thus, even when the allegations in McCain's complaint are construed in her favor, as they must be, Atkinson, supra, McCain can prove no set of circumstances that would entitle her to relief against Gilland. Id. Accordingly, the specific allegations in this case require that Gilland's motion to dismiss based on State-agent immunity be granted.

Conclusion

Gilland has demonstrated that she has a clear legal right to the dismissal of McCain's claims against her based on State-agent immunity. We therefore grant the petition and issue the writ directing the trial court to dismiss Gilland from the case.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, Sellers, and Mendheim, JJ., concur.

      We note that McCain sued Gilland in her individual capacity and her official capacity. However, "claims that are brought against municipal employees in their official capacity are ..., as a matter of law, claims against the municipality." Morrow v. Caldwell, 153 So.3d 764, 771 (Ala. 2014). See also Dickinson v. City of Huntsville, 822 So.2d 411, 415 (Ala. 2001) ("[T]o sue the mayor in her official capacity is simply another way of suing the City. Therefore, the trial court did not err in substituting the City for Mayor Spencer, the original defendant."). Thus, McCain's claims against Gilland in Gilland's official capacity are merely claims against the City, which is already a defendant but is not a party to this mandamus petition. Accordingly, we are concerned in this opinion only with whether Gilland is entitled to immunity in her individual capacity.

      McCain's complaint does not allege, and McCain has not argued, that Gilland failed to issue Barton a warning as required by § 4-48. In fact, the complaint concedes that "Animal Control" had warned Barton in the past "to keep his dog tethered and secure or it will hurt someone."

      Although we are required to accept McCain's factual allegations as true at this stage of the proceedings, we are not required to accept her conclusory allegations that Gilland acted willfully, maliciously, fraudulently, or in bad faith. Rather, to survive Gilland's motion to dismiss, McCain was required to plead facts that would support those conclusory allegations. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (noting, on review of the dismissal of a complaint for failure to state a claim, that "[t]he plaintiff's factual allegations are accepted as true" but that "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal").